UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549

FORM 8-K

CURRENT REPORT
Pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): July 17, 2017

SEMGROUP CORPORATION
(Exact name of Registrant as specified in its charter)

 
					
Delaware	 	001-34736	 	20-3533152	
(State or other jurisdiction
of incorporation)	 	(Commission
File Number)	 	(IRS Employer
Identification Number)	
Two Warren Place
6120 S. Yale Avenue, Suite 1500
Tulsa, OK 74136-4231
(Address of principal executive offices)
(918) 524-8100
(Registrant’s telephone number, including area code)
Not Applicable
(Former name or former address, if changed since last report)

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
 
☐	Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)	
 
☐	Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)	
 
☐	Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))	
 
☐	Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))	
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company  ☐
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act.  ☐

 

Introductory Note
On July 17, 2017 (the “ Closing Date ”), SemGroup Corporation, a Delaware corporation (the “ Company ”) completed its previously announced transaction pursuant to that certain Purchase and Sale Agreement (the “ Purchase Agreement ”) by and among the Company, Beachhead I LLC, a Delaware limited liability company (“ Buyer I ”), Beachhead II LLC, a Delaware limited liability company (“ Buyer II ” and, together with Buyer I, “ Buyers ”), which are each indirect wholly-owned subsidiaries of the Company, Buffalo Investor I, L.P., a Delaware limited partnership (“ Buffalo I ”), Buffalo Investor II, L.P., a Delaware limited partnership (“ Buffalo II ” and, together with Buffalo I, the “ Sellers ”). Pursuant to the Purchase Agreement, the Company acquired 100% of the equity interests in Buffalo Parent Gulf Coast Terminals LLC, a Delaware limited liability company (“ BPGCT ”), the parent company of Buffalo Gulf Coast Terminals LLC, a Delaware limited liability company (“ BGCT ”) and Houston Fuel Oil Terminal Company LLC, a Delaware limited liability company (“ HFOTCO ”) in exchange for a purchase price paid or to be paid by the Buyers to the Sellers in two payments (the “ Closing ”).
The first payment (the “ First Payment ”) occurred on the Closing Date and was composed of estimated assumed net indebtedness at HFOTCO of approximately $761 million, approximately $400 million in the form of shares of the Company’s Class A common stock, par value $0.01 per share (the “ Class A Common Stock ”), issued at a predetermined price of $32.30 per share for a total of 12,383,900 shares, and $301 million in cash, subject to customary adjustments for working capital, net indebtedness and capital expenditures. The Company funded the cash portion of the First Payment and certain other transaction costs with borrowings under the Company’s revolving credit facility. The second payment will be paid on or prior to December 31, 2018, and consists of $600 million of cash if paid on December 31, 2018, which amount is discounted at a rate of 5% per annum if paid prior to December 31, 2018, and increases to $680 million if not paid by December 31, 2018, but which amount must be paid any time after December 31, 2018 upon the written request of Sellers and, in any event, not later than December 31, 2019 (the “ Second Payment ”). Neither the Company nor any of the subsidiaries of the Company other than BPGCT, Buyers and Beachhead Holdings LLC, a Delaware limited liability company and the parent company of the Buyers (“ Beachhead Holdings ” and, together with BPGCT and Buyers, the “ Guarantors ”), will have any obligation to pay the Second Payment to Sellers. Instead, the Second Payment is secured by a guarantee by the Guarantors and a pledge of the equity interests in BPGCT and Buyers in favor of Sellers, as more fully described under “Guarantee, Pledge and Security Agreement” below.
The foregoing description of the Purchase Agreement is only a summary, does not purport to be complete and is subject to, and qualified in its entirety by reference to, the Purchase Agreement, a copy of which is filed as Exhibit 2.1 to the Company’s Current Report on Form 8-K filed with the Securities and Exchange Commission (the “ SEC ”) on June 6, 2017 and incorporated herein by reference.
 
Item 1.01	Entry into a Material Definitive Agreement	
Guarantee, Pledge and Security Agreement
On the Closing Date, the Guarantors entered into a Guarantee, Pledge and Securities Agreement (the “ Pledge Agreement ”) with the Sellers, pursuant to which (i) the Guarantors guaranteed the obligation of the Buyers to pay the Second Payment and (ii) the Second Payment is secured by a pledge of the equity interests in BPGCT and Buyers, and substantially all of the other assets of Beachhead Holdings and Buyers, in favor of Sellers. The Pledge Agreement contains certain customary affirmative and negative covenants, which, among other things and subject to the exceptions and materiality qualifiers set forth therein, generally (i) require BPGCT and Buyers to maintain their existence, provide or make available to Sellers certain financial and other information regarding BPGCT, Buyers and HFOTCO, and to operate in compliance with applicable legal requirements and permits, and (ii) restrict the ability of Guarantors to incur liens on any of their respective assets other than permitted liens, make certain restricted payments, sell any assets, form new subsidiaries, liquidate, wind-up or dissolve, merge or sell all or substantially all of its assets, establish trade names, make certain investments, engage in certain transactions with affiliates, amend or waive rights under the organizational documents of Grantors or the HFOTCO Credit Agreement (as defined below), in each case until such time as the Second Payment is paid in full, all as further set forth in the Pledge Agreement.
In connection with entering into the Pledge Agreement and as required by the terms thereof, the organizational documents of BPGCT and Buyers were each amended and restated to include customary special purpose and separateness covenants, consistent with the terms of the Pledge Agreement, including the appointment of one independent director to the board of directors of each entity, whose role is limited only to approval in order for such entity to file for bankruptcy.
The Pledge Agreement contains customary events of default, including certain representations and warranties of any Grantor set forth in the Pledge Agreement or related to the enforceability of the obligation to pay the Second Payment being proved to be false, the failure of Buyers to pay the Second Payment when due under the Purchase Agreement, the breach by Grantors of specified covenants set forth in the Pledge Agreement (in some cases, following a specified cure period), an event of default under the HFOTCO Credit Agreement or the HCIDC Loan Agreement (or specified related agreements) other than certain events of default waived by the applicable lenders party thereto, the initiation of involuntary or voluntary bankruptcy proceedings by or against the Company, Beachhead Holdings or any subsidiary of Beachhead Holdings, the failure by a Grantor to discharge certain judgments against such Grantor within 60 days after entry thereof, and a Change of Control (as defined in the Pledge Agreement),which includes any “Change in Control” as defined in the HFOTCO Credit Agreement, the HCIDC Loan Agreement or the Continuing Covenant Agreement and certain mergers involving the Company following which the surviving entity has a lower credit rating assigned to it than the Company did prior to such merger. Upon the occurrence of an event of default, the Sellers have the right to, among other things, force the sale of the pledged equity interests in Buyers and/or BPGCT to satisfy the Second Payment.

Registration Rights Agreement
On the Closing Date, in connection with the Closing, the Company and the Sellers entered into a Registration Rights Agreement (the “ Registration Rights Agreement ”) under which the Company has agreed to (i) to file a registration statement on Form S-3 (or in the event Form S-3 is unavailable to the Company, then on Form S-1) with the SEC to register the offer and resale, on a continuous or delayed basis pursuant to Rule 415 under the Securities Act of 1933, as amended (the “ Securities Act ”), of the shares of Class A Common Stock issued to the Sellers pursuant to the Purchase Agreement (the “ Registrable Securities ”), and (ii) use its reasonable best efforts to cause such registration statement to be declared effective under the Securities Act by the SEC not later than 90 days after the Closing Date and in any event as soon as practicable after such filing. In addition, the Company must use its reasonable best efforts to keep the registration statement continuously effective under the Securities Act until the earlier of (i) the date when all of the Registrable Securities covered by such registration statement have been sold, and (ii) there are no longer any Registrable Securities outstanding.
The Sellers have the right to require the Company by written notice to register the sale of a number of their Registrable Securities in an underwritten offering, provided that the aggregate value of the Registrable Securities in such offering is at least $50 million. However, the Sellers may only exercise their right to demand a widely marketed underwritten offering of Registrable Securities no more than four times in any 365 day period. In addition, if the Company proposes to register a primary offering of its securities for its own account, then, subject to certain exceptions, the Company must allow the Sellers to include a specified number of Registrable Securities in that registration statement.
The registration rights are subject to certain conditions and limitations, including the right of the underwriters to limit the number of Registrable Securities to be included in a registration and the Company’s right to delay a registration statement under certain circumstances. In addition, for a period of 90 days following the Closing Date, the Sellers will be prohibited, subject to certain limited exceptions, from transferring any of the shares of Class A Common Stock they receive pursuant to the Purchase Agreement.
The foregoing description is qualified in its entirety by reference to the full text of the Registration Rights Agreement, a copy of which is filed as Exhibit 10.1 to this Current Report on Form 8-K and is incorporated in this Item 1.01 by reference.
 
Item 2.01	Completion of Acquisition or Disposition of Assets.	
The information set forth under “Introductory Note” and Item 1.01 of this Current Report on Form 8-K is incorporated herein by reference.
 
Item 2.03	Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant	
The information set forth under “Introductory Note” of this Current Report on Form 8-K related to the Company’s revolving credit facility is incorporated herein by reference.
HFOTCO is a party to a Credit Agreement (as supplemented or modified prior to June 14, 2017, the “ Existing HFTOCO Credit Agreement ”), dated as of August 19, 2014, by and among BGCT, as the parent, HFOTCO, as the borrower, Morgan Stanley Senior Funding, Inc. (“ MSSF ”), as administrative agent, Bank of America, N.A., as collateral agent, and the lenders party thereto. In connection with the Closing, the Existing HFOTCO Credit Agreement was modified pursuant to that certain Consent and Amendment No. 1 to Credit Agreement (the “ HFOTCO Credit Agreement Amendment ”; the Existing Credit Agreement, as modified by the HFOTCO Credit Agreement Amendment, the “ HFOTCO Credit Agreement ”), dated as of June 14, 2017 and effective as of the Closing Date, by and among BGCT, as the parent, HFOTCO, as the borrower, MSSF and certain lenders.
Under the terms of the HFOTCO Credit Agreement, HFOTCO issued $550 million of senior secured term loans (the “ HFOTCO Term Loans ”) and obtained senior secured revolving commitments of $75 million (the “ HFOTCO Revolving Commitments ” and any outstanding senior secured revolving loans, the “ HFOTCO Revolving Loans ”). The HFOTCO Revolving Commitments and any outstanding HFOTCO Revolving Loans mature on August 19, 2019. HFOTCO is required to repay the outstanding HFOTCO Term Loans in quarterly amounts equal to 0.25% of the initial amount of the HFOTCO Term Loans, and all outstanding HFOTCO Term Loans mature on August 19, 2021. In addition, under the HFOTCO Credit Agreement, HFOTCO may request an increase of up to an additional $25 million of incremental revolving commitments or the incurrence of up to an additional $100 million of incremental term loans, in each case plus such amount such that, on a pro forma basis after giving effect to the incurrence thereof (assuming that all incremental revolving commitments are fully drawn for purposes of calculation), the total net adjusted leverage ratio would not exceed 5.00 to 1.00. HFOTCO may request such incremental revolving commitments or incremental term loans from existing lenders or new lenders under the HFOTCO Credit Agreement. As of the Closing Date, $534.88 million of HFOTCO Term Loans were outstanding.
At HFOTCO’s option, the HFOTCO Term Loans and outstanding HFOTCO Revolving Loans will bear interest at either the Eurodollar rate or an alternate base rate (“ ABR ”) plus, in each case, an applicable margin. After the Closing Date, the applicable margin relating to any HFOTCO Term Loan and HFOTCO Revolving Loan that is a Eurodollar rate loan is 3.50% and 3.25%, respectively, per annum, and the applicable margin relating to any HFOTCO Term Loan and HFOTCO Revolving Loan that is a ABR rate loan is 2.50% and 2.25%, respectively, per annum.

The HFOTCO Credit Agreement includes customary representations and warranties and affirmative and negative covenants, which were made only for the purposes of the HFOTCO Credit Agreement and as of the specific date (or dates) set forth therein, and may be subject to certain limitations as agreed upon by the contracting parties, and apply only to BGCT, HFOTCO and any subsidiaries of HFOTCO party to the HFOTCO Credit Agreement. Such limitations include the creation of new liens, indebtedness, making of certain restricted payments and payments on indebtedness, making certain dispositions, making material changes in business activities, making fundamental changes including liquidations, mergers or consolidations, making certain investments, entering into certain transactions with affiliates, making amendments to material agreements, modifying the fiscal year, dealing with hazardous materials in certain ways, entering into certain hedging arrangements, entering into certain restrictive agreements, and funding or engaging in sanctioned activities.
In addition, the HFOTCO Credit Agreement contains a financial performance covenant as follows (the “ HFOTCO Financial Covenant ”): if the aggregate revolving exposure exceeds 25% of the HFOTCO Revolving Commitments, the total adjusted net leverage ratio of BGCT and its restricted subsidiaries under the HFOTCO Credit Agreement may not exceed 7.50 to 1.00 as of the last day of any fiscal quarter. The financial performance covenant is solely for the benefit of the lenders holding HFOTCO Revolving Commitments or HFOTCO Revolving Loans.
The HFOTCO Credit Agreement includes customary events of default, including events of default relating inaccuracy of representations and warranties in any material respect when made or when deemed made, non-payment of principal and other amounts owing under the HFOTCO Credit Agreement, including in respect of letter of credit disbursement obligations, violation of covenants, cross acceleration to any material indebtedness of BGCT, HFOTCO and its subsidiaries, bankruptcy and insolvency events, certain unsatisfied judgments, certain ERISA events, certain invalidities of loan documents and the occurrence of a change of control (excluding the change of control occurring on the Closing Date). A default of the HFOTCO Financial Covenant will not constitute an event of default unless lenders holding a majority of the HFOTCO Revolving Commitments and HFOTCO Revolving Loans request that the administrative agent accelerate the maturity of the outstanding HFOTCO Revolving Loans due to a breach of the HFOTCO Financial Covenant. A default under the HFOTCO Credit Agreement would permit the participating banks to terminate commitments, require immediate repayment of any outstanding loans with interest and any unpaid accrued fees, require the cash collateralization of outstanding letter of credit obligations, and subject to intercreditor arrangements with the holders of the IKE Bonds referred to below, exercise other rights and remedies.
The HFOTCO Credit Agreement is guaranteed by BGCT and any future material domestic subsidiary of HFOTCO, and secured by a lien on substantially all of the property and assets of HFOTCO and the other loan parties, subject to customary exceptions and subject to intercreditor arrangements with the holders of the IKE Bonds referred to below.
The foregoing description is qualified in its entirety by reference to the full text of the Existing HFOTCO Credit Agreement, a copy of which is filed as Exhibit 10.2 to this Current Report on Form 8-K and is incorporated in this Item 2.03 by reference and by reference to the full text of the HFOTCO Credit Agreement Amendment, a copy of which is filed as Exhibit 10.3 to this Current Report on Form 8-K and is incorporated in this Item 2.03 by reference.
In 2010, 2011 and 2012, HFOTCO completed the issuance of $75 million, $50 million and $100 million, respectively, of limited obligation revenue bonds due November 1, 2050 (the “ IKE Bonds ”). The IKE Bonds were issued by the Harris County Industrial Development Corporation, a non-profit corporation organized with the approval of Harris County, Texas, and existing pursuant to the Development Corporation Act, Chapter 501, Texas Local Government Code (“ HCIDC ”), under Section 704, Heartland Disaster Relief Act of 2008.
In connection with the issuance of the IKE Bonds, HFOTCO is party to (i) a Loan Agreement, dated November 1, 2010, between HFOTCO, as borrower, and HCIDC (the “ Original 2010 Loan Agreement ” and, as amended by the First Amendment to Loan Agreement (Series 2010), dated August 19, 2014 (the “ First Amendment to 2010 Loan Agreement ”), the “ 2010 Loan Agreement ”), (ii) a Loan Agreement, dated December 1, 2011, between HFOTCO, as borrower, and HCIDC (the “ Original 2011 Loan Agreement ” and, as amended by the First Amendment to Loan Agreement (Series 2011), dated August 19, 2014 (the “ First Amendment to 2011 Loan Agreement ”), the “ 2011 Loan Agreement ”) and (iii) a Loan Agreement, dated October 1, 2012, between HFOTCO, as borrower, and HCIDC (the “ Original 2012 Loan Agreement ” and, as amended by the First Amendment to Loan Agreement (Series 2012), dated August 19, 2014 (the “ First Amendment to 2012 Loan Agreement ”), the “ 2012 Loan Agreement ”; the 2012 Loan Agreement, together with the 2011 Loan Agreement and the 2010 Loan Agreement, the “ HCIDC Loan Agreements ”). HFOTCO used the proceeds of the IKE Bonds loaned to HFOTCO by HCIDC pursuant to the HCIDC Loan Agreements to finance projects in Hurricane Ike disaster areas designated by the Internal Revenue Service and the IKE Bonds were designated by the Governor of Texas as “qualified Hurricane Ike disaster area bonds.”
Pursuant to the terms of the HCIDC Loan Agreements, HFOTCO is obligated to make loan payments to the trustees party to the IKE Bond Indentures (referred to below) for the benefit of HCIDC equal to principal of and interest on the IKE Bonds when due, including upon acceleration. The rate of interest is determined to August 19, 2019 at 3-month LIBOR plus the Applicable Spread, which is defined in the Continuing Covenant Agreement (as referred to below), and ranges from 1.25% to 1.65%, based on reference to a super senior leverage based pricing grid.
In connection with the issuance of the IKE Bonds, HCIDC has entered into (i) the Amended and Restated Bond Indenture (the “ Series 2010 Indenture ”), dated as of August 19, 2014, between HCIDC and The Bank of New York Mellon Trust Company, National Association, as trustee, authorizing and securing $75 million Series 2010 Marine Terminal Revenue Bonds of HCIDC, (ii) the

Amended and Restated Bond Indenture (the “ Series 2011 Indenture ”), dated as of August 19, 2014, between HCIDC and The Bank of New York Mellon Trust Company, National Association, as trustee, authorizing and securing $50 million Series 2011 Marine Terminal Revenue Bonds of HCIDC and (iii) the Amended and Restated Bond Indenture (the “ Series 2012 Indenture ” and, together with the Series 2010 Indenture and the Series 2011 Indenture, the “ IKE Bond Indentures ”), dated as of August 19, 2014, between HCIDC and The Bank of New York Mellon Trust Company, National Association, as trustee, authorizing and securing $100 million Series 2012 Marine Terminal Revenue Bonds of HCIDC.
The IKE Bond Indentures include customary events of default, including non-payment of principal of or interest on the IKE Bonds, violation of covenants (including under the applicable HCIDC Loan Agreement), bankruptcy and insolvency events, and an event of default under the Continuing Covenants Agreement described below . On August 19, 2019, the IKE Bonds may be converted to bear interest on other terms for a successive term or terms on certain conditions at the option of HFOTCO and, if not converted, will continue to bear interest for successive 5-year terms at 3-month LIBOR plus a spread to be determined by a remarketing agent. If the IKE bonds are not remarketed to investors on August 19, 2019, or the end of any successive interest rate term, at a price equal to their principal amount, they must be purchased by HFOTCO under the HCIDC Loan Agreement for a price equal to their principal amount. The IKE Bonds mature on November 1, 2050.
In connection with the conversion of the interest rate mode of the IKE Bonds from the Weekly Mode to the LIBOR Term Indexed Mode contemporaneously with execution and delivery of the IKE Bond Indentures, certain purchasers purchased the IKE Bonds, and BGCT and HFOTCO, entered into a Continuing Covenant Agreement (the “ Existing Continuing Covenant Agreement ”), dated as of August 19, 2014, by and among BGCT, as the parent, HFOTCO, as obligor, Bank of America, N.A., as administrative agent and collateral agent, and the bondholders party thereto. In connection with the Closing, the Existing Continuing Covenant Agreement was modified pursuant to that certain Consent and Amendment (the “ CCA Amendment ”; the Existing Continuing Covenant Agreement, as modified by the CCA Amendment, the “ Continuing Covenant Agreement ”), dated as of June 5, 2017 and effective as of the Closing Date.
The Continuing Covenant Agreement includes customary representations and warranties and affirmative and negative covenants, which were made only for the purposes of the Continuing Covenant Agreement and as of the specific date (or dates) set forth therein, may be subject to certain limitations as agreed upon by the contracting parties, and apply only to BGCT, HFOTCO and any subsidiaries of HFOTCO party to the Continuing Covenant Agreement. Such covenants include limitations on the creation of new liens, indebtedness, making of certain restricted payments and payments on indebtedness, making certain dispositions, making material changes in business activities, making fundamental changes including liquidations, mergers or consolidations, making certain investments, entering into certain transactions with affiliates, making amendments to certain credit or organizational agreements, modifying the fiscal year, creating or dealing with hazardous materials in certain ways, entering into certain hedging arrangements, entering into certain restrictive agreements, funding or engaging in sanctioned activities, taking actions or causing the trustee to take actions that materially adversely affect the rights, interests, remedies or security of the bondholders, taking actions to remove the trustee, making certain amendments to the bond documents, and taking actions or omitting to take actions that adversely impact the tax-exempt status of the IKE Bonds.
In addition, the Continuing Covenant Agreement contains financial performance covenants as follows:
 
 	•	 	the super senior leverage ratio of BGCT and its restricted subsidiaries under the Continuing Covenant Agreement may not exceed 3.50 to 1.00 as of the last day of any fiscal quarter; and	
 
 	•	 	the interest coverage ratio of BGCT and its restricted subsidiaries under the Continuing Covenant Agreement may not be less than 2.00 to 1.00 as of the last day of any fiscal quarter.	
The Continuing Covenant Agreement includes customary events of default, including events of default relating to the inaccuracy of representations and warranties in any material respect when made or when deemed made, non-payment of principal and other amounts owing under the Continuing Covenant Agreement, violation of covenants, acceleration of or right of holders to accelerate any material indebtedness of BGCT, HFOTCO and its subsidiaries, bankruptcy and insolvency events, certain unsatisfied judgments, certain ERISA events, certain invalidities of bond, guaranty or collateral documents and the occurrence of a change of control (excluding the change of control occurring on the Closing Date). A default under the Continuing Covenant Agreement would permit the bondholders to accelerate outstanding obligations under the Continuing Covenant Agreement (other than the IKE Bonds), direct the trustee to accelerate the IKE Bonds, and subject to intercreditor arrangements with the creditors of the HFOTCO Credit Agreement, exercise other rights and remedies.
The obligations under the Continuing Covenant Agreement and the IKE Bonds are guaranteed by BGCT and to be guaranteed by any future material domestic subsidiary of HFOTCO, and secured by a lien on substantially all of the property and assets of HFOTCO and the other loan parties, subject to customary exceptions and subject to intercreditor arrangements with the creditors under the HFOTCO Credit Agreement.
The foregoing description is qualified in its entirety by reference to the full text of the IKE Bond Indentures, the Existing Continuing Covenant Agreement, the CCA Amendment, the Original 2010 Loan Agreement, the First Amendment to 2010 Loan Agreement, the Original 2011 Loan Agreement, the First Amendment to 2011 Loan Agreement, the Original 2012 Loan Agreement and the First Amendment to 2012 Loan Agreement, copies of which are filed as Exhibits 4.1, 4.2, 4.3, 4.4, 4.5, 4.6, 4.7, 4.8, 4.9, 4.10 and 4.11 to this Current Report on Form 8-K and are incorporated in this Item 2.03 by reference.

Item 3.02	Unregistered Sales of Equity Securities.	
Pursuant to the Purchase Agreement, the Company issued 12,383,900 shares of its Class A Common Stock, priced at a predetermined price of $32.30 per share, to the Sellers on the Closing Date, for an aggregate issue price of approximately $400 million. The shares of Class A Common Stock described in this Item 3.02 were issued in reliance upon the exemption from the registration requirements of the Securities Act, provided by Section 4(a)(2) of the Securities Act as sales by an issuer not involving any public offering.
The information set forth under “Introductory Note” and Item 1.01 with respect to the Closing is incorporated herein by reference.
 
Item 7.01	Regulation FD Disclosure	
On July 17, 2017, the Company issued a press release announcing the Closing. A copy of the press release is attached hereto as Exhibit 99.1 and is incorporated herein by reference.
The information furnished pursuant to this Item 7.01 and Exhibit 99.1 shall not be deemed to be “filed” for purposes of Section 18 of the Securities Exchange Act of 1934, as amended (the “ Exchange Act ”), or otherwise subject to the liabilities of that Section, nor shall it be deemed incorporated by reference in any filing under the Securities Act or the Exchange Act, except as shall be expressly set forth by specific reference in such a filing.
 
Item 9.01	Financial Statements and Exhibits	
 
(a)	Financial Statements of Business Acquired	
The financial information required by Item 9.01(a) of Form 8-K will be filed by amendment to this Current Report on Form 8-K within 71 calendar days from the date on which this Current Report on Form 8-K is filed.
 
(b)	Pro Forma Financial Information	
The pro forma financial information required by Item 9.01(b) of Form 8-K will be filed by amendment to this Current Report on Form 8-K within 71 calendar days from the date on which this Current Report on Form 8-K is filed.
 
(d)	Exhibits	
The following exhibits are furnished herewith.

Exhibit
Number	  	Description	
		
  4.1	  	Amended and Restated Bond Indenture, dated as of August 19, 2014, between Harris County Industrial Development Corporation and The Bank of New York Mellon Trust Company, National Association, as trustee, relating to $75 million Series 2010 Marine Terminal Revenue Bonds.	
		
  4.2	  	Amended and Restated Bond Indenture, dated as of August 19, 2014, between Harris County Industrial Development Corporation and The Bank of New York Mellon Trust Company, National Association, as trustee, relating to $50 million Series 2011 Marine Terminal Revenue Bonds.	
		
  4.3	  	Amended and Restated Bond Indenture, dated as of August 19, 2014, between Harris County Industrial Development Corporation and The Bank of New York Mellon Trust Company, National Association, as trustee, relating to $100 million Series 2012 Marine Terminal Revenue Bonds.	
		
  4.4	  	Continuing Covenant Agreement, dated as of August 19, 2014, between HFOTCO, as obligor, BGCT, as the parent, Bank of America, N.A., as administrative agent and collateral agent, and the bondholders party thereto.	
		
  4.5	  	Consent and Amendment to Continuing Covenant Agreement, dated as of June 5, 2017, between HFOTCO, as obligor, BGCT, as the parent, Bank of America, N.A., as administrative agent and collateral agent, and the bondholders party thereto.	
		
  4.6	  	Loan Agreement, dated as of November 1, 2010, by and between HFOTCO and Harris County Industrial Development Corporation, relating to $75 million Series 2010 Marine Terminal Revenue Bonds.	
		
  4.7	  	Loan Agreement, dated as of December 1, 2011, by and between HFOTCO and Harris County Industrial Development Corporation, relating to $50 million Series 2011 Marine Terminal Revenue Bonds.	
		
  4.8	  	Loan Agreement, dated as of October 1, 2012, by and between HFOTCO and Harris County Industrial Development Corporation, relating to $100 million Series 2012 Marine Terminal Revenue Bonds.	
		
  4.9	  	First Amendment to Loan Agreement, dated as of August 19, 2014, by and between HFOTCO and Harris County Industrial Development Corporation, relating to $75 million Series 2010 Marine Terminal Revenue Bonds.	

			
		
4.10	  	First Amendment to Loan Agreement, dated as of August 19, 2014, by and between HFOTCO and Harris County Industrial Development Corporation, relating to $50 million Series 2011 Marine Terminal Revenue Bonds.	
		
4.11	  	First Amendment to Loan Agreement, dated as of August 19, 2014, by and between HFOTCO and Harris County Industrial Development Corporation, relating to $100 million Series 2012 Marine Terminal Revenue Bonds.	
		
10.1	  	Registration Rights Agreement by and among SemGroup Corporation, Buffalo Investor I, LP and Buffalo Investor II, LP, dated as of July 17, 2017.	
		
10.2	  	Credit Agreement, dated as of August 19, 2014, among BGCT, as the parent, HFOTCO, as the borrower, Morgan Stanley Senior Funding, Inc. as administrative agent, Bank of America, N.A., as collateral agent, and the lenders party thereto.	
		
10.3	  	Consent and Amendment No. 1 to Credit Agreement, dated as of 17, 2017, among BGCT, as the parent, HFOTCO, as the borrower, Morgan Stanley Senior Funding, Inc. as administrative agent, Bank of America, N.A., as collateral agent, and the lenders party thereto.	
		
99.1	  	Press Release dated July 17, 2017, issued by SemGroup Corporation.	

SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

 	 	 	 	SEMGROUP CORPORATION	
				
Date: July 17, 2017	 		 	By:	 	/S/ William H. Gault	
	 		 	Name:	 	William H. Gault	
	 		 	Title:	 	Secretary	

EXHIBIT INDEX

Exhibit
Number	  	Description	
		
  4.1	  	Amended and Restated Bond Indenture, dated as of August 19, 2014, between Harris County Industrial Development Corporation and The Bank of New York Mellon Trust Company, National Association, as trustee, relating to $75 million Series 2010 Marine Terminal Revenue Bonds.	
		
  4.2	  	Amended and Restated Bond Indenture, dated as of August 19, 2014, between Harris County Industrial Development Corporation and The Bank of New York Mellon Trust Company, National Association, as trustee, relating to $50 million Series 2011 Marine Terminal Revenue Bonds.	
		
  4.3	  	Amended and Restated Bond Indenture, dated as of August 19, 2014, between Harris County Industrial Development Corporation and The Bank of New York Mellon Trust Company, National Association, as trustee, relating to $100 million Series 2012 Marine Terminal Revenue Bonds.	
		
  4.4	  	Continuing Covenant Agreement, dated as of August 19, 2014, between HFOTCO, as obligor, BGCT, as the parent, Bank of America, N.A., as administrative agent and collateral agent, and the bondholders party thereto.	
		
  4.5	  	Consent and Amendment to Continuing Covenant Agreement, dated as of June 5, 2017, between HFOTCO, as obligor, BGCT, as the parent, Bank of America, N.A., as administrative agent and collateral agent, and the bondholders party thereto.	
		
  4.6	  	Loan Agreement, dated as of November 1, 2010, by and between HFOTCO and Harris County Industrial Development Corporation, relating to $75 million Series 2010 Marine Terminal Revenue Bonds.	
		
  4.7	  	Loan Agreement, dated as of December 1, 2011, by and between HFOTCO and Harris County Industrial Development Corporation, relating to $50 million Series 2011 Marine Terminal Revenue Bonds.	
		
  4.8	  	Loan Agreement, dated as of October 1, 2012, by and between HFOTCO and Harris County Industrial Development Corporation, relating to $100 million Series 2012 Marine Terminal Revenue Bonds.	
		
  4.9	  	First Amendment to Loan Agreement, dated as of August 19, 2014, by and between HFOTCO and Harris County Industrial Development Corporation, relating to $75 million Series 2010 Marine Terminal Revenue Bonds.	
		
4.10	  	First Amendment to Loan Agreement, dated as of August 19, 2014, by and between HFOTCO and Harris County Industrial Development Corporation, relating to $50 million Series 2011 Marine Terminal Revenue Bonds.	
		
4.11	  	First Amendment to Loan Agreement, dated as of August 19, 2014, by and between HFOTCO and Harris County Industrial Development Corporation, relating to $100 million Series 2012 Marine Terminal Revenue Bonds.	
		
10.1	  	Registration Rights Agreement by and among SemGroup Corporation, Buffalo Investor I, LP and Buffalo Investor II, LP, dated as of July 17, 2017.	
		
10.2	  	Credit Agreement, dated as of August 19, 2014, among BGCT, as the parent, HFOTCO, as the borrower, Morgan Stanley Senior Funding, Inc. as administrative agent, Bank of America, N.A., as collateral agent, and the lenders party thereto.	
		
10.3	  	Consent and Amendment No. 1 to Credit Agreement, dated as of 17, 2017, among BGCT, as the parent, HFOTCO, as the borrower, Morgan Stanley Senior Funding, Inc. as administrative agent, Bank of America, N.A., as collateral agent, and the lenders party thereto.	
		
99.1	  	Press Release dated July 17, 2017, issued by SemGroup Corporation.	

Exhibit 4.1

 
HARRIS COUNTY INDUSTRIAL DEVELOPMENT CORPORATION
and
THE BANK OF NEW YORK MELLON TRUST COMPANY,
NATIONAL ASSOCIATION,
as Trustee

AMENDED AND RESTATED BOND INDENTURE
Dated as of August 19, 2014

$75,000,000
HARRIS COUNTY INDUSTRIAL DEVELOPMENT CORPORATION
MARINE TERMINAL REVENUE BONDS
(HFOTCO LLC PROJECT)
SERIES 2010

 

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TABLE OF CONTENTS

 	 	 	  	Page	 	
PARTIES	  	 	1	 	
RECITALS	  	 	1	 	
GENERAL AGREEMENT	  	 	1	 	
	
ARTICLE I	 	
DEFINITIONS; CONTENT OF CERTIFICATES AND OPINIONS	 	
			
SECTION 1.01.	 	Definitions	  	 	2	 	
SECTION 1.02.	 	Content of Certificates and Opinions	  	 	20	 	
SECTION 1.03.	 	Interpretation	  	 	20	 	
	
ARTICLE II	 	
THE BONDS	 	
			
SECTION 2.01.	 	Authorization of Bonds	  	 	22	 	
SECTION 2.02.	 	Denominations; Form; Date; Maturity; Numbering; Interest Accrual; Subseries	  	 	22	 	
SECTION 2.03.	 	Payment of Principal of and Interest on the Bonds	  	 	23	 	
SECTION 2.04.	 	Initial Mode; Change of Mode	  	 	24	 	
SECTION 2.05.	 	Determination of Commercial Paper Rates, Purchase Date and Interest Periods During Commercial Paper Mode	  	 	25	 	
SECTION 2.06.	 	Determination of Interest Rates During the Daily Mode, the Weekly Mode and the R-FLOATs Mode	  	 	26	 	
SECTION 2.07.	 	Determination of Indexed Rates	  	 	28	 	
SECTION 2.08.	 	Determination of Stepped Coupon Rate	  	 	30	 	
SECTION 2.09.	 	Determination of Term Rates	  	 	30	 	
SECTION 2.10.	 	Determination of Fixed Rate	  	 	31	 	
SECTION 2.11.	 	Alternate Rate for Interest Calculation	  	 	31	 	
SECTION 2.12.	 	Changes in Mode and Maximum Rate	  	 	32	 	
SECTION 2.13.	 	Form of Bonds	  	 	36	 	
SECTION 2.14.	 	Execution of Bonds	  	 	36	 	
SECTION 2.15.	 	Transfer of Bonds	  	 	37	 	
SECTION 2.16.	 	Exchange of Bonds	  	 	37	 	
SECTION 2.17.	 	Bond Register	  	 	37	 	
SECTION 2.18.	 	Temporary Bonds	  	 	38	 	
SECTION 2.19.	 	Bonds Mutilated, Lost, Destroyed or Stolen	  	 	38	 	
SECTION 2.20.	 	Use of Securities Depository	  	 	38	 	
SECTION 2.21.	 	The Calculation Agent	  	 	40	 	
	
ARTICLE III	 	
ISSUANCE OF BONDS; APPLICATION OF PROCEEDS	 	
			
SECTION 3.01.	 	Issuance and Exchange of the Bonds	  	 	42	 	
SECTION 3.02.	 	Application of Proceeds of the Bonds	  	 	42	 	
SECTION 3.03.	 	Establishment and Application of Costs of Issuance Fund	  	 	42	 	
 
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TABLE OF CONTENTS
(cont’d)

 	  	 	  	Page	 	
SECTION 3.04.	  	Establishment and Application of Project Fund	  	 	42	 	
SECTION 3.05.	  	Validity of Bonds	  	 	43	 	
	
ARTICLE IV	 	
REDEMPTION AND TENDER OF BONDS	 	
			
SECTION 4.01.	  	Terms of Redemption and Purchase in Lieu of Redemption	  	 	44	 	
SECTION 4.02.	  	Selection of Bonds for Redemption or Purchase	  	 	47	 	
SECTION 4.03.	  	Notice of Redemption	  	 	47	 	
SECTION 4.04.	  	Partial Redemption of Bonds	  	 	48	 	
SECTION 4.05.	  	Effect of Redemption	  	 	48	 	
SECTION 4.06.	  	Optional Tenders of Bonds in the Daily Mode, the Weekly Mode or the R-FLOATs Mode	  	 	48	 	
SECTION 4.07.	  	Mandatory Purchase at End of Commercial Paper Rate Periods	  	 	49	 	
SECTION 4.08.	  	Mandatory Purchase on Mode Change Date, Election to Set a Special R-FLOATs Rate Period or on Borrower Request	  	 	49	 	
SECTION 4.09.	  	Mandatory Purchase at End of Interest Period in Term Rate Mode or Term Indexed Mode or term rate R-FLOATs Rate Interest Period	  	 	50	 	
SECTION 4.10.	  	Mandatory Purchase on Expiration Date, New Liquidity Facility Date, New Credit Facility Date and Termination Date	  	 	50	 	
SECTION 4.11.	  	Remarketing of Bonds; Notices	  	 	51	 	
SECTION 4.12.	  	General Provisions Relating to Tenders	  	 	52	 	
SECTION 4.13.	  	The Remarketing Agents	  	 	55	 	
SECTION 4.14.	  	Qualifications and Substitution of Remarketing Agent	  	 	56	 	
SECTION 4.15.	  	The Tender Agent	  	 	57	 	
SECTION 4.16.	  	Qualifications of Tender Agent	  	 	57	 	
SECTION 4.17.	  	Release of Liquidity Facilities	  	 	58	 	
SECTION 4.18.	  	Acceptance of and Amendments to Liquidity Facilities	  	 	59	 	
	
ARTICLE V	 	
REVENUES; FUNDS AND ACCOUNTS; PAYMENT OF PRINCIPAL AND INTEREST	 	
			
SECTION 5.01.	  	Pledge and Assignment	  	 	61	 	
SECTION 5.02.	  	Interest Fund	  	 	61	 	
SECTION 5.03.	  	Principal Fund	  	 	62	 	
SECTION 5.04.	  	Redemption Fund	  	 	63	 	
SECTION 5.05.	  	Investment of Moneys	  	 	63	 	
SECTION 5.06.	  	Rebate Fund	  	 	65	 	
SECTION 5.07.	  	Draws or Claims Under Credit Facilities	  	 	66	 	
SECTION 5.08.	  	Release of Credit Facilities	  	 	67	 	
SECTION 5.09.	  	Acceptance of and Amendments to Credit Facility	  	 	68	 	
SECTION 5.10.	  	Credit Facility Fund	  	 	69	 	
 
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TABLE OF CONTENTS
(cont’d)

 	  	 	  	Page	 	
ARTICLE VI	 	
PARTICULAR COVENANTS	 	
			
SECTION 6.01.	  	Punctual Payment	  	 	71	 	
SECTION 6.02.	  	Extension of Payment of Bonds	  	 	71	 	
SECTION 6.03.	  	Against Encumbrances	  	 	71	 	
SECTION 6.04.	  	Power to Issue Bonds and Make Pledge and Assignment	  	 	71	 	
SECTION 6.05.	  	Accounting Records and Financial Statements	  	 	71	 	
SECTION 6.06.	  	Tax Covenants	  	 	72	 	
SECTION 6.07.	  	Enforcement and Amendment of Loan Agreement	  	 	73	 	
SECTION 6.08.	  	Waiver of Laws	  	 	74	 	
SECTION 6.09.	  	Further Assurances	  	 	74	 	
	
ARTICLE VII	 	
EVENTS OF DEFAULT AND REMEDIES OF BONDHOLDERS	 	
			
SECTION 7.01.	  	Events of Default	  	 	75	 	
SECTION 7.02.	  	Acceleration of Maturities	  	 	76	 	
SECTION 7.03.	  	Institution of Legal Proceedings by Trustee	  	 	77	 	
SECTION 7.04.	  	Application of Revenues and Other Funds After Default	  	 	78	 	
SECTION 7.05.	  	Trustee to Represent Bondholders	  	 	79	 	
SECTION 7.06.	  	Credit Facility Provider’s and Bondholders’ Direction of Proceedings	  	 	79	 	
SECTION 7.07.	  	Limitation on Bondholders’ Right to Sue	  	 	80	 	
SECTION 7.08.	  	Absolute Obligation of Issuer	  	 	80	 	
SECTION 7.09.	  	Termination of Proceedings	  	 	80	 	
SECTION 7.10.	  	Remedies Not Exclusive	  	 	81	 	
SECTION 7.11.	  	Waivers of Default	  	 	81	 	
SECTION 7.12.	  	Notice to Bondholders of Default	  	 	81	 	
	
ARTICLE VIII	 	
THE TRUSTEE AND AGENTS	 	
			
SECTION 8.01.	  	Duties, Immunities and Liabilities of Trustee	  	 	82	 	
SECTION 8.02.	  	Merger or Consolidation	  	 	83	 	
SECTION 8.03.	  	Liability of Trustee	  	 	83	 	
SECTION 8.04.	  	Right of Trustee and Tender Agent to Rely on Documents	  	 	85	 	
SECTION 8.05.	  	Preservation and Inspection of Documents	  	 	85	 	
SECTION 8.06.	  	Separate or Co-Trustee	  	 	85	 	
SECTION 8.07.	  	Compensation and Indemnification	  	 	86	 	
SECTION 8.08.	  	Notice to Rating Agency	  	 	87	 	
SECTION 8.09.	  	Facsimile and Electronic Transmissions	  	 	87	 	
SECTION 8.10	  	Collateral Agent	  	 	87	 	
 
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TABLE OF CONTENTS
(cont’d)

 	  	 	  	Page	 	
ARTICLE IX	 	
MODIFICATION OR AMENDMENT OF THIS BOND INDENTURE	 	
			
SECTION 9.01.	  	Amendments Permitted	  	 	90	 	
SECTION 9.02.	  	Effect of Supplemental Bond Indenture	  	 	92	 	
SECTION 9.03.	  	Endorsement of Bonds; Preparation of New Bonds	  	 	92	 	
SECTION 9.04.	  	Amendment of Particular Bonds	  	 	92	 	
SECTION 9.05.	  	Consent by Purchasers or Remarketing Agent	  	 	92	 	
	
ARTICLE X	 	
DEFEASANCE	 	
			
SECTION 10.01.	  	Discharge of Bond Indenture	  	 	93	 	
SECTION 10.02.	  	Discharge of Liability on Bonds	  	 	93	 	
SECTION 10.03.	  	Deposit of Money or Securities with Trustee	  	 	94	 	
SECTION 10.04.	  	Payment of Bonds After Discharge of Bond Indenture	  	 	94	 	
	
ARTICLE XI	 	
MISCELLANEOUS	 	
			
SECTION 11.01.	  	Liability of Issuer Limited	  	 	96	 	
SECTION 11.02.	  	Successor Is Deemed Included in All References to Predecessor	  	 	96	 	
SECTION 11.03.	  	Limitation of Rights to Parties and Certain Other Persons	  	 	96	 	
SECTION 11.04.	  	Waiver of Notice	  	 	96	 	
SECTION 11.05.	  	Destruction of Bonds	  	 	96	 	
SECTION 11.06.	  	Severability of Invalid Provisions	  	 	97	 	
SECTION 11.07.	  	Notices	  	 	97	 	
SECTION 11.08.	  	Evidence of Rights of Bondholders	  	 	98	 	
SECTION 11.09.	  	Disqualified Bonds	  	 	99	 	
SECTION 11.10.	  	Money Held for Particular Bonds	  	 	99	 	
SECTION 11.11.	  	Funds and Accounts	  	 	99	 	
SECTION 11.12.	  	Limitation on Liability	  	 	100	 	
SECTION 11.13.	  	Credit Facility Providers and Bondholder Representative	  	 	100	 	
SECTION 11.14.	  	Business Days	  	 	100	 	
SECTION 11.15.	  	Governing Law	  	 	101	 	
SECTION 11.16.	  	Execution in Several Counterparts	  	 	101	 	
SECTION 11.17.	  	Consent to Loan Agreement; Exchange of Notes	  	 	101	 	
SECTION 11.18.	  	Effective Date and Effect	  	 	101	 	
		
TESTIMONIUM	  	 	S-1	 	
SIGNATURES	  	 	S-1	 	
		
EXHIBIT A – FORM OF BOND	  	 	A-1	 	
EXHIBIT B – INVESTMENT SECURITIES	  	 	B-1	 	
EXHIBIT C – FORM OF REQUISITION	  	 	C-1	 	
 
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BOND INDENTURE
THIS AMENDED AND RESTATED BOND INDENTURE, dated as of August 19, 2014 (this “ Bond Indenture ”), between the Harris County Industrial Development Corporation, a Texas public non-profit corporation (the “ Issuer ”), and The Bank of New York Mellon Trust Company, National Association, a national banking association organized and existing under the laws of the United States of America, as trustee (the “ Trustee ”), being qualified to accept and administer the trusts hereby created,
W I T N E S S E T H:
WHEREAS, the Issuer was created pursuant to the Development Corporation Act of 1979, now codified as Chapter 501, Texas Local Government Code, as amended (the “ Act ”), to act on behalf of Harris County, Texas, for the purpose of, among other things, the promotion and development of enterprises to promote and encourage employment and the public welfare; and
WHEREAS, HFOTCO LLC, a limited liability company organized under the laws of the State of Texas (the “ Borrower ”), requested financial assistance from the Issuer to provide funds to finance eligible costs of the projects described in the Loan Agreement referred to herein (the “ Projects ”); and
WHEREAS, the Issuer issued its Marine Terminal Revenue Bonds (HFOTCO LLC Project), Series 2010 (the “ Bonds ”) to finance eligible costs of the Projects; and
WHEREAS, the Issuer entered into a Loan Agreement, dated as of November 1, 2010, with the Borrower, under which the Issuer loaned to the Borrower the proceeds of the Bonds to provide for the financing of eligible costs of the Projects and the Borrower agreed to make loan payments in amounts and by times sufficient to pay the principal of and premium, if any, and interest on the Bonds and certain related expenses; and
WHEREAS, in order to provide for the authentication and delivery of the Bonds, to establish and declare the terms and conditions upon which the Bonds were to be issued and secured, and to secure the payment of the principal thereof and premium, if any, and interest thereon, the Issuer executed and delivered that certain Bond Indenture, dated as of November 1, 2010, as amended, with the Trustee (the “ Original Bond Indenture ”); and
WHEREAS, at the request of the Borrower, the Issuer desires to amend and restate the Original Bond Indenture as herein provided in order to permit the Bonds to be converted to a Mode in which they will bear interest at a function of an interest rate index for a term ending prior to the Maturity Date, and the Original Bond Indenture may be amended for such purpose on the conditions described in Section 9.01B(7) ; and
WHEREAS, all acts and proceedings required by law necessary to make the Bonds, when executed by the Issuer, authenticated and delivered by the Trustee, and duly issued (including as authorized hereby to be amended), valid, binding and legal limited obligations of the Issuer, and to constitute this Bond Indenture a valid and binding agreement for the uses and purposes herein set forth in accordance with its terms, have been done and taken, and the execution and delivery of this Bond Indenture have been in all respects duly authorized;
 
1

NOW, THEREFORE, the parties hereto hereby amend and restate the Original Bond Indenture to read as follows:
	
THIS BOND INDENTURE WITNESSETH, that in order to secure the payment of the principal of and premium, if any, and the interest on all Bonds at any time issued and outstanding under this Bond Indenture, according to their tenor, and to secure the performance and observance of all the covenants and conditions therein and herein set forth, and to declare the terms and conditions upon and subject to which the Bonds are to be issued and received, and in consideration of the premises and of the mutual covenants herein contained and of the purchase and acceptance of the Bonds by the Holders thereof, and for other valuable consideration, the receipt and sufficiency whereof are hereby acknowledged, the Issuer does hereby covenant and agree with the Trustee, for the benefit of the respective registered owners from time to time of the Bonds, as follows:
ARTICLE I
DEFINITIONS; CONTENT OF CERTIFICATES AND OPINIONS
SECTION 1.01. Definitions.
Unless the context otherwise requires, the terms defined in this Section shall, for all purposes of this Bond Indenture and of any indenture supplemental hereto and of any certificate, opinion or other document herein mentioned, have the meanings herein specified, to be equally applicable to both the singular and plural forms of any of the terms herein defined.
“ Act ” means Chapter 501, Texas Local Government Code, as amended.
“ Additional Payments ” means the payments so designated and required to be made by the Borrower pursuant to Sections 3.06, 5.03 and 5.05 of the Loan Agreement.
“ Administrative Fees and Expenses ” means any application, commitment, financing or similar fee charged, or reimbursement for administrative or other expenses incurred, by the Issuer or the Trustee.
“ Affiliate ” of any specified Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified Person. For purposes of this definition, “ control ” when used with respect to any specified Person means the power to direct the management and policies of such Person, directly or indirectly, whether by contract, through the ownership of voting securities or the power to appoint and remove directors or trustees, or otherwise; and the terms “ controlling ” and “ controlled ” have meanings correlative to the foregoing.
“ Alternate Rate ” means, unless as otherwise set forth in a Supplemental Bond Indenture, (1) with respect to Bonds in a Daily Mode or a Weekly Mode, an annual rate equal to the lower of the percentages of the SIFMA Municipal Swap Index shown in the following table opposite the highest short-term and the highest long-term rating assigned to the Bonds by any Rating Agency:
 
2

							
Short-Term Rating	  	 	  	Long-Term Rating	  	% of SIFMA
Municipal Swap Index
(Tax-Exempt)	
A1 or P-1 or F1	  	and	  	AAA or Aaa or AAA	  	150%	
A1 or P-1 or F1	  	and	  	AA or Aa or AA	  	250%	
A1 or P-1 or F1	  	and	  	A or A or A	  	350%	
A2 or P-2 or F2	  	and	  	BBB or Baa or BBB	  	450%	
A3 or P-3 or F3 or below	  	and	  	BBB- or Baa3 or BBB- or below	  	Maximum Rate	
(2) with respect to Bonds in a Commercial Paper Mode or a Term Rate Mode, an annual rate equal to the lower of the percentages shown in the following table, opposite the highest short-term rating (except during a Term Rate Mode with Interest Periods longer than three years) and the highest long-term rating assigned to the Bonds by any Rating Agency, of LIBOR with a term nearest to the length of the Interest Period for which the Alternate Rate is calculated:

Short-Term Rating	  	 	  	Long-Term Rating	  	% of LIBOR
(Tax-Exempt)	
A1 or P-1 or F1	  	and	  	AAA or Aaa or AAA	  	100%	
A1 or P-1 or F1	  	and	  	AA or Aa or AA	  	200%	
A1 or P-1 or F1	  	and	  	A or A or A	  	300%	
A2 or P-2 or F2	  	and	  	BBB or Baa or BBB	  	400%	
A3 or P-3 or F3 or below	  	and	  	BBB- or Baa3 or BBB- or below	  	Maximum Rate	
(3) with respect to Bonds in any R-FLOATs Mode, an annual rate equal to the Maximum Rate, and (4) with respect to Bonds in a Term Indexed Mode (a) if the LIBOR Index is less than 1% per annum as of the most recent LIBOR Index Reset Date on or before such day, then 1% per annum, and (b) if the LIBOR Index is equal to or greater than 1% per annum as of such LIBOR Index Reset Date, then 74% of the LIBOR Index for such LIBOR Index Reset Date.
“ Applicable Factor ” means (1) 70% for the initial Interest Period in the Initial LIBOR Term Indexed Mode and (2) for any subsequent Interest Period in a LIBOR Term Indexed Mode means the factor greater than 65% but not more than 135% to be applied to LIBOR for the Rate Determination Date for such Interest Period in determining the LIBOR Term Indexed Rate in such Interest Period, which shall be as determined by the Remarketing Agent on the Rate Determination Date for such Interest Period.
“ Applicable Spread “ means the per annum rate to be added to the LIBOR Index or any function thereof (as described in the definition thereof in this Section) when Bonds are in a LIBOR Term Indexed Mode, or to the SIFMA Index when Bonds are in a SIFMA Term Indexed Mode, to determine the Indexed Rate for such Bonds pursuant to Section 2.07 . During any day in the initial Interest Period of the Initial LIBOR Term Indexed Mode, the Applicable Spread shall be the “Applicable Spread” (as defined in the initial Bondholder Agreement) so determined for such day in accordance with the initial Bondholder Agreement, which is 1.40% per annum on the first day of such Initial LIBOR Term Indexed Mode, provided that no change in the Applicable Spread in the Initial
 
3

LIBOR Term Indexed Mode shall be effective unless and until the Trustee receives written notice of such change from the Bondholder Representative or the Borrower. The Applicable Spread for any other Indexed Mode or Interest Period shall be as determined by the Remarketing Agent, or pursuant to any function or scale determined by the Remarketing Agent, prior to the first day of such Interest Period.
“ Authorized Representative ” means the President, the Chief Financial Officer, the Treasurer, or any Vice President of the Borrower or any other person designated as an Authorized Representative of the Borrower by a Certificate of the Borrower signed by another Authorized Representative of the Borrower and filed with the Trustee.
“ Available Money” means all amounts as to which the Trustee and the Credit Facility Providers have received an Opinion of Counsel stating that no disbursement thereof pursuant to this Bond Indenture may be avoided or otherwise recovered under Section 547 (or under Section 550 in respect of such Section) of the Bankruptcy Code or under any similar provision of applicable state law in the event of the bankruptcy, insolvency, liquidation, reorganization, or similar proceeding in respect of the Issuer or the Borrower.
“ Bank Settlement Deadline ” means 30 minutes before the applicable DTC Settlement Deadline.
“ Bond Counsel ” means legal counsel of recognized national standing in the field of obligations the interest on which is excluded from gross income for federal income tax purposes, selected by the Borrower and not objected to by the Trustee or the Credit Facility Provider (if any).
“ Bond Indenture ” means this Bond Indenture, as originally executed or as it may from time to time be supplemented, modified or amended by any Supplemental Bond Indenture.
“ Bond Register ” means the register maintained by the Trustee to record ownership and transfers of the Bonds.
“ Bondholder ” means the Holder of a Bond.
“ Bondholder Agreement “ means (1) until the Bonds are all repurchased by the Borrower or upon remarketing at the end of or during the initial Interest Period in the Initial LIBOR Term Indexed Mode, the Continuing Covenant Agreement, dated as of August 19, 2014, among the Borrower, Buffalo Gulf Coast Terminals LLC, Bank of America, N.A., as Administrative Agent and Collateral Agent, and the Bondholders from time to time party thereto, as originally executed or (if the Trustee receives a Favorable Opinion of Bond Counsel or no change to the definition of “Applicable Spread,” “Default Rate,” or “Determination of Taxability” therein is effected thereby) as supplemented and amended from time to time, and (2) thereafter any agreement entered into by the Borrower with a Bondholder to induce the Bondholder to purchase Bonds, stating that it is a “Bondholder’s Agreement” hereunder, and delivered to the Trustee, if (a) the Trustee receives a Favorable Opinion of Bond Counsel and (b) such agreement requires a Person (who may be the Bondholder Representative) to give prompt notice to the Trustee of any change in the Reserve Percentage, the Default Rate, the Applicable Factor, or the Applicable Spread, when applicable.
“ Bondholder Representative ” means the Person or Persons, if any, authorized by the Bondholder Agreement to take actions, give directions, provide consents, or give or rescind notices to the Trustee on behalf of all (or any required percentage) of the Bondholders and otherwise take such actions and exercise such powers as are delegated by the Bondholders to the Bondholder
 
4

Representative under the Bondholder Agreement, but only while such Bondholder Agreement is in effect. The Bondholder Representative during the initial Interest Period in the Initial LIBOR Term Indexed Mode is Bank of America, N.A., in its capacity as administrative agent under the initial Bondholder Agreement, or its successors or assigns in such capacity under the initial Bondholder Agreement. Upon any resignation of the Bondholder Representative under the Bondholder Agreement (with written notice of such resignation given to the Trustee) and until the Trustee receives written notice that a new Bondholder Representative has been appointed, the references in this Bond Indenture to “Bondholder Representative” shall be of no effect. For the avoidance of doubt, any resignation or replacement of Bank of America, N.A., as administrative agent under the initial Bondholder Agreement with written notice to the Trustee shall automatically constitute its resignation or replacement as Bondholder Representative hereunder.
“ Bonds ” means all Marine Terminal Revenue Bonds (HFOTCO LLC Project), Series 2010 of the Issuer, authenticated and delivered under the Original Bond Indenture or this Bond Indenture.
“ Borrower ” means HFOTCO LLC, a limited liability company duly organized and existing under the laws of the State of Texas.
“ Borrower Purchase Account ” means the account by that name within the Purchase Fund established pursuant to Section 4.12 .
“ Business Day ,” when used in respect of the Bonds or any subseries thereof, means a day that is not a Saturday, Sunday or legal holiday on which banking institutions generally in the State of Texas, the State of New York or any state in which the office of the Liquidity Facility Provider (if any), Credit Facility Provider (if any), Calculation Agent (if any), Bondholder Representative (if any), or Remarketing Agent (if any) for such Bonds, the Tender Agent (unless such Bonds are in a Term Rate Mode, Term Indexed Mode, Stepped Coupon Mode, or Fixed Rate Mode), or the Trustee at which its obligations under the applicable Credit Facility, Liquidity Facility, or Remarketing Agreement or this Bond Indenture are performed is located are authorized to remain closed or a day on which the New York Stock Exchange is closed and, when used with respect to any LIBOR Index determination, means any day on which dealings in U.S. dollar deposits are conducted by and between banks in the London interbank market and on which the principal office of the Calculation Agent is open for business.
“ Calculation Agent ” means any Person engaged by the Borrower to determine the Indexed Rates (which shall be Bank of America, N.A., or any successor approved by it, during the initial Interest Period in the Initial LIBOR Term Indexed Mode) and its successors and assigns.
“ Certificate,” “Statement,” “Request,” “Requisition” and “Order” of the Issuer or the Borrower, mean, respectively, a written certificate, statement, request, requisition or order signed in the name of the Issuer by the President or any Vice President of the Issuer or such other person as may be designated and authorized to sign for the Issuer and designated by the President or any Vice President of the Issuer in writing to the Trustee, or in the name of the Borrower by an Authorized Representative of the Borrower. Any such instrument and supporting opinions or representations, if any, may, but need not, be combined in a single instrument with any other instrument, opinion or representation, and the two or more so combined shall be read and construed as a single instrument. If and to the extent required by Section 1.02 , each such instrument shall include the statements provided for in Section 1.02 .
 
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“ Code ” means the Internal Revenue Code of 1986, as amended, or any successor statute thereto, and any regulations promulgated thereunder, to the extent applicable to the taxation of interest on the Bonds.
“ Commercial Paper Mode ” means the Mode during which the Bonds or any subseries bear interest at the Commercial Paper Rate.
“ Commercial Paper Rate ” means the per annum interest rate determined pursuant to Section 2.05 with respect to any Bond in any Interest Period while in the Commercial Paper Mode.
“ Common Issue Bonds ” means the Bonds and any other tax- exempt bonds sold within 15 days of the first day on which there is a binding written contract for the sale or exchange of the Bonds and which are payable from loan payments to be made by the Borrower, which bonds are part of the same “ issue ,” as defined in section 1.150-1(c) of the Regulations, as the Bonds and include the Issuer’s Marine Terminal Revenue Bonds (HFOTCO LLC Project) Series 2011 and Series 2012.
“ Cost ” when used with respect to any Project has the meaning stated in the Loan Agreement.
“ Costs of Issuance ” means all items of expense directly or indirectly payable by or reimbursable to the Issuer or the Borrower and related to the authorization, issuance, sale and delivery of the Bonds, including but not limited to costs of preparation and reproduction of documents, printing expenses, filing and recording fees, initial fees and charges of the Trustee and its counsel, the Remarketing Agents and the Tender Agent, legal fees and charges, fees and disbursements of consultants and professionals, fees and charges for preparation, execution and safekeeping of the Bonds and any other cost, charge or fee in connection with the original issuance of the Bonds.
“ Costs of Issuance Fund ” means the fund of the Borrower by that name established pursuant to Section 3.03 .
“ Credit Facility ” for the Bonds or any subseries thereof means a letter of credit, including, if applicable, a confirming letter of credit, bond insurance policy or similar credit facility issued by a commercial bank, savings institution, insurer or other financial institution, or any portion thereof, which, by its terms, shall provide for or insure the payment of the principal of and interest on such Bonds when due, and delivered to and accepted by the Trustee pursuant to Section 5.09 .
“ Credit Facility Fund ” means the fund of the Trustee by that name established pursuant to Section 5.10 .
“ Credit Facility Provider ”, when used in respect of the Bonds or any subseries thereof, means the commercial bank, savings institution, insurer or other Person issuing the Credit Facility for such Bonds. The initial Credit Facility Provider is Bank of America, N.A.
“ Current Mode ” shall have the meaning specified in Section 2.12 .
“ Daily Mode ” means the Mode during which the Bonds or any subseries thereof bear interest at the Daily Rate.
“ Daily Rate ” means an interest rate that is determined pursuant to Section 2.06 on each Business Day with respect to the Bonds or any subseries thereof while in the Daily Mode.
 
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“ Default Rate ” as of any date means (1) the rate defined as the “Default Rate” in any Bondholder Agreement then in effect, and (2) at all other times, the rate of interest that would then be borne by the Bonds if they did not bear interest at the Default Rate.
“ Depository Participant ” means a member of, or participant in, the Securities Depository.
“ Determination of Taxability ” shall have the meaning stated in the Bondholder Agreement, except that no Determination of Taxability shall occur or exist unless and until the Trustee has received written notice thereof from the Bondholder Representative or, if none, a Bondholder.
“ Draw Deadline ” means the time by which the Credit Facility Provider or Liquidity Facility Provider must receive documentation from the Trustee to be obligated to advance funds to pay principal of or interest on or the Purchase Price of Bonds by the applicable Bank Settlement Deadline. While the initial Credit Facility and Liquidity Facility remains in effect, the Draw Deadline for purchases of Bonds tendered for purchase in accordance with Article IV is 12:00 noon, New York City time, and for payment of principal of and interest on Bonds is 4:00 p.m., New York City time, on the immediately preceding Business Day.
“ DTC Settlement Deadline ” means the time of day by which funds must be deposited with the Securities Depository to pay the applicable transactions on such day in accordance with its operating procedures from time to time in effect. Such times are currently 2:30 p.m., New York City time, for purchases of Bonds and 3:00 p.m., New York City time, for the payment of principal of and interest on Bonds.
“ Electronic Means ” means by electronic transmission administered by the Society for Worldwide Interbank Financial Telecommunication (SWIFT) or other secure electronic transmission containing applicable authorization codes, passwords, and/or authentication keys issued by the Trustee; facsimile transmission; email transmission; or another method or system specified by the Trustee as available for use in connection with its services hereunder.
“ Eligible Bonds ” means any Bonds other than Liquidity Facility Bonds or Bonds owned by, for the account of, or on behalf of, the Issuer or the Borrower.
“ Event of Default ” means any of the events specified in Section 7.01 .
“ Excluded Purchaser” means each of the Issuer, the Borrower, and, to the knowledge of the Tender Agent, any Affiliate of the Borrower and any nominee, pledgee, or other Person to the extent such Person is purchasing a Bond for the benefit of any of the foregoing, there being no guarantor of any of the Borrower’s obligations under the Loan Agreement.
“ Expiration Date ” for the Bonds of any subseries means the date upon which the Liquidity Facility or Credit Facility for such Bonds is scheduled to expire (taking into account any extensions of such Expiration Date) in accordance with its terms without regard to any early termination thereof.
“ Favorable Opinion of Bond Counsel ” means, with respect to any action the occurrence of which requires such an opinion, an unqualified Opinion of Counsel, rendered by Bond Counsel, to the effect that such action is permitted under this Bond Indenture and will not, in and of itself, result in the inclusion of interest on any Common Issue Bond in gross income for federal income tax purposes (subject to the inclusion of any exceptions contained in the opinion delivered upon the effective date of this Bond Indenture).
 
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“ Fitch ” means Fitch Inc., a corporation organized and existing under the laws of the state of its organization, and its successors and assigns, or, if such corporation shall be dissolved or liquidated or shall no longer perform the functions of a securities rating agency, any other nationally recognized securities rating agency designated by the Borrower by notice to the Issuer, the Credit Facility Provider (if any), the Liquidity Facility Provider (if any) and the Trustee.
“ Fixed Rate ” means the interest rate on Fixed Rate Bonds determined pursuant to Section 2.10 .
“ Fixed Rate Bonds ” means the Bonds while in the Fixed Rate Mode.
“ Fixed Rate Mode ” means the Mode during which the Bonds or any subseries thereof bear interest at a Fixed Rate.
“ Governmental Obligations” means noncallable (1) direct obligations of the United States of America, (2) obligations the full and timely payment of which is unconditionally guaranteed by the United States of America, (3) interest obligations of the Resolution Funding Corp. which are separately registered by book-entry on the books of the Federal Reserve Bank of New York, and (4) obligations of a state or an agency, county, municipality, or other political subdivision thereof that have been refunded and that are rated in the highest rating category by S&P or Moody’s and are secured by cash, obligations of or guaranteed by the United States of America.
“ Holder,” when used with respect to a Bond, means the Person in whose name such Bond is registered on the Bond Register.
“ Indexed Mode ” means the Long Indexed Mode or a Term Indexed Mode.
“ Indexed Rate ” means a Long Indexed Rate or a Term Indexed Rate.
“ Initial LIBOR Term Indexed Mode ” means the LIBOR Term Indexed Mode that commences on the effective date of this Bond Indenture.
“ Interest Fund ” means the fund by that name established pursuant to Section 5.02 .
“ Interest Payment Date ” means:
(1) Commercial Paper : with respect to Bonds in a Commercial Paper Mode (a) with an Interest Period of 180 days or less, the Purchase Date, and (b) with an Interest Period of 181 days or more, each May 1 and November 1 prior to the Purchase Date and the Purchase Date;
(2) Short-Term Modes : with respect to Bonds in a Daily Mode, a Weekly Mode, a weekly R-FLOATs Mode or a monthly R-FLOATs Mode, the first Business Day of each month;
 
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(3) Special R-FLOATs : with respect to Bonds in a Special R-FLOATs Rate Period of 180 days or less, the first Business Day of the month immediately following the last day of such Special R-FLOATs Rate Period, and with respect to Bonds in a Special R-FLOATs Rate Period of more than 180 days, each May 1 and November 1 following the commencement of such Special R-FLOATs Rate Period and the last day of such Special R-FLOATs Rate Period;
(4) Term Modes : with respect to Bonds in a Term Rate Mode or a term rate R-FLOATs Mode, each May 1 and November 1 prior to the Purchase Date and the Purchase Date;
(5) Fixed Rate Mode : with respect to Bonds in the Fixed Rate Mode, each May 1 and November 1;
(6) Mode Change Dates : any Mode Change Date;
(7) Indexed Mode : with respect to Bonds (a) in a Long Indexed Mode, the dates determined by the Remarketing Agent for such Bonds pursuant to Section 2.07 , and (b) in a Term Indexed Mode, (x) the first Business Day of each month during any Interest Period, if the Initial LIBOR Term Indexed Mode is in effect or if elected by the Borrower when directing a change to any Interest Mode, (y) otherwise on the first Business Day of each February, May, August, and November, and (z) each Purchase Date;
(8) Stepped Coupon Mode : with respect to Bonds in a Stepped Coupon Mode, the dates determined by the Remarketing Agent for such Bonds pursuant to Section 2.08 ;
(9) Maturity Dates : the respective Maturity Dates of the Bonds; and
(10) Liquidity Facility Bonds : with respect to Liquidity Facility Bonds of any subseries, the Interest Payment Dates for other Bonds of such subseries (or any other dates specified in any amendment to the initial Reimbursement Agreement or any replacement thereof approved by the Issuer, if the Trustee has received a Favorable Opinion of Bond Counsel).
“ Interest Payment Period ” for any Bond and Interest Payment Date means the period commencing on the last Interest Payment Date therefor to which interest thereon has been paid (or, if no interest has been paid on such Bond, from the date of original issuance of the Bonds) to, but not including, such Interest Payment Date.
“ Interest Period ” for any Bond means the period of time that an interest rate thereon (or the percentage or spread used to determine the same) remains in effect, which period:
(1) Daily Mode : with respect to Bonds in a Daily Mode, commences on a Business Day and extends to, but does not include, the next succeeding Business Day;
(2) Weekly Mode : with respect to Bonds in a Weekly Mode, commences on the first day such Bonds begin to accrue interest in the Weekly Mode and ends on the next succeeding Wednesday (or, if not immediately followed by a Business Day, then on the day preceding the next Business Day) that occurs at least two days later, and thereafter commences on each Thursday (or, if not a Business Day, on the next succeeding Business Day) and ends on Wednesday of the following week (or, if not immediately followed by a Business Day, then on the day preceding the next Business Day);
 
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(3) R-FLOATs Mode : with respect to Bonds in an R-FLOATs Mode (i) bearing interest at a weekly R-FLOATs Rate, commences on the first day such Bonds begin to accrue interest in the weekly R-FLOATs Mode and ends on the next succeeding Wednesday (or, if not immediately followed by a Business Day, then on the day preceding the next Business Day), and thereafter commences on each Thursday (or, if not a Business Day, on the next succeeding Business Day) and ends on Wednesday of the following week (or, if not immediately followed by a Business Day, then on the day preceding the next Business Day); (ii) bearing interest at a monthly R-FLOATs Rate, commences on the first day such Bonds begin to accrue interest in the monthly R-FLOATs Mode and ends on the day immediately preceding the first Business Day of the next succeeding month, and thereafter commences on the first Business Day of each month and ends on the day immediately preceding the first Business Day of the next succeeding month; (iii) bearing interest at a term rate R-FLOATs Rate, commences on the first day such Bonds begin to accrue interest in the term rate R-FLOATs Mode to, but not including, the next Purchase Date; and (iv) bearing interest at a Special R-FLOATs Rate Period, extends as set forth in Section 2.06E ;
(4) Commercial Paper Mode : with respect to each Bond in a Commercial Paper Mode, shall be as established by the Remarketing Agent for such Bond pursuant to Section 2.05 ;
(5) Indexed Mode : with respect to Bonds (a) in a Long Indexed Mode, shall extend from the first day of such Indexed Mode to the Maturity Date, and (b) in a Term Indexed Mode initially shall extend from the first day of such Term Indexed Mode to, but not including, the Purchase Date established for such Bonds pursuant to Section 2.07 , and thereafter shall extend from and including such Purchase Date to but excluding the next Purchase Date therefor;
(6) Stepped Coupon Mode : with respect to Bonds in the Stepped Coupon Mode, shall be as established for such Bonds pursuant to Section 2.08 ;
(7) Term Rate Mode : with respect to the Bonds in a Term Rate Mode, initially shall extend from and including the first day of such Term Rate Mode to, but not including, the Purchase Date established for such Bonds pursuant to Section 2.09 , and thereafter shall extend from and including such Purchase Date to but not including the next Purchase Date therefor; and
(8) Fixed Rate Mode : with respect to Bonds in the Fixed Rate Mode, commences on the first day of such Fixed Rate Mode and ends on (and includes) the day immediately prior to the Maturity Date of such Bonds.
“ Interested Parties ” means the Borrower, the Issuer, the Trustee, the Tender Agent and the Credit Facility Providers (if any).
“ Investment Securities ” means the securities and other investments described in Exhibit B .
“ Issuer ” means the Harris County Industrial Development Corporation or its successors and assigns.
 
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“LIBOR ” means the London Interbank Offered Rate for deposits in U.S. dollars (with a term nearest to the length of the Interest Payment Period for which the Alternate Rate or Indexed Rate is being calculated or as otherwise provided in the definition of Alternate Rate in this Section) that appears on the applicable Bloomberg screen page (or such other service as may be nominated by the ICE Benchmark Administration Limited for the purpose of displaying London interbank offered rates for U.S. dollar deposits) as of 11:00 a.m., London time, on the Rate Determination Date for such Alternate Rate or Indexed Rate. In the case of a Term Rate Mode with an Interest Period greater than 12 months, LIBOR shall mean the USD-ISDA-Swap Rate for a term nearest in length to the length of such Interest Period.
“ LIBOR Index ” as of any LIBOR Index Reset Date means the rate per annum equal to the London Interbank Offered Rate, as published on the applicable Bloomberg screen page (or other commercially available source providing such quotations as may be designated by the Bondholder Representative or, if none, the Calculation Agent from time to time) at or about 11:00 a.m., London time, on the second Business Day prior to such date for U.S. Dollar deposits with a term of one month commencing on such LIBOR Index Reset Date. Notwithstanding the foregoing, if (a) the Bondholder Representative or, if none, the Calculation Agent determines that (i) U.S. Dollar deposits are not being offered to banks in the London interbank market for U.S. Dollar deposits for an interest period extending from one LIBOR Index Reset Date to the next LIBOR Index Reset Date, or (ii) adequate and reasonable means do not exist for determining the LIBOR Index for any such interest period, (b) the Holders of not less than a majority in aggregate principal amount of the Bonds at the time Outstanding determine that for any reason the LIBOR Index for any such interest period does not result in a rate that adequately and fairly reflects the cost to such Holders of holding the Bonds for such interest period, or (c) any Holder determines that any applicable law has made it unlawful, or that any governmental authority has asserted that it is unlawful, for the Bonds to bear interest at a function of the LIBOR Index, or to determine or charge interest rates based upon the LIBOR Index, or any governmental authority has imposed material restrictions on the authority of such Holder to purchase or sell, or to take deposits of, U.S. Dollars in the London interbank market (any event described in clause (a)(i), (a)(ii), (b) or (c) of this sentence, a “ Disruption Event ”), then the “ LIBOR Index ” shall mean an alternate rate that will result in interest on the Bonds that fairly reflects the costs to Holders of holding the Bonds for such interest period as reasonably determined by the Calculation Agent, until such time as the Bondholder Representative, the Calculation Agent or the Holders of not less than a majority in aggregate principal amount of the Bonds at the time Outstanding, as applicable, reasonably determine that the applicable Disruption Event no longer subsists.
“ LIBOR Index Rate” for any day in any Interest Payment Period in a LIBOR Term Indexed Mode means a per annum rate determined from time to time and equal to (x) the product of (a) the quotient from dividing (i) the LIBOR Index as of the LIBOR Index Reset Date on which such Interest Payment Period begins by (ii) one less the Reserve Percentage, (b) the Applicable Factor, and (c) the Margin Rate Factor as of such day plus (y) the Applicable Spread during such Interest Payment Period (such Applicable Spread to be determined in accordance with Section 2.07 for any Interest Period after the first Interest Period in the Initial LIBOR Term Indexed Mode); provided, however , that the LIBOR Index Rate shall never exceed 135% of the LIBOR Index plus the Applicable Spread or equal or be less than 65% of the LIBOR Index plus the Applicable Spread.
“ LIBOR Index Reset Date ” for Bonds in a LIBOR Term Indexed Mode means the first Business Day of and each Interest Payment Date in such Interest Mode.
“ LIBOR Term Indexed Mode ” means the Mode during which the Bonds or any subseries thereof bear interest at LIBOR Term Indexed Rates for an Interest Period that ends prior to the Maturity Date, including the Initial LIBOR Term Indexed Mode.
 
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“ LIBOR Term Indexed Rate ” means an interest rate that is determined pursuant to Section 2.07 with respect to Bonds in the LIBOR Term Indexed Mode or, if less, the Maximum Rate.
“ Liquidity Facility ” for the Bonds or any subseries thereof means a standby bond purchase agreement, letter of credit or similar liquidity facility issued by a commercial bank, savings institution, insurer or other institution, or any portion thereof, which, by its terms, shall provide for the payment of the Purchase Price of such Bonds tendered for purchase and not remarketed, delivered to and accepted by the Trustee pursuant to Section 4.18 .
“ Liquidity Facility Bond Rate ” for the Bonds of any subseries means the interest rate(s) applicable from time to time to the other Bonds of such subseries (or as otherwise specified in accordance with any amendment to the initial Reimbursement Agreement or substitute Liquidity Facility approved by the Issuer, if the Trustee has received a Favorable Opinion of Bond Counsel).
“ Liquidity Facility Bond Sale Date ” means the day on which a Liquidity Facility Bond ceases to be a Liquidity Facility Bond.
“ Liquidity Facility Bonds ” means Bonds purchased by or with funds drawn on a Liquidity Facility Provider pursuant to a Liquidity Facility, but excluding Bonds no longer considered Liquidity Facility Bonds pursuant to the terms of such Liquidity Facility or the initial Reimbursement Agreement or any substitute therefor approved by the Issuer.
“ Liquidity Facility Deposit Account ” means the account by that name within the Purchase Fund established pursuant to Section 4.12 .
“ Liquidity Facility Provider ,” when used in respect of the Bonds or any subseries thereof, means the commercial bank, savings institution, insurer or other financial institution issuing the Liquidity Facility for such Bonds. The initial Liquidity Facility Provider is Bank of America, N.A.
“ Loan Agreement ” means that certain Loan Agreement, dated as of November 1, 2010, between the Issuer and the Borrower, as originally executed and amended by an amendment thereto dated as of even date herewith and as it may from time to time be further supplemented, modified or amended in accordance with the terms thereof and of this Bond Indenture.
“ Loan Payments ” has the meaning stated in Section 1.01 of the Loan Agreement.
“ Long Indexed Mode ” means the Mode during which the Bonds or any subseries thereof bear interest at a Long Indexed Rate to the Maturity Date or any earlier Mode Change Date therefor or date for redemption thereof.
“ Long Indexed Rate ” means an interest rate that is determined pursuant to Section 2.07 with respect to any Bonds in the Long Indexed Mode or, if less, the Maximum Rate.
“ Mandatory Purchase Date ” for the Bonds or any subseries thereof means: (1) any Purchase Date for such Bonds in the Commercial Paper Mode, the Term Indexed Mode, the Term Rate Mode, the R-FLOATs Mode or the Special R- FLOATs Mode with a Special R-FLOATs Rate Period of greater than 35 days; (2) any Mode Change Date for such Bonds; (3) unless the provisions of Section 4.10 negating mandatory tender for purchase are satisfied, any Termination Date, New Liquidity Facility Date, Expiration Date or New Credit Facility Date for such Bonds; (4) if a Bondholder Agreement is in effect during a Term Indexed Mode, any Mandatory Purchase Date designated by the Bondholder Representative in accordance with the Bondholder Agreement by
 
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written notice given to the Trustee at least four (4) Business Days prior to such Mandatory Purchase Date; and (5) any Business Day on which such Bonds may be redeemed pursuant to Section 4.01 (other than Subsection F thereof) at a Redemption Price equal to 100% of principal amount plus accrued interest, if any, if the Borrower has requested that such Bonds then be subject to mandatory tender in writing given to the Trustee (including pursuant to Section 4.01I ) at least five Business Days before notice thereof must be given pursuant to Section 4.08 .
“ Mandatory Sinking Account Payment ” means the amount required by Section 5.03 to be paid by the Trustee on any single date for the redemption of Bonds.
“ Margin Rate Factor ” as of any date means the greater of one (1) or the product of (i) one (1) minus the Maximum Corporate Tax Rate then in effect multiplied by (ii) 1.53846. The effective date of any change in the Margin Rate Factor shall be the effective date of the increase or decrease (as applicable) in the Maximum Corporate Tax Rate that resulted in such change. As of the first day of the Initial LIBOR Term Indexed Mode, the Margin Rate Factor is one (1). “ Maximum Corporate Tax Rate ” means the highest combined marginal statutory rate of federal income tax imposed on domestic corporations in the U.S.
“ Maturity Date ” means November 1, 2050, or, with respect to the Bonds or any subseries thereof changed to the Stepped Coupon Mode, the maturities determined pursuant to Section 2.08 , or changed to the Fixed Rate Mode, the maturities determined pursuant to Section 2.10 .
“ Maximum Rate ” for the Bonds or any subseries thereof means the least of (1) 15% per annum, (2) the maximum interest rate permitted by law, or (3) when a Credit Facility or Liquidity Facility is in effect for such Bonds, the lower of the rate of interest specified in either thereof as the rate at which money available to be drawn thereunder to pay interest on (or the interest portion of the Purchase Price for) such Bonds has been computed.
“ Mode ” means, as the context may require, the Commercial Paper Mode, the Daily Mode, the Weekly Mode, the R-FLOATs Mode, an Indexed Mode, the Stepped Coupon Mode, the Term Rate Mode or the Fixed Rate Mode.
“ Mode Change Date ” means, with respect to any Bonds, the day immediately following the last day of one Mode for such Bonds on which another Mode begins.
“ Moody’s ” means Moody’s Investors Service, a corporation organized and existing under the laws of the state of its organization, its successors and their assigns, or, if such corporation shall be dissolved or liquidated or shall no longer perform the functions of a securities rating agency, any other nationally recognized securities rating agency designated by the Borrower by notice to the Issuer, the Credit Facility Providers (if any), the Liquidity Facility Providers (if any) and the Trustee.
“ New Credit Facility Date ” for the Bonds or any subseries thereof means the date of delivery by the Borrower to the Trustee of a new or substitute Credit Facility for such Bonds pursuant to Section 5.09 or the effective date of release of the Credit Facility for such Bonds pursuant to Section 5.08F .
“ New Liquidity Facility Date ” for the Bonds or any subseries thereof means the date of delivery by the Borrower to the Trustee of a new or substitute Liquidity Facility for such Bonds pursuant to Section 4.18 or the effective date of release of the Liquidity Facility for such Bonds pursuant to Section 4.17F .
 
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“ New Mode ” shall have the meaning specified in Section 2.12A(1) .
“ Non-Remarketing Period ” has the meaning specified in Section 2.06F(1) .
“ Opinion of Counsel ” means a written opinion of counsel (who may be counsel for an Interested Party) selected by the Borrower and not objected to by the Issuer, the Trustee, any Credit Facility Provider or any Liquidity Facility Provider and, when given with respect to any matter under the United States Bankruptcy Code, shall be counsel of nationally recognized standing in the field of bankruptcy law. If and to the extent required by the provisions of Section 1.02 , each Opinion of Counsel shall include the statements provided for in Section 1.02 .
“ Original Bond Indenture ” has the meaning stated in the recitals to this Bond Indenture.
“ Outstanding ,” when used as of any particular time with reference to Bonds, means (subject to the provisions of Section 11.09 ) all Bonds theretofore, or thereupon being, authenticated and delivered by the Trustee under this Bond Indenture except: (1) Bonds theretofore cancelled by the Trustee or surrendered to the Trustee for cancellation; (2) Bonds with respect to which all liability of the Issuer shall have been discharged in accordance with Section 10.02 , including Bonds (or portions of Bonds) referred to in Section 11.10 ; and (3) Bonds for the transfer or exchange of or in lieu of or in substitution for which other Bonds shall have been authenticated and delivered by the Trustee pursuant to this Bond Indenture.
“ Person ” means an individual, corporation, firm, association, partnership, trust, or other legal entity or group of entities, including a governmental entity or any agency or political subdivision thereof.
“ Principal Corporate Trust Office ” means the office of the Trustee at 601 Travis Street, Floor 16, Houston, Texas 77002, or any other office of the Trustee in the State of Texas or the State of New York designated by it as the place at which Bonds shall be surrendered for transfer, exchange, or payment.
“ Principal Fund ” means the fund by that name established pursuant to Section 5.03 .
“ Principal Payment Date ” means, with respect to a Bond, the date on which principal of such Bond becomes due and payable, either by maturity, redemption, acceleration or otherwise.
“ Project ” means any project described in Exhibit A to the Loan Agreement.
“ Project Fund ” means the fund by that name established pursuant to Section 3.04 .
“ Purchase Date ” for any Bond means (i) during the Commercial Paper Mode, the Term Rate Mode, either Term Indexed Mode, and the term rate R-FLOATs Mode with respect to such Bond, the date specified in Section 2.07 (in the case of the first Interest Period in the Initial LIBOR Term Indexed Mode) or determined by the Remarketing Agent for such Bond on the most recent Rate Determination Date for such Bond as the date on which such Bond shall be subject to purchase, (ii) during the Daily Mode, the Weekly Mode, the weekly R-FLOATs Mode, or the monthly R-FLOATs Mode with respect to such Bond, any Business Day elected by the Holder thereof pursuant to Section 4.06 , and (iii) while such Bond is in the Special R-FLOATs Rate Period, the Interest Payment Date immediately following such Special R-FLOATs Rate Period elected by the Holder thereof pursuant to Section 4.06 ; provided that, if such Bond is in an R-FLOATs Mode, it will be entitled to be purchased only to the extent the proceeds of a remarketing are available for such purchase.
 
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“ Purchase Fund ” means the fund of the Tender Agent by that name established pursuant to Section 4.12 .
“ Purchase Price ” for any Bond means (i) an amount equal to the principal amount of such Bond, if purchased on any Purchase Date therefor, plus, in the case of any purchase of such Bond in the Daily Mode, the Weekly Mode or the R-FLOATs Mode, accrued interest thereon, if any, to the Purchase Date, or (ii) an amount equal to the principal amount of such Bond, if purchased on a Mandatory Purchase Date, plus accrued interest thereon, if any, to the Mandatory Purchase Date.
“ Rate Determination Date ,” when used with respect to any Bond, means the Business Day on which the interest rate(s) with respect to such Bond (or, in the case of Bonds in an Indexed Mode, the function of or spread to the applicable index to be used to determine such interest rates) shall be determined, which,
(1) Commercial Paper Mode : if such Bond is in the Commercial Paper Mode, shall be the first day of an Interest Period;
(2) Daily Mode : if such Bond is in the Daily Mode, shall be each Business Day commencing with the first day such Bond becomes subject to the Daily Mode;
(3) Weekly Mode : in the case of conversion to the Weekly Mode or the weekly R-FLOATs Mode, shall be a day determined by the Remarketing Agent for such Bonds which is no later than the Mode Change Date on which such Mode commences, and thereafter, while such Bond is in a Weekly Mode or a weekly R-FLOATs Mode, shall be each Thursday on which a new Interest Period commences or, if Thursday is not a Business Day, the Business Day immediately succeeding such Thursday;
(4) Special R-FLOATs : if such Bond is in a Special R-FLOATs Rate Period, shall be a day determined by the Remarketing Agent for such Bonds which is no later than the first Business Day of such Special R-FLOATs Rate Period;
(5) Term Modes : if such Bond is in a Term Rate Mode or a term rate R-FLOATs Mode, shall be a day determined by the Remarketing Agent for such Bonds which is a Business Day no earlier than 30 Business Days and no later than the Business Day immediately preceding the first day of each Interest Period;
(6) Indexed, Stepped Coupon and Fixed Mode : if such Bond is in an Indexed Mode (other than during the initial Interest Period in the Initial LIBOR Term Indexed Mode), the Stepped Coupon Mode or the Fixed Rate Mode, shall be a date determined by the Remarketing Agent for such Bond which shall be at least one Business Day prior to the Mode Change Date; and
(7) Monthly R-FLOATs : if such Bond is in the monthly R-FLOATs Mode, shall be the Business Day next preceding the first Business Day of the immediately following month.
“ Rating Agency ” means S&P, Moody’s and Fitch.
 
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“ Rating Category ” means one of the general rating categories of the Rating Agencies without regard to any refinement or graduation of such rating category by numerical modifier or otherwise.
“ Rebate Fund ” means the fund by that name established pursuant to Section 5.06 .
“ Record Date ” for the payment of interest on any Interest Payment Date means (i) with respect to Bonds in a Commercial Paper Mode, a Daily Mode, a Weekly Mode, a weekly or monthly R-FLOATs Mode, or a Term Indexed Mode while a Bondholder Agreement is in effect the day (whether or not a Business Day) immediately preceding such Interest Payment Date, and (ii) with respect to Bonds in a term R-FLOATs Mode, an Indexed Mode (except when a Bondholder Agreement is in effect), a Stepped Coupon Mode, a Term Rate Mode, or a Fixed Rate Mode, the 15th day (whether or not a Business Day) of the month immediately preceding such Interest Payment Date.
“ Redemption Fund ” means the fund by that name established pursuant to Section 5.04 .
“ Redemption Price ” means, with respect to any Bond (or portion thereof), the principal amount of such Bond (or portion) plus the applicable premium, if any, payable upon redemption thereof pursuant to the provisions of such Bond and this Bond Indenture.
“ Regulations ” has the meaning stated in Section 1.01 of the Loan Agreement.
“ Reimbursement Agreement ” means any agreement between the Borrower and a Credit Facility Provider or Liquidity Facility Provider pursuant to which a Credit Facility or Liquidity Facility is issued, in each case as amended, supplemented or extended from time to time in accordance with the provisions thereof. A Reimbursement Agreement is “ for ” or “ applicable ” to the Bonds or any subseries thereof if it provides for the Credit Facility or Liquidity Facility for such Bonds to be issued.
“ Remarketing Agent ” for the Bonds or any subseries thereof means any remarketing agent appointed for such Bonds by the Issuer or the Borrower in accordance with Sections 4.13 and 4.14 and not objected to by the Credit Facility Provider (if any) or the Liquidity Facility Provider (if any) for such Bonds and at the time serving as remarketing agent for such Bonds under a Remarketing Agreement.
“ Remarketing Agreement ” means that certain remarketing agreement between the Borrower and the initial Remarketing Agent, as such agreement may from time to time be amended and supplemented or replaced, to remarket the Bonds of any subseries delivered or deemed to be delivered for purchase by the Holders thereof, subject to approval by the Credit Facility Provider (if any) and the Liquidity Facility Provider (if any) for such Bonds.
“ Remarketing Proceeds Account ” means the account by that name within the Purchase Fund established pursuant to Section 4.12 .
“ Requisition ” means an application by the Borrower for the disbursement of funds held by the Trustee hereunder in substantially the form of Exhibit C , duly completed and signed by an Authorized Representative.
 
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“ R-FLOATs Mode ” means the Mode during which Bonds bear interest at the R-FLOATs Rate, which may be a term rate R-FLOATs Mode, a weekly R-FLOATs Mode, a monthly R-FLOATs Mode, or an R-FLOATs Mode comprised of Special R-FLOATs Rate Periods.
“ R-FLOATs Rate ” means an interest rate that is determined with respect to Bonds in an R-FLOATs Mode pursuant to Section 2.06D , unless such Bonds are in a Non-Remarketing Period, in which case the Maximum Rate determined pursuant to Section 2.06F , or in a Special R-FLOATs Rate Period, in which case the rate determined pursuant to Section 2.06E . The R-FLOATs Rate may be a term rate R-FLOATs Rate, a weekly R-FLOATs Rate, a monthly R-FLOATs Rate, or a Special R-FLOATs Rate.
“ Required Stated Amount ” means, at any time of calculation with respect to the Bonds of any subseries, an amount equal to the aggregate principal amount of all Bonds of such subseries then Outstanding together with interest accruing thereon (assuming an annual rate of interest equal to the Maximum Rate) for the period specified in a Certificate of the Borrower to be the minimum period specified by the Rating Agencies then rating the Bonds of such subseries as necessary to maintain, in the case of the Liquidity Facility, the short- term rating of the Bonds of such subseries, or, in the case of the Credit Facility, the long-term rating of the Bonds of such subseries.
“ Reserve Percentage ” as of any day (1) means the total of the maximum reserve percentages as of such day for determining the reserves to be maintained by member banks of the U.S. Federal Reserve System for “Eurocurrency Liabilities,” as defined in Federal Reserve Board Regulation D, expressed as a decimal and rounded upward to the nearest 1/100 of one percent, whether or not applicable to any Bondholder, including, but not limited to, marginal, emergency, supplemental, special, and other reserve percentages, or (2) has the meaning stated in the Bondholder Agreement, if the Trustee has received a Favorable Opinion of Bond Counsel and Opinion of Counsel to the effect that the use of such meaning of Reserve Percentage to calculate the LIBOR Index Rate is authorized by Texas law; provided that no change in the Reserve Percentage shall change the Reserve Percentage for purposes of this Bond Indenture unless the Trustee receives written notice of such change from the Bondholder Representative or the Borrower. If no Bondholder Agreement is in effect hereunder or “ Reserve Percentage ” is not defined therein, “ Reserve Percentage ” means zero (0).
“ Revenues ” means all amounts received by the Issuer or the Trustee for the account of the Issuer pursuant or with respect to the Loan Agreement, including, without limiting the generality of the foregoing, Loan Payments (including both timely and delinquent payments, any late charges, and whether paid from any source), prepayments, and all interest, profits or other income derived from the investment of amounts in any fund or account established pursuant to this Bond Indenture, but not including any Administrative Fees and Expenses or any moneys required to be deposited in the Rebate Fund or the Purchase Fund.
“ S&P ” means Standard & Poor’s Financial Services LLC, a subsidiary of The McGraw-Hill Companies, Inc., a corporation organized and existing under the laws of the state of its organization, and its successors and assigns, or, if such corporation shall be dissolved or liquidated or shall no longer perform the functions of a securities rating agency, any other nationally recognized securities rating agency designated by the Borrower by notice to the Issuer, the Credit Facility Providers (if any), the Liquidity Facility Providers (if any) and the Trustee.
“ Securities Depository ” means The Depository Trust Company and its successors and assigns, or any other securities depository selected as set forth in Section 2.20 , which agrees to follow the procedures required to be followed by such securities depository in connection with the Bonds.
 
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“ SIFMA ” means the Securities Industry and Financial Markets Association (formerly The Bond Market Association), and any successors thereto.
“ SIFMA Indexed Rate ” for any Bond and Interest Period in a SIFMA Term Indexed Mode means a per annum rate, determined from time to time by adding the Applicable Spread (determined in accordance with Section 2.07B ) from time to time in effect for such Bond and Interest Period to the SIFMA Municipal Swap Index.
“ SIFMA Municipal Swap Index ” means the Securities Industry and Financial Markets Association (formerly The Bond Market Association™) Municipal Swap Index, as disseminated by Municipal Market Data, a Thomson Financial Services Company, or its successor, for the most recently preceding Business Day.
“ SIFMA Term Indexed Mode ” means the Mode during which the Bonds or any subseries thereof bear interest at SIFMA Indexed Rates for an Interest Period that ends prior to the Maturity Date.
“ SIFMA Term Indexed Rate ” means an interest rate that is determined pursuant to Section 2.07 with respect to Bonds in the SIFMA Term Indexed Mode or, if less, the Maximum Rate.
“ Special Record Date ” means the date established by the Trustee pursuant to Section 2.03 as a record date for the payment of defaulted interest on Bonds.
“ Special R-FLOATs Rate Period ” for the Bonds or any subseries thereof means a period which begins on a Business Day and ends on any Business Day and which the Remarketing Agent for such Bonds determines is the shortest period which will enable such Remarketing Agent to remarket such Bonds in the R-FLOATs Mode at a price equal to 100% of principal amount plus accrued interest, if any.
“ Stepped Coupon Mode ” means the Mode during which the Bonds or any subseries thereof bear interest at the Stepped Coupon Rate.
“ Stepped Coupon Period ” has the meaning ascribed thereto in Section 2.08 .
“ Stepped Coupon Rate ” means an interest rate that is determined with respect to Bonds in the Stepped Coupon Mode pursuant to Section 2.08 , provided, however , that the Stepped Coupon Rate shall never exceed the Maximum Rate.
“ subseries ,” when used with respect to Bonds, means all Bonds designated as being of the same subseries pursuant to Section 2.02E, and any Bonds thereafter authenticated and delivered upon a transfer of, in exchange for, in lieu of or in substitution for such Bonds as herein provided.
“ Supplemental Bond Indenture ” means any indenture hereafter duly authorized and entered into between the Issuer and the Trustee, supplementing, modifying or amending this Bond Indenture; but only if and to the extent that such Supplemental Bond Indenture is specifically authorized hereunder.
“ Tax Certificate and Agreement ” means the No Arbitrage Certificate delivered by the Issuer and the Tax Letter of Representation delivered by the Borrower on the first day of the Initial LIBOR Term Indexed Mode for the Bonds, as the same may be amended or supplemented in accordance with its terms.
 
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“ Taxable Rate Factor ” has the meaning stated in the Bondholder Agreement, which is 1.53846 as of the effective date of this Bond Indenture, provided that no change in the Taxable Rate Factor shall occur unless and until the Trustee receives written notice thereof from the Bondholder Representative.
“Tender Agent ” means any tender agent appointed in accordance with Sections 4.15 and 4.16 .
“ Tender Notice Deadline ” shall mean (i) during the Daily Mode, 11:00 a.m. New York City time, on any Business Day, and (ii) during the Weekly Mode and the R-FLOATs Mode, 4:00 p.m. New York City time, on the Business Day five Business Days prior to the applicable Purchase Date.
“ Termination Date ” for the Bonds of any subseries means (a) the date specified in a notice of termination given by the Liquidity Facility Provider for such Bonds to the Trustee as the date on which such Liquidity Facility Provider will no longer be obligated to purchase such Bonds (or otherwise advance funds for the purchase of such Bonds) pursuant to the Liquidity Facility for such Bonds and requesting that such Bonds be subject to mandatory tender for purchase on the Business Day preceding such specified date, or (b) the date specified in a notice given by the Credit Facility Provider for such Bonds to the Trustee requesting that such Bonds be subject to mandatory tender on the Business Day preceding such specified date as a result of an event of default under the Reimbursement Agreement relating to such Credit Facility.
“ Term Indexed Mode ” means a LIBOR Term Indexed Mode or a SIFMA Term Indexed Mode.
“ Term Indexed Rate ” means a LIBOR Term Indexed Rate or a SIFMA Term Indexed Rate.
“ Term Rate ” means the per annum interest rate with respect to Bonds in the Term Rate Mode determined pursuant to Section 2.09 .
“ Term Rate Mode ” means the Mode during which Bonds bear interest at the Term Rate.
“ Trustee ” means The Bank of New York Mellon Trust Company, National Association, a national banking association duly organized and existing under the laws of the United States of America, having a principal corporate trust office in Houston, Texas, or its successor, as Trustee hereunder as provided in Article VIII .
“ USD-ISDA-Swap Rate ” means the rate for U.S. dollar swaps with a designated maturity equal to the length of the Interest Period for which the Alternate Rate is being calculated, expressed as a percentage, which appears on the Reuters Money 3000 Service on the page designated ISDAFIX1 as of 11:00 a.m., New York City time, on the day that is two U.S. Government Securities Business Days immediately preceding such Rate Determination Date. If such rate does not appear on such page on such day, then the “USD-ISDA-Swap Rate” for such maturity and date shall mean the percentage determined on the basis of mid-market semiannual swap rate quotations provided by three leading swap dealers in the New York City interbank market at approximately such time on such day as the mean of the bid and offered rates for the semiannual fixed leg, calculated on a 30/360 day count basis, of a fixed-for-floating U.S. dollar interest rate swap transaction with an effective date of the relevant early termination date and a termination date equal to such maturity, in an amount that is representative for a single transaction in such market at such time, with an acknowledged dealer of good credit in such market, where the floating rate, calculated on the basis of a 360-day year for actual days elapsed, is equal to the London Interbank Offered Rate for loans with a three-month duration.
 
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“ U.S. Government Securities Business Day ” means any day except for a Saturday, a Sunday, or a day on which SIFMA recommends that the fixed income departments of its members be closed for the entire day for purposes of trading U.S. government securities.
“ Weekly Mode ” means the Mode during which Bonds bear interest at the Weekly Rate.
“ Weekly Rate ” means an interest rate that is determined on a weekly basis with respect to Bonds in the Weekly Mode pursuant to Section 2.06 .
SECTION 1.02. Content of Certificates and Opinions.
Every certificate or opinion provided for in this Bond Indenture with respect to compliance with any provision hereof shall include (1) a statement that the Person making or giving such certificate or opinion has read such provision and the definitions herein relating thereto; (2) a brief statement as to the nature and scope of the examination or investigation upon which the certificate or opinion is based; (3) a statement that, in the opinion of such Person, such Person has made or caused to be made such examination or investigation as is necessary to enable such Person to express an informed opinion with respect to the subject matter referred to in the instrument to which such Person’s signature is affixed; (4) a statement of the assumptions upon which such certificate or opinion is based, and that such assumptions are reasonable; and (5) a statement as to whether, in the opinion of such Person, such provision has been complied with.
Any such certificate or opinion made or given by an officer of the Issuer or the Borrower may be based, insofar as it relates to legal, accounting or operational matters, upon a certificate or opinion of or representation by counsel, an accountant or a management consultant, unless such officer knows, or in the exercise of reasonable care should have known, that the certificate, opinion or representation with respect to the matters upon which such certificate or statement may be based, as aforesaid, is erroneous. Any such certificate or opinion made or given by counsel, an accountant or a management consultant may be based, insofar as it relates to factual matters (with respect to which information is in the possession of the Issuer or the Borrower, as the case may be) upon a certificate or opinion of or representation by an officer of the Issuer or the Borrower, unless such counsel, accountant or management consultant knows, or in the exercise of reasonable care should have known, that the certificate or opinion or representation with respect to the matters upon which such Person’s certificate or opinion or representation may be based, as aforesaid, is erroneous. The same officer of the Issuer or the Borrower, or the same counsel or accountant or management consultant, as the case may be, need not certify to all of the matters required to be certified under any provision of this Bond Indenture, but different officers, counsel, accountants or management consultants may certify to different matters, respectively.
SECTION 1.03. Interpretation.
A. Number; Gender . Unless the context otherwise indicates, words expressed in the singular shall include the plural and vice versa and the use of the neuter, masculine, or feminine gender is for convenience only and shall be deemed to mean and include the neuter, masculine or feminine gender, as appropriate.
 
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B. Headings . Headings of Articles and Sections herein and the table of contents hereof are solely for convenience of reference, do not constitute a part hereof and shall not affect the meaning, construction or effect hereof.
C. Subdivision References . All references herein to “ Articles ,” “ Sections ,” “ Exhibits ,” and other subdivisions are to the corresponding Articles, Sections, Exhibits or subdivisions of this Bond Indenture; and the words “ herein ,” “ hereof ,” “ hereby ,” “ hereunder ” and other words of similar import refer to this Bond Indenture as a whole and not to any particular Article, Section, Exhibit or subdivision hereof.
D. Time . All references herein to a particular time of day shall be to New York City time.
*                *                 *
 
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ARTICLE II
THE BONDS
SECTION 2.01. Authorization of Bonds.
An issue of Bonds was created under the Original Bond Indenture in order to obtain moneys for the benefit of the Issuer for loan to the Borrower. The Bonds are designated as “Harris County Industrial Development Corporation Marine Terminal Revenue Bonds (HFOTCO LLC Project) Series 2010.” The aggregate principal amount of Bonds that may be issued and Outstanding under this Bond Indenture shall not exceed $75,000,000. This Bond Indenture constitutes a continuing agreement with the Holders from time to time of the Bonds to secure the full payment of the principal of and premium (if any) and interest on all the Bonds, subject to the covenants, provisions and conditions herein contained.
SECTION 2.02. Denominations; Form; Date; Maturity; Numbering; Interest Accrual; Subseries.
A. Registration . The Bonds were registered initially in the name of “Cede & Co.,” as nominee of the Securities Depository, and evidenced by one Bond in the total aggregate principal amount of the Bonds.
B. Denominations . The Bonds shall be issuable in denominations of (i) $100,000 and any integral multiple of $5,000 in excess thereof, with respect to Bonds in a Daily Mode, a Weekly Mode, a Commercial Paper Mode, a Term Indexed Mode, or a Term Rate Mode of 360 days or less, (ii) $5,000 and any integral multiple thereof, with respect to Bonds in the Fixed Rate Mode, a Long Indexed Mode, a Stepped Coupon Mode, a Term Rate Mode of more than 360 days, or a Special R-FLOATs Rate Period or a term rate R-FLOATs Mode of more than 180 days, and (iii) $25,000 and any integral multiple thereof, with respect to Bonds in a weekly R-FLOATs Mode, a monthly R-FLOATs Mode, a Special R-FLOATs Rate Period or a term rate R-FLOATs Mode of 180 days of less.
C. Dating; Maturity; Numbering . The Bonds shall be dated the date of their authentication and delivery. The Bonds shall mature (subject to prior redemption) on their Maturity Date. The Bonds shall be numbered in such manner as shall be determined by the Trustee to distinguish each Bond from every other Bond.
D. Day Counts for Interest . Interest on the Bonds shall accrue from the date of initial delivery thereof, which shall be inserted in the Bonds under “Dated Date” on the first page thereof, or the most recent Interest Payment Date therefor to which interest thereon has been paid or duly provided for. Interest shall be calculated on the basis of (i) a 365-day or 366-day year for the number of days actually elapsed, during a Commercial Paper Mode, a Daily Mode, a Weekly Mode, a SIFMA-based Long Indexed Mode, a SIFMA Term Indexed Mode, a weekly R-FLOATs Mode, a monthly R-FLOATs Mode, a Term Rate Mode of 360 days or less, a term rate R-FLOATs Mode of 360 days or less and a Special R-FLOATs Rate Period of 360 days or less, (ii) a 360-day year of twelve 30-day months during a Term Rate Mode of more than 360 days, a Special R-FLOATs Rate Period of more than 360 days, a term rate R-FLOATs Mode of more than 360 days, the Fixed Rate Mode, a Stepped Coupon Mode, or a Long Indexed Mode that is not LIBOR-based or SIFMA-based, and (iii) a 360-day year for the number of days actually elapsed during a LIBOR-based Long Indexed Mode or a LIBOR Term Indexed Mode.
 
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The following charts summarize this Section.
AUTHORIZED DENOMINATIONS

$5,000 and any integral
multiple thereof	  	$25,000 and any integral
multiple thereof	  	$100,000 and any integral
multiple of $5,000	
Fixed Rate Mode	  	Weekly R-FLOATs Mode	  	Daily Mode	
Indexed Mode	  	Monthly R- FLOATs Mode	  	Weekly Mode	
Stepped Coupon Mode	  	Special R-FLOATs Rate	  	Commercial Paper Mode	
Term Rate Mode of more than 360 days	  	    Period of 180 days or less	  	Term Rate Mode of 360 days or less	
Special R-FLOATs Rate Period of more than 180 days	  	Term rate R-FLOATs Mode of 180 days or less	  	Term Indexed Mode	
Term rate R-FLOATs Mode of more than 180 days	  		  		
DAY COUNT FOR INTEREST CALCULATIONS

Actual/Actual Days	  	30/360 Days	  	Actual/360 Days	
Commercial Paper Mode	  	Term Rate Mode of more than 360 days	  	LIBOR-based Long Indexed Mode	
Daily Mode	  		  	LIBOR Term Indexed Mode	
Weekly Mode	  	Special R-FLOATs Rate Period of	  		
SIFMA-Based Long Indexed Mode	  	    more than 360 days	  		
SIFMA Term Indexed Mode	  		  		
Weekly R-FLOATs Mode	  	Term rate R-FLOATs Mode of more	  		
Monthly R-FLOATs Mode	  	    than 360 days	  		
Term Rate Mode of 360 days or less	  	Fixed Rate Mode	  		
Term rate R-FLOATs Mode of 360 days	  	Stepped Coupon Mode	  		
    or less	  		  		
Special R-FLOATs Rate Period of 360 days     or less	  		  		
E. Subseries . The Bonds shall initially be issued in one subseries. The Borrower may designate additional subseries into which the Bonds or any subseries thereof shall be divided, or merge the Bonds of two or more subseries into a single subseries of Bonds, in either case by Borrower Order effective on a Mandatory Purchase Date for all such Bonds and delivered to the Trustee, the Remarketing Agent for such Bonds, the Credit Facility Providers (if any) for such Bonds, the Liquidity Facility Providers (if any) for such Bonds, and each Rating Agency maintaining a rating for such Bonds not less than 5 Business Days (or such shorter period acceptable to the Trustee), plus the minimum number of days’ notice of such Mandatory Purchase Date which the Trustee must give to the Holders of such Bonds pursuant to Article IV, prior to the effective date of such designation. Unless each such Rating Agency shall have confirmed that such designation or merger will not result in a reduction, suspension, or withdrawal of any such rating, the notice of such Mandatory Tender Date shall state that the rating assigned to such Bonds may then be reduced, suspended, or withdrawn by such Rating Agency.
SECTION 2.03. Payment of Principal of and Interest on the Bonds.
A. Payees; Method . The principal or Redemption Price of the Bonds shall be payable by check in lawful money of the United States of America at the Principal Corporate Trust Office of the Trustee. Interest on the Bonds due on an Interest Payment Date shall be paid to the Person whose name appears on the bond registration books of the Trustee as the Holder thereof as of the close of business on the Record Date for such Interest Payment Date. Any such interest not so punctually paid or duly provided for shall forthwith cease to be payable to the Bondholder as of such Record Date and shall be paid to the Person in whose name the Bond is registered at the close of
 
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business on a Special Record Date for the payment of such defaulted interest to be fixed by the Trustee, notice whereof being given not less 10 days prior to such Special Record Date by Electronic Means to the Bondholder Representative, if any, and by first class mail to the Bondholders. Payment of the interest on (i) any Bonds in a Daily Mode, a Weekly Mode, an R-FLOATs Mode, an Indexed Mode, a Term Rate Mode, a Special R-FLOATs Rate Period of 360 days or less or a Commercial Paper Mode shall be made by wire transfer in immediately available funds to an account within the United States of America designated by such Holder and (ii) any Bonds in a Term Rate Mode, a Special R-FLOATs Rate Period of more than 360 days, a Stepped Coupon Mode or a Fixed Rate Mode shall be made by check mailed by first class mail to such Holder at its address as it appears on such registration books, or, upon the written request of any Holder of at least $1,000,000 in aggregate principal amount of Bonds, submitted to the Trustee at least one Business Day prior to the Record Date for such interest, by wire transfer in immediately available funds to an account within the United States of America designated by such Holder. As long as Cede & Co. is the Holder of the Bonds, said principal or Redemption Price and interest payments shall be made to Cede & Co. by wire transfer in immediately available funds. CUSIP number identification shall accompany all payments of principal or Redemption Price and interest whether by check or by wire transfer. The principal of Liquidity Facility Bonds shall be paid as set forth in the Reimbursement Agreement relating to such Liquidity Facility Bonds.
B. Interest Rates . Interest on the Bonds shall be calculated in accordance with Sections 2.04 , 2.05, 2.06, 2.07, 2.08, 2.09, 2.10 and 2.11 of this Bond Indenture, and interest accrued on Bonds in each Interest Payment Period shall be payable on the immediately succeeding Interest Payment Date therefor. Notwithstanding the foregoing, Liquidity Facility Bonds shall bear interest at a rate per annum equal to the Liquidity Facility Bond Rate for such Bonds, and interest on Liquidity Facility Bonds shall be payable on each Interest Payment Date for such Liquidity Facility Bonds. Additionally, anything herein to the contrary notwithstanding, in no event shall any Bond bear interest at a rate per annum in excess of the Maximum Rate.
SECTION 2.04. Initial Mode; Change of Mode.
A. Initial Mode . The Bonds were issued, and on the effective date of this Bond Indenture remain in, the Weekly Mode. On the effective date of this Bond Indenture, the Mode for the Bonds shall be changed to the LIBOR Term Indexed Mode.
B. Mode Changes . Bonds in any Mode, other than the Fixed Rate Mode, the Long Indexed Mode or the Stepped Coupon Mode, may be changed to any other Mode at the times and in the manner hereinafter provided. All Bonds of any subseries must be in the same Mode. While the Bonds of any subseries are in a Commercial Paper Mode, the Bonds of such subseries may bear interest at different rates at the same time. While Bonds of a subseries are in a Daily Mode, a Weekly Mode, an R-FLOATs Mode, a Term Rate Mode, the Fixed Rate Mode (subject to Section 2.10 ), an Indexed Mode, or the Stepped Coupon Mode, all Bonds of such subseries shall bear interest at the same interest rate. Subsequent to such change in Mode (other than a change to the Fixed Rate Mode, the Long Indexed Mode, or the Stepped Coupon Mode), the Bonds may again be changed to a different Mode at the times and in the manner hereinafter provided. The Fixed Rate Mode, the Long Indexed Mode, and the Stepped Coupon Mode for Bonds shall be in effect until the Maturity Date of such Bonds and may not be changed to any other Mode.
 
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SECTION 2.05. Determination of Commercial Paper Rates, Purchase Date and Interest Periods During Commercial Paper Mode.
A. Interest Periods . Interest Periods for the Bonds of any subseries during a Commercial Paper Mode shall be of such duration, from one to 270 calendar days and ending on a day immediately preceding a Business Day or the Maturity Date, as the Remarketing Agent for such Bonds shall determine in accordance with the provisions of this Section. On each Rate Determination Date for Bonds in a Commercial Paper Mode, the Remarketing Agent for such Bonds shall select for each such Bond then subject to such adjustment the Interest Period which would result in the Remarketing Agent being able to remarket such Bond at a price equal to 100% of principal amount in the secondary market with the lowest interest rate then available and for the longest Interest Period available at such rate. If, on any such Rate Determination Date, such Remarketing Agent determines that current or anticipated future market conditions or anticipated future events are such that a different Interest Period would result in a lower average interest cost with respect to such Bond, then such Remarketing Agent shall select the Interest Period that, in the judgment of such Remarketing Agent, would permit such Bond to achieve such lower average interest cost. If such Remarketing Agent has received notice from the Borrower that any such Bond is to be changed from the Commercial Paper Mode to any other Mode or is to be purchased in accordance with a mandatory purchase pursuant to Section 4.08 , such Remarketing Agent shall, with respect to such Bond, select Interest Periods which do not extend beyond the Mandatory Purchase Date for such Bond. The Remarketing Agent shall also select Interest Periods which permit the amount of Bonds of the applicable subseries to be redeemed in accordance with Section 4.01F or pursuant any optional redemption of which it receives notice on an Interest Payment Date for such Bonds. If a Credit Facility or Liquidity Facility is in effect for Bonds of any subseries in a Commercial Paper Mode, the Remarketing Agent shall not select any Interest Period which would result in the aggregate of interest accrued and to accrue in all Interest Periods for such Bonds then in effect to exceed the amount that may be drawn in respect of interest under either such Credit Facility or such Liquidity Facility.
B. Anticipated Rates and Periods . On or after 9:00 a.m. New York City time on each Rate Determination Date for Bonds in the Commercial Paper Mode, any Holder of such Bonds may telephone the Remarketing Agent for such Bonds and receive notice of the anticipated next Interest Period(s) for such Bonds and the anticipated Commercial Paper Rate(s) for such Interest Period(s).
C. Rate and Period Determinations . By 12:30 p.m. New York City time on each Rate Determination Date for Bonds of any subseries in a Commercial Paper Mode, the Remarketing Agent for such Bonds, with respect to each such Bond in the Commercial Paper Mode which is subject to adjustment on such date, shall determine the Commercial Paper Rate(s) for the Interest Period(s) then selected for such Bond and the Purchase Date(s) immediately following such Interest Period(s) and shall give notice by Electronic Means to the Tender Agent of such Interest Period(s), Purchase Date(s) and the Commercial Paper Rate(s).
D. CUSIP Nos. By 1:00 p.m. New York City time on each Rate Determination Date for Bonds of any subseries in a Commercial Paper Mode, the Tender Agent shall apply for and obtain CUSIP numbers (which the Tender Agent will promptly assign pursuant to Section 4.15A(4) ) for each Bond in the Commercial Paper Mode for which a Commercial Paper Rate, a Purchase Date and Interest Period have been determined on such date and notify the Remarketing Agent of such assignment by Electronic Means.
 
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E. Bondholder Agreement . By acceptance of any Bond during a Commercial Paper Mode, the Holder thereof shall be deemed to have agreed, during each Interest Period, to the Commercial Paper Rate (including the Alternate Rate, if applicable), Interest Period and Purchase Date then applicable thereto and to have further agreed to tender such Bond to the Tender Agent for purchase on such Purchase Date at the Purchase Price.
SECTION 2.06. Determination of Interest Rates During the Daily Mode, the Weekly Mode and the R-FLOATs Mode.
A. Method of Determining Interest Rates . Interest on the Bonds or any subseries thereof in the Daily Mode, Weekly Mode or R-FLOATs Mode (except during any Non-Remarketing Period, when interest shall accrue at the Maximum Rate pursuant to Subsection F of this Section) shall accrue at the rate of interest per annum determined by the Remarketing Agent for such Bonds on and as of the Rate Determination Date for such Bonds as the lower of the Maximum Rate or the minimum rate of interest which, in the judgment of such Remarketing Agent under then-existing market conditions, would result in the sale of such Bonds on such Rate Determination Date at a price equal to the Purchase Price. Such determination shall be conclusive and binding upon the Borrower, the Issuer, the Trustee, the Tender Agent, the Credit Facility Provider(s) (if any), the Liquidity Facility Provider(s) (if any), the Remarketing Agents and the Bondholders.
B. Determination Time for Daily Rate . While the Bonds of any subseries are in the Daily Mode, the Remarketing Agent for such Bonds shall establish the Daily Rate therefor by 10:00 a.m. New York City time on each Business Day. The Daily Rate for Bonds for any day during the Daily Mode which is not a Business Day shall be the Daily Rate for such Bonds established on the immediately preceding Business Day.
C. Determination Time for Weekly Rate . While the Bonds of any subseries are in the Weekly Mode, the Remarketing Agent for such Bonds shall establish the Weekly Rate therefor by 10:00 a.m. New York City time on each Rate Determination Date for such Mode. The Weekly Rate for Bonds shall be in effect (1) initially, from and including the first day such Bonds become subject to the Weekly Mode to and including the following Wednesday (or the second following Wednesday, if the first day of the Weekly Mode is on a Tuesday or Wednesday), and (2) thereafter, from and including each Thursday to and including the following Wednesday. The Remarketing Agents shall make the applicable respective Weekly Rates determined by them available (i) after 10:00 a.m. New York City time on the Rate Determination Date, upon request by telephone to any Bondholder, the Borrower, the Issuer, the Trustee, the Tender Agent, any Credit Facility Provider or any Liquidity Facility Provider and (ii) by Electronic Means to the Trustee not later than the second Business Day after such Rate Determination Date.
D. Determination Time for R-FLOATs Rate . While the Bonds of any subseries are in the R-FLOATs Mode (except during a Special R-FLOATs Rate Period, when interest shall accrue at the R-FLOATs Rate determined pursuant to Subsection E of this Section, and except during any Non-Remarketing Period, when interest shall accrue at the Maximum Rate pursuant to Subsection F of this Section), the Remarketing Agent for such Bonds shall establish the R-FLOATs Rate therefor, by 10:00 a.m. New York City time on each Rate Determination Date for such Bonds. The R-FLOATs Rate shall be in effect during the applicable Interest Period. The Remarketing Agents shall make the R-FLOATs Rates determined by them available (i) after 10:00 a.m. New York City time on the applicable Rate Determination Date, upon request by telephone to any Bondholder or Interested Party, and (ii) by Electronic Means to the Trustee not later than the second Business Day after such Rate Determination Date.
 
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E. Determination Method and Time for R-FLOATs Rate in a Special R-FLOATs Rate Period . In the event that Bonds of any subseries are in an R-FLOATs Mode and are not rated “A3” or “A-”, as applicable, or higher by each Rating Agency, then not later than 1:00 p.m. New York City time on the Business Day immediately preceding the next Interest Payment Date, the Remarketing Agent for such Bonds shall establish the maximum period for a Special R-FLOATs Rate Period, which maximum Special R-FLOATs Rate Period shall be made available after 1:00 p.m. New York City time on the Business Day immediately prior to the applicable Rate Determination Date by posting it electronically and by telephone to any Bondholder or Interested Party who contacts applicable Remarketing Agent. Not later than 10:00 a.m. New York City time on such Rate Determination Date, such Remarketing Agent shall select a Special R-FLOATs Rate Period, which shall be the shortest Interest Period (but in no event longer than the maximum Special R-FLOATs Rate Period previously announced) for such Bonds which in the judgment of such Remarketing Agent in each case would result in such Bonds trading at a price equal to 100% of principal amount plus accrued interest, and an R-FLOATs Rate for such Bonds in accordance with Subsection A of this Section. The Remarketing Agents shall make the respective R-FLOATs Rate and Special R-FLOATs Rate Period determined by them available (i) after 10:00 a.m. New York City time on the applicable Rate Determination Date by telephone to any Bondholder and any Interested Party which contacts such Remarketing Agent and (ii) by Electronic Means to the Trustee not later than the second Business Day following such Rate Determination Date. In the event such Remarketing Agent is unable to set a Special R-FLOATs Rate Period and R-FLOATs Rate which will produce a sale of such Bonds at a price equal to 100% of principal amount plus accrued interest, such Bonds shall bear interest at the Maximum Rate and for the Interest Period determined pursuant to Subsection F of this Section. In addition, the Borrower may elect, with the consent of the applicable Remarketing Agent, to have the Bonds of any subseries in an R-FLOATs Mode converted into a Special R- FLOATs Rate Period having a duration of the Borrower’s choosing by giving at least 10 days notice to the Trustee and the Tender Agent. Notice of such Special R-FLOATs Rate Period shall be given in the same manner as notice of the maximum Special R-FLOATs Rate Period set forth above. On the effective date of such optional conversion to a Special R-FLOATs Rate Period of more than 35 days, the affected Bonds shall be subject to mandatory purchase pursuant to Section 4.08 .
F. Determination of R-FLOATs Non-Remarketing Period and Rate .
(1) Determinations . If any Bond that is in the R-FLOATs Mode is optionally tendered for purchase pursuant to Section 4.06 or is subject to mandatory purchase pursuant to Section 4.08 or Section 4.10 and either (a) the Remarketing Agent for such Bond, after using its reasonable best efforts, is unable to remarket such Bond at the Purchase Price by 2:00 p.m. New York City time on the Purchase Date or Mandatory Purchase Date (whether such inability is due to market conditions or otherwise) or (b) such Bond is returned to the Holder thereof pursuant to Section 4.12C , then, from such Purchase Date or Mandatory Purchase Date until the date on which all Bonds of the same subseries in such Mode that have been tendered or are subject to mandatory tender are successfully remarketed at the Purchase Price (the “ Non-Remarketing Period ”), all Bonds of such subseries in such Mode shall bear interest for a new Interest Period, which shall be the same as the Interest Period for such Bonds just concluding, unless such Interest Period was a Special R-FLOATs Rate Period, in which case such Bonds shall bear interest for a weekly R-FLOATs Mode at the Maximum Rate. Following the Non-Remarketing Period, all Bonds of such subseries in such Mode shall (unless converted to a different Mode) bear interest at a rate per annum determined pursuant to Subsection D or E of this Section.
(2) Special Rate Determination Dates . During each Non-Remarketing Period for the Bonds of a subseries in an R-FLOATs Mode, the Remarketing Agent for such Bonds shall continue to use its best efforts each Business Day to remarket such Bonds in the R-FLOATs Mode at the Purchase Price. In connection therewith, such Remarketing Agent may consider the day on which such Bonds are successfully remarketed at the Purchase Price to be a Rate Determination Date for such Bonds.
 
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SECTION 2.07. Determination of Indexed Rates.
A. Long Indexed Mode . Prior to any conversion of Bonds to a Long Indexed Mode, the Issuer shall enter into a Supplemental Bond Indenture setting forth the index, the spread, the redemption provisions, and the Interest Period for such Bonds. The Borrower shall select the index on which the Long Indexed Rate for such Bonds shall be based not less than five Business Days prior to the applicable Rate Determination Date. Such index shall be three-month LIBOR or, with the consent of the Issuer, the Consumer Price Index, the SIFMA Swap Index or any other index which the Borrower elects. The Remarketing Agent for such Bonds shall determine the percentage of and/or the spread to such index to be used in calculating the Long Indexed Rate not later than 4:00 p.m. New York City time on the Rate Determination Date for such Bonds. The percentage and/or the spread shall be the lowest percentage which, when multiplied by and/or added to the index, such Remarketing Agent determines will result in selling such Bonds at a price equal to the Purchase Price on the Rate Determination Date therefor. At the time such Remarketing Agent determines the percentage and/or the spread to be applied to the index, the Remarketing Agent shall also determine the interest rate for the initial Interest Payment Period from the Mode Change Date to the first Interest Payment Date for such Bonds in the Long Indexed Mode, the frequency with which the Long Indexed Rate shall be recalculated, and the Interest Payment Dates therefor. Unless otherwise agreed by the Issuer with the consent of the Borrower, the Interest Payment Dates for Bonds in the Long Indexed Mode shall be each February 1, May 1, August 1, and November 1, and each Interest Payment Period in such Mode shall extend from the Mode Change Date or any subsequent Interest Payment Date therefor to the immediately succeeding Interest Payment Date therefor. Such Remarketing Agent shall make such information available by Electronic Means to any Bondholder requesting such information and to the Borrower, the Issuer, the Trustee, the Tender Agent and the Credit Facility Providers (if any). Upon request of any Bondholder, the Borrower, the Issuer, the Trustee or the Credit Facility Provider for such Bonds, the Tender Agent shall give notice of such information by Electronic Means. On each date on which the Long Indexed Rate for Bonds is recalculated, the Calculation Agent shall give notice of such rate by Electronic Means upon request from any Bondholder, the Borrower, the Issuer, the Trustee, the Tender Agent or any Credit Facility Provider or Liquidity Facility Provider for such Bonds. Such determination shall be conclusive and binding upon the Borrower, the Issuer, the Trustee, the Tender Agent, the Credit Facility Providers (if any), the Liquidity Facility Providers (if any), the Remarketing Agents and the Bondholders.
B. Term Indexed Modes . On the effective date of this Bond Indenture, the Bonds shall be converted to a LIBOR Term Indexed Mode with an initial Purchase Date of the first Business Day on or after August 19, 2019. Until the Bonds have been converted to a different Mode or a Term Indexed Mode with Interest Periods of a different duration, after each Interest Period in a Term Indexed Mode the Bonds shall bear interest for successive Interest Periods of substantially the same duration beginning on the Purchase Date for such preceding Interest Period and ending on a day immediately preceding a Business Day.
Not later than 4:00 p.m. New York City time on the Rate Determination Date preceding the Purchase Date specified in the first sentence of this subsection or any subsequent Purchase Date in a Term Indexed Mode, and the Rate Determination Date preceding any Mode Change Date on which a subsequent Term Indexed Mode commences, the Remarketing Agent shall determine (a) the next Purchase Date in such LIBOR Term Indexed Mode, which shall be the first Business Day following the Interest Period described in the immediately preceding paragraph, (b) the Applicable Spread for the Interest Period beginning on such prior Purchase Date or Mode Change Date, (c) if such Term Indexed Mode is a LIBOR Term Indexed Mode, the Applicable Factor for such Interest Period, and (d) any function or scale by which such Applicable Spread or Applicable Factor shall be adjusted during such Interest Period.
 
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The Remarketing Agent shall make each determination of the Applicable Spread and the Applicable Factor (and any function or scale to be used to adjust the Applicable Spread or the Applicable Factor) required to be made by it pursuant to this subsection regardless of whether Bonds are Liquidity Facility Bonds and whether or not an Event of Default exists. On the Rate Determination Date for each Interest Period for Bonds in any Term Indexed Mode, the Remarketing Agent shall (i) if such Term Indexed Mode is the LIBOR Term Indexed Mode, first determine the Applicable Factor (and any function or scale for adjusting the Applicable Spread or Applicable Factor) for the ensuing Interest Period for such Bonds by determining, under prevailing market conditions, the Applicable Factor (and the function or scale for adjustments thereof and of the Applicable Spread, if any, necessary, in the judgment of the Remarketing Agent, to be used to determine the Term Indexed Rate on such Bonds in such Interest Period) that will result in the lowest interest on such Bonds in such Interest Period under reasonably anticipated market conditions, and then (ii) determine the Applicable Spread for such Interest Period and Bonds by determining, under prevailing market conditions, the minimum Applicable Spread necessary, in the judgment of the Remarketing Agent, to produce a bid for such Bonds equal to 100% of the principal amount thereof plus interest, if any, accrued thereon from the most recent Interest Payment Date therefor to which interest has been paid or duly provided for. If for any reason no Remarketing Agent shall have been appointed for the Bonds hereunder on any date on which the Applicable Factor or Applicable Spread (or function or scale to adjust the Applicable Factor or Applicable Spread) therefor must be determined, the Remarketing Agent fails to determine the Applicable Spread or Applicable Factor (or function or scale to adjust the Applicable Spread or Applicable Factor) for any such Bond on such date, or any Applicable Spread or Applicable Factor (or function or scale to adjust the Applicable Spread or Applicable Factor) for any such Bond determined by the Remarketing Agent on such date is determined by a court of competent jurisdiction to be invalid or unenforceable, the Applicable Spread and Applicable Factor (and any function or scale used to adjust the Applicable Spread or Applicable Factor) therefor shall be the Applicable Spread and Applicable Factor (and function and scale for adjusting the Applicable Spread or Applicable Factor) theretofore in effect.
On each day in each Interest Period during which the Bonds of any subseries are in a Term Indexed Mode, such Bonds shall bear interest at the “ Term Indexed Rate ” therefor, which shall be the lesser of 15% per annum or:
(i) Normal Rate : if such Term Indexed Mode is a LIBOR Term Indexed Mode, then the LIBOR Index Rate for such Bonds and day, and if such Indexed Mode is a SIFMA Term Indexed Mode, then the SIFMA Indexed Rate for such Bonds and day, in either case rounded upward to the fourth decimal place and unless otherwise provided in clause (ii)  or (iii) of this subsection;
(ii) Taxable Rate : following a Determination of Taxability, the product of the rate for such day specified in clause (i) of this subsection and the Taxable Rate Factor as of such day; unless otherwise provided in clause (iii)  of this subsection; and
(iii) Default Rate : with respect to principal of or interest on such Bonds that is overdue, the Default Rate following written notice to the Trustee and the Borrower from the Bondholder Representative of the occurrence of an Event of Default, as therein defined, under the Bondholder Agreement, until the Trustee receives notice from the Bondholder Representative that such Event of Default has been cured or is no longer continuing.
 
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Notwithstanding the foregoing, if the applicable rate described in Clause (i), (ii)  or (iii)  of this subsection exceeds 15% per annum while the Bonds of any subseries are in an Interest Period in such Term Indexed Mode, such Bonds thereafter shall continue to bear interest at 15% per annum through the earlier to occur of (A) the first day thereafter when the interest accrued thereon from the first day of such Interest Period is equal to or exceeds the interest that would have accrued thereon had the Term Indexed Rate not been limited to 15% per annum or (B) the last day of such Interest Period.
SECTION 2.08. Determination of Stepped Coupon Rate.
Not later than 4:00 p.m. New York City time, the Remarketing Agent for such Bonds shall divide the period remaining to the final Maturity Date into such number of periods as it shall determine (each a “ Stepped Coupon Period ”) and shall determine an interest rate for each Stepped Coupon Period. The Stepped Coupon Rate for each Stepped Coupon Period shall be the lowest rate which, in the aggregate for all Stepped Coupon Periods, such Remarketing Agent determines would result in a sale of the Bonds of such subseries at a price equal to the Purchase Price at the lowest net interest cost from the Mode Change Date to the final Maturity Date of such Bonds. Such Remarketing Agent shall also determine the Interest Payment Dates applicable during the Stepped Coupon Mode, provided, however , that the day following each Stepped Coupon Period (or the next Business Day if such day is not a Business Day) shall be an Interest Payment Date. Unless otherwise agreed by the Issuer with the consent of the Borrower, Interest Payment Dates in the Stepped Coupon Mode shall be each May 1 and November 1.
If the Remarketing Agent for the Bonds of a subseries in a Stepped Coupon Mode determines that such Bonds would bear a lower effective net interest cost if such Bonds were serial bonds or serial bonds and term bonds with the maturity (or Mandatory Sinking Account Payment) dates and principal amounts to be retired on such dates matching the Mandatory Sinking Account Payments for such Bonds, such Bonds shall become serial bonds or serial bonds and term bonds with such maturity (or Mandatory Sinking Account Payment) dates and principal amounts as determined by such Remarketing Agent to result in the lowest effective net interest cost for such Bonds.
The Remarketing Agents shall make the respective Stepped Coupon Periods and Stepped Coupon Rates determined by them available by Electronic Means and upon request by telephone to the Bondholders, the Borrower, the Issuer, the Trustee, the Tender Agent and the Credit Facility Providers (if any). Upon request of any Bondholder, the Borrower, the Issuer, the Trustee, any Credit Facility Provider or any Liquidity Facility Provider, the Tender Agent shall give notice of such rates by Electronic Means and telephonically if requested by a Bondholder. Such determination shall be conclusive and binding upon the Borrower, the Issuer, the Trustee, the Tender Agent, the Credit Facility Providers (if any), the Liquidity Facility Providers (if any), the Remarketing Agents and the Bondholders.
SECTION 2.09. Determination of Term Rates.
A. Method of Determining Term Rate, Interest Periods and Purchase Dates During Term Rate Mode . The Borrower shall determine the Interest Period for Bonds in a Term Rate Mode on or before the Rate Determination Date for such Interest Period. The Term Rate for Bonds of any subseries and Interest Period shall be the minimum rate which, in the judgment of the Remarketing Agent for such Bonds, would result in a sale of such Bonds at a price equal to the Purchase Price on the Rate Determination Date for such Interest Period. Such Remarketing Agent shall also determine the Purchase Date for such Bonds as the day following the last day of such Interest Period. If a new Interest Period for such Bonds is not selected by the Borrower prior to the Business Day next preceding the Purchase Date for the Interest Period for such Bonds then in effect, or if a Favorable Opinion of Bond Counsel is not then delivered to the Trustee in respect of the change in Interest Period, the new Interest Period for such Bonds shall be the Weekly Mode.
 
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B. Determination Time for Term Rates . Except as provided in Subsection A of this Section, once Bonds of any subseries are changed to the Term Rate Mode, such Bonds shall continue in the Term Rate Mode until changed to another Mode in accordance with Section 2.12 . The Term Rate for the Bonds of any subseries in any Interest Period shall be determined by the Remarketing Agent for such Bonds not later than 4:00 p.m. New York City time on the Rate Determination Date for such Interest Period. After 4:00 p.m. New York City time on such Rate Determination Rate, such Remarketing Agent shall make the Term Rate available by telephone or Electronic Means to any Bondholder, the Borrower, the Issuer, the Trustee, the Tender Agent, the Credit Facility Providers (if any) and the Liquidity Facility Providers (if any).
SECTION 2.10. Determination of Fixed Rate.
Subject to Section 2.12B , at the option of the Borrower, the Bonds or any subseries thereof may be converted to bear interest at the Fixed Rate to the Maturity Date of such Bonds unless, on the date the Remarketing Agent for such Bonds determines the Fixed Rate, such Remarketing Agent also determines that such Bonds would bear a lower effective net interest cost if such Bonds were serial bonds or serial bonds and term bonds with the maturity (or Mandatory Sinking Account Payment) dates and principal amounts to be retired on such dates matching the Mandatory Sinking Account Payments, in which event such Bonds shall become serial bonds or serial bonds and term bonds with such maturity (or Mandatory Sinking Account Payment) dates and principal amounts and shall bear separate Fixed Rates for each maturity. The Remarketing Agent for such Bonds shall determine the Fixed Rate(s) not later than 4:00 p.m. New York City time on the Rate Determination Date therefor. The Fixed Rate for Bonds of any subseries and maturity shall be the minimum interest rate which, in the judgment of the Remarketing Agent for such Bonds, will result in a sale of such Bonds at a price equal to the Purchase Price or, if with the written consent of the Borrower such Remarketing Agent determines that the lowest yield will result by selling such Bonds at a premium or discount, then a price equal to the Purchase Price (plus any such premium or less any such discount) on such Rate Determination Date, provided that, in the case of Bonds to be sold at a discount, either (1) a Liquidity Facility is in effect with respect to such Bonds and provides funds for the purchase of such Bonds at the Purchase Price on the applicable Mode Change Date or (2) the Borrower agrees to transfer to the Tender Agent on the date of change to the Fixed Rate Mode, in immediately available funds, for deposit in the Borrower Purchase Account, an amount equal to such discount. In the case of Bonds sold at a premium, the premium shall be transferred to the Borrower and applied to pay Costs of the Projects, including costs of remarketing such Bonds on the date of change to the Fixed Rate Mode. The Remarketing Agents shall make the Fixed Rates determined by them available by telephone to any Bondholder, the Borrower, the Issuer, the Trustee, the Tender Agent and the Credit Facility Providers (if any). Such determinations shall be conclusive and binding upon the Borrower, the Issuer, the Trustee, the Tender Agent, the Credit Facility Providers (if any), the Liquidity Facility Providers (if any), the Remarketing Agents and the Bondholders.
SECTION 2.11. Alternate Rate for Interest Calculation.
In the case of Bonds of any subseries other than Fixed Rate Bonds, if a Remarketing Agent is to determine any rate or function or component thereof or any Interest Period and (a) the Remarketing Agent for such Bonds fails or is unable to determine the interest rate(s) or Interest Periods with respect to any such Bonds (except as provided in Sections 2.06F ), (b) there is no Remarketing Agent for such Bonds or the Remarketing Agent for such Bonds suspends its remarketing efforts in accordance with its Remarketing Agreement, or (c) the method of determining
 
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the interest rate(s) or Interest Periods with respect to such Bonds shall be held to be unenforceable by a court of law of competent jurisdiction, such Bonds shall thereupon, until such time as such Remarketing Agent again makes such determination or until there is delivered an Opinion of Counsel to the effect that the method of determining such rate is enforceable, bear interest, from the last date on which such rate was determined in the case of clauses (a)  and (b)  and from the date on which interest was legally paid in the case of clause (c) , at the Alternate Rate for the Mode in effect for such Bonds. If any of the circumstances described in clauses (a), (b)  and (c)  of the preceding sentence occurs on a Rate Determination Date for such Bonds while such Bonds are in the Commercial Paper Mode, the relevant Interest Periods shall be from and including such Rate Determination Date to, but not including, the next succeeding Business Day, and thereafter shall commence on each Business Day and extend to, but shall not include, the next Business Day. Notwithstanding clauses (a)  and (b)  of the first sentence of this Section, if such Bonds are in an R-FLOATs Mode and an Interest Period of 35 days or less, the new Interest Period for such Bonds in the R-FLOATs Mode shall be the same duration as the immediately preceding Interest Period therefor and the R-FLOATs Rate therefor in such Interest Period shall be the Alternate Rate, and, if such Bonds are in an R-FLOATs Mode for an Interest Period of greater than 35 days, the new Interest Period for such Bonds in the R-FLOATs Mode shall be the Interest Period therefor for a weekly R-FLOATs Rate and the R-FLOATs Rate thereon in the first such Interest Period shall be the Alternate Rate. The Tender Agent shall make the determinations required by this Section for the Bonds of a subseries upon notification from the Issuer or the Borrower, if there is no Remarketing Agent for such Bonds, if the Remarketing Agent for such Bonds fails to make any such determination or if the Remarketing Agent for such Bonds has suspended its remarketing efforts in accordance with its Remarketing Agreement.
SECTION 2.12. Changes in Mode and Maximum Rate.
Subject to the provisions of this Section, the Borrower may effect a change in Mode with respect to the Bonds of any subseries (other than Fixed Rate Bonds or Bonds in the Stepped Coupon Mode or the Long Indexed Mode) by following the procedures set forth in this Section.
A. Changes to Modes Other Than to Fixed Rate Mode . The Bonds of any subseries (other than Bonds in the Fixed Rate Mode, the Stepped Coupon Mode, or the Long Indexed Mode) may be changed from one Mode to another Mode (other than to the Fixed Rate Mode) on the following terms and conditions:
(1) Mode Change Notice; Notice to Holders . No later than the 15th Business Day preceding the proposed Mode Change Date, the Borrower shall give written notice to the Issuer, the Trustee, the Tender Agent (if any), and the Remarketing Agent (if any), Liquidity Facility Provider (if any) and Credit Facility Provider (if any) for such Bonds of its intention to effect a change in the Mode for such Bonds from the Mode then prevailing (referred to in this Section as the “ Current Mode ”) to another Mode (referred to in this Section as the “ New Mode ”) specified in such written notice and, if the change is to a Term Rate Mode or Term Indexed Mode, the length of the initial Interest Period and, if the change is to the R-FLOATs Mode, whether the New Mode is the weekly, monthly, or term rate R-FLOATs Mode or an R-FLOATs Mode comprised of Special R-FLOATS Rate Periods. Notice of the proposed change in Mode shall be given to the Holders of such Bonds pursuant to Section 4.08 . In the event that the conditions to conversion are not satisfied, including the failure to remarket all such Bonds on the Mode Change Date, such Bonds shall nevertheless be subject to mandatory tender as set forth in S ubsection A(4) of this Section.
 
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(2) Determination of Interest Rates . The New Mode for such Bonds shall commence on the Mode Change Date, and the interest rate(s) (together, in the case of a change to the Commercial Paper Mode, with the Interest Period(s) and Purchase Date(s)) with respect to such Bonds shall be determined by the Remarketing Agent for such Bonds in the manner provided in Sections 2.04, 2.05, 2.06, 2.07, 2.08, 2.09 or 2.10 as applicable.
(3) Conditions Precedent . Each change in Mode pursuant to this Subsection A shall be made only on the following conditions:
(a) Business Day . The Mode Change Date shall be a Business Day.
(b) Purchase Date . Additionally, the Mode Change Date, in the case of a change:
(i) From Commercial Paper Mode : from the Commercial Paper Mode, shall be a day which is the last Purchase Date for all Interest Periods for the affected Bonds set by the Remarketing Agent for such Bonds or any later Business Day;
(ii) From Term Mode : from the Term Rate Mode or term R-FLOATs Mode, shall be the Purchase Date following the current Interest Period for such Bonds; and
(iii) From Term Indexed Mode : from a Term Indexed Mode, shall be a day on which for the Bonds of the applicable subseries may be redeemed at the option of the Borrower pursuant to Section 4.01D .
(c) Opinion of Counsel . The Trustee, the Tender Agent and the Remarketing Agent for such Bonds shall have received on the Mode Change Date a Favorable Opinion of Bond Counsel dated the Mode Change Date and addressed to the Trustee, the Tender Agent and the Credit Facility Provider (if any), Liquidity Facility Provider (if any) and Remarketing Agent for such Bonds and an Opinion of Counsel to the effect that the change in Mode then to become effective is authorized by Texas law and will not adversely affect the validity of such Bonds.
(d) Revocation of Election to Change . The Borrower may revoke its election to effect a conversion of the interest rate on such Bonds to another Mode by giving written notice of such revocation to the Issuer, the Trustee, the Tender Agent, and the Remarketing Agent, Liquidity Facility Provider (if any), and Credit Facility Provider (if any) for such Bonds, at any time prior to 10:00 a.m. New York City time on the Business Day immediately preceding the Rate Determination Date for the proposed Mode Change Date.
(e) Adequate Provisions for Purchase . If there shall be no Liquidity Facility in effect to provide funds for the purchase of such Bonds on the Mode Change Date, the proceeds of remarketing such Bonds available on the Mode Change Date shall be not less than the amount required to purchase all of such Bonds at the Purchase Price (unless the Borrower, in its sole discretion, elects to transfer to the Tender Agent the amount of such deficiency on or before the Mode Change Date).
 
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(f) Long Indexed Mode Supplement . Bonds shall not be changed to a Long Indexed Mode unless the Issuer and the Trustee have entered into the Supplemental Bond Indenture described in Section 2.07A .
(4) Failure to Satisfy Conditions Precedent . If the foregoing conditions have not been satisfied for the Bonds of any subseries by the applicable Mode Change Date, the New Mode for such Bonds shall not take effect, and (a) if the change was from an R-FLOATs Mode, such Bonds shall remain in the R-FLOATs Mode with interest rates established in accordance with Section 2.06D, 2.06E or 2.06F and (b) otherwise, all such Bonds shall be subject to mandatory tender, the Mode for such Bonds shall be changed to a Weekly Mode and such Bonds shall bear interest at the Maximum Rate for the first Interest Period in such Mode.
B. Change to Fixed Rate Mode . At the option of the Borrower, the Bonds of any subseries (other than Bonds in the Long Indexed Mode and the Stepped Coupon Mode) may be changed to the Fixed Rate Mode as provided in this Subsection B . Not less than 20 days (or such shorter time as may be agreed to by the Trustee and the Remarketing Agent for such Bonds) before the proposed Mode Change Date, the Borrower shall give written notice to the Issuer, the Trustee, the Tender Agent, such Remarketing Agent, and the Credit Facility Provider (if any) and Liquidity Facility Provider (if any) for such Bonds and each Rating Agency then rating such Bonds, stating that the Mode for such Bonds will be changed to the Fixed Rate Mode and setting forth the proposed Mode Change Date and a schedule specifying the principal amount of such Bonds, if any, which shall mature or be subject to redemption pursuant to Section 4.01F on November 1 of each year specified in such schedule. Any such change in Mode shall be made on the following terms and conditions:
(1) Mode Change Date . The Mode Change Date for a change in the Mode of such Bonds to a Fixed Rate Mode shall be: (i) in the case of a conversion from a Daily Mode or a Weekly Mode, a regularly scheduled Interest Payment Date for such Bonds on which interest is payable in the Daily Mode or Weekly Mode from which the conversion is to be made; (ii) in the case of a conversion from a Term Rate Period, a regularly scheduled Interest Payment Date for such Bonds on which a new Term Rate Period would otherwise have commenced; (iii) in the case of a conversion from a Commercial Paper Mode, a day which is the last regularly scheduled Interest Payment Date for such Bonds on which interest is payable for any Interest Period established for such Bonds; (iv) in the case of a conversion from a Term Indexed Mode, a day specified in Section 2.12A(3)(b)(iii) ; and (v) in the case of a conversion from an R-FLOATs Mode, any Interest Payment Date for such Bonds on which a new Interest Period therefor would otherwise commence.
(2) Notices and Opinions . Not less than 20 days (or such shorter time as may be agreed to by the Trustee and the Remarketing Agent for such Bonds) before the proposed Mode Change Date, the Borrower shall give written notice of the conversion to the Issuer, the Trustee, the Tender Agent, such Remarketing Agent, and the Liquidity Facility Provider (if any), and Credit Facility Provider (if any) for such Bonds, setting forth the proposed Mode Change Date. Together with such notice, the Borrower shall file with the Issuer, the Trustee and the Tender Agent a Favorable Opinion of Bond Counsel and an Opinion of Counsel to the effect that the conversion of such Bonds to the Fixed Rate Mode, including the assignment of new maturity dates and amortization requirements pursuant to S ubsection B(6) of this Section is authorized by Texas law and shall not adversely affect the validity of such Bonds. No conversion to the Fixed Rate Mode shall occur unless the Borrower shall also file with the Issuer and the Trustee a Favorable Opinion of Bond Counsel dated the Mode Change Date.
 
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(3) Notice to Bondholders; Mandatory Tender . In the event of a conversion of such Bonds from a Daily Mode, Weekly Mode, Term Rate Mode, Term Indexed Mode, R-FLOATs Mode or Commercial Paper Mode, the Trustee shall mail a notice of the proposed conversion to the registered owners of all such Bonds not less than fifteen (15) days prior to the proposed Mode Change Date. Such notice shall state that such Bonds shall be subject to mandatory tender at a price equal to 100% of the principal amount thereof plus accrued interest on the Mode Change Date. In the event that the conditions of a conversion are not satisfied, including the failure to remarket all such Bonds on the Mode Change Date, such Bonds shall be subject to mandatory tender as set forth in Subsection B(8) of this Section.
(4) Rate Determination . Not later than 12:00 noon, New York City time, on the Business Day immediately prior to the Mode Change Date, the Remarketing Agent for such Bonds shall determine the Fixed Rate(s) for such Bonds. Such determination shall be conclusive and binding upon the Issuer, the Borrower, the Trustee, the Liquidity Facility Providers (if any), the Credit Facility Providers (if any), the Tender Agent and the Holders of the Bonds. Not later than 5:00 p.m., New York City time, on the date of determination of such Fixed Rate(s), the Remarketing Agent for such Bonds shall notify the Trustee, the Issuer and the Borrower of such Fixed Rates by telephone or Electronic Means.
(5) Revocation of Election to Change . The Borrower may revoke its election to effect a conversion of the Mode of such Bonds to the Fixed Rate Mode by giving written notice of such revocation to the Issuer, the Trustee, the Tender Agent, and the Remarketing Agent, Liquidity Facility Provider (if any), and Credit Facility Provider (if any) for such Bonds at any time prior to 10:00 a.m. New York City time on the Business Day immediately preceding the Rate Determination Date for the proposed Mode Change Date.
(6) Amortization Schedule . Prior to the conversion of such Bonds to a Fixed Rate Mode pursuant to this Subsection B , the Remarketing Agent for such Bonds shall deliver to the Trustee, the Issuer and the Borrower a certificate which includes a schedule specifying the principal amount of such Bonds which shall mature on November 1 of each year specified in such schedule, and the interest rate payable on such Bonds of each such maturity. In determining the maturity dates and interest rates, such Remarketing Agent shall use the following guidelines:
(a) Serial and Term Bonds . Such Remarketing Agent shall allocate such Bonds between serial bonds and term bonds in such manner as shall produce the lowest aggregate interest payable with respect to such Bonds.
(b) Interest Rate . Such Remarketing Agent shall set the interest rate on each such Bond of a particular maturity at provided in Section 2.10 .
Notwithstanding anything above to the contrary, (x) if due to the reamortization of principal or serialization of Bonds pursuant to this Subsection B(6) , Bond Counsel cannot render a Favorable Opinion of Bond Counsel, then no such serialization shall occur, and (y) the Issuer with the consent of the Borrower may agree to another method for providing for payment of principal of the Bonds on or after the Mode Change Date if (i) the Remarketing Agent for such Bonds deems the utilization of such other method necessary in order to remarket such Bonds at a price of par and (ii) there is delivered to the Trustee and the Issuer by the Borrower a Favorable Opinion of Bond Counsel and an Opinion of Counsel to the effect that utilization of such other method is authorized by Texas law and shall not adversely affect the validity of such Bonds.
 
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(7) Sinking Fund Redemption Prices . Mandatory redemption of such Bonds by operation of the Sinking Fund Account shall be without premium. The Bonds converted to the Fixed Rate Mode shall be redeemed by the Trustee pursuant to the provisions of this Section and Section 4.01F without any notice from or direction by the Issuer or the Borrower.
(8) Failure to Satisfy Conditions Precedent . If the foregoing conditions have not been satisfied by the Mode Change Date, the New Mode for such Bonds shall not take effect and (a) if the change was from an R-FLOATs Mode, such Bonds shall remain in the R-FLOATs Mode with interest rates established in accordance with Section 2.06D, 2.06E or 2.06F and (b) otherwise, all such Bonds shall be subject to mandatory tender, and the Mode for such Bonds shall be changed to a Weekly Mode and bear interest at the Maximum Rate for the first Interest Period in such Mode.
C. Changes in Maximum Rate . The Trustee shall give at least 10 days written notice of each change in the Maximum Rate for the Bonds or any subseries thereof to each Holder thereof resulting from the amendment or replacement of any Credit Facility or Liquidity Facility.
SECTION 2.13. Form of Bonds.
The Bonds, including the form of the Registration Certificate of the Comptroller of Public Accounts of the State of Texas to be reproduced on the initial Bond, the form of the Certificate of Authentication to be reproduced on all subsequently authenticated Bonds, and the form of Assignment to be reproduced on all Bonds, shall be initially in substantially the form as set forth in Exhibit A , with necessary or appropriate variations, omissions and insertions as permitted or required hereby. Upon any designation of a subseries of Bonds, the Bonds so designated shall be exchanged for new Bonds specifying the applicable subseries by a suffix applied to the series designation. Upon any change in Mode, a new form of Bonds may be prepared which contains the terms of the Bonds applicable in the new Mode.
The definitive Bonds shall be printed, lithographed, engraved, typewritten, or photocopied, produced by any combination of these methods, or produced in any other manner, all as determined by the officers executing such Bonds as evidenced by their execution thereof.
SECTION 2.14. Execution of Bonds.
The Bonds shall be executed in the name and on behalf of the Issuer with the manual or facsimile signature of its President or one of its Vice Presidents and attested by the manual or facsimile signature of its Secretary or one of its Assistant Secretaries. The Bonds shall then be delivered to the Trustee for authentication by it. In case any of the officers who shall have signed or attested any of the Bonds shall cease to be such officer or officers of the Issuer before the Bonds so signed or attested shall have been authenticated or delivered by the Trustee or issued by the Issuer, such Bonds may nevertheless be authenticated, delivered and issued and, upon such authentication, delivery and issue, shall be as binding upon the Issuer as though those who signed and attested the same had continued to be such officers of the Issuer, and also any Bonds may be signed and attested on behalf of the Issuer by such persons as at the actual date of execution of such Bonds shall be the proper officers of the Issuer although at the nominal date of such Bonds any such person shall not have been such officer of the Issuer.
 
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No Bond shall be secured by, or be entitled to any lien, right, or benefit under, this Bond Indenture or be valid or obligatory for any purpose, unless there appears on such Bond either a Registration Certificate executed by the Comptroller of Public Accounts of the State of Texas or her duly authorized agent by manual signature, or a Certificate of Authentication executed by the Trustee by manual signature, in either case substantially in the form included in the form of Bond attached hereto as Exhibit A , and either such certificate upon any Bond shall be conclusive evidence, and the only evidence, that such Bond has been duly authenticated or certified and delivered hereunder.
SECTION 2.15. Transfer of Bonds.
Subject to the provisions of Section 2.20 , any Bond may, in accordance with its terms, be transferred, upon the bond registration books required to be kept pursuant to the provisions of Section 2.17 , by the Person in whose name it is registered, in person or by his duly authorized attorney, upon surrender of such registered Bond for cancellation, accompanied by delivery of a written instrument of transfer, duly executed in a form satisfactory to the Trustee.
Whenever any Bond or Bonds shall be surrendered for transfer, the Issuer shall execute and the Trustee shall authenticate and deliver a new Bond or Bonds for a like aggregate principal amount of the same subseries, maturity, Mode, Interest Period, and interest rate. The Trustee shall require the Bondholder requesting such transfer to pay any tax or other governmental charge required to be paid with respect to such transfer.
The Trustee shall not transfer any Bond if the Trustee has received written notice from the Remarketing Agent to the effect that the Remarketing Agent has received notice of tender of such Bond from the Holder of such Bond pursuant to Section 4.06 .
The Trustee shall not be required to transfer any Bond of any subseries, except to the Credit Facility Provider (if any) or Liquidity Facility Provider (if any) for such Bond, during the 15 days immediately preceding (1) the date on which notice of redemption of Bonds of such subseries is given or (2) the date on which Bonds of such subseries will be selected for redemption.
SECTION 2.16. Exchange of Bonds.
Bonds may be exchanged at the Principal Corporate Trust Office for a like aggregate principal amount of Bonds of the same subseries, maturity, Mode, Interest Period, and interest rate of other authorized denominations. The Trustee shall require the Bondholder requesting such exchange to pay any tax or other governmental charge required to be paid with respect to such exchange.
The Trustee shall not be required to exchange any Bond of any subseries, except to the Credit Facility Provider (if any) or Liquidity Facility Provider (if any) for such Bonds, during the 15 days immediately preceding (1) the date on which notice of redemption of Bond of such subseries is given or (2) the date on which Bonds of any subseries will be selected for redemption.
SECTION 2.17. Bond Register.
The Trustee will keep or cause to be kept sufficient books for the registration and transfer of the Bonds, which shall at all times be open to inspection during regular business hours by the Issuer and the Borrower; and, upon presentation for such purpose, the Trustee shall, under such reasonable regulations as it may prescribe, register or transfer or cause to be registered or transferred, on such books, Bonds as hereinbefore provided.
 
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SECTION 2.18. Temporary Bonds.
The Bonds may be issued in temporary form exchangeable for definitive Bonds when ready for delivery. Any temporary Bond may be printed, lithographed or typewritten, shall be of such denomination as may be determined by the Issuer, shall be in fully registered form without coupons and may contain such reference to any of the provisions of this Bond Indenture as may be appropriate. Every temporary Bond shall be executed by the Issuer and be authenticated by the Trustee upon the same conditions and in substantially the same manner as the definitive Bonds. If the Issuer issues temporary Bonds it will issue definitive Bonds as promptly thereafter as practicable, and thereupon the temporary Bonds may be surrendered, for cancellation, in exchange therefor at the Principal Corporate Trust Office, and the Trustee shall authenticate and deliver in exchange for such temporary Bonds an equal aggregate principal amount of definitive Bonds of authorized denominations of the same subseries, maturity, Mode, Interest Period, and interest rate. Until so exchanged, the temporary Bonds shall be entitled to the same benefits under this Bond Indenture as definitive Bonds authenticated and delivered hereunder.
SECTION 2.19. Bonds Mutilated, Lost, Destroyed or Stolen.
If any Bond shall become mutilated, the Issuer, at the expense of the Holder of said Bond, shall execute, and the Trustee shall thereupon authenticate and deliver, a new Bond of like subseries, maturity, Mode, Interest Period, and interest rate in exchange and substitution for the Bond so mutilated, but only upon surrender to the Trustee of the Bond so mutilated. Every mutilated Bond so surrendered to the Trustee shall be cancelled by it and delivered to, or upon the order of, the Issuer. If any Bond shall be lost, destroyed or stolen, evidence of such loss, destruction or theft may be submitted to the Trustee and, if such evidence be satisfactory to the Trustee and indemnity satisfactory to the Trustee to hold the Issuer and the Trustee harmless shall be given, the Issuer, at the expense of the Holder of such Bond, shall execute, and the Trustee shall thereupon authenticate and deliver, a new Bond of like maturity, Mode, Interest Period, and interest rate in lieu of and in substitution for the Bond so lost, destroyed or stolen (or if any such Bond shall have matured or shall be about to mature, instead of issuing a substitute Bond, the Trustee may pay the same without surrender thereof). The Issuer may require payment by the Holder of a sum not exceeding the actual cost of preparing each new Bond issued under this Section and of the expenses that may be incurred by the Issuer and the Trustee in the premises. Any Bond issued under the provisions of this Section in lieu of any Bond alleged to be lost, destroyed or stolen shall constitute an original additional contractual obligation on the part of the Issuer whether or not the Bond so alleged to be lost, destroyed or stolen be at any time enforceable by anyone, and shall be entitled to the benefits of this Bond Indenture with all other Bonds secured by this Bond Indenture.
SECTION 2.20. Use of Securities Depository.
Notwithstanding any provision of this Bond Indenture to the contrary:
A. Permitted Transfers by Securities Depository . On the effective date of this Bond Indenture, the Trustee shall cause the Bonds to be transferred by the Securities Depository to and registered in the name of the Bondholders or their nominees as, and in the respective aggregate principal amounts, specified in the initial Bondholder Agreement. Thereafter the Bonds may be deposited with the Securities Depository with written consent of the Borrower and the Bondholder Representative, if any, after which registered ownership of the Bonds, or any portion thereof, may not be transferred except:
 
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(1) To any successor of the Securities Depository or its nominee, or to any substitute depository designated pursuant to Subsection A(2) of this Section (herein referred to as a “ substitute depository ”); provided that any successor of the Securities Depository or substitute depository shall be qualified under any applicable laws to provide the service proposed to be provided by it;
(2) To any substitute depository designated by the Borrower upon (a) the resignation of the Securities Depository or its successor (or any substitute depository or its successor) from its functions as depository or (b) a determination by the Borrower that the Securities Depository or its successor (or any substitute depository or its successor) is no longer able to carry out its functions as depository; provided that any such substitute depository shall be qualified under any applicable laws to provide the services proposed to be provided by it; or
(3) To any Person as provided below, upon (a) the resignation of the Securities Depository or its successor (or substitute depository or its successor) from its functions as depository; provided that no substitute depository can be obtained or (b) a determination by the Borrower that it is in the best interests of the Borrower to remove the Securities Depository or its successor (or any substitute depository or its successor) from its functions as depository.
B. Issuance of Certificates on Transfer . In the case of any transfer pursuant to clause (1)  or clause (2)  of Subsection A of this Section, upon receipt of the Outstanding Bonds by the Trustee, together with a Certificate of the Issuer to the Trustee, a single new Bond shall be executed and delivered for the Bonds of such subseries in the aggregate principal amount of the Bonds of such subseries then Outstanding, registered in the name of such successor or such substitute depository, or its nominee, as the case may be, all as specified in such Certificate of the Borrower. In the case of any transfer pursuant to clause (3)  of Subsection A of this Section, upon receipt of the Outstanding Bonds by the Trustee together with a Certificate of the Borrower to the Trustee, new Bonds shall be executed and delivered and registered in the names of such Persons as are requested in such a Certificate of the Borrower, subject to the limitations of Section 2.02 , provided the Trustee shall not be required to deliver such new Bonds within a period less than 60 days from the date of receipt of such a Certificate of the Borrower.
C. Notations on Bonds . While the Bonds are registered in the name of the Securities Depository, they shall bear the following legend:
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”) OR A TRANSFEREE OR ASSIGNEE OF DTC OF THIS BOND MAY NOT RELY UPON THE PRINCIPAL AMOUNT INDICATED HEREON AS THE PRINCIPAL AMOUNT HEREOF OUTSTANDING AND TO BE PAID. THE PRINCIPAL AMOUNT OUTSTANDING AND TO BE PAID ON THIS BOND SHALL FOR ALL PURPOSES BE THE AMOUNT INDICATED ON THE BOOKS OF THE TRUSTEE.
UNLESS THIS BOND IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF DTC, TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY BOND ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
 
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In the case of partial redemption or an advance refunding of the Bonds evidencing all or a portion of the principal amount Outstanding, the Securities Depository shall make an appropriate notation on the Bonds indicating the date and amounts of such reduction in principal, in form acceptable to the Trustee.
D. Persons Treated as Owners . The Issuer and the Trustee shall be entitled to treat the Person in whose name any Bond is registered as the Bondholder thereof for all purposes of this Bond Indenture and any applicable laws, notwithstanding any notice to the contrary received by the Trustee or the Issuer; and the Issuer and the Trustee shall have no responsibility for transmitting payments to, communicating with, notifying or otherwise dealing with any beneficial owners of the Bonds. Neither the Issuer nor the Trustee will have any responsibility or obligations, legal or otherwise, to the beneficial owners or to any other party including the Securities Depository or its successor (or substitute depository or its successor), except for the Holder of any Bond.
E. Payments to Cede & Co . Whenever the Outstanding Bonds are registered in the name of Cede & Co. or its registered assign with the written consent of the Borrower and the Bondholder Representative, if any, the Issuer and the Trustee shall cooperate with Cede & Co., as sole registered Bondholder, and its registered assigns in effecting payment of the principal of and premium, if any, and interest on the Bonds by arranging for payment in such manner that funds for such payments are properly identified and are made immediately available on the date they are due, all as provided in the blanket Letter of Representations between the Trustee and the Securities Depository.
F. Compliance with Procedures . Notwithstanding anything to the contrary contained in this Bond Indenture, when Cede & Co., as nominee of the Securities Depository, is the sole registered owner of the Bonds with the written consent of the Borrower and the Bondholder Representative, if any, all tenders and deliveries of Bonds under the provisions of this Bond Indenture shall be made pursuant to the Securities Depository’s procedures as in effect from time to time, and neither the Issuer nor the Borrower nor the Tender Agent nor the Trustee shall have any responsibility for or liability with respect to the implementation of such procedures.
SECTION 2.21. The Calculation Agent.
A. Appointment and Duties. Whenever any Bond is in a Term Indexed Mode, there shall be a Calculation Agent (which may be the Trustee or the Bondholder Representative, if either accepts appointment) appointed by the Borrower (with the consent of the Bondholder Representative) with power to ascertain and notify the Trustee of each LIBOR Index, LIBOR Index Rate, SIFMA Municipal Swap Index, and SIFMA Indexed Rate, as applicable, and Default Rate, and each change in the Applicable Spread or Reserve Percentage known to it. Bank of America, N.A. is hereby designated as the initial Calculation Agent for the Bonds and shall serve as such under the terms and provisions hereof. Each Calculation Agent shall designate its principal office and signify its acceptance of the duties and obligations imposed upon it as described herein by a written instrument of acceptance delivered to the Issuer, the Trustee, and the Borrower (which may be the Bondholder Agreement), under which the Calculation Agent shall agree particularly (1) to determine the LIBOR Index, LIBOR Index Rate, SIFMA Municipal Swap Index, SIFMA Indexed Rate, and Default Rate, as applicable, (2) to designate an alternate source for the LIBOR Index or, during a Disruption Event, an alternative rate therefor, and (3) to give timely notice of such rates and designations to the Trustee.
 
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B. Performance by Trustee . If the Calculation Agent for the Bonds of any subseries shall resign, be removed, or be dissolved, or if the property or affairs of the Calculation Agent for the Bonds of any subseries shall be taken under control of any state or federal court or administrative body because of bankruptcy or insolvency or for any other reason, and the Borrower shall not have appointed a successor as Calculation Agent, the Trustee shall ipso facto be deemed to be the Calculation Agent for such Bonds for all purposes of this Bond Indenture, until the appointment by the Borrower of a successor Calculation Agent for such Bonds; provided, however , that the Trustee, in its capacity as Calculation Agent, shall not be required to determine the interest rate on Bonds hereunder if the Trustee should be prohibited by law or prevented by system or other organizational limitations from conducting such activities. If the Borrower fails to appoint a successor Calculation Agent for such Bonds within 30 days after its receipt of notice of any such event, the Trustee may apply to a court of competent jurisdiction for appointment of a successor Calculation Agent for such Bonds.
C. Permitted Conflicts . Each Calculation Agent may in good faith hold Bonds or any other form of indebtedness issued by the Issuer or any security issued by the Borrower; own, accept or negotiate any drafts, bills of exchange, acceptances or obligations thereof; and make disbursements therefor and enter into any commercial or business arrangement therewith; all without any liability on the part of such Calculation Agent for any real or apparent conflict of interest by reason of any such actions.
*                *                 *
 
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ARTICLE III
ISSUANCE OF BONDS; APPLICATION OF PROCEEDS
SECTION 3.01. Issuance and Exchange of the Bonds.
Forthwith upon the execution and delivery of the Original Bond Indenture, receipt by the Trustee of Bonds duly executed by the Issuer, the purchase price for such Bonds, and the initial Bond approved by the Attorney General of Texas and registered by the Comptroller of Public Accounts of the State of Texas, the Trustee authenticated and delivered such Bonds upon written application by the Issuer in exchange for such initial Bond, which was thereupon cancelled.
Forthwith upon the effective date of this Bond Indenture and receipt of Bonds in the form set forth in Exhibit A to this Bond Indenture duly executed by the Issuer, the Trustee shall authenticate and deliver such Bonds in exchange for the Bonds tendered to the Tender Agent for purchase on the Mandatory Purchase Date that coincides with such effective date. Neither the amendment of the Bonds provided for herein nor the exchange of Outstanding Bonds for amended Bonds pursuant to this Section is intended to extinguish or novate any debt represented by the Bonds, but rather each amended Bond is intended to evidence the same debt as the Outstanding Bond for which it is exchanged.
SECTION 3.02. Application of Proceeds of the Bonds.
The proceeds received from the sale of the Bonds shall be deposited in trust with the Trustee, who shall forthwith deposit all such proceeds to the Project Fund.
SECTION 3.03. Establishment and Application of Costs of Issuance Fund.
The Trustee established, maintained and held in trust under the Original Bond Indenture a separate fund of the Borrower designated as the “ Costs of Issuance Fund .” The moneys in the Costs of Issuance Fund were used and withdrawn by the Trustee to pay the Costs of Issuance upon Requisition of the Borrower stating the Persons to whom payment is to be made, the amount to be paid, the purpose for which the obligation was incurred and that such payment is a proper charge against said fund. On or before February 28, 2011, amounts, if any, remaining in the Costs of Issuance Fund were transferred to the Project Fund, and the Costs of Issuance Fund was thereafter closed.
SECTION 3.04. Establishment and Application of Project Fund.
A. Trust Fund . The Trustee established under the Original Bond Indenture and shall maintain and hold in trust hereunder a separate fund of the Borrower designated as the “ Project Fund .” On the date of delivery of the initial Bonds, the Trustee transferred from the Project Fund to the Costs of Issuance Fund the amount specified in the application by the Issuer for authentication and delivery of the Bonds. The balance of moneys in the Project Fund have been and shall be used and withdrawn by the Trustee to pay the costs of the Projects.
B. Requisitions . Before any payment from the Project Fund shall be made, the Borrower shall file or cause to be filed with the Trustee a Requisition in the form of Exhibit C , duly completed.
 
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Upon receipt of a Requisition, the Trustee shall pay the amount set forth in such Requisition as directed by the terms thereof out of the Project Fund. The Trustee shall not make any such payment if it has received any written notice of claim of lien, attachment upon, or claim affecting the right to receive payment of any of the monies to be so paid that has not been released or will not be released simultaneously with such payment.
C. Surplus Funds . When the Projects shall have been completed, there shall be delivered to the Trustee a Certificate of the Borrower stating the fact and date of such completion and stating that all of the costs thereof have been determined and paid (or that all of such costs have been paid less specified claims that are subject to dispute and for which a retention in the Project Fund is to be maintained in the full amount of such claims until such dispute is resolved). Upon the receipt of such Certificate, the Trustee shall, as directed by said Certificate, transfer any remaining balance in such Project Fund, less the amount of any such retention, to the Redemption Fund and apply such balance to the optional redemption of Bonds. Upon transfer in full of its balance, the Project Fund shall be closed.
SECTION 3.05. Validity of Bonds.
The validity of the authorization and issuance of the Bonds is not dependent on and shall not be affected in any way by any proceedings taken by the Issuer or the Trustee with respect to or in connection with the Loan Agreement. The recital contained in the Bonds that the same are issued pursuant to the Act and the Constitution and laws of the State of Texas shall be conclusive evidence of their validity and of compliance with the provisions of law in their issuance.
*                *                 *
 
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ARTICLE IV
REDEMPTION AND TENDER OF BONDS
SECTION 4.01. Terms of Redemption and Purchase in Lieu of Redemption.
The Bonds are subject to redemption and purchase in lieu of redemption as set forth below. All redemptions shall be in authorized denominations.
A. Optional Redemption of Bonds in the Commercial Paper Mode . Bonds in the Commercial Paper Mode are subject to optional redemption on their respective Purchase Dates at a Redemption price equal to 100% of the principal amount thereof without premium.
B. Optional Redemption of Bonds in the Daily Mode, the Weekly Mode, the weekly R-FLOATs Mode . Bonds in the Daily Mode, the Weekly Mode, or the weekly R-FLOATs Mode are subject to redemption prior to their respective stated Maturity Dates, at the option of the Borrower, in whole on any Business Day or in part on any Interest Payment Date therefor at a Redemption Price equal to 100% of the principal amount thereof, without premium, plus unpaid accrued interest thereon, if any.”
C. Optional Redemption of Bonds in the Long Indexed Mode . Bonds in the Long Indexed Mode are subject to redemption prior to their Maturity Date, at the option of the Borrower, in whole or in part on any Interest Payment Date following the earlier of 10 years after the Mode Change Date for such Bonds or the median date between such Mode Change Date and the Maturity Date, at a Redemption Price equal to 100% of the principal amount thereof, without premium, or on any other date permitted by the Supplemental Bond Indenture entered into pursuant to Section 2.07A , at the Redemption Price stated therein.
D. Optional Redemption of Bonds in the Term Rate Mode, the Term Indexed Mode, the term rate R-FLOATs Mode, the Special R-FLOATs Rate Period or the Fixed Rate Mode .
(1) End of Interest Period . Bonds in a Term Rate Mode, Term Indexed Mode, term rate R-FLOATs Mode or Special R-FLOATs Rate Period are subject to redemption prior to their respective stated Maturity Dates, at the option of the Borrower, in whole or in part on their respective Purchase Dates at a Redemption Price equal to 100% of the principal amount thereof, without premium.
(2) Within Interest Period . Bonds in a Term Rate Mode, Term Indexed Mode, term rate R-FLOATs Mode, or Special R-FLOATs Rate Period or the Fixed Rate Mode are also subject to redemption prior to their respective Purchase Dates, (a) in the case of Bonds in a Term Indexed Mode while a Bondholder Agreement is in effect for such Bonds, on any Interest Payment Date therefor, (b) in the case of Bonds in a Term Indexed Mode while no Bondholder Agreement is in effect therefor, on any Business Day within six (6) months prior to the Purchase Date therefor, and (c) at such times and upon such terms as shall be specified by the Borrower prior to the Rate Determination Date for the applicable Interest Period, if a Favorable Opinion of Bond Counsel is issued to the Trustee, and otherwise on any date on or after the earlier of (i) 10 years after the Mode Change Date for such Bonds or (ii) if the Interest Period therefore is at least ten (10) years long, the median date between such Mode Change Date and the last day of such Interest Period, at a Redemption Price equal to 100% of the principal amount thereof, without premium, plus unpaid accrued interest thereon, if any.
 
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E. Optional Redemption of Bonds in the Stepped Coupon Mode . Bonds in the Stepped Coupon Mode are subject to redemption prior to their respective stated Maturity Dates, at the option of the Borrower, in whole or in part on the Interest Payment Date immediately following the last day of a Stepped Coupon Period, at a Redemption Price equal to 100% of the principal amount thereof, without premium.
F. Sinking Fund Redemption . The Bonds are also subject to redemption prior to their stated Maturity Date, in part, from Mandatory Sinking Account Payments deposited in the Principal Fund pursuant to Section 5.03 on November 1 of the years specified in (1) any Supplemental Bond Indenture approved by the Borrower in writing, in the aggregate principal amounts specified in such Supplemental Bond Indenture, or (2) any schedule delivered by the Borrower to the Trustee pursuant to Section 2.12B , in the aggregate principal amounts specified in such schedule (except on the Maturity Dates for serial Bonds established pursuant to Section 2.12B(6) ), in either case at a Redemption Price equal to 100% of the principal amount thereof together with interest accrued thereon to the date fixed for redemption, without premium; provided , however , that, unless otherwise provided in such Supplemental Bond Indenture, the principal amount of Bonds of any subseries to be redeemed on any such date may be modified by Borrower Order given in connection with the creation of any new subseries or the merger of one or more subseries pursuant to Section 2.02E or any change in the Mode, Credit Facility or Liquidity Facility for the Bonds of such subseries, if the aggregate principal amount of Bonds of all subseries so to be redeemed on each such date remains the same; and provided further, however, that, unless otherwise provided in such Supplemental Bond Indenture, the principal amount of Bonds of any subseries so to be redeemed in any year shall be reduced upon Borrower Request by an amount equal to the principal amount of Bonds of such subseries (a) surrendered uncancelled and in transferable form by the Borrower to the Trustee not less than 45 days prior to such redemption date or (b) selected (not less than five days prior to the last day for mailing notice of such redemption date) for redemption in or prior to such year pursuant to any other Subsection of this Section, if in either case such Bonds shall not have previously served as the basis for any such reduction.
G. Extraordinary Optional Redemption . The Bonds in an Indexed Mode, Term Rate Mode, Term Indexed Mode, Stepped Coupon Mode, or Fixed Rate Mode are subject to extraordinary optional redemption, at the option and the written direction of the Borrower, in whole or in part on any Interest Payment Date in a LIBOR Term Indexed Mode while a Bondholder Agreement is in effect and on any date at any other time, in each case under the circumstances described below, at a price equal to 100% of the principal amount together with interest accrued and unpaid thereon to the date fixed for redemption, which shall be a date at least forty-five (45) days following receipt by the Trustee of the written direction of the Borrower. The circumstances, either of which may give rise to an extraordinary optional redemption of such Bonds, are as follows:
(1) Project Damage or Loss . If title to, or the temporary use of, any portion of the facilities financed or refinanced with the proceeds of the Bonds shall have been taken under the exercise of the power of eminent domain by any governmental authority, or any portion of such facilities is damaged or destroyed; and
(2) Change in Law . As a result of (a) any changes in the Constitution of the United States of America or the Home Rule Act, (b) other legislative or administrative action (federal or local), or (c) a final decree, judgment or order of any court or administrative body (federal or local), entered after any contest which may be undertaken at the option of the Borrower in good faith, after any of which the Loan Agreement becomes void or unenforceable or impossible of performance in accordance with the intent and purpose of the parties as expressed in the Loan Agreement or unreasonable burdens or excessive liabilities
 
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shall have been imposed on the Borrower because the Borrower is a party to the Loan Agreement, including, without limitation, the imposition of federal, state or other ad valorem, property, income or other taxes not being imposed on the date of the Loan Agreement which, in the judgment of the Borrower, render the continued operation of such facilities financed or refinanced with the proceeds of the Bonds uneconomic or impossible to perform in accordance with the intent and purpose of the parties as expressed in the Loan Agreement.
H. Mandatory Redemption under Bondholder Agreement . When Bonds are in a Term Indexed Mode and a Bondholder Agreement is in effect, the Bonds are subject to mandatory redemption and shall be redeemed, at a redemption price equal to 100% of the principal amount thereof together with interest accrued and unpaid thereon to the date fixed for redemption, on each date on which such Bonds are required to be redeemed, purchased, or repurchased pursuant to the Bondholder Agreement (other than as provided in Section 4.09 ), provided that the Borrower, the Bondholder Representative or the Required Bondholders (as defined in the Bondholder Agreement) give notice thereof to the Trustee and (unless given by the Borrower) the Borrower at least four (4) Business Days prior to the redemption date.
I. Purchase in Lieu of Redemption . Unless otherwise provided in a Supplemental Bond Indenture, whenever Bonds are subject to redemption, they may instead be purchased at the option of the Borrower at a purchase price equal to the Redemption Price thereof plus interest accrued thereon to the redemption date. The Borrower shall give to the Trustee written notice thereof and of the Bonds of each subseries, maturity, Interest Period, and interest rate to be so purchased. The Trustee shall select the particular Bonds of such subseries and maturity to be so purchased in the same manner as provided in Section 4.02 for the selection of Bonds to be redeemed in part. Promptly thereafter, the Trustee shall give notice of the purchase of such Bonds at the times and in the manner provided in Section 4.03 for notice of redemption. All such purchases may be subject to conditions to the Borrower’s obligation to purchase such Bonds and shall be subject to the conditions that money for the payment of the purchase price therefor is available on the date set for such purchase and that such purchase shall be made solely with Available Money or funds paid by the Liquidity Facility Provider under the Liquidity Facility, if a Credit Facility is in effect. If such a purchase is a purchase in lieu of optional redemption and a Liquidity Facility is in effect on the date of purchase, such purchase in lieu of redemption shall also be conditioned on money sufficient to reimburse the Liquidity Facility Provider for the purchase price being delivered by the Borrower to the Trustee prior to the purchase date, and the Trustee shall give a notice of rescission of such purchase of Bonds on the date set for purchase to the same Persons that were given the notice of purchase if such funds have not been delivered prior to the date set for purchase. Notice of purchase having been given in the manner required above, then, if sufficient money to pay the purchase price of such Bonds or to reimburse the Liquidity Facility Provider therefor is held by the Trustee, the purchase price of the Bonds or portions thereof so called for purchase shall become due and payable on the date set for purchase, upon presentation and surrender of such Bonds (other than Book Entry Bonds) to be purchased at the office or offices specified in such notice, and, in the case of Bonds presented by a Person other than the Holder thereof, together with a written instrument of transfer duly executed by such Holder or his duly authorized attorney. Payment of the purchase price of such Bonds shall be made, upon the request of the Holder of $1,000,000 or more in principal amount of Bonds to be so purchased, by wire transfer to such Holder at the wire transfer address in the continental United States to which such Holder has prior to the purchase date directed in writing the Trustee to wire such purchase price. No purchased Bond shall be considered to be no longer Outstanding by virtue of its purchase, and each such purchased Bond that is not a Book Entry Bond shall be registered in the name or at the direction of the Borrower.
 
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SECTION 4.02. Selection of Bonds for Redemption or Purchase.
Whenever provision is made in this Bond Indenture for the redemption or mandatory purchase of less than all of the Bonds of a subseries, maturity, Interest Period, and interest rate, the Trustee shall select the Bonds of such subseries, maturity, Interest Period, and interest rate to be redeemed, in the authorized denominations specified in Section 2.02 , by lot, in any manner which the Trustee in its sole discretion shall deem appropriate and fair; provided, however , that Liquidity Facility Bonds of such subseries shall be redeemed or purchased prior to any other Bonds of such subseries; and provided, further, however , when Bonds are in a Term Indexed Mode and a Bondholder Agreement is in effect, Bonds shall be selected for redemption or purchase as nearly as possible in proportion to the principal amount of Bonds registered to each Bondholder. The Trustee shall promptly notify the Issuer and the Borrower in writing of any redemption or purchase of the Bonds or portions thereof so selected for redemption or purchase. The selection of Bonds shall be at such time as determined by the Trustee.
SECTION 4.03. Notice of Redemption.
Notice of redemption shall be given by the Trustee by Electronic Means while Bonds are in a Term Indexed Mode and a Bondholders Agreement is in effect and at all other times by first-class mail, not less than one Business Day (for Bonds in a Term Indexed Mode while a Bondholder Agreement is in effect and the Bonds are not registered in the name of the Securities Depository or its nominee), 15 days (for Bonds in a Daily Mode, Weekly Mode, Commercial Paper Mode, Term Indexed Mode while no Bondholder Agreement is in effect or the Bonds are registered in the name of the Securities Depository or its nominee, or weekly R-FLOATs Mode) or 30 days (for Bonds in any other Mode) nor more than 60 days prior to the date fixed for redemption, to the Bondholders Representative (if any), the Liquidity Facility Provider (if any), Credit Facility Provider (if any), and Remarketing Agent for, and the Rating Agencies then rating, the Bonds to be redeemed and the respective Holders of such Bonds at their addresses appearing on the bond registration books of the Trustee. Each notice of redemption shall state the date of such notice, the date of delivery, subseries, maturity, Interest Period, and interest rate of the Bonds to be redeemed, the date fixed for redemption, the Redemption Price, the place or places of redemption (including the name and appropriate address or addresses of the Trustee), the CUSIP number (if any) of the Bonds to be redeemed and, in the case of Bonds to be redeemed in part only, the portion of the principal amount thereof to be redeemed. Each such notice shall also state that on the redemption date there will become due and payable on each of said Bonds the Redemption Price thereof or of said specified portion of the principal amount thereof in the case of a Bond to be redeemed in part only, together with interest accrued thereon to the date fixed for redemption, and that from and after such date, interest on such Bond shall cease to accrue, and shall require that such Bonds be then surrendered at the address or addresses of the Trustee specified in the redemption notice.
Notice of redemption of Bonds shall be given by the Trustee, at the expense of the Borrower.
Failure by the Trustee to mail notice of redemption pursuant to this Section to any Liquidity Facility Provider, Credit Facility Provider, Remarketing Agent, or Rating Agency or one or more of the Holders of any Bonds designated for redemption shall not affect the sufficiency of the proceedings for redemption with respect to the Holder or Holders to whom such notice was mailed.
 
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Any notice of optional redemption given pursuant to this Section may be conditional and may be rescinded by written notice given to the Trustee by the Borrower no later than 5 Business Days prior to the date specified for redemption. Notice of optional redemption of Bonds while a Credit Facility is in effect that may be drawn on to pay the Redemption Price thereof shall be conditioned on receipt by the Trustee by 1:00 p.m., New York City time, on the date fixed for redemption of sufficient funds from the Issuer or the Borrower to pay or reimburse the Credit Facility Provider for such Redemption Price and any accrued interest on such Bonds then due. The Trustee shall give notice of such rescission (or failure to satisfy such condition), as soon thereafter as practicable, in the same manner, to the same Persons, as notice of such redemption was given pursuant to this Section.
SECTION 4.04. Partial Redemption of Bonds.
Upon surrender of any Bond to be redeemed in part only, the Trustee shall authenticate and deliver to the Holder thereof, at the expense of the Borrower, a new Bond or Bonds of authorized denominations of the same subseries, maturity, Interest Period, and interest rate equal in aggregate principal amount to the unredeemed portion of the Bond surrendered.
SECTION 4.05. Effect of Redemption.
Notice of redemption having been duly given as aforesaid and moneys for payment of the Redemption Price of, together with interest accrued to the date fixed for redemption on, the Bonds (or portions thereof) so called for redemption being held by the Trustee, on the date fixed for redemption designated in such notice the Bonds (or portions thereof) so called for redemption shall become due and payable at the Redemption Price specified in such notice plus interest accrued thereon to the date fixed for redemption (unless such redemption is rescinded or the condition thereto is not satisfied as provided in Section 4.03 ), interest on the Bonds so called for redemption shall cease to accrue, said Bonds (or portions thereof) shall cease to be entitled to any benefit or security under this Bond Indenture, and the Holders of said Bonds shall have no rights in respect thereof except to receive payment of said Redemption Price and accrued interest.
SECTION 4.06. Optional Tenders of Bonds in the Daily Mode, the Weekly Mode or the R-FLOATs Mode.
The Holders of Eligible Bonds (other than Liquidity Facility Bonds) in a Daily Mode, a Weekly Mode or the R-FLOATs Mode may elect to have their Bonds (or portions of those Bonds in amounts equal to the lowest denomination then authorized pursuant to Section 2.02 ) purchased (1) on any Business Day, in the case of Bonds in a Daily Mode, Weekly Mode, or weekly R-FLOATs Mode, (2) two Business Days prior to the next succeeding Interest Period therefor, in the case of Bonds in a monthly R-FLOATs Mode, and (3) on the Interest Payment Date immediately following a Special R-FLOATs Rate Period or term rate R-FLOATs Rate Period, in the case of Bonds in a Special R-FLOATs Rate Period or term rate R-FLOATs Mode, respectively, in each case at a price equal to the Purchase Price,
(i) Daily Mode : in the case of Bonds in a Daily Mode, upon delivery of an irrevocable written notice of tender by Electronic Means and an irrevocable telephonic notice of tender to the Remarketing Agent for such Bonds and the Tender Agent (or, if none, the Trustee) not later than the Tender Notice Deadline; and
(ii) Weekly or R-Floats Mode : in the case of Bonds in a Weekly Mode or the R-FLOATs Mode, upon delivery of an irrevocable written notice of tender by Electronic Means and irrevocable telephonic notice of tender (promptly confirmed in writing to the Tender Agent) to the Remarketing Agent for such Bonds and the Tender Agent (or, if none, the Trustee), not later than the Tender Notice Deadline.
 
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Such notices of tender shall state the CUSIP number, subseries designation (if any), Bond number (if the Bonds are not registered in the name of the Securities Depository), Interest Period and principal amount of such Bond and that such Bond shall be purchased on the Purchase Date specified above. Payment of the Purchase Price shall be made pursuant to this Section only if the Bond so delivered to the Tender Agent conforms in all respects to the description thereof in the notice described in this Section. A Holder who gives the notice of tender as set forth above may repurchase the Bonds so tendered on such Purchase Dates if the Remarketing Agent for such Bonds agrees to sell the Bonds so tendered to such Holder. If such Holder decides to repurchase such Bonds and the Remarketing Agent agrees to sell the specified Bonds to such Holder, the delivery requirements set forth in Section 4.12D shall be waived. The Tender Agent may assume that a Bond is an Eligible Bond unless it has actual knowledge to the contrary.
SECTION 4.07. Mandatory Purchase at End of Commercial Paper Rate Periods.
Each Bond in the Commercial Paper Mode is subject to mandatory purchase on each Purchase Date established therefor at the Purchase Price. No notice of such mandatory purchase shall be given to the Holders of such Bonds.
 
SECTION 4.08.	Mandatory Purchase on Mode Change Date, Election to Set a Special R-FLOATs Rate Period or on Borrower Request.	
A. Changes Other Than to Fixed Rate Mode . Bonds to be changed at the election of the Borrower from one Mode to another Mode (other than a change to the Fixed Rate Mode, in which case such Bonds are subject to mandatory purchase pursuant to Subsection B of this Section), and Bonds in an R-FLOATs Mode which are to be changed to a Special R-FLOATs Rate Period of greater than 35 days, are subject to mandatory purchase on the Mode Change Date or the effective date of the Special R-FLOATs Rate Period at the Purchase Price as provided in this Subsection. The Tender Agent shall give notice of such mandatory purchase by Electronic Means to the Holders of the Bonds subject to mandatory purchase no less than 10 Business Days for Bonds which are to be changed to a Mode of 360 days or less, and no less than 20 days for Bonds which are to be changed to a Mode of more than 360 days, a Stepped Coupon Mode or an Indexed Mode, in either case prior to the Mandatory Purchase Date. The notice shall state the Mandatory Purchase Date, the Purchase Price and that interest on Bonds subject to mandatory purchase shall cease to accrue from and after the Mandatory Purchase Date. The failure to give such notice with respect to any Bond shall not affect the validity of the mandatory purchase of any other Bond with respect to which notice was so mailed. Any notice mailed will be conclusively presumed to have been given, whether or not actually received by any Bondholder.
B. Change to Fixed Rate Mode . Bonds to be changed to the Fixed Rate Mode are subject to mandatory purchase on the Mode Change Date at the Purchase Price (subject to Section 2.10 ). The Tender Agent shall give notice of such mandatory purchase as part of the notice of change of Mode to be sent to the Bondholders pursuant to Section 2.12B(3) . The failure to give such notice with respect to any Bond shall not affect the validity of the mandatory purchase of any other Bond with respect to which notice was so given. Any notice mailed will be conclusively presumed to have been given, whether or not actually received by any Bondholder.
C. On Borrower Request. The Bonds shall be subject to mandatory tender for purchase at the Purchase Price upon written request of the Borrower (received by the Trustee at least three Business Days prior to the Mandatory Purchase Date if the Bonds are in a Term Indexed Mode, a Bondholder Agreement is in effect, and the Bonds are not registered in the name of the Securities Depository or its nominee and otherwise 20 days prior to the Mandatory Purchase Date) on any
 
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Business Day on which such Bonds may be redeemed at the option of the Borrower for a redemption price equal to 100% of principal amount plus accrued interest, if any. The Tender Agent shall give notice of such mandatory purchase by Electronic Means to the Bondholder Representative, if any, and the Holders of the Bonds subject to mandatory purchase no less than one Business Day prior to such Mandatory Purchase Date while the Bonds are in a Term Indexed Mode, a Bondholder Agreement is in effect, and the Bonds are not registered in the name of the Securities Depository or its nominee, 15 days prior to the Mandatory Purchase Date for Bonds in a Mode with Interest Periods of less than one year, and otherwise 30 days prior to such Mandatory Purchase Date. The notice shall state the Mandatory Purchase Date, the Purchase Price and that interest on Bonds subject to mandatory purchase shall cease to accrue from and after the Mandatory Purchase Date. The failure to give such notice with respect to any Bond shall not affect the validity of the mandatory purchase of any other Bond with respect to which notice was so mailed. Any notice mailed will be conclusively presumed to have been given, whether or not actually received by any Bondholder.
 
SECTION 4.09.	Mandatory Purchase at End of Interest Period in Term Rate Mode or Term Indexed Mode or term rate R-FLOATs Rate Interest Period.	
Bonds in the Term Rate Mode or Term Indexed Mode and Bonds bearing interest at the term rate R- FLOATs Rate are subject to mandatory purchase at the Purchase Price on the Purchase Date following each Interest Period therefor. The Tender Agent shall give notice of such mandatory purchase by Electronic Means to the Bondholder Representative, if any, and the Remarketing Agent, if any, and by mail to the Holders of the Bonds subject to mandatory purchase no less than 15 days prior to the Mandatory Purchase Date. The notice shall state the Mandatory Purchase Date, the Purchase Price and that interest on Bonds subject to mandatory purchase shall cease to accrue from and after the Mandatory Purchase Date. The Tender Agent may assume that a Bond is an Eligible Bond unless it has actual knowledge that such Bond is not an Eligible Bond. The failure to mail such notice with respect to any Bond shall not affect the validity of the mandatory purchase of any other Bond with respect to which notice was so mailed. Any notice mailed will be conclusively presumed to have been given, whether or not actually received by any Bondholder.
 
SECTION 4.10.	Mandatory Purchase on Expiration Date, New Liquidity Facility Date, New Credit Facility Date and Termination Date.	
A. Substitution and Expiration . The Eligible Bonds of any subseries shall be subject to mandatory purchase at the Purchase Price:
(1) Substitution or Release : on the last Business Day on or before each New Liquidity Facility Date and New Credit Facility Date for such Bonds, and
(2) Expiration : on the second Business Day immediately preceding each Expiration Date for such Bonds;
provided, however , that such Bonds shall not be subject to mandatory purchase on any such date if, on or prior to the 15 th day prior to such Mandatory Purchase Date, the Borrower has furnished to the Trustee a written agreement from the Liquidity Facility provider or Credit Facility Provider for such Bonds to extend the Liquidity Facility or Credit Facility, as applicable, for such Bonds. The Tender Agent shall give notice of such mandatory purchase by mail to the Holders of the Bonds subject to mandatory purchase no less than 10 days prior to such Mandatory Purchase Date. The notice shall state the Mandatory Purchase Date, the Purchase Price and that interest on the Bonds subject to mandatory purchase shall cease to accrue from and after the Mandatory Purchase Date. The failure to mail such notice with respect to any Bond shall not affect the validity of the mandatory purchase of any other Bond with respect to which notice was so mailed. Any notice mailed will be conclusively presumed to have been given, whether or not actually received by any Bondholder.
 
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B. Termination . On the Business Day before each Termination Date for the Bonds of a subseries, the Eligible Bonds of such subseries shall be subject to mandatory purchase at the principal amount thereof, plus accrued interest, if any, with respect thereto to such Termination Date. The Tender Agent shall give notice of such mandatory purchase by mail to the Holders of the Bonds to be purchased as soon as practicable after receipt of notice of termination from the Liquidity Facility Provider or Credit Facility Provider for such Bonds. The notice shall state the Mandatory Purchase Date, the Purchase Price and that interest on Bonds subject to mandatory purchase shall cease to accrue from and after the Mandatory Purchase Date. The failure to mail such notice with respect to any Bond shall not affect the validity of the mandatory purchase of any other Bond with respect to which notice was so mailed. Any notice mailed will be conclusively presumed to have been given, whether or not actually received by any Bondholder.
SECTION 4.11. Remarketing of Bonds; Notices.
A. Remarketing of Bonds . The Remarketing Agent for the Bonds of a subseries shall use its best efforts to offer for sale:
(1) all Bonds of such subseries or portions thereof as to which notice of tender has been given pursuant to Section 4.06 ;
(2) all Bonds of such subseries required to be purchased pursuant to Sections 4.07, 4.08, 4.09 and 4.10 ; and
(3) all Liquidity Facility Bonds of such subseries.
Notwithstanding the foregoing, in no event may the Remarketing Agent remarket Bonds or any subseries thereof to any Excluded Purchaser while a Credit Facility for such Bond is in effect hereunder.
B. Notice of Remarketing; New Bonds . On each Purchase Date or Mandatory Purchase Date, as the case may be, for the Bonds of a subseries:
(1) Notice of Remarketing : unless the Remarketing Agent for such Bonds has notified the Tender Agent and the Trustee otherwise, such Remarketing Agent shall notify the Tender Agent and the Trustee by Electronic Means, not later than 30 minutes before the applicable Draw Deadline, of the principal amount of tendered Bonds of such subseries which were successfully remarketed and shall provide the Tender Agent with delivery and other instructions for such Remarketing Agent; and
(2) Delivery of Bonds : the delivery of new Bonds of such subseries shall be effected through the Securities Depository and delivered to the Remarketing Agent for such Bonds via the Securities Depository in accordance with the provisions of Section 4.12E .
C. Transfer of Funds; Draw on Liquidity Facility . On each Purchase Date or Mandatory Purchase Date, as the case may be, for the Bonds of a subseries:
 
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(1) Payment for Remarketed Bonds . Upon receipt via the Securities Depository of the Tendered Bonds of such subseries from tendering Bondholders that have been successfully remarketed, the Remarketing Agent for such Bonds shall cause to be paid via the Securities Depository to the Tender Agent the Purchase Price of the remarketed Bonds by 30 minutes before the applicable Draw Deadline. The Tender Agent will immediately make delivery of such Bonds pursuant to Section 4.12E to such Remarketing Agent, and the Tender Agent’s participant account will be credited with the Purchase Price from such Remarketing Agent. The requirement for physical delivery of such Bonds will be satisfied when the ownership rights with respect to such Bonds are transferred by the tendering Bondholder’s direct participant to the Securities Depository and followed by a book-entry credit of such Bonds to the Tender Agent’s participant account.
(2) Notice of Insufficiency . Except with respect to Bonds in any R-FLOATs Mode, if the Remarketing Agent for such Bonds shall have given notice to the Tender Agent pursuant to Subsection B(1) of this Section that it has remarketed less than all of such Bonds tendered for remarketing, the Tender Agent shall give notice to the Trustee, the Borrower and, if a Liquidity Facility is then in effect with respect to the Bonds subject to purchase, to the applicable Liquidity Facility Provider (or the Tender Agent shall instruct the Trustee to give notice and the Trustee shall give notice) in accordance with the terms of the Liquidity Facility for such Bonds prior to the applicable Draw Deadline (and promptly thereafter, the Tender Agent shall so notify the Securities Depository) of the amount equal to the Purchase Price of all such Bonds tendered or deemed tendered less the aggregate amount of remarketing proceeds on hand.
(3) Draw for Insufficiency . Except with respect to any Bonds in an R-FLOATs Mode, in the event not all of such Bonds have been successfully remarketed, if a Liquidity Facility is then in effect with respect to the Bonds subject to purchase, the Tender Agent (or the Trustee if the Trustee is the beneficiary under such Liquidity Facility) shall draw on such Liquidity Facility in accordance with the terms thereof so as to receive thereunder by the Bank Settlement Deadline on such date an amount, in immediately available funds, sufficient, together with the proceeds of the remarketing of such Bonds on such date, to enable the Tender Agent to pay the Purchase Price in connection therewith. In making draws or claims for payment under the Liquidity Facility for the Bonds of a subseries, the Trustee and the Tender Agent shall act on behalf and for the account and benefit of the Holders of such Bonds and not on behalf, for the account or benefit, or subject to the control of any Holder of a Bond other than an Eligible Bond.
(4) Payment by Borrower . Except with respect to any Bonds in an R-FLOATs Mode, in the event not all of such Bonds have been successfully remarketed, if a Liquidity Facility is not then in effect with respect to the Bonds subject to purchase or if the Liquidity Facility Provider has not paid the full amount required by clause (3)  of this Subsection C at the times required therein, the Borrower has agreed in Section 3.05 of the Loan Agreement to pay to the Tender Agent by the Bank Settlement Deadline on such date an amount, in immediately available funds, sufficient, together with the proceeds of the remarketing of such Bonds on such date, to enable the Tender Agent to pay the Purchase Price in connection therewith.
SECTION 4.12. General Provisions Relating to Tenders.
A. Purchase Fund . The Tender Agent shall establish and maintain a special fund designated as the “ Purchase Fund ,” and within such fund three separate accounts designated, respectively, as the “ Liquidity Facility Deposit Account ,” the “ Remarketing Proceeds Account ” and the “ Borrower Purchase Account .” Upon the designation of two or more subseries of Bonds pursuant
 
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to Section 2.02E , the Tender Agent shall establish and maintain a separate subaccount for each subseries within each such Account and shall deposit to and draw on the applicable subaccount all receipts in respect of and all payments of the Purchase Price of the Bonds of the subseries for which such subaccount is established. The money in the Purchase Fund shall be held in trust and applied solely as provided in this Section.
The Tender Agent shall deposit all moneys delivered to it hereunder for the purchase of Bonds into the Remarketing Proceeds Account and shall hold all such moneys in trust for the exclusive benefit of the Person that shall have so delivered such moneys until the Bonds purchased with such moneys shall have been delivered to it for the account of such Person and, thereafter, for the benefit of the Bondholders tendering such Bonds.
The Tender Agent shall deposit all moneys delivered to it hereunder from a payment by or on behalf of any Liquidity Facility Provider for the purchase of Bonds into the Liquidity Facility Deposit Account and shall hold all such moneys in trust for the exclusive benefit of such Liquidity Facility Provider until the Bonds purchased with such moneys shall have been delivered to or for the account of such Liquidity Facility Provider and, after such delivery, the Tender Agent shall hold such funds exclusively for the benefit of the Bondholders tendering such Bonds.
The Tender Agent shall deposit all moneys delivered to it hereunder from a payment by or on behalf of the Borrower for the purchase of Bonds into the Borrower Purchase Account and shall hold all such moneys in trust for the exclusive benefit of the Borrower until the Bonds purchased with such moneys shall have been delivered to or for the account of the Borrower and, after such delivery, the Tender Agent shall hold such funds exclusively for the benefit of the Bondholders tendering such Bonds.
Moneys in the Liquidity Facility Deposit Account, the Remarketing Proceeds Account and the Borrower Purchase Account shall not be commingled with other funds held by the Tender Agent and shall remain uninvested. Neither the Issuer nor the Borrower shall have any right, title or interest in or to any moneys held in the Purchase Fund.
Whenever the Tender Agent is not a federal depository institution or state-chartered depository institution subject to regulations regarding fiduciary funds similar to Section 9.10(b), Title 1, U.S. Code of Federal Regulations, then the Tender Agent shall maintain the Purchase Fund at such a depository institution subject to such regulations, or at a depository institution the short-term obligations of which are rated by each Rating Agency no lower than the short-term rating assigned by it to the Bonds.
B. Payment of Purchase Price . At or before the close of business New York City time on the Purchase Date or Mandatory Purchase Date for Bonds and upon receipt by the Tender Agent of the aggregate Purchase Price of the tendered Bonds, the Tender Agent shall pay the Purchase Price of such Bonds to the tendering Bondholder’s direct participant via the Securities Depository. Payments by participants to beneficial owners shall be governed by standing instructions and customary practices. The Tender Agent shall pay the Purchase Price of the Bonds of any subseries in the following order of priority: (1) the proceeds, if any, from the remarketing of such Bonds, (2) in the case of Eligible Bonds of such subseries, the moneys drawn under the Liquidity Facility (if any) for such Bonds and (3) moneys paid by the Borrower. The Tender Agent may assume that a Bond is an Eligible Bond unless it has actual knowledge to the contrary. If, at close of business New York City time on any Purchase Date or Mandatory Purchase Date for Bonds of any subseries, any balance remains of any draw on the Liquidity Facility for such Bonds in excess of any unsatisfied purchase obligation, such excess shall be promptly returned to the Liquidity Facility Provider obligated thereon. If, at close of business New York City time on any Purchase Date or Mandatory Purchase Date for Bonds, any balance remains from any payment by the Borrower in excess of any unsatisfied purchase obligation, such excess shall be promptly returned to the Borrower.
 
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C. Inadequate Funds for Tenders . If the funds available for purchases of Eligible Bonds of a subseries pursuant to this Article are inadequate for the purchase of all Bonds of such subseries tendered on any Purchase Date or Mandatory Purchase Date, no purchase of Bonds of such subseries shall be consummated, and the Tender Agent shall, after any applicable grace period, (1) return all tendered Bonds of such subseries to the Holders thereof, (2) return all moneys transferred via the Securities Depository for the purchase of such Bonds to the Remarketing Agent for such Bonds for return to the Persons providing such moneys, (3) return all moneys drawn under any Liquidity Facility for such Bonds to the Liquidity Facility Provider obligated thereon and (4) return to the Borrower all moneys transferred from the Borrower. At such time, the Bonds of such subseries shall convert to a Weekly Mode and shall bear interest in the first Interest Period of such Mode at the Maximum Rate.
D. Delivery of Bonds by Tendering Bondholders; Undelivered Bonds Deemed Purchased . All Bonds to be purchased on any Purchase Date or Mandatory Purchase Date shall be required to be delivered to the Tender Agent’s Securities Depository participant account at or before 30 minutes before the Draw Deadline for purchases of Bonds on such date. If the Holder of any Bond (or portion thereof) that is subject to purchase pursuant to this Article fails to deliver such Bond to the Tender Agent for purchase on the Purchase Date or Mandatory Purchase Date, and if the Tender Agent is in receipt of the Purchase Price therefor, such Bond (or portion thereof) shall nevertheless be deemed purchased on the day fixed for purchase thereof, and ownership of such Bond (or portion thereof) shall be transferred to the purchaser thereof as provided in Subsection E of this Section. Any Holder of a Bond who fails to deliver such Bond for purchase shall have no further rights thereunder except the right to receive the Purchase Price thereof upon presentation and surrender of said Bond to the Tender Agent. The Tender Agent shall, as to any tendered Bonds that have not been delivered to it, promptly notify the applicable Remarketing Agent of such nondelivery.
E. Delivery of Bonds . On the Purchase Date or Mandatory Purchase Date for Bonds of any subseries, the Tender Agent shall make delivery of such Bonds via the Securities Depository (1) to the Remarketing Agent for such Bonds to the extent of Bonds of such subseries purchased and remarketed by such Remarketing Agent no later than 30 minutes prior to the applicable Draw Deadline, (2) to the Liquidity Facility Provider (if any) for such Bonds to the extent of Bonds of such subseries purchased with amounts paid by or on behalf of such Liquidity Facility Provider and (3) to the Borrower to the extent of Bonds of such subseries purchased with amounts paid by or on behalf of the Borrower. Notwithstanding the foregoing, the Tender Agent shall not deliver any Bonds pursuant to Clause (2) or upon the remarketing of Liquidity Facility Bonds unless it has received notice from the Liquidity Facility Provider for such Bonds that the amount available for the purchase of Bonds of such subseries (prior to a conversion to Fixed Rate) is at least equal to the aggregate amount of all Bonds of such subseries then Outstanding (other than Liquidity Facility Bonds not then being released) plus an amount equal to (1) 49 days’ interest on Bonds of such subseries in a Daily Mode or a Weekly Mode, (2) 107 days’ interest on Bonds of such subseries in a Term Indexed Mode, and (3) 190 days’ interest on Bonds of such subseries in a Commercial Paper Mode or a Term Rate Mode (assuming an interest rate equal to the Maximum Rate per annum) or the Trustee has given notice to the Liquidity Facility Provider that will increase such amount available to such aggregate amount.
 
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F. No Sales After Payment Default . Anything in this Bond Indenture to the contrary notwithstanding, if there shall have occurred and be continuing an Event of Default described in Section 7.01A or 7.01B in respect of the Bonds of any subseries and the Credit Facility Provider (if any) for such Bonds has not paid such amount under the Credit Facility, then the applicable Remarketing Agent shall not remarket any Bonds of such subseries.
G. R-FLOATs Bonds During Non-Remarketing Period . The provisions of this Section shall not apply to any Bonds in an R-FLOATs Mode during any Non-Remarketing Period.
H. Book-Entry Tenders . Whenever Bonds are to be tendered and purchased pursuant to this Article after the Securities Depository has resigned or been removed and not replaced pursuant to Section 2.20 , (1) Bonds shall be tendered for purchase by delivery, endorsed in blank (or accompanied by a bond power executed in blank) to the extent of the portion to be purchased, at the principal office of the Tender Agent in the City of New York by 30 minutes before the applicable Draw Deadline, on the applicable Purchase Date or Mandatory Purchase Date and (2) the Issuer shall execute, and the Trustee shall authenticate and deliver, in the name of the Person deemed to have purchased the same or its designee, one or more new Bonds of any authorized denomination, of the same subseries and maturity, bearing interest at the same rate (except to the extent such Bond becomes a Liquidity Facility Bond) and for the same Interest Period, and of a like aggregate principal amount pursuant to Section 2.15 .
SECTION 4.13. The Remarketing Agents.
A. Appointment, Duties . Merrill Lynch, Pierce, Fenner & Smith Incorporated is hereby designated as the initial Remarketing Agent for the Bonds and shall serve as such under the terms and provisions hereof. The Remarketing Agent and each successor Remarketing Agent for the Bonds of any subseries appointed in accordance with this Bond Indenture shall designate its principal office and signify its acceptance of the duties and obligations imposed upon it as described herein by a written instrument of acceptance delivered to the Issuer, the Trustee, the Tender Agent and the Borrower, under which the Remarketing Agent will agree particularly:
(1) Hold Money : to hold all moneys delivered to it hereunder for the purchase of such Bonds for the exclusive benefit of the Person or Persons that shall have so delivered such moneys until the Bonds purchased with such moneys shall have been delivered to or for the account of such Person or Persons;
(2) Keep Records : to keep such books and records with respect to such Bonds, as shall be consistent with prudent industry practice and to make such books and records available for inspection by the Borrower, the Issuer and the Trustee, at all reasonable times, upon reasonable notice;
(3) Make Determinations : to determine the Daily Rates, the Weekly Rates, the weekly R-FLOATs Rates, the monthly R-FLOATs Rates, the term R-FLOATs Rates, the lengths and rates of the Special R-FLOATs Rate Periods, the Commercial Paper Rates, the lengths of Interest Periods in the Commercial Paper Mode, the Term Rates, the percentage or spread (and any function or scale therefor) used to determine the Indexed Rates, the Stepped Coupon Rates and the Fixed Rates for such Bonds and give notice of such rates and lengths in accordance with Article II ;
(4) Remarket : to use its best efforts to find purchasers for such Bonds tendered for purchase, any such sale to be made at the Purchase Price in accordance with the terms of this Bond Indenture; and
 
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(5) Deliver Bonds : to deliver to the Tender Agent all such Bonds held by it in accordance with the terms of this Bond Indenture and its Remarketing Agreement.
No Remarketing Agent shall designate a principal office at which its obligations under its Remarketing Agreement are to be performed unless such office is located in a state specified in the definition of “Business Day” included in the Credit Facility and the Liquidity Facility.
B. Performance by Tender Agent . If the Remarketing Agent for the Bonds of any subseries shall resign, be removed, or be dissolved, or if the property or affairs of the Remarketing Agent for the Bonds of any subseries shall be taken under control of any state or federal court or administrative body because of bankruptcy or insolvency or for any other reason, and the Borrower shall not have appointed a successor as Remarketing Agent, the Tender Agent shall ipso facto be deemed to be the Remarketing Agent for such Bonds for all purposes of this Bond Indenture, including Section 2.11 , until the appointment by the Borrower of a successor Remarketing Agent for such Bonds; provided, however, that the Tender Agent, in its capacity as Remarketing Agent, shall not be required to determine the interest rate on Bonds hereunder if the Tender Agent should be prohibited by law from conducting such activities. If the Borrower fails to appoint a successor Remarketing Agent for such Bonds within 30 days after its receipt of notice of any such event, the Trustee may apply to a court of competent jurisdiction for appointment of a successor Remarketing Agent for such Bonds. If a Remarketing Agent resigns, is removed, or is unable to perform its duties hereunder, the Trustee shall accept all notices and money required or permitted to be delivered to such Remarketing Agent hereunder until a successor Remarketing Agent for the Bonds of the applicable subseries has been appointed. The Borrower will notify each Rating Agency then rating the Bonds of any subseries of any successor Remarketing Agent or co-Remarketing Agent for such Bonds.
C. Permitted Conflicts . Each Remarketing Agent may in good faith hold Bonds or any other form of indebtedness issued by the Issuer or any security issued by the Borrower; own, accept or negotiate any drafts, bills of exchange, acceptances or obligations thereof; and make disbursements therefor and enter into any commercial or business arrangement therewith; all without any liability on the part of such Remarketing Agent for any real or apparent conflict of interest by reason of any such actions.
SECTION 4.14. Qualifications and Substitution of Remarketing Agent.
A. Qualifications; Resignation and Replacement . Each Remarketing Agent shall be authorized by law to perform all the duties imposed upon it. A Remarketing Agent may at any time resign and be discharged of the duties and obligations described in this Bond Indenture as set forth in its Remarketing Agreement. A Remarketing Agent may suspend or immediately terminate its remarketing efforts as set forth in its Remarketing Agreement. Successor Remarketing Agents may be appointed from time to time by the Borrower if not objected to by the Credit Facility Provider (if any) or Liquidity Facility Provider (if any) for such Bonds. The Remarketing Agent for the Bonds of any subseries may be removed upon 30 days’ notice upon the written Request of the Borrower and upon written notice to such Remarketing Agent, the Issuer, the Trustee, the Tender Agent, and the Liquidity Facility Provider (if any) and Credit Facility Provider (if any) for such Bonds, so long as a successor Remarketing Agent shall have assumed the duties thereof for such Bonds by the effective date of such removal.
B. Automatic Succession . Notwithstanding any other provision to the contrary contained herein, any corporation or association into which a Remarketing Agent may be converted or merged, or with which it may be consolidated, or to which it may be consolidated, or to which it may sell or transfer its marketing business and assets as a whole or substantially as a whole, shall become successor Remarketing Agent hereunder and fully vested with all of the rights, powers, trusts, duties and obligations of a Remarketing Agent hereunder, without the execution or filing of any instrument or any further act.
 
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SECTION 4.15. The Tender Agent.
The Trustee is hereby appointed as Tender Agent and shall serve as such under the terms and provisions hereof. The Tender Agent and each successor Tender Agent appointed in accordance with this Bond Indenture shall designate its principal corporate office and signify its acceptance of the duties and obligations imposed upon it as described herein by a written instrument of acceptance delivered to the Issuer, the Trustee and the Borrower under which each Tender Agent will agree, particularly:
(1) Custody of Bonds : to hold all Bonds delivered to it for purchase hereunder in trust for the exclusive benefit of the respective Bondholders that shall have so delivered such Bonds until moneys representing the Purchase Price of such Bonds shall have been delivered to or for the account of or to the order of such Holders;
(2) Custody of Money : to hold all moneys delivered to it hereunder for the purchase of Bonds in trust for the exclusive benefit of the Person that shall have so delivered such moneys until the Bonds purchased with such moneys shall have been delivered to it for the account of such Person and, thereafter, for the benefit of the Bondholders tendering such Bonds;
(3) Keep Records : to keep such books and records as shall be consistent with prudent industry practice and to make such books and records available for inspection by the Borrower, the Issuer, the Trustee, the Remarketing Agents, the Liquidity Facility Providers (if any) and the Credit Facility Providers (if any) at all reasonable times; and
(4) Assignment of CUSIPS : for any Bonds in the Commercial Paper Mode, to assign CUSIP numbers to such Bonds on each Rate Determination Date as provided in Section 2.05 .
The Tender Agent shall be entitled to the protections, indemnities, immunities and limitations from liability afforded the Trustee hereunder in the performance of its duties.
SECTION 4.16. Qualifications of Tender Agent.
A. Qualifications; Removal and Replacement . The Tender Agent and each successor Tender Agent shall be a commercial bank with trust powers or trust company duly organized under the laws of the United States of America or any state or territory thereof, and authorized by law to perform all duties imposed upon it hereunder. The Tender Agent shall have an office, affiliate office or agency in New York, New York. The Tender Agent may at any time resign and be discharged of its duties and obligations by giving at least 60 days’ notice to the Issuer, the Trustee, the Remarketing Agents, the Liquidity Facility Providers (if any), the Credit Facility Providers (if any), all Holders of Bonds then Outstanding and the Borrower. Any Tender Agent may be removed at any time by the Borrower upon notice to the Issuer, the Trustee, the Remarketing Agents, the Liquidity Facility Providers (if any), the Credit Facility Providers (if any) and each Rating Agency then rating the Bonds. Any resignation or removal of the Tender Agent and appointment of a successor Tender Agent shall become effective upon acceptance of appointment by the successor Tender Agent. Successor Tender Agents may be appointed from time to time by the Borrower if not objected to by any Credit Facility Provider or Liquidity Facility Provider. The Trustee shall provide notice of such successor Tender Agent to all Holders of the Bonds.
 
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B. Return of Assets . Upon the resignation or removal of a Tender Agent, such Tender Agent shall deliver any Bonds, the Liquidity Facilities (if the Tender Agent is the beneficiary thereunder) and moneys held by it in such capacity to its successor.
C. Automatic Succession . Notwithstanding any other provision to the contrary contained herein, any corporation or association into which the Tender Agent may be converted or merged, or with which it may be consolidated, or to which it may be consolidated, or to which it may sell or transfer its marketing business and assets as a whole or substantially as a whole, shall become successor Tender Agent hereunder and fully vested with all of the rights, powers, trusts, duties and obligations of Tender Agent hereunder, without the execution or filing of any instrument or any further act.
SECTION 4.17. Release of Liquidity Facilities .
The Trustee shall (or shall cause the Tender Agent to) release and return any Liquidity Facility for the Bonds of a subseries to the Liquidity Facility Provider obligated thereon (or, in the case of Clause E , consent to the assignment thereof by such Liquidity Facility Provider) on Borrower Request:
A. Defeasance : when there are no Outstanding Bonds of such subseries; or
B. Expiration or Termination : when such Liquidity Facility has expired or been terminated in accordance with its terms; or
C. Successor Trustee : when a successor Trustee has been appointed and qualified pursuant to Article VIII , and a new Liquidity Facility has been issued to such successor in substitution for such Liquidity Facility; or
D. Reduction of Amount : when the maximum aggregate credit available under such Liquidity Facility is reduced pursuant to the terms thereof and such Liquidity Facility Provider has issued a new Liquidity Facility to the Trustee or Tender Agent, whichever is then the beneficiary thereunder, in substitution therefor in the stated amount of the maximum aggregate credit available under such Liquidity Facility as so reduced but otherwise identical to the Liquidity Facility to be released; or
E. Replacement : at the close of business on a day when the Trustee has received and there is in effect a substitute Liquidity Facility for the Bonds of such subseries in substitution for such Liquidity Facility (or an assignment of such Liquidity Facility by such Liquidity Facility Provider) issued to and accepted by the Trustee or the Tender Agent upon Borrower Order in accordance with Section 4.18 not less than 5 Business Days (or such shorter period acceptable to the Trustee) prior to the date by which the Tender Agent must give notice to Bondholders pursuant to Section 4.10A of the resulting mandatory tender of such Bonds for purchase pursuant to such Section, if (1) such day is a Business Day for such Bonds and, if any such Bonds are in a Commercial Paper Mode, Term Rate Mode, Term Indexed Mode, R-FLOATs Mode, Stepped Coupon Mode, or Fixed Rate Mode, such day is also the first Business Day for such Bonds in an Interest Period for each such Bond in each such Interest Mode or a Business Day on which such Bonds may be redeemed at a redemption price equal to 100% of principal amount plus accrued interest, if any, and (2) the Purchase Price of all Bonds of such subseries tendered or deemed tendered for purchase in respect of such release or assignment pursuant to Section 4.10A has been paid or duly provided for; or
 
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F. Optional Release : at the close of business on a day at least 5 Business Days (or such shorter period acceptable to the Trustee), plus the minimum number of days’ notice which the Tender Agent must give to Bondholders pursuant to Section 4.10A of the resulting mandatory tender of such Bonds for purchase pursuant to such Section, after the Borrower, by Borrower Request, shall have provided that such Liquidity Facility shall then be released, if (1) such day is a Business Day for such Bonds and, if any such Bonds are in a Commercial Paper Mode, Term Rate Mode, Term Indexed Mode, R-FLOATs Mode, Stepped Coupon Mode, or Fixed Rate Mode, such day is also the first Business Day for such Bonds in an Interest Period for each such Bond in each such Interest Mode or a day on which such Bonds or portions thereof may be redeemed at the option of the Borrower at a redemption price equal to 100% of principal amount plus accrued interest, if any, and (2) the Purchase Price of all Bonds of such subseries tendered or deemed tendered for purchase in respect of such release pursuant to Section 4.10A has been paid or duly provided for;
and not otherwise; provided that, if such Liquidity Facility Provider is also a Credit Facility Provider for the Bonds of such subseries, no such release to such Person shall be effected by the Trustee pursuant to Clause E or F of this Section unless the Credit Facility for such Bonds shall then be released to such Person pursuant to Section 5.08 or such Person consents in writing to such release of such Liquidity Facility, and, if such Liquidity Facility Provider is not also the Credit Facility Provider for such Bonds, no such release or assignment shall be effected by the Trustee pursuant to Clause E or F unless the Credit Facility Provider for the Bonds of such subseries consents in writing to such release or assignment of such Liquidity Facility; and provided further that no Liquidity Facility shall be released without the written consent of the Liquidity Facility Provider obligated thereon unless all obligations due and owing to such Liquidity Facility Provider pursuant to such Liquidity Facility or its Reimbursement Agreement have been paid in full. The Tender Agent shall give notice, pursuant to Section 4.10 , of the mandatory tender of Bonds of the applicable subseries prior to the date of any release pursuant to Clause B , E , or F of this Section.
SECTION 4.18. Acceptance of and Amendments to Liquidity Facilities .
Each Liquidity Facility accepted by the Trustee (or by the Tender Agent with the written consent of the Trustee) for the Bonds of a subseries, and each extension, assignment, or amendment of a Liquidity Facility for the Bonds of a subseries then in effect,
A. Stated Amount : shall provide for payments, draws, or claims sufficient to pay a Purchase Price for such Bonds up to the Required Stated Amount thereof, and
B. Approval : shall be consented to (as to both form and the identity of the provider) in writing by the Credit Facility Provider for the Bonds of such subseries if a Credit Facility for such Bonds is then in effect and is not then to be released.
The Trustee shall (or shall cause the Tender Agent to) accept a Liquidity Facility for the Bonds of a subseries or an extension or amendment thereof, or approve an assignment thereof by the Liquidity Facility Provider obligated thereon, upon Borrower Order, but only (except in the case of an extension without amendment) upon receipt, by the Trustee and by any Credit Facility Provider for the Bonds of such subseries which is not obligated on such alternate, confirming, extending, amending, or assigned Liquidity Facility, of a Favorable Opinion of Bond Counsel and an Opinion of Counsel stating that (1) such Liquidity Facility, extension, or amendment was issued or assignment
 
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was made in accordance with the conditions of this Section and (2) such Liquidity Facility as extended, amended, or assigned constitutes a legal, valid, and binding obligation of the obligor thereon and is enforceable in accordance with its terms ( except to the extent that the enforceability thereof may be limited by bankruptcy, insolvency, reorganization, moratorium, or other laws for the relief of debtors other than the Issuer and the Borrower and by general principles of equity which permit the exercise of judicial discretion). The Trustee shall not be required to accept or cause to be accepted any such Liquidity Facility, extension, or amendment which materially adversely affects the rights, duties, and immunities of the Trustee or its agents or the Tender Agent hereunder.
*                *                 *
 
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ARTICLE V
REVENUES; FUNDS AND ACCOUNTS;
PAYMENT OF PRINCIPAL AND INTEREST
SECTION 5.01. Pledge and Assignment.
A. Pledge . Subject only to the provisions of this Bond Indenture permitting the application thereof for the purposes and on the terms and conditions set forth herein, all of the Revenues and all right, title and interest of the Issuer in and to any other amounts (including proceeds of the sale of Bonds) held in any fund or account established pursuant to this Bond Indenture (other than the Purchase Fund and the Rebate Fund) and in and to all security (if any) and guarantees (if any) for payment of the Loan Payments are hereby pledged to secure the payment of the principal of and premium, if any, and interest on the Bonds in accordance with their terms and the provisions of this Bond Indenture. Said pledge shall constitute a lien on and security interest in such assets and shall attach, be perfected and be valid and binding from and after delivery by the Trustee of the Bonds, without any physical delivery thereof or further act.
B. Assignment . The Issuer hereby transfers in trust, grants a security interest in and assigns to the Trustee, for the benefit of the Holders from time to time of the Bonds, all of the Revenues and other assets pledged in Subsection A of this Section and all of the right, title and interest of the Issuer in the Loan Agreement (except for (i) the right to receive any Additional Payments to the extent payable to the Issuer under the Loan Agreement, (ii) any rights of the Issuer to indemnification and rights of inspection and consent, and (iii) the obligation of the Borrower to make deposits pursuant to the Tax Certificate and Agreement). The Trustee shall be entitled to and shall collect and receive all of the Revenues, and any Revenues collected or received by the Issuer shall be deemed to be held, and to have been collected or received, by the Issuer as the agent of the Trustee and shall forthwith be paid by the Issuer to the Trustee. Subject to the provisions of Section 7.06 with respect to the control of remedial proceedings by the Credit Facility Providers (if any), the Trustee also shall be entitled to and shall take all steps, actions and proceedings reasonably necessary in its judgment to enforce, either jointly with the Issuer or separately, all of the rights of the Issuer that have been assigned to the Trustee and all of the obligations of the Borrower under the Loan Agreement other than for those items excepted in the parenthetical contained in the first sentence of this subsection. All Revenues deposited with the Trustee shall be held, disbursed, allocated and applied by the Trustee only as provided in this Bond Indenture.
C. Notice of Deficiency . If the Trustee has not received the full amount of any Loan Payment by the time the Borrower is required to make the same pursuant to the Loan Agreement, the Trustee shall immediately notify the Borrower, the Liquidity Facility Providers (if any) and the Credit Facility Providers (if any) of such insufficiency by Electronic Means and confirm such notification as soon as possible thereafter by written notice.
SECTION 5.02. Interest Fund.
A. Established in Trust . The Trustee shall establish, maintain and hold in trust a separate fund designated as the “ Interest Fund .” Moneys in the Interest Fund shall be held, disbursed, allocated and applied by the Trustee only as provided in this Bond Indenture.
 
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B. Deposits . The Trustee shall deposit the following Revenues in the Interest Fund when and as such Revenues are received:
(1) Loan Interest Payments : the interest component of all Loan Payments, including the interest component of all cash prepayments of Loan Payments made as a result of the redemption of Bonds;
(2) Investment Earnings : all interest, profits and other income received from the investment of moneys in the Interest Fund; and
(3) Miscellaneous Revenues : any other Revenues not required to be deposited in any other fund or account established pursuant to this Bond Indenture.
C. Applications . All amounts in the Interest Fund shall be used and withdrawn by the Trustee solely for the purpose of paying the interest on the Bonds as the same becomes due and payable (including accrued interest on any Bonds purchased or redeemed prior to maturity pursuant to this Bond Indenture), or to reimburse the Credit Facility Providers (if any) with respect to drawings under the Credit Facilities (if any) for such purposes. So long as a Credit Facility for the Bonds of any subseries is in effect and has been drawn upon to provide sufficient funds to pay in full an interest payment on such Bonds (if Eligible Bonds or Liquidity Facility Bonds not owned by or pledged to the Credit Facility Provider obligated on such Credit Facility) when due as required herein, the Trustee shall (1) apply the amounts so drawn (rather than money in the Interest Fund) to pay interest on such Bonds and (2) use moneys in the Interest Fund deposited by the Borrower to reimburse the applicable Credit Facility Provider for such drawing in such manner as to provide for receipt by such Credit Facility Provider on the same Business Day as the draw is funded.
SECTION 5.03. Principal Fund.
A. Established in Trust . The Trustee shall establish, maintain and hold in trust a separate fund designated as the “ Principal Fund .” Moneys in the Principal Fund shall be held, disbursed, allocated and applied by the Trustee only as provided in this Bond Indenture.
B. Deposits . The Trustee shall deposit the following Revenues in the Principal Fund when and as such Revenues are received:
(1) Loan Principal Payments : the principal component of all Loan Payments, but excluding the principal component of all cash prepayments of Loan Payments made as a result of the redemption of Bonds at the option of the Borrower, which shall be deposited in the Redemption Fund; and
(2) Investment Earnings : all interest, profits and other income received from the investment of moneys in the Principal Fund.
C. Application Generally. All amounts in the Principal Fund shall be used and withdrawn by the Trustee solely to redeem the Bonds pursuant to Section 4.01F , or pay the Bonds at maturity, as provided herein, or to reimburse the Credit Facility Providers (if any) with respect to drawings under the Credit Facility for such purposes. So long as a Credit Facility for the Bonds of any subseries is in effect and has been drawn upon to provide sufficient funds to pay a principal payment due on such Bonds (if Eligible Bonds or Liquidity Facility Bonds not owned by or pledged to the Credit Facility Provider obligated on such Credit Facility) when due as required herein, the Trustee shall (1) apply the amounts so drawn (rather than money in the Principal Fund) to pay the principal or redemption price of such Bonds and (2) use moneys in the Principal Fund deposited by the Borrower to reimburse such Credit Facility Provider for such drawing in such manner as to provide for receipt by such Credit Facility Provider on the same Business Day as the draw is funded.
 
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D. Purchases of Bonds . On each Mandatory Sinking Account Payment date, the Trustee shall apply the Mandatory Sinking Account Payment required to be made on that date in respect of the Bonds of any subseries and maturity to the redemption of such Bonds pursuant to Section 4.01F (or payment thereof at maturity, as the case may be), in the amounts and upon the notice and in the manner provided in Article IV ; provided that, at any time prior to giving such notice of such redemption, the Trustee shall, upon direction of the Borrower, apply such moneys to the purchase of Bonds at public or private sale, as and when and at such prices (including brokerage and other charges, but excluding accrued interest, which is payable from the Interest Fund) as the Borrower may direct, except that the purchase price (excluding accrued interest) shall not exceed 100% of the principal amount of such Bonds. If, during the 12-month period immediately preceding said Mandatory Sinking Account Payment date, the Trustee has purchased Bonds of such subseries and maturity with moneys in the Principal Fund, or, during said period and prior to giving said notice of redemption, the Borrower has deposited such Bonds with the Trustee, or such Bonds were at any time purchased or redeemed by the Trustee from the Redemption Fund and allocable to said Mandatory Sinking Account Payment, such Bonds so purchased, deposited or redeemed shall be applied, to the extent of the full principal amount thereof, to reduce said Mandatory Sinking Account Payment. All Bonds purchased or deposited pursuant to this subsection shall be cancelled and destroyed by the Trustee upon the Order of the Borrower. All Bonds of any subseries and maturity purchased from the Principal Fund or deposited by the Borrower with the Trustee shall be allocated first to the next succeeding Mandatory Sinking Account Payment for such Bonds, then to the remaining Mandatory Sinking Account Payments for such Bonds, unless otherwise provided by Borrower Order.
SECTION 5.04. Redemption Fund.
A. Established in Trust . The Trustee shall establish, maintain and hold in trust a separate fund designated as the “ Redemption Fund. ”
B. Deposits . The Trustee shall deposit the following Revenues in the Redemption Fund when and as such Revenues are received:
(1) Loan Prepayments : the principal component of all cash prepayments of Loan Payments made on account of the redemption of Bonds at the option of the Borrower; and
(2) Investment Earnings : all interest, profits and other income received from the investment of moneys in the Redemption Fund.
C. Application . All amounts deposited in the Redemption Fund shall be used and withdrawn by the Trustee solely for the purpose of redeeming Bonds other than pursuant to Section 4.10F , in the manner and upon the terms and conditions specified in Article IV , at the next succeeding date of redemption for which notice has not been given and at the Redemption Prices then applicable to such redemptions, or to reimburse the Credit Facility Providers (if any) with respect to drawings under the Credit Facilities for such purpose.
SECTION 5.05. Investment of Moneys.
All moneys in any of the funds and accounts established pursuant to this Bond Indenture shall be invested by the Trustee (other than amounts deposited in the Purchase Fund and Credit Facility Fund, which proceeds shall remain uninvested), upon the written direction of the Borrower given at least two days prior to the investment date, solely in Investment Securities. Investment Securities shall be purchased at such prices as the Borrower may direct. All directions of
 
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the Borrower to invest in Investment Securities shall be made subject to the limitations set forth in Section 6.06 , the limitations as to maturities hereinafter in this Section set forth and such additional limitations or requirements consistent with the foregoing as may be established by Request of the Borrower. No Request of the Borrower shall impose any duty on the Trustee inconsistent with its fiduciary responsibilities. In the absence of directions from the Borrower, the Trustee shall invest in Fidelity Institutional Money Market Fund – Prime Money Market Portfolio or in any other Investment Securities specified in Clause (8)  of the definition thereof in Exhibit B specified by the Borrower in writing.
Moneys in all funds and accounts shall be invested in Investment Securities maturing not later than the date on which it is estimated that such moneys will be required for the purposes specified in this Bond Indenture. Investment Securities purchased under a repurchase agreement may be deemed to mature on the date or dates on which the Trustee may deliver such Investment Securities for repurchase under such agreement.
All interest, profits and other income received from the investment of moneys in any fund or account established pursuant to this Bond Indenture shall be deposited when received in such fund or account. Notwithstanding anything to the contrary contained in this paragraph, an amount of interest received with respect to any Investment Security equal to the amount of accrued interest, if any, paid as part of the purchase price of such Investment Security shall be credited to the fund or account for the credit of which such Investment Security was acquired.
Moneys held in the Redemption Fund for the redemption of Bonds shall be invested solely in Investment Securities specified in Clause (1)  or (8)  of the definition thereof in Exhibit B , maturing in such amounts and at such times as are required for such redemption. If the Borrower causes moneys to be deposited with the Trustee as a prepayment of Loan Payments under the Loan Agreement, until such moneys are paid to Bondholders or the Credit Facility Providers (if any), such moneys shall be invested solely in Investment Securities specified in Clause (1)  or (8)  of the definition thereof in Exhibit B .
Investment Securities acquired as an investment of moneys in any fund or account established under this Bond Indenture shall be credited to such fund or account. For the purpose of determining the amount in any such fund or account, all Investment Securities credited to such fund or account shall be valued at the lower of cost (exclusive of accrued interest after the first payment of interest following acquisition) or par value (plus, prior to the first payment of interest following acquisition, the amount of interest paid as part of the purchase price).
The Trustee may commingle any of the funds or accounts established pursuant to this Bond Indenture (other than the Credit Facility Fund, the Rebate Fund and the Purchase Fund) into a separate fund or funds for investment purposes only, provided that all funds or accounts held by the Trustee hereunder shall be accounted for separately as required by this Bond Indenture. The Trustee may act as principal or agent in the making or disposing of any investment. The Trustee may sell at the best price obtainable, or present for redemption, any Investment Securities so purchased whenever it shall be necessary to provide moneys to meet any required payment, transfer, withdrawal or disbursement from the fund or account to which such Investment Security is credited, and, subject to the provisions of Section 8.03 , the Trustee shall not be liable or responsible for any loss resulting from any investment made in accordance with provisions of this Section. Any Investment Securities that are registrable securities shall be registered in the name of the Trustee.
 
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The Trustee is hereby authorized, in making or disposing of any investment permitted by this Section, to deal with itself (in its individual capacity) or with any one or more of its affiliates, whether it or such affiliate is acting as an agent of the Trustee or for any third person or dealing as principal for its own account.
SECTION 5.06. Rebate Fund.
A. Established in Trust; Duties of Trustee . The Trustee shall establish, maintain and hold in trust a separate fund designated as the “ Rebate Fund .” Within the Rebate Fund, the Trustee shall maintain such accounts as shall be specified in writing by the Borrower in order to comply with the Tax Certificate and Agreement. Subject to the transfer provisions provided in Subsection E of this Section, all money at any time deposited in the Rebate Fund shall be held by the Trustee in trust for payment to the federal government of the United States of America the amounts elected or required to be transferred or paid by the Borrower for such purpose pursuant to Section 5.07G of the Loan Agreement. Neither the Issuer nor the Borrower nor the Bondholders shall have any rights in or claim to such money. All amounts deposited into or on deposit in the Rebate Fund shall be governed by this Section, by Section 6.06 and by the Tax Certificate and Agreement (which is incorporated herein by reference). The Trustee shall be deemed conclusively to have complied with such provisions if it follows the written directions of the Borrower, including the Borrower’s supplying all necessary information in the manner provided in the Tax Certificate and Agreement, and shall have no liability or responsibility to enforce compliance by the Borrower or the Issuer with the terms of the Tax Certificate and Agreement.
B. Rebate Fund . Upon the Borrower’s written direction, an amount shall be deposited to the Rebate Fund by the Trustee from deposits by the Borrower, if and to the extent required, so that the balance in the Rebate Fund shall equal the Rebate Amount. Computations of the Rebate Amount shall be furnished by or on behalf of the Borrower in accordance with the Tax Certificate and Agreement.
C. Limited Recourse Against Trustee . The Trustee shall have no obligation to rebate any amounts required to be rebated pursuant to this Section, other than from moneys held in the Rebate Fund or provided to it by the Borrower.
D. Investment . At the written direction of the Borrower, the Trustee shall invest all amounts held in the Rebate Fund in Investment Securities, subject to the restrictions set forth in the Tax Certificate and Agreement. The Trustee shall not be liable for any consequences arising from such investment. Money shall not be transferred from the Rebate Fund except as provided in Subsection E of this Section.
E. Payment to U.S. Treasury . Upon receipt of the Borrower’s written directions, the Trustee shall remit part or all of the balances in the Rebate Fund to the United States of America, as so directed. In addition, if the Borrower so directs, the Trustee will deposit money into or transfer money out of the Rebate Fund from or into such accounts or funds as directed by the Borrower’s written directions. Any funds remaining in the Rebate Fund after redemption and payment of all of the Bonds and payment and satisfaction of any Rebate Amount, or provision made therefor satisfactory to the Trustee, and payment of any amount then owed to the Trustee, shall be withdrawn and remitted to the Borrower.
F. Survival of Obligations . Notwithstanding any other provision of this Bond Indenture, including in particular Article X , the obligation to remit the Rebate Amounts to the United States of America and to comply with all other requirements of this Section, Section 6.06 and the Tax Certificate and Agreement shall survive the defeasance or payment in full of the Bonds.
 
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SECTION 5.07. Draws or Claims Under Credit Facilities .
A. Trustee to Draw or Claim Under Credit Facility . Whenever a Credit Facility for the Bonds of a subseries is in effect hereunder, the Trustee shall claim or draw money thereunder as follows:
(1) Principal, Premium and Interest . The Trustee shall present all notices, drafts, demands, claims, and other documents required by such Credit Facility (in the manner and to the extent therein permitted and by the time required thereby) prior to the applicable Draw Deadline to draw or claim funds thereunder in an amount sufficient, and by the Bank Settlement Deadline (to the extent therein permitted), to pay the principal of (and premium, if any) and interest on ( but not the Purchase Price of) such Bonds when due (whether by reason of the Maturity Date, call for redemption, or declaration of acceleration thereof or of an Interest Payment Date therefor), but in every case only in respect of Eligible Bonds and (if the Liquidity Facility Provider (if any) for such Bonds is not a Credit Facility Provider for such Bonds) Liquidity Facility Bonds.
(2) Recoverable Payments . If (a) any Substitute Credit Facility for the Bonds of such subseries accepted by the Trustee pursuant to Section 5.09 and in effect hereunder at the time of any payment of principal of (or premium, if any) or interest on any Bond may not be drawn or made claim upon to make such payment in respect of Eligible Bonds and (if the Liquidity Facility Providers (if any) for such Bonds are not also the Credit Facility Provider(s) for such Bonds) Liquidity Facility Bonds of such subseries except to the extent of insufficient money in the Interest Fund, Principal Fund, or Redemption Fund, (b) such payment is made from money other than Available Money or funds advanced under such Credit Facility, and (c) prior to, on, or within 123 days after the date of such payment a petition for relief in respect of the Borrower or the Issuer, as debtor, is filed under the Bankruptcy Code, then (i) if a court of competent jurisdiction thereafter enters an order or decree that (A) is unappealable or as to which the time to appeal therefrom has expired with no appeal therefrom having been taken and (B) finds such payment to be a voidable transfer under section 544, 547, 548, or 549 (either directly or by application of section 550) of the Bankruptcy Code, or under any similar state or federal law regarding creditors’ rights, insolvency, or fraudulent conveyance, the Trustee shall, promptly after being notified of such order or decree, present all notices, drafts, demands, claims, and other documents required by such Credit Facility (in the manner and to the extent therein permitted and by the time required thereby) to draw or claim funds thereunder sufficient to pay or reimburse the Bondholders for the amount of such payment so held to be voidable and shall promptly apply such funds for such purpose and (ii) if such Credit Facility is to expire prior to the dismissal of the proceeding commenced by such petition and prior to the entry of any such decree or order, the Trustee shall, on the fifth day prior to expiration thereof, present all notices, drafts, demands, claims, and other documents (in the manner and to the extent therein permitted and by the time required thereby) to draw or claim funds thereunder sufficient to establish a reserve for the payment of any such voided transfer in an amount equal to the entire sum of such payment and, upon the entry of any order or decree described in Clause (i) , apply such reserve for the purpose therein described to the extent such payment is voided and shall remit the balance (and the entire reserve if such proceeding is dismissed without the entry of such an order or decree) to the Credit Facility Provider obligated thereon.
 
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B. Application of Funds . All funds drawn or claimed under any Credit Facility (other than a Credit Facility in the form of a policy of financial guaranty or municipal bond insurance) by the Trustee shall be credited to the applicable account of the Credit Facility Fund and applied in accordance with Section5.10 .
C. Agency . In making draws or claims for payment under the Credit Facility for the Bonds of a subseries, the Trustee shall act on behalf and for the account and benefit of the Holders of the Bonds of such subseries, and not on behalf, for the account or benefit, or subject to the control of the Issuer or the Borrower.
SECTION 5.08. Release of Credit Facilities .
The Trustee shall release and return the Credit Facility for the Bonds of a subseries to the Credit Facility Provider obligated thereon (or, in the case of Clause E , consent to the assignment thereof by such Credit Facility Provider) on Borrower Request:
A. Defeasance : when there are no Outstanding Bonds of such subseries, provided that such Credit Facility provides for its release and return upon defeasance by its terms; or
B. Expiration or Termination : when such Credit Facility has expired or been terminated in accordance with its terms; or
C. Successor Trustee : when a successor Trustee has been appointed and qualified pursuant to Article VIII , and a new Credit Facility for the Bonds of such series has been issued to such successor in substitution for such Credit Facility; or
D. Reduction of Amount : when the maximum aggregate credit available under such Credit Facility is reduced pursuant to the terms thereof and such Credit Facility Provider has issued a new Credit Facility to the Trustee in substitution for such Credit Facility in the stated amount of the maximum aggregate credit available under such Credit Facility as so reduced but otherwise identical to the Credit Facility to be released; or
E. Replacement : at the close of business on a day when there is in effect a Substitute Credit Facility for the Bonds of such subseries in substitution for such Credit Facility (or an assignment of such Credit Facility) issued to and accepted by the Trustee upon Borrower Order given in accordance with Section 5.09 not less than five Business Days (or such shorter period acceptable to the Trustee) for the Bonds of such subseries prior to the date by which the Trustee must give notice to Bondholders pursuant to Section 4.10A of the resulting mandatory tender of Bonds of such subseries for purchase pursuant to such Section, if (1) such day is a Business Day for the Bonds of such subseries and, if any Bonds of such subseries are in a Commercial Paper Mode, Term Rate Mode, R-FLOATs Mode, Indexed Mode, Stepped Coupon Mode, or Fixed Rate Mode, such day is also the first Business Day therefor in an Interest Period for each such Bond or part thereof in each such Mode or a Business Day on which such Bonds may be redeemed at a redemption price equal to 100% of principal amount plus accrued interest, if any, and (2) the Purchase Price of all Bonds of such subseries tendered or deemed tendered for purchase in respect of such release or assignment pursuant to Section 4.10A has been paid or duly provided for from proceeds of remarketing or money drawn under the Credit Facility to be replaced; or
 
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F. Optional Release : at the close of business on a day at least five Business Days (or such shorter period acceptable to the Trustee) for the Bonds of such subseries, plus the minimum number of days’ notice which the Trustee must give to Bondholders pursuant to Section 4.10A of the resulting mandatory tender of Bonds of such subseries for purchase pursuant to such Section, after the Borrower, by Borrower Request, shall have provided that such Credit Facility shall then be released, if (1) such day is a Business Day for the Bonds of such subseries and, if any such Bonds are in a Commercial Paper Mode, Term Rate Mode, R-FLOATs Mode, Indexed Mode, Stepped Coupon Mode, or Fixed Rate Mode, such day is also the first Business Day therefor in an Interest Period for each such Bond or part thereof in each such Mode or a day on which such Bonds may be redeemed at the option of the Borrower at a redemption price equal to 100% of principal amount plus accrued interest, if any, and (2) the Purchase Price of all Bonds of such subseries tendered or deemed tendered for purchase in respect of such release pursuant to Section 4.10A has been paid or duly provided for;
and not otherwise; provided , however , that, if such Credit Facility Provider is also a Liquidity Facility Provider for the Bonds of such subseries, no such release to such Person shall be effected by the Trustee pursuant to Clause E or F unless the Liquidity Facility for such Bonds shall also be released to such Person pursuant to Section 4.17 or such Person consents in writing to such release or assignment of such Credit Facility, and, if such Credit Facility Provider is not also the Liquidity Facility Provider for the Bonds of such subseries, no such release or assignment shall be effected by the Trustee pursuant to Clause E or F unless such Liquidity Facility Provider (if any) consents in writing to such release or assignment of such Credit Facility; and provided further that no Credit Facility shall be released without the written consent of the Credit Facility Provider obligated thereon unless all obligations due and owing to such Credit Facility Provider pursuant to such Credit Facility or its Reimbursement Agreement have been paid in full.
The Trustee shall give notice, pursuant to Section 4.10A , of the mandatory tender of Bonds of the applicable subseries, prior to the date of any release pursuant to Clause B , E , or F of this Section.
SECTION 5.09. Acceptance of and Amendments to Credit Facility .
Each Credit Facility for the Bonds of a subseries accepted by the Trustee in substitution for a Credit Facility then in effect and each extension, amendment or assignment of any Credit Facility for the Bonds of a subseries then in effect,
A. Stated Amount : shall provide for draws or claims sufficient to pay the principal of and interest on the Bonds of such subseries when due up to the Required Stated Amount therefor, and
B. Approval : shall be consented to in writing by the Liquidity Facility Provider for the Bonds of such subseries if a Liquidity Facility is then in effect for such Bonds and not then to be released.
The Trustee shall accept a Credit Facility for the Bonds of a subseries, or an extension, modification, or amendment of the Credit Facility for the Bonds of a subseries, or approve an assignment thereof by the Credit Facility Provider obligated thereon, upon Borrower Order with the written consent of the Liquidity Facility Provider (if any) for the Bonds of such subseries, but only (except in the case of an extension without amendment) upon receipt by the Trustee and by any Liquidity Facility Provider for the Bonds of such subseries which is not obligated on such alternate, extending, modifying, amending, or assigned Credit Facility of a Favorable Opinion of Bond Counsel and an Opinion of Counsel stating that (1) such Credit Facility, extension, modification, or amendment was issued or assignment was made in accordance with the conditions of this Section and (2) such
 
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Credit Facility, as amended, modified, extended, or assigned, constitutes a legal, valid, and binding obligation of the obligor thereon and is enforceable in accordance with its terms ( except to the extent that the enforceability thereof may be limited by bankruptcy, insolvency, reorganization, moratorium, or other laws for the relief of debtors other than the Issuer or the Borrower and by general principles of equity which permit the exercise of judicial discretion). The Trustee shall not be required to accept (or cause to be accepted) any Credit Facility, extension, or amendment or to consent to any assignment thereof which materially adversely affects the rights, duties, or immunities of the Trustee or its agents or the Tender Agent hereunder.
SECTION 5.10. Credit Facility Fund .
A. Creation in Trust . The Trustee shall establish and maintain at all times while a Credit Facility (other than a Credit Facility in the form of municipal bond or financial guaranty insurance) is in effect hereunder, for the account of the Holders of Bonds for the payment of principal of and interest on which money in such Fund may be applied hereunder, a special fund designated as the “ Credit Facility Fund ” ) and, within such fund, a separate account in respect of the Bonds of each subseries, if any. The money deposited to any account or subaccount of the Credit Facility Fund, together with all investments thereof and investment income therefrom, shall be held in trust separate and apart from all other funds held hereunder and applied solely as provided in this Section and Section 5.07A(2) .
B. Deposits. The Trustee shall deposit to the credit of the applicable account of the Credit Facility Fund immediately upon receipt all amounts drawn or claimed by the Trustee under a Credit Facility (other than a Credit Facility in the form of financial guaranty or municipal bond insurance) pursuant to Section 5.07 . No other funds shall be deposited to the Credit Facility Fund.
C. Application. The Trustee shall apply the money in the applicable account of the Credit Facility Fund:
(1) Bond Payments : to set aside on each Maturity Date for Bonds, each date for the redemption of Bonds pursuant to Section 4.01 , each date on which the principal of and accrued interest on the Bonds has been declared to be due and payable immediately pursuant to Section 7.02 , and each Interest Payment Date for Bonds, while a Credit Facility for such Bonds is in effect hereunder, (and, if the Securities Depository is the Holder of such Bonds, transfer to it by the DTC Settlement Deadline) an amount sufficient to pay the principal of and premium, if any, and interest on such Bonds then due, and
(2) Turnover Order : in the case of amounts drawn or claimed pursuant to Section 5.07A(2) , in accordance with the provisions of such Section,
provided that no such application shall be made on Bonds of a subseries other than Eligible Bonds and Liquidity Facility Bonds, if the Liquidity Facility Provider (if any) for such Bonds is not also the Credit Facility Provider for such Bonds.
SECTION 5.11. Security for Deposits .
All money held by the Trustee or the Tender Agent hereunder in excess of the amount guaranteed by the Federal Deposit Insurance Corporation or other federal agency shall, unless the unsecured general obligations of such Person are rated in either of the two highest rating categories (without regard to subcategories) by each Rating Service, be continuously secured by the Trustee, for the benefit of the owners of such money, the Bondholders, and the Credit Facility Providers in any
 
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manner as may then be required or permitted by applicable state or federal laws and regulations regarding the security for, or granting a preference in the case of, the deposit of trust funds; provided, however , that it shall not be necessary for any such Person to give such security for the deposit with it of any money to be used to pay principal, premium, if any, or interest which is at the time of such deposit due and payable with respect to any Bonds, or for the Trustee to give security for any money which shall be represented by obligations purchased under the provisions of Section 5.05 as an investment of such money. Any banking account (other than an Investment Security) to which money credited to the Interest Fund, the Principal Fund, the Redemption Fund, the Credit Facility Fund, or the Purchase Fund is credited shall be maintained (1) in the name of the Trustee and (2) with a federal or state-chartered depository institution or trust company that has an S&P short-term debt rating of at least “A-2” or, if no short-term debt rating, a long-term debt rating of “BBB+”. In the event that any such account no longer satisfies Clause (2)  of the preceding sentence, the Trustee shall promptly (and, in any case within not more than 60 calendar days) move the balance of such account to another account with another financial institution that satisfies such Clause (2) .
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ARTICLE VI
PARTICULAR COVENANTS
SECTION 6.01. Punctual Payment.
The Issuer shall punctually cause to be paid the principal of, Redemption Price, if any, and interest on the Bonds, in strict conformity with the terms of the Bonds and of this Bond Indenture, according to the true intent and meaning thereof, but only out of Revenues and other assets pledged for such payment as provided in this Bond Indenture.
SECTION 6.02. Extension of Payment of Bonds.
The Issuer shall not directly or indirectly extend or assent to the extension of the maturity of any of the Bonds or the time of payment of any claims for interest by the purchase or funding of such Bonds or claims for interest or by any other arrangement and in case the maturity of any of the Bonds or the time of payment of any such claims for interest shall be extended, such Bonds or claims for interest shall not be entitled, in case of any default hereunder, to the benefits of this Bond Indenture, except subject to the prior payment in full of the principal of all of the Bonds then Outstanding and of all claims for interest thereon that shall not have been so extended. Nothing in this Section shall be deemed to limit the right of the Issuer to issue bonds for the purpose of refunding any Outstanding Bonds, and such issuance shall not be deemed to constitute an extension of maturity of Bonds.
SECTION 6.03. Against Encumbrances.
The Issuer shall not create, or permit the creation of, any pledge, lien, charge or other encumbrance upon the Revenues and other assets pledged or assigned under this Bond Indenture while any of the Bonds are Outstanding, except the pledge and assignment created by this Bond Indenture. Subject to this limitation, the Issuer expressly reserves the right to enter into one or more other indentures for any of its corporate purposes, including other programs under the Act, and reserves the right to issue other obligations for such purposes.
SECTION 6.04. Power to Issue Bonds and Make Pledge and Assignment.
The Issuer is duly authorized pursuant to law to issue the Bonds and to enter into this Bond Indenture and to pledge and assign the Revenues and other assets purported to be pledged and assigned, respectively, under this Bond Indenture in the manner and to the extent provided in this Bond Indenture. The Issuer and Trustee shall at all times, to the extent permitted by law, defend, preserve and protect said pledge and assignment of Revenues and other assets and all the rights of the Bondholders under this Bond Indenture against all claims and demands of all Persons whomsoever.
SECTION 6.05. Accounting Records and Financial Statements.
A. Trustee Accounts . The Trustee shall at all times keep, or cause to be kept, proper books of record and account, prepared in accordance with the Trustee’s accounting practices for books of record and account relating to similar trust accounts, in which complete and accurate entries shall be made of all transactions relating to the proceeds of Bonds, the Revenues, the Loan Agreement and all funds and accounts established pursuant to this Bond Indenture. Such books of record and account shall be available for inspection by the Issuer, the Borrower, the Liquidity Facility Providers (if any), the Credit Facility Providers (if any), the Remarketing Agents (if any), and any Bondholder, or his agent or representative duly authorized in writing, at reasonable hours and under reasonable circumstances.
 
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B. Reports . The Trustee shall file and furnish on or before the 15th day of each month to the Borrower (and to the Issuer, the Credit Facility Providers (if any), the Liquidity Facility Providers (if any), the Remarketing Agents (if any) and each Bondholder who shall have filed his or her name and address with the Trustee for such purpose, if requested by such Person) a complete financial statement (which need not be audited) covering receipts, disbursements, allocation and application of Revenues and any other moneys (including proceeds of Bonds) in any of the funds and accounts established pursuant to this Bond Indenture for the immediately preceding month; that the Trustee shall not be required to deliver an accounting for any fund or account that (1) has a balance of $0.00 and (2) has not had any activity since the last reporting date. To the extent that any regulation of the Comptroller of the Currency or other applicable regulatory agency grants to the Issuer or Borrower the right to receive brokerage confirmations of security transactions as they occur, the Issuer waives (and by approving this Bond Indenture the Borrower waives) receipt of such confirmations. The Trustee shall furnish to the Borrower a monthly statement that includes details of all investment transactions made by the Trustee.
SECTION 6.06. Tax Covenants.
A. General. The Issuer shall not knowingly take any action, or omit to take any action within its control, which, if taken or omitted, respectively, would cause the interest on any Common Issue Bond to become includable in the gross income, as defined in section 61 of the Code, of the owners thereof for federal income tax purposes (except during any period when such Common Issue Bond is owned by a “substantial user” of a Project or a “related person” within the meaning of section 147(a) of the Code), and, without limiting the generality of the foregoing, the Issuer will observe and perform each provision of this Section, unless and until a Favorable Opinion of Bond Counsel shall have been delivered to the Trustee. For purposes of this Section, the Issuer’s compliance shall be based solely on acts and omissions of the Issuer, and no acts, omissions, or directions of the Borrower, the Trustee, or any other Person shall be attributable to the Issuer.
B. Not to Invest at Higher Yield. The Issuer shall not direct or itself make any investment of the proceeds of the Common Issue Bonds or any other funds of the Issuer in a manner which would result in constituting any such Common Issue Bonds “ arbitrage bonds” within the meaning of section 148 of the Code or “ hedge bonds” within the meaning of section 149 of the Code.
In the event the Issuer or the Borrower is of the opinion that it is necessary to restrict or limit the yield on the investment of any money paid to or held by the Trustee hereunder in order to avoid classification of any Common Issue Bonds as “ arbitrage bonds” within the meaning of section 148 of the Code, the Issuer or the Borrower may issue to the Trustee a written instrument to such effect (along with appropriate written instructions), in which event the Trustee will comply with such instrument and instructions, irrespective of whether the Trustee shares such opinion. The Trustee may conclusively rely upon any such instructions and shall be responsible for no loss resulting from investment of any money held hereunder in accordance with such instructions.
C. Not Federally Guaranteed. The Issuer shall not direct or itself take any action, or omit to take any action within its control, which, if taken or omitted, respectively, would cause any Common Issue Bond to be “ federally guaranteed” within the meaning of section 149(b) of the Code.
 
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D. Information Report. The Issuer shall timely file (or cause to be filed) with the Secretary of the Treasury the information provided by the Borrower and required by section 149(e) of the Code with respect to the Common Issue Bonds in such form and at such place as such Secretary may prescribe.
E. Rebate of Arbitrage Profits. The Issuer shall pay to the United States of America, but solely from and to the extent of funds advanced by the Borrower for such purpose pursuant to the Loan Agreement, the amounts and at the times described in Section 5.06 , in such manner and accompanied by such forms or other information as is or may be required by section 148(f) of the Code and the Regulations and rulings thereunder. The Issuer shall execute each Internal Revenue Service Form 8038-T delivered to the Trustee by the Borrower, unless such execution is not required by the Regulations or the instructions issued by the Internal Revenue Service for such forms. The Trustee shall not be responsible for the accuracy of any such form, nor shall the Issuer be responsible for the accuracy of any such form delivered by the Borrower.
SECTION 6.07. Enforcement and Amendment of Loan Agreement.
A. Trustee to Enforce . Subject to the provisions of Section 7.06 with respect to the control of remedial proceedings by the Credit Facility Providers (if any) or the Bondholder Representative (if any), the Trustee shall promptly collect all amounts due from the Borrower pursuant to the Loan Agreement, shall perform all duties imposed upon it pursuant to the Loan Agreement and shall diligently enforce, and take all steps, actions and proceedings reasonably necessary for the enforcement of all of the rights of the Issuer assigned to it hereunder and all of the obligations of the Borrower relating thereto.
B. Limitations on Amendments . The Issuer may amend, modify or terminate any of the terms of the Loan Agreement, or consent to any such amendment, modification or termination, when the written consent of (i) the Credit Facility Providers (if any) (provided that a Credit Facility is then in effect or any amounts are owing to a Credit Facility Provider and such Credit Facility Provider is not in default under its payment obligations under a Credit Facility) or (ii) the Holders of a majority in principal amount of the Bonds then Outstanding or the Trustee (if a Credit Facility is no longer in effect or the Credit Facility Providers (if any) are then in default under their payment obligations under the Credit Facilities) and the Liquidity Facility Providers (if any) or the Bondholder Representative (if any) to such amendment, modification or termination have been filed with the Trustee. The Trustee shall give such written consent only if (1) the Trustee receives an Opinion of Counsel to the effect that such amendment, modification or termination will not materially adversely affect the interests of the Bondholders or result in any material impairment of the security hereby given for the payment of the Bonds; or (2) the Trustee first obtains the written consent of the Holders of a majority in principal amount of the Bonds then Outstanding or the Bondholder Representative (if any) to such amendment, modification or termination; or (3) even if consent of Bondholders would otherwise be required, (i) if such amendment will be effective upon the remarketing of the Bonds following the mandatory tender of the Bonds pursuant to Sections 4.07 , 4.08, 4.09 or 4.10 or (ii) with respect to Bonds in a Daily Mode, a Weekly Mode or an R-FLOATs Mode (except during any Non-Remarketing Period) only, if notice of such proposed modification or amendment is given to the Holders of such Bonds (in the same manner as notices of redemption are given) at least 15 days before the effective date thereof, and on or before such effective date, the Holders have the right to demand purchase of their Bonds pursuant to Section 4.06, provided that, on or prior to the effective date of such modification or amendment, the Trustee shall obtain a Favorable Opinion of Bond Counsel; and provided further that, in the cases described in clauses (1), (2)  or (3)  of this Subsection B , no such amendment, modification or termination shall reduce the amount of Loan Payments to be made to the Issuer or the Trustee by the Borrower pursuant to the Loan Agreement, or extend the time for making such payments, without the written consent of all of the Holders of the Bonds then Outstanding.
 
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SECTION 6.08. Waiver of Laws.
The Issuer shall not at any time insist upon or plead in any manner whatsoever, or claim or take the benefit or advantage of, any stay or extension law now or at any time hereafter in force that may affect the covenants and agreements contained in this Bond Indenture or in the Bonds, and all benefit or advantage of any such law or laws is hereby expressly waived by the Issuer to the extent permitted by law.
SECTION 6.09. Further Assurances.
The Issuer will make, execute and deliver any and all such further indentures, instruments and assurances as may be reasonably necessary or proper to carry out the intention or to facilitate the performance of this Bond Indenture and for the better assuring and confirming unto the Holders of the Bonds of the rights and benefits provided in this Bond Indenture.
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ARTICLE VII
EVENTS OF DEFAULT AND REMEDIES OF BONDHOLDERS
SECTION 7.01. Events of Default.
Any one or more of the following events shall be an Event of Default:
A . Principal Default : default in the due and punctual payment of the principal or Redemption Price of any Bond when and as the same shall become due and payable;
B. Interest Default : default in the due and punctual payment of any installment of interest on any Bond when and as the same shall become due and payable;
C. Purchase Price Default : default in the payment from any source (when the same shall become due and payable) of the Purchase Price of any of the Bonds tendered or deemed tendered for purchase pursuant to this Bond Indenture;
D. Covenant Default : default by the Issuer or the Borrower in the observance of any of the other covenants, agreements or conditions on its part contained in this Bond Indenture or the Bonds or in the Loan Agreement, respectively, if such default shall have continued for a period of 60 days after written notice thereof, specifying such default and requiring the same to be remedied, shall have been given to the Issuer or the Borrower, respectively, by the Trustee, or to the Issuer or the Borrower, respectively, and the Trustee by any Credit Facility Provider, the Bondholder Representative (if any) or the Holders of not less than a majority (if a Bondholder Agreement is in effect) and otherwise 25% in aggregate principal amount of the Bonds at the time Outstanding;
E. Credit Facility Provider Notice : receipt by the Trustee of notice from the Credit Facility Provider for the Bonds of a subseries that an Event of Default (as defined in its Reimbursement Agreement) has occurred under such Reimbursement Agreement and requesting acceleration of the Bonds of such subseries pursuant to Section 7.02 ;
F. Involuntary Bankruptcy : the filing of a petition for relief against the Issuer or the Borrower or any guarantor of the Bonds, as debtor, under the Bankruptcy Code or any other applicable federal or state law of similar import, or the entry of a decree or order by a court having jurisdiction in the premises appointing a custodian, receiver, liquidator, assignee, trustee, sequestrator, or other similar official of or for the Issuer or the Borrower, or ordering the winding up or liquidation of the affairs of the Issuer or the Borrower, and the continuance of the case commenced by such petition or any such decree or order unstayed and in effect for a period of 90 consecutive days, unless, in the case of any such action in respect of the Issuer, such decree or order has been limited so as to remove the Revenues and other property of the Issuer assigned and pledged hereunder from the control, supervision, and jurisdiction of the court entering such decree or order and of such custodian, receiver, liquidator, assignee, trustee, sequestrator, or other similar official by the end of such period;
G. Voluntary Bankruptcy : the commencement by the Issuer or the Borrower or any guarantor of the Bonds of a voluntary case under the Bankruptcy Code or any other applicable federal or state law of similar import, or the consent or acquiescence by the Issuer or the Borrower to the commencement of such a case under the Bankruptcy Code or any such law or to the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee, sequestrator, or other similar official of the Issuer or the Borrower, or the
 
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making by the Issuer or the Borrower of an assignment for the benefit of creditors, or the admission by the Issuer or the Borrower in writing of its inability to pay its debts as they become due, or the taking of corporate action by the Issuer or the Borrower in furtherance of any such action and, in the case of any such action in respect of the Issuer, a court shall not have limited such case, petition, or possession so as to remove the Revenues and the other property of the Issuer pledged and assigned hereunder from the control, supervision, and jurisdiction of such court or custodian, receiver, liquidator, assignee, trustee, sequestrator, or other similar official within 90 days after such commencement, consent, or acquiescence; or
H. Cross Default : while a Bondholder Agreement is in effect, receipt by the Trustee of notice from the Bondholder Representative or from a majority in aggregate principal amount of the Holders of the Bonds that an Event of Default (as defined in the Bondholder Agreement) has occurred and is continuing under the Bondholder Agreement and requesting acceleration of the Bonds pursuant to Section 7.02 ;
The Issuer hereby grants to the Borrower full authority for the account of the Issuer to perform any covenant or obligation alleged in any notice given pursuant to Clause D of this Section to be in default or breached, in the name and stead of the Issuer, with full power to do any and all things and acts to the same extent that the Issuer could do and perform any such things and acts and with power of substitution, subject to Section 11.01 .
SECTION 7.02. Acceleration of Maturities.
Upon an Event of Default described in Section 7.01F or 7.01G in respect of the Borrower or any guarantor of the Bonds (except when a Credit Facility is in effect hereunder), the principal of and accrued interest on the Bonds shall become automatically due and payable immediately. During the continuance of any such Event of Default at any other time or any other Event of Default described in Section 7.01 (other than Clause E or H thereof), unless the principal of all the Bonds shall have already become due and payable, the Trustee, upon the written request of the Credit Facility Provider (if any), the Bondholder Representative (if any) or the Holders of not less than a majority in aggregate principal amount (if a Bondholder Agreement is in effect) and otherwise 66-2/3% in aggregate principal amount of the Bonds at the time Outstanding of all subseries for which no Credit Facility is in effect hereunder or in respect of which the Credit Facility Provider obligated thereon is in default thereunder, or upon the occurrence of an Event of Default described in Section 7.01E or 7.01H in respect of the Bonds in any subseries (whether or not the Trustee has received indemnity), shall, promptly upon such occurrence, by notice in writing to the Issuer, the Borrower, the Bondholder Representative (if any), the Credit Facility Providers (if any) and the Liquidity Facility Providers (if any), declare the principal of all the Bonds of such subseries then Outstanding, and the interest accrued thereon, to be due and payable immediately, and upon any such declaration the same shall become and shall be immediately due and payable, anything in this Bond Indenture or in the Bonds contained to the contrary notwithstanding. Upon any such declaration in respect of the Bonds of any subseries the Trustee shall promptly draw upon any then existing Credit Facility for such Bonds in accordance with the terms thereof and apply the amount so drawn to pay the principal of and interest on such Bonds so declared to be due and payable in accordance with and subject to Section 5.10 . Interest on the Bonds of such subseries shall cease to accrue as of the date of such declaration. The Trustee, as promptly as feasible following its knowledge of the automatic acceleration of the Bonds or its declaration of an acceleration of Bonds, shall notify the Holders of such Bonds on the date of acceleration and the cessation of accrual of interest on such Bonds in the same manner as for a notice of redemption; provided, however , that failure to give such notice shall not affect the acceleration of such Bonds.
 
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The preceding paragraph, however, is subject to the condition that if, at any time after the principal of the Bonds of any subseries shall have been so declared due and payable, and before any judgment or decree for the payment of the moneys due shall have been obtained or entered as hereinafter provided, and before the Credit Facility for such Bonds has been drawn upon in accordance with its terms and honored, there shall have been deposited with the Trustee a sum sufficient to pay all the principal of such Bonds matured prior to such declaration and all matured installments of interest (if any) upon all such Bonds, and the reasonable fees and expenses of the Trustee, including reasonable fees and expenses of its attorneys, and any and all other defaults known to the Trustee (other than in the payment of principal of and interest on such Bonds due and payable solely by reason of such declaration) shall have been made good or cured to the satisfaction of the Trustee and such Credit Facility Provider (if any) for such Bonds or the Bondholder Representative (if any) or provision deemed by the Trustee and such Credit Facility Provider (if any) or the Bondholder Representative (if any) to be adequate shall have been made therefor, or, in the case of an Event of Default described in Section 7.01E or 7.01H , the Credit Facility Provider (if any) or the Bondholder Representative (if any) shall have rescinded any notice described in in such Section by written instrument delivered to the Trustee, then, and in every such case, such Credit Facility Provider (if any) or the Bondholder Representative (if any) or the Holders of at least a majority in aggregate principal amount of the Bonds of such subseries then Outstanding, with the written consent of such Credit Facility Provider (if any) or the Bondholder Representative (if any) and written confirmation that such Credit Facility (if any) for such Bonds has been reinstated to the Required Stated Amount, by written notice to the Issuer and to the Trustee, may, on behalf of the Holders of all such Bonds, rescind and annul such declaration and its consequences and waive such default; but no such rescission and annulment shall extend to or shall affect any subsequent default, or shall impair or exhaust any right or power consequent thereon. Notwithstanding any other provision of this Bond Indenture except as provided in the following sentence, the Trustee may not exercise any remedy in respect of the Bonds of any subseries in the event of a default under Section 7.01 (other than Clause E or H thereof) without the written consent of the Credit Facility Provider (if any) for such Bonds, so long as a Credit Facility is in effect for such Bonds and such Credit Facility Provider is not in default under its payment obligations under the Credit Facility. The Trustee may exercise any and all remedies under this Bond Indenture and the Loan Agreement (except acceleration) to collect any fees or expenses due from the Borrower to the Trustee or the Issuer without obtaining the consent of any Credit Facility Providers (if any); provided that the Trustee shall first provide written notice to the Credit Facility Providers (if any) of its intent to exercise such remedies and provide the Credit Facility Providers (if any) with an opportunity to cure any failure of the Borrower with respect to such fees, expenses and indemnification prior to exercising any such remedy.
SECTION 7.03. Institution of Legal Proceedings by Trustee.
Subject to the provisions of Section 7.06 , if an Event of Default shall occur and be continuing, the Trustee in its discretion may, and upon the written request of the Bondholder Representative (if any) or the Credit Facility Provider (if any) (if the Credit Facility is in effect and the Credit Facility Provider (if any) is not in default under its payment obligations under the Credit Facility) or the Holders of a majority in aggregate principal amount (if a Bondholder Agreement is in effect) and otherwise two-thirds in principal amount of the Bonds then Outstanding and upon being indemnified to its satisfaction therefor pursuant to Section 8.03(D) shall, proceed to protect or enforce its rights or the rights of the Holders of Bonds under this Bond Indenture and the Loan Agreement by a suit in equity or action at law, either for the specific performance of any covenant or agreement contained herein or therein, or in aid of the execution of any power herein or therein granted, or by mandamus or other appropriate proceeding for the enforcement of any other legal or equitable remedy as the Trustee shall deem most effectual in support of any of its rights or duties hereunder.
 
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SECTION 7.04. Application of Revenues and Other Funds After Default.
If an Event of Default shall occur and be continuing, all Revenues and any other funds then held or thereafter received by the Trustee under any of the provisions of this Bond Indenture (other than payments received from a Credit Facility Provider and moneys required to be deposited in the Rebate Fund and subject to the requirements of Section 11.10 relating to the use of moneys held for particular Bonds) shall be applied by the Trustee as follows and in the following order:
A. Trustee Expenses : To the payment of any expenses necessary in the opinion of the Trustee to protect the interests of the Holders of the Bonds and payment of reasonable charges and expenses of the Trustee (including reasonable fees and disbursements of its counsel) incurred in and about the performance of its powers and duties under this Bond Indenture; and
B. Bond Payment : To the payment of the principal or Redemption Price of and interest then due on the Bonds (upon presentation of the Bonds to be paid, and stamping thereon of the payment if only partially paid, or surrender thereof if fully paid) subject to the provisions of this Bond Indenture (including Section 6.02 ), as follows:
(1) Before Acceleration : Unless the principal of all of the Bonds of the applicable subseries shall have become or have been declared due and payable,
First : To the payment to the Persons entitled thereto of all installments of interest thereon then due in the order of the maturity of such installments, and, if the amount available shall not be sufficient to pay in full any installment or installments maturing on the same date, then to the payment thereof ratably, according to the amounts due thereon, to the Persons entitled thereto, without any discrimination or preference; and
Second : To the payment to the Persons entitled thereto of the unpaid principal or Redemption Price of any such Bonds that shall have become due, whether at maturity or by call for redemption, with interest on the overdue principal at the rate borne by such Bonds, and, if the amount available shall not be sufficient to pay in full all such Bonds, together with such interest, then to the payment thereof ratably, according to the amounts of principal or Redemption Price due thereon on such date to the Persons entitled thereto, without any discrimination or preference.
(2) Upon Acceleration : If the principal of all of the Bonds of the applicable subseries shall have become or have been declared due and payable, to the payment of the principal and interest then due and unpaid upon such Bonds, with interest on the overdue principal at the rate borne by such Bonds, and, if the amount available shall not be sufficient to pay in full the whole amount so due and unpaid thereon, then to the payment thereof ratably, without preference or priority of principal over interest, or of interest over principal, or of any installment of interest over any other installment of interest, or of any such Bond over any other such Bond, according to the amounts due respectively for principal and interest, to the Persons entitled thereto without any discrimination or preference.
 
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SECTION 7.05. Trustee to Represent Bondholders.
The Trustee is hereby irrevocably appointed (and the successive respective Holders of the Bonds, by taking and holding the same, shall be conclusively deemed to have so appointed the Trustee) as trustee and true and lawful attorney-in-fact of the Holders of the Bonds for the purpose of exercising and prosecuting on their behalf such rights and remedies as may be available to such Holders under the provisions of the Bonds, this Bond Indenture, the Loan Agreement and applicable provisions of any other law. Upon the occurrence and continuance of an Event of Default or other occasion giving rise to a right in the Trustee to represent the Bondholders, the Trustee in its discretion may, and upon the written request of any Credit Facility Provider or the Bondholder Representative (if any) or the Holders of not less than a majority in aggregate principal amount (if a Bondholder Agreement is in effect) and otherwise 25% in aggregate principal amount of the Bonds then Outstanding, with the consent of the Credit Facility Providers (if any), and upon being indemnified to its satisfaction therefor, shall, proceed to protect or enforce its rights or the rights of such Holders and the Credit Facility Providers (if any) by such appropriate action, suit, mandamus or other proceedings as it shall deem most effectual to protect and enforce any such right, at law or in equity, either for the specific performance of any covenant or agreement contained herein, or in aid of the execution of any power herein granted, or for the enforcement of any other appropriate legal or equitable right or remedy vested in the Trustee, in any Credit Facility Provider or in the Bondholders under this Bond Indenture, the Loan Agreement, the Act or any other law; and upon instituting such proceeding, the Trustee shall be entitled, as a matter of right, to the appointment of a receiver of the Revenues and other assets pledged under this Bond Indenture, pending such proceedings. All rights of action under this Bond Indenture or the Bonds or otherwise may be prosecuted and enforced by the Trustee without the possession of any of the Bonds or the production thereof in any proceeding relating thereto, and any such suit, action or proceeding instituted by the Trustee shall be brought in the name of the Trustee for the benefit and protection of all the Holders of such Bonds, subject to the provisions of this Bond Indenture (including Section 6.02 ).
Notwithstanding the foregoing paragraph, during the initial Interest Period in the Initial LIBOR Term Indexed Mode (and for any Interest Period thereafter while the initial Bondholder Agreement is in effect), the Bondholder Representative (if any) is hereby irrevocably appointed and granted authority to exercise all powers, to take all actions, and to have all the rights as are granted to the Trustee in the foregoing paragraph. The Trustee acknowledges that the Bondholder Representative has been appointed for such purpose during the initial Interest Period in the Initial LIBOR Term Indexed Mode and agrees that the Trustee shall have no responsibility to take any actions under this Section 7.05 during such time. While acting under such appointment, the Bondholder Representative (if any) shall be entitled to the protections and limitations of liability afforded the Trustee under Article VIII with respect thereto, including without limitation Section 8.03 , except to the extent inconsistent with the Bondholder Agreement.
SECTION 7.06. Credit Facility Provider’s and Bondholders’ Direction of Proceedings.
Anything in this Bond Indenture to the contrary notwithstanding, the Credit Facility Providers (if any) or the Bondholder Representative (if any) or the Holders of a majority in aggregate principal amount of the Bonds then Outstanding, but with the consent of the Credit Facility Providers (if any), shall have the right, by an instrument or concurrent instruments in writing executed and delivered to the Trustee, to direct the method of conducting all remedial proceedings taken by the Trustee hereunder, provided that such direction shall not be otherwise than in accordance with law and the provisions of this Bond Indenture, and that the Trustee shall have the right to decline to follow any such direction that in the opinion of the Trustee would be unjustly prejudicial to Bondholders not parties to such direction, and that in no event shall the Bondholders directly have the right to make drawings under any Liquidity Facility.
 
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SECTION 7.07. Limitation on Bondholders’ Right to Sue.
No Holder of any Bond shall have the right to institute any suit, action or proceeding at law or in equity, for the protection or enforcement of any right or remedy under this Bond Indenture, the Loan Agreement or any other applicable law with respect to such Bond, unless (1) such Holder shall have given to the Trustee written notice of the occurrence of an Event of Default; (2) the Holders of not less than a majority in aggregate principal amount (if a Bondholder Agreement is in effect) and otherwise 25% in aggregate principal amount of the Bonds then Outstanding shall have made written request upon the Trustee to exercise the powers hereinbefore granted or to institute such suit, action or proceeding in its own name; (3) such Holder or said Holders shall have furnished to the Trustee reasonable indemnity against the costs, expenses and liabilities to be incurred in compliance with such request; and (4) the Trustee shall have refused or omitted to comply with such request for a period of 60 days after such written request shall have been received by, and said indemnity shall have been furnished to, the Trustee.
Such notification, request, furnishing of indemnity and refusal or omission are hereby declared, in every case, to be conditions precedent to the exercise by any Holder of Bonds of any remedy hereunder or under law; it being understood and intended that no one or more Holders of Bonds shall have any right in any manner whatever by his or their action to affect, disturb or prejudice the security of this Bond Indenture or the rights of any other Holders of Bonds, or to enforce any right under this Bond Indenture, the Loan Agreement or other applicable law with respect to the Bonds, except in the manner herein provided, and that all proceedings at law or in equity to enforce any such right shall be instituted, had and maintained in the manner herein provided and for the benefit and protection of all Holders of the Outstanding Bonds, subject to the provisions of this Bond Indenture (including Section 6.02 ).
SECTION 7.08. Absolute Obligation of Issuer.
Nothing in Section 7.07 or in any other provision of this Bond Indenture, or in the Bonds, contained shall affect or impair the obligation of the Issuer, which is absolute and unconditional, to pay the principal or Redemption Price of and interest on the Bonds to the respective Holders of the Bonds at their respective dates of maturity, or upon call for redemption, as herein provided, but only out of the Revenues and other assets herein pledged therefor, or affect or impair the right of such Holders, which is also absolute and unconditional, to enforce such payment by virtue of the contract embodied in the Bonds.
SECTION 7.09. Termination of Proceedings.
In case any proceedings taken by the Trustee, a Credit Facility Provider (if any), the Bondholder Representative (if any) or any one or more Bondholders on account of any Event of Default shall have been discontinued or abandoned for any reason or shall have been determined adversely to the Trustee, such Credit Facility Provider or the Bondholder Representative (if any) or the Bondholders, then in every such case the Issuer, the Liquidity Facility Providers (if any), the Trustee, the Credit Facility Providers (if any), the Bondholder Representative (if any) and the Bondholders, subject to any determination in such proceedings, shall be restored to their former positions and rights hereunder, severally and respectively, and all rights, remedies, powers and duties of the Issuer, the Liquidity Facility Providers (if any), the Trustee, the Credit Facility Providers (if any), the Bondholder Representative (if any) and the Bondholders shall continue as though no such proceedings had been taken.
 
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SECTION 7.10. Remedies Not Exclusive.
No remedy herein conferred upon or reserved to the Trustee, any Liquidity Facility Provider, any Credit Facility Provider or the Bondholder Representative (if any) or the Holders of the Bonds is intended to be exclusive of any other remedy or remedies, and each and every such remedy, to the extent permitted by law, shall be cumulative and in addition to any other remedy given hereunder or now or hereafter existing at law or in equity or otherwise.
SECTION 7.11. Waivers of Default.
No delay or omission of the Trustee, any Credit Facility Provider, any Liquidity Facility Provider, the Bondholder Representative (if any) or any Holder of the Bonds to exercise any right or power arising upon the occurrence of any default shall impair any such right or power or shall be construed to be a waiver of any such default or an acquiescence therein; and every power and remedy given by this Bond Indenture to the Trustee, the Credit Facility Providers (if any), the Liquidity Facility Providers (if any), the Bondholder Representative (if any) or the Holders of the Bonds may be exercised from time to time and as often as may be deemed expedient.
Before any sale of any of the property pledged or assigned hereunder has been made under this Article or any judgment or decree for payment of money due has been obtained by the Trustee as provided in this Article, the Credit Facility Providers, if any and except for any Credit Facility Provider that is in default in payment of its Credit Facility, and in the absence of any such Credit Facility Provider, the Bondholder Representative (if any) or the Holders of not less than a majority in principal amount of the Outstanding Bonds, by writing delivered to the Trustee, the Issuer, and the Borrower, may waive any past default hereunder and its consequences, except a default:
A. Payment or Credit Facility Termination : either (1) in the payment of the principal of (or premium, if any) or interest on, or Purchase Price for, any Bond or (2) described in Section 7.01E , or
B. Unanimous Consent : in respect of a covenant or provision hereof which under Article IX may not be modified or amended without the consent of the Holder of each Outstanding Bond affected.
Upon any such waiver, such default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured, for every purpose of this Bond Indenture; but no such waiver shall extend to any subsequent or other default or impair any right consequent thereon or, unless each of the conditions to rescission described in Section 7.02 have been satisfied, shall (if such Event of Default is described in Section 7.01E ) release the Trustee of its obligation to declare the principal of the Bonds of the applicable series to be immediately due and payable or result in rescission of any declaration of acceleration of Bonds.
SECTION 7.12. Notice to Bondholders of Default.
The Trustee shall promptly give written notice by Electronic Means while a Bondholder Agreement is in effect and otherwise by first class mail to the Bondholders, the Bondholder Representative (if any), the Liquidity Facility Providers (if any) and the Credit Facility Providers (if any) of the occurrence of an Event of Default, if the Trustee has actual knowledge of such Event of Default, and of the giving of any notice under Section 7.01D .
*                *                 *
 
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ARTICLE VIII
THE TRUSTEE AND AGENTS
SECTION 8.01. Duties, Immunities and Liabilities of Trustee.
A. Implied Duties . The Trustee shall, prior to an Event of Default with the consent of the Borrower, and after the curing of all Events of Default that may have occurred, perform such duties and only such duties as are specifically set forth in this Bond Indenture. The Trustee shall, during the existence of any Event of Default (that has not been cured), exercise such of the rights and powers vested in it by this Bond Indenture, and use the same degree of care and skill in their exercise, as a prudent trustee would exercise or use under the circumstances in the conduct of his own affairs.
B. Removal . The Issuer may with the consent of the Borrower, and upon written request of the Borrower shall, remove the Trustee at any time unless an Event of Default shall have occurred and then be continuing, and shall remove the Trustee if at any time requested to do so by an instrument or concurrent instruments in writing signed by the Holders of not less than a majority in aggregate principal amount of the Bonds then Outstanding (or their attorneys duly authorized in writing) or if at any time the Trustee shall cease to be eligible in accordance with Subsection E of this Section, or shall become incapable of acting, or shall be adjudged a bankrupt or insolvent, or a receiver of the Trustee or its property shall be appointed, or any public officer shall take control or charge of the Trustee or of its property or affairs for the purpose of rehabilitation, conservation or liquidation, in each case by giving written notice of such removal to the Trustee, and thereupon shall appoint, with the written consent of the Borrower, a successor Trustee by an instrument in writing.
C. Resignation . The Trustee may at any time resign by giving written notice of such resignation to the Issuer, the Credit Facility Providers (if any), Remarketing Agents (if any), and the Liquidity Facility Providers (if any) and by giving the Bondholders notice of such resignation by mail at the addresses shown on the bond registration books maintained by the Trustee. Upon receiving such notice of resignation, the Issuer shall promptly appoint, with the written consent of the Borrower and the Credit Facility Providers (if any), a successor Trustee by an instrument in writing. The Trustee shall not be relieved of its duties until such successor Trustee has accepted appointment.
D. Successor Required . Any removal or resignation of the Trustee and appointment of a successor Trustee shall only become effective upon acceptance of appointment by the successor Trustee. If no successor Trustee shall have been appointed and have accepted appointment within 30 days of giving notice of removal or notice of resignation as aforesaid, the resigning Trustee or any Bondholder (on behalf of himself and all other Bondholders) may petition any court of competent jurisdiction for the appointment of a successor Trustee, and such court may thereupon, after such notice (if any) as it may deem proper, appoint such successor Trustee. Any successor Trustee appointed under this Bond Indenture, shall signify its acceptance of such appointment by executing and delivering to the Issuer and to its predecessor Trustee a written acceptance thereof, and thereupon such successor Trustee, without any further act, deed or conveyance, shall become vested with all the moneys, estates, properties, rights, powers, trusts, duties and obligations of such predecessor Trustee, with like effect as if originally named Trustee herein; but , nevertheless, at the Request of the Issuer or the request of the successor Trustee, such predecessor Trustee shall execute and deliver any and all instruments of conveyance or further assurance and do such other things as may reasonably be required for more fully and certainly vesting in and confirming to such successor Trustee all the right, title and interest of such predecessor Trustee in and to any property held by it under this Bond Indenture and shall pay over, transfer, assign and deliver to the successor Trustee any money or other property subject to the trusts and conditions herein set forth. Upon request of the successor Trustee, the Issuer shall execute and deliver any and all instruments as
 
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may be reasonably required for more fully and certainly vesting in and confirming to such successor Trustee all such moneys, estates, properties, rights, powers, trusts, duties and obligations. Upon acceptance of appointment by a successor Trustee as provided in this subsection, the successor Trustee shall mail a notice of the succession of such Trustee to the trusts hereunder to each Rating Agency then rating the Bonds and to the Bondholders at the addresses shown on the bond registration books maintained by the Trustee.
E. Qualifications . Any Trustee appointed under the provisions of this Section in succession to the Trustee shall (1) be a trust company or bank having the powers of a trust company in the State of Texas, having (or if such trust company or bank is a member of a bank holding company system, its bank holding company has) a combined capital and surplus of at least $100,000,000, and subject to supervision or examination by federal or state authority and (2) perform its obligations hereunder in a state specified in the definition of “Business Day” included in the Credit Facility and the Liquidity Facility. If such bank or trust company publishes a report of condition at least annually, pursuant to law or to the requirements of any supervising or examining authority above referred to, then for the purpose of this subsection the combined capital and surplus of such bank or trust company shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. In case at any time the Trustee shall cease to be eligible in accordance with the provisions of this Subsection E , the Trustee shall resign immediately in the manner and with the effect specified in this Section. Whenever the Trustee is not a federal depository institution or state-chartered depository institution subject to regulations regarding fiduciary funds similar to Section 9.10(b), Title 1, U.S. Code of Federal Regulations, then the Tender Agent shall maintain the Credit Facility Fund at such a depository institution subject to such regulations, or at a depository institution the short-term obligations of which are rated by each Rating Agency no lower than the short-term rating assigned by it to the Bonds.
SECTION 8.02. Merger or Consolidation.
Any company into which the Trustee may be merged or converted or with which it may be consolidated or any company resulting from any merger, conversion or consolidation to which it shall be a party or any company to which the Trustee may sell or transfer all or substantially all of its corporate trust business, provided such company shall be eligible under Section 8.01E shall be the successor to such Trustee without the execution or filing of any paper or any further act, anything herein to the contrary notwithstanding.
SECTION 8.03. Liability of Trustee.
A. General Limitation on Liability . The recitals of facts herein and in the Bonds contained shall be taken as statements of the Issuer, and the Trustee shall assume no responsibility for the correctness of the same, or make any representations as to the validity or sufficiency of this Bond Indenture or of the Bonds, or shall incur any responsibility in respect thereof, other than in connection with the duties or obligations herein or in the Bonds assigned to or imposed upon it except for any recital or representation specifically relating to the Trustee or its powers. The Trustee shall, however, be responsible for its representations contained in its Certificate of Authentication on the Bonds. The Trustee shall not be liable in connection with the performance of its duties hereunder, except for its own negligence or willful misconduct. The Trustee may become the owner of Bonds with the same rights it would have if it were not Trustee and, to the extent permitted by law, may act as depositary for and permit any of their officers or directors to act as a member of, or in any other capacity with respect to, any committee formed to protect the rights of Bondholders, whether or not such committee shall represent the Holders of a majority in principal amount of the Bonds then Outstanding.
 
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B. Errors in Judgment . The Trustee shall not be liable for any error of judgment made in good faith by a responsible officer, unless it shall be proved that the Trustee was negligent in ascertaining the pertinent facts.
C. Acting on Direction . The Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the direction of the Credit Facility Provider(s) or the Holders of not less than a majority in aggregate principal amount of the Bonds at the time Outstanding relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee under this Bond Indenture.
D. No Financial Liability . The Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Bond Indenture at the request, order or direction of any of the Bondholders pursuant to the provisions of this Bond Indenture unless such Bondholders shall have furnished to the Trustee reasonable security or indemnity against the costs, expenses and liabilities that may be incurred therein or thereby. The Trustee has no obligation or liability to the Holders for the payment of interest on, principal of or premium, if any, with respect to the Bonds from its own funds; but rather the Trustee’s obligations shall be limited to the performance of its duties hereunder.
E. Knowledge of Defaults . Except with respect to Events of Default specified in Clause A, B, C, E or H of Section 7.01 , the Trustee shall not be deemed to have knowledge of any Event of Default unless and until an officer at the Trustee’s corporate trust operation responsible for the administration of its duties hereunder shall have actual knowledge thereof or the Trustee shall have received written notice thereof at the Principal Corporate Trust Office. The Trustee shall not be bound to ascertain or inquire as to the performance or observance of any of the terms, conditions, covenants or agreements herein or of any of the documents executed in connection with the Bonds, or as to the existence of a default or Event of Default thereunder. The Trustee shall not be responsible for the validity or effectiveness of any collateral given to or held by it.
F. Acting Through Agents . The Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through attorneys-in-fact, agents or receivers, and shall not be answerable for the negligence or misconduct of any such attorney-of-fact, agent or receiver selected by it with due care. The Trustee shall be entitled to advice of counsel and other professionals concerning all matters of trust and its duty hereunder, including verification reports in connection with any defeasance of the Bonds, but the Trustee shall not be answerable for the professional malpractice of any attorney-in-law or certified public accountant in connection with the rendering of his professional advice in accordance with the terms of this Bond Indenture, if such attorney-in-law or certified public accountant was selected by the Trustee with due care.
G. No Responsibility for Disbursed Funds . The Trustee shall not be concerned with or accountable to anyone for the subsequent use or application of any moneys that shall be released or withdrawn in accordance with the provisions hereof.
H. This Section Controlling . Whether or not therein expressly so provided, every provision of this Bond Indenture, the Loan Agreement, the Credit Facilities, the Liquidity Facilities or related documents relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provision of this Article.
 
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SECTION 8.04. Right of Trustee and Tender Agent to Rely on Documents.
The Trustee and the Tender Agent shall be protected in acting upon any notice, resolution, request, consent, order, certificate, report, opinion, bond or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties. The Trustee and the Tender Agent may consult with counsel, who may be counsel of or to the Issuer, with regard to legal questions, and the opinion of such counsel shall be full and complete authorization and protection in respect of any action taken or suffered by it hereunder in good faith and in accordance therewith.
Whenever in the administration of the trusts imposed upon it by this Bond Indenture the Trustee shall deem it necessary or desirable that a matter be proved or established prior to taking or suffering any action hereunder, such matter (unless other evidence in respect thereof be herein specifically prescribed) may be deemed to be conclusively proved and established by a Certificate of the Issuer, and such Certificate shall be full warrant to the Trustee for any action taken or suffered in good faith under the provisions of this Bond Indenture in reliance upon such Certificate, but in its discretion the Trustee may, in lieu thereof, accept other evidence of such matter or may require such additional evidence as it may deem reasonable.
SECTION 8.05. Preservation and Inspection of Documents.
All documents received by the Trustee under the provisions of this Bond Indenture shall be retained in its possession and shall be subject at all reasonable times to the inspection of the Issuer, the Borrower, the Liquidity Facility Providers (if any), the Credit Facility Providers (if any) and any Bondholder, and their agents and representatives duly authorized in writing, at reasonable hours and under reasonable conditions.
SECTION 8.06. Separate or Co-Trustee.
At any time or times, for the purpose of meeting any legal requirements of any jurisdiction, the Trustee shall have power to appoint, and, upon the written request of the Credit Facility Providers (if any) or the Bondholder Representative (if any) or the Holders of at least a majority in aggregate principal amount (if a Bondholder Agreement is in effect) and otherwise 25% in aggregate principal amount of Bonds Outstanding and with the written consent of the Borrower, shall appoint, one or more Persons approved by the Trustee either to act as co-trustee or co-trustees, jointly with the Trustee, to act as separate trustee or separate trustees, and to vest in such Person or Persons, in such capacity, such rights, powers, duties, trusts or obligations as the Trustee may consider necessary or desirable, subject to the remaining provisions of this Section.
Every co-trustee or separate trustee shall, to the extent permitted by law but to such extent only, be appointed subject to the following terms, namely:
A. Authentications . The Bonds shall be authenticated and delivered solely by the Trustee.
B. Joinder of Trustee . All rights, powers, trusts, duties and obligations conferred or imposed upon the trustees shall be conferred or imposed upon and exercised or performed by the Trustee, or by the Trustee and such co-trustee or co-trustees or separate trustee or separate trustees jointly, as shall be provided in the instrument appointing such co-trustee or co-trustees or separate trustee or separate trustees, except to the extent that, under the law of any jurisdiction in which any particular act or acts are to be performed, the Trustee shall be incompetent or unqualified to perform such act or acts, in which event such act or acts shall be performed by such co-trustee or co-trustees or separate trustee or separate trustees.
 
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C. Requests by Trustee . Any request in writing by the Trustee to any co-trustee or separate trustee to take or to refrain from taking any action hereunder shall be sufficient warrant for the taking, or the refraining from taking, of such action by such co-trustee or separate trustee.
D. Return of Powers . Any co-trustee or separate trustee may, to the extent permitted by law, delegate to the Trustee the exercise of any right, power, trust, duty or obligation, discretionary or otherwise.
E. Resignation and Renewal . The Trustee at any time, by any instrument in writing, may accept the resignation of or remove any co-trustee or separate trustee appointed under this Section.
F. No Personal Liability . No trustee hereunder shall be personally liable by reason of any act or omission of any other trustee hereunder, nor will the act or omission of any trustee hereunder be imputed to any other trustee.
G. Demands, Etc . Any demand, request, direction, appointment, removal, notice, consent, waiver or other action in writing delivered to the Trustee shall be deemed to have been delivered to each such co-trustee or separate trustee.
H. Custody . Any moneys, papers, securities or other items of personal property received by any such co-trustee or separate trustee hereunder shall forthwith, so far as may be permitted by law, be turned over to the Trustee.
Upon the acceptance in writing of such appointment by any such co-trustee or separate trustee, it or he shall be vested with such rights, powers, duties or obligations, as shall be specified in the instrument of appointment jointly with the Trustee (except insofar as local law makes it necessary for any such co-trustee or separate trustee to act alone) subject to all the terms hereof. Every such acceptance shall be filed with the Trustee. To the extent permitted by law, any co- trustee or separate trustee may, at any time by an instrument in writing, constitute the Trustee its or his attorney-in-fact and agent, with full power and authority to do all acts and things and to exercise all discretion on its or his behalf and in its or his name.
In case any co-trustee or separate trustee shall die, become incapable of acting, resign or be removed, all rights, powers, trusts, duties and obligations of said co-trustee or separate trustee shall, so far as permitted by law, vest in and be exercised by the Trustee unless and until a successor co-trustee or separate trustee shall be appointed in the manner herein provided.
SECTION 8.07. Compensation and Indemnification.
The Issuer shall pay to the Trustee and the Tender Agent ( but solely from Additional Payments) from time to time reasonable compensation for all services rendered under this Bond Indenture, and also all reasonable expenses, charges, legal and consulting fees and other disbursements and those of their attorneys, agents and employees, incurred in and about the performance of their powers and duties under this Bond Indenture.
 
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No provision of this Bond Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of its rights or powers, if it has not received the agreed compensation for such services or, in cases where the Trustee has a right to reimbursement or indemnification for such performance or exercise, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it; provided, however , that the Tender Agent and the Trustee shall in no event condition any draw upon any Liquidity Facility, any request for payment under any Credit Facility or any payment to Bondholders from such draws under a Liquidity Facility or such payments under a Credit Facility upon the provision of any indemnification for such performance.
SECTION 8.08. Notice to Rating Agency.
The Trustee shall give written notice to any Rating Agency then rating the Bonds if (i) a successor Trustee is appointed hereunder, (ii) if this Bond Indenture, the Loan Agreement, any Remarketing Agreement, any Credit Facility or any Liquidity Facility is amended or supplemented in any material manner, or, if any of such documents are amended with the consent of the Credit Facility Providers (if any), (iii) if a Liquidity Facility or Credit Facility expires, is terminated, substituted, or is extended, (iv) if a successor Remarketing Agent is appointed, (v) if the Bonds are paid and this Bond Indenture defeased pursuant to Section 10.01 , (vi) if the Bonds of any subseries are accelerated pursuant to Section 7.02 , or (viii) if the Bonds are redeemed in whole or in part pursuant to Section 4.01 or are subject to mandatory tender pursuant to Section 4.08 or 4.10 , provided that the Trustee shall incur no liability for failure to give any such notice.
SECTION 8.09. Facsimile and Electronic Transmissions.
The Trustee agrees to accept and act upon instructions or directions pursuant to this Bond Indenture sent by unsecured e-mail, facsimile transmission or other similar unsecured electronic methods, provided , however , that (a) subsequent to such transmission of written instructions and/or directions the Trustee shall forthwith receive the originally executed instructions and/or directions in a timely manner, (b) such originally executed instructions and/or directions shall be signed by a Person designated and authorized to sign for the party signing such instructions and/or directions, and (c) the Trustee shall have received an incumbency certificate listing such designated Persons and containing specimen signatures of such designated Persons, which such incumbency certificate shall be amended and replaced whenever a Person is to be added or deleted from the listing. If the Issuer or the Borrower elects to give the Trustee e-mail or facsimile instructions (or instructions by similar Electronic Means) and the Trustee in its discretion elects to act upon such instructions, the Trustee’s understanding of such instructions shall be deemed controlling. The Trustee shall not be liable for any losses, costs or expenses arising directly or indirectly from the Trustee’s reliance upon and compliance with such instructions notwithstanding such instructions conflict or are inconsistent with a subsequent written instruction. The Issuer agrees (and by approving this Bond Indenture the Borrower agrees) to assume all risks arising out of the use of such Electronic Means to submit instructions and directions to the Trustee, including, without limitation, the risk of the Trustee acting on unauthorized instructions and the risk of interception and misuse by third parties.
SECTION 8.10. Collateral Agent.
The Trustee acknowledges that during the initial Interest Period of the Initial LIBOR Term Indexed Mode and any Interest Period thereafter while the initial Bondholder Agreement remains in effect, the Bondholder Representative (if any) has, pursuant to Section 7.05 , the power to take all actions and exercise all of the rights that the Trustee would otherwise have with respect to any
 
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guarantee of obligations (“ Guarantee ”) relating to the Bonds and any collateral (“ Collateral ”) securing obligations relating to the Bonds (in each case in accordance with the terms set forth in any agreement governing any Guarantee or Collateral), including, without limitation, the power to direct the exercise of remedies by any collateral agent appointed with respect to such Collateral. The Trustee shall have no right, responsibility or obligation to take any action with respect to any such Guarantee or Collateral or in connection with the exercise of remedies in connection therewith.
To the extent required, each of the Trustee and the Issuer authorizes the appointment of any collateral agent in connection with the Collateral and authorizes such collateral agent to enter into any agreements it deems appropriate in connection with the Collateral and any intercreditor arrangements or any remedial rights in connection therewith, including without limitation, any security agreement or intercreditor agreement (each a “ Security Document ”). In connection with the foregoing, and for the avoidance of doubt, any such collateral agent shall not have any duties or obligations except those expressly set forth in the Security Documents, and its duties thereunder shall be administrative in nature. Without limiting the generality of the foregoing, any such collateral agent and its affiliates and the partners, directors, officers, employees, agents, trustees, administrators, managers, advisors and representatives of such collateral agent and of its affiliates:
(i) shall not be subject to any fiduciary or other implied duties, regardless of whether a default or Event of Default has occurred and is continuing;
(ii) shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Security Documents and then only as directed in accordance with the terms thereof; provided that such collateral agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose the collateral agent to liability or that is contrary to any Security Document or applicable law, including for the avoidance of doubt any action that may be in violation of the automatic stay under Title 11 of the United States Code, as amended, and any similar Federal, state or foreign law for the relief of debtors;
(iii) shall not, except as expressly set forth in any Security Document, have any duty or responsibility to disclose, and shall not be liable for the failure to disclose, any information relating to the Borrower or any Affiliate thereof that is communicated to or obtained by such collateral agent or any of its Affiliates in any capacity;
(iv) shall not be liable for any action taken or not taken by it under or in connection with any Security Document or the transactions contemplated thereby (A) with the consent or at the request of the secured party entitled to direct the collateral agent under the applicable Security Document, (B) in the absence of its own gross negligence or willful misconduct as determined by a court of competent jurisdiction by final and nonappealable judgment or (C) in reliance on a certificate of an authorized officer of the Borrower or any applicable guarantor of the obligations secured under such Security Document stating that such action is permitted by the terms of such Security Document, the collateral agent being deemed not to have knowledge of any default or Event of Default unless and until notice describing such default or Event Default is given in writing to the collateral agent by the in accordance with the terms of such Security Document; and
(v) shall not be responsible for or have any duty or obligation to any holder of obligations secured under any Security Document or any other person to ascertain or inquire into (A) any statement, warranty or representation made in or in connection with any Security Document, (B) the contents of any certificate, report or other document delivered hereunder or thereunder or in
 
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connection herewith or therewith, (C) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein or the occurrence of any default or Event of Default, (D) the validity, enforceability, effectiveness or genuineness of any Security Document or any other agreement, instrument or document, or the creation, perfection or priority of any lien purported to be created by any Security Document, (E) the value or the sufficiency of any Collateral, or (F) the satisfaction of any condition or representation or warranty set forth in any Security Document, other than to confirm receipt of items expressly required to be delivered to such collateral agent.
Whether or not therein expressly so provided, every provision of this Bond Indenture, the Loan Agreement, the Credit Facilities, the Liquidity Facilities or related documents relating to the conduct or affecting the liability of or affording protection to any such collateral agent shall be subject to the provision of this Article.
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ARTICLE IX
MODIFICATION OR AMENDMENT OF THIS BOND INDENTURE
SECTION 9.01. Amendments Permitted.
A. With Consents . This Bond Indenture and the rights and obligations of the Issuer and of the Holders of the Bonds and of the Trustee may be modified or amended from time to time and at any time by an indenture or indentures supplemental thereto, which the Issuer and the Trustee may enter into when the written consent of (i) each Credit Facility Provider (so long as a Credit Facility on which it is obligated is in effect or any amounts are owing to a Credit Facility Provider and such Credit Facility Provider is not then in default under its payment obligations under its Credit Facility), (ii) the Bondholder Representative (if any), or (iii) the Holders of a majority in aggregate principal amount of all Bonds then Outstanding (if no Credit Facility is any longer in effect or all Credit Facility Providers are then in default under their payment obligations under the Credit Facilities and no Bondholder Agreement is in effect), and the Liquidity Facility Providers (if any), shall have been filed with the Trustee. No such modification or amendment shall (1) extend the fixed maturity of any Bond, or reduce the amount of principal thereof, or change the method of computing the rate of interest thereon, or extend the time of payment of interest thereon, or extend the time of payment or reduce the amount of any Mandatory Sinking Account Payment, or reduce any premium payable upon the redemption thereof, without the consent of the Holder of each Bond so affected, or (2) reduce the aforesaid percentage of Bonds the consent of the Holders of which is required to effect any such modification or amendment, or permit the creation of any lien on the Revenues and other assets pledged under this Bond Indenture prior to or on a parity with the lien created by this Bond Indenture, or deprive the Holders of the Bonds of the lien created by this Bond Indenture on such Revenues and other assets (except as expressly provided in this Bond Indenture), without the consent of the Holders of all of the Bonds then Outstanding, or (3) modify any of the rights or obligations of the Trustee without its prior written consent thereto; nor shall the Trustee be required to consent to any such amendment that adversely affects its rights or obligations hereunder or under the Loan Agreement, the Liquidity Facilities or the Remarketing Agreements. It shall not be necessary for the consent of the Bondholders to approve the particular form of any Supplemental Bond Indenture, but it shall be sufficient if such consent shall approve the substance thereof. Promptly after the execution by the Issuer and the Trustee of any Supplemental Bond Indenture pursuant to this Subsection A , the Trustee shall mail a notice, setting forth in general terms the substance of such Supplemental Bond Indenture, to each Rating Agency then rating Bonds, to the Liquidity Facility Providers (if any), to the Credit Facility Providers (if any) and to the Holders of the Bonds at the addresses shown on the bond registration books of the Trustee. Any failure to give such notice, or any defect therein, shall not, however, in any way impair or affect the validity of any such Supplemental Bond Indenture.
B. Without Bondholder Consent . This Bond Indenture and the rights and obligations of the Issuer, of the Trustee and of the Holders of the Bonds may also be modified or amended from time to time and at any time by an indenture or indentures supplemental hereto, which the Issuer and the Trustee may enter into without the consent of any Bondholders (but with the consent of the Credit Facility Providers (if any) and only if not objected to by the Liquidity Facility Providers (if any) within five calendar days after it has been given written notice of such supplemental indenture, unless such modification or amendment affects only the Fixed Rate Bonds), if the Trustee determines that the provisions of such Supplemental Bond Indenture shall not materially adversely affect the interests of the Holders of the Bonds, including, without limitation, for any one or more of the following purposes:
(1) Additional Covenants or Security : to add to the covenants and agreements of the Issuer in this Bond Indenture contained other covenants and agreements thereafter to be observed, to pledge or assign additional security for the Bonds (or any portion thereof), or to surrender any right or power herein reserved to or conferred upon the Issuer;
 
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(2) Curing Defects, Etc .: to make such provisions for the purpose of curing any ambiguity, inconsistency or omission, or of curing or correcting any defective provision, contained in this Bond Indenture, or in regard to matters or questions arising under this Bond Indenture, as the Issuer may deem necessary or desirable and not inconsistent with this Bond Indenture;
(3) Qualification of Bond Indenture : to modify, amend or supplement this Bond Indenture in such manner as to permit the qualification hereof under the Trust Indenture Act of 1939, as amended, or any similar federal statute hereafter in effect, and to add such other terms, conditions and provisions as may be permitted by said act or similar federal statute;
(4) Eligibility of Bonds : to make the Bonds eligible for deposit with any Securities Depository;
(5) Rating : to obtain a rating on the Bonds;
(6) Credit or Liquidity Facility Compatibility : to conform to the terms and provisions of any Liquidity Facility or Credit Facility; or
(7) Prospective Effect : to make any modification or amendment to this Bond Indenture, even if consent of Holders would otherwise be required, (i) if such amendment will be effective upon the remarketing of all Bonds following the mandatory tender of the Bonds pursuant to Sections 4.07, 4.08, 4.09 or 4.10 or (ii) if all Bonds are in one or more of a Daily Mode, a Weekly Mode or an R-FLOATs Mode (except during any Non-Remarketing Period), if notice of such proposed modification or amendment is given to Holders (in the same manner as notices of redemption are given) at least 15 days before the effective date thereof and on or before such effective date, the Holders have the right to demand purchase of their Bonds pursuant to Section 4.06 ; provided that, on or prior to the effective date of such modification or amendment, the Trustee shall obtain a Favorable Opinion of Bond Counsel.
The Trustee shall give notice of any such modification or amendment to each Rating Agency then rating the Bonds provided the Trustee shall incur no liability for failure to do so.
C. Remarketing Agent Notice and Consent . All notices regarding amendments to this Bond Indenture shall be delivered to the Remarketing Agents at the time and in the same manner as such notices are delivered to the registered owners of the Bonds. No amendment shall become effective with respect to a Remarketing Agent without the written consent of such party if it adversely affects the rights, duties, privileges, immunities and liabilities of such party.
D. Trustee’s Rights . The Trustee may in its discretion, but shall not be obligated to, enter into any Supplemental Bond Indenture authorized by Subsections A or B of this Section that materially adversely affects the Trustee’s own rights, duties or immunities under this Bond Indenture or otherwise.
 
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SECTION 9.02. Effect of Supplemental Bond Indenture.
Upon the execution of any Supplemental Bond Indenture pursuant to this Article, this Bond Indenture shall be deemed to be modified and amended in accordance therewith, and the respective rights, duties and obligations under this Bond Indenture of the Issuer, the Trustee and all Holders of Bonds Outstanding shall thereafter be determined, exercised and enforced hereunder subject in all respects to such modification and amendment, and all the terms and conditions of any such Supplemental Bond Indenture shall be deemed to be part of the terms and conditions of this Bond Indenture for any and all purposes.
SECTION 9.03. Endorsement of Bonds; Preparation of New Bonds.
Bonds delivered after the execution of any Supplemental Bond Indenture pursuant to this Article may, and if the Trustee so determines shall, bear a notation by endorsement or otherwise in form approved by the Issuer and the Trustee as to any modification or amendment provided for in such Supplemental Bond Indenture, and, in that case, upon demand of the Holder of any Bond Outstanding at the time of such execution and presentation of his Bond for such purpose at the Principal Corporate Trust Office of the Trustee or at such additional offices as the Trustee may select and designate for that purpose, a suitable notation shall be made on such Bond. If the Supplemental Bond Indenture shall so provide, new Bonds so modified as to conform, in the opinion of the Issuer and the Trustee, to any modification or amendment contained in such Supplemental Bond Indenture, shall be prepared and executed by the Issuer and authenticated by the Trustee, and upon demand of the Holders of any Bonds then Outstanding shall be exchanged at the Principal Corporate Trust Office, without cost to any Bondholder, for Bonds then Outstanding, upon surrender for cancellation of such Bonds, in equal aggregate principal amounts of the same subseries, maturity, Interest Period and interest rate.
SECTION 9.04. Amendment of Particular Bonds.
The provisions of this Article shall not prevent any Bondholder from accepting any amendment as to the particular Bonds held by him, provided that due notation thereof is made on such Bonds.
SECTION 9.05. Consent by Purchasers or Remarketing Agent.
For purposes of this Article, (i) the purchasers of Bonds, whether purchasing as underwriters, for resale or otherwise, upon such purchase and (ii) the Remarketing Agent for Bonds, upon a mandatory tender date for such Bonds, may consent to an amendment, change, modification or waiver of any amendment or supplement with the same effect as a consent given by the Holders of such Bonds.
*                *                 *
 
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ARTICLE X
DEFEASANCE
SECTION 10.01. Discharge of Bond Indenture.
The Bonds may be paid or shall be deemed paid by the Issuer in any of the following ways, provided that the Issuer also pays or causes to be paid any other sums payable hereunder by the Issuer:
A. Payment : by paying or causing to be paid the principal or Redemption Price of and interest on the Bonds, as and when the same become due and payable (from funds other than moneys paid pursuant to a Credit Facility);
B. Defeasance : by depositing with the Trustee, in trust, at or before maturity, money or securities in the necessary amount (as provided in Section 10.03 ) to pay or redeem all Bonds then Outstanding (from funds other than moneys paid pursuant to a Credit Facility); or
C. Surrender : by delivering to the Trustee, for cancellation by it, all Bonds then Outstanding.
If the Issuer shall also pay or cause to be paid all other sums payable hereunder by the Issuer and no amounts are owing to any Credit Facility Provider, then and in that case, at the election of the Issuer (evidenced by a Certificate of the Issuer, filed with the Trustee, signifying the intention of the Issuer to discharge all such indebtedness and this Bond Indenture and upon receipt by the Trustee and the Credit Facility Providers (if any) of (i) an Opinion or Opinions of Counsel to the effect that the obligations under this Bond Indenture and the Bonds have been discharged and (ii) written evidence from each Rating Agency then rating the Bonds that defeasance will not result in the reduction or withdrawal of such ratings), and notwithstanding that any Bonds shall not have been surrendered for payment, this Bond Indenture and the pledge of Revenues and other assets made under this Bond Indenture and all covenants, agreements and other obligations of the Issuer under this Bond Indenture shall cease, terminate, become void and be completely discharged and satisfied, except only as provided in Sections 5.06 and 10.02 . In such event, upon Request of the Issuer, the Trustee shall cause an accounting for such period or periods as may be requested by the Issuer to be prepared and filed with the Issuer and shall execute and deliver to the Issuer all such instruments as may be necessary or desirable to evidence such discharge and satisfaction, and the Trustee shall pay over, transfer, assign or deliver all moneys or securities or other property held by it pursuant to this Bond Indenture that are not required for the payment or redemption of Bonds not theretofore surrendered for such payment or redemption (1) to the Liquidity Facility Providers (if any) to the extent of any amounts owed to such Liquidity Facility Providers (if any) pursuant to the respective Liquidity Facilities and (2) otherwise, to the Borrower; provided that in all events moneys in the Rebate Fund shall be subject to the provisions of Section 5.06 .
SECTION 10.02. Discharge of Liability on Bonds.
Upon the deposit with the Trustee, in trust, at or before maturity, of money or securities in the necessary amount (as provided in Section 10.03 ) to pay or redeem any Outstanding Bond (whether upon or prior to its maturity or the redemption date of such Bond), provided that, if such Bond is to be redeemed prior to maturity, notice of such redemption shall have been given as provided in Article IV or provision satisfactory to the Trustee shall have been made for the giving of such notice, then all liability of the Issuer in respect of such Bond shall cease, terminate, become void
 
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and be completely discharged and satisfied, except only that thereafter the Holder thereof shall be entitled to payment of the principal or Redemption Price of and interest on such Bond by the Issuer and the Issuer shall remain liable for such payment, but only out of such money or securities deposited with the Trustee as aforesaid for its payment, provided further, however, that the provisions of Section 10.04 shall apply in all events.
SECTION 10.03. Deposit of Money or Securities with Trustee.
Whenever in this Bond Indenture it is provided or permitted that there be deposited with or held in trust by the Trustee money or securities in the necessary amount to pay or redeem any Bonds, the money or securities so to be deposited or held may include money or securities held by the Trustee in the funds and accounts established pursuant to this Bond Indenture (other than the Purchase Fund and the Rebate Fund) and shall be:
A. Cash : lawful money of the United States of America in an amount equal to the principal amount of such Bonds and all unpaid interest thereon to maturity (based on the Maximum Rate for periods for which the actual interest rate is not known), except that, in the case of Bonds that are to be redeemed prior to maturity and in respect of which notice of such redemption shall have been given as provided in Article IV or provision satisfactory to the Trustee shall have been made for the giving of such notice, the amount to be deposited or held shall be the principal amount or Redemption Price of such Bonds and all unpaid interest thereon to the redemption date (based on the Maximum Rate for periods for which the actual interest rate is not known); or
B. Governmental Obligations : Governmental Obligations, the principal of and interest on which when due (without any income from the reinvestment thereof) will provide money sufficient to pay the principal or Redemption Price of and all unpaid interest to maturity, or to the redemption date, as the case may be, on the Bonds to be paid or redeemed (based on an assumed interest rate of the Maximum Rate for periods for which the actual interest rate is not known), as such principal or Redemption Price and interest become due, provided that, in the case of Bonds that are to be redeemed prior to the maturity thereof, notice of such redemption shall have been given as provided in Article IV or provision satisfactory to the Trustee shall have been made for the giving of such notice;
provided , in each case, that the Trustee shall have been irrevocably instructed (by the terms of this Bond Indenture or by Request of the Issuer) to apply such money to the payment of such principal or Redemption Price and interest on such Bonds. Governmental Obligations issued in book entry form shall be deemed deposited with the Trustee or other escrow agent upon the perfection of a security interest therein in favor of such Person.
SECTION 10.04. Payment of Bonds After Discharge of Bond Indenture.
Notwithstanding any provisions of this Bond Indenture, any moneys held by the Trustee in trust for the payment of the Redemption Price or the principal of, or interest on, any Bonds and remaining unclaimed for two years (or, if less, one day before such moneys would escheat to the State of Texas under then applicable Texas law) after the principal of all of the Bonds has become due and payable (whether at maturity or upon call for redemption or by acceleration as provided in this Bond Indenture), if such moneys were so held at such date, or two years (or, if less, one day before such moneys would escheat to the State of Texas under then applicable Texas law) after the date of deposit of such moneys if deposited after said date when all of the Bonds became due and payable, shall be repaid to the Borrower (unless such moneys are proceeds of a Credit Facility and moneys are
 
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owed by the Borrower to the Credit Facility Provider obligated therein, in which event to such Credit Facility Provider) free from the trusts created by this Bond Indenture upon receipt of an indemnification agreement acceptable to the Trustee indemnifying the Trustee with respect to claims of Holders of Bonds that have not yet been paid, and all liability of the Trustee with respect to such moneys shall thereupon cease; provided, however , that before the repayment of such moneys to the Borrower or any Credit Facility Provider as aforesaid, the Trustee may (at the cost of the Borrower) first mail to the Holders of Bonds that have not yet been paid, at the addresses shown on the bond registration books maintained by the Trustee, a notice, in such form as may be deemed appropriate by the Trustee with respect to the Bonds so payable and not presented and with respect to the provisions relating to the repayment to the Borrower or such Credit Facility Provider of the moneys held for the payment thereof.
*                *                 *
 
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ARTICLE XI
MISCELLANEOUS
SECTION 11.01. Liability of Issuer Limited.
Notwithstanding anything in this Bond Indenture or in the Bonds contained, the Issuer shall not be required to advance any moneys derived from any source other than the Revenues, the Additional Payments and other assets pledged under this Bond Indenture for any of the purposes in this Bond Indenture mentioned, whether for the payment of the principal or Redemption Price of or interest on the Bonds or for any other purpose of this Bond Indenture. Nevertheless, the Issuer may, but shall not be required to, advance for any of the purposes hereof any funds of the Issuer that may be made available to it for such purposes.
SECTION 11.02. Successor Is Deemed Included in All References to Predecessor.
Whenever in this Bond Indenture either the Issuer or the Trustee is named or referred to, such reference shall be deemed to include the successors or assigns thereof, and all the covenants and agreements in this Bond Indenture contained by or on behalf of the Issuer or the Trustee shall bind and inure to the benefit of the respective successors and assigns thereof whether so expressed or not.
SECTION 11.03. Limitation of Rights to Parties and Certain Other Persons.
Nothing in this Bond Indenture or in the Bonds expressed or implied is intended or shall be construed to give to any Person other than the Issuer, the Trustee, the Borrower, the Credit Facility Providers (if any), the Liquidity Facility Providers (if any), the Bondholder Representative, and the Holders of the Bonds, any legal or equitable right, remedy or claim under or in respect of this Bond Indenture or any covenant, condition or provision therein or herein contained; and all such covenants, conditions and provisions are and shall be held to be for the sole and exclusive benefit of the Issuer, the Trustee, the Borrower, the Credit Facility Providers (if any), the Liquidity Facility Providers (if any) and the Holders of the Bonds. The Credit Facility Providers (if any), the Bondholder Representative, are expressly deemed to be third-party beneficiaries of this Bond Indenture.
SECTION 11.04. Waiver of Notice.
Whenever in this Bond Indenture the giving of notice by mail, Electronic Means or otherwise is required, the giving of such notice may be waived in writing by the Person entitled to receive such notice and in any such case the giving or receipt of such notice shall not be a condition precedent to the validity of any action taken in reliance upon such waiver.
SECTION 11.05. Destruction of Bonds.
Whenever in this Bond Indenture provision is made for the cancellation by the Trustee and the delivery to the Issuer of any Bonds, the Trustee shall, in lieu of such cancellation and delivery, destroy such Bonds and, upon request of the Issuer, deliver a certificate of such destruction to the Issuer.
 
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SECTION 11.06. Severability of Invalid Provisions.
If any one or more of the provisions contained in this Bond Indenture or in the Bonds shall for any reason be held to be invalid, illegal or unenforceable in any respect, then such provision or provisions shall be deemed severable from the remaining provisions contained in this Bond Indenture and such invalidity, illegality or unenforceability shall not affect any other provision of this Bond Indenture, and this Bond Indenture shall be construed as if such invalid or illegal or unenforceable provision had never been contained herein.
SECTION 11.07. Notices.
All notices to the Liquidity Facility Provider (if any) shall be given by Electronic Means (unless otherwise provided herein). Any notice required to be given to Bondholders shall also be given to the Credit Facility Providers (if any) and, during a Term Indexed Mode while a Bondholder Agreement is in effect, the Bondholder Representative. Any notice to or demand upon the Trustee may be served or presented, and such demand may be made, at the Principal Corporate Trust Office (original address shown below), or at such other address as may have been filed in writing by the Trustee with the Interested Parties, the Remarketing Agents (if any), and the Liquidity Facility Providers (if any). Except with respect to notices to the Liquidity Facility Providers (if any) or the Credit Facility Providers (if any) with respect to claims under the Liquidity Facilities or the Credit Facility, respectively, which notices shall be given in accordance with such documents, any notice to or demand upon the Issuer, the Borrower, the Remarketing Agents (if any), the Tender Agent, the Liquidity Facility Providers (if any), the Credit Facility Providers (if any), or the Bondholder Representative shall be deemed to have been sufficiently given or served for all purposes by being delivered or sent by Electronic Means or by being deposited, postage prepaid, in a post office letter box, addressed, as the case may be, to the respective following addresses (or to such other address as may have been filed in writing by such party with the Trustee):
 
 	(1)	Issuer :	
Harris County Industrial Development Corporation
c/o Fulbright & Jaworski L.L.P.
1301 McKinney, Suite 5100
Houston, Texas 77010-3095
Attention: President
 
 	(2)	Borrower :	
HFOTCO LLC
1201 South Sheldon Road
Houston, Texas 77015
Attention: Michael Mangan
Tel.: (713) 948-6100
Fax: (281) 452-6306
Email: mmangan@hfotco.com
 
 	(3)	Remarketing Agent :	
Merrill Lynch, Pierce, Fenner & Smith Incorporated
Municipal Money Markets
Municipal Bond Division
4 World Financial Center, 9th Floor
New York, NY 10080
Attention: Mona Payton
 
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 	(4)	Trustee/Tender Agent :	
The Bank of New York Mellon Trust Company, N.A.
601 Travis Street, Floor 16
Houston, Texas 77002
Attention: Public Finance
Tel.: (713) 227-1600
Fax: (713) 483-6979
Email: rosalyn.davis@bnymellon.com
 
 	(5)	Credit Facility Provider/Liquidity Facility Provider:	
As specified in the Reimbursement Agreement (if any) with such Person
 
 	(6)	S&P :	
Standard & Poor’s Rating Service
55 Water Street, 41 st Floor
New York, New York 10041-0003
Attention: Structured Finance LOC Surveillance Group
Email: nyloc@standardandpoors.com
 
 	(7)	Moody’s :	
Moody’s Investors Services, Inc.
7 World Trade Center
New York, New York 10007
Attention: Structured Finance
 
 	(8)	Fitch :	
Fitch Ratings
One State Street Plaza
New York, New York 10004
Attention: U.S. Public Finance
 
 	(9)	Bondholder Representative :	
As specified in the Bondholder Agreement (if any)
SECTION 11.08. Evidence of Rights of Bondholders.
Any request, consent or other instrument required or permitted by this Bond Indenture to be signed and executed by Bondholders may be in any number of concurrent instruments of substantially similar tenor and shall be signed or executed by such Bondholders in person or by an agent or agents duly appointed in writing. Proof of the execution of any such request, consent or other instrument or of a writing appointing any such agent, or of the holding by any Person of Bonds transferable by delivery, shall be sufficient for any purpose of this Bond Indenture and shall be conclusive in favor of the Trustee and of the Issuer if made in the manner provided in this Section.
 
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The fact and date of the execution by any Person of any such request, consent or other instrument or writing may be proved by the certificate of any notary public or other officer of any jurisdiction, authorized by the laws thereof to take acknowledgments of deeds, certifying that the Person signing such request, consent or other instrument acknowledged to him the execution thereof, or by an affidavit of a witness of such execution duly sworn to before such notary public or other officer.
The ownership of Bonds shall be proved by the bond registration books held by the Trustee.
Any request, consent, or other instrument or writing of the Holder of any Bond shall bind every future Holder of the same Bond and the Holder of every Bond issued in exchange therefor or in lieu thereof, in respect of anything done or suffered to be done by the Trustee or the Issuer in accordance therewith or reliance thereon.
SECTION 11.09. Disqualified Bonds.
In determining whether the Holders of the requisite aggregate principal amount of Bonds have concurred in any demand, request, direction, consent or waiver under this Bond Indenture, Bonds that are held by or for the account of the Issuer or the Borrower, or by any other obligor on the Bonds, or by any Person directly or indirectly controlling or controlled by, or under direct or indirect common control with, the Issuer, the Borrower or any other obligor on the Bonds, shall be disregarded and deemed not to be Outstanding for the purpose of any such determination. Bonds so owned that have been pledged in good faith may be regarded as Outstanding for the purposes of this Section if the pledgee shall establish to the satisfaction of the Trustee the pledgee’s right to vote such Bonds and that the pledgee is not a Person directly or indirectly controlling or controlled by, or under direct or indirect common control with, the Issuer, the Borrower or any other obligor on the Bonds. In case of a dispute as to such right, any decision by the Trustee taken upon the advice of counsel shall be full protection to the Trustee.
SECTION 11.10. Money Held for Particular Bonds.
The money held by the Trustee for the payment of the interest, principal or Redemption Price due on any date with respect to particular Bonds (or portions of Bonds in the case of registered Bonds redeemed in part only) shall, on and after such date and pending such payment, be set aside on its books and held in trust by it for the Holders of the Bonds entitled thereto, subject, however , to the provisions of Section 10.04 .
SECTION 11.11. Funds and Accounts.
Any fund or account required by this Bond Indenture to be established and maintained by the Trustee may be established and maintained in the accounting records of the Trustee, either as a fund or an account, and may, for the purposes of such records, any audits thereof and any reports or statements with respect thereto, be treated either as a fund or as an account; but all such records with respect to all such funds and accounts shall at all times be maintained in accordance with industry standards to the extent practicable, and with due regard for the requirements of Section 6.06 and for the protection of the security of the Bonds and the rights of every Holder thereof. The Trustee may establish such additional funds and accounts as it deems necessary to perform its obligations hereunder.
 
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SECTION 11.12. Limitation on Liability.
A. Limitation on Liability of Issuer. No provision of this Bond Indenture shall require the Issuer to expend or risk its own funds (other than the Revenues) or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, and all expenses of the Issuer in carrying out its obligations under this Bond Indenture shall be payable solely from and to the extent of funds derived by the Issuer from the Borrower. Anything in this Bond Indenture to the contrary notwithstanding, the performance by the Issuer of all duties and obligations imposed upon it hereby, the exercise by it of all powers granted to it hereunder, the carrying out of all covenants, agreements, and promises made by it hereunder, and liability of the Issuer for all warranties and other covenants herein shall be limited solely to the money and revenue received from the payments by the Borrower under the Loan Agreement, moneys attributable to the proceeds of Bonds, and income from the temporary investment thereof; and the Issuer shall not be required to effectuate any of such duties, obligations, powers, or covenants except from, and to the extent of, such moneys, revenues, proceeds, and payments. Whether or not therein expressly so provided, every provision of this Bond Indenture relating to the conduct or affecting the liability of the Issuer shall be subject to the provisions of this Section.
B. No Recourse Against Others . No recourse under or upon any obligation, covenant, or agreement contained in this Bond Indenture, or in any Bond, or for any claim based thereon or otherwise in respect thereof, shall be had against any incorporator, or against any past, present, or future director, officer, or employee, as such, of the Issuer, the Trustee, or any successor corporation, either directly or through the Issuer or the Trustee, whether by virtue of any constitution or statute or rule of law, or by the enforcement of any assessment, judgment, or penalty, or otherwise; it being expressly understood that this Bond Indenture and the Bonds are solely corporate obligations, and that no such personal liability whatever shall attach to, or is or shall be incurred by, the incorporators, directors, officers, or employees, as such, of the Issuer, the Trustee, or any successor corporation, or any of them, because of the creation of indebtedness hereby authorized, or under or by reason of the obligations, covenants, or agreements contained in this Bond Indenture or the Bonds or implied therefrom, and that any and all such personal liability either at common law or equity or by constitution or statute, of, and any and all such rights and claims against, every such incorporator, director, officer, or employee, as such, are hereby expressly waived and released as a condition of, and in consideration for, the execution of this Bond Indenture and the issuance of the Bonds.
SECTION 11.13. Credit Facility Providers and Bondholder Representative.
The Bondholder Representative for the Bonds of a subseries, if a Bondholder Agreement is in effect therefor, and otherwise the Credit Facility Provider, if a Credit Facility is in effect for the Bonds of any subseries and the Credit Facility Provider for such Bonds is not in default under the Credit Facility on which it is obligated, shall be deemed to be the owner of such Bonds for the purpose of all approvals, consents, waivers or institution of any action and the direction of all remedies, except as otherwise provided herein.
SECTION 11.14. Business Days.
When any action is provided for herein to be done on a day named or within a specified time period, and the day or the last day of the period falls on a day other than a Business Day, such action may be performed on the next ensuing Business Day with the same effect as though performed on the appointed day or within the specified period.
 
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SECTION 11.15. Governing Law.
This Bond Indenture and the Bonds are contracts made under the laws of the State of Texas and shall be governed by and construed in accordance with such laws applicable to contracts made and performed in said State.
SECTION 11.16. Execution in Several Counterparts.
This Bond Indenture may be executed in any number of counterparts and each of such counterparts shall for all purposes be deemed to be an original; and all such counterparts, or as many of them as the Issuer and the Trustee shall preserve undestroyed, shall together constitute but one and the same instrument.
SECTION 11.17. Consent to Loan Agreement; Exchange of Notes.
The Trustee is hereby authorized to, and does hereby, consent to execution and delivery by the Issuer and the Borrower of the amendment to the Loan Agreement to become effective simultaneously with this Bond Indenture.
On the effective date of this Bond Indenture, the Trustee shall exchange the “Note” (as defined in the Original Loan Agreement) held by it under the Original Bond Indenture for the Note (as defined in the Loan Agreement) issued to it by the Borrower on such effective date and, on behalf of the Borrower, shall cancel such “Note.”
SECTION 11.18. Effective Date and Effect.
This Bond Indenture shall become effective on August 19, 2014, provided that the Tender Agent shall have received the Purchase Price of all Bonds due on such date and (2) the Trustee shall have received written consents hereto from Bank of America, N.A. (as the Credit Facility Provider under the Original Bond Indenture) and an Opinion of Counsel to the effect that the Bonds issued pursuant to Section 3.01 are valid and enforceable obligations of the Issuer and interest on such Bonds is excludable from gross income of the owners thereof for federal income tax purposes, except with respect to any Bond for any period of time during which such Bond is held by a “substantial user” of any of the facilities financed with proceeds of the Bonds or by a “related person”, as such terms are defined in Section 147(a) of the Code. Promptly after this Bond Indenture has become effective, the Trustee shall cancel and release the letter of credit issued to it by Bank of America, N.A. under the Original Bond Indenture and return the same to the issuer thereof in accordance with Section 5.08F of the Original Bond Indenture.
Except as expressly modified by this Bond Indenture, the terms and provisions of the Original Bond Indenture shall remain in force and effect as restated hereby, all of which are expressly ratified and confirmed. No amendment to the Original Bond Indenture or the Bonds effected or authorized hereby is intended to or shall extinguish any indebtedness represented thereby.
*                *                 *
 
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IN WITNESS WHEREOF, the Issuer has caused this Bond Indenture to be signed in its name by its duly authorized officer, and The Bank of New York Mellon Trust Company, National Association, in token of its acceptance of the trusts created hereunder, has caused this Bond Indenture to be signed in its corporate name by one of the officers thereunto duly authorized all as of the day and year first above written.

HARRIS COUNTY INDUSTRIAL	
DEVELOPMENT CORPORATION	
		
By	 	/s/ Authorized Representative	
	 	Authorized Representative	
[ Signature page to Amended and Restated Bond Indenture Series 2010 ]
 
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[ This page is intentionally left blank ]
[ Signature page to Amended and Restated Bond Indenture Series 2010 ]
 
S-2

			
THE BANK OF NEW YORK MELLON TRUST	
COMPANY, NATIONAL ASSOCIATION, as	
Trustee	
		
By	 	/s/ Authorized Representative	
	 	Authorized Representative	
[ Signature page to Amended and Restated Bond Indenture Series 2010 ]
 
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[ This page is intentionally left blank ]
[ Signature page to Amended and Restated Bond Indenture Series 2010 ]
 
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E XHIBIT A
T O
B OND I NDENTURE
(FORM OF BOND)
[ Insert legend from Section 2.20, if applicable ]
UNITED STATES OF AMERICA
STATE OF TEXAS
HARRIS COUNTY INDUSTRIAL DEVELOPMENT CORPORATION
MARINE TERMINAL REVENUE BOND
(HFOTCO LLC PROJECT)
SERIES 2010

BOND NUMBER	  		  		  	PRINCIPAL AMOUNT	
R-                     	  		  		  	$                                     	
				
INTEREST RATE 1 :	  	DATED DATE 2 :	  	MATURITY DATE:	  	CUSIP:	
                                	  	                            	  	                                	  	                                	
REGISTERED OWNER:                                                                              
PRINCIPAL AMOUNT:                                                   DOLLARS
INITIAL INTEREST MODE:                                                                  
FIRST DAY OF INITIAL INTEREST PERIOD IN INITIAL INTEREST MODE:                                              
The Harris County Industrial Development Corporation, a public non-profit corporation organized and existing under and by virtue of the laws of the State of Texas (hereinafter referred to as the “ Issuer ”), acknowledges itself indebted and for value received hereby promises to pay, but only from the sources mentioned herein, to the Registered Owner named above or registered assigns, the Principal Amount stated above on the Maturity Date stated above, upon the presentation and surrender hereof at the Principal Corporate Trust Office of the Trustee hereinafter mentioned, and to pay, but only from such sources, interest on such Principal Amount from the Dated Date stated above, or the most recent Interest Payment Date to which interest hereon has been paid or duly provided for, at the Interest Rate stated [above] 3 [in the Bond Indenture referred to herein] 4 , until the Principal Amount is paid, payable on [May 1 and November 1 of each year] 3 [the days provided in such Bond Indenture] 4 , and calculated as provided in the Bond Indenture referred to herein, which interest shall be paid by the Trustee hereinafter mentioned by check mailed (except as herein provided) to the Registered Owner hereof, at the address of such Registered Owner as it appears on the registration books kept by the Trustee, as registrar of the Issuer, as of the Record Date. Payment of the principal and Redemption Price of this Bond will be

1  	Insert applicable rate per annum for Fixed Rate Bonds and “Variable” for all other Bonds.	
2  	Insert date of initial delivery of the Bonds under the Original Bond Indenture.	
3  	Insert for Fixed Rate Bonds.	
4  	Insert for Bonds other than Fixed Rate Bonds.	
 
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payable at the Principal Corporate Trust Office of the Trustee referred to herein. Registered Owners of at least $1,000,000 principal amount of Bonds (hereinafter defined) may receive the payment of interest by wire transfer at the wire transfer address specified by such Owner in a written request received by the Trustee. The principal and Redemption Price of and interest on this Bond are payable in any coin or currency of the United States of America which at the time of payment is legal tender for the payment of public and private debts. When Cede & Co. is the Holder of the Bonds, said principal or Redemption Price and interest payments shall be made to Cede & Co. by wire transfer in immediately available funds.
Definitions . Unless otherwise defined herein, all terms herein shall have the same meanings, respectively, as such terms are given in the Bond Indenture (as hereafter defined).
Authority . This Bond is one of a duly authorized series of Bonds of the Issuer designated its “Marine Terminal Revenue Bonds (HFOTCO LLC Project), Series 2010” (hereinafter referred to as the “ Bonds ”), issued by the Issuer in the aggregate principal amount of $75,000,000 under and pursuant to the Development Corporation Act, Chapter 501, Texas Local Government Code, as amended to the date hereof (herein referred to as the “ Act ”), and pursuant to the Amended and Restated Bond Indenture, dated as of August 19, 2014 (herein, as supplemented and amended from time to time in accordance with its terms, referred to as the “ Bond Indenture ”), between the Issuer and The Bank of New York Mellon Trust Company, National Association, as trustee (together with its successors in trust, herein referred to as the “ Trustee ”). The Bonds are issued for the purposes described in the Bond Indenture.
Subseries . As provided in the Bond Indenture, the Bonds may be divided into subseries. This Bond is one of the subseries, if any, specified in its title.
Limitation on Recourse . The Bonds are secured by a pledge and assignment to the Trustee of the Revenues and the security therefor and guarantees thereof and by the proceeds from the sale of the Bonds (until disbursed as provided by the Bond Indenture) and all funds and accounts authorized and established by the Bond Indenture (with the exception of the Rebate Fund and the Purchase Fund). This Bond is a limited obligation of the Issuer payable solely from the Revenues specified in the Bond Indenture, which consist of certain payments received or receivable by the Issuer from the Borrower under the Loan Agreement.
No recourse shall be had for the payment of the principal or Redemption Price of or interest on this Bond or for any claims based thereon or under the Bond Indenture against any member, officer, agent or employee of the Issuer or any person executing this Bond, all such liability, if any, being hereby expressly waived and released by every Registered Owner of this Bond by the acceptance hereof, as provided in the Bond Indenture.
NEITHER THE STATE OF TEXAS NOR ANY POLITICAL CORPORATION, SUBDIVISION, OR AGENCY OF THE STATE OF TEXAS, INCLUDING HARRIS COUNTY, TEXAS, SHALL BE OBLIGATED TO PAY THE PRINCIPAL OF OR THE INTEREST ON THE BONDS. NEITHER THE FAITH AND CREDIT NOR THE TAXING POWER OF THE STATE OF TEXAS, HARRIS COUNTY, TEXAS, OR ANY OTHER POLITICAL CORPORATION, SUBDIVISION, OR AGENCY OF THE STATE OF TEXAS IS PLEDGED TO THE PAYMENT OF PRINCIPAL OF OR INTEREST OR ANY REDEMPTION PREMIUM ON THE BONDS. THE ISSUER HAS NO TAXING POWER.
Bond Indenture Controlling . Reference is hereby made to the Bond Indenture for a description of the rights, limitation of rights, duties and immunities of the Issuer, the Trustee, and the Registered Owners of the Bonds. By the acceptance of this Bond, the Registered Owner hereof assents to all provisions of the Bond Indenture. Certified copies of the Bond Indenture are on file at the Principal Corporate Trust Office of the Trustee.
 
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Redemption and Purchase in Lieu of Redemption . The Bonds shall be subject to optional and mandatory redemption, as well as purchase in lieu of redemption, all as provided in the Bond Indenture.
Selection of Bonds to Be Redeemed . In the case of Bonds to be redeemed at the election or direction of the Borrower, the Borrower will select the subseries (if any), Mode, maturities, Interest Periods, interest rates, and principal amounts of the Bonds to be redeemed; if less than all Bonds of the same subseries (if any), maturity, Interest Period, and interest rate are to be redeemed, the Bonds of such subseries, maturity, Interest Period and interest rate to be redeemed will be selected by the Trustee, by lot, using such method of selection as the Trustee in its discretion shall consider appropriate and fair, except as otherwise provided in the Bond Indenture; provided that Liquidity Facility Bonds (if any) of such subseries are to be redeemed first.
Notice of Redemption . The Trustee is to give notice of the redemption of the Bonds in the name of the Issuer as provided in the Bond Indenture, but the failure of any Bondholder other than the Holder of this Bond to receive such notice will not affect the validity of the proceedings for the redemption of this Bond.
If, on any redemption date, moneys for the redemption of the Bonds of this subseries then to be redeemed, together with interest thereon to the redemption date, are held by the Trustee so as to be available for payment of the Redemption Price, then interest on such Bonds will cease to accrue from and after the redemption date and such Bonds will no longer be considered to be Outstanding under the Bond Indenture.
Optional and Mandatory Tender for Purchase . Bonds or portions thereof in the Daily Mode, Weekly Mode, or R- FLOATs Mode are required to be purchased at the option of the Registered Owner on the dates, by the Persons, at the price, from and to the extent of the funds, and on the other terms and conditions provided in the Bond Indenture. The Bond Indenture requires this Bond or a specified portion hereof to be tendered by the Registered Owner for purchase upon each Mandatory Purchase Date therefor described in the Bond Indenture. By accepting this Bond the Holder hereof agrees to all such provisions in the Bond Indenture.
Acceleration . In case an Event of Default as defined in Section 7.01 of the Bond Indenture shall occur, the principal of and interest on this Bond may become or be declared due and payable in the manner and with the effect provided in the Bond Indenture.
Defeasance . The Bond Indenture permits a discharge and satisfaction of the pledge of the Revenues or other moneys and securities pledged by the Bond Indenture upon payment to the Trustee of moneys or certain Investment Securities in an amount which, together with interest thereon, would be sufficient to provide moneys for the payment when due of the principal or Redemption Price of and interest due and to become due on said Bonds on and prior to the redemption or maturity date thereof, as the case may be.
Limitation on Suits . The Registered Owner of this Bond shall have no right to institute any suit, action or proceeding in equity or at law for the execution of any trust under the Bond Indenture, or for any other remedy under the Bond Indenture, except as otherwise expressly provided in the Bond Indenture.
 
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Legal Holidays . If the specified date for any payment hereon shall be a Saturday, Sunday, or legal holiday or the equivalent (other than a moratorium) on which banking institutions generally are authorized to close in the place of payment or in the city in which is located the Principal Corporate Trust Office of the Trustee or shall otherwise be a day other than a Business Day, then such payment may be made on the next succeeding day which is not one of the foregoing days without additional interest and with the same force and effect as if made on the specified date for such payment.
Amendments . The Bond Indenture contains provisions permitting the Issuer to adopt Supplemental Bond Indentures modifying or amending the Bond Indenture and the rights and obligations of the Issuer and the Holders of the Bonds thereunder, in some cases without the consent of the Bondholders and in some cases with the written consent of the Holders of a majority in principal amount of the Bonds Outstanding thereunder; provided, however , that no such modification or amendment shall permit a change in the terms of redemption or maturity of the principal of any Outstanding Bond or of any installment of interest thereon or a reduction in the principal amount or the Redemption Price thereof or in the rate of interest thereon without the consent of the Holders of such Bond, or shall reduce the percentages or otherwise affect the classes of Bonds the consent of the Holders of which is required to effect any such modification or amendment.
Transfer and Exchange . This Bond is a negotiable instrument as provided in the Act, subject, however , to the provisions for registration and transfer contained in the Bond Indenture and in this Bond. This Bond is transferable, as provided in the Bond Indenture, only upon the registration books kept by the Trustee, as registrar of the Issuer, at the request of the Registered Owner hereof in person or by his attorney duly authorized in writing, upon surrender hereof together with a written instrument of transfer satisfactory to the Trustee duly executed by such Registered Owner or his duly authorized attorney and upon the payment of such charges as provided in the Bond Indenture. Upon surrender for transfer of this Bond, the Issuer shall issue in the name of the transferee a new Bond or Bonds in accordance with the provisions of the Bond Indenture and this Bond of the same aggregate principal amount and the same subseries, Interest Period, interest rate and maturity.
The Issuer and the Trustee may deem and treat the Person in whose name this Bond is registered upon the books of the Issuer as the absolute owner hereof, whether this Bond shall be overdue or not, for the purpose of receiving payment of, or on account of, the principal and Redemption Price of and interest on this Bond and for all other purposes whatsoever, and all such payments so made to the Registered Owner hereof or upon his order shall be valid and effectual to satisfy and discharge the liability upon this Bond to the extent of the sum or sums paid, and neither the Issuer nor the Trustee shall be affected by any notice to the contrary.
The Bonds are issuable as fully registered Bonds in denominations specified in the Bond Indenture. Bonds may, at the option of the Holders thereof, be exchanged for an equal aggregate principal amount of Bonds of the same maturity, subseries (if any), Interest Period, and interest rate of any other authorized denominations, upon surrender thereof at the Principal Corporate Trust Office of the Trustee with a written instrument of transfer satisfactory to the Trustee, duly executed by the Registered Owner or his attorney duly authorized in writing.
For every exchange or transfer of Bonds the Issuer or the Trustee may make a charge sufficient to reimburse the Issuer or the Trustee for any tax, fee or other governmental charge required to be paid with respect to such exchange or transfer, which sum or sums shall be paid by the Person requesting such exchange or transfer, as a condition precedent to the exercise of the privilege of making such exchange or transfer. The cost of preparing each new Bond issued upon such exchange or transfer and any other expenses of the Issuer or the Trustee incurred in connection therewith shall be paid by the Person requesting such exchange or transfer.
 
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Due Authority . It is hereby certified and recited by the Issuer that all conditions, acts, and things required by the statutes of the State of Texas and the Bond Indenture to exist, to have happened and to have been performed precedent to or in the issuance of the Bonds and of this Bond in order to make the Bonds and this Bond the legal, valid and binding limited obligations of the Issuer, in accordance with their terms, exist, have happened and have been performed in regular and due form as required by law, and that the issuance of the Bonds is within every debt limit and other limit upon the Issuer prescribed by law or by the Bond Indenture for the Issuer.
Severability; Governing Law . In case any provision in this Bond or any application thereof shall be invalid, illegal, or unenforceable, the validity, legality, and enforceability of the remaining provisions and applications shall not in any way be affected or impaired thereby. This Bond shall be construed in accordance with and governed by the laws of the State of Texas and the federal law of the United States of America.
Unless a certificate of authentication hereon has been executed by the Trustee, by manual signature, this Bond shall not be entitled to any benefit under the Bond Indenture or be valid or obligatory for any purpose.
[ The remainder of this page is intentionally left blank ]
 
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IN WITNESS WHEREOF, as provided by the Act, the Issuer has caused this Bond to be duly executed.

	 	HARRIS COUNTY INDUSTRIAL	
	 	DEVELOPMENT CORPORATION	
			
Date:                                                                          	 	By:	  	 	
	 		  	[Title]	

(SEAL)	
	
ATTEST:	
		
By:	 	 	
	 	[Title]	
 
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C ERTIFICATE OF A UTHENTICATION
This Bond is one of the Bonds described in the within mentioned Bond Indenture, a predecessor Bond for which has been approved by the Attorney General of Texas and registered by the Comptroller of Public Accounts of the State of Texas.

 	
[ Name of Trustee ], as Trustee	
		
By:	 	 	
	 	Authorized Signature	
 
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A BBREVIATIONS
The following abbreviations, when used in the inscription on the face of the within Bond, shall be construed as though they were written out in full according to applicable laws or regulations:
TEN COM—as tenants in common
TEN ENT -as tenants by the entireties
JT TEN – as joint tenants with right of survivorship and not as tenants in common
UNIF GIFT MIN ACT -                      Custodian                                   under Uniform Gift to Minors Act
                                                     (Cust)                                 (Minor)

                             (State)
Additional abbreviations may also be used though not in the above list.
A SSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sell(s), assign(s) and transfer(s) unto         

 
	
PLEASE INSERT SOCIAL SECURITY OR
OTHER IDENTIFYING NUMBER OF ASSIGNEE	

    	

(please print or typewrite name and address including postal zip code of assignee)

the within Bond and all rights thereunder, and hereby irrevocably constitutes and appoints                             Attorney                                                      to transfer the within Bond on the books kept for registration hereof, with full power of substitution in the premises.
Dated:                                                  

 
NOTICE: Signature(s) must be guaranteed by an “eligible guarantor institution” meeting the requirements of the Trustee which requirements will include membership or participation in STAMP or such other “signature guarantee program; as may be determined by the Trustee in addition to, or in substitution for, STAMP, all in accordance with the Securities Exchange Act of 1934, as amended.	  	 
NOTICE: The signature to this assignment must correspond with the name as written upon the face of the Bond in every particular, without alteration or enlargement or any change whatsoever	
 
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E XHIBIT B
T O
B OND I NDENTURE
INVESTMENT SECURITIES
“ Investment Securities” means any of the following securities:
(1) Governments and Agencies: obligations of the United States of America or its agencies and instrumentalities;
(2) Government Guaranteed Obligations: other obligations, the principal of and interest on which are unconditionally guaranteed or insured by, or backed by the full faith and credit of, the United States of America or any agency or instrumentality thereof;
(3) Municipals: obligations of states, agencies, counties, cities, and political subdivisions of any state rated as to investment quality by S&P not less than “AA-” and by Moody’s not less than “A1/P-1” or “Aa3” and having a remaining term of one year or less;
(4) Insured CDs: certificates of deposit issued by a state or national bank or savings bank domiciled in the State of Texas and the short-term debt of which is rated at least “A1/P-1” or “Aa3” by Moody’s, if such certificates of deposit are for a fixed dollar amount plus a fixed rate of interest, and are guaranteed or insured by the Federal Deposit Insurance Corporation or its successor, and are not rated by S&P with the suffix “r”;
(5) Collateralized Repos: fully collateralized agreements to buy, hold for a specified time, and sell back at a future date obligations described in Clauses (1)  through (3)  immediately above, if such agreement:
(a) has a defined termination date within one year after purchase for a fixed principal sum plus interest;
(b) is secured by obligations described in such Clause (1) ;
(c) requires the securities being purchased to be pledged to the Trustee, held in the name of the Trustee, and deposited at the time the investment is made with the Trustee or with a third party selected and approved by Borrower Order;
(d) is placed through a primary government securities dealer, as defined by the Federal Reserve, or a financial institution doing business in the State of Texas; and
(e) is rated not less than “A-1+” by S&P and not less than “A1/P-1” or “Aa3” by Moody’s, and such rating by S&P does not include the suffix “r”, or the Trustee has received written confirmation from each Rating Agency that the investment of funds under such agreement will not result in the assignment of a rating to the Bonds of any subseries that is less than either such level;
(6) Bankers’ Acceptances: bankers’ acceptances that:
(a) have a stated maturity within three months after the date of issuance;
 
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(b) will be, in accordance with their terms, liquidated in full at maturity for a fixed dollar amount plus interest;
(c) are eligible as collateral for borrowing from a Federal Reserve Bank; and
(d) are issued by a bank organized and existing under the laws of the United States of America or any state, the short-term obligations of which bank are rated not less than “A-1+” by S&P and not less than “P-1” by Moody’s, and such rating by S&P does not include the suffix “r”;
(7) Commercial Paper: commercial paper that matures in a fixed dollar amount within three months after the date of its issuance, is rated not less than “A-1+” by S&P and not less than “P-1” by Moody’s, and such rating by S&P does not have an “r” appended to such rating;
(8) Money Market Mutual Funds: money market mutual funds that:
(a) are registered with and regulated by the United States Securities and Exchange Commission;
(b) provide the Trustee or the Issuer with a prospectus and other information required by the Securities Exchange Act of 1934 or the Investment Company Act of 1940;
(c) have a dollar-weight average stated maturity of 90 days or fewer;
(d) include in their investment objectives the maintenance of a stable net asset value of $1 per share; and
(e) are continuously rated as to investment quality not less than “AAAm” or “AAAm-G” by S&P and “Aaa” by Moody’s;
(9) Investment Contracts: obligations of any Person either (1) the long-term senior unsecured debt or claims-paying ability or financial strength of which, or of any unconditional guarantor of full and timely payment of its obligations thereunder, is rated at least “AA-” by S&P and “Aa3” by Moody’s or (2) both (a) which has agreed to pledge collateral therefor and (b) as to which the Trustee has received written confirmation from each Rating Service that an investment of funds under such obligation will not result in the assignment of a long-term rating to the Bonds by such Rating Service that is less than the lower of “AA-,” in the case of S&P, or “Aa3,” in the case of Moody’s, or the rating then assigned by such Rating Service to the long-term senior unsecured debt of the highest rated Credit Facility Provider (if any); and
(10) Deposit Agreements : demand deposits, including interest bearing money market accounts, time deposits, trust funds, trust accounts, overnight bank deposits, interest-bearing deposits, and certificates of deposit or bankers acceptances of depository institutions, including the Trustee or any of its affiliates, rated in the AA long-term ratings category or higher by S&P or Moody’s or which are fully FDIC-insured;
excluding, however , (A) obligations whse payment represents the coupon payments on the outstanding principal balance of underlying mortgage-backed securities collateral and pays no principal; (B) obligations whose payment represents the principal stream of cash flow from underlying mortgage-backed securities collateral and bears no interest; (C) collateralized mortgage obligations that have a stated final maturity date of greater than 10 years; and (D) collateralized mortgage obligations the interest rate on which is determined by an index that adjusts opposite to the changes in a market index.
 
B-2

E XHIBIT C
TO
B OND I NDENTURE
FORM OF REQUISITION

[Name and Address of Trustee]

Re:	  	Harris County Industrial Development Corporation Marine Terminal Revenue Bonds (HFOTCO	
	  	LLC Project) Series 2010	
REQUISITION NO.
Ladies and Gentlemen:
HFOTCO LLC, as the Borrower under the Amended and Restated Bond Indenture, dated as of August 19, 2014 (the “ Bond Indenture ”), from the Issuer of the above referenced Bonds to you, as Trustee, hereby directs you to withdraw the sum of $                     from the Costs of Issuance Fund and $                     from the Project Fund established under the Bond Indenture and to disburse such amounts [ insert payment instructions ].
In connection with this direction, the undersigned officers of the Borrower state that:
1. Eligible Costs : The Borrower has incurred Costs of the Projects at least equal to the above amount, no such Costs are the basis for any other requisition by the Borrower which has previously been honored or is now pending under the Bond Indenture, and either (a) such Costs were paid by the Borrower on or after May 16, 2009, or have not yet been paid by the Borrower, or (b) such Costs were incurred subsequent to, and paid from one or more draws under, a borrowing by the Borrower for such purpose, and the disbursement requested hereby will be applied to repay such borrowing in the same amount, or (c) such Costs were architectural, engineering, survey, soil testing, and similar costs incurred prior to commencement of the acquisition, construction, or rehabilitation of the Projects (other than land acquisition, site preparation, and similar costs incident to commencement of construction), or (d) such Costs are costs of issuance of the Bonds.
2. Limited Costs of Issuance and Non-Qualifying Project Costs : The disbursement requested hereby, when added to all previous disbursements from the Project Fund, will not result in financing by the Bonds of (a) costs of issuance of the Bonds in an amount which exceeds 2% of the proceeds (i.e., issue price exclusive of accrued interest) of the Bonds or (b) costs of issuance of the Bonds and property other than “qualified project costs” for Hurricane Ike Disaster Area Bonds in an aggregate amount that exceeds 5% of the net proceeds (i.e., proceeds reduced by amounts in a reasonably required reserve or replacement fund) of the Bonds.
All capitalized terms herein have the meanings ascribed to such terms in the Bond Indenture.

Very truly yours,	
	
HFOTCO LLC	
		
By:	 	 	
[Name of Officer]	
[Title]	
 
C-1

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C-2

Exhibit 4.2

 
HARRIS COUNTY INDUSTRIAL DEVELOPMENT CORPORATION
and
THE BANK OF NEW YORK MELLON TRUST COMPANY,
NATIONAL ASSOCIATION,
as Trustee

AMENDED AND RESTATED BOND INDENTURE
Dated as of August 19, 2014

$50,000,000
HARRIS COUNTY INDUSTRIAL DEVELOPMENT CORPORATION
MARINE TERMINAL REVENUE BONDS
(HFOTCO LLC PROJECT)
SERIES 2011

 

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TABLE OF CONTENTS

 	  	 	  	Page	 	
PARTIES	  				
RECITALS	  				
GENERAL AGREEMENT	  				
	
ARTICLE I	 	
DEFINITIONS; CONTENT OF CERTIFICATES AND OPINIONS	 	
			
SECTION 1.01.	  	Definitions	  	 	2	 	
SECTION 1.02.	  	Content of Certificates and Opinions	  	 	20	 	
SECTION 1.03.	  	Interpretation	  	 	20	 	
	
ARTICLE II	 	
THE BONDS	 	
			
SECTION 2.01.	  	Authorization of Bonds	  	 	22	 	
SECTION 2.02.	  	Denominations; Form; Date; Maturity; Numbering; Interest Accrual; Subseries	  	 	22	 	
SECTION 2.03.	  	Payment of Principal of and Interest on the Bonds	  	 	23	 	
SECTION 2.04.	  	Initial Mode; Change of Mode	  	 	24	 	
SECTION 2.05.	  	Determination of Commercial Paper Rates, Purchase Date and Interest Periods During Commercial Paper Mode	  	 	25	 	
SECTION 2.06.	  	Determination of Interest Rates During the Daily Mode, the Weekly Mode and the R-FLOATs Mode	  	 	26	 	
SECTION 2.07.	  	Determination of Indexed Rates	  	 	28	 	
SECTION 2.08.	  	Determination of Stepped Coupon Rate	  	 	30	 	
SECTION 2.09.	  	Determination of Term Rates	  	 	30	 	
SECTION 2.10.	  	Determination of Fixed Rate	  	 	31	 	
SECTION 2.11.	  	Alternate Rate for Interest Calculation	  	 	31	 	
SECTION 2.12.	  	Changes in Mode and Maximum Rate	  	 	32	 	
SECTION 2.13.	  	Form of Bonds	  	 	36	 	
SECTION 2.14.	  	Execution of Bonds	  	 	36	 	
SECTION 2.15.	  	Transfer of Bonds	  	 	37	 	
SECTION 2.16.	  	Exchange of Bonds	  	 	37	 	
SECTION 2.17.	  	Bond Register	  	 	37	 	
SECTION 2.18.	  	Temporary Bonds	  	 	38	 	
SECTION 2.19.	  	Bonds Mutilated, Lost, Destroyed or Stolen	  	 	38	 	
SECTION 2.20.	  	Use of Securities Depository	  	 	38	 	
SECTION 2.21.	  	The Calculation Agent	  	 	40	 	
	
ARTICLE III	 	
ISSUANCE OF BONDS; APPLICATION OF PROCEEDS	 	
			
SECTION 3.01.	  	Issuance and Exchange of the Bonds	  	 	42	 	
SECTION 3.02.	  	Application of Proceeds of the Bonds	  	 	42	 	
SECTION 3.03.	  	Establishment and Application of Costs of Issuance Fund	  	 	42	 	
 
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TABLE OF CONTENTS
(cont’d)

 	  	 	  	Page	 	
SECTION 3.04.	  	Establishment and Application of Project Fund	  	 	42	 	
SECTION 3.05.	  	Validity of Bonds	  	 	43	 	
	
ARTICLE IV	 	
REDEMPTION AND TENDER OF BONDS	 	
			
SECTION 4.01.	  	Terms of Redemption and Purchase in Lieu of Redemption	  	 	44	 	
SECTION 4.02.	  	Selection of Bonds for Redemption or Purchase	  	 	47	 	
SECTION 4.03.	  	Notice of Redemption	  	 	47	 	
SECTION 4.04.	  	Partial Redemption of Bonds	  	 	48	 	
SECTION 4.05.	  	Effect of Redemption	  	 	48	 	
SECTION 4.06.	  	Optional Tenders of Bonds in the Daily Mode, the Weekly Mode or the R-FLOATs Mode	  	 	48	 	
SECTION 4.07.	  	Mandatory Purchase at End of Commercial Paper Rate Periods	  	 	49	 	
SECTION 4.08.	  	Mandatory Purchase on Mode Change Date, Election to Set a Special R-FLOATs Rate Period or on Borrower Request	  	 	49	 	
SECTION 4.09.	  	Mandatory Purchase at End of Interest Period in Term Rate Mode or Term Indexed Mode or term rate R-FLOATs Rate Interest Period	  	 	50	 	
SECTION 4.10.	  	Mandatory Purchase on Expiration Date, New Liquidity Facility Date, New Credit Facility Date and Termination Date	  	 	50	 	
SECTION 4.11.	  	Remarketing of Bonds; Notices	  	 	51	 	
SECTION 4.12.	  	General Provisions Relating to Tenders	  	 	52	 	
SECTION 4.13.	  	The Remarketing Agents	  	 	55	 	
SECTION 4.14.	  	Qualifications and Substitution of Remarketing Agent	  	 	56	 	
SECTION 4.15.	  	The Tender Agent	  	 	57	 	
SECTION 4.16.	  	Qualifications of Tender Agent	  	 	57	 	
SECTION 4.17.	  	Release of Liquidity Facilities	  	 	58	 	
SECTION 4.18.	  	Acceptance of and Amendments to Liquidity Facilities	  	 	59	 	
			
	  	ARTICLE V	  				
	  	REVENUES; FUNDS AND ACCOUNTS; PAYMENT OF PRINCIPAL AND INTEREST	  				
			
SECTION 5.01.	  	Pledge and Assignment	  	 	61	 	
SECTION 5.02.	  	Interest Fund	  	 	61	 	
SECTION 5.03.	  	Principal Fund	  	 	62	 	
SECTION 5.04.	  	Redemption Fund	  	 	63	 	
SECTION 5.05.	  	Investment of Moneys	  	 	63	 	
SECTION 5.06.	  	Rebate Fund	  	 	65	 	
SECTION 5.07.	  	Draws or Claims Under Credit Facilities	  	 	66	 	
SECTION 5.08.	  	Release of Credit Facilities	  	 	67	 	
SECTION 5.09.	  	Acceptance of and Amendments to Credit Facility	  	 	68	 	
SECTION 5.10.	  	Credit Facility Fund	  	 	69	 	
 
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TABLE OF CONTENTS
(cont’d)

 	  	 	  	Page	 	
ARTICLE VI	 	
PARTICULAR COVENANTS	 	
			
SECTION 6.01.	  	Punctual Payment	  	 	71	 	
SECTION 6.02.	  	Extension of Payment of Bonds	  	 	71	 	
SECTION 6.03.	  	Against Encumbrances	  	 	71	 	
SECTION 6.04.	  	Power to Issue Bonds and Make Pledge and Assignment	  	 	71	 	
SECTION 6.05.	  	Accounting Records and Financial Statements	  	 	71	 	
SECTION 6.06.	  	Tax Covenants	  	 	72	 	
SECTION 6.07.	  	Enforcement and Amendment of Loan Agreement	  	 	73	 	
SECTION 6.08.	  	Waiver of Laws	  	 	74	 	
SECTION 6.09.	  	Further Assurances	  	 	74	 	
	
ARTICLE VII	 	
EVENTS OF DEFAULT AND REMEDIES OF BONDHOLDERS	 	
			
SECTION 7.01.	  	Events of Default	  	 	75	 	
SECTION 7.02.	  	Acceleration of Maturities	  	 	76	 	
SECTION 7.03.	  	Institution of Legal Proceedings by Trustee	  	 	77	 	
SECTION 7.04.	  	Application of Revenues and Other Funds After Default	  	 	78	 	
SECTION 7.05.	  	Trustee to Represent Bondholders	  	 	79	 	
SECTION 7.06.	  	Credit Facility Provider’s and Bondholders’ Direction of Proceedings	  	 	79	 	
SECTION 7.07.	  	Limitation on Bondholders’ Right to Sue	  	 	80	 	
SECTION 7.08.	  	Absolute Obligation of Issuer	  	 	80	 	
SECTION 7.09.	  	Termination of Proceedings	  	 	80	 	
SECTION 7.10.	  	Remedies Not Exclusive	  	 	81	 	
SECTION 7.11.	  	Waivers of Default	  	 	81	 	
SECTION 7.12.	  	Notice to Bondholders of Default	  	 	81	 	
	
ARTICLE VIII	 	
THE TRUSTEE AND AGENTS	 	
			
SECTION 8.01.	  	Duties, Immunities and Liabilities of Trustee	  	 	83	 	
SECTION 8.02.	  	Merger or Consolidation	  	 	84	 	
SECTION 8.03.	  	Liability of Trustee	  	 	84	 	
SECTION 8.04.	  	Right of Trustee and Tender Agent to Rely on Documents	  	 	86	 	
SECTION 8.05.	  	Preservation and Inspection of Documents	  	 	86	 	
SECTION 8.06.	  	Separate or Co-Trustee	  	 	86	 	
SECTION 8.07.	  	Compensation and Indemnification	  	 	87	 	
SECTION 8.08.	  	Notice to Rating Agency	  	 	88	 	
SECTION 8.09.	  	Facsimile and Electronic Transmissions	  	 	88	 	
SECTION 8.10.	  	Collateral Agent	  	 	88	 	
 
-iii-

TABLE OF CONTENTS
(cont’d)

 	  	 	  	Page	 	
ARTICLE IX	 	
MODIFICATION OR AMENDMENT OF THIS BOND INDENTURE	 	
			
SECTION 9.01.	  	Amendments Permitted	  	 	91	 	
SECTION 9.02.	  	Effect of Supplemental Bond Indenture	  	 	93	 	
SECTION 9.03.	  	Endorsement of Bonds; Preparation of New Bonds	  	 	93	 	
SECTION 9.04.	  	Amendment of Particular Bonds	  	 	93	 	
SECTION 9.05.	  	Consent by Purchasers or Remarketing Agent	  	 	93	 	
	
ARTICLE X	 	
DEFEASANCE	 	
			
SECTION 10.01.	  	Discharge of Bond Indenture	  	 	94	 	
SECTION 10.02.	  	Discharge of Liability on Bonds	  	 	94	 	
SECTION 10.03.	  	Deposit of Money or Securities with Trustee	  	 	95	 	
SECTION 10.04.	  	Payment of Bonds After Discharge of Bond Indenture	  	 	95	 	
	
ARTICLE XI	 	
MISCELLANEOUS	 	
			
SECTION 11.01.	  	Liability of Issuer Limited	  	 	97	 	
SECTION 11.02.	  	Successor Is Deemed Included in All References to Predecessor	  	 	97	 	
SECTION 11.03.	  	Limitation of Rights to Parties and Certain Other Persons	  	 	97	 	
SECTION 11.04.	  	Waiver of Notice	  	 	97	 	
SECTION 11.05.	  	Destruction of Bonds	  	 	97	 	
SECTION 11.06.	  	Severability of Invalid Provisions	  	 	97	 	
SECTION 11.07.	  	Notices	  	 	98	 	
SECTION 11.08.	  	Evidence of Rights of Bondholders	  	 	99	 	
SECTION 11.09.	  	Disqualified Bonds	  	 	100	 	
SECTION 11.10.	  	Money Held for Particular Bonds	  	 	100	 	
SECTION 11.11.	  	Funds and Accounts	  	 	100	 	
SECTION 11.12.	  	Limitation on Liability	  	 	101	 	
SECTION 11.13.	  	Credit Facility Providers and Bondholder Representative	  	 	101	 	
SECTION 11.14.	  	Business Days	  	 	101	 	
SECTION 11.15.	  	Governing Law	  	 	102	 	
SECTION 11.16.	  	Execution in Several Counterparts	  	 	102	 	
SECTION 11.17.	  	Consent to Loan Agreement; Exchange of Notes	  	 	102	 	
SECTION 11.18.	  	Effective Date and Effect	  	 	102	 	
			
TESTIMONIUM	  		  	 	S-1	 	
SIGNATURES	  		  	 	S-1	 	
		
EXHIBIT A – FORM OF BOND	  	 	A-1	 	
EXHIBIT B – INVESTMENT SECURITIES	  	 	B-1	 	
EXHIBIT C – FORM OF REQUISITION	  	 	C-1	 	
 
-iv-

BOND INDENTURE
THIS AMENDED AND RESTATED BOND INDENTURE, dated as of August 19, 2014 (this “ Bond Indenture ”), between the Harris County Industrial Development Corporation, a Texas public non-profit corporation (the “ Issuer ”), and The Bank of New York Mellon Trust Company, National Association, a national banking association organized and existing under the laws of the United States of America, as trustee (the “ Trustee ”), being qualified to accept and administer the trusts hereby created,
W I T N E S S E T H:
WHEREAS, the Issuer was created pursuant to the Development Corporation Act of 1979, now codified as Chapter 501, Texas Local Government Code, as amended (the “ Act ”), to act on behalf of Harris County, Texas, for the purpose of, among other things, the promotion and development of enterprises to promote and encourage employment and the public welfare; and
WHEREAS, HFOTCO LLC, a limited liability company organized under the laws of the State of Texas (the “ Borrower ”), requested financial assistance from the Issuer to provide funds to finance eligible costs of the projects described in the Loan Agreement referred to herein (the “ Projects ”); and
WHEREAS, the Issuer issued its Marine Terminal Revenue Bonds (HFOTCO LLC Project), Series 2011 (the “ Bonds ”) to finance eligible costs of the Projects; and
WHEREAS, the Issuer entered into a Loan Agreement, dated as of December 1, 2011, with the Borrower, under which the Issuer loaned to the Borrower the proceeds of the Bonds to provide for the financing of eligible costs of the Projects and the Borrower agreed to make loan payments in amounts and by times sufficient to pay the principal of and premium, if any, and interest on the Bonds and certain related expenses; and
WHEREAS, in order to provide for the authentication and delivery of the Bonds, to establish and declare the terms and conditions upon which the Bonds were to be issued and secured, and to secure the payment of the principal thereof and premium, if any, and interest thereon, the Issuer executed and delivered that certain Bond Indenture, dated as of December 1, 2011, as amended, with the Trustee (the “ Original Bond Indenture ”); and
WHEREAS, at the request of the Borrower, the Issuer desires to amend and restate the Original Bond Indenture as herein provided in order to permit the Bonds to be converted to a Mode in which they will bear interest at a function of an interest rate index for a term ending prior to the Maturity Date, and the Original Bond Indenture may be amended for such purpose on the conditions described in Section 9.01B(7) ; and
WHEREAS, all acts and proceedings required by law necessary to make the Bonds, when executed by the Issuer, authenticated and delivered by the Trustee, and duly issued (including as authorized hereby to be amended), valid, binding and legal limited obligations of the Issuer, and to constitute this Bond Indenture a valid and binding agreement for the uses and purposes herein set forth in accordance with its terms, have been done and taken, and the execution and delivery of this Bond Indenture have been in all respects duly authorized;
NOW, THEREFORE, the parties hereto hereby amend and restate the Original Bond Indenture to read as follows:
 
1

THIS BOND INDENTURE WITNESSETH, that in order to secure the payment of the principal of and premium, if any, and the interest on all Bonds at any time issued and outstanding under this Bond Indenture, according to their tenor, and to secure the performance and observance of all the covenants and conditions therein and herein set forth, and to declare the terms and conditions upon and subject to which the Bonds are to be issued and received, and in consideration of the premises and of the mutual covenants herein contained and of the purchase and acceptance of the Bonds by the Holders thereof, and for other valuable consideration, the receipt and sufficiency whereof are hereby acknowledged, the Issuer does hereby covenant and agree with the Trustee, for the benefit of the respective registered owners from time to time of the Bonds, as follows:
ARTICLE I
DEFINITIONS; CONTENT OF CERTIFICATES AND OPINIONS
SECTION 1.01. Definitions.
Unless the context otherwise requires, the terms defined in this Section shall, for all purposes of this Bond Indenture and of any indenture supplemental hereto and of any certificate, opinion or other document herein mentioned, have the meanings herein specified, to be equally applicable to both the singular and plural forms of any of the terms herein defined.
“ Act ” means Chapter 501, Texas Local Government Code, as amended.
“ Additional Payments ” means the payments so designated and required to be made by the Borrower pursuant to Sections 3.06, 5.03 and 5.05 of the Loan Agreement.
“ Administrative Fees and Expenses ” means any application, commitment, financing or similar fee charged, or reimbursement for administrative or other expenses incurred, by the Issuer or the Trustee.
“ Affiliate ” of any specified Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified Person. For purposes of this definition, “ control ” when used with respect to any specified Person means the power to direct the management and policies of such Person, directly or indirectly, whether by contract, through the ownership of voting securities or the power to appoint and remove directors or trustees, or otherwise; and the terms “ controlling ” and “ controlled ” have meanings correlative to the foregoing.
“ Alternate Rate ” means, unless as otherwise set forth in a Supplemental Bond Indenture, (1) with respect to Bonds in a Daily Mode or a Weekly Mode, an annual rate equal to the lower of the percentages of the SIFMA Municipal Swap Index shown in the following table opposite the highest short-term and the highest long-term rating assigned to the Bonds by any Rating Agency:
 
2

							
Short-Term Rating	  	 	  	Long-Term Rating	  	% of SIFMA
Municipal Swap Index
(Tax-Exempt)	
A1 or P-1 or F1	  	and	  	AAA or Aaa or AAA	  	150%	
A1 or P-1 or F1	  	and	  	AA or Aa or AA	  	250%	
A1 or P-1 or F1	  	and	  	A or A or A	  	350%	
A2 or P-2 or F2	  	and	  	BBB or Baa or BBB	  	450%	
A3 or P-3 or F3
or below	  	and	  	BBB-or Baa3 or BBB-
or below	  	Maximum Rate	
(2) with respect to Bonds in a Commercial Paper Mode or a Term Rate Mode, an annual rate equal to the lower of the percentages shown in the following table, opposite the highest short-term rating (except during a Term Rate Mode with Interest Periods longer than three years) and the highest long-term rating assigned to the Bonds by any Rating Agency, of LIBOR with a term nearest to the length of the Interest Period for which the Alternate Rate is calculated:

 	  	 	  	 	  	% of LIBOR	
Short-Term Rating	  	 	  	Long-Term Rating	  	(Tax-Exempt)	
A1 or P-1 or F1	  	and	  	AAA or Aaa or AAA	  	100%	
A1 or P-1 or F1	  	and	  	AA or Aa or AA	  	200%	
A1 or P-1 or F1	  	and	  	A or A or A	  	300%	
A2 or P-2 or F2	  	and	  	BBB or Baa or BBB	  	400%	
A3 or P-3 or F3
or below	  	and	  	BBB- or Baa3 or BBB-
or below	  	Maximum Rate	
(3) with respect to Bonds in any R-FLOATs Mode, an annual rate equal to the Maximum Rate, and (4) with respect to Bonds in a Term Indexed Mode (a) if the LIBOR Index is less than 1% per annum as of the most recent LIBOR Index Reset Date on or before such day, then 1% per annum, and (b) if the LIBOR Index is equal to or greater than 1% per annum as of such LIBOR Index Reset Date, then 74% of the LIBOR Index for such LIBOR Index Reset Date.
“ Applicable Factor ” means (1) 70% for the initial Interest Period in the Initial LIBOR Term Indexed Mode and (2) for any subsequent Interest Period in a LIBOR Term Indexed Mode means the factor greater than 65% but not more than 135% to be applied to LIBOR for the Rate Determination Date for such Interest Period in determining the LIBOR Term Indexed Rate in such Interest Period, which shall be as determined by the Remarketing Agent on the Rate Determination Date for such Interest Period.
“ Applicable Spread ” means the per annum rate to be added to the LIBOR Index or any function thereof (as described in the definition thereof in this Section) when Bonds are in a LIBOR Term Indexed Mode, or to the SIFMA Index when Bonds are in a SIFMA Term Indexed Mode, to determine the Indexed Rate for such Bonds pursuant to Section 2.07 . During any day in the initial Interest Period of the Initial LIBOR Term Indexed Mode, the Applicable Spread shall be the “Applicable Spread” (as defined in the initial Bondholder Agreement) so determined for such day in accordance with the initial Bondholder Agreement, which is 1.40% per annum on the first day of such Initial LIBOR Term Indexed Mode, provided that no change in the Applicable Spread in the Initial
 
3

LIBOR Term Indexed Mode shall be effective unless and until the Trustee receives written notice of such change from the Bondholder Representative or the Borrower. The Applicable Spread for any other Indexed Mode or Interest Period shall be as determined by the Remarketing Agent, or pursuant to any function or scale determined by the Remarketing Agent, prior to the first day of such Interest Period.
“ Authorized Representative ” means the President, the Chief Financial Officer, the Treasurer, or any Vice President of the Borrower or any other person designated as an Authorized Representative of the Borrower by a Certificate of the Borrower signed by another Authorized Representative of the Borrower and filed with the Trustee.
“ Available Money ” means all amounts as to which the Trustee and the Credit Facility Providers have received an Opinion of Counsel stating that no disbursement thereof pursuant to this Bond Indenture may be avoided or otherwise recovered under Section 547 (or under Section 550 in respect of such Section) of the Bankruptcy Code or under any similar provision of applicable state law in the event of the bankruptcy, insolvency, liquidation, reorganization, or similar proceeding in respect of the Issuer or the Borrower.
“ Bank Settlement Deadline ” means 30 minutes before the applicable DTC Settlement Deadline.
“ Bond Counsel ” means legal counsel of recognized national standing in the field of obligations the interest on which is excluded from gross income for federal income tax purposes, selected by the Borrower and not objected to by the Trustee or the Credit Facility Provider (if any).
“ Bond Indenture ” means this Bond Indenture, as originally executed or as it may from time to time be supplemented, modified or amended by any Supplemental Bond Indenture.
“ Bond Register ” means the register maintained by the Trustee to record ownership and transfers of the Bonds.
“ Bondholder ” means the Holder of a Bond.
“ Bondholder Agreement ” means (1) until the Bonds are all repurchased by the Borrower or upon remarketing at the end of or during the initial Interest Period in the Initial LIBOR Term Indexed Mode, the Continuing Covenant Agreement, dated as of August 19, 2014, among the Borrower, Buffalo Gulf Coast Terminals LLC, Bank of America, N.A., as Administrative Agent and Collateral Agent, and the Bondholders from time to time party thereto, as originally executed or (if the Trustee receives a Favorable Opinion of Bond Counsel or no change to the definition of “Applicable Spread,” “Default Rate,” or “Determination of Taxability” therein is effected thereby) as supplemented and amended from time to time, and (2) thereafter any agreement entered into by the Borrower with a Bondholder to induce the Bondholder to purchase Bonds, stating that it is a “Bondholder’s Agreement” hereunder, and delivered to the Trustee, if (a) the Trustee receives a Favorable Opinion of Bond Counsel and (b) such agreement requires a Person (who may be the Bondholder Representative) to give prompt notice to the Trustee of any change in the Reserve Percentage, the Default Rate, the Applicable Factor, or the Applicable Spread, when applicable.
“ Bondholder Representative ” means the Person or Persons, if any, authorized by the Bondholder Agreement to take actions, give directions, provide consents, or give or rescind notices to the Trustee on behalf of all (or any required percentage) of the Bondholders and otherwise take such actions and exercise such powers as are delegated by the Bondholders to the Bondholder
 
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Representative under the Bondholder Agreement, but only while such Bondholder Agreement is in effect. The Bondholder Representative during the initial Interest Period in the Initial LIBOR Term Indexed Mode is Bank of America, N.A., in its capacity as administrative agent under the initial Bondholder Agreement, or its successors or assigns in such capacity under the initial Bondholder Agreement. Upon any resignation of the Bondholder Representative under the Bondholder Agreement (with written notice of such resignation given to the Trustee) and until the Trustee receives written notice that a new Bondholder Representative has been appointed, the references in this Bond Indenture to “Bondholder Representative” shall be of no effect. For the avoidance of doubt, any resignation or replacement of Bank of America, N.A., as administrative agent under the initial Bondholder Agreement with written notice to the Trustee shall automatically constitute its resignation or replacement as Bondholder Representative hereunder.
“ Bonds ” means all Marine Terminal Revenue Bonds (HFOTCO LLC Project), Series 2011 of the Issuer, authenticated and delivered under the Original Bond Indenture or this Bond Indenture.
“ Borrower ” means HFOTCO LLC, a limited liability company duly organized and existing under the laws of the State of Texas.
“ Borrower Purchase Account ” means the account by that name within the Purchase Fund established pursuant to Section 4.12 .
“ Business Day ,” when used in respect of the Bonds or any subseries thereof, means a day that is not a Saturday, Sunday or legal holiday on which banking institutions generally in the State of Texas, the State of New York or any state in which the office of the Liquidity Facility Provider (if any), Credit Facility Provider (if any), Calculation Agent (if any), Bondholder Representative (if any), or Remarketing Agent (if any) for such Bonds, the Tender Agent (unless such Bonds are in a Term Rate Mode, Term Indexed Mode, Stepped Coupon Mode, or Fixed Rate Mode), or the Trustee at which its obligations under the applicable Credit Facility, Liquidity Facility, or Remarketing Agreement or this Bond Indenture are performed is located are authorized to remain closed or a day on which the New York Stock Exchange is closed and, when used with respect to any LIBOR Index determination, means any day on which dealings in U.S. dollar deposits are conducted by and between banks in the London interbank market and on which the principal office of the Calculation Agent is open for business.
“ Calculation Agent ” means any Person engaged by the Borrower to determine the Indexed Rates (which shall be Bank of America, N.A., or any successor approved by it, during the initial Interest Period in the Initial LIBOR Term Indexed Mode) and its successors and assigns.
“ Certificate,” “Statement,” “Request,” “Requisition” and “Order” of the Issuer or the Borrower, mean, respectively, a written certificate, statement, request, requisition or order signed in the name of the Issuer by the President or any Vice President of the Issuer or such other person as may be designated and authorized to sign for the Issuer and designated by the President or any Vice President of the Issuer in writing to the Trustee, or in the name of the Borrower by an Authorized Representative of the Borrower. Any such instrument and supporting opinions or representations, if any, may, but need not, be combined in a single instrument with any other instrument, opinion or representation, and the two or more so combined shall be read and construed as a single instrument. If and to the extent required by Section 1.02 , each such instrument shall include the statements provided for in Section 1.02 .
 
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“ Code ” means the Internal Revenue Code of 1986, as amended, or any successor statute thereto, and any regulations promulgated thereunder, to the extent applicable to the taxation of interest on the Bonds.
“ Commercial Paper Mode ” means the Mode during which the Bonds or any subseries bear interest at the Commercial Paper Rate.
“ Commercial Paper Rate ” means the per annum interest rate determined pursuant to Section 2.05 with respect to any Bond in any Interest Period while in the Commercial Paper Mode.
“ Common Issue Bonds ” means the Bonds and any other tax- exempt bonds sold within 15 days of the first day on which there is a binding written contract for the sale or exchange of the Bonds and which are payable from loan payments to be made by the Borrower, which bonds are part of the same “ issue ,” as defined in section 1.150-1(c) of the Regulations, as the Bonds and include the Issuer’s Marine Terminal Revenue Bonds (HFOTCO LLC Project) Series 2010 and Series 2012.
“ Cost ” when used with respect to any Project has the meaning stated in the Loan Agreement.
“ Costs of Issuance ” means all items of expense directly or indirectly payable by or reimbursable to the Issuer or the Borrower and related to the authorization, issuance, sale and delivery of the Bonds, including but not limited to costs of preparation and reproduction of documents, printing expenses, filing and recording fees, initial fees and charges of the Trustee and its counsel, the Remarketing Agents and the Tender Agent, legal fees and charges, fees and disbursements of consultants and professionals, fees and charges for preparation, execution and safekeeping of the Bonds and any other cost, charge or fee in connection with the original issuance of the Bonds.
“ Costs of Issuance Fund ” means the fund of the Borrower by that name established pursuant to Section 3.03 .
“ Credit Facility ” for the Bonds or any subseries thereof means a letter of credit, including, if applicable, a confirming letter of credit, bond insurance policy or similar credit facility issued by a commercial bank, savings institution, insurer or other financial institution, or any portion thereof, which, by its terms, shall provide for or insure the payment of the principal of and interest on such Bonds when due, and delivered to and accepted by the Trustee pursuant to Section 5.09 .
“ Credit Facility Fund ” means the fund of the Trustee by that name established pursuant to Section 5.10 .
“ Credit Facility Provider ”, when used in respect of the Bonds or any subseries thereof, means the commercial bank, savings institution, insurer or other Person issuing the Credit Facility for such Bonds. The initial Credit Facility Provider is Bank of America, N.A.
“ Current Mode ” shall have the meaning specified in Section 2.12 .
“ Daily Mode ” means the Mode during which the Bonds or any subseries thereof bear interest at the Daily Rate.
“ Daily Rate ” means an interest rate that is determined pursuant to Section 2.06 on each Business Day with respect to the Bonds or any subseries thereof while in the Daily Mode.
 
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“ Default Rate ” as of any date means (1) the rate defined as the “Default Rate” in any Bondholder Agreement then in effect, and (2) at all other times, the rate of interest that would then be borne by the Bonds if they did not bear interest at the Default Rate.
“ Depository Participant ” means a member of, or participant in, the Securities Depository.
“ Determination of Taxability ” shall have the meaning stated in the Bondholder Agreement, except that no Determination of Taxability shall occur or exist unless and until the Trustee has received written notice thereof from the Bondholder Representative or, if none, a Bondholder.
“ Draw Deadline ” means the time by which the Credit Facility Provider or Liquidity Facility Provider must receive documentation from the Trustee to be obligated to advance funds to pay principal of or interest on or the Purchase Price of Bonds by the applicable Bank Settlement Deadline. While the initial Credit Facility and Liquidity Facility remains in effect, the Draw Deadline for purchases of Bonds tendered for purchase in accordance with Article IV is 12:00 noon, New York City time, and for payment of principal of and interest on Bonds is 4:00 p.m., New York City time, on the immediately preceding Business Day.
“ DTC Settlement Deadline ” means the time of day by which funds must be deposited with the Securities Depository to pay the applicable transactions on such day in accordance with its operating procedures from time to time in effect. Such times are currently 2:30 p.m., New York City time, for purchases of Bonds and 3:00 p.m., New York City time, for the payment of principal of and interest on Bonds.
“ Electronic Means ” means by electronic transmission administered by the Society for Worldwide Interbank Financial Telecommunication (SWIFT) or other secure electronic transmission containing applicable authorization codes, passwords, and/or authentication keys issued by the Trustee; facsimile transmission; email transmission; or another method or system specified by the Trustee as available for use in connection with its services hereunder.
“ Eligible Bonds ” means any Bonds other than Liquidity Facility Bonds or Bonds owned by, for the account of, or on behalf of, the Issuer or the Borrower.
“ Event of Default ” means any of the events specified in Section 7.01 .
“ Excluded Purchaser” means each of the Issuer, the Borrower, and, to the knowledge of the Tender Agent, any Affiliate of the Borrower and any nominee, pledgee, or other Person to the extent such Person is purchasing a Bond for the benefit of any of the foregoing, there being no guarantor of any of the Borrower’s obligations under the Loan Agreement.
“ Expiration Date ” for the Bonds of any subseries means the date upon which the Liquidity Facility or Credit Facility for such Bonds is scheduled to expire (taking into account any extensions of such Expiration Date) in accordance with its terms without regard to any early termination thereof.
“ Favorable Opinion of Bond Counsel ” means, with respect to any action the occurrence of which requires such an opinion, an unqualified Opinion of Counsel, rendered by Bond Counsel, to the effect that such action is permitted under this Bond Indenture and will not, in and of itself, result in the inclusion of interest on any Common Issue Bond in gross income for federal income tax purposes (subject to the inclusion of any exceptions contained in the opinion delivered upon the effective date of this Bond Indenture).
 
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“ Fitch ” means Fitch Inc., a corporation organized and existing under the laws of the state of its organization, and its successors and assigns, or, if such corporation shall be dissolved or liquidated or shall no longer perform the functions of a securities rating agency, any other nationally recognized securities rating agency designated by the Borrower by notice to the Issuer, the Credit Facility Provider (if any), the Liquidity Facility Provider (if any) and the Trustee.
“ Fixed Rate ” means the interest rate on Fixed Rate Bonds determined pursuant to Section 2.10 .
“ Fixed Rate Bonds ” means the Bonds while in the Fixed Rate Mode.
“ Fixed Rate Mode ” means the Mode during which the Bonds or any subseries thereof bear interest at a Fixed Rate.
“ Governmental Obligations” means noncallable (1) direct obligations of the United States of America, (2) obligations the full and timely payment of which is unconditionally guaranteed by the United States of America, (3) interest obligations of the Resolution Funding Corp. which are separately registered by book-entry on the books of the Federal Reserve Bank of New York, and (4) obligations of a state or an agency, county, municipality, or other political subdivision thereof that have been refunded and that are rated in the highest rating category by S&P or Moody’s and are secured by cash, obligations of or guaranteed by the United States of America.
“ Holder,” when used with respect to a Bond, means the Person in whose name such Bond is registered on the Bond Register.
“ Indexed Mode ” means the Long Indexed Mode or a Term Indexed Mode.
“ Indexed Rate ” means a Long Indexed Rate or a Term Indexed Rate.
“ Initial LIBOR Term Indexed Mode ” means the LIBOR Term Indexed Mode that commences on the effective date of this Bond Indenture.
“ Interest Fund ” means the fund by that name established pursuant to Section 5.02 .
“ Interest Payment Date ” means:
(1) Commercial Paper : with respect to Bonds in a Commercial Paper Mode (a) with an Interest Period of 180 days or less, the Purchase Date, and (b) with an Interest Period of 181 days or more, each May 1 and November 1 prior to the Purchase Date and the Purchase Date;
(2) Short-Term Modes : with respect to Bonds in a Daily Mode, a Weekly Mode, a weekly R-FLOATs Mode or a monthly R-FLOATs Mode, the first Business Day of each month;
(3) Special R-FLOATs : with respect to Bonds in a Special R-FLOATs Rate Period of 180 days or less, the first Business Day of the month immediately following the last day of such Special R-FLOATs Rate Period, and with respect to Bonds in a Special
 
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R-FLOATs Rate Period of more than 180 days, each May 1 and November 1 following the commencement of such Special R-FLOATs Rate Period and the last day of such Special R-FLOATs Rate Period;
(4) Term Modes : with respect to Bonds in a Term Rate Mode or a term rate R-FLOATs Mode, each May 1 and November 1 prior to the Purchase Date and the Purchase Date;
(5) Fixed Rate Mode : with respect to Bonds in the Fixed Rate Mode, each May 1 and November 1;
(6) Mode Change Dates : any Mode Change Date;
(7) Indexed Mode : with respect to Bonds (a) in a Long Indexed Mode, the dates determined by the Remarketing Agent for such Bonds pursuant to Section 2.07 , and (b) in a Term Indexed Mode, (x) the first Business Day of each month during any Interest Period, if the Initial LIBOR Term Indexed Mode is in effect or if elected by the Borrower when directing a change to any Interest Mode, (y) otherwise on the first Business Day of each February, May, August, and November, and (z) each Purchase Date;
(8) Stepped Coupon Mode : with respect to Bonds in a Stepped Coupon Mode, the dates determined by the Remarketing Agent for such Bonds pursuant to Section 2.08 ;
(9) Maturity Dates : the respective Maturity Dates of the Bonds; and
(10) Liquidity Facility Bonds : with respect to Liquidity Facility Bonds of any subseries, the Interest Payment Dates for other Bonds of such subseries (or any other dates specified in any amendment to the initial Reimbursement Agreement or any replacement thereof approved by the Issuer, if the Trustee has received a Favorable Opinion of Bond Counsel).
“ Interest Payment Period ” for any Bond and Interest Payment Date means the period commencing on the last Interest Payment Date therefor to which interest thereon has been paid (or, if no interest has been paid on such Bond, from the date of original issuance of the Bonds) to, but not including, such Interest Payment Date.
“ Interest Period ” for any Bond means the period of time that an interest rate thereon (or the percentage or spread used to determine the same) remains in effect, which period:
(1) Daily Mode : with respect to Bonds in a Daily Mode, commences on a Business Day and extends to, but does not include, the next succeeding Business Day;
(2) Weekly Mode : with respect to Bonds in a Weekly Mode, commences on the first day such Bonds begin to accrue interest in the Weekly Mode and ends on the next succeeding Wednesday (or, if not immediately followed by a Business Day, then on the day preceding the next Business Day) that occurs at least two days later, and thereafter commences on each Thursday (or, if not a Business Day, on the next succeeding Business Day) and ends on Wednesday of the following week (or, if not immediately followed by a Business Day, then on the day preceding the next Business Day);
 
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(3) R-FLOATs Mode : with respect to Bonds in an R-FLOATs Mode (i) bearing interest at a weekly R-FLOATs Rate, commences on the first day such Bonds begin to accrue interest in the weekly R-FLOATs Mode and ends on the next succeeding Wednesday (or, if not immediately followed by a Business Day, then on the day preceding the next Business Day), and thereafter commences on each Thursday (or, if not a Business Day, on the next succeeding Business Day) and ends on Wednesday of the following week (or, if not immediately followed by a Business Day, then on the day preceding the next Business Day); (ii) bearing interest at a monthly R-FLOATs Rate, commences on the first day such Bonds begin to accrue interest in the monthly R-FLOATs Mode and ends on the day immediately preceding the first Business Day of the next succeeding month, and thereafter commences on the first Business Day of each month and ends on the day immediately preceding the first Business Day of the next succeeding month; (iii) bearing interest at a term rate R-FLOATs Rate, commences on the first day such Bonds begin to accrue interest in the term rate R-FLOATs Mode to, but not including, the next Purchase Date; and (iv) bearing interest at a Special R-FLOATs Rate Period, extends as set forth in Section 2.06E ;
(4) Commercial Paper Mode : with respect to each Bond in a Commercial Paper Mode, shall be as established by the Remarketing Agent for such Bond pursuant to Section 2.05 ;
(5) Indexed Mode : with respect to Bonds (a) in a Long Indexed Mode, shall extend from the first day of such Indexed Mode to the Maturity Date, and (b) in a Term Indexed Mode initially shall extend from the first day of such Term Indexed Mode to, but not including, the Purchase Date established for such Bonds pursuant to Section 2.07 , and thereafter shall extend from and including such Purchase Date to but excluding the next Purchase Date therefor;
(6) Stepped Coupon Mode : with respect to Bonds in the Stepped Coupon Mode, shall be as established for such Bonds pursuant to Section 2.08 ;
(7) Term Rate Mode : with respect to the Bonds in a Term Rate Mode, initially shall extend from and including the first day of such Term Rate Mode to, but not including, the Purchase Date established for such Bonds pursuant to Section 2.09 , and thereafter shall extend from and including such Purchase Date to but not including the next Purchase Date therefor; and
(8) Fixed Rate Mode : with respect to Bonds in the Fixed Rate Mode, commences on the first day of such Fixed Rate Mode and ends on (and includes) the day immediately prior to the Maturity Date of such Bonds.
“ Interested Parties ” means the Borrower, the Issuer, the Trustee, the Tender Agent and the Credit Facility Providers (if any).
“ Investment Securities ” means the securities and other investments described in Exhibit B .
“ Issuer ” means the Harris County Industrial Development Corporation or its successors and assigns.
“ LIBOR ” means the London Interbank Offered Rate for deposits in U.S. dollars (with a term nearest to the length of the Interest Payment Period for which the Alternate Rate or Indexed
 
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Rate is being calculated or as otherwise provided in the definition of Alternate Rate in this Section) that appears on the applicable Bloomberg screen page (or such other service as may be nominated by the ICE Benchmark Administration Limited for the purpose of displaying London interbank offered rates for U.S. dollar deposits) as of 11:00 a.m., London time, on the Rate Determination Date for such Alternate Rate or Indexed Rate. In the case of a Term Rate Mode with an Interest Period greater than 12 months, LIBOR shall mean the USD-ISDA-Swap Rate for a term nearest in length to the length of such Interest Period.
“ LIBOR Index ” as of any LIBOR Index Reset Date means the rate per annum equal to the London Interbank Offered Rate, as published on the applicable Bloomberg screen page (or other commercially available source providing such quotations as may be designated by the Bondholder Representative or, if none, the Calculation Agent from time to time) at or about 11:00 a.m., London time, on the second Business Day prior to such date for U.S. Dollar deposits with a term of one month commencing on such LIBOR Index Reset Date. Notwithstanding the foregoing, if (a) the Bondholder Representative or, if none, the Calculation Agent determines that (i) U.S. Dollar deposits are not being offered to banks in the London interbank market for U.S. Dollar deposits for an interest period extending from one LIBOR Index Reset Date to the next LIBOR Index Reset Date, or (ii) adequate and reasonable means do not exist for determining the LIBOR Index for any such interest period, (b) the Holders of not less than a majority in aggregate principal amount of the Bonds at the time Outstanding determine that for any reason the LIBOR Index for any such interest period does not result in a rate that adequately and fairly reflects the cost to such Holders of holding the Bonds for such interest period, or (c) any Holder determines that any applicable law has made it unlawful, or that any governmental authority has asserted that it is unlawful, for the Bonds to bear interest at a function of the LIBOR Index, or to determine or charge interest rates based upon the LIBOR Index, or any governmental authority has imposed material restrictions on the authority of such Holder to purchase or sell, or to take deposits of, U.S. Dollars in the London interbank market (any event described in clause (a)(i), (a)(ii), (b) or (c) of this sentence, a “ Disruption Event ”), then the “ LIBOR Index ” shall mean an alternate rate that will result in interest on the Bonds that fairly reflects the costs to Holders of holding the Bonds for such interest period as reasonably determined by the Calculation Agent, until such time as the Bondholder Representative, the Calculation Agent or the Holders of not less than a majority in aggregate principal amount of the Bonds at the time Outstanding, as applicable, reasonably determine that the applicable Disruption Event no longer subsists.
“ LIBOR Index Rate” for any day in any Interest Payment Period in a LIBOR Term Indexed Mode means a per annum rate determined from time to time and equal to (x) the product of (a) the quotient from dividing (i) the LIBOR Index as of the LIBOR Index Reset Date on which such Interest Payment Period begins by (ii) one less the Reserve Percentage, (b) the Applicable Factor, and (c) the Margin Rate Factor as of such day plus (y) the Applicable Spread during such Interest Payment Period (such Applicable Spread to be determined in accordance with Section 2.07 for any Interest Period after the first Interest Period in the Initial LIBOR Term Indexed Mode); provided, however , that the LIBOR Index Rate shall never exceed 135% of the LIBOR Index plus the Applicable Spread or equal or be less than 65% of the LIBOR Index plus the Applicable Spread.
“ LIBOR Index Reset Date ” for Bonds in a LIBOR Term Indexed Mode means the first Business Day of and each Interest Payment Date in such Interest Mode.
“ LIBOR Term Indexed Mode ” means the Mode during which the Bonds or any subseries thereof bear interest at LIBOR Term Indexed Rates for an Interest Period that ends prior to the Maturity Date, including the Initial LIBOR Term Indexed Mode.
 
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“ LIBOR Term Indexed Rate ” means an interest rate that is determined pursuant to Section 2.07 with respect to Bonds in the LIBOR Term Indexed Mode or, if less, the Maximum Rate.
“ Liquidity Facility ” for the Bonds or any subseries thereof means a standby bond purchase agreement, letter of credit or similar liquidity facility issued by a commercial bank, savings institution, insurer or other institution, or any portion thereof, which, by its terms, shall provide for the payment of the Purchase Price of such Bonds tendered for purchase and not remarketed, delivered to and accepted by the Trustee pursuant to Section 4.18 .
“ Liquidity Facility Bond Rate ” for the Bonds of any subseries means the interest rate(s) applicable from time to time to the other Bonds of such subseries (or as otherwise specified in accordance with any amendment to the initial Reimbursement Agreement or substitute Liquidity Facility approved by the Issuer, if the Trustee has received a Favorable Opinion of Bond Counsel).
“ Liquidity Facility Bond Sale Date ” means the day on which a Liquidity Facility Bond ceases to be a Liquidity Facility Bond.
“ Liquidity Facility Bonds ” means Bonds purchased by or with funds drawn on a Liquidity Facility Provider pursuant to a Liquidity Facility, but excluding Bonds no longer considered Liquidity Facility Bonds pursuant to the terms of such Liquidity Facility or the initial Reimbursement Agreement or any substitute therefor approved by the Issuer.
“ Liquidity Facility Deposit Account ” means the account by that name within the Purchase Fund established pursuant to Section 4.12 .
“ Liquidity Facility Provider ,” when used in respect of the Bonds or any subseries thereof, means the commercial bank, savings institution, insurer or other financial institution issuing the Liquidity Facility for such Bonds. The initial Liquidity Facility Provider is Bank of America, N.A.
“ Loan Agreement ” means that certain Loan Agreement, dated as of December 1, 2011, between the Issuer and the Borrower, as originally executed and amended by an amendment thereto dated as of even date herewith and as it may from time to time be further supplemented, modified or amended in accordance with the terms thereof and of this Bond Indenture.
“ Loan Payments ” has the meaning stated in Section 1.01 of the Loan Agreement.
“ Long Indexed Mode ” means the Mode during which the Bonds or any subseries thereof bear interest at a Long Indexed Rate to the Maturity Date or any earlier Mode Change Date therefor or date for redemption thereof.
“ Long Indexed Rate ” means an interest rate that is determined pursuant to Section 2.07 with respect to any Bonds in the Long Indexed Mode or, if less, the Maximum Rate.
“ Mandatory Purchase Date ” for the Bonds or any subseries thereof means: (1) any Purchase Date for such Bonds in the Commercial Paper Mode, the Term Indexed Mode, the Term Rate Mode, the R-FLOATs Mode or the Special R- FLOATs Mode with a Special R-FLOATs Rate Period of greater than 35 days; (2) any Mode Change Date for such Bonds; (3) unless the provisions of Section 4.10 negating mandatory tender for purchase are satisfied, any Termination Date, New Liquidity Facility Date, Expiration Date or New Credit Facility Date for such Bonds; (4) if a Bondholder Agreement is in effect during a Term Indexed Mode, any Mandatory Purchase Date designated by the Bondholder Representative in accordance with the Bondholder Agreement by
 
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written notice given to the Trustee at least four (4) Business Days prior to such Mandatory Purchase Date; and (5) any Business Day on which such Bonds may be redeemed pursuant to Section 4.01 (other than Subsection F thereof) at a Redemption Price equal to 100% of principal amount plus accrued interest, if any, if the Borrower has requested that such Bonds then be subject to mandatory tender in writing given to the Trustee (including pursuant to Section 4.01I ) at least five Business Days before notice thereof must be given pursuant to Section 4.08 .
“ Mandatory Sinking Account Payment ” means the amount required by Section 5.03 to be paid by the Trustee on any single date for the redemption of Bonds.
“ Margin Rate Factor ” as of any date means the greater of one (1) or the product of (i) one (1) minus the Maximum Corporate Tax Rate then in effect multiplied by (ii) 1.53846. The effective date of any change in the Margin Rate Factor shall be the effective date of the increase or decrease (as applicable) in the Maximum Corporate Tax Rate that resulted in such change. As of the first day of the Initial LIBOR Term Indexed Mode, the Margin Rate Factor is one (1). “ Maximum Corporate Tax Rate ” means the highest combined marginal statutory rate of federal income tax imposed on domestic corporations in the U.S.
“ Maturity Date ” means November 1, 2050, or, with respect to the Bonds or any subseries thereof changed to the Stepped Coupon Mode, the maturities determined pursuant to Section 2.08 , or changed to the Fixed Rate Mode, the maturities determined pursuant to Section 2.10 .
“ Maximum Rate ” for the Bonds or any subseries thereof means the least of (1) 15% per annum, (2) the maximum interest rate permitted by law, or (3) when a Credit Facility or Liquidity Facility is in effect for such Bonds, the lower of the rate of interest specified in either thereof as the rate at which money available to be drawn thereunder to pay interest on (or the interest portion of the Purchase Price for) such Bonds has been computed.
“ Mode ” means, as the context may require, the Commercial Paper Mode, the Daily Mode, the Weekly Mode, the R-FLOATs Mode, an Indexed Mode, the Stepped Coupon Mode, the Term Rate Mode or the Fixed Rate Mode.
“ Mode Change Date ” means, with respect to any Bonds, the day immediately following the last day of one Mode for such Bonds on which another Mode begins.
“ Moody’s ” means Moody’s Investors Service, a corporation organized and existing under the laws of the state of its organization, its successors and their assigns, or, if such corporation shall be dissolved or liquidated or shall no longer perform the functions of a securities rating agency, any other nationally recognized securities rating agency designated by the Borrower by notice to the Issuer, the Credit Facility Providers (if any), the Liquidity Facility Providers (if any) and the Trustee.
“ New Credit Facility Date ” for the Bonds or any subseries thereof means the date of delivery by the Borrower to the Trustee of a new or substitute Credit Facility for such Bonds pursuant to Section 5.09 or the effective date of release of the Credit Facility for such Bonds pursuant to Section 5.08F .
“ New Liquidity Facility Date ” for the Bonds or any subseries thereof means the date of delivery by the Borrower to the Trustee of a new or substitute Liquidity Facility for such Bonds pursuant to Section 4.18 or the effective date of release of the Liquidity Facility for such Bonds pursuant to Section 4.17F .
 
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“ New Mode ” shall have the meaning specified in Section 2.12A(1) .
“ Non-Remarketing Period ” has the meaning specified in Section 2.06F(1) .
“ Opinion of Counsel ” means a written opinion of counsel (who may be counsel for an Interested Party) selected by the Borrower and not objected to by the Issuer, the Trustee, any Credit Facility Provider or any Liquidity Facility Provider and, when given with respect to any matter under the United States Bankruptcy Code, shall be counsel of nationally recognized standing in the field of bankruptcy law. If and to the extent required by the provisions of Section 1.02 , each Opinion of Counsel shall include the statements provided for in Section 1.02 .
“ Original Bond Indenture ” has the meaning stated in the recitals to this Bond Indenture.
“ Outstanding ,” when used as of any particular time with reference to Bonds, means (subject to the provisions of Section 11.09 ) all Bonds theretofore, or thereupon being, authenticated and delivered by the Trustee under this Bond Indenture except: (1) Bonds theretofore cancelled by the Trustee or surrendered to the Trustee for cancellation; (2) Bonds with respect to which all liability of the Issuer shall have been discharged in accordance with Section 10.02 , including Bonds (or portions of Bonds) referred to in Section 11.10 ; and (3) Bonds for the transfer or exchange of or in lieu of or in substitution for which other Bonds shall have been authenticated and delivered by the Trustee pursuant to this Bond Indenture.
“ Person ” means an individual, corporation, firm, association, partnership, trust, or other legal entity or group of entities, including a governmental entity or any agency or political subdivision thereof.
“ Principal Corporate Trust Office ” means the office of the Trustee at 601 Travis Street, Floor 16, Houston, Texas 77002, or any other office of the Trustee in the State of Texas or the State of New York designated by it as the place at which Bonds shall be surrendered for transfer, exchange, or payment.
“ Principal Fund ” means the fund by that name established pursuant to Section 5.03 .
“ Principal Payment Date ” means, with respect to a Bond, the date on which principal of such Bond becomes due and payable, either by maturity, redemption, acceleration or otherwise.
“ Project ” means any project described in Exhibit A to the Loan Agreement.
“ Project Fund ” means the fund by that name established pursuant to Section 3.04 .
“ Purchase Date ” for any Bond means (i) during the Commercial Paper Mode, the Term Rate Mode, either Term Indexed Mode, and the term rate R-FLOATs Mode with respect to such Bond, the date specified in Section 2.07 (in the case of the first Interest Period in the Initial LIBOR Term Indexed Mode) or determined by the Remarketing Agent for such Bond on the most recent Rate Determination Date for such Bond as the date on which such Bond shall be subject to purchase, (ii) during the Daily Mode, the Weekly Mode, the weekly R-FLOATs Mode, or the monthly R-FLOATs Mode with respect to such Bond, any Business Day elected by the Holder thereof pursuant to Section 4.06 , and (iii) while such Bond is in the Special R-FLOATs Rate Period, the Interest Payment Date immediately following such Special R-FLOATs Rate Period elected by the Holder thereof pursuant to Section 4.06 ; provided that, if such Bond is in an R-FLOATs Mode, it will be entitled to be purchased only to the extent the proceeds of a remarketing are available for such purchase.
 
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“ Purchase Fund ” means the fund of the Tender Agent by that name established pursuant to Section 4.12 .
“ Purchase Price ” for any Bond means (i) an amount equal to the principal amount of such Bond, if purchased on any Purchase Date therefor, plus, in the case of any purchase of such Bond in the Daily Mode, the Weekly Mode or the R-FLOATs Mode, accrued interest thereon, if any, to the Purchase Date, or (ii) an amount equal to the principal amount of such Bond, if purchased on a Mandatory Purchase Date, plus accrued interest thereon, if any, to the Mandatory Purchase Date.
“ Rate Determination Date ,” when used with respect to any Bond, means the Business Day on which the interest rate(s) with respect to such Bond (or, in the case of Bonds in an Indexed Mode, the function of or spread to the applicable index to be used to determine such interest rates) shall be determined, which,
(1) Commercial Paper Mode : if such Bond is in the Commercial Paper Mode, shall be the first day of an Interest Period;
(2) Daily Mode : if such Bond is in the Daily Mode, shall be each Business Day commencing with the first day such Bond becomes subject to the Daily Mode;
(3) Weekly Mode : in the case of conversion to the Weekly Mode or the weekly R-FLOATs Mode, shall be a day determined by the Remarketing Agent for such Bonds which is no later than the Mode Change Date on which such Mode commences, and thereafter, while such Bond is in a Weekly Mode or a weekly R-FLOATs Mode, shall be each Thursday on which a new Interest Period commences or, if Thursday is not a Business Day, the Business Day immediately succeeding such Thursday;
(4) Special R-FLOATs : if such Bond is in a Special R-FLOATs Rate Period, shall be a day determined by the Remarketing Agent for such Bonds which is no later than the first Business Day of such Special R-FLOATs Rate Period;
(5) Term Modes : if such Bond is in a Term Rate Mode or a term rate R-FLOATs Mode, shall be a day determined by the Remarketing Agent for such Bonds which is a Business Day no earlier than 30 Business Days and no later than the Business Day immediately preceding the first day of each Interest Period;
(6) Indexed, Stepped Coupon and Fixed Mode : if such Bond is in an Indexed Mode (other than during the initial Interest Period in the Initial LIBOR Term Indexed Mode), the Stepped Coupon Mode or the Fixed Rate Mode, shall be a date determined by the Remarketing Agent for such Bond which shall be at least one Business Day prior to the Mode Change Date; and
(7) Monthly R-FLOATs : if such Bond is in the monthly R-FLOATs Mode, shall be the Business Day next preceding the first Business Day of the immediately following month.
“ Rating Agency ” means S&P, Moody’s and Fitch.
 
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“ Rating Category ” means one of the general rating categories of the Rating Agencies without regard to any refinement or graduation of such rating category by numerical modifier or otherwise.
“ Rebate Fund ” means the fund by that name established pursuant to Section 5.06 .
“ Record Date ” for the payment of interest on any Interest Payment Date means (i) with respect to Bonds in a Commercial Paper Mode, a Daily Mode, a Weekly Mode, a weekly or monthly R-FLOATs Mode, or a Term Indexed Mode while a Bondholder Agreement is in effect the day (whether or not a Business Day) immediately preceding such Interest Payment Date, and (ii) with respect to Bonds in a term R-FLOATs Mode, an Indexed Mode (except when a Bondholder Agreement is in effect), a Stepped Coupon Mode, a Term Rate Mode, or a Fixed Rate Mode, the 15th day (whether or not a Business Day) of the month immediately preceding such Interest Payment Date.
“ Redemption Fund ” means the fund by that name established pursuant to Section 5.04 .
“ Redemption Price ” means, with respect to any Bond (or portion thereof), the principal amount of such Bond (or portion) plus the applicable premium, if any, payable upon redemption thereof pursuant to the provisions of such Bond and this Bond Indenture.
“ Regulations ” has the meaning stated in Section 1.01 of the Loan Agreement.
“ Reimbursement Agreement ” means any agreement between the Borrower and a Credit Facility Provider or Liquidity Facility Provider pursuant to which a Credit Facility or Liquidity Facility is issued, in each case as amended, supplemented or extended from time to time in accordance with the provisions thereof. A Reimbursement Agreement is “ for ” or “ applicable ” to the Bonds or any subseries thereof if it provides for the Credit Facility or Liquidity Facility for such Bonds to be issued.
“ Remarketing Agent ” for the Bonds or any subseries thereof means any remarketing agent appointed for such Bonds by the Issuer or the Borrower in accordance with Sections 4.13 and 4.14 and not objected to by the Credit Facility Provider (if any) or the Liquidity Facility Provider (if any) for such Bonds and at the time serving as remarketing agent for such Bonds under a Remarketing Agreement.
“ Remarketing Agreement ” means that certain remarketing agreement between the Borrower and the initial Remarketing Agent, as such agreement may from time to time be amended and supplemented or replaced, to remarket the Bonds of any subseries delivered or deemed to be delivered for purchase by the Holders thereof, subject to approval by the Credit Facility Provider (if any) and the Liquidity Facility Provider (if any) for such Bonds.
“ Remarketing Proceeds Account ” means the account by that name within the Purchase Fund established pursuant to Section 4.12 .
“ Requisition ” means an application by the Borrower for the disbursement of funds held by the Trustee hereunder in substantially the form of Exhibit C , duly completed and signed by an Authorized Representative.
 
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“ R-FLOATs Mode ” means the Mode during which Bonds bear interest at the R-FLOATs Rate, which may be a term rate R-FLOATs Mode, a weekly R-FLOATs Mode, a monthly R-FLOATs Mode, or an R-FLOATs Mode comprised of Special R-FLOATs Rate Periods.
“ R-FLOATs Rate ” means an interest rate that is determined with respect to Bonds in an R-FLOATs Mode pursuant to Section 2.06D , unless such Bonds are in a Non-Remarketing Period, in which case the Maximum Rate determined pursuant to Section 2.06F , or in a Special R-FLOATs Rate Period, in which case the rate determined pursuant to Section 2.06E . The R-FLOATs Rate may be a term rate R-FLOATs Rate, a weekly R-FLOATs Rate, a monthly R-FLOATs Rate, or a Special R-FLOATs Rate.
“ Required Stated Amount ” means, at any time of calculation with respect to the Bonds of any subseries, an amount equal to the aggregate principal amount of all Bonds of such subseries then Outstanding together with interest accruing thereon (assuming an annual rate of interest equal to the Maximum Rate) for the period specified in a Certificate of the Borrower to be the minimum period specified by the Rating Agencies then rating the Bonds of such subseries as necessary to maintain, in the case of the Liquidity Facility, the short- term rating of the Bonds of such subseries, or, in the case of the Credit Facility, the long-term rating of the Bonds of such subseries.
“ Reserve Percentage ” as of any day (1) means the total of the maximum reserve percentages as of such day for determining the reserves to be maintained by member banks of the U.S. Federal Reserve System for “Eurocurrency Liabilities,” as defined in Federal Reserve Board Regulation D, expressed as a decimal and rounded upward to the nearest 1/100 of one percent, whether or not applicable to any Bondholder, including, but not limited to, marginal, emergency, supplemental, special, and other reserve percentages, or (2) has the meaning stated in the Bondholder Agreement, if the Trustee has received a Favorable Opinion of Bond Counsel and Opinion of Counsel to the effect that the use of such meaning of Reserve Percentage to calculate the LIBOR Index Rate is authorized by Texas law; provided that no change in the Reserve Percentage shall change the Reserve Percentage for purposes of this Bond Indenture unless the Trustee receives written notice of such change from the Bondholder Representative or the Borrower. If no Bondholder Agreement is in effect hereunder or “ Reserve Percentage ” is not defined therein, “ Reserve Percentage ” means zero (0).
“ Revenues ” means all amounts received by the Issuer or the Trustee for the account of the Issuer pursuant or with respect to the Loan Agreement, including, without limiting the generality of the foregoing, Loan Payments (including both timely and delinquent payments, any late charges, and whether paid from any source), prepayments, and all interest, profits or other income derived from the investment of amounts in any fund or account established pursuant to this Bond Indenture, but not including any Administrative Fees and Expenses or any moneys required to be deposited in the Rebate Fund or the Purchase Fund.
“ S&P ” means Standard & Poor’s Financial Services LLC, a subsidiary of The McGraw-Hill Companies, Inc., a corporation organized and existing under the laws of the state of its organization, and its successors and assigns, or, if such corporation shall be dissolved or liquidated or shall no longer perform the functions of a securities rating agency, any other nationally recognized securities rating agency designated by the Borrower by notice to the Issuer, the Credit Facility Providers (if any), the Liquidity Facility Providers (if any) and the Trustee.
“ Securities Depository ” means The Depository Trust Company and its successors and assigns, or any other securities depository selected as set forth in Section 2.20 , which agrees to follow the procedures required to be followed by such securities depository in connection with the Bonds.
 
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“ SIFMA ” means the Securities Industry and Financial Markets Association (formerly The Bond Market Association), and any successors thereto.
“ SIFMA Indexed Rate ” for any Bond and Interest Period in a SIFMA Term Indexed Mode means a per annum rate, determined from time to time by adding the Applicable Spread (determined in accordance with Section 2.07B ) from time to time in effect for such Bond and Interest Period to the SIFMA Municipal Swap Index.
“ SIFMA Municipal Swap Index ” means the Securities Industry and Financial Markets Association (formerly The Bond Market Association™) Municipal Swap Index, as disseminated by Municipal Market Data, a Thomson Financial Services Company, or its successor, for the most recently preceding Business Day.
“ SIFMA Term Indexed Mode ” means the Mode during which the Bonds or any subseries thereof bear interest at SIFMA Indexed Rates for an Interest Period that ends prior to the Maturity Date.
“ SIFMA Term Indexed Rate ” means an interest rate that is determined pursuant to Section 2.07 with respect to Bonds in the SIFMA Term Indexed Mode or, if less, the Maximum Rate.
“ Special Record Date ” means the date established by the Trustee pursuant to Section 2.03 as a record date for the payment of defaulted interest on Bonds.
“ Special R-FLOATs Rate Period ” for the Bonds or any subseries thereof means a period which begins on a Business Day and ends on any Business Day and which the Remarketing Agent for such Bonds determines is the shortest period which will enable such Remarketing Agent to remarket such Bonds in the R-FLOATs Mode at a price equal to 100% of principal amount plus accrued interest, if any.
“ Stepped Coupon Mode ” means the Mode during which the Bonds or any subseries thereof bear interest at the Stepped Coupon Rate.
“ Stepped Coupon Period ” has the meaning ascribed thereto in Section 2.08 .
“ Stepped Coupon Rate ” means an interest rate that is determined with respect to Bonds in the Stepped Coupon Mode pursuant to Section 2.08 , provided, however , that the Stepped Coupon Rate shall never exceed the Maximum Rate.
“ subseries ,” when used with respect to Bonds, means all Bonds designated as being of the same subseries pursuant to Section 2.02E, and any Bonds thereafter authenticated and delivered upon a transfer of, in exchange for, in lieu of or in substitution for such Bonds as herein provided.
“ Supplemental Bond Indenture ” means any indenture hereafter duly authorized and entered into between the Issuer and the Trustee, supplementing, modifying or amending this Bond Indenture; but only if and to the extent that such Supplemental Bond Indenture is specifically authorized hereunder.
“ Tax Certificate and Agreement ” means the No Arbitrage Certificate delivered by the Issuer and the Tax Letter of Representation delivered by the Borrower on the first day of the Initial LIBOR Term Indexed Mode for the Bonds, as the same may be amended or supplemented in accordance with its terms.
 
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“ Taxable Rate Factor ” has the meaning stated in the Bondholder Agreement, which is 1.53846 as of the effective date of this Bond Indenture, provided that no change in the Taxable Rate Factor shall occur unless and until the Trustee receives written notice thereof from the Bondholder Representative.
“Tender Agent ” means any tender agent appointed in accordance with Sections 4.15 and 4.16 .
“ Tender Notice Deadline ” shall mean (i) during the Daily Mode, 11:00 a.m. New York City time, on any Business Day, and (ii) during the Weekly Mode and the R-FLOATs Mode, 4:00 p.m. New York City time, on the Business Day five Business Days prior to the applicable Purchase Date.
“ Termination Date ” for the Bonds of any subseries means (a) the date specified in a notice of termination given by the Liquidity Facility Provider for such Bonds to the Trustee as the date on which such Liquidity Facility Provider will no longer be obligated to purchase such Bonds (or otherwise advance funds for the purchase of such Bonds) pursuant to the Liquidity Facility for such Bonds and requesting that such Bonds be subject to mandatory tender for purchase on the Business Day preceding such specified date, or (b) the date specified in a notice given by the Credit Facility Provider for such Bonds to the Trustee requesting that such Bonds be subject to mandatory tender on the Business Day preceding such specified date as a result of an event of default under the Reimbursement Agreement relating to such Credit Facility.
“ Term Indexed Mode ” means a LIBOR Term Indexed Mode or a SIFMA Term Indexed Mode.
“ Term Indexed Rate ” means a LIBOR Term Indexed Rate or a SIFMA Term Indexed Rate.
“ Term Rate ” means the per annum interest rate with respect to Bonds in the Term Rate Mode determined pursuant to Section 2.09 .
“ Term Rate Mode ” means the Mode during which Bonds bear interest at the Term Rate.
“ Trustee ” means The Bank of New York Mellon Trust Company, National Association, a national banking association duly organized and existing under the laws of the United States of America, having a principal corporate trust office in Houston, Texas, or its successor, as Trustee hereunder as provided in Article VIII .
“ USD-ISDA-Swap Rate ” means the rate for U.S. dollar swaps with a designated maturity equal to the length of the Interest Period for which the Alternate Rate is being calculated, expressed as a percentage, which appears on the Reuters Money 3000 Service on the page designated ISDAFIX1 as of 11:00 a.m., New York City time, on the day that is two U.S. Government Securities Business Days immediately preceding such Rate Determination Date. If such rate does not appear on such page on such day, then the “USD-ISDA-Swap Rate” for such maturity and date shall mean the percentage determined on the basis of mid-market semiannual swap rate quotations provided by three leading swap dealers in the New York City interbank market at approximately such time on such day as the mean of the bid and offered rates for the semiannual fixed leg, calculated on a 30/360 day count basis, of a fixed-for-floating U.S. dollar interest rate swap transaction with an effective date of the relevant early termination date and a termination date equal to such maturity, in an amount that is
 
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representative for a single transaction in such market at such time, with an acknowledged dealer of good credit in such market, where the floating rate, calculated on the basis of a 360-day year for actual days elapsed, is equal to the London Interbank Offered Rate for loans with a three-month duration.
“ U.S. Government Securities Business Day ” means any day except for a Saturday, a Sunday, or a day on which SIFMA recommends that the fixed income departments of its members be closed for the entire day for purposes of trading U.S. government securities.
“ Weekly Mode ” means the Mode during which Bonds bear interest at the Weekly Rate.
“ Weekly Rate ” means an interest rate that is determined on a weekly basis with respect to Bonds in the Weekly Mode pursuant to Section 2.06 .
SECTION 1.02. Content of Certificates and Opinions .
Every certificate or opinion provided for in this Bond Indenture with respect to compliance with any provision hereof shall include (1) a statement that the Person making or giving such certificate or opinion has read such provision and the definitions herein relating thereto; (2) a brief statement as to the nature and scope of the examination or investigation upon which the certificate or opinion is based; (3) a statement that, in the opinion of such Person, such Person has made or caused to be made such examination or investigation as is necessary to enable such Person to express an informed opinion with respect to the subject matter referred to in the instrument to which such Person’s signature is affixed; (4) a statement of the assumptions upon which such certificate or opinion is based, and that such assumptions are reasonable; and (5) a statement as to whether, in the opinion of such Person, such provision has been complied with.
Any such certificate or opinion made or given by an officer of the Issuer or the Borrower may be based, insofar as it relates to legal, accounting or operational matters, upon a certificate or opinion of or representation by counsel, an accountant or a management consultant, unless such officer knows, or in the exercise of reasonable care should have known, that the certificate, opinion or representation with respect to the matters upon which such certificate or statement may be based, as aforesaid, is erroneous. Any such certificate or opinion made or given by counsel, an accountant or a management consultant may be based, insofar as it relates to factual matters (with respect to which information is in the possession of the Issuer or the Borrower, as the case may be) upon a certificate or opinion of or representation by an officer of the Issuer or the Borrower, unless such counsel, accountant or management consultant knows, or in the exercise of reasonable care should have known, that the certificate or opinion or representation with respect to the matters upon which such Person’s certificate or opinion or representation may be based, as aforesaid, is erroneous. The same officer of the Issuer or the Borrower, or the same counsel or accountant or management consultant, as the case may be, need not certify to all of the matters required to be certified under any provision of this Bond Indenture, but different officers, counsel, accountants or management consultants may certify to different matters, respectively.
SECTION 1.03. Interpretation.
A. Number; Gender . Unless the context otherwise indicates, words expressed in the singular shall include the plural and vice versa and the use of the neuter, masculine, or feminine gender is for convenience only and shall be deemed to mean and include the neuter, masculine or feminine gender, as appropriate.
 
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B. Headings. Headings of Articles and Sections herein and the table of contents hereof are solely for convenience of reference, do not constitute a part hereof and shall not affect the meaning, construction or effect hereof.
C. Subdivision References. All references herein to “ Articles ,” “ Sections ,” “ Exhibits ,” and other subdivisions are to the corresponding Articles, Sections, Exhibits or subdivisions of this Bond Indenture; and the words “ herein ,” “ hereof ,” “ hereby ,” “ hereunder ” and other words of similar import refer to this Bond Indenture as a whole and not to any particular Article, Section, Exhibit or subdivision hereof.
D. Time. All references herein to a particular time of day shall be to New York City time.
*            *             *
 
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ARTICLE II
THE BONDS
SECTION 2.01. Authorization of Bonds.
An issue of Bonds was created under the Original Bond Indenture in order to obtain moneys for the benefit of the Issuer for loan to the Borrower. The Bonds are designated as “Harris County Industrial Development Corporation Marine Terminal Revenue Bonds (HFOTCO LLC Project) Series 2011.” The aggregate principal amount of Bonds that may be issued and Outstanding under this Bond Indenture shall not exceed $50,000,000. This Bond Indenture constitutes a continuing agreement with the Holders from time to time of the Bonds to secure the full payment of the principal of and premium (if any) and interest on all the Bonds, subject to the covenants, provisions and conditions herein contained.
SECTION 2.02. Denominations; Form; Date; Maturity; Numbering; Interest Accrual; Subseries.
A. Registration. The Bonds were registered initially in the name of “Cede & Co.,” as nominee of the Securities Depository, and evidenced by one Bond in the total aggregate principal amount of the Bonds.
B. Denominations. The Bonds shall be issuable in denominations of (i) $100,000 and any integral multiple of $5,000 in excess thereof, with respect to Bonds in a Daily Mode, a Weekly Mode, a Commercial Paper Mode, a Term Indexed Mode, or a Term Rate Mode of 360 days or less, (ii) $5,000 and any integral multiple thereof, with respect to Bonds in the Fixed Rate Mode, a Long Indexed Mode, a Stepped Coupon Mode, a Term Rate Mode of more than 360 days, or a Special R-FLOATs Rate Period or a term rate R-FLOATs Mode of more than 180 days, and (iii) $25,000 and any integral multiple thereof, with respect to Bonds in a weekly R-FLOATs Mode, a monthly R-FLOATs Mode, a Special R-FLOATs Rate Period or a term rate R-FLOATs Mode of 180 days of less.
C. Dating; Maturity; Numbering. The Bonds shall be dated the date of their authentication and delivery. The Bonds shall mature (subject to prior redemption) on their Maturity Date. The Bonds shall be numbered in such manner as shall be determined by the Trustee to distinguish each Bond from every other Bond.
D. Day Counts for Interest. Interest on the Bonds shall accrue from the date of initial delivery thereof, which shall be inserted in the Bonds under “Dated Date” on the first page thereof, or the most recent Interest Payment Date therefor to which interest thereon has been paid or duly provided for. Interest shall be calculated on the basis of (i) a 365-day or 366-day year for the number of days actually elapsed, during a Commercial Paper Mode, a Daily Mode, a Weekly Mode, a SIFMA-based Long Indexed Mode, a SIFMA Term Indexed Mode, a weekly R-FLOATs Mode, a monthly R-FLOATs Mode, a Term Rate Mode of 360 days or less, a term rate R-FLOATs Mode of 360 days or less and a Special R-FLOATs Rate Period of 360 days or less, (ii) a 360-day year of twelve 30-day months during a Term Rate Mode of more than 360 days, a Special R-FLOATs Rate Period of more than 360 days, a term rate R-FLOATs Mode of more than 360 days, the Fixed Rate Mode, a Stepped Coupon Mode, or a Long Indexed Mode that is not LIBOR-based or SIFMA-based, and (iii) a 360-day year for the number of days actually elapsed during a LIBOR-based Long Indexed Mode or a LIBOR Term Indexed Mode.
 
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The following charts summarize this Section.

AUTHORIZED DENOMINATIONS	
			
$5,000 and any integral
multiple thereof	  	$25,000 and any integral
multiple thereof	  	$100,000 and any integral
multiple of $5,000	
Fixed Rate Mode	  	Weekly R-FLOATs Mode	  	Daily Mode	
Indexed Mode	  	Monthly R- FLOATs Mode	  	Weekly Mode	
Stepped Coupon Mode	  	Special R-FLOATs Rate	  	Commercial Paper Mode	
Term Rate Mode of more than 360 days	  	Period of 180 days or less	  	Term Rate Mode of 360 days or less	
Special R-FLOATs Rate Period of more than 180 days	  	Term rate R-FLOATs Mode of 180 days or less	  	Term Indexed Mode	
Term rate R-FLOATs Mode of more than 180 days	  		  		
	
DAY COUNT FOR INTEREST CALCULATIONS	
			
Actual/Actual Days	  	30/360 Days	  	Actual/360 Days	
Commercial Paper Mode	  	Term Rate Mode of more than 360 days	  	LIBOR-based Long Indexed Mode	
Daily Mode	  		  	LIBOR Term Indexed Mode	
Weekly Mode	  	Special R-FLOATs Rate Period of more than 360 days	  		
SIFMA-Based Long Indexed Mode	  		  		
SIFMA Term Indexed Mode	  		  		
Weekly R-FLOATs Mode	  	Term rate R-FLOATs Mode of more than 360 days	  		
Monthly R-FLOATs Mode	  		  		
Term Rate Mode of 360 days or less	  	Fixed Rate Mode	  		
Term rate R-FLOATs Mode of 360 days
or less	  	Stepped Coupon Mode	  		
Special R-FLOATs Rate Period of 360 days or less	  		  		
E. Subseries. The Bonds shall initially be issued in one subseries. The Borrower may designate additional subseries into which the Bonds or any subseries thereof shall be divided, or merge the Bonds of two or more subseries into a single subseries of Bonds, in either case by Borrower Order effective on a Mandatory Purchase Date for all such Bonds and delivered to the Trustee, the Remarketing Agent for such Bonds, the Credit Facility Providers (if any) for such Bonds, the Liquidity Facility Providers (if any) for such Bonds, and each Rating Agency maintaining a rating for such Bonds not less than 5 Business Days (or such shorter period acceptable to the Trustee), plus the minimum number of days’ notice of such Mandatory Purchase Date which the Trustee must give to the Holders of such Bonds pursuant to Article IV, prior to the effective date of such designation. Unless each such Rating Agency shall have confirmed that such designation or merger will not result in a reduction, suspension, or withdrawal of any such rating, the notice of such Mandatory Tender Date shall state that the rating assigned to such Bonds may then be reduced, suspended, or withdrawn by such Rating Agency.
SECTION 2.03. Payment of Principal of and Interest on the Bonds.
A. Payees; Method. The principal or Redemption Price of the Bonds shall be payable by check in lawful money of the United States of America at the Principal Corporate Trust Office of the Trustee. Interest on the Bonds due on an Interest Payment Date shall be paid to the Person whose name appears on the bond registration books of the Trustee as the Holder thereof as of the close of business on the Record Date for such Interest Payment Date. Any such interest not so punctually paid or duly provided for shall forthwith cease to be payable to the Bondholder as of such Record Date and shall be paid to the Person in whose name the Bond is registered at the close of
 
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business on a Special Record Date for the payment of such defaulted interest to be fixed by the Trustee, notice whereof being given not less 10 days prior to such Special Record Date by Electronic Means to the Bondholder Representative, if any, and by first class mail to the Bondholders. Payment of the interest on (i) any Bonds in a Daily Mode, a Weekly Mode, an R-FLOATs Mode, an Indexed Mode, a Term Rate Mode, a Special R-FLOATs Rate Period of 360 days or less or a Commercial Paper Mode shall be made by wire transfer in immediately available funds to an account within the United States of America designated by such Holder and (ii) any Bonds in a Term Rate Mode, a Special R-FLOATs Rate Period of more than 360 days, a Stepped Coupon Mode or a Fixed Rate Mode shall be made by check mailed by first class mail to such Holder at its address as it appears on such registration books, or, upon the written request of any Holder of at least $1,000,000 in aggregate principal amount of Bonds, submitted to the Trustee at least one Business Day prior to the Record Date for such interest, by wire transfer in immediately available funds to an account within the United States of America designated by such Holder. As long as Cede & Co. is the Holder of the Bonds, said principal or Redemption Price and interest payments shall be made to Cede & Co. by wire transfer in immediately available funds. CUSIP number identification shall accompany all payments of principal or Redemption Price and interest whether by check or by wire transfer. The principal of Liquidity Facility Bonds shall be paid as set forth in the Reimbursement Agreement relating to such Liquidity Facility Bonds.
B. Interest Rates. Interest on the Bonds shall be calculated in accordance with Sections 2.04 , 2.05, 2.06, 2.07, 2.08, 2.09, 2.10 and 2.11 of this Bond Indenture, and interest accrued on Bonds in each Interest Payment Period shall be payable on the immediately succeeding Interest Payment Date therefor. Notwithstanding the foregoing, Liquidity Facility Bonds shall bear interest at a rate per annum equal to the Liquidity Facility Bond Rate for such Bonds, and interest on Liquidity Facility Bonds shall be payable on each Interest Payment Date for such Liquidity Facility Bonds. Additionally, anything herein to the contrary notwithstanding, in no event shall any Bond bear interest at a rate per annum in excess of the Maximum Rate.
SECTION 2.04. Initial Mode; Change of Mode.
A. Initial Mode . The Bonds were issued, and on the effective date of this Bond Indenture remain in, the Weekly Mode. On the effective date of this Bond Indenture, the Mode for the Bonds shall be changed to the LIBOR Term Indexed Mode.
B. Mode Changes. Bonds in any Mode, other than the Fixed Rate Mode, the Long Indexed Mode or the Stepped Coupon Mode, may be changed to any other Mode at the times and in the manner hereinafter provided. All Bonds of any subseries must be in the same Mode. While the Bonds of any subseries are in a Commercial Paper Mode, the Bonds of such subseries may bear interest at different rates at the same time. While Bonds of a subseries are in a Daily Mode, a Weekly Mode, an R-FLOATs Mode, a Term Rate Mode, the Fixed Rate Mode (subject to Section 2.10 ), an Indexed Mode, or the Stepped Coupon Mode, all Bonds of such subseries shall bear interest at the same interest rate. Subsequent to such change in Mode (other than a change to the Fixed Rate Mode, the Long Indexed Mode, or the Stepped Coupon Mode), the Bonds may again be changed to a different Mode at the times and in the manner hereinafter provided. The Fixed Rate Mode, the Long Indexed Mode, and the Stepped Coupon Mode for Bonds shall be in effect until the Maturity Date of such Bonds and may not be changed to any other Mode.
 
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SECTION 2.05. Determination of Commercial Paper Rates, Purchase Date and Interest Periods During Commercial Paper Mode.
A. Interest Periods. Interest Periods for the Bonds of any subseries during a Commercial Paper Mode shall be of such duration, from one to 270 calendar days and ending on a day immediately preceding a Business Day or the Maturity Date, as the Remarketing Agent for such Bonds shall determine in accordance with the provisions of this Section. On each Rate Determination Date for Bonds in a Commercial Paper Mode, the Remarketing Agent for such Bonds shall select for each such Bond then subject to such adjustment the Interest Period which would result in the Remarketing Agent being able to remarket such Bond at a price equal to 100% of principal amount in the secondary market with the lowest interest rate then available and for the longest Interest Period available at such rate. If, on any such Rate Determination Date, such Remarketing Agent determines that current or anticipated future market conditions or anticipated future events are such that a different Interest Period would result in a lower average interest cost with respect to such Bond, then such Remarketing Agent shall select the Interest Period that, in the judgment of such Remarketing Agent, would permit such Bond to achieve such lower average interest cost. If such Remarketing Agent has received notice from the Borrower that any such Bond is to be changed from the Commercial Paper Mode to any other Mode or is to be purchased in accordance with a mandatory purchase pursuant to Section 4.08 , such Remarketing Agent shall, with respect to such Bond, select Interest Periods which do not extend beyond the Mandatory Purchase Date for such Bond. The Remarketing Agent shall also select Interest Periods which permit the amount of Bonds of the applicable subseries to be redeemed in accordance with Section 4.01F or pursuant any optional redemption of which it receives notice on an Interest Payment Date for such Bonds. If a Credit Facility or Liquidity Facility is in effect for Bonds of any subseries in a Commercial Paper Mode, the Remarketing Agent shall not select any Interest Period which would result in the aggregate of interest accrued and to accrue in all Interest Periods for such Bonds then in effect to exceed the amount that may be drawn in respect of interest under either such Credit Facility or such Liquidity Facility.
B. Anticipated Rates and Periods. On or after 9:00 a.m. New York City time on each Rate Determination Date for Bonds in the Commercial Paper Mode, any Holder of such Bonds may telephone the Remarketing Agent for such Bonds and receive notice of the anticipated next Interest Period(s) for such Bonds and the anticipated Commercial Paper Rate(s) for such Interest Period(s).
C. Rate and Period Determinations. By 12:30 p.m. New York City time on each Rate Determination Date for Bonds of any subseries in a Commercial Paper Mode, the Remarketing Agent for such Bonds, with respect to each such Bond in the Commercial Paper Mode which is subject to adjustment on such date, shall determine the Commercial Paper Rate(s) for the Interest Period(s) then selected for such Bond and the Purchase Date(s) immediately following such Interest Period(s) and shall give notice by Electronic Means to the Tender Agent of such Interest Period(s), Purchase Date(s) and the Commercial Paper Rate(s).
D. CUSIP Nos. By 1:00 p.m. New York City time on each Rate Determination Date for Bonds of any subseries in a Commercial Paper Mode, the Tender Agent shall apply for and obtain CUSIP numbers (which the Tender Agent will promptly assign pursuant to Section 4.15A(4) ) for each Bond in the Commercial Paper Mode for which a Commercial Paper Rate, a Purchase Date and Interest Period have been determined on such date and notify the Remarketing Agent of such assignment by Electronic Means.
E. Bondholder Agreement. By acceptance of any Bond during a Commercial Paper Mode, the Holder thereof shall be deemed to have agreed, during each Interest Period, to the
 
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Commercial Paper Rate (including the Alternate Rate, if applicable), Interest Period and Purchase Date then applicable thereto and to have further agreed to tender such Bond to the Tender Agent for purchase on such Purchase Date at the Purchase Price.
SECTION 2.06. Determination of Interest Rates During the Daily Mode, the Weekly Mode and the R-FLOATs Mode.
A. Method of Determining Interest Rates. Interest on the Bonds or any subseries thereof in the Daily Mode, Weekly Mode or R-FLOATs Mode (except during any Non-Remarketing Period, when interest shall accrue at the Maximum Rate pursuant to Subsection F of this Section) shall accrue at the rate of interest per annum determined by the Remarketing Agent for such Bonds on and as of the Rate Determination Date for such Bonds as the lower of the Maximum Rate or the minimum rate of interest which, in the judgment of such Remarketing Agent under then-existing market conditions, would result in the sale of such Bonds on such Rate Determination Date at a price equal to the Purchase Price. Such determination shall be conclusive and binding upon the Borrower, the Issuer, the Trustee, the Tender Agent, the Credit Facility Provider(s) (if any), the Liquidity Facility Provider(s) (if any), the Remarketing Agents and the Bondholders.
B. Determination Time for Daily Rate. While the Bonds of any subseries are in the Daily Mode, the Remarketing Agent for such Bonds shall establish the Daily Rate therefor by 10:00 a.m. New York City time on each Business Day. The Daily Rate for Bonds for any day during the Daily Mode which is not a Business Day shall be the Daily Rate for such Bonds established on the immediately preceding Business Day.
C. Determination Time for Weekly Rate. While the Bonds of any subseries are in the Weekly Mode, the Remarketing Agent for such Bonds shall establish the Weekly Rate therefor by 10:00 a.m. New York City time on each Rate Determination Date for such Mode. The Weekly Rate for Bonds shall be in effect (1) initially, from and including the first day such Bonds become subject to the Weekly Mode to and including the following Wednesday (or the second following Wednesday, if the first day of the Weekly Mode is on a Tuesday or Wednesday), and (2) thereafter, from and including each Thursday to and including the following Wednesday. The Remarketing Agents shall make the applicable respective Weekly Rates determined by them available (i) after 10:00 a.m. New York City time on the Rate Determination Date, upon request by telephone to any Bondholder, the Borrower, the Issuer, the Trustee, the Tender Agent, any Credit Facility Provider or any Liquidity Facility Provider and (ii) by Electronic Means to the Trustee not later than the second Business Day after such Rate Determination Date.
D. Determination Time for R-FLOATs Rate. While the Bonds of any subseries are in the R-FLOATs Mode (except during a Special R-FLOATs Rate Period, when interest shall accrue at the R-FLOATs Rate determined pursuant to Subsection E of this Section, and except during any Non-Remarketing Period, when interest shall accrue at the Maximum Rate pursuant to Subsection F of this Section), the Remarketing Agent for such Bonds shall establish the R-FLOATs Rate therefor, by 10:00 a.m. New York City time on each Rate Determination Date for such Bonds. The R-FLOATs Rate shall be in effect during the applicable Interest Period. The Remarketing Agents shall make the R-FLOATs Rates determined by them available (i) after 10:00 a.m. New York City time on the applicable Rate Determination Date, upon request by telephone to any Bondholder or Interested Party, and (ii) by Electronic Means to the Trustee not later than the second Business Day after such Rate Determination Date.
E. Determination Method and Time for R-FLOATs Rate in a Special R-FLOATs Rate Period. In the event that Bonds of any subseries are in an R-FLOATs Mode and are
 
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not rated “A3” or “A-”, as applicable, or higher by each Rating Agency, then not later than 1:00 p.m. New York City time on the Business Day immediately preceding the next Interest Payment Date, the Remarketing Agent for such Bonds shall establish the maximum period for a Special R-FLOATs Rate Period, which maximum Special R-FLOATs Rate Period shall be made available after 1:00 p.m. New York City time on the Business Day immediately prior to the applicable Rate Determination Date by posting it electronically and by telephone to any Bondholder or Interested Party who contacts applicable Remarketing Agent. Not later than 10:00 a.m. New York City time on such Rate Determination Date, such Remarketing Agent shall select a Special R-FLOATs Rate Period, which shall be the shortest Interest Period (but in no event longer than the maximum Special R-FLOATs Rate Period previously announced) for such Bonds which in the judgment of such Remarketing Agent in each case would result in such Bonds trading at a price equal to 100% of principal amount plus accrued interest, and an R-FLOATs Rate for such Bonds in accordance with Subsection A of this Section. The Remarketing Agents shall make the respective R-FLOATs Rate and Special R-FLOATs Rate Period determined by them available (i) after 10:00 a.m. New York City time on the applicable Rate Determination Date by telephone to any Bondholder and any Interested Party which contacts such Remarketing Agent and (ii) by Electronic Means to the Trustee not later than the second Business Day following such Rate Determination Date. In the event such Remarketing Agent is unable to set a Special R-FLOATs Rate Period and R-FLOATs Rate which will produce a sale of such Bonds at a price equal to 100% of principal amount plus accrued interest, such Bonds shall bear interest at the Maximum Rate and for the Interest Period determined pursuant to Subsection F of this Section. In addition, the Borrower may elect, with the consent of the applicable Remarketing Agent, to have the Bonds of any subseries in an R-FLOATs Mode converted into a Special R- FLOATs Rate Period having a duration of the Borrower’s choosing by giving at least 10 days notice to the Trustee and the Tender Agent. Notice of such Special R-FLOATs Rate Period shall be given in the same manner as notice of the maximum Special R-FLOATs Rate Period set forth above. On the effective date of such optional conversion to a Special R-FLOATs Rate Period of more than 35 days, the affected Bonds shall be subject to mandatory purchase pursuant to Section 4.08 .
F. Determination of R-FLOATs Non-Remarketing Period and Rate .
(1) Determinations . If any Bond that is in the R-FLOATs Mode is optionally tendered for purchase pursuant to Section 4.06 or is subject to mandatory purchase pursuant to Section 4.08 or Section 4.10 and either (a) the Remarketing Agent for such Bond, after using its reasonable best efforts, is unable to remarket such Bond at the Purchase Price by 2:00 p.m. New York City time on the Purchase Date or Mandatory Purchase Date (whether such inability is due to market conditions or otherwise) or (b) such Bond is returned to the Holder thereof pursuant to Section 4.12C , then, from such Purchase Date or Mandatory Purchase Date until the date on which all Bonds of the same subseries in such Mode that have been tendered or are subject to mandatory tender are successfully remarketed at the Purchase Price (the “ Non-Remarketing Period ”), all Bonds of such subseries in such Mode shall bear interest for a new Interest Period, which shall be the same as the Interest Period for such Bonds just concluding, unless such Interest Period was a Special R-FLOATs Rate Period, in which case such Bonds shall bear interest for a weekly R-FLOATs Mode at the Maximum Rate. Following the Non-Remarketing Period, all Bonds of such subseries in such Mode shall (unless converted to a different Mode) bear interest at a rate per annum determined pursuant to Subsection D or E of this Section.
(2) Special Rate Determination Dates . During each Non-Remarketing Period for the Bonds of a subseries in an R-FLOATs Mode, the Remarketing Agent for such Bonds shall continue to use its best efforts each Business Day to remarket such Bonds in the R-FLOATs Mode at the Purchase Price. In connection therewith, such Remarketing Agent may consider the day on which such Bonds are successfully remarketed at the Purchase Price to be a Rate Determination Date for such Bonds.
 
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SECTION 2.07. Determination of Indexed Rates.
A. Long Indexed Mode. Prior to any conversion of Bonds to a Long Indexed Mode, the Issuer shall enter into a Supplemental Bond Indenture setting forth the index, the spread, the redemption provisions, and the Interest Period for such Bonds. The Borrower shall select the index on which the Long Indexed Rate for such Bonds shall be based not less than five Business Days prior to the applicable Rate Determination Date. Such index shall be three-month LIBOR or, with the consent of the Issuer, the Consumer Price Index, the SIFMA Swap Index or any other index which the Borrower elects. The Remarketing Agent for such Bonds shall determine the percentage of and/or the spread to such index to be used in calculating the Long Indexed Rate not later than 4:00 p.m. New York City time on the Rate Determination Date for such Bonds. The percentage and/or the spread shall be the lowest percentage which, when multiplied by and/or added to the index, such Remarketing Agent determines will result in selling such Bonds at a price equal to the Purchase Price on the Rate Determination Date therefor. At the time such Remarketing Agent determines the percentage and/or the spread to be applied to the index, the Remarketing Agent shall also determine the interest rate for the initial Interest Payment Period from the Mode Change Date to the first Interest Payment Date for such Bonds in the Long Indexed Mode, the frequency with which the Long Indexed Rate shall be recalculated, and the Interest Payment Dates therefor. Unless otherwise agreed by the Issuer with the consent of the Borrower, the Interest Payment Dates for Bonds in the Long Indexed Mode shall be each February 1, May 1, August 1, and November 1, and each Interest Payment Period in such Mode shall extend from the Mode Change Date or any subsequent Interest Payment Date therefor to the immediately succeeding Interest Payment Date therefor. Such Remarketing Agent shall make such information available by Electronic Means to any Bondholder requesting such information and to the Borrower, the Issuer, the Trustee, the Tender Agent and the Credit Facility Providers (if any). Upon request of any Bondholder, the Borrower, the Issuer, the Trustee or the Credit Facility Provider for such Bonds, the Tender Agent shall give notice of such information by Electronic Means. On each date on which the Long Indexed Rate for Bonds is recalculated, the Calculation Agent shall give notice of such rate by Electronic Means upon request from any Bondholder, the Borrower, the Issuer, the Trustee, the Tender Agent or any Credit Facility Provider or Liquidity Facility Provider for such Bonds. Such determination shall be conclusive and binding upon the Borrower, the Issuer, the Trustee, the Tender Agent, the Credit Facility Providers (if any), the Liquidity Facility Providers (if any), the Remarketing Agents and the Bondholders.
B. Term Indexed Modes. On the effective date of this Bond Indenture, the Bonds shall be converted to a LIBOR Term Indexed Mode with an initial Purchase Date of the first Business Day on or after August 19, 2019. Until the Bonds have been converted to a different Mode or a Term Indexed Mode with Interest Periods of a different duration, after each Interest Period in a Term Indexed Mode the Bonds shall bear interest for successive Interest Periods of substantially the same duration beginning on the Purchase Date for such preceding Interest Period and ending on a day immediately preceding a Business Day.
Not later than 4:00 p.m. New York City time on the Rate Determination Date preceding the Purchase Date specified in the first sentence of this subsection or any subsequent Purchase Date in a Term Indexed Mode, and the Rate Determination Date preceding any Mode Change Date on which a subsequent Term Indexed Mode commences, the Remarketing Agent shall determine (a) the next Purchase Date in such LIBOR Term Indexed Mode, which shall be the first Business Day following the Interest Period described in the immediately preceding paragraph, (b) the Applicable Spread for the Interest Period beginning on such prior Purchase Date or Mode Change
 
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Date, (c) if such Term Indexed Mode is a LIBOR Term Indexed Mode, the Applicable Factor for such Interest Period, and (d) any function or scale by which such Applicable Spread or Applicable Factor shall be adjusted during such Interest Period.
The Remarketing Agent shall make each determination of the Applicable Spread and the Applicable Factor (and any function or scale to be used to adjust the Applicable Spread or the Applicable Factor) required to be made by it pursuant to this subsection regardless of whether Bonds are Liquidity Facility Bonds and whether or not an Event of Default exists. On the Rate Determination Date for each Interest Period for Bonds in any Term Indexed Mode, the Remarketing Agent shall (i) if such Term Indexed Mode is the LIBOR Term Indexed Mode, first determine the Applicable Factor (and any function or scale for adjusting the Applicable Spread or Applicable Factor) for the ensuing Interest Period for such Bonds by determining, under prevailing market conditions, the Applicable Factor (and the function or scale for adjustments thereof and of the Applicable Spread, if any, necessary, in the judgment of the Remarketing Agent, to be used to determine the Term Indexed Rate on such Bonds in such Interest Period) that will result in the lowest interest on such Bonds in such Interest Period under reasonably anticipated market conditions, and then (ii) determine the Applicable Spread for such Interest Period and Bonds by determining, under prevailing market conditions, the minimum Applicable Spread necessary, in the judgment of the Remarketing Agent, to produce a bid for such Bonds equal to 100% of the principal amount thereof plus interest, if any, accrued thereon from the most recent Interest Payment Date therefor to which interest has been paid or duly provided for. If for any reason no Remarketing Agent shall have been appointed for the Bonds hereunder on any date on which the Applicable Factor or Applicable Spread (or function or scale to adjust the Applicable Factor or Applicable Spread) therefor must be determined, the Remarketing Agent fails to determine the Applicable Spread or Applicable Factor (or function or scale to adjust the Applicable Spread or Applicable Factor) for any such Bond on such date, or any Applicable Spread or Applicable Factor (or function or scale to adjust the Applicable Spread or Applicable Factor) for any such Bond determined by the Remarketing Agent on such date is determined by a court of competent jurisdiction to be invalid or unenforceable, the Applicable Spread and Applicable Factor (and any function or scale used to adjust the Applicable Spread or Applicable Factor) therefor shall be the Applicable Spread and Applicable Factor (and function and scale for adjusting the Applicable Spread or Applicable Factor) theretofore in effect.
On each day in each Interest Period during which the Bonds of any subseries are in a Term Indexed Mode, such Bonds shall bear interest at the “ Term Indexed Rate ” therefor, which shall be the lesser of 15% per annum or:
(i) Normal Rate: if such Term Indexed Mode is a LIBOR Term Indexed Mode, then the LIBOR Index Rate for such Bonds and day, and if such Indexed Mode is a SIFMA Term Indexed Mode, then the SIFMA Indexed Rate for such Bonds and day, in either case rounded upward to the fourth decimal place and unless otherwise provided in clause (ii)  or (iii) of this subsection;
(ii) Taxable Rate: following a Determination of Taxability, the product of the rate for such day specified in clause (i) of this subsection and the Taxable Rate Factor as of such day; unless otherwise provided in clause (iii)  of this subsection; and
(iii) Default Rate: with respect to principal of or interest on such Bonds that is overdue, the Default Rate following written notice to the Trustee and the Borrower from the Bondholder Representative of the occurrence of an Event of Default, as therein defined, under the Bondholder Agreement, until the Trustee receives notice from the Bondholder Representative that such Event of Default has been cured or is no longer continuing.
 
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Notwithstanding the foregoing, if the applicable rate described in Clause (i), (ii)  or (iii)  of this subsection exceeds 15% per annum while the Bonds of any subseries are in an Interest Period in such Term Indexed Mode, such Bonds thereafter shall continue to bear interest at 15% per annum through the earlier to occur of (A) the first day thereafter when the interest accrued thereon from the first day of such Interest Period is equal to or exceeds the interest that would have accrued thereon had the Term Indexed Rate not been limited to 15% per annum or (B) the last day of such Interest Period.
SECTION 2.08. Determination of Stepped Coupon Rate.
Not later than 4:00 p.m. New York City time, the Remarketing Agent for such Bonds shall divide the period remaining to the final Maturity Date into such number of periods as it shall determine (each a “ Stepped Coupon Period ”) and shall determine an interest rate for each Stepped Coupon Period. The Stepped Coupon Rate for each Stepped Coupon Period shall be the lowest rate which, in the aggregate for all Stepped Coupon Periods, such Remarketing Agent determines would result in a sale of the Bonds of such subseries at a price equal to the Purchase Price at the lowest net interest cost from the Mode Change Date to the final Maturity Date of such Bonds. Such Remarketing Agent shall also determine the Interest Payment Dates applicable during the Stepped Coupon Mode, provided, however , that the day following each Stepped Coupon Period (or the next Business Day if such day is not a Business Day) shall be an Interest Payment Date. Unless otherwise agreed by the Issuer with the consent of the Borrower, Interest Payment Dates in the Stepped Coupon Mode shall be each May 1 and November 1.
If the Remarketing Agent for the Bonds of a subseries in a Stepped Coupon Mode determines that such Bonds would bear a lower effective net interest cost if such Bonds were serial bonds or serial bonds and term bonds with the maturity (or Mandatory Sinking Account Payment) dates and principal amounts to be retired on such dates matching the Mandatory Sinking Account Payments for such Bonds, such Bonds shall become serial bonds or serial bonds and term bonds with such maturity (or Mandatory Sinking Account Payment) dates and principal amounts as determined by such Remarketing Agent to result in the lowest effective net interest cost for such Bonds.
The Remarketing Agents shall make the respective Stepped Coupon Periods and Stepped Coupon Rates determined by them available by Electronic Means and upon request by telephone to the Bondholders, the Borrower, the Issuer, the Trustee, the Tender Agent and the Credit Facility Providers (if any). Upon request of any Bondholder, the Borrower, the Issuer, the Trustee, any Credit Facility Provider or any Liquidity Facility Provider, the Tender Agent shall give notice of such rates by Electronic Means and telephonically if requested by a Bondholder. Such determination shall be conclusive and binding upon the Borrower, the Issuer, the Trustee, the Tender Agent, the Credit Facility Providers (if any), the Liquidity Facility Providers (if any), the Remarketing Agents and the Bondholders.
SECTION 2.09. Determination of Term Rates.
A. Method of Determining Term Rate, Interest Periods and Purchase Dates During Term Rate Mode . The Borrower shall determine the Interest Period for Bonds in a Term Rate Mode on or before the Rate Determination Date for such Interest Period. The Term Rate for Bonds of any subseries and Interest Period shall be the minimum rate which, in the judgment of the Remarketing Agent for such Bonds, would result in a sale of such Bonds at a price equal to the Purchase Price on the Rate Determination Date for such Interest Period. Such Remarketing Agent shall also determine the Purchase Date for such Bonds as the day following the last day of such Interest Period. If a new Interest Period for such Bonds is not selected by the Borrower prior to the Business Day next preceding the Purchase Date for the Interest Period for such Bonds then in effect, or if a Favorable Opinion of Bond Counsel is not then delivered to the Trustee in respect of the change in Interest Period, the new Interest Period for such Bonds shall be the Weekly Mode.
 
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B. Determination Time for Term Rates . Except as provided in Subsection A of this Section, once Bonds of any subseries are changed to the Term Rate Mode, such Bonds shall continue in the Term Rate Mode until changed to another Mode in accordance with Section 2.12 . The Term Rate for the Bonds of any subseries in any Interest Period shall be determined by the Remarketing Agent for such Bonds not later than 4:00 p.m. New York City time on the Rate Determination Date for such Interest Period. After 4:00 p.m. New York City time on such Rate Determination Rate, such Remarketing Agent shall make the Term Rate available by telephone or Electronic Means to any Bondholder, the Borrower, the Issuer, the Trustee, the Tender Agent, the Credit Facility Providers (if any) and the Liquidity Facility Providers (if any).
SECTION 2.10. Determination of Fixed Rate.
Subject to Section 2.12B , at the option of the Borrower, the Bonds or any subseries thereof may be converted to bear interest at the Fixed Rate to the Maturity Date of such Bonds unless, on the date the Remarketing Agent for such Bonds determines the Fixed Rate, such Remarketing Agent also determines that such Bonds would bear a lower effective net interest cost if such Bonds were serial bonds or serial bonds and term bonds with the maturity (or Mandatory Sinking Account Payment) dates and principal amounts to be retired on such dates matching the Mandatory Sinking Account Payments, in which event such Bonds shall become serial bonds or serial bonds and term bonds with such maturity (or Mandatory Sinking Account Payment) dates and principal amounts and shall bear separate Fixed Rates for each maturity. The Remarketing Agent for such Bonds shall determine the Fixed Rate(s) not later than 4:00 p.m. New York City time on the Rate Determination Date therefor. The Fixed Rate for Bonds of any subseries and maturity shall be the minimum interest rate which, in the judgment of the Remarketing Agent for such Bonds, will result in a sale of such Bonds at a price equal to the Purchase Price or, if with the written consent of the Borrower such Remarketing Agent determines that the lowest yield will result by selling such Bonds at a premium or discount, then a price equal to the Purchase Price (plus any such premium or less any such discount) on such Rate Determination Date, provided that, in the case of Bonds to be sold at a discount, either (1) a Liquidity Facility is in effect with respect to such Bonds and provides funds for the purchase of such Bonds at the Purchase Price on the applicable Mode Change Date or (2) the Borrower agrees to transfer to the Tender Agent on the date of change to the Fixed Rate Mode, in immediately available funds, for deposit in the Borrower Purchase Account, an amount equal to such discount. In the case of Bonds sold at a premium, the premium shall be transferred to the Borrower and applied to pay Costs of the Projects, including costs of remarketing such Bonds on the date of change to the Fixed Rate Mode. The Remarketing Agents shall make the Fixed Rates determined by them available by telephone to any Bondholder, the Borrower, the Issuer, the Trustee, the Tender Agent and the Credit Facility Providers (if any). Such determinations shall be conclusive and binding upon the Borrower, the Issuer, the Trustee, the Tender Agent, the Credit Facility Providers (if any), the Liquidity Facility Providers (if any), the Remarketing Agents and the Bondholders.
SECTION 2.11. Alternate Rate for Interest Calculation.
In the case of Bonds of any subseries other than Fixed Rate Bonds, if a Remarketing Agent is to determine any rate or function or component thereof or any Interest Period and (a) the Remarketing Agent for such Bonds fails or is unable to determine the interest rate(s) or Interest Periods with respect to any such Bonds (except as provided in Sections 2.06F ), (b) there is no Remarketing Agent for such Bonds or the Remarketing Agent for such Bonds suspends its remarketing efforts in accordance with its Remarketing Agreement, or (c) the method of determining
 
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the interest rate(s) or Interest Periods with respect to such Bonds shall be held to be unenforceable by a court of law of competent jurisdiction, such Bonds shall thereupon, until such time as such Remarketing Agent again makes such determination or until there is delivered an Opinion of Counsel to the effect that the method of determining such rate is enforceable, bear interest, from the last date on which such rate was determined in the case of clauses (a)  and (b)  and from the date on which interest was legally paid in the case of clause (c) , at the Alternate Rate for the Mode in effect for such Bonds. If any of the circumstances described in clauses (a), (b)  and (c)  of the preceding sentence occurs on a Rate Determination Date for such Bonds while such Bonds are in the Commercial Paper Mode, the relevant Interest Periods shall be from and including such Rate Determination Date to, but not including, the next succeeding Business Day, and thereafter shall commence on each Business Day and extend to, but shall not include, the next Business Day. Notwithstanding clauses (a)  and (b)  of the first sentence of this Section, if such Bonds are in an R-FLOATs Mode and an Interest Period of 35 days or less, the new Interest Period for such Bonds in the R-FLOATs Mode shall be the same duration as the immediately preceding Interest Period therefor and the R-FLOATs Rate therefor in such Interest Period shall be the Alternate Rate, and, if such Bonds are in an R-FLOATs Mode for an Interest Period of greater than 35 days, the new Interest Period for such Bonds in the R-FLOATs Mode shall be the Interest Period therefor for a weekly R-FLOATs Rate and the R-FLOATs Rate thereon in the first such Interest Period shall be the Alternate Rate. The Tender Agent shall make the determinations required by this Section for the Bonds of a subseries upon notification from the Issuer or the Borrower, if there is no Remarketing Agent for such Bonds, if the Remarketing Agent for such Bonds fails to make any such determination or if the Remarketing Agent for such Bonds has suspended its remarketing efforts in accordance with its Remarketing Agreement.
SECTION 2.12. Changes in Mode and Maximum Rate.
Subject to the provisions of this Section, the Borrower may effect a change in Mode with respect to the Bonds of any subseries (other than Fixed Rate Bonds or Bonds in the Stepped Coupon Mode or the Long Indexed Mode) by following the procedures set forth in this Section.
A. Changes to Modes Other Than to Fixed Rate Mode . The Bonds of any subseries (other than Bonds in the Fixed Rate Mode, the Stepped Coupon Mode, or the Long Indexed Mode) may be changed from one Mode to another Mode (other than to the Fixed Rate Mode) on the following terms and conditions:
(1) Mode Change Notice; Notice to Holders . No later than the 15th Business Day preceding the proposed Mode Change Date, the Borrower shall give written notice to the Issuer, the Trustee, the Tender Agent (if any), and the Remarketing Agent (if any), Liquidity Facility Provider (if any) and Credit Facility Provider (if any) for such Bonds of its intention to effect a change in the Mode for such Bonds from the Mode then prevailing (referred to in this Section as the “ Current Mode ”) to another Mode (referred to in this Section as the “ New Mode ”) specified in such written notice and, if the change is to a Term Rate Mode or Term Indexed Mode, the length of the initial Interest Period and, if the change is to the R-FLOATs Mode, whether the New Mode is the weekly, monthly, or term rate R-FLOATs Mode or an R-FLOATs Mode comprised of Special R-FLOATS Rate Periods. Notice of the proposed change in Mode shall be given to the Holders of such Bonds pursuant to Section 4.08 . In the event that the conditions to conversion are not satisfied, including the failure to remarket all such Bonds on the Mode Change Date, such Bonds shall nevertheless be subject to mandatory tender as set forth in S ubsection A(4) of this Section.
(2) Determination of Interest Rates . The New Mode for such Bonds shall commence on the Mode Change Date, and the interest rate(s) (together, in the case of a
 
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change to the Commercial Paper Mode, with the Interest Period(s) and Purchase Date(s)) with respect to such Bonds shall be determined by the Remarketing Agent for such Bonds in the manner provided in Sections 2.04, 2.05, 2.06, 2.07, 2.08, 2.09 or 2.10 as applicable.
(3) Conditions Precedent . Each change in Mode pursuant to this Subsection A shall be made only on the following conditions:
(a) Business Day . The Mode Change Date shall be a Business Day.
(b) Purchase Date . Additionally, the Mode Change Date, in the case of a change:
(i) From Commercial Paper Mode : from the Commercial Paper Mode, shall be a day which is the last Purchase Date for all Interest Periods for the affected Bonds set by the Remarketing Agent for such Bonds or any later Business Day;
(ii) From Term Mode : from the Term Rate Mode or term R-FLOATs Mode, shall be the Purchase Date following the current Interest Period for such Bonds; and
(iii) From Term Indexed Mode : from a Term Indexed Mode, shall be a day on which for the Bonds of the applicable subseries may be redeemed at the option of the Borrower pursuant to Section 4.01D .
(c) Opinion of Counsel . The Trustee, the Tender Agent and the Remarketing Agent for such Bonds shall have received on the Mode Change Date a Favorable Opinion of Bond Counsel dated the Mode Change Date and addressed to the Trustee, the Tender Agent and the Credit Facility Provider (if any), Liquidity Facility Provider (if any) and Remarketing Agent for such Bonds and an Opinion of Counsel to the effect that the change in Mode then to become effective is authorized by Texas law and will not adversely affect the validity of such Bonds.
(d) Revocation of Election to Change . The Borrower may revoke its election to effect a conversion of the interest rate on such Bonds to another Mode by giving written notice of such revocation to the Issuer, the Trustee, the Tender Agent, and the Remarketing Agent, Liquidity Facility Provider (if any), and Credit Facility Provider (if any) for such Bonds, at any time prior to 10:00 a.m. New York City time on the Business Day immediately preceding the Rate Determination Date for the proposed Mode Change Date.
(e) Adequate Provisions for Purchase . If there shall be no Liquidity Facility in effect to provide funds for the purchase of such Bonds on the Mode Change Date, the proceeds of remarketing such Bonds available on the Mode Change Date shall be not less than the amount required to purchase all of such Bonds at the Purchase Price (unless the Borrower, in its sole discretion, elects to transfer to the Tender Agent the amount of such deficiency on or before the Mode Change Date).
 
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(f) Long Indexed Mode Supplement . Bonds shall not be changed to a Long Indexed Mode unless the Issuer and the Trustee have entered into the Supplemental Bond Indenture described in Section 2.07A .
(4) Failure to Satisfy Conditions Precedent . If the foregoing conditions have not been satisfied for the Bonds of any subseries by the applicable Mode Change Date, the New Mode for such Bonds shall not take effect, and (a) if the change was from an R-FLOATs Mode, such Bonds shall remain in the R-FLOATs Mode with interest rates established in accordance with Section 2.06D, 2.06E or 2.06F and (b) otherwise, all such Bonds shall be subject to mandatory tender, the Mode for such Bonds shall be changed to a Weekly Mode and such Bonds shall bear interest at the Maximum Rate for the first Interest Period in such Mode.
B. Change to Fixed Rate Mode. At the option of the Borrower, the Bonds of any subseries (other than Bonds in the Long Indexed Mode and the Stepped Coupon Mode) may be changed to the Fixed Rate Mode as provided in this Subsection B . Not less than 20 days (or such shorter time as may be agreed to by the Trustee and the Remarketing Agent for such Bonds) before the proposed Mode Change Date, the Borrower shall give written notice to the Issuer, the Trustee, the Tender Agent, such Remarketing Agent, and the Credit Facility Provider (if any) and Liquidity Facility Provider (if any) for such Bonds and each Rating Agency then rating such Bonds, stating that the Mode for such Bonds will be changed to the Fixed Rate Mode and setting forth the proposed Mode Change Date and a schedule specifying the principal amount of such Bonds, if any, which shall mature or be subject to redemption pursuant to Section 4.01F on November 1 of each year specified in such schedule. Any such change in Mode shall be made on the following terms and conditions:
(1) Mode Change Date . The Mode Change Date for a change in the Mode of such Bonds to a Fixed Rate Mode shall be: (i) in the case of a conversion from a Daily Mode or a Weekly Mode, a regularly scheduled Interest Payment Date for such Bonds on which interest is payable in the Daily Mode or Weekly Mode from which the conversion is to be made; (ii) in the case of a conversion from a Term Rate Period, a regularly scheduled Interest Payment Date for such Bonds on which a new Term Rate Period would otherwise have commenced; (iii) in the case of a conversion from a Commercial Paper Mode, a day which is the last regularly scheduled Interest Payment Date for such Bonds on which interest is payable for any Interest Period established for such Bonds; (iv) in the case of a conversion from a Term Indexed Mode, a day specified in Section 2.12A(3)(b)(iii) ; and (v) in the case of a conversion from an R-FLOATs Mode, any Interest Payment Date for such Bonds on which a new Interest Period therefor would otherwise commence.
(2) Notices and Opinions . Not less than 20 days (or such shorter time as may be agreed to by the Trustee and the Remarketing Agent for such Bonds) before the proposed Mode Change Date, the Borrower shall give written notice of the conversion to the Issuer, the Trustee, the Tender Agent, such Remarketing Agent, and the Liquidity Facility Provider (if any), and Credit Facility Provider (if any) for such Bonds, setting forth the proposed Mode Change Date. Together with such notice, the Borrower shall file with the Issuer, the Trustee and the Tender Agent a Favorable Opinion of Bond Counsel and an Opinion of Counsel to the effect that the conversion of such Bonds to the Fixed Rate Mode, including the assignment of new maturity dates and amortization requirements pursuant to S ubsection B(6) of this Section is authorized by Texas law and shall not adversely affect the validity of such Bonds. No conversion to the Fixed Rate Mode shall occur unless the Borrower shall also file with the Issuer and the Trustee a Favorable Opinion of Bond Counsel dated the Mode Change Date.
 
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(3) Notice to Bondholders; Mandatory Tender . In the event of a conversion of such Bonds from a Daily Mode, Weekly Mode, Term Rate Mode, Term Indexed Mode, R-FLOATs Mode or Commercial Paper Mode, the Trustee shall mail a notice of the proposed conversion to the registered owners of all such Bonds not less than fifteen (15) days prior to the proposed Mode Change Date. Such notice shall state that such Bonds shall be subject to mandatory tender at a price equal to 100% of the principal amount thereof plus accrued interest on the Mode Change Date. In the event that the conditions of a conversion are not satisfied, including the failure to remarket all such Bonds on the Mode Change Date, such Bonds shall be subject to mandatory tender as set forth in Subsection B(8) of this Section.
(4) Rate Determination . Not later than 12:00 noon, New York City time, on the Business Day immediately prior to the Mode Change Date, the Remarketing Agent for such Bonds shall determine the Fixed Rate(s) for such Bonds. Such determination shall be conclusive and binding upon the Issuer, the Borrower, the Trustee, the Liquidity Facility Providers (if any), the Credit Facility Providers (if any), the Tender Agent and the Holders of the Bonds. Not later than 5:00 p.m., New York City time, on the date of determination of such Fixed Rate(s), the Remarketing Agent for such Bonds shall notify the Trustee, the Issuer and the Borrower of such Fixed Rates by telephone or Electronic Means.
(5) Revocation of Election to Change . The Borrower may revoke its election to effect a conversion of the Mode of such Bonds to the Fixed Rate Mode by giving written notice of such revocation to the Issuer, the Trustee, the Tender Agent, and the Remarketing Agent, Liquidity Facility Provider (if any), and Credit Facility Provider (if any) for such Bonds at any time prior to 10:00 a.m. New York City time on the Business Day immediately preceding the Rate Determination Date for the proposed Mode Change Date.
(6) Amortization Schedule . Prior to the conversion of such Bonds to a Fixed Rate Mode pursuant to this Subsection B , the Remarketing Agent for such Bonds shall deliver to the Trustee, the Issuer and the Borrower a certificate which includes a schedule specifying the principal amount of such Bonds which shall mature on November 1 of each year specified in such schedule, and the interest rate payable on such Bonds of each such maturity. In determining the maturity dates and interest rates, such Remarketing Agent shall use the following guidelines:
(a) Serial and Term Bonds . Such Remarketing Agent shall allocate such Bonds between serial bonds and term bonds in such manner as shall produce the lowest aggregate interest payable with respect to such Bonds.
(b) Interest Rate . Such Remarketing Agent shall set the interest rate on each such Bond of a particular maturity at provided in Section 2.10 .
Notwithstanding anything above to the contrary, (x) if due to the reamortization of principal or serialization of Bonds pursuant to this Subsection B(6) , Bond Counsel cannot render a Favorable Opinion of Bond Counsel, then no such serialization shall occur, and (y) the Issuer with the consent of the Borrower may agree to another method for providing for payment of principal of the Bonds on or after the Mode Change Date if (i) the Remarketing Agent for such Bonds deems the utilization of such other method necessary in order to remarket such Bonds at a price of par and (ii) there is delivered to the Trustee and the Issuer by the Borrower a Favorable Opinion of Bond Counsel and an Opinion of Counsel to the effect that utilization of such other method is authorized by Texas law and shall not adversely affect the validity of such Bonds.
 
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(7) Sinking Fund Redemption Prices . Mandatory redemption of such Bonds by operation of the Sinking Fund Account shall be without premium. The Bonds converted to the Fixed Rate Mode shall be redeemed by the Trustee pursuant to the provisions of this Section and Section 4.01F without any notice from or direction by the Issuer or the Borrower.
(8) Failure to Satisfy Conditions Precedent . If the foregoing conditions have not been satisfied by the Mode Change Date, the New Mode for such Bonds shall not take effect and (a) if the change was from an R-FLOATs Mode, such Bonds shall remain in the R-FLOATs Mode with interest rates established in accordance with Section 2.06D, 2.06E or 2.06F and (b) otherwise, all such Bonds shall be subject to mandatory tender, and the Mode for such Bonds shall be changed to a Weekly Mode and bear interest at the Maximum Rate for the first Interest Period in such Mode.
C. Changes in Maximum Rate . The Trustee shall give at least 10 days written notice of each change in the Maximum Rate for the Bonds or any subseries thereof to each Holder thereof resulting from the amendment or replacement of any Credit Facility or Liquidity Facility.
SECTION 2.13. Form of Bonds.
The Bonds, including the form of the Registration Certificate of the Comptroller of Public Accounts of the State of Texas to be reproduced on the initial Bond, the form of the Certificate of Authentication to be reproduced on all subsequently authenticated Bonds, and the form of Assignment to be reproduced on all Bonds, shall be initially in substantially the form as set forth in Exhibit A , with necessary or appropriate variations, omissions and insertions as permitted or required hereby. Upon any designation of a subseries of Bonds, the Bonds so designated shall be exchanged for new Bonds specifying the applicable subseries by a suffix applied to the series designation. Upon any change in Mode, a new form of Bonds may be prepared which contains the terms of the Bonds applicable in the new Mode.
The definitive Bonds shall be printed, lithographed, engraved, typewritten, or photocopied, produced by any combination of these methods, or produced in any other manner, all as determined by the officers executing such Bonds as evidenced by their execution thereof.
SECTION 2.14. Execution of Bonds.
The Bonds shall be executed in the name and on behalf of the Issuer with the manual or facsimile signature of its President or one of its Vice Presidents and attested by the manual or facsimile signature of its Secretary or one of its Assistant Secretaries. The Bonds shall then be delivered to the Trustee for authentication by it. In case any of the officers who shall have signed or attested any of the Bonds shall cease to be such officer or officers of the Issuer before the Bonds so signed or attested shall have been authenticated or delivered by the Trustee or issued by the Issuer, such Bonds may nevertheless be authenticated, delivered and issued and, upon such authentication, delivery and issue, shall be as binding upon the Issuer as though those who signed and attested the same had continued to be such officers of the Issuer, and also any Bonds may be signed and attested on behalf of the Issuer by such persons as at the actual date of execution of such Bonds shall be the proper officers of the Issuer although at the nominal date of such Bonds any such person shall not have been such officer of the Issuer.
No Bond shall be secured by, or be entitled to any lien, right, or benefit under, this Bond Indenture or be valid or obligatory for any purpose, unless there appears on such Bond either a
 
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Registration Certificate executed by the Comptroller of Public Accounts of the State of Texas or her duly authorized agent by manual signature, or a Certificate of Authentication executed by the Trustee by manual signature, in either case substantially in the form included in the form of Bond attached hereto as Exhibit A , and either such certificate upon any Bond shall be conclusive evidence, and the only evidence, that such Bond has been duly authenticated or certified and delivered hereunder.
SECTION 2.15. Transfer of Bonds.
Subject to the provisions of Section 2.20 , any Bond may, in accordance with its terms, be transferred, upon the bond registration books required to be kept pursuant to the provisions of Section 2.17 , by the Person in whose name it is registered, in person or by his duly authorized attorney, upon surrender of such registered Bond for cancellation, accompanied by delivery of a written instrument of transfer, duly executed in a form satisfactory to the Trustee.
Whenever any Bond or Bonds shall be surrendered for transfer, the Issuer shall execute and the Trustee shall authenticate and deliver a new Bond or Bonds for a like aggregate principal amount of the same subseries, maturity, Mode, Interest Period, and interest rate. The Trustee shall require the Bondholder requesting such transfer to pay any tax or other governmental charge required to be paid with respect to such transfer.
The Trustee shall not transfer any Bond if the Trustee has received written notice from the Remarketing Agent to the effect that the Remarketing Agent has received notice of tender of such Bond from the Holder of such Bond pursuant to Section 4.06 .
The Trustee shall not be required to transfer any Bond of any subseries, except to the Credit Facility Provider (if any) or Liquidity Facility Provider (if any) for such Bond, during the 15 days immediately preceding (1) the date on which notice of redemption of Bonds of such subseries is given or (2) the date on which Bonds of such subseries will be selected for redemption.
SECTION 2.16. Exchange of Bonds.
Bonds may be exchanged at the Principal Corporate Trust Office for a like aggregate principal amount of Bonds of the same subseries, maturity, Mode, Interest Period, and interest rate of other authorized denominations. The Trustee shall require the Bondholder requesting such exchange to pay any tax or other governmental charge required to be paid with respect to such exchange.
The Trustee shall not be required to exchange any Bond of any subseries, except to the Credit Facility Provider (if any) or Liquidity Facility Provider (if any) for such Bonds, during the 15 days immediately preceding (1) the date on which notice of redemption of Bond of such subseries is given or (2) the date on which Bonds of any subseries will be selected for redemption.
SECTION 2.17. Bond Register.
The Trustee will keep or cause to be kept sufficient books for the registration and transfer of the Bonds, which shall at all times be open to inspection during regular business hours by the Issuer and the Borrower; and, upon presentation for such purpose, the Trustee shall, under such reasonable regulations as it may prescribe, register or transfer or cause to be registered or transferred, on such books, Bonds as hereinbefore provided.
 
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SECTION 2.18. Temporary Bonds.
The Bonds may be issued in temporary form exchangeable for definitive Bonds when ready for delivery. Any temporary Bond may be printed, lithographed or typewritten, shall be of such denomination as may be determined by the Issuer, shall be in fully registered form without coupons and may contain such reference to any of the provisions of this Bond Indenture as may be appropriate. Every temporary Bond shall be executed by the Issuer and be authenticated by the Trustee upon the same conditions and in substantially the same manner as the definitive Bonds. If the Issuer issues temporary Bonds it will issue definitive Bonds as promptly thereafter as practicable, and thereupon the temporary Bonds may be surrendered, for cancellation, in exchange therefor at the Principal Corporate Trust Office, and the Trustee shall authenticate and deliver in exchange for such temporary Bonds an equal aggregate principal amount of definitive Bonds of authorized denominations of the same subseries, maturity, Mode, Interest Period, and interest rate. Until so exchanged, the temporary Bonds shall be entitled to the same benefits under this Bond Indenture as definitive Bonds authenticated and delivered hereunder.
SECTION 2.19. Bonds Mutilated, Lost, Destroyed or Stolen.
If any Bond shall become mutilated, the Issuer, at the expense of the Holder of said Bond, shall execute, and the Trustee shall thereupon authenticate and deliver, a new Bond of like subseries, maturity, Mode, Interest Period, and interest rate in exchange and substitution for the Bond so mutilated, but only upon surrender to the Trustee of the Bond so mutilated. Every mutilated Bond so surrendered to the Trustee shall be cancelled by it and delivered to, or upon the order of, the Issuer. If any Bond shall be lost, destroyed or stolen, evidence of such loss, destruction or theft may be submitted to the Trustee and, if such evidence be satisfactory to the Trustee and indemnity satisfactory to the Trustee to hold the Issuer and the Trustee harmless shall be given, the Issuer, at the expense of the Holder of such Bond, shall execute, and the Trustee shall thereupon authenticate and deliver, a new Bond of like maturity, Mode, Interest Period, and interest rate in lieu of and in substitution for the Bond so lost, destroyed or stolen (or if any such Bond shall have matured or shall be about to mature, instead of issuing a substitute Bond, the Trustee may pay the same without surrender thereof). The Issuer may require payment by the Holder of a sum not exceeding the actual cost of preparing each new Bond issued under this Section and of the expenses that may be incurred by the Issuer and the Trustee in the premises. Any Bond issued under the provisions of this Section in lieu of any Bond alleged to be lost, destroyed or stolen shall constitute an original additional contractual obligation on the part of the Issuer whether or not the Bond so alleged to be lost, destroyed or stolen be at any time enforceable by anyone, and shall be entitled to the benefits of this Bond Indenture with all other Bonds secured by this Bond Indenture.
SECTION 2.20. Use of Securities Depository.
Notwithstanding any provision of this Bond Indenture to the contrary:
A. Permitted Transfers by Securities Depository . On the effective date of this Bond Indenture, the Trustee shall cause the Bonds to be transferred by the Securities Depository to and registered in the name of the Bondholders or their nominees as, and in the respective aggregate principal amounts, specified in the initial Bondholder Agreement. Thereafter the Bonds may be deposited with the Securities Depository with written consent of the Borrower and the Bondholder Representative, if any, after which registered ownership of the Bonds, or any portion thereof, may not be transferred except:
 
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(1) To any successor of the Securities Depository or its nominee, or to any substitute depository designated pursuant to Subsection A(2) of this Section (herein referred to as a “ substitute depository ”); provided that any successor of the Securities Depository or substitute depository shall be qualified under any applicable laws to provide the service proposed to be provided by it;
(2) To any substitute depository designated by the Borrower upon (a) the resignation of the Securities Depository or its successor (or any substitute depository or its successor) from its functions as depository or (b) a determination by the Borrower that the Securities Depository or its successor (or any substitute depository or its successor) is no longer able to carry out its functions as depository; provided that any such substitute depository shall be qualified under any applicable laws to provide the services proposed to be provided by it; or
(3) To any Person as provided below, upon (a) the resignation of the Securities Depository or its successor (or substitute depository or its successor) from its functions as depository; provided that no substitute depository can be obtained or (b) a determination by the Borrower that it is in the best interests of the Borrower to remove the Securities Depository or its successor (or any substitute depository or its successor) from its functions as depository.
B. Issuance of Certificates on Transfer . In the case of any transfer pursuant to clause (1)  or clause (2)  of Subsection A of this Section, upon receipt of the Outstanding Bonds by the Trustee, together with a Certificate of the Issuer to the Trustee, a single new Bond shall be executed and delivered for the Bonds of such subseries in the aggregate principal amount of the Bonds of such subseries then Outstanding, registered in the name of such successor or such substitute depository, or its nominee, as the case may be, all as specified in such Certificate of the Borrower. In the case of any transfer pursuant to clause (3)  of Subsection A of this Section, upon receipt of the Outstanding Bonds by the Trustee together with a Certificate of the Borrower to the Trustee, new Bonds shall be executed and delivered and registered in the names of such Persons as are requested in such a Certificate of the Borrower, subject to the limitations of Section 2.02 , provided the Trustee shall not be required to deliver such new Bonds within a period less than 60 days from the date of receipt of such a Certificate of the Borrower.
C. Notations on Bonds . While the Bonds are registered in the name of the Securities Depository, they shall bear the following legend:
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”) OR A TRANSFEREE OR ASSIGNEE OF DTC OF THIS BOND MAY NOT RELY UPON THE PRINCIPAL AMOUNT INDICATED HEREON AS THE PRINCIPAL AMOUNT HEREOF OUTSTANDING AND TO BE PAID. THE PRINCIPAL AMOUNT OUTSTANDING AND TO BE PAID ON THIS BOND SHALL FOR ALL PURPOSES BE THE AMOUNT INDICATED ON THE BOOKS OF THE TRUSTEE.
UNLESS THIS BOND IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF DTC, TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY BOND ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
 
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In the case of partial redemption or an advance refunding of the Bonds evidencing all or a portion of the principal amount Outstanding, the Securities Depository shall make an appropriate notation on the Bonds indicating the date and amounts of such reduction in principal, in form acceptable to the Trustee.
D. Persons Treated as Owners . The Issuer and the Trustee shall be entitled to treat the Person in whose name any Bond is registered as the Bondholder thereof for all purposes of this Bond Indenture and any applicable laws, notwithstanding any notice to the contrary received by the Trustee or the Issuer; and the Issuer and the Trustee shall have no responsibility for transmitting payments to, communicating with, notifying or otherwise dealing with any beneficial owners of the Bonds. Neither the Issuer nor the Trustee will have any responsibility or obligations, legal or otherwise, to the beneficial owners or to any other party including the Securities Depository or its successor (or substitute depository or its successor), except for the Holder of any Bond.
E. Payments to Cede & Co . Whenever the Outstanding Bonds are registered in the name of Cede & Co. or its registered assign with the written consent of the Borrower and the Bondholder Representative, if any, the Issuer and the Trustee shall cooperate with Cede & Co., as sole registered Bondholder, and its registered assigns in effecting payment of the principal of and premium, if any, and interest on the Bonds by arranging for payment in such manner that funds for such payments are properly identified and are made immediately available on the date they are due, all as provided in the blanket Letter of Representations between the Trustee and the Securities Depository.
F. Compliance with Procedures . Notwithstanding anything to the contrary contained in this Bond Indenture, when Cede & Co., as nominee of the Securities Depository, is the sole registered owner of the Bonds with the written consent of the Borrower and the Bondholder Representative, if any, all tenders and deliveries of Bonds under the provisions of this Bond Indenture shall be made pursuant to the Securities Depository’s procedures as in effect from time to time, and neither the Issuer nor the Borrower nor the Tender Agent nor the Trustee shall have any responsibility for or liability with respect to the implementation of such procedures.
SECTION 2.21. The Calculation Agent.
A. Appointment and Duties. Whenever any Bond is in a Term Indexed Mode, there shall be a Calculation Agent (which may be the Trustee or the Bondholder Representative, if either accepts appointment) appointed by the Borrower (with the consent of the Bondholder Representative) with power to ascertain and notify the Trustee of each LIBOR Index, LIBOR Index Rate, SIFMA Municipal Swap Index, and SIFMA Indexed Rate, as applicable, and Default Rate, and each change in the Applicable Spread or Reserve Percentage known to it. Bank of America, N.A. is hereby designated as the initial Calculation Agent for the Bonds and shall serve as such under the terms and provisions hereof. Each Calculation Agent shall designate its principal office and signify its acceptance of the duties and obligations imposed upon it as described herein by a written instrument of acceptance delivered to the Issuer, the Trustee, and the Borrower (which may be the Bondholder Agreement), under which the Calculation Agent shall agree particularly (1) to determine the LIBOR Index, LIBOR Index Rate, SIFMA Municipal Swap Index, SIFMA Indexed Rate, and Default Rate, as applicable, (2) to designate an alternate source for the LIBOR Index or, during a Disruption Event, an alternative rate therefor, and (3) to give timely notice of such rates and designations to the Trustee.
B. Performance by Trustee . If the Calculation Agent for the Bonds of any subseries shall resign, be removed, or be dissolved, or if the property or affairs of the Calculation Agent for the Bonds of any subseries shall be taken under control of any state or federal court or administrative body because of bankruptcy or insolvency or for any other
 
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reason, and the Borrower shall not have appointed a successor as Calculation Agent, the Trustee shall ipso facto be deemed to be the Calculation Agent for such Bonds for all purposes of this Bond Indenture, until the appointment by the Borrower of a successor Calculation Agent for such Bonds; provided, however , that the Trustee, in its capacity as Calculation Agent, shall not be required to determine the interest rate on Bonds hereunder if the Trustee should be prohibited by law or prevented by system or other organizational limitations from conducting such activities. If the Borrower fails to appoint a successor Calculation Agent for such Bonds within 30 days after its receipt of notice of any such event, the Trustee may apply to a court of competent jurisdiction for appointment of a successor Calculation Agent for such Bonds.
C. Permitted Conflicts . Each Calculation Agent may in good faith hold Bonds or any other form of indebtedness issued by the Issuer or any security issued by the Borrower; own, accept or negotiate any drafts, bills of exchange, acceptances or obligations thereof; and make disbursements therefor and enter into any commercial or business arrangement therewith; all without any liability on the part of such Calculation Agent for any real or apparent conflict of interest by reason of any such actions.
*            *             *
 
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ARTICLE III
ISSUANCE OF BONDS; APPLICATION OF PROCEEDS
SECTION 3.01. Issuance and Exchange of the Bonds.
Forthwith upon the execution and delivery of the Original Bond Indenture, receipt by the Trustee of Bonds duly executed by the Issuer, the purchase price for such Bonds, and the initial Bond approved by the Attorney General of Texas and registered by the Comptroller of Public Accounts of the State of Texas, the Trustee authenticated and delivered such Bonds upon written application by the Issuer in exchange for such initial Bond, which was thereupon cancelled.
Forthwith upon the effective date of this Bond Indenture and receipt of Bonds in the form set forth in Exhibit A to this Bond Indenture duly executed by the Issuer, the Trustee shall authenticate and deliver such Bonds in exchange for the Bonds tendered to the Tender Agent for purchase on the Mandatory Purchase Date that coincides with such effective date. Neither the amendment of the Bonds provided for herein nor the exchange of Outstanding Bonds for amended Bonds pursuant to this Section is intended to extinguish or novate any debt represented by the Bonds, but rather each amended Bond is intended to evidence the same debt as the Outstanding Bond for which it is exchanged.
SECTION 3.02. Application of Proceeds of the Bonds.
The proceeds received from the sale of the Bonds shall be deposited in trust with the Trustee, who shall forthwith deposit all such proceeds to the Project Fund.
SECTION 3.03. Establishment and Application of Costs of Issuance Fund.
The Trustee established, maintained and held in trust under the Original Bond Indenture a separate fund of the Borrower designated as the “ Costs of Issuance Fund .” The moneys in the Costs of Issuance Fund were used and withdrawn by the Trustee to pay the Costs of Issuance upon Requisition of the Borrower stating the Persons to whom payment is to be made, the amount to be paid, the purpose for which the obligation was incurred and that such payment is a proper charge against said fund. On or before January 25, 2012, amounts, if any, remaining in the Costs of Issuance Fund were transferred to the Project Fund, and the Costs of Issuance Fund was thereafter closed.
SECTION 3.04. Establishment and Application of Project Fund.
A. Trust Fund. The Trustee established under the Original Bond Indenture and shall maintain and hold in trust hereunder a separate fund of the Borrower designated as the “ Project Fund .” On the date of delivery of the initial Bonds, the Trustee transferred from the Project Fund to the Costs of Issuance Fund the amount specified in the application by the Issuer for authentication and delivery of the Bonds. The balance of moneys in the Project Fund have been and shall be used and withdrawn by the Trustee to pay the costs of the Projects.
B. Requisitions. Before any payment from the Project Fund shall be made, the Borrower shall file or cause to be filed with the Trustee a Requisition in the form of Exhibit C , duly completed.
Upon receipt of a Requisition, the Trustee shall pay the amount set forth in such Requisition as directed by the terms thereof out of the Project Fund. The Trustee shall not make any such payment if it has received any written notice of claim of lien, attachment upon, or claim affecting the right to receive payment of any of the monies to be so paid that has not been released or will not be released simultaneously with such payment.
 
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C. Surplus Funds . When the Projects shall have been completed, there shall be delivered to the Trustee a Certificate of the Borrower stating the fact and date of such completion and stating that all of the costs thereof have been determined and paid (or that all of such costs have been paid less specified claims that are subject to dispute and for which a retention in the Project Fund is to be maintained in the full amount of such claims until such dispute is resolved). Upon the receipt of such Certificate, the Trustee shall, as directed by said Certificate, transfer any remaining balance in such Project Fund, less the amount of any such retention, to the Redemption Fund and apply such balance to the optional redemption of Bonds. Upon transfer in full of its balance, the Project Fund shall be closed.
SECTION 3.05. Validity of Bonds.
The validity of the authorization and issuance of the Bonds is not dependent on and shall not be affected in any way by any proceedings taken by the Issuer or the Trustee with respect to or in connection with the Loan Agreement. The recital contained in the Bonds that the same are issued pursuant to the Act and the Constitution and laws of the State of Texas shall be conclusive evidence of their validity and of compliance with the provisions of law in their issuance.
*            *             *
 
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ARTICLE IV
REDEMPTION AND TENDER OF BONDS
SECTION 4.01. Terms of Redemption and Purchase in Lieu of Redemption.
The Bonds are subject to redemption and purchase in lieu of redemption as set forth below. All redemptions shall be in authorized denominations.
A. Optional Redemption of Bonds in the Commercial Paper Mode . Bonds in the Commercial Paper Mode are subject to optional redemption on their respective Purchase Dates at a Redemption price equal to 100% of the principal amount thereof without premium.
B. Optional Redemption of Bonds in the Daily Mode, the Weekly Mode, the weekly R-FLOATs Mode . Bonds in the Daily Mode, the Weekly Mode, or the weekly R-FLOATs Mode are subject to redemption prior to their respective stated Maturity Dates, at the option of the Borrower, in whole on any Business Day or in part on any Interest Payment Date therefor at a Redemption Price equal to 100% of the principal amount thereof, without premium, plus unpaid accrued interest thereon, if any.”
C. Optional Redemption of Bonds in the Long Indexed Mode . Bonds in the Long Indexed Mode are subject to redemption prior to their Maturity Date, at the option of the Borrower, in whole or in part on any Interest Payment Date following the earlier of 10 years after the Mode Change Date for such Bonds or the median date between such Mode Change Date and the Maturity Date, at a Redemption Price equal to 100% of the principal amount thereof, without premium, or on any other date permitted by the Supplemental Bond Indenture entered into pursuant to Section 2.07A , at the Redemption Price stated therein.
D. Optional Redemption of Bonds in the Term Rate Mode, the Term Indexed Mode, the term rate R-FLOATs Mode, the Special R-FLOATs Rate Period or the Fixed Rate Mode .
(1) End of Interest Period . Bonds in a Term Rate Mode, Term Indexed Mode, term rate R-FLOATs Mode or Special R-FLOATs Rate Period are subject to redemption prior to their respective stated Maturity Dates, at the option of the Borrower, in whole or in part on their respective Purchase Dates at a Redemption Price equal to 100% of the principal amount thereof, without premium.
(2) Within Interest Period . Bonds in a Term Rate Mode, Term Indexed Mode, term rate R-FLOATs Mode, or Special R-FLOATs Rate Period or the Fixed Rate Mode are also subject to redemption prior to their respective Purchase Dates, (a) in the case of Bonds in a Term Indexed Mode while a Bondholder Agreement is in effect for such Bonds, on any Interest Payment Date therefor, (b) in the case of Bonds in a Term Indexed Mode while no Bondholder Agreement is in effect therefor, on any Business Day within six (6) months prior to the Purchase Date therefor, and (c) at such times and upon such terms as shall be specified by the Borrower prior to the Rate Determination Date for the applicable Interest Period, if a Favorable Opinion of Bond Counsel is issued to the Trustee, and otherwise on any date on or after the earlier of (i) 10 years after the Mode Change Date for such Bonds or (ii) if the Interest Period therefore is at least ten (10) years long, the median date between such Mode Change Date and the last day of such Interest Period, at a Redemption Price equal to 100% of the principal amount thereof, without premium, plus unpaid accrued interest thereon, if any.
 
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E. Optional Redemption of Bonds in the Stepped Coupon Mode . Bonds in the Stepped Coupon Mode are subject to redemption prior to their respective stated Maturity Dates, at the option of the Borrower, in whole or in part on the Interest Payment Date immediately following the last day of a Stepped Coupon Period, at a Redemption Price equal to 100% of the principal amount thereof, without premium.
F. Sinking Fund Redemption . The Bonds are also subject to redemption prior to their stated Maturity Date, in part, from Mandatory Sinking Account Payments deposited in the Principal Fund pursuant to Section 5.03 on November 1 of the years specified in (1) any Supplemental Bond Indenture approved by the Borrower in writing, in the aggregate principal amounts specified in such Supplemental Bond Indenture, or (2) any schedule delivered by the Borrower to the Trustee pursuant to Section 2.12B , in the aggregate principal amounts specified in such schedule (except on the Maturity Dates for serial Bonds established pursuant to Section 2.12B(6) ), in either case at a Redemption Price equal to 100% of the principal amount thereof together with interest accrued thereon to the date fixed for redemption, without premium; provided , however , that, unless otherwise provided in such Supplemental Bond Indenture, the principal amount of Bonds of any subseries to be redeemed on any such date may be modified by Borrower Order given in connection with the creation of any new subseries or the merger of one or more subseries pursuant to Section 2.02E or any change in the Mode, Credit Facility or Liquidity Facility for the Bonds of such subseries, if the aggregate principal amount of Bonds of all subseries so to be redeemed on each such date remains the same; and provided further, however, that, unless otherwise provided in such Supplemental Bond Indenture, the principal amount of Bonds of any subseries so to be redeemed in any year shall be reduced upon Borrower Request by an amount equal to the principal amount of Bonds of such subseries (a) surrendered uncancelled and in transferable form by the Borrower to the Trustee not less than 45 days prior to such redemption date or (b) selected (not less than five days prior to the last day for mailing notice of such redemption date) for redemption in or prior to such year pursuant to any other Subsection of this Section, if in either case such Bonds shall not have previously served as the basis for any such reduction.
G. Extraordinary Optional Redemption . The Bonds in an Indexed Mode, Term Rate Mode, Term Indexed Mode, Stepped Coupon Mode, or Fixed Rate Mode are subject to extraordinary optional redemption, at the option and the written direction of the Borrower, in whole or in part on any Interest Payment Date in a LIBOR Term Indexed Mode while a Bondholder Agreement is in effect and on any date at any other time, in each case under the circumstances described below, at a price equal to 100% of the principal amount together with interest accrued and unpaid thereon to the date fixed for redemption, which shall be a date at least forty-five (45) days following receipt by the Trustee of the written direction of the Borrower. The circumstances, either of which may give rise to an extraordinary optional redemption of such Bonds, are as follows:
(1) Project Damage or Loss . If title to, or the temporary use of, any portion of the facilities financed or refinanced with the proceeds of the Bonds shall have been taken under the exercise of the power of eminent domain by any governmental authority, or any portion of such facilities is damaged or destroyed; and
(2) Change in Law . As a result of (a) any changes in the Constitution of the United States of America or the Home Rule Act, (b) other legislative or administrative action (federal or local), or (c) a final decree, judgment or order of any court or administrative body (federal or local), entered after any contest which may be undertaken at the option of the Borrower in good faith, after any of which the Loan Agreement becomes void or unenforceable or impossible of performance in accordance with the intent and purpose of the parties as expressed in the Loan Agreement or unreasonable burdens or excessive liabilities
 
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shall have been imposed on the Borrower because the Borrower is a party to the Loan Agreement, including, without limitation, the imposition of federal, state or other ad valorem, property, income or other taxes not being imposed on the date of the Loan Agreement which, in the judgment of the Borrower, render the continued operation of such facilities financed or refinanced with the proceeds of the Bonds uneconomic or impossible to perform in accordance with the intent and purpose of the parties as expressed in the Loan Agreement.
H. Mandatory Redemption under Bondholder Agreement . When Bonds are in a Term Indexed Mode and a Bondholder Agreement is in effect, the Bonds are subject to mandatory redemption and shall be redeemed, at a redemption price equal to 100% of the principal amount thereof together with interest accrued and unpaid thereon to the date fixed for redemption, on each date on which such Bonds are required to be redeemed, purchased, or repurchased pursuant to the Bondholder Agreement (other than as provided in Section 4.09 ), provided that the Borrower, the Bondholder Representative or the Required Bondholders (as defined in the Bondholder Agreement) give notice thereof to the Trustee and (unless given by the Borrower) the Borrower at least four (4) Business Days prior to the redemption date.
I. Purchase in Lieu of Redemption . Unless otherwise provided in a Supplemental Bond Indenture, whenever Bonds are subject to redemption, they may instead be purchased at the option of the Borrower at a purchase price equal to the Redemption Price thereof plus interest accrued thereon to the redemption date. The Borrower shall give to the Trustee written notice thereof and of the Bonds of each subseries, maturity, Interest Period, and interest rate to be so purchased. The Trustee shall select the particular Bonds of such subseries and maturity to be so purchased in the same manner as provided in Section 4.02 for the selection of Bonds to be redeemed in part. Promptly thereafter, the Trustee shall give notice of the purchase of such Bonds at the times and in the manner provided in Section 4.03 for notice of redemption. All such purchases may be subject to conditions to the Borrower’s obligation to purchase such Bonds and shall be subject to the conditions that money for the payment of the purchase price therefor is available on the date set for such purchase and that such purchase shall be made solely with Available Money or funds paid by the Liquidity Facility Provider under the Liquidity Facility, if a Credit Facility is in effect. If such a purchase is a purchase in lieu of optional redemption and a Liquidity Facility is in effect on the date of purchase, such purchase in lieu of redemption shall also be conditioned on money sufficient to reimburse the Liquidity Facility Provider for the purchase price being delivered by the Borrower to the Trustee prior to the purchase date, and the Trustee shall give a notice of rescission of such purchase of Bonds on the date set for purchase to the same Persons that were given the notice of purchase if such funds have not been delivered prior to the date set for purchase. Notice of purchase having been given in the manner required above, then, if sufficient money to pay the purchase price of such Bonds or to reimburse the Liquidity Facility Provider therefor is held by the Trustee, the purchase price of the Bonds or portions thereof so called for purchase shall become due and payable on the date set for purchase, upon presentation and surrender of such Bonds (other than Book Entry Bonds) to be purchased at the office or offices specified in such notice, and, in the case of Bonds presented by a Person other than the Holder thereof, together with a written instrument of transfer duly executed by such Holder or his duly authorized attorney. Payment of the purchase price of such Bonds shall be made, upon the request of the Holder of $1,000,000 or more in principal amount of Bonds to be so purchased, by wire transfer to such Holder at the wire transfer address in the continental United States to which such Holder has prior to the purchase date directed in writing the Trustee to wire such purchase price. No purchased Bond shall be considered to be no longer Outstanding by virtue of its purchase, and each such purchased Bond that is not a Book Entry Bond shall be registered in the name or at the direction of the Borrower.
 
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SECTION 4.02. Selection of Bonds for Redemption or Purchase.
Whenever provision is made in this Bond Indenture for the redemption or mandatory purchase of less than all of the Bonds of a subseries, maturity, Interest Period, and interest rate, the Trustee shall select the Bonds of such subseries, maturity, Interest Period, and interest rate to be redeemed, in the authorized denominations specified in Section 2.02 , by lot, in any manner which the Trustee in its sole discretion shall deem appropriate and fair; provided, however , that Liquidity Facility Bonds of such subseries shall be redeemed or purchased prior to any other Bonds of such subseries; and provided, further, however , when Bonds are in a Term Indexed Mode and a Bondholder Agreement is in effect, Bonds shall be selected for redemption or purchase as nearly as possible in proportion to the principal amount of Bonds registered to each Bondholder. The Trustee shall promptly notify the Issuer and the Borrower in writing of any redemption or purchase of the Bonds or portions thereof so selected for redemption or purchase. The selection of Bonds shall be at such time as determined by the Trustee.
SECTION 4.03. Notice of Redemption.
Notice of redemption shall be given by the Trustee by Electronic Means while Bonds are in a Term Indexed Mode and a Bondholders Agreement is in effect and at all other times by first-class mail, not less than one Business Day (for Bonds in a Term Indexed Mode while a Bondholder Agreement is in effect and the Bonds are not registered in the name of the Securities Depository or its nominee), 15 days (for Bonds in a Daily Mode, Weekly Mode, Commercial Paper Mode, Term Indexed Mode while no Bondholder Agreement is in effect or the Bonds are registered in the name of the Securities Depository or its nominee, or weekly R-FLOATs Mode) or 30 days (for Bonds in any other Mode) nor more than 60 days prior to the date fixed for redemption, to the Bondholders Representative (if any), the Liquidity Facility Provider (if any), Credit Facility Provider (if any), and Remarketing Agent for, and the Rating Agencies then rating, the Bonds to be redeemed and the respective Holders of such Bonds at their addresses appearing on the bond registration books of the Trustee. Each notice of redemption shall state the date of such notice, the date of delivery, subseries, maturity, Interest Period, and interest rate of the Bonds to be redeemed, the date fixed for redemption, the Redemption Price, the place or places of redemption (including the name and appropriate address or addresses of the Trustee), the CUSIP number (if any) of the Bonds to be redeemed and, in the case of Bonds to be redeemed in part only, the portion of the principal amount thereof to be redeemed. Each such notice shall also state that on the redemption date there will become due and payable on each of said Bonds the Redemption Price thereof or of said specified portion of the principal amount thereof in the case of a Bond to be redeemed in part only, together with interest accrued thereon to the date fixed for redemption, and that from and after such date, interest on such Bond shall cease to accrue, and shall require that such Bonds be then surrendered at the address or addresses of the Trustee specified in the redemption notice.
Notice of redemption of Bonds shall be given by the Trustee, at the expense of the Borrower.
Failure by the Trustee to mail notice of redemption pursuant to this Section to any Liquidity Facility Provider, Credit Facility Provider, Remarketing Agent, or Rating Agency or one or more of the Holders of any Bonds designated for redemption shall not affect the sufficiency of the proceedings for redemption with respect to the Holder or Holders to whom such notice was mailed.
Any notice of optional redemption given pursuant to this Section may be conditional and may be rescinded by written notice given to the Trustee by the Borrower no later than 5 Business Days prior to the date specified for redemption. Notice of optional redemption of Bonds while a
 
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Credit Facility is in effect that may be drawn on to pay the Redemption Price thereof shall be conditioned on receipt by the Trustee by 1:00 p.m., New York City time, on the date fixed for redemption of sufficient funds from the Issuer or the Borrower to pay or reimburse the Credit Facility Provider for such Redemption Price and any accrued interest on such Bonds then due. The Trustee shall give notice of such rescission (or failure to satisfy such condition), as soon thereafter as practicable, in the same manner, to the same Persons, as notice of such redemption was given pursuant to this Section.
SECTION 4.04. Partial Redemption of Bonds.
Upon surrender of any Bond to be redeemed in part only, the Trustee shall authenticate and deliver to the Holder thereof, at the expense of the Borrower, a new Bond or Bonds of authorized denominations of the same subseries, maturity, Interest Period, and interest rate equal in aggregate principal amount to the unredeemed portion of the Bond surrendered.
SECTION 4.05. Effect of Redemption.
Notice of redemption having been duly given as aforesaid and moneys for payment of the Redemption Price of, together with interest accrued to the date fixed for redemption on, the Bonds (or portions thereof) so called for redemption being held by the Trustee, on the date fixed for redemption designated in such notice the Bonds (or portions thereof) so called for redemption shall become due and payable at the Redemption Price specified in such notice plus interest accrued thereon to the date fixed for redemption (unless such redemption is rescinded or the condition thereto is not satisfied as provided in Section 4.03 ), interest on the Bonds so called for redemption shall cease to accrue, said Bonds (or portions thereof) shall cease to be entitled to any benefit or security under this Bond Indenture, and the Holders of said Bonds shall have no rights in respect thereof except to receive payment of said Redemption Price and accrued interest.
SECTION 4.06. Optional Tenders of Bonds in the Daily Mode, the Weekly Mode or the R-FLOATs Mode.
The Holders of Eligible Bonds (other than Liquidity Facility Bonds) in a Daily Mode, a Weekly Mode or the R-FLOATs Mode may elect to have their Bonds (or portions of those Bonds in amounts equal to the lowest denomination then authorized pursuant to Section 2.02 ) purchased (1) on any Business Day, in the case of Bonds in a Daily Mode, Weekly Mode, or weekly R-FLOATs Mode, (2) two Business Days prior to the next succeeding Interest Period therefor, in the case of Bonds in a monthly R-FLOATs Mode, and (3) on the Interest Payment Date immediately following a Special R-FLOATs Rate Period or term rate R-FLOATs Rate Period, in the case of Bonds in a Special R-FLOATs Rate Period or term rate R-FLOATs Mode, respectively, in each case at a price equal to the Purchase Price,
(i) Daily Mode : in the case of Bonds in a Daily Mode, upon delivery of an irrevocable written notice of tender by Electronic Means and an irrevocable telephonic notice of tender to the Remarketing Agent for such Bonds and the Tender Agent (or, if none, the Trustee) not later than the Tender Notice Deadline; and
(ii) Weekly or R-Floats Mode : in the case of Bonds in a Weekly Mode or the R-FLOATs Mode, upon delivery of an irrevocable written notice of tender by Electronic Means and irrevocable telephonic notice of tender (promptly confirmed in writing to the Tender Agent) to the Remarketing Agent for such Bonds and the Tender Agent (or, if none, the Trustee), not later than the Tender Notice Deadline.
 
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Such notices of tender shall state the CUSIP number, subseries designation (if any), Bond number (if the Bonds are not registered in the name of the Securities Depository), Interest Period and principal amount of such Bond and that such Bond shall be purchased on the Purchase Date specified above. Payment of the Purchase Price shall be made pursuant to this Section only if the Bond so delivered to the Tender Agent conforms in all respects to the description thereof in the notice described in this Section. A Holder who gives the notice of tender as set forth above may repurchase the Bonds so tendered on such Purchase Dates if the Remarketing Agent for such Bonds agrees to sell the Bonds so tendered to such Holder. If such Holder decides to repurchase such Bonds and the Remarketing Agent agrees to sell the specified Bonds to such Holder, the delivery requirements set forth in Section 4.12D shall be waived. The Tender Agent may assume that a Bond is an Eligible Bond unless it has actual knowledge to the contrary.
SECTION 4.07. Mandatory Purchase at End of Commercial Paper Rate Periods.
Each Bond in the Commercial Paper Mode is subject to mandatory purchase on each Purchase Date established therefor at the Purchase Price. No notice of such mandatory purchase shall be given to the Holders of such Bonds.
 
SECTION 4.08.	Mandatory Purchase on Mode Change Date, Election to Set a Special R-FLOATs Rate Period or on Borrower Request.	
A. Changes Other Than to Fixed Rate Mode . Bonds to be changed at the election of the Borrower from one Mode to another Mode (other than a change to the Fixed Rate Mode, in which case such Bonds are subject to mandatory purchase pursuant to Subsection B of this Section), and Bonds in an R-FLOATs Mode which are to be changed to a Special R-FLOATs Rate Period of greater than 35 days, are subject to mandatory purchase on the Mode Change Date or the effective date of the Special R-FLOATs Rate Period at the Purchase Price as provided in this Subsection. The Tender Agent shall give notice of such mandatory purchase by Electronic Means to the Holders of the Bonds subject to mandatory purchase no less than 10 Business Days for Bonds which are to be changed to a Mode of 360 days or less, and no less than 20 days for Bonds which are to be changed to a Mode of more than 360 days, a Stepped Coupon Mode or an Indexed Mode, in either case prior to the Mandatory Purchase Date. The notice shall state the Mandatory Purchase Date, the Purchase Price and that interest on Bonds subject to mandatory purchase shall cease to accrue from and after the Mandatory Purchase Date. The failure to give such notice with respect to any Bond shall not affect the validity of the mandatory purchase of any other Bond with respect to which notice was so mailed. Any notice mailed will be conclusively presumed to have been given, whether or not actually received by any Bondholder.
B. Change to Fixed Rate Mode . Bonds to be changed to the Fixed Rate Mode are subject to mandatory purchase on the Mode Change Date at the Purchase Price (subject to Section 2.10 ). The Tender Agent shall give notice of such mandatory purchase as part of the notice of change of Mode to be sent to the Bondholders pursuant to Section 2.12B(3) . The failure to give such notice with respect to any Bond shall not affect the validity of the mandatory purchase of any other Bond with respect to which notice was so given. Any notice mailed will be conclusively presumed to have been given, whether or not actually received by any Bondholder.
C. On Borrower Request. The Bonds shall be subject to mandatory tender for purchase at the Purchase Price upon written request of the Borrower (received by the Trustee at least three Business Days prior to the Mandatory Purchase Date if the Bonds are in a Term Indexed Mode, a Bondholder Agreement is in effect, and the Bonds are not registered in the name of the Securities Depository or its nominee and otherwise 20 days prior to the Mandatory Purchase Date) on any
 
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Business Day on which such Bonds may be redeemed at the option of the Borrower for a redemption price equal to 100% of principal amount plus accrued interest, if any. The Tender Agent shall give notice of such mandatory purchase by Electronic Means to the Bondholder Representative, if any, and the Holders of the Bonds subject to mandatory purchase no less than one Business Day prior to such Mandatory Purchase Date while the Bonds are in a Term Indexed Mode, a Bondholder Agreement is in effect, and the Bonds are not registered in the name of the Securities Depository or its nominee, 15 days prior to the Mandatory Purchase Date for Bonds in a Mode with Interest Periods of less than one year, and otherwise 30 days prior to such Mandatory Purchase Date. The notice shall state the Mandatory Purchase Date, the Purchase Price and that interest on Bonds subject to mandatory purchase shall cease to accrue from and after the Mandatory Purchase Date. The failure to give such notice with respect to any Bond shall not affect the validity of the mandatory purchase of any other Bond with respect to which notice was so mailed. Any notice mailed will be conclusively presumed to have been given, whether or not actually received by any Bondholder.
 
SECTION 4.09.	Mandatory Purchase at End of Interest Period in Term Rate Mode or Term Indexed Mode or term rate R-FLOATs Rate Interest Period.	
Bonds in the Term Rate Mode or Term Indexed Mode and Bonds bearing interest at the term rate R- FLOATs Rate are subject to mandatory purchase at the Purchase Price on the Purchase Date following each Interest Period therefor. The Tender Agent shall give notice of such mandatory purchase by Electronic Means to the Bondholder Representative, if any, and the Remarketing Agent, if any, and by mail to the Holders of the Bonds subject to mandatory purchase no less than 15 days prior to the Mandatory Purchase Date. The notice shall state the Mandatory Purchase Date, the Purchase Price and that interest on Bonds subject to mandatory purchase shall cease to accrue from and after the Mandatory Purchase Date. The Tender Agent may assume that a Bond is an Eligible Bond unless it has actual knowledge that such Bond is not an Eligible Bond. The failure to mail such notice with respect to any Bond shall not affect the validity of the mandatory purchase of any other Bond with respect to which notice was so mailed. Any notice mailed will be conclusively presumed to have been given, whether or not actually received by any Bondholder.
 
SECTION 4.10.	Mandatory Purchase on Expiration Date, New Liquidity Facility Date, New Credit Facility Date and Termination Date.	
A. Substitution and Expiration . The Eligible Bonds of any subseries shall be subject to mandatory purchase at the Purchase Price:
(1) Substitution or Release : on the last Business Day on or before each New Liquidity Facility Date and New Credit Facility Date for such Bonds, and
(2) Expiration : on the second Business Day immediately preceding each Expiration Date for such Bonds;
provided, however , that such Bonds shall not be subject to mandatory purchase on any such date if, on or prior to the 15 th day prior to such Mandatory Purchase Date, the Borrower has furnished to the Trustee a written agreement from the Liquidity Facility provider or Credit Facility Provider for such Bonds to extend the Liquidity Facility or Credit Facility, as applicable, for such Bonds. The Tender Agent shall give notice of such mandatory purchase by mail to the Holders of the Bonds subject to mandatory purchase no less than 10 days prior to such Mandatory Purchase Date. The notice shall state the Mandatory Purchase Date, the Purchase Price and that interest on the Bonds subject to mandatory purchase shall cease to accrue from and after the Mandatory Purchase Date. The failure to mail such notice with respect to any Bond shall not affect the validity of the mandatory purchase of any other Bond with respect to which notice was so mailed. Any notice mailed will be conclusively presumed to have been given, whether or not actually received by any Bondholder.
 
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B. Termination . On the Business Day before each Termination Date for the Bonds of a subseries, the Eligible Bonds of such subseries shall be subject to mandatory purchase at the principal amount thereof, plus accrued interest, if any, with respect thereto to such Termination Date. The Tender Agent shall give notice of such mandatory purchase by mail to the Holders of the Bonds to be purchased as soon as practicable after receipt of notice of termination from the Liquidity Facility Provider or Credit Facility Provider for such Bonds. The notice shall state the Mandatory Purchase Date, the Purchase Price and that interest on Bonds subject to mandatory purchase shall cease to accrue from and after the Mandatory Purchase Date. The failure to mail such notice with respect to any Bond shall not affect the validity of the mandatory purchase of any other Bond with respect to which notice was so mailed. Any notice mailed will be conclusively presumed to have been given, whether or not actually received by any Bondholder.
SECTION 4.11. Remarketing of Bonds; Notices.
A. Remarketing of Bonds . The Remarketing Agent for the Bonds of a subseries shall use its best efforts to offer for sale:
(1) all Bonds of such subseries or portions thereof as to which notice of tender has been given pursuant to Section 4.06 ;
(2) all Bonds of such subseries required to be purchased pursuant to Sections 4.07, 4.08, 4.09 and 4.10 ; and
(3) all Liquidity Facility Bonds of such subseries.
Notwithstanding the foregoing, in no event may the Remarketing Agent remarket Bonds or any subseries thereof to any Excluded Purchaser while a Credit Facility for such Bond is in effect hereunder.
B. Notice of Remarketing; New Bonds . On each Purchase Date or Mandatory Purchase Date, as the case may be, for the Bonds of a subseries:
(1) Notice of Remarketing : unless the Remarketing Agent for such Bonds has notified the Tender Agent and the Trustee otherwise, such Remarketing Agent shall notify the Tender Agent and the Trustee by Electronic Means, not later than 30 minutes before the applicable Draw Deadline, of the principal amount of tendered Bonds of such subseries which were successfully remarketed and shall provide the Tender Agent with delivery and other instructions for such Remarketing Agent; and
(2) Delivery of Bonds : the delivery of new Bonds of such subseries shall be effected through the Securities Depository and delivered to the Remarketing Agent for such Bonds via the Securities Depository in accordance with the provisions of Section 4.12E .
C. Transfer of Funds; Draw on Liquidity Facility . On each Purchase Date or Mandatory Purchase Date, as the case may be, for the Bonds of a subseries:
(1) Payment for Remarketed Bonds . Upon receipt via the Securities Depository of the Tendered Bonds of such subseries from tendering Bondholders that have
 
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been successfully remarketed, the Remarketing Agent for such Bonds shall cause to be paid via the Securities Depository to the Tender Agent the Purchase Price of the remarketed Bonds by 30 minutes before the applicable Draw Deadline. The Tender Agent will immediately make delivery of such Bonds pursuant to Section 4.12E to such Remarketing Agent, and the Tender Agent’s participant account will be credited with the Purchase Price from such Remarketing Agent. The requirement for physical delivery of such Bonds will be satisfied when the ownership rights with respect to such Bonds are transferred by the tendering Bondholder’s direct participant to the Securities Depository and followed by a book-entry credit of such Bonds to the Tender Agent’s participant account.
(2) Notice of Insufficiency . Except with respect to Bonds in any R-FLOATs Mode, if the Remarketing Agent for such Bonds shall have given notice to the Tender Agent pursuant to Subsection B(1) of this Section that it has remarketed less than all of such Bonds tendered for remarketing, the Tender Agent shall give notice to the Trustee, the Borrower and, if a Liquidity Facility is then in effect with respect to the Bonds subject to purchase, to the applicable Liquidity Facility Provider (or the Tender Agent shall instruct the Trustee to give notice and the Trustee shall give notice) in accordance with the terms of the Liquidity Facility for such Bonds prior to the applicable Draw Deadline (and promptly thereafter, the Tender Agent shall so notify the Securities Depository) of the amount equal to the Purchase Price of all such Bonds tendered or deemed tendered less the aggregate amount of remarketing proceeds on hand.
(3) Draw for Insufficiency . Except with respect to any Bonds in an R-FLOATs Mode, in the event not all of such Bonds have been successfully remarketed, if a Liquidity Facility is then in effect with respect to the Bonds subject to purchase, the Tender Agent (or the Trustee if the Trustee is the beneficiary under such Liquidity Facility) shall draw on such Liquidity Facility in accordance with the terms thereof so as to receive thereunder by the Bank Settlement Deadline on such date an amount, in immediately available funds, sufficient, together with the proceeds of the remarketing of such Bonds on such date, to enable the Tender Agent to pay the Purchase Price in connection therewith. In making draws or claims for payment under the Liquidity Facility for the Bonds of a subseries, the Trustee and the Tender Agent shall act on behalf and for the account and benefit of the Holders of such Bonds and not on behalf, for the account or benefit, or subject to the control of any Holder of a Bond other than an Eligible Bond.
(4) Payment by Borrower . Except with respect to any Bonds in an R-FLOATs Mode, in the event not all of such Bonds have been successfully remarketed, if a Liquidity Facility is not then in effect with respect to the Bonds subject to purchase or if the Liquidity Facility Provider has not paid the full amount required by clause (3)  of this Subsection C at the times required therein, the Borrower has agreed in Section 3.05 of the Loan Agreement to pay to the Tender Agent by the Bank Settlement Deadline on such date an amount, in immediately available funds, sufficient, together with the proceeds of the remarketing of such Bonds on such date, to enable the Tender Agent to pay the Purchase Price in connection therewith.
SECTION 4.12. General Provisions Relating to Tenders.
A. Purchase Fund . The Tender Agent shall establish and maintain a special fund designated as the “ Purchase Fund ,” and within such fund three separate accounts designated, respectively, as the “ Liquidity Facility Deposit Account ,” the “ Remarketing Proceeds Account ” and the “ Borrower Purchase Account .” Upon the designation of two or more subseries of Bonds pursuant
 
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to Section 2.02E , the Tender Agent shall establish and maintain a separate subaccount for each subseries within each such Account and shall deposit to and draw on the applicable subaccount all receipts in respect of and all payments of the Purchase Price of the Bonds of the subseries for which such subaccount is established. The money in the Purchase Fund shall be held in trust and applied solely as provided in this Section.
The Tender Agent shall deposit all moneys delivered to it hereunder for the purchase of Bonds into the Remarketing Proceeds Account and shall hold all such moneys in trust for the exclusive benefit of the Person that shall have so delivered such moneys until the Bonds purchased with such moneys shall have been delivered to it for the account of such Person and, thereafter, for the benefit of the Bondholders tendering such Bonds.
The Tender Agent shall deposit all moneys delivered to it hereunder from a payment by or on behalf of any Liquidity Facility Provider for the purchase of Bonds into the Liquidity Facility Deposit Account and shall hold all such moneys in trust for the exclusive benefit of such Liquidity Facility Provider until the Bonds purchased with such moneys shall have been delivered to or for the account of such Liquidity Facility Provider and, after such delivery, the Tender Agent shall hold such funds exclusively for the benefit of the Bondholders tendering such Bonds.
The Tender Agent shall deposit all moneys delivered to it hereunder from a payment by or on behalf of the Borrower for the purchase of Bonds into the Borrower Purchase Account and shall hold all such moneys in trust for the exclusive benefit of the Borrower until the Bonds purchased with such moneys shall have been delivered to or for the account of the Borrower and, after such delivery, the Tender Agent shall hold such funds exclusively for the benefit of the Bondholders tendering such Bonds.
Moneys in the Liquidity Facility Deposit Account, the Remarketing Proceeds Account and the Borrower Purchase Account shall not be commingled with other funds held by the Tender Agent and shall remain uninvested. Neither the Issuer nor the Borrower shall have any right, title or interest in or to any moneys held in the Purchase Fund.
Whenever the Tender Agent is not a federal depository institution or state-chartered depository institution subject to regulations regarding fiduciary funds similar to Section 9.10(b), Title 1, U.S. Code of Federal Regulations, then the Tender Agent shall maintain the Purchase Fund at such a depository institution subject to such regulations, or at a depository institution the short-term obligations of which are rated by each Rating Agency no lower than the short-term rating assigned by it to the Bonds.
B. Payment of Purchase Price . At or before the close of business New York City time on the Purchase Date or Mandatory Purchase Date for Bonds and upon receipt by the Tender Agent of the aggregate Purchase Price of the tendered Bonds, the Tender Agent shall pay the Purchase Price of such Bonds to the tendering Bondholder’s direct participant via the Securities Depository. Payments by participants to beneficial owners shall be governed by standing instructions and customary practices. The Tender Agent shall pay the Purchase Price of the Bonds of any subseries in the following order of priority: (1) the proceeds, if any, from the remarketing of such Bonds, (2) in the case of Eligible Bonds of such subseries, the moneys drawn under the Liquidity Facility (if any) for such Bonds and (3) moneys paid by the Borrower. The Tender Agent may assume that a Bond is an Eligible Bond unless it has actual knowledge to the contrary. If, at close of business New York City time on any Purchase Date or Mandatory Purchase Date for Bonds of any subseries, any balance remains of any draw on the Liquidity Facility for such Bonds in excess of any unsatisfied purchase obligation, such excess shall be promptly returned to the Liquidity Facility Provider obligated thereon.
 
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If, at close of business New York City time on any Purchase Date or Mandatory Purchase Date for Bonds, any balance remains from any payment by the Borrower in excess of any unsatisfied purchase obligation, such excess shall be promptly returned to the Borrower.
C. Inadequate Funds for Tenders . If the funds available for purchases of Eligible Bonds of a subseries pursuant to this Article are inadequate for the purchase of all Bonds of such subseries tendered on any Purchase Date or Mandatory Purchase Date, no purchase of Bonds of such subseries shall be consummated, and the Tender Agent shall, after any applicable grace period, (1) return all tendered Bonds of such subseries to the Holders thereof, (2) return all moneys transferred via the Securities Depository for the purchase of such Bonds to the Remarketing Agent for such Bonds for return to the Persons providing such moneys, (3) return all moneys drawn under any Liquidity Facility for such Bonds to the Liquidity Facility Provider obligated thereon and (4) return to the Borrower all moneys transferred from the Borrower. At such time, the Bonds of such subseries shall convert to a Weekly Mode and shall bear interest in the first Interest Period of such Mode at the Maximum Rate.
D. Delivery of Bonds by Tendering Bondholders; Undelivered Bonds Deemed Purchased . All Bonds to be purchased on any Purchase Date or Mandatory Purchase Date shall be required to be delivered to the Tender Agent’s Securities Depository participant account at or before 30 minutes before the Draw Deadline for purchases of Bonds on such date. If the Holder of any Bond (or portion thereof) that is subject to purchase pursuant to this Article fails to deliver such Bond to the Tender Agent for purchase on the Purchase Date or Mandatory Purchase Date, and if the Tender Agent is in receipt of the Purchase Price therefor, such Bond (or portion thereof) shall nevertheless be deemed purchased on the day fixed for purchase thereof, and ownership of such Bond (or portion thereof) shall be transferred to the purchaser thereof as provided in Subsection E of this Section. Any Holder of a Bond who fails to deliver such Bond for purchase shall have no further rights thereunder except the right to receive the Purchase Price thereof upon presentation and surrender of said Bond to the Tender Agent. The Tender Agent shall, as to any tendered Bonds that have not been delivered to it, promptly notify the applicable Remarketing Agent of such nondelivery.
E. Delivery of Bonds . On the Purchase Date or Mandatory Purchase Date for Bonds of any subseries, the Tender Agent shall make delivery of such Bonds via the Securities Depository (1) to the Remarketing Agent for such Bonds to the extent of Bonds of such subseries purchased and remarketed by such Remarketing Agent no later than 30 minutes prior to the applicable Draw Deadline, (2) to the Liquidity Facility Provider (if any) for such Bonds to the extent of Bonds of such subseries purchased with amounts paid by or on behalf of such Liquidity Facility Provider and (3) to the Borrower to the extent of Bonds of such subseries purchased with amounts paid by or on behalf of the Borrower. Notwithstanding the foregoing, the Tender Agent shall not deliver any Bonds pursuant to Clause (2) or upon the remarketing of Liquidity Facility Bonds unless it has received notice from the Liquidity Facility Provider for such Bonds that the amount available for the purchase of Bonds of such subseries (prior to a conversion to Fixed Rate) is at least equal to the aggregate amount of all Bonds of such subseries then Outstanding (other than Liquidity Facility Bonds not then being released) plus an amount equal to (1) 49 days’ interest on Bonds of such subseries in a Daily Mode or a Weekly Mode, (2) 107 days’ interest on Bonds of such subseries in a Term Indexed Mode, and (3) 190 days’ interest on Bonds of such subseries in a Commercial Paper Mode or a Term Rate Mode (assuming an interest rate equal to the Maximum Rate per annum) or the Trustee has given notice to the Liquidity Facility Provider that will increase such amount available to such aggregate amount.
F. No Sales After Payment Default . Anything in this Bond Indenture to the contrary notwithstanding, if there shall have occurred and be continuing an Event of Default described
 
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in Section 7.01A or 7.01B in respect of the Bonds of any subseries and the Credit Facility Provider (if any) for such Bonds has not paid such amount under the Credit Facility, then the applicable Remarketing Agent shall not remarket any Bonds of such subseries.
G. R-FLOATs Bonds During Non-Remarketing Period. The provisions of this Section shall not apply to any Bonds in an R-FLOATs Mode during any Non-Remarketing Period.
H. Book-Entry Tenders. Whenever Bonds are to be tendered and purchased pursuant to this Article after the Securities Depository has resigned or been removed and not replaced pursuant to Section 2.20 , (1) Bonds shall be tendered for purchase by delivery, endorsed in blank (or accompanied by a bond power executed in blank) to the extent of the portion to be purchased, at the principal office of the Tender Agent in the City of New York by 30 minutes before the applicable Draw Deadline, on the applicable Purchase Date or Mandatory Purchase Date and (2) the Issuer shall execute, and the Trustee shall authenticate and deliver, in the name of the Person deemed to have purchased the same or its designee, one or more new Bonds of any authorized denomination, of the same subseries and maturity, bearing interest at the same rate (except to the extent such Bond becomes a Liquidity Facility Bond) and for the same Interest Period, and of a like aggregate principal amount pursuant to Section 2.15 .
SECTION 4.13. The Remarketing Agents.
A. Appointment, Duties. Merrill Lynch, Pierce, Fenner & Smith Incorporated is hereby designated as the initial Remarketing Agent for the Bonds and shall serve as such under the terms and provisions hereof. The Remarketing Agent and each successor Remarketing Agent for the Bonds of any subseries appointed in accordance with this Bond Indenture shall designate its principal office and signify its acceptance of the duties and obligations imposed upon it as described herein by a written instrument of acceptance delivered to the Issuer, the Trustee, the Tender Agent and the Borrower, under which the Remarketing Agent will agree particularly:
(1) Hold Money : to hold all moneys delivered to it hereunder for the purchase of such Bonds for the exclusive benefit of the Person or Persons that shall have so delivered such moneys until the Bonds purchased with such moneys shall have been delivered to or for the account of such Person or Persons;
(2) Keep Records : to keep such books and records with respect to such Bonds, as shall be consistent with prudent industry practice and to make such books and records available for inspection by the Borrower, the Issuer and the Trustee, at all reasonable times, upon reasonable notice;
(3) Make Determinations : to determine the Daily Rates, the Weekly Rates, the weekly R-FLOATs Rates, the monthly R-FLOATs Rates, the term R-FLOATs Rates, the lengths and rates of the Special R-FLOATs Rate Periods, the Commercial Paper Rates, the lengths of Interest Periods in the Commercial Paper Mode, the Term Rates, the percentage or spread (and any function or scale therefor) used to determine the Indexed Rates, the Stepped Coupon Rates and the Fixed Rates for such Bonds and give notice of such rates and lengths in accordance with Article II ;
(4) Remarket : to use its best efforts to find purchasers for such Bonds tendered for purchase, any such sale to be made at the Purchase Price in accordance with the terms of this Bond Indenture; and
 
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(5) Deliver Bonds : to deliver to the Tender Agent all such Bonds held by it in accordance with the terms of this Bond Indenture and its Remarketing Agreement.
No Remarketing Agent shall designate a principal office at which its obligations under its Remarketing Agreement are to be performed unless such office is located in a state specified in the definition of “Business Day” included in the Credit Facility and the Liquidity Facility.
B. Performance by Tender Agent. If the Remarketing Agent for the Bonds of any subseries shall resign, be removed, or be dissolved, or if the property or affairs of the Remarketing Agent for the Bonds of any subseries shall be taken under control of any state or federal court or administrative body because of bankruptcy or insolvency or for any other reason, and the Borrower shall not have appointed a successor as Remarketing Agent, the Tender Agent shall ipso facto be deemed to be the Remarketing Agent for such Bonds for all purposes of this Bond Indenture, including Section 2.11 , until the appointment by the Borrower of a successor Remarketing Agent for such Bonds; provided, however, that the Tender Agent, in its capacity as Remarketing Agent, shall not be required to determine the interest rate on Bonds hereunder if the Tender Agent should be prohibited by law from conducting such activities. If the Borrower fails to appoint a successor Remarketing Agent for such Bonds within 30 days after its receipt of notice of any such event, the Trustee may apply to a court of competent jurisdiction for appointment of a successor Remarketing Agent for such Bonds. If a Remarketing Agent resigns, is removed, or is unable to perform its duties hereunder, the Trustee shall accept all notices and money required or permitted to be delivered to such Remarketing Agent hereunder until a successor Remarketing Agent for the Bonds of the applicable subseries has been appointed. The Borrower will notify each Rating Agency then rating the Bonds of any subseries of any successor Remarketing Agent or co-Remarketing Agent for such Bonds.
C. Permitted Conflicts . Each Remarketing Agent may in good faith hold Bonds or any other form of indebtedness issued by the Issuer or any security issued by the Borrower; own, accept or negotiate any drafts, bills of exchange, acceptances or obligations thereof; and make disbursements therefor and enter into any commercial or business arrangement therewith; all without any liability on the part of such Remarketing Agent for any real or apparent conflict of interest by reason of any such actions.
SECTION 4.14. Qualifications and Substitution of Remarketing Agent.
A. Qualifications; Resignation and Replacement. Each Remarketing Agent shall be authorized by law to perform all the duties imposed upon it. A Remarketing Agent may at any time resign and be discharged of the duties and obligations described in this Bond Indenture as set forth in its Remarketing Agreement. A Remarketing Agent may suspend or immediately terminate its remarketing efforts as set forth in its Remarketing Agreement. Successor Remarketing Agents may be appointed from time to time by the Borrower if not objected to by the Credit Facility Provider (if any) or Liquidity Facility Provider (if any) for such Bonds. The Remarketing Agent for the Bonds of any subseries may be removed upon 30 days’ notice upon the written Request of the Borrower and upon written notice to such Remarketing Agent, the Issuer, the Trustee, the Tender Agent, and the Liquidity Facility Provider (if any) and Credit Facility Provider (if any) for such Bonds, so long as a successor Remarketing Agent shall have assumed the duties thereof for such Bonds by the effective date of such removal.
B. Automatic Succession. Notwithstanding any other provision to the contrary contained herein, any corporation or association into which a Remarketing Agent may be converted or merged, or with which it may be consolidated, or to which it may be consolidated, or to which it may sell or transfer its marketing business and assets as a whole or substantially as a whole, shall become
 
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successor Remarketing Agent hereunder and fully vested with all of the rights, powers, trusts, duties and obligations of a Remarketing Agent hereunder, without the execution or filing of any instrument or any further act.
SECTION 4.15. The Tender Agent.
The Trustee is hereby appointed as Tender Agent and shall serve as such under the terms and provisions hereof. The Tender Agent and each successor Tender Agent appointed in accordance with this Bond Indenture shall designate its principal corporate office and signify its acceptance of the duties and obligations imposed upon it as described herein by a written instrument of acceptance delivered to the Issuer, the Trustee and the Borrower under which each Tender Agent will agree, particularly:
(1) Custody of Bonds : to hold all Bonds delivered to it for purchase hereunder in trust for the exclusive benefit of the respective Bondholders that shall have so delivered such Bonds until moneys representing the Purchase Price of such Bonds shall have been delivered to or for the account of or to the order of such Holders;
(2) Custody of Money : to hold all moneys delivered to it hereunder for the purchase of Bonds in trust for the exclusive benefit of the Person that shall have so delivered such moneys until the Bonds purchased with such moneys shall have been delivered to it for the account of such Person and, thereafter, for the benefit of the Bondholders tendering such Bonds;
(3) Keep Records : to keep such books and records as shall be consistent with prudent industry practice and to make such books and records available for inspection by the Borrower, the Issuer, the Trustee, the Remarketing Agents, the Liquidity Facility Providers (if any) and the Credit Facility Providers (if any) at all reasonable times; and
(4) Assignment of CUSIPS : for any Bonds in the Commercial Paper Mode, to assign CUSIP numbers to such Bonds on each Rate Determination Date as provided in Section 2.05 .
The Tender Agent shall be entitled to the protections, indemnities, immunities and limitations from liability afforded the Trustee hereunder in the performance of its duties.
SECTION 4.16. Qualifications of Tender Agent.
A. Qualifications; Removal and Replacement. The Tender Agent and each successor Tender Agent shall be a commercial bank with trust powers or trust company duly organized under the laws of the United States of America or any state or territory thereof, and authorized by law to perform all duties imposed upon it hereunder. The Tender Agent shall have an office, affiliate office or agency in New York, New York. The Tender Agent may at any time resign and be discharged of its duties and obligations by giving at least 60 days’ notice to the Issuer, the Trustee, the Remarketing Agents, the Liquidity Facility Providers (if any), the Credit Facility Providers (if any), all Holders of Bonds then Outstanding and the Borrower. Any Tender Agent may be removed at any time by the Borrower upon notice to the Issuer, the Trustee, the Remarketing Agents, the Liquidity Facility Providers (if any), the Credit Facility Providers (if any) and each Rating Agency then rating the Bonds. Any resignation or removal of the Tender Agent and appointment of a successor Tender Agent shall become effective upon acceptance of appointment by the successor Tender Agent. Successor Tender Agents may be appointed from time to time by the Borrower if not objected to by any Credit Facility Provider or Liquidity Facility Provider. The Trustee shall provide notice of such successor Tender Agent to all Holders of the Bonds.
 
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B. Return of Assets. Upon the resignation or removal of a Tender Agent, such Tender Agent shall deliver any Bonds, the Liquidity Facilities (if the Tender Agent is the beneficiary thereunder) and moneys held by it in such capacity to its successor.
C. Automatic Succession. Notwithstanding any other provision to the contrary contained herein, any corporation or association into which the Tender Agent may be converted or merged, or with which it may be consolidated, or to which it may be consolidated, or to which it may sell or transfer its marketing business and assets as a whole or substantially as a whole, shall become successor Tender Agent hereunder and fully vested with all of the rights, powers, trusts, duties and obligations of Tender Agent hereunder, without the execution or filing of any instrument or any further act.
SECTION 4.17. Release of Liquidity Facilities .
The Trustee shall (or shall cause the Tender Agent to) release and return any Liquidity Facility for the Bonds of a subseries to the Liquidity Facility Provider obligated thereon (or, in the case of Clause E , consent to the assignment thereof by such Liquidity Facility Provider) on Borrower Request:
A. Defeasance : when there are no Outstanding Bonds of such subseries; or
B. Expiration or Termination : when such Liquidity Facility has expired or been terminated in accordance with its terms; or
C. Successor Trustee : when a successor Trustee has been appointed and qualified pursuant to Article VIII , and a new Liquidity Facility has been issued to such successor in substitution for such Liquidity Facility; or
D. Reduction of Amount : when the maximum aggregate credit available under such Liquidity Facility is reduced pursuant to the terms thereof and such Liquidity Facility Provider has issued a new Liquidity Facility to the Trustee or Tender Agent, whichever is then the beneficiary thereunder, in substitution therefor in the stated amount of the maximum aggregate credit available under such Liquidity Facility as so reduced but otherwise identical to the Liquidity Facility to be released; or
E. Replacement : at the close of business on a day when the Trustee has received and there is in effect a substitute Liquidity Facility for the Bonds of such subseries in substitution for such Liquidity Facility (or an assignment of such Liquidity Facility by such Liquidity Facility Provider) issued to and accepted by the Trustee or the Tender Agent upon Borrower Order in accordance with Section 4.18 not less than 5 Business Days (or such shorter period acceptable to the Trustee) prior to the date by which the Tender Agent must give notice to Bondholders pursuant to Section 4.10A of the resulting mandatory tender of such Bonds for purchase pursuant to such Section, if (1) such day is a Business Day for such Bonds and, if any such Bonds are in a Commercial Paper Mode, Term Rate Mode, Term Indexed Mode, R-FLOATs Mode, Stepped Coupon Mode, or Fixed Rate Mode, such day is also the first Business Day for such Bonds in an Interest Period for each such Bond in each such Interest Mode or a Business Day on which such Bonds may be redeemed at a redemption price equal to 100% of principal amount plus accrued interest, if any, and (2) the Purchase Price of all Bonds of such subseries tendered or deemed tendered for purchase in respect of such release or assignment pursuant to Section 4.10A has been paid or duly provided for; or
 
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F. Optional Release : at the close of business on a day at least 5 Business Days (or such shorter period acceptable to the Trustee), plus the minimum number of days’ notice which the Tender Agent must give to Bondholders pursuant to Section 4.10A of the resulting mandatory tender of such Bonds for purchase pursuant to such Section, after the Borrower, by Borrower Request, shall have provided that such Liquidity Facility shall then be released, if (1) such day is a Business Day for such Bonds and, if any such Bonds are in a Commercial Paper Mode, Term Rate Mode, Term Indexed Mode, R-FLOATs Mode, Stepped Coupon Mode, or Fixed Rate Mode, such day is also the first Business Day for such Bonds in an Interest Period for each such Bond in each such Interest Mode or a day on which such Bonds or portions thereof may be redeemed at the option of the Borrower at a redemption price equal to 100% of principal amount plus accrued interest, if any, and (2) the Purchase Price of all Bonds of such subseries tendered or deemed tendered for purchase in respect of such release pursuant to Section 4.10A has been paid or duly provided for;
and not otherwise; provided that, if such Liquidity Facility Provider is also a Credit Facility Provider for the Bonds of such subseries, no such release to such Person shall be effected by the Trustee pursuant to Clause E or F of this Section unless the Credit Facility for such Bonds shall then be released to such Person pursuant to Section 5.08 or such Person consents in writing to such release of such Liquidity Facility, and, if such Liquidity Facility Provider is not also the Credit Facility Provider for such Bonds, no such release or assignment shall be effected by the Trustee pursuant to Clause E or F unless the Credit Facility Provider for the Bonds of such subseries consents in writing to such release or assignment of such Liquidity Facility; and provided further that no Liquidity Facility shall be released without the written consent of the Liquidity Facility Provider obligated thereon unless all obligations due and owing to such Liquidity Facility Provider pursuant to such Liquidity Facility or its Reimbursement Agreement have been paid in full. The Tender Agent shall give notice, pursuant to Section 4.10 , of the mandatory tender of Bonds of the applicable subseries prior to the date of any release pursuant to Clause B , E , or F of this Section.
SECTION 4.18. Acceptance of and Amendments to Liquidity Facilities .
Each Liquidity Facility accepted by the Trustee (or by the Tender Agent with the written consent of the Trustee) for the Bonds of a subseries, and each extension, assignment, or amendment of a Liquidity Facility for the Bonds of a subseries then in effect,
A. Stated Amount : shall provide for payments, draws, or claims sufficient to pay a Purchase Price for such Bonds up to the Required Stated Amount thereof, and
B. Approval : shall be consented to (as to both form and the identity of the provider) in writing by the Credit Facility Provider for the Bonds of such subseries if a Credit Facility for such Bonds is then in effect and is not then to be released.
The Trustee shall (or shall cause the Tender Agent to) accept a Liquidity Facility for the Bonds of a subseries or an extension or amendment thereof, or approve an assignment thereof by the Liquidity Facility Provider obligated thereon, upon Borrower Order, but only (except in the case of an extension without amendment) upon receipt, by the Trustee and by any Credit Facility Provider for the Bonds of such subseries which is not obligated on such alternate, confirming, extending, amending, or assigned Liquidity Facility, of a Favorable Opinion of Bond Counsel and an Opinion of Counsel stating that (1) such Liquidity Facility, extension, or amendment was issued or assignment
 
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was made in accordance with the conditions of this Section and (2) such Liquidity Facility as extended, amended, or assigned constitutes a legal, valid, and binding obligation of the obligor thereon and is enforceable in accordance with its terms ( except to the extent that the enforceability thereof may be limited by bankruptcy, insolvency, reorganization, moratorium, or other laws for the relief of debtors other than the Issuer and the Borrower and by general principles of equity which permit the exercise of judicial discretion). The Trustee shall not be required to accept or cause to be accepted any such Liquidity Facility, extension, or amendment which materially adversely affects the rights, duties, and immunities of the Trustee or its agents or the Tender Agent hereunder.
*            *             *
 
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ARTICLE V
REVENUES; FUNDS AND ACCOUNTS;
PAYMENT OF PRINCIPAL AND INTEREST
SECTION 5.01. Pledge and Assignment.
A. Pledge . Subject only to the provisions of this Bond Indenture permitting the application thereof for the purposes and on the terms and conditions set forth herein, all of the Revenues and all right, title and interest of the Issuer in and to any other amounts (including proceeds of the sale of Bonds) held in any fund or account established pursuant to this Bond Indenture (other than the Purchase Fund and the Rebate Fund) and in and to all security (if any) and guarantees (if any) for payment of the Loan Payments are hereby pledged to secure the payment of the principal of and premium, if any, and interest on the Bonds in accordance with their terms and the provisions of this Bond Indenture. Said pledge shall constitute a lien on and security interest in such assets and shall attach, be perfected and be valid and binding from and after delivery by the Trustee of the Bonds, without any physical delivery thereof or further act.
B. Assignment . The Issuer hereby transfers in trust, grants a security interest in and assigns to the Trustee, for the benefit of the Holders from time to time of the Bonds, all of the Revenues and other assets pledged in Subsection A of this Section and all of the right, title and interest of the Issuer in the Loan Agreement (except for (i) the right to receive any Additional Payments to the extent payable to the Issuer under the Loan Agreement, (ii) any rights of the Issuer to indemnification and rights of inspection and consent, and (iii) the obligation of the Borrower to make deposits pursuant to the Tax Certificate and Agreement). The Trustee shall be entitled to and shall collect and receive all of the Revenues, and any Revenues collected or received by the Issuer shall be deemed to be held, and to have been collected or received, by the Issuer as the agent of the Trustee and shall forthwith be paid by the Issuer to the Trustee. Subject to the provisions of Section 7.06 with respect to the control of remedial proceedings by the Credit Facility Providers (if any), the Trustee also shall be entitled to and shall take all steps, actions and proceedings reasonably necessary in its judgment to enforce, either jointly with the Issuer or separately, all of the rights of the Issuer that have been assigned to the Trustee and all of the obligations of the Borrower under the Loan Agreement other than for those items excepted in the parenthetical contained in the first sentence of this subsection. All Revenues deposited with the Trustee shall be held, disbursed, allocated and applied by the Trustee only as provided in this Bond Indenture.
C. Notice of Deficiency . If the Trustee has not received the full amount of any Loan Payment by the time the Borrower is required to make the same pursuant to the Loan Agreement, the Trustee shall immediately notify the Borrower, the Liquidity Facility Providers (if any) and the Credit Facility Providers (if any) of such insufficiency by Electronic Means and confirm such notification as soon as possible thereafter by written notice.
SECTION 5.02. Interest Fund.
A. Established in Trust . The Trustee shall establish, maintain and hold in trust a separate fund designated as the “ Interest Fund .” Moneys in the Interest Fund shall be held, disbursed, allocated and applied by the Trustee only as provided in this Bond Indenture.
B. Deposits . The Trustee shall deposit the following Revenues in the Interest Fund when and as such Revenues are received:
 
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(1) Loan Interest Payments : the interest component of all Loan Payments, including the interest component of all cash prepayments of Loan Payments made as a result of the redemption of Bonds;
(2) Investment Earnings : all interest, profits and other income received from the investment of moneys in the Interest Fund; and
(3) Miscellaneous Revenues : any other Revenues not required to be deposited in any other fund or account established pursuant to this Bond Indenture.
C. Applications . All amounts in the Interest Fund shall be used and withdrawn by the Trustee solely for the purpose of paying the interest on the Bonds as the same becomes due and payable (including accrued interest on any Bonds purchased or redeemed prior to maturity pursuant to this Bond Indenture), or to reimburse the Credit Facility Providers (if any) with respect to drawings under the Credit Facilities (if any) for such purposes. So long as a Credit Facility for the Bonds of any subseries is in effect and has been drawn upon to provide sufficient funds to pay in full an interest payment on such Bonds (if Eligible Bonds or Liquidity Facility Bonds not owned by or pledged to the Credit Facility Provider obligated on such Credit Facility) when due as required herein, the Trustee shall (1) apply the amounts so drawn (rather than money in the Interest Fund) to pay interest on such Bonds and (2) use moneys in the Interest Fund deposited by the Borrower to reimburse the applicable Credit Facility Provider for such drawing in such manner as to provide for receipt by such Credit Facility Provider on the same Business Day as the draw is funded.
SECTION 5.03. Principal Fund.
A. Established in Trust . The Trustee shall establish, maintain and hold in trust a separate fund designated as the “ Principal Fund .” Moneys in the Principal Fund shall be held, disbursed, allocated and applied by the Trustee only as provided in this Bond Indenture.
B. Deposits . The Trustee shall deposit the following Revenues in the Principal Fund when and as such Revenues are received:
(1) Loan Principal Payments : the principal component of all Loan Payments, but excluding the principal component of all cash prepayments of Loan Payments made as a result of the redemption of Bonds at the option of the Borrower, which shall be deposited in the Redemption Fund; and
(2) Investment Earnings : all interest, profits and other income received from the investment of moneys in the Principal Fund.
C. Application Generally. All amounts in the Principal Fund shall be used and withdrawn by the Trustee solely to redeem the Bonds pursuant to Section 4.01F , or pay the Bonds at maturity, as provided herein, or to reimburse the Credit Facility Providers (if any) with respect to drawings under the Credit Facility for such purposes. So long as a Credit Facility for the Bonds of any subseries is in effect and has been drawn upon to provide sufficient funds to pay a principal payment due on such Bonds (if Eligible Bonds or Liquidity Facility Bonds not owned by or pledged to the Credit Facility Provider obligated on such Credit Facility) when due as required herein, the Trustee shall (1) apply the amounts so drawn (rather than money in the Principal Fund) to pay the principal or redemption price of such Bonds and (2) use moneys in the Principal Fund deposited by the Borrower to reimburse such Credit Facility Provider for such drawing in such manner as to provide for receipt by such Credit Facility Provider on the same Business Day as the draw is funded.
 
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D. Purchases of Bonds . On each Mandatory Sinking Account Payment date, the Trustee shall apply the Mandatory Sinking Account Payment required to be made on that date in respect of the Bonds of any subseries and maturity to the redemption of such Bonds pursuant to Section 4.01F (or payment thereof at maturity, as the case may be), in the amounts and upon the notice and in the manner provided in Article IV ; provided that, at any time prior to giving such notice of such redemption, the Trustee shall, upon direction of the Borrower, apply such moneys to the purchase of Bonds at public or private sale, as and when and at such prices (including brokerage and other charges, but excluding accrued interest, which is payable from the Interest Fund) as the Borrower may direct, except that the purchase price (excluding accrued interest) shall not exceed 100% of the principal amount of such Bonds. If, during the 12-month period immediately preceding said Mandatory Sinking Account Payment date, the Trustee has purchased Bonds of such subseries and maturity with moneys in the Principal Fund, or, during said period and prior to giving said notice of redemption, the Borrower has deposited such Bonds with the Trustee, or such Bonds were at any time purchased or redeemed by the Trustee from the Redemption Fund and allocable to said Mandatory Sinking Account Payment, such Bonds so purchased, deposited or redeemed shall be applied, to the extent of the full principal amount thereof, to reduce said Mandatory Sinking Account Payment. All Bonds purchased or deposited pursuant to this subsection shall be cancelled and destroyed by the Trustee upon the Order of the Borrower. All Bonds of any subseries and maturity purchased from the Principal Fund or deposited by the Borrower with the Trustee shall be allocated first to the next succeeding Mandatory Sinking Account Payment for such Bonds, then to the remaining Mandatory Sinking Account Payments for such Bonds, unless otherwise provided by Borrower Order.
SECTION 5.04. Redemption Fund.
A. Established in Trust . The Trustee shall establish, maintain and hold in trust a separate fund designated as the “ Redemption Fund. ”
B. Deposits . The Trustee shall deposit the following Revenues in the Redemption Fund when and as such Revenues are received:
(1) Loan Prepayments : the principal component of all cash prepayments of Loan Payments made on account of the redemption of Bonds at the option of the Borrower; and
(2) Investment Earnings : all interest, profits and other income received from the investment of moneys in the Redemption Fund.
C. Application . All amounts deposited in the Redemption Fund shall be used and withdrawn by the Trustee solely for the purpose of redeeming Bonds other than pursuant to Section 4.10F , in the manner and upon the terms and conditions specified in Article IV , at the next succeeding date of redemption for which notice has not been given and at the Redemption Prices then applicable to such redemptions, or to reimburse the Credit Facility Providers (if any) with respect to drawings under the Credit Facilities for such purpose.
SECTION 5.05. Investment of Moneys.
All moneys in any of the funds and accounts established pursuant to this Bond Indenture shall be invested by the Trustee (other than amounts deposited in the Purchase Fund and Credit Facility Fund, which proceeds shall remain uninvested), upon the written direction of the Borrower given at least two days prior to the investment date, solely in Investment Securities. Investment Securities shall be purchased at such prices as the Borrower may direct. All directions of
 
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the Borrower to invest in Investment Securities shall be made subject to the limitations set forth in Section 6.06 , the limitations as to maturities hereinafter in this Section set forth and such additional limitations or requirements consistent with the foregoing as may be established by Request of the Borrower. No Request of the Borrower shall impose any duty on the Trustee inconsistent with its fiduciary responsibilities. In the absence of directions from the Borrower, the Trustee shall invest in Fidelity Institutional Money Market Fund – Prime Money Market Portfolio or in any other Investment Securities specified in Clause (8)  of the definition thereof in Exhibit B specified by the Borrower in writing.
Moneys in all funds and accounts shall be invested in Investment Securities maturing not later than the date on which it is estimated that such moneys will be required for the purposes specified in this Bond Indenture. Investment Securities purchased under a repurchase agreement may be deemed to mature on the date or dates on which the Trustee may deliver such Investment Securities for repurchase under such agreement.
All interest, profits and other income received from the investment of moneys in any fund or account established pursuant to this Bond Indenture shall be deposited when received in such fund or account. Notwithstanding anything to the contrary contained in this paragraph, an amount of interest received with respect to any Investment Security equal to the amount of accrued interest, if any, paid as part of the purchase price of such Investment Security shall be credited to the fund or account for the credit of which such Investment Security was acquired.
Moneys held in the Redemption Fund for the redemption of Bonds shall be invested solely in Investment Securities specified in Clause (1)  or (8)  of the definition thereof in Exhibit B , maturing in such amounts and at such times as are required for such redemption. If the Borrower causes moneys to be deposited with the Trustee as a prepayment of Loan Payments under the Loan Agreement, until such moneys are paid to Bondholders or the Credit Facility Providers (if any), such moneys shall be invested solely in Investment Securities specified in Clause (1)  or (8)  of the definition thereof in Exhibit B .
Investment Securities acquired as an investment of moneys in any fund or account established under this Bond Indenture shall be credited to such fund or account. For the purpose of determining the amount in any such fund or account, all Investment Securities credited to such fund or account shall be valued at the lower of cost (exclusive of accrued interest after the first payment of interest following acquisition) or par value (plus, prior to the first payment of interest following acquisition, the amount of interest paid as part of the purchase price).
The Trustee may commingle any of the funds or accounts established pursuant to this Bond Indenture (other than the Credit Facility Fund, the Rebate Fund and the Purchase Fund) into a separate fund or funds for investment purposes only, provided that all funds or accounts held by the Trustee hereunder shall be accounted for separately as required by this Bond Indenture. The Trustee may act as principal or agent in the making or disposing of any investment. The Trustee may sell at the best price obtainable, or present for redemption, any Investment Securities so purchased whenever it shall be necessary to provide moneys to meet any required payment, transfer, withdrawal or disbursement from the fund or account to which such Investment Security is credited, and, subject to the provisions of Section 8.03 , the Trustee shall not be liable or responsible for any loss resulting from any investment made in accordance with provisions of this Section. Any Investment Securities that are registrable securities shall be registered in the name of the Trustee.
The Trustee is hereby authorized, in making or disposing of any investment permitted by this Section, to deal with itself (in its individual capacity) or with any one or more of its affiliates, whether it or such affiliate is acting as an agent of the Trustee or for any third person or dealing as principal for its own account.
 
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SECTION 5.06. Rebate Fund.
A. Established in Trust; Duties of Trustee . The Trustee shall establish, maintain and hold in trust a separate fund designated as the “ Rebate Fund .” Within the Rebate Fund, the Trustee shall maintain such accounts as shall be specified in writing by the Borrower in order to comply with the Tax Certificate and Agreement. Subject to the transfer provisions provided in Subsection E of this Section, all money at any time deposited in the Rebate Fund shall be held by the Trustee in trust for payment to the federal government of the United States of America the amounts elected or required to be transferred or paid by the Borrower for such purpose pursuant to Section 5.07G of the Loan Agreement. Neither the Issuer nor the Borrower nor the Bondholders shall have any rights in or claim to such money. All amounts deposited into or on deposit in the Rebate Fund shall be governed by this Section, by Section 6.06 and by the Tax Certificate and Agreement (which is incorporated herein by reference). The Trustee shall be deemed conclusively to have complied with such provisions if it follows the written directions of the Borrower, including the Borrower’s supplying all necessary information in the manner provided in the Tax Certificate and Agreement, and shall have no liability or responsibility to enforce compliance by the Borrower or the Issuer with the terms of the Tax Certificate and Agreement.
B. Rebate Fund . Upon the Borrower’s written direction, an amount shall be deposited to the Rebate Fund by the Trustee from deposits by the Borrower, if and to the extent required, so that the balance in the Rebate Fund shall equal the Rebate Amount. Computations of the Rebate Amount shall be furnished by or on behalf of the Borrower in accordance with the Tax Certificate and Agreement.
C. Limited Recourse Against Trustee . The Trustee shall have no obligation to rebate any amounts required to be rebated pursuant to this Section, other than from moneys held in the Rebate Fund or provided to it by the Borrower.
D. Investment . At the written direction of the Borrower, the Trustee shall invest all amounts held in the Rebate Fund in Investment Securities, subject to the restrictions set forth in the Tax Certificate and Agreement. The Trustee shall not be liable for any consequences arising from such investment. Money shall not be transferred from the Rebate Fund except as provided in Subsection E of this Section.
E. Payment to U.S. Treasury . Upon receipt of the Borrower’s written directions, the Trustee shall remit part or all of the balances in the Rebate Fund to the United States of America, as so directed. In addition, if the Borrower so directs, the Trustee will deposit money into or transfer money out of the Rebate Fund from or into such accounts or funds as directed by the Borrower’s written directions. Any funds remaining in the Rebate Fund after redemption and payment of all of the Bonds and payment and satisfaction of any Rebate Amount, or provision made therefor satisfactory to the Trustee, and payment of any amount then owed to the Trustee, shall be withdrawn and remitted to the Borrower.
F. Survival of Obligations . Notwithstanding any other provision of this Bond Indenture, including in particular Article X , the obligation to remit the Rebate Amounts to the United States of America and to comply with all other requirements of this Section, Section 6.06 and the Tax Certificate and Agreement shall survive the defeasance or payment in full of the Bonds.
 
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SECTION 5.07. Draws or Claims Under Credit Facilities .
A. Trustee to Draw or Claim Under Credit Facility . Whenever a Credit Facility for the Bonds of a subseries is in effect hereunder, the Trustee shall claim or draw money thereunder as follows:
(1) Principal, Premium and Interest . The Trustee shall present all notices, drafts, demands, claims, and other documents required by such Credit Facility (in the manner and to the extent therein permitted and by the time required thereby) prior to the applicable Draw Deadline to draw or claim funds thereunder in an amount sufficient, and by the Bank Settlement Deadline (to the extent therein permitted), to pay the principal of (and premium, if any) and interest on ( but not the Purchase Price of) such Bonds when due (whether by reason of the Maturity Date, call for redemption, or declaration of acceleration thereof or of an Interest Payment Date therefor), but in every case only in respect of Eligible Bonds and (if the Liquidity Facility Provider (if any) for such Bonds is not a Credit Facility Provider for such Bonds) Liquidity Facility Bonds.
(2) Recoverable Payments . If (a) any Substitute Credit Facility for the Bonds of such subseries accepted by the Trustee pursuant to Section 5.09 and in effect hereunder at the time of any payment of principal of (or premium, if any) or interest on any Bond may not be drawn or made claim upon to make such payment in respect of Eligible Bonds and (if the Liquidity Facility Providers (if any) for such Bonds are not also the Credit Facility Provider(s) for such Bonds) Liquidity Facility Bonds of such subseries except to the extent of insufficient money in the Interest Fund, Principal Fund, or Redemption Fund, (b) such payment is made from money other than Available Money or funds advanced under such Credit Facility, and (c) prior to, on, or within 123 days after the date of such payment a petition for relief in respect of the Borrower or the Issuer, as debtor, is filed under the Bankruptcy Code, then (i) if a court of competent jurisdiction thereafter enters an order or decree that (A) is unappealable or as to which the time to appeal therefrom has expired with no appeal therefrom having been taken and (B) finds such payment to be a voidable transfer under section 544, 547, 548, or 549 (either directly or by application of section 550) of the Bankruptcy Code, or under any similar state or federal law regarding creditors’ rights, insolvency, or fraudulent conveyance, the Trustee shall, promptly after being notified of such order or decree, present all notices, drafts, demands, claims, and other documents required by such Credit Facility (in the manner and to the extent therein permitted and by the time required thereby) to draw or claim funds thereunder sufficient to pay or reimburse the Bondholders for the amount of such payment so held to be voidable and shall promptly apply such funds for such purpose and (ii) if such Credit Facility is to expire prior to the dismissal of the proceeding commenced by such petition and prior to the entry of any such decree or order, the Trustee shall, on the fifth day prior to expiration thereof, present all notices, drafts, demands, claims, and other documents (in the manner and to the extent therein permitted and by the time required thereby) to draw or claim funds thereunder sufficient to establish a reserve for the payment of any such voided transfer in an amount equal to the entire sum of such payment and, upon the entry of any order or decree described in Clause (i) , apply such reserve for the purpose therein described to the extent such payment is voided and shall remit the balance (and the entire reserve if such proceeding is dismissed without the entry of such an order or decree) to the Credit Facility Provider obligated thereon.
B. Application of Funds . All funds drawn or claimed under any Credit Facility (other than a Credit Facility in the form of a policy of financial guaranty or municipal bond insurance) by the Trustee shall be credited to the applicable account of the Credit Facility Fund and applied in accordance with Section5.10 .
 
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C. Agency . In making draws or claims for payment under the Credit Facility for the Bonds of a subseries, the Trustee shall act on behalf and for the account and benefit of the Holders of the Bonds of such subseries, and not on behalf, for the account or benefit, or subject to the control of the Issuer or the Borrower.
SECTION 5.08. Release of Credit Facilities .
The Trustee shall release and return the Credit Facility for the Bonds of a subseries to the Credit Facility Provider obligated thereon (or, in the case of Clause E , consent to the assignment thereof by such Credit Facility Provider) on Borrower Request:
A. Defeasance : when there are no Outstanding Bonds of such subseries, provided that such Credit Facility provides for its release and return upon defeasance by its terms; or
B. Expiration or Termination : when such Credit Facility has expired or been terminated in accordance with its terms; or
C. Successor Trustee : when a successor Trustee has been appointed and qualified pursuant to Article VIII , and a new Credit Facility for the Bonds of such series has been issued to such successor in substitution for such Credit Facility; or
D. Reduction of Amount : when the maximum aggregate credit available under such Credit Facility is reduced pursuant to the terms thereof and such Credit Facility Provider has issued a new Credit Facility to the Trustee in substitution for such Credit Facility in the stated amount of the maximum aggregate credit available under such Credit Facility as so reduced but otherwise identical to the Credit Facility to be released; or
E. Replacement : at the close of business on a day when there is in effect a Substitute Credit Facility for the Bonds of such subseries in substitution for such Credit Facility (or an assignment of such Credit Facility) issued to and accepted by the Trustee upon Borrower Order given in accordance with Section 5.09 not less than five Business Days (or such shorter period acceptable to the Trustee) for the Bonds of such subseries prior to the date by which the Trustee must give notice to Bondholders pursuant to Section 4.10A of the resulting mandatory tender of Bonds of such subseries for purchase pursuant to such Section, if (1) such day is a Business Day for the Bonds of such subseries and, if any Bonds of such subseries are in a Commercial Paper Mode, Term Rate Mode, R-FLOATs Mode, Indexed Mode, Stepped Coupon Mode, or Fixed Rate Mode, such day is also the first Business Day therefor in an Interest Period for each such Bond or part thereof in each such Mode or a Business Day on which such Bonds may be redeemed at a redemption price equal to 100% of principal amount plus accrued interest, if any, and (2) the Purchase Price of all Bonds of such subseries tendered or deemed tendered for purchase in respect of such release or assignment pursuant to Section 4.10A has been paid or duly provided for from proceeds of remarketing or money drawn under the Credit Facility to be replaced; or
F. Optional Release : at the close of business on a day at least five Business Days (or such shorter period acceptable to the Trustee) for the Bonds of such subseries, plus the minimum number of days’ notice which the Trustee must give to
 
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Bondholders pursuant to Section 4.10A of the resulting mandatory tender of Bonds of such subseries for purchase pursuant to such Section, after the Borrower, by Borrower Request, shall have provided that such Credit Facility shall then be released, if (1) such day is a Business Day for the Bonds of such subseries and, if any such Bonds are in a Commercial Paper Mode, Term Rate Mode, R-FLOATs Mode, Indexed Mode, Stepped Coupon Mode, or Fixed Rate Mode, such day is also the first Business Day therefor in an Interest Period for each such Bond or part thereof in each such Mode or a day on which such Bonds may be redeemed at the option of the Borrower at a redemption price equal to 100% of principal amount plus accrued interest, if any, and (2) the Purchase Price of all Bonds of such subseries tendered or deemed tendered for purchase in respect of such release pursuant to Section 4.10A has been paid or duly provided for;
and not otherwise; provided , however , that, if such Credit Facility Provider is also a Liquidity Facility Provider for the Bonds of such subseries, no such release to such Person shall be effected by the Trustee pursuant to Clause E or F unless the Liquidity Facility for such Bonds shall also be released to such Person pursuant to Section 4.17 or such Person consents in writing to such release or assignment of such Credit Facility, and, if such Credit Facility Provider is not also the Liquidity Facility Provider for the Bonds of such subseries, no such release or assignment shall be effected by the Trustee pursuant to Clause E or F unless such Liquidity Facility Provider (if any) consents in writing to such release or assignment of such Credit Facility; and provided further that no Credit Facility shall be released without the written consent of the Credit Facility Provider obligated thereon unless all obligations due and owing to such Credit Facility Provider pursuant to such Credit Facility or its Reimbursement Agreement have been paid in full.
The Trustee shall give notice, pursuant to Section 4.10A , of the mandatory tender of Bonds of the applicable subseries, prior to the date of any release pursuant to Clause B , E , or F of this Section.
SECTION 5.09. Acceptance of and Amendments to Credit Facility .
Each Credit Facility for the Bonds of a subseries accepted by the Trustee in substitution for a Credit Facility then in effect and each extension, amendment or assignment of any Credit Facility for the Bonds of a subseries then in effect,
A. Stated Amount : shall provide for draws or claims sufficient to pay the principal of and interest on the Bonds of such subseries when due up to the Required Stated Amount therefor, and
B. Approval : shall be consented to in writing by the Liquidity Facility Provider for the Bonds of such subseries if a Liquidity Facility is then in effect for such Bonds and not then to be released.
The Trustee shall accept a Credit Facility for the Bonds of a subseries, or an extension, modification, or amendment of the Credit Facility for the Bonds of a subseries, or approve an assignment thereof by the Credit Facility Provider obligated thereon, upon Borrower Order with the written consent of the Liquidity Facility Provider (if any) for the Bonds of such subseries, but only (except in the case of an extension without amendment) upon receipt by the Trustee and by any Liquidity Facility Provider for the Bonds of such subseries which is not obligated on such alternate, extending, modifying, amending, or assigned Credit Facility of a Favorable Opinion of Bond Counsel and an Opinion of Counsel stating that (1) such Credit Facility, extension, modification, or amendment was issued or assignment was made in accordance with the conditions of this Section and (2) such
 
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Credit Facility, as amended, modified, extended, or assigned, constitutes a legal, valid, and binding obligation of the obligor thereon and is enforceable in accordance with its terms ( except to the extent that the enforceability thereof may be limited by bankruptcy, insolvency, reorganization, moratorium, or other laws for the relief of debtors other than the Issuer or the Borrower and by general principles of equity which permit the exercise of judicial discretion). The Trustee shall not be required to accept (or cause to be accepted) any Credit Facility, extension, or amendment or to consent to any assignment thereof which materially adversely affects the rights, duties, or immunities of the Trustee or its agents or the Tender Agent hereunder.
SECTION 5.10. Credit Facility Fund .
A. Creation in Trust . The Trustee shall establish and maintain at all times while a Credit Facility (other than a Credit Facility in the form of municipal bond or financial guaranty insurance) is in effect hereunder, for the account of the Holders of Bonds for the payment of principal of and interest on which money in such Fund may be applied hereunder, a special fund designated as the “ Credit Facility Fund ” ) and, within such fund, a separate account in respect of the Bonds of each subseries, if any. The money deposited to any account or subaccount of the Credit Facility Fund, together with all investments thereof and investment income therefrom, shall be held in trust separate and apart from all other funds held hereunder and applied solely as provided in this Section and Section 5.07A(2) .
B. Deposits. The Trustee shall deposit to the credit of the applicable account of the Credit Facility Fund immediately upon receipt all amounts drawn or claimed by the Trustee under a Credit Facility (other than a Credit Facility in the form of financial guaranty or municipal bond insurance) pursuant to Section 5.07 . No other funds shall be deposited to the Credit Facility Fund.
C. Application. The Trustee shall apply the money in the applicable account of the Credit Facility Fund:
(1) Bond Payments : to set aside on each Maturity Date for Bonds, each date for the redemption of Bonds pursuant to Section 4.01 , each date on which the principal of and accrued interest on the Bonds has been declared to be due and payable immediately pursuant to Section 7.02 , and each Interest Payment Date for Bonds, while a Credit Facility for such Bonds is in effect hereunder, (and, if the Securities Depository is the Holder of such Bonds, transfer to it by the DTC Settlement Deadline) an amount sufficient to pay the principal of and premium, if any, and interest on such Bonds then due, and
(2) Turnover Order : in the case of amounts drawn or claimed pursuant to Section 5.07A(2) , in accordance with the provisions of such Section,
provided that no such application shall be made on Bonds of a subseries other than Eligible Bonds and Liquidity Facility Bonds, if the Liquidity Facility Provider (if any) for such Bonds is not also the Credit Facility Provider for such Bonds.
SECTION 5.11. Security for Deposits .
All money held by the Trustee or the Tender Agent hereunder in excess of the amount guaranteed by the Federal Deposit Insurance Corporation or other federal agency shall, unless the unsecured general obligations of such Person are rated in either of the two highest rating categories (without regard to subcategories) by each Rating Service, be continuously secured by the Trustee, for the benefit of the owners of such money, the Bondholders, and the Credit Facility Providers in any
 
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manner as may then be required or permitted by applicable state or federal laws and regulations regarding the security for, or granting a preference in the case of, the deposit of trust funds; provided, however , that it shall not be necessary for any such Person to give such security for the deposit with it of any money to be used to pay principal, premium, if any, or interest which is at the time of such deposit due and payable with respect to any Bonds, or for the Trustee to give security for any money which shall be represented by obligations purchased under the provisions of Section 5.05 as an investment of such money. Any banking account (other than an Investment Security) to which money credited to the Interest Fund, the Principal Fund, the Redemption Fund, the Credit Facility Fund, or the Purchase Fund is credited shall be maintained (1) in the name of the Trustee and (2) with a federal or state-chartered depository institution or trust company that has an S&P short-term debt rating of at least “A-2” or, if no short-term debt rating, a long-term debt rating of “BBB+”. In the event that any such account no longer satisfies Clause (2)  of the preceding sentence, the Trustee shall promptly (and, in any case within not more than 60 calendar days) move the balance of such account to another account with another financial institution that satisfies such Clause (2) .
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ARTICLE VI
PARTICULAR COVENANTS
SECTION 6.01. Punctual Payment.
The Issuer shall punctually cause to be paid the principal of, Redemption Price, if any, and interest on the Bonds, in strict conformity with the terms of the Bonds and of this Bond Indenture, according to the true intent and meaning thereof, but only out of Revenues and other assets pledged for such payment as provided in this Bond Indenture.
SECTION 6.02. Extension of Payment of Bonds.
The Issuer shall not directly or indirectly extend or assent to the extension of the maturity of any of the Bonds or the time of payment of any claims for interest by the purchase or funding of such Bonds or claims for interest or by any other arrangement and in case the maturity of any of the Bonds or the time of payment of any such claims for interest shall be extended, such Bonds or claims for interest shall not be entitled, in case of any default hereunder, to the benefits of this Bond Indenture, except subject to the prior payment in full of the principal of all of the Bonds then Outstanding and of all claims for interest thereon that shall not have been so extended. Nothing in this Section shall be deemed to limit the right of the Issuer to issue bonds for the purpose of refunding any Outstanding Bonds, and such issuance shall not be deemed to constitute an extension of maturity of Bonds.
SECTION 6.03. Against Encumbrances.
The Issuer shall not create, or permit the creation of, any pledge, lien, charge or other encumbrance upon the Revenues and other assets pledged or assigned under this Bond Indenture while any of the Bonds are Outstanding, except the pledge and assignment created by this Bond Indenture. Subject to this limitation, the Issuer expressly reserves the right to enter into one or more other indentures for any of its corporate purposes, including other programs under the Act, and reserves the right to issue other obligations for such purposes.
SECTION 6.04. Power to Issue Bonds and Make Pledge and Assignment.
The Issuer is duly authorized pursuant to law to issue the Bonds and to enter into this Bond Indenture and to pledge and assign the Revenues and other assets purported to be pledged and assigned, respectively, under this Bond Indenture in the manner and to the extent provided in this Bond Indenture. The Issuer and Trustee shall at all times, to the extent permitted by law, defend, preserve and protect said pledge and assignment of Revenues and other assets and all the rights of the Bondholders under this Bond Indenture against all claims and demands of all Persons whomsoever.
SECTION 6.05. Accounting Records and Financial Statements.
A. Trustee Accounts . The Trustee shall at all times keep, or cause to be kept, proper books of record and account, prepared in accordance with the Trustee’s accounting practices for books of record and account relating to similar trust accounts, in which complete and accurate entries shall be made of all transactions relating to the proceeds of Bonds, the Revenues, the Loan Agreement and all funds and accounts established pursuant to this Bond Indenture. Such books of record and account shall be available for inspection by the Issuer, the Borrower, the Liquidity Facility Providers (if any), the Credit Facility Providers (if any), the Remarketing Agents (if any), and any Bondholder, or his agent or representative duly authorized in writing, at reasonable hours and under reasonable circumstances.
 
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B. Reports . The Trustee shall file and furnish on or before the 15th day of each month to the Borrower (and to the Issuer, the Credit Facility Providers (if any), the Liquidity Facility Providers (if any), the Remarketing Agents (if any) and each Bondholder who shall have filed his or her name and address with the Trustee for such purpose, if requested by such Person) a complete financial statement (which need not be audited) covering receipts, disbursements, allocation and application of Revenues and any other moneys (including proceeds of Bonds) in any of the funds and accounts established pursuant to this Bond Indenture for the immediately preceding month; that the Trustee shall not be required to deliver an accounting for any fund or account that (1) has a balance of $0.00 and (2) has not had any activity since the last reporting date. To the extent that any regulation of the Comptroller of the Currency or other applicable regulatory agency grants to the Issuer or Borrower the right to receive brokerage confirmations of security transactions as they occur, the Issuer waives (and by approving this Bond Indenture the Borrower waives) receipt of such confirmations. The Trustee shall furnish to the Borrower a monthly statement that includes details of all investment transactions made by the Trustee.
SECTION 6.06. Tax Covenants.
A. General. The Issuer shall not knowingly take any action, or omit to take any action within its control, which, if taken or omitted, respectively, would cause the interest on any Common Issue Bond to become includable in the gross income, as defined in section 61 of the Code, of the owners thereof for federal income tax purposes (except during any period when such Common Issue Bond is owned by a “substantial user” of a Project or a “related person” within the meaning of section 147(a) of the Code), and, without limiting the generality of the foregoing, the Issuer will observe and perform each provision of this Section, unless and until a Favorable Opinion of Bond Counsel shall have been delivered to the Trustee. For purposes of this Section, the Issuer’s compliance shall be based solely on acts and omissions of the Issuer, and no acts, omissions, or directions of the Borrower, the Trustee, or any other Person shall be attributable to the Issuer.
B. Not to Invest at Higher Yield. The Issuer shall not direct or itself make any investment of the proceeds of the Common Issue Bonds or any other funds of the Issuer in a manner which would result in constituting any such Common Issue Bonds “ arbitrage bonds” within the meaning of section 148 of the Code or “ hedge bonds” within the meaning of section 149 of the Code.
In the event the Issuer or the Borrower is of the opinion that it is necessary to restrict or limit the yield on the investment of any money paid to or held by the Trustee hereunder in order to avoid classification of any Common Issue Bonds as “ arbitrage bonds” within the meaning of section 148 of the Code, the Issuer or the Borrower may issue to the Trustee a written instrument to such effect (along with appropriate written instructions), in which event the Trustee will comply with such instrument and instructions, irrespective of whether the Trustee shares such opinion. The Trustee may conclusively rely upon any such instructions and shall be responsible for no loss resulting from investment of any money held hereunder in accordance with such instructions.
C. Not Federally Guaranteed. The Issuer shall not direct or itself take any action, or omit to take any action within its control, which, if taken or omitted, respectively, would cause any Common Issue Bond to be “ federally guaranteed” within the meaning of section 149(b) of the Code.
 
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D. Information Report. The Issuer shall timely file (or cause to be filed) with the Secretary of the Treasury the information provided by the Borrower and required by section 149(e) of the Code with respect to the Common Issue Bonds in such form and at such place as such Secretary may prescribe.
E. Rebate of Arbitrage Profits. The Issuer shall pay to the United States of America, but solely from and to the extent of funds advanced by the Borrower for such purpose pursuant to the Loan Agreement, the amounts and at the times described in Section 5.06 , in such manner and accompanied by such forms or other information as is or may be required by section 148(f) of the Code and the Regulations and rulings thereunder. The Issuer shall execute each Internal Revenue Service Form 8038-T delivered to the Trustee by the Borrower, unless such execution is not required by the Regulations or the instructions issued by the Internal Revenue Service for such forms. The Trustee shall not be responsible for the accuracy of any such form, nor shall the Issuer be responsible for the accuracy of any such form delivered by the Borrower.
SECTION 6.07. Enforcement and Amendment of Loan Agreement.
A. Trustee to Enforce . Subject to the provisions of Section 7.06 with respect to the control of remedial proceedings by the Credit Facility Providers (if any) or the Bondholder Representative (if any), the Trustee shall promptly collect all amounts due from the Borrower pursuant to the Loan Agreement, shall perform all duties imposed upon it pursuant to the Loan Agreement and shall diligently enforce, and take all steps, actions and proceedings reasonably necessary for the enforcement of all of the rights of the Issuer assigned to it hereunder and all of the obligations of the Borrower relating thereto.
B. Limitations on Amendments . The Issuer may amend, modify or terminate any of the terms of the Loan Agreement, or consent to any such amendment, modification or termination, when the written consent of (i) the Credit Facility Providers (if any) (provided that a Credit Facility is then in effect or any amounts are owing to a Credit Facility Provider and such Credit Facility Provider is not in default under its payment obligations under a Credit Facility) or (ii) the Holders of a majority in principal amount of the Bonds then Outstanding or the Trustee (if a Credit Facility is no longer in effect or the Credit Facility Providers (if any) are then in default under their payment obligations under the Credit Facilities) and the Liquidity Facility Providers (if any) or the Bondholder Representative (if any) to such amendment, modification or termination have been filed with the Trustee. The Trustee shall give such written consent only if (1) the Trustee receives an Opinion of Counsel to the effect that such amendment, modification or termination will not materially adversely affect the interests of the Bondholders or result in any material impairment of the security hereby given for the payment of the Bonds; or (2) the Trustee first obtains the written consent of the Holders of a majority in principal amount of the Bonds then Outstanding or the Bondholder Representative (if any) to such amendment, modification or termination; or (3) even if consent of Bondholders would otherwise be required, (i) if such amendment will be effective upon the remarketing of the Bonds following the mandatory tender of the Bonds pursuant to Sections 4.07 , 4.08, 4.09 or 4.10 or (ii) with respect to Bonds in a Daily Mode, a Weekly Mode or an R-FLOATs Mode (except during any Non-Remarketing Period) only, if notice of such proposed modification or amendment is given to the Holders of such Bonds (in the same manner as notices of redemption are given) at least 15 days before the effective date thereof, and on or before such effective date, the Holders have the right to demand purchase of their Bonds pursuant to Section 4.06, provided that, on or prior to the effective date of such modification or amendment, the Trustee shall obtain a Favorable Opinion of Bond Counsel; and provided further that, in the cases described in clauses (1), (2)  or (3)  of this Subsection B , no such amendment, modification or termination shall reduce the amount of Loan Payments to be made to the Issuer or the Trustee by the Borrower pursuant to the Loan Agreement, or extend the time for making such payments, without the written consent of all of the Holders of the Bonds then Outstanding.
 
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SECTION 6.08. Waiver of Laws.
The Issuer shall not at any time insist upon or plead in any manner whatsoever, or claim or take the benefit or advantage of, any stay or extension law now or at any time hereafter in force that may affect the covenants and agreements contained in this Bond Indenture or in the Bonds, and all benefit or advantage of any such law or laws is hereby expressly waived by the Issuer to the extent permitted by law.
SECTION 6.09. Further Assurances.
The Issuer will make, execute and deliver any and all such further indentures, instruments and assurances as may be reasonably necessary or proper to carry out the intention or to facilitate the performance of this Bond Indenture and for the better assuring and confirming unto the Holders of the Bonds of the rights and benefits provided in this Bond Indenture.
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ARTICLE VII
EVENTS OF DEFAULT AND REMEDIES OF BONDHOLDERS
SECTION 7.01. Events of Default.
Any one or more of the following events shall be an Event of Default:
A . Principal Default : default in the due and punctual payment of the principal or Redemption Price of any Bond when and as the same shall become due and payable;
B . Interest Default : default in the due and punctual payment of any installment of interest on any Bond when and as the same shall become due and payable;
C . Purchase Price Default : default in the payment from any source (when the same shall become due and payable) of the Purchase Price of any of the Bonds tendered or deemed tendered for purchase pursuant to this Bond Indenture;
D . Covenant Default : default by the Issuer or the Borrower in the observance of any of the other covenants, agreements or conditions on its part contained in this Bond Indenture or the Bonds or in the Loan Agreement, respectively, if such default shall have continued for a period of 60 days after written notice thereof, specifying such default and requiring the same to be remedied, shall have been given to the Issuer or the Borrower, respectively, by the Trustee, or to the Issuer or the Borrower, respectively, and the Trustee by any Credit Facility Provider, the Bondholder Representative (if any) or the Holders of not less than a majority (if a Bondholder Agreement is in effect) and otherwise 25% in aggregate principal amount of the Bonds at the time Outstanding;
E. Credit Facility Provider Notice : receipt by the Trustee of notice from the Credit Facility Provider for the Bonds of a subseries that an Event of Default (as defined in its Reimbursement Agreement) has occurred under such Reimbursement Agreement and requesting acceleration of the Bonds of such subseries pursuant to Section 7.02 ;
F. Involuntary Bankruptcy : the filing of a petition for relief against the Issuer or the Borrower or any guarantor of the Bonds, as debtor, under the Bankruptcy Code or any other applicable federal or state law of similar import, or the entry of a decree or order by a court having jurisdiction in the premises appointing a custodian, receiver, liquidator, assignee, trustee, sequestrator, or other similar official of or for the Issuer or the Borrower, or ordering the winding up or liquidation of the affairs of the Issuer or the Borrower, and the continuance of the case commenced by such petition or any such decree or order unstayed and in effect for a period of 90 consecutive days, unless, in the case of any such action in respect of the Issuer, such decree or order has been limited so as to remove the Revenues and other property of the Issuer assigned and pledged hereunder from the control, supervision, and jurisdiction of the court entering such decree or order and of such custodian, receiver, liquidator, assignee, trustee, sequestrator, or other similar official by the end of such period;
G . Voluntary Bankruptcy : the commencement by the Issuer or the Borrower or any guarantor of the Bonds of a voluntary case under the Bankruptcy Code or any other applicable federal or state law of similar import, or the consent or acquiescence by the Issuer or the Borrower to the commencement of such a case under the Bankruptcy Code or any such law or to the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee, sequestrator, or other similar official of the Issuer or the Borrower, or the
 
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making by the Issuer or the Borrower of an assignment for the benefit of creditors, or the admission by the Issuer or the Borrower in writing of its inability to pay its debts as they become due, or the taking of corporate action by the Issuer or the Borrower in furtherance of any such action and, in the case of any such action in respect of the Issuer, a court shall not have limited such case, petition, or possession so as to remove the Revenues and the other property of the Issuer pledged and assigned hereunder from the control, supervision, and jurisdiction of such court or custodian, receiver, liquidator, assignee, trustee, sequestrator, or other similar official within 90 days after such commencement, consent, or acquiescence; or
H . Cross Default : while a Bondholder Agreement is in effect, receipt by the Trustee of notice from the Bondholder Representative or from a majority in aggregate principal amount of the Holders of the Bonds that an Event of Default (as defined in the Bondholder Agreement) has occurred and is continuing under the Bondholder Agreement and requesting acceleration of the Bonds pursuant to Section 7.02 ;
The Issuer hereby grants to the Borrower full authority for the account of the Issuer to perform any covenant or obligation alleged in any notice given pursuant to Clause D of this Section to be in default or breached, in the name and stead of the Issuer, with full power to do any and all things and acts to the same extent that the Issuer could do and perform any such things and acts and with power of substitution, subject to Section 11.01 .
SECTION 7.02. Acceleration of Maturities.
Upon an Event of Default described in Section 7.01F or 7.01G in respect of the Borrower or any guarantor of the Bonds (except when a Credit Facility is in effect hereunder), the principal of and accrued interest on the Bonds shall become automatically due and payable immediately. During the continuance of any such Event of Default at any other time or any other Event of Default described in Section 7.01 (other than Clause E or H thereof), unless the principal of all the Bonds shall have already become due and payable, the Trustee, upon the written request of the Credit Facility Provider (if any), the Bondholder Representative (if any) or the Holders of not less than a majority in aggregate principal amount (if a Bondholder Agreement is in effect) and otherwise 66-2/3% in aggregate principal amount of the Bonds at the time Outstanding of all subseries for which no Credit Facility is in effect hereunder or in respect of which the Credit Facility Provider obligated thereon is in default thereunder, or upon the occurrence of an Event of Default described in Section 7.01E or 7.01H in respect of the Bonds in any subseries (whether or not the Trustee has received indemnity), shall, promptly upon such occurrence, by notice in writing to the Issuer, the Borrower, the Bondholder Representative (if any), the Credit Facility Providers (if any) and the Liquidity Facility Providers (if any), declare the principal of all the Bonds of such subseries then Outstanding, and the interest accrued thereon, to be due and payable immediately, and upon any such declaration the same shall become and shall be immediately due and payable, anything in this Bond Indenture or in the Bonds contained to the contrary notwithstanding. Upon any such declaration in respect of the Bonds of any subseries the Trustee shall promptly draw upon any then existing Credit Facility for such Bonds in accordance with the terms thereof and apply the amount so drawn to pay the principal of and interest on such Bonds so declared to be due and payable in accordance with and subject to Section 5.10 . Interest on the Bonds of such subseries shall cease to accrue as of the date of such declaration. The Trustee, as promptly as feasible following its knowledge of the automatic acceleration of the Bonds or its declaration of an acceleration of Bonds, shall notify the Holders of such Bonds on the date of acceleration and the cessation of accrual of interest on such Bonds in the same manner as for a notice of redemption; provided, however , that failure to give such notice shall not affect the acceleration of such Bonds.
 
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The preceding paragraph, however, is subject to the condition that if, at any time after the principal of the Bonds of any subseries shall have been so declared due and payable, and before any judgment or decree for the payment of the moneys due shall have been obtained or entered as hereinafter provided, and before the Credit Facility for such Bonds has been drawn upon in accordance with its terms and honored, there shall have been deposited with the Trustee a sum sufficient to pay all the principal of such Bonds matured prior to such declaration and all matured installments of interest (if any) upon all such Bonds, and the reasonable fees and expenses of the Trustee, including reasonable fees and expenses of its attorneys, and any and all other defaults known to the Trustee (other than in the payment of principal of and interest on such Bonds due and payable solely by reason of such declaration) shall have been made good or cured to the satisfaction of the Trustee and such Credit Facility Provider (if any) for such Bonds or the Bondholder Representative (if any) or provision deemed by the Trustee and such Credit Facility Provider (if any) or the Bondholder Representative (if any) to be adequate shall have been made therefor, or, in the case of an Event of Default described in Section 7.01E or 7.01H , the Credit Facility Provider (if any) or the Bondholder Representative (if any) shall have rescinded any notice described in in such Section by written instrument delivered to the Trustee, then, and in every such case, such Credit Facility Provider (if any) or the Bondholder Representative (if any) or the Holders of at least a majority in aggregate principal amount of the Bonds of such subseries then Outstanding, with the written consent of such Credit Facility Provider (if any) or the Bondholder Representative (if any) and written confirmation that such Credit Facility (if any) for such Bonds has been reinstated to the Required Stated Amount, by written notice to the Issuer and to the Trustee, may, on behalf of the Holders of all such Bonds, rescind and annul such declaration and its consequences and waive such default; but no such rescission and annulment shall extend to or shall affect any subsequent default, or shall impair or exhaust any right or power consequent thereon. Notwithstanding any other provision of this Bond Indenture except as provided in the following sentence, the Trustee may not exercise any remedy in respect of the Bonds of any subseries in the event of a default under Section 7.01 (other than Clause E or H thereof) without the written consent of the Credit Facility Provider (if any) for such Bonds, so long as a Credit Facility is in effect for such Bonds and such Credit Facility Provider is not in default under its payment obligations under the Credit Facility. The Trustee may exercise any and all remedies under this Bond Indenture and the Loan Agreement (except acceleration) to collect any fees or expenses due from the Borrower to the Trustee or the Issuer without obtaining the consent of any Credit Facility Providers (if any); provided that the Trustee shall first provide written notice to the Credit Facility Providers (if any) of its intent to exercise such remedies and provide the Credit Facility Providers (if any) with an opportunity to cure any failure of the Borrower with respect to such fees, expenses and indemnification prior to exercising any such remedy.
SECTION 7.03. Institution of Legal Proceedings by Trustee.
Subject to the provisions of Section 7.06 , if an Event of Default shall occur and be continuing, the Trustee in its discretion may, and upon the written request of the Bondholder Representative (if any) or the Credit Facility Provider (if any) (if the Credit Facility is in effect and the Credit Facility Provider (if any) is not in default under its payment obligations under the Credit Facility) or the Holders of a majority in aggregate principal amount (if a Bondholder Agreement is in effect) and otherwise two-thirds in principal amount of the Bonds then Outstanding and upon being indemnified to its satisfaction therefor pursuant to Section 8.03(D) shall, proceed to protect or enforce its rights or the rights of the Holders of Bonds under this Bond Indenture and the Loan Agreement by a suit in equity or action at law, either for the specific performance of any covenant or agreement contained herein or therein, or in aid of the execution of any power herein or therein granted, or by mandamus or other appropriate proceeding for the enforcement of any other legal or equitable remedy as the Trustee shall deem most effectual in support of any of its rights or duties hereunder.
 
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SECTION 7.04. Application of Revenues and Other Funds After Default .
If an Event of Default shall occur and be continuing, all Revenues and any other funds then held or thereafter received by the Trustee under any of the provisions of this Bond Indenture (other than payments received from a Credit Facility Provider and moneys required to be deposited in the Rebate Fund and subject to the requirements of Section 11.10 relating to the use of moneys held for particular Bonds) shall be applied by the Trustee as follows and in the following order:
A . Trustee Expenses : To the payment of any expenses necessary in the opinion of the Trustee to protect the interests of the Holders of the Bonds and payment of reasonable charges and expenses of the Trustee (including reasonable fees and disbursements of its counsel) incurred in and about the performance of its powers and duties under this Bond Indenture; and
B . Bond Payment : To the payment of the principal or Redemption Price of and interest then due on the Bonds (upon presentation of the Bonds to be paid, and stamping thereon of the payment if only partially paid, or surrender thereof if fully paid) subject to the provisions of this Bond Indenture (including Section 6.02 ), as follows:
(1) Before Acceleration : Unless the principal of all of the Bonds of the applicable subseries shall have become or have been declared due and payable,
First : To the payment to the Persons entitled thereto of all installments of interest thereon then due in the order of the maturity of such installments, and, if the amount available shall not be sufficient to pay in full any installment or installments maturing on the same date, then to the payment thereof ratably, according to the amounts due thereon, to the Persons entitled thereto, without any discrimination or preference; and
Second : To the payment to the Persons entitled thereto of the unpaid principal or Redemption Price of any such Bonds that shall have become due, whether at maturity or by call for redemption, with interest on the overdue principal at the rate borne by such Bonds, and, if the amount available shall not be sufficient to pay in full all such Bonds, together with such interest, then to the payment thereof ratably, according to the amounts of principal or Redemption Price due thereon on such date to the Persons entitled thereto, without any discrimination or preference.
(2) Upon Acceleration : If the principal of all of the Bonds of the applicable subseries shall have become or have been declared due and payable, to the payment of the principal and interest then due and unpaid upon such Bonds, with interest on the overdue principal at the rate borne by such Bonds, and, if the amount available shall not be sufficient to pay in full the whole amount so due and unpaid thereon, then to the payment thereof ratably, without preference or priority of principal over interest, or of interest over principal, or of any installment of interest over any other installment of interest, or of any such Bond over any other such Bond, according to the amounts due respectively for principal and interest, to the Persons entitled thereto without any discrimination or preference.
 
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SECTION 7.05. Trustee to Represent Bondholders.
The Trustee is hereby irrevocably appointed (and the successive respective Holders of the Bonds, by taking and holding the same, shall be conclusively deemed to have so appointed the Trustee) as trustee and true and lawful attorney-in-fact of the Holders of the Bonds for the purpose of exercising and prosecuting on their behalf such rights and remedies as may be available to such Holders under the provisions of the Bonds, this Bond Indenture, the Loan Agreement and applicable provisions of any other law. Upon the occurrence and continuance of an Event of Default or other occasion giving rise to a right in the Trustee to represent the Bondholders, the Trustee in its discretion may, and upon the written request of any Credit Facility Provider or the Bondholder Representative (if any) or the Holders of not less than a majority in aggregate principal amount (if a Bondholder Agreement is in effect) and otherwise 25% in aggregate principal amount of the Bonds then Outstanding, with the consent of the Credit Facility Providers (if any), and upon being indemnified to its satisfaction therefor, shall, proceed to protect or enforce its rights or the rights of such Holders and the Credit Facility Providers (if any) by such appropriate action, suit, mandamus or other proceedings as it shall deem most effectual to protect and enforce any such right, at law or in equity, either for the specific performance of any covenant or agreement contained herein, or in aid of the execution of any power herein granted, or for the enforcement of any other appropriate legal or equitable right or remedy vested in the Trustee, in any Credit Facility Provider or in the Bondholders under this Bond Indenture, the Loan Agreement, the Act or any other law; and upon instituting such proceeding, the Trustee shall be entitled, as a matter of right, to the appointment of a receiver of the Revenues and other assets pledged under this Bond Indenture, pending such proceedings. All rights of action under this Bond Indenture or the Bonds or otherwise may be prosecuted and enforced by the Trustee without the possession of any of the Bonds or the production thereof in any proceeding relating thereto, and any such suit, action or proceeding instituted by the Trustee shall be brought in the name of the Trustee for the benefit and protection of all the Holders of such Bonds, subject to the provisions of this Bond Indenture (including Section 6.02 ).
Notwithstanding the foregoing paragraph, during the initial Interest Period in the Initial LIBOR Term Indexed Mode (and for any Interest Period thereafter while the initial Bondholder Agreement is in effect), the Bondholder Representative (if any) is hereby irrevocably appointed and granted authority to exercise all powers, to take all actions, and to have all the rights as are granted to the Trustee in the foregoing paragraph. The Trustee acknowledges that the Bondholder Representative has been appointed for such purpose during the initial Interest Period in the Initial LIBOR Term Indexed Mode and agrees that the Trustee shall have no responsibility to take any actions under this Section 7.05 during such time. While acting under such appointment, the Bondholder Representative (if any) shall be entitled to the protections and limitations of liability afforded the Trustee under Article VIII with respect thereto, including without limitation Section 8.03 , except to the extent inconsistent with the Bondholder Agreement.
SECTION 7.06. Credit Facility Provider’s and Bondholders’ Direction of Proceedings.
Anything in this Bond Indenture to the contrary notwithstanding, the Credit Facility Providers (if any) or the Bondholder Representative (if any) or the Holders of a majority in aggregate principal amount of the Bonds then Outstanding, but with the consent of the Credit Facility Providers (if any), shall have the right, by an instrument or concurrent instruments in writing executed and delivered to the Trustee, to direct the method of conducting all remedial proceedings taken by the Trustee hereunder, provided that such direction shall not be otherwise than in accordance with law and the provisions of this Bond Indenture, and that the Trustee shall have the right to decline to follow any such direction that in the opinion of the Trustee would be unjustly prejudicial to Bondholders not parties to such direction, and that in no event shall the Bondholders directly have the right to make drawings under any Liquidity Facility.
 
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SECTION 7.07. Limitation on Bondholders’ Right to Sue.
No Holder of any Bond shall have the right to institute any suit, action or proceeding at law or in equity, for the protection or enforcement of any right or remedy under this Bond Indenture, the Loan Agreement or any other applicable law with respect to such Bond, unless (1) such Holder shall have given to the Trustee written notice of the occurrence of an Event of Default; (2) the Holders of not less than a majority in aggregate principal amount (if a Bondholder Agreement is in effect) and otherwise 25% in aggregate principal amount of the Bonds then Outstanding shall have made written request upon the Trustee to exercise the powers hereinbefore granted or to institute such suit, action or proceeding in its own name; (3) such Holder or said Holders shall have furnished to the Trustee reasonable indemnity against the costs, expenses and liabilities to be incurred in compliance with such request; and (4) the Trustee shall have refused or omitted to comply with such request for a period of 60 days after such written request shall have been received by, and said indemnity shall have been furnished to, the Trustee.
Such notification, request, furnishing of indemnity and refusal or omission are hereby declared, in every case, to be conditions precedent to the exercise by any Holder of Bonds of any remedy hereunder or under law; it being understood and intended that no one or more Holders of Bonds shall have any right in any manner whatever by his or their action to affect, disturb or prejudice the security of this Bond Indenture or the rights of any other Holders of Bonds, or to enforce any right under this Bond Indenture, the Loan Agreement or other applicable law with respect to the Bonds, except in the manner herein provided, and that all proceedings at law or in equity to enforce any such right shall be instituted, had and maintained in the manner herein provided and for the benefit and protection of all Holders of the Outstanding Bonds, subject to the provisions of this Bond Indenture (including Section 6.02 ).
SECTION 7.08. Absolute Obligation of Issuer.
Nothing in Section 7.07 or in any other provision of this Bond Indenture, or in the Bonds, contained shall affect or impair the obligation of the Issuer, which is absolute and unconditional, to pay the principal or Redemption Price of and interest on the Bonds to the respective Holders of the Bonds at their respective dates of maturity, or upon call for redemption, as herein provided, but only out of the Revenues and other assets herein pledged therefor, or affect or impair the right of such Holders, which is also absolute and unconditional, to enforce such payment by virtue of the contract embodied in the Bonds.
SECTION 7.09. Termination of Proceedings.
In case any proceedings taken by the Trustee, a Credit Facility Provider (if any), the Bondholder Representative (if any) or any one or more Bondholders on account of any Event of Default shall have been discontinued or abandoned for any reason or shall have been determined adversely to the Trustee, such Credit Facility Provider or the Bondholder Representative (if any) or the Bondholders, then in every such case the Issuer, the Liquidity Facility Providers (if any), the Trustee, the Credit Facility Providers (if any), the Bondholder Representative (if any) and the Bondholders, subject to any determination in such proceedings, shall be restored to their former positions and rights hereunder, severally and respectively, and all rights, remedies, powers and duties of the Issuer, the Liquidity Facility Providers (if any), the Trustee, the Credit Facility Providers (if any), the Bondholder Representative (if any) and the Bondholders shall continue as though no such proceedings had been taken.
 
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SECTION 7.10. Remedies Not Exclusive.
No remedy herein conferred upon or reserved to the Trustee, any Liquidity Facility Provider, any Credit Facility Provider or the Bondholder Representative (if any) or the Holders of the Bonds is intended to be exclusive of any other remedy or remedies, and each and every such remedy, to the extent permitted by law, shall be cumulative and in addition to any other remedy given hereunder or now or hereafter existing at law or in equity or otherwise.
SECTION 7.11. Waivers of Default.
No delay or omission of the Trustee, any Credit Facility Provider, any Liquidity Facility Provider, the Bondholder Representative (if any) or any Holder of the Bonds to exercise any right or power arising upon the occurrence of any default shall impair any such right or power or shall be construed to be a waiver of any such default or an acquiescence therein; and every power and remedy given by this Bond Indenture to the Trustee, the Credit Facility Providers (if any), the Liquidity Facility Providers (if any), the Bondholder Representative (if any) or the Holders of the Bonds may be exercised from time to time and as often as may be deemed expedient.
Before any sale of any of the property pledged or assigned hereunder has been made under this Article or any judgment or decree for payment of money due has been obtained by the Trustee as provided in this Article, the Credit Facility Providers, if any and except for any Credit Facility Provider that is in default in payment of its Credit Facility, and in the absence of any such Credit Facility Provider, the Bondholder Representative (if any) or the Holders of not less than a majority in principal amount of the Outstanding Bonds, by writing delivered to the Trustee, the Issuer, and the Borrower, may waive any past default hereunder and its consequences, except a default:
A . Payment or Credit Facility Termination : either (1) in the payment of the principal of (or premium, if any) or interest on, or Purchase Price for, any Bond or (2) described in Section 7.01E , or
B . Unanimous Consent : in respect of a covenant or provision hereof which under Article IX may not be modified or amended without the consent of the Holder of each Outstanding Bond affected.
Upon any such waiver, such default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured, for every purpose of this Bond Indenture; but no such waiver shall extend to any subsequent or other default or impair any right consequent thereon or, unless each of the conditions to rescission described in Section 7.02 have been satisfied, shall (if such Event of Default is described in Section 7.01E ) release the Trustee of its obligation to declare the principal of the Bonds of the applicable series to be immediately due and payable or result in rescission of any declaration of acceleration of Bonds.
SECTION 7.12. Notice to Bondholders of Default.
The Trustee shall promptly give written notice by Electronic Means while a Bondholder Agreement is in effect and otherwise by first class mail to the Bondholders, the Bondholder Representative (if any), the Liquidity Facility Providers (if any) and the Credit Facility
 
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Providers (if any) of the occurrence of an Event of Default, if the Trustee has actual knowledge of such Event of Default, and of the giving of any notice under Section 7.01D .
*            *             *
 
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ARTICLE VIII
THE TRUSTEE AND AGENTS
SECTION 8.01. Duties, Immunities and Liabilities of Trustee.
A . Implied Duties . The Trustee shall, prior to an Event of Default with the consent of the Borrower, and after the curing of all Events of Default that may have occurred, perform such duties and only such duties as are specifically set forth in this Bond Indenture. The Trustee shall, during the existence of any Event of Default (that has not been cured), exercise such of the rights and powers vested in it by this Bond Indenture, and use the same degree of care and skill in their exercise, as a prudent trustee would exercise or use under the circumstances in the conduct of his own affairs.
B . Removal . The Issuer may with the consent of the Borrower, and upon written request of the Borrower shall, remove the Trustee at any time unless an Event of Default shall have occurred and then be continuing, and shall remove the Trustee if at any time requested to do so by an instrument or concurrent instruments in writing signed by the Holders of not less than a majority in aggregate principal amount of the Bonds then Outstanding (or their attorneys duly authorized in writing) or if at any time the Trustee shall cease to be eligible in accordance with Subsection E of this Section, or shall become incapable of acting, or shall be adjudged a bankrupt or insolvent, or a receiver of the Trustee or its property shall be appointed, or any public officer shall take control or charge of the Trustee or of its property or affairs for the purpose of rehabilitation, conservation or liquidation, in each case by giving written notice of such removal to the Trustee, and thereupon shall appoint, with the written consent of the Borrower, a successor Trustee by an instrument in writing.
C . Resignation . The Trustee may at any time resign by giving written notice of such resignation to the Issuer, the Credit Facility Providers (if any), Remarketing Agents (if any), and the Liquidity Facility Providers (if any) and by giving the Bondholders notice of such resignation by mail at the addresses shown on the bond registration books maintained by the Trustee. Upon receiving such notice of resignation, the Issuer shall promptly appoint, with the written consent of the Borrower and the Credit Facility Providers (if any), a successor Trustee by an instrument in writing. The Trustee shall not be relieved of its duties until such successor Trustee has accepted appointment.
D . Successor Required . Any removal or resignation of the Trustee and appointment of a successor Trustee shall only become effective upon acceptance of appointment by the successor Trustee. If no successor Trustee shall have been appointed and have accepted appointment within 30 days of giving notice of removal or notice of resignation as aforesaid, the resigning Trustee or any Bondholder (on behalf of himself and all other Bondholders) may petition any court of competent jurisdiction for the appointment of a successor Trustee, and such court may thereupon, after such notice (if any) as it may deem proper, appoint such successor Trustee. Any successor Trustee appointed under this Bond Indenture, shall signify its acceptance of such appointment by executing and delivering to the Issuer and to its predecessor Trustee a written acceptance thereof, and thereupon such successor Trustee, without any further act, deed or conveyance, shall become vested with all the moneys, estates, properties, rights, powers, trusts, duties and obligations of such predecessor Trustee, with like effect as if originally named Trustee herein; but , nevertheless, at the Request of the Issuer or the request of the successor Trustee, such predecessor Trustee shall execute and deliver any and all instruments of conveyance or further assurance and do such other things as may reasonably be required for more fully and certainly vesting in and confirming to such successor Trustee all the right, title and interest of such predecessor Trustee in and to any property held by it under this Bond Indenture and shall pay over, transfer, assign and deliver to the successor Trustee any money or other property subject to the trusts and conditions herein set forth. Upon request of the successor Trustee, the Issuer shall execute and deliver any and all instruments as
 
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may be reasonably required for more fully and certainly vesting in and confirming to such successor Trustee all such moneys, estates, properties, rights, powers, trusts, duties and obligations. Upon acceptance of appointment by a successor Trustee as provided in this subsection, the successor Trustee shall mail a notice of the succession of such Trustee to the trusts hereunder to each Rating Agency then rating the Bonds and to the Bondholders at the addresses shown on the bond registration books maintained by the Trustee.
E . Qualifications . Any Trustee appointed under the provisions of this Section in succession to the Trustee shall (1) be a trust company or bank having the powers of a trust company in the State of Texas, having (or if such trust company or bank is a member of a bank holding company system, its bank holding company has) a combined capital and surplus of at least $100,000,000, and subject to supervision or examination by federal or state authority and (2) perform its obligations hereunder in a state specified in the definition of “Business Day” included in the Credit Facility and the Liquidity Facility. If such bank or trust company publishes a report of condition at least annually, pursuant to law or to the requirements of any supervising or examining authority above referred to, then for the purpose of this subsection the combined capital and surplus of such bank or trust company shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. In case at any time the Trustee shall cease to be eligible in accordance with the provisions of this Subsection E , the Trustee shall resign immediately in the manner and with the effect specified in this Section. Whenever the Trustee is not a federal depository institution or state-chartered depository institution subject to regulations regarding fiduciary funds similar to Section 9.10(b), Title 1, U.S. Code of Federal Regulations, then the Tender Agent shall maintain the Credit Facility Fund at such a depository institution subject to such regulations, or at a depository institution the short-term obligations of which are rated by each Rating Agency no lower than the short-term rating assigned by it to the Bonds.
SECTION 8.02. Merger or Consolidation.
Any company into which the Trustee may be merged or converted or with which it may be consolidated or any company resulting from any merger, conversion or consolidation to which it shall be a party or any company to which the Trustee may sell or transfer all or substantially all of its corporate trust business, provided such company shall be eligible under Section 8.01E shall be the successor to such Trustee without the execution or filing of any paper or any further act, anything herein to the contrary notwithstanding.
SECTION 8.03. Liability of Trustee.
A. General Limitation on Liability . The recitals of facts herein and in the Bonds contained shall be taken as statements of the Issuer, and the Trustee shall assume no responsibility for the correctness of the same, or make any representations as to the validity or sufficiency of this Bond Indenture or of the Bonds, or shall incur any responsibility in respect thereof, other than in connection with the duties or obligations herein or in the Bonds assigned to or imposed upon it except for any recital or representation specifically relating to the Trustee or its powers. The Trustee shall, however, be responsible for its representations contained in its Certificate of Authentication on the Bonds. The Trustee shall not be liable in connection with the performance of its duties hereunder, except for its own negligence or willful misconduct. The Trustee may become the owner of Bonds with the same rights it would have if it were not Trustee and, to the extent permitted by law, may act as depositary for and permit any of their officers or directors to act as a member of, or in any other capacity with respect to, any committee formed to protect the rights of Bondholders, whether or not such committee shall represent the Holders of a majority in principal amount of the Bonds then Outstanding.
 
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B . Errors in Judgment . The Trustee shall not be liable for any error of judgment made in good faith by a responsible officer, unless it shall be proved that the Trustee was negligent in ascertaining the pertinent facts.
C . Acting on Direction . The Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the direction of the Credit Facility Provider(s) or the Holders of not less than a majority in aggregate principal amount of the Bonds at the time Outstanding relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee under this Bond Indenture.
D . No Financial Liability . The Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Bond Indenture at the request, order or direction of any of the Bondholders pursuant to the provisions of this Bond Indenture unless such Bondholders shall have furnished to the Trustee reasonable security or indemnity against the costs, expenses and liabilities that may be incurred therein or thereby. The Trustee has no obligation or liability to the Holders for the payment of interest on, principal of or premium, if any, with respect to the Bonds from its own funds; but rather the Trustee’s obligations shall be limited to the performance of its duties hereunder.
E . Knowledge of Defaults . Except with respect to Events of Default specified in Clause A, B, C, E or H of Section 7.01 , the Trustee shall not be deemed to have knowledge of any Event of Default unless and until an officer at the Trustee’s corporate trust operation responsible for the administration of its duties hereunder shall have actual knowledge thereof or the Trustee shall have received written notice thereof at the Principal Corporate Trust Office. The Trustee shall not be bound to ascertain or inquire as to the performance or observance of any of the terms, conditions, covenants or agreements herein or of any of the documents executed in connection with the Bonds, or as to the existence of a default or Event of Default thereunder. The Trustee shall not be responsible for the validity or effectiveness of any collateral given to or held by it.
F . Acting Through Agents . The Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through attorneys-in-fact, agents or receivers, and shall not be answerable for the negligence or misconduct of any such attorney-of-fact, agent or receiver selected by it with due care. The Trustee shall be entitled to advice of counsel and other professionals concerning all matters of trust and its duty hereunder, including verification reports in connection with any defeasance of the Bonds, but the Trustee shall not be answerable for the professional malpractice of any attorney-in-law or certified public accountant in connection with the rendering of his professional advice in accordance with the terms of this Bond Indenture, if such attorney-in-law or certified public accountant was selected by the Trustee with due care.
G . No Responsibility for Disbursed Funds . The Trustee shall not be concerned with or accountable to anyone for the subsequent use or application of any moneys that shall be released or withdrawn in accordance with the provisions hereof.
H . This Section Controlling . Whether or not therein expressly so provided, every provision of this Bond Indenture, the Loan Agreement, the Credit Facilities, the Liquidity Facilities or related documents relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provision of this Article.
 
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SECTION 8.04. Right of Trustee and Tender Agent to Rely on Documents.
The Trustee and the Tender Agent shall be protected in acting upon any notice, resolution, request, consent, order, certificate, report, opinion, bond or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties. The Trustee and the Tender Agent may consult with counsel, who may be counsel of or to the Issuer, with regard to legal questions, and the opinion of such counsel shall be full and complete authorization and protection in respect of any action taken or suffered by it hereunder in good faith and in accordance therewith.
Whenever in the administration of the trusts imposed upon it by this Bond Indenture the Trustee shall deem it necessary or desirable that a matter be proved or established prior to taking or suffering any action hereunder, such matter (unless other evidence in respect thereof be herein specifically prescribed) may be deemed to be conclusively proved and established by a Certificate of the Issuer, and such Certificate shall be full warrant to the Trustee for any action taken or suffered in good faith under the provisions of this Bond Indenture in reliance upon such Certificate, but in its discretion the Trustee may, in lieu thereof, accept other evidence of such matter or may require such additional evidence as it may deem reasonable.
SECTION 8.05. Preservation and Inspection of Documents.
All documents received by the Trustee under the provisions of this Bond Indenture shall be retained in its possession and shall be subject at all reasonable times to the inspection of the Issuer, the Borrower, the Liquidity Facility Providers (if any), the Credit Facility Providers (if any) and any Bondholder, and their agents and representatives duly authorized in writing, at reasonable hours and under reasonable conditions.
SECTION 8.06. Separate or Co-Trustee.
At any time or times, for the purpose of meeting any legal requirements of any jurisdiction, the Trustee shall have power to appoint, and, upon the written request of the Credit Facility Providers (if any) or the Bondholder Representative (if any) or the Holders of at least a majority in aggregate principal amount (if a Bondholder Agreement is in effect) and otherwise 25% in aggregate principal amount of Bonds Outstanding and with the written consent of the Borrower, shall appoint, one or more Persons approved by the Trustee either to act as co-trustee or co-trustees, jointly with the Trustee, to act as separate trustee or separate trustees, and to vest in such Person or Persons, in such capacity, such rights, powers, duties, trusts or obligations as the Trustee may consider necessary or desirable, subject to the remaining provisions of this Section.
Every co-trustee or separate trustee shall, to the extent permitted by law but to such extent only, be appointed subject to the following terms, namely:
A . Authentications . The Bonds shall be authenticated and delivered solely by the Trustee.
B. Joinder of Trustee . All rights, powers, trusts, duties and obligations conferred or imposed upon the trustees shall be conferred or imposed upon and exercised or performed by the Trustee, or by the Trustee and such co-trustee or co-trustees or separate trustee or separate trustees jointly, as shall be provided in the instrument appointing such co-trustee or co-trustees or separate trustee or separate trustees, except to the extent that, under the law of any jurisdiction in which any particular act or acts are to be performed, the Trustee
 
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shall be incompetent or unqualified to perform such act or acts, in which event such act or acts shall be performed by such co-trustee or co-trustees or separate trustee or separate trustees.
C. Requests by Trustee . Any request in writing by the Trustee to any co-trustee or separate trustee to take or to refrain from taking any action hereunder shall be sufficient warrant for the taking, or the refraining from taking, of such action by such co-trustee or separate trustee.
D. Return of Powers . Any co-trustee or separate trustee may, to the extent permitted by law, delegate to the Trustee the exercise of any right, power, trust, duty or obligation, discretionary or otherwise.
E . Resignation and Renewal . The Trustee at any time, by any instrument in writing, may accept the resignation of or remove any co-trustee or separate trustee appointed under this Section.
F . No Personal Liability . No trustee hereunder shall be personally liable by reason of any act or omission of any other trustee hereunder, nor will the act or omission of any trustee hereunder be imputed to any other trustee.
G . Demands, Etc . Any demand, request, direction, appointment, removal, notice, consent, waiver or other action in writing delivered to the Trustee shall be deemed to have been delivered to each such co-trustee or separate trustee.
H . Custody . Any moneys, papers, securities or other items of personal property received by any such co-trustee or separate trustee hereunder shall forthwith, so far as may be permitted by law, be turned over to the Trustee.
Upon the acceptance in writing of such appointment by any such co-trustee or separate trustee, it or he shall be vested with such rights, powers, duties or obligations, as shall be specified in the instrument of appointment jointly with the Trustee (except insofar as local law makes it necessary for any such co-trustee or separate trustee to act alone) subject to all the terms hereof. Every such acceptance shall be filed with the Trustee. To the extent permitted by law, any co- trustee or separate trustee may, at any time by an instrument in writing, constitute the Trustee its or his attorney-in-fact and agent, with full power and authority to do all acts and things and to exercise all discretion on its or his behalf and in its or his name.
In case any co-trustee or separate trustee shall die, become incapable of acting, resign or be removed, all rights, powers, trusts, duties and obligations of said co-trustee or separate trustee shall, so far as permitted by law, vest in and be exercised by the Trustee unless and until a successor co-trustee or separate trustee shall be appointed in the manner herein provided.
SECTION 8.07. Compensation and Indemnification.
The Issuer shall pay to the Trustee and the Tender Agent ( but solely from Additional Payments) from time to time reasonable compensation for all services rendered under this Bond Indenture, and also all reasonable expenses, charges, legal and consulting fees and other disbursements and those of their attorneys, agents and employees, incurred in and about the performance of their powers and duties under this Bond Indenture.
 
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No provision of this Bond Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of its rights or powers, if it has not received the agreed compensation for such services or, in cases where the Trustee has a right to reimbursement or indemnification for such performance or exercise, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it; provided, however , that the Tender Agent and the Trustee shall in no event condition any draw upon any Liquidity Facility, any request for payment under any Credit Facility or any payment to Bondholders from such draws under a Liquidity Facility or such payments under a Credit Facility upon the provision of any indemnification for such performance.
SECTION 8.08. Notice to Rating Agency.
The Trustee shall give written notice to any Rating Agency then rating the Bonds if (i) a successor Trustee is appointed hereunder, (ii) if this Bond Indenture, the Loan Agreement, any Remarketing Agreement, any Credit Facility or any Liquidity Facility is amended or supplemented in any material manner, or, if any of such documents are amended with the consent of the Credit Facility Providers (if any), (iii) if a Liquidity Facility or Credit Facility expires, is terminated, substituted, or is extended, (iv) if a successor Remarketing Agent is appointed, (v) if the Bonds are paid and this Bond Indenture defeased pursuant to Section 10.01 , (vi) if the Bonds of any subseries are accelerated pursuant to Section 7.02 , or (viii) if the Bonds are redeemed in whole or in part pursuant to Section 4.01 or are subject to mandatory tender pursuant to Section 4.08 or 4.10 , provided that the Trustee shall incur no liability for failure to give any such notice.
SECTION 8.09. Facsimile and Electronic Transmissions.
The Trustee agrees to accept and act upon instructions or directions pursuant to this Bond Indenture sent by unsecured e-mail, facsimile transmission or other similar unsecured electronic methods, provided , however , that (a) subsequent to such transmission of written instructions and/or directions the Trustee shall forthwith receive the originally executed instructions and/or directions in a timely manner, (b) such originally executed instructions and/or directions shall be signed by a Person designated and authorized to sign for the party signing such instructions and/or directions, and (c) the Trustee shall have received an incumbency certificate listing such designated Persons and containing specimen signatures of such designated Persons, which such incumbency certificate shall be amended and replaced whenever a Person is to be added or deleted from the listing. If the Issuer or the Borrower elects to give the Trustee e-mail or facsimile instructions (or instructions by similar Electronic Means) and the Trustee in its discretion elects to act upon such instructions, the Trustee’s understanding of such instructions shall be deemed controlling. The Trustee shall not be liable for any losses, costs or expenses arising directly or indirectly from the Trustee’s reliance upon and compliance with such instructions notwithstanding such instructions conflict or are inconsistent with a subsequent written instruction. The Issuer agrees (and by approving this Bond Indenture the Borrower agrees) to assume all risks arising out of the use of such Electronic Means to submit instructions and directions to the Trustee, including, without limitation, the risk of the Trustee acting on unauthorized instructions and the risk of interception and misuse by third parties.
SECTION 8.10. Collateral Agent.
The Trustee acknowledges that during the initial Interest Period of the Initial LIBOR Term Indexed Mode and any Interest Period thereafter while the initial Bondholder Agreement remains in effect, the Bondholder Representative (if any) has, pursuant to Section 7.05 , the power to take all actions and exercise all of the rights that the Trustee would otherwise have with respect to any
 
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guarantee of obligations (“ Guarantee ”) relating to the Bonds and any collateral (“ Collateral ”) securing obligations relating to the Bonds (in each case in accordance with the terms set forth in any agreement governing any Guarantee or Collateral), including, without limitation, the power to direct the exercise of remedies by any collateral agent appointed with respect to such Collateral. The Trustee shall have no right, responsibility or obligation to take any action with respect to any such Guarantee or Collateral or in connection with the exercise of remedies in connection therewith.
To the extent required, each of the Trustee and the Issuer authorizes the appointment of any collateral agent in connection with the Collateral and authorizes such collateral agent to enter into any agreements it deems appropriate in connection with the Collateral and any intercreditor arrangements or any remedial rights in connection therewith, including without limitation, any security agreement or intercreditor agreement (each a “ Security Document ”). In connection with the foregoing, and for the avoidance of doubt, any such collateral agent shall not have any duties or obligations except those expressly set forth in the Security Documents, and its duties thereunder shall be administrative in nature. Without limiting the generality of the foregoing, any such collateral agent and its affiliates and the partners, directors, officers, employees, agents, trustees, administrators, managers, advisors and representatives of such collateral agent and of its affiliates:
(i) shall not be subject to any fiduciary or other implied duties, regardless of whether a default or Event of Default has occurred and is continuing;
(ii) shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Security Documents and then only as directed in accordance with the terms thereof; provided that such collateral agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose the collateral agent to liability or that is contrary to any Security Document or applicable law, including for the avoidance of doubt any action that may be in violation of the automatic stay under Title 11 of the United States Code, as amended, and any similar Federal, state or foreign law for the relief of debtors;
(iii) shall not, except as expressly set forth in any Security Document, have any duty or responsibility to disclose, and shall not be liable for the failure to disclose, any information relating to the Borrower or any Affiliate thereof that is communicated to or obtained by such collateral agent or any of its Affiliates in any capacity;
(iv) shall not be liable for any action taken or not taken by it under or in connection with any Security Document or the transactions contemplated thereby (A) with the consent or at the request of the secured party entitled to direct the collateral agent under the applicable Security Document, (B) in the absence of its own gross negligence or willful misconduct as determined by a court of competent jurisdiction by final and nonappealable judgment or (C) in reliance on a certificate of an authorized officer of the Borrower or any applicable guarantor of the obligations secured under such Security Document stating that such action is permitted by the terms of such Security Document, the collateral agent being deemed not to have knowledge of any default or Event of Default unless and until notice describing such default or Event Default is given in writing to the collateral agent by the in accordance with the terms of such Security Document; and
(v) shall not be responsible for or have any duty or obligation to any holder of obligations secured under any Security Document or any other person to ascertain or inquire into (A) any statement, warranty or representation made in or in connection with any Security Document, (B) the contents of any certificate, report or other document delivered hereunder or thereunder or in
 
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connection herewith or therewith, (C) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein or the occurrence of any default or Event of Default, (D) the validity, enforceability, effectiveness or genuineness of any Security Document or any other agreement, instrument or document, or the creation, perfection or priority of any lien purported to be created by any Security Document, (E) the value or the sufficiency of any Collateral, or (F) the satisfaction of any condition or representation or warranty set forth in any Security Document, other than to confirm receipt of items expressly required to be delivered to such collateral agent.
Whether or not therein expressly so provided, every provision of this Bond Indenture, the Loan Agreement, the Credit Facilities, the Liquidity Facilities or related documents relating to the conduct or affecting the liability of or affording protection to any such collateral agent shall be subject to the provision of this Article.
*            *             *
 
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ARTICLE IX
MODIFICATION OR AMENDMENT OF THIS BOND INDENTURE
SECTION 9.01. Amendments Permitted.
A . With Consents . This Bond Indenture and the rights and obligations of the Issuer and of the Holders of the Bonds and of the Trustee may be modified or amended from time to time and at any time by an indenture or indentures supplemental thereto, which the Issuer and the Trustee may enter into when the written consent of (i) each Credit Facility Provider (so long as a Credit Facility on which it is obligated is in effect or any amounts are owing to a Credit Facility Provider and such Credit Facility Provider is not then in default under its payment obligations under its Credit Facility), (ii) the Bondholder Representative (if any), or (iii) the Holders of a majority in aggregate principal amount of all Bonds then Outstanding (if no Credit Facility is any longer in effect or all Credit Facility Providers are then in default under their payment obligations under the Credit Facilities and no Bondholder Agreement is in effect), and the Liquidity Facility Providers (if any), shall have been filed with the Trustee. No such modification or amendment shall (1) extend the fixed maturity of any Bond, or reduce the amount of principal thereof, or change the method of computing the rate of interest thereon, or extend the time of payment of interest thereon, or extend the time of payment or reduce the amount of any Mandatory Sinking Account Payment, or reduce any premium payable upon the redemption thereof, without the consent of the Holder of each Bond so affected, or (2) reduce the aforesaid percentage of Bonds the consent of the Holders of which is required to effect any such modification or amendment, or permit the creation of any lien on the Revenues and other assets pledged under this Bond Indenture prior to or on a parity with the lien created by this Bond Indenture, or deprive the Holders of the Bonds of the lien created by this Bond Indenture on such Revenues and other assets (except as expressly provided in this Bond Indenture), without the consent of the Holders of all of the Bonds then Outstanding, or (3) modify any of the rights or obligations of the Trustee without its prior written consent thereto; nor shall the Trustee be required to consent to any such amendment that adversely affects its rights or obligations hereunder or under the Loan Agreement, the Liquidity Facilities or the Remarketing Agreements. It shall not be necessary for the consent of the Bondholders to approve the particular form of any Supplemental Bond Indenture, but it shall be sufficient if such consent shall approve the substance thereof. Promptly after the execution by the Issuer and the Trustee of any Supplemental Bond Indenture pursuant to this Subsection A , the Trustee shall mail a notice, setting forth in general terms the substance of such Supplemental Bond Indenture, to each Rating Agency then rating Bonds, to the Liquidity Facility Providers (if any), to the Credit Facility Providers (if any) and to the Holders of the Bonds at the addresses shown on the bond registration books of the Trustee. Any failure to give such notice, or any defect therein, shall not, however, in any way impair or affect the validity of any such Supplemental Bond Indenture.
B . Without Bondholder Consent . This Bond Indenture and the rights and obligations of the Issuer, of the Trustee and of the Holders of the Bonds may also be modified or amended from time to time and at any time by an indenture or indentures supplemental hereto, which the Issuer and the Trustee may enter into without the consent of any Bondholders (but with the consent of the Credit Facility Providers (if any) and only if not objected to by the Liquidity Facility Providers (if any) within five calendar days after it has been given written notice of such supplemental indenture, unless such modification or amendment affects only the Fixed Rate Bonds), if the Trustee determines that the provisions of such Supplemental Bond Indenture shall not materially adversely affect the interests of the Holders of the Bonds, including, without limitation, for any one or more of the following purposes:
(1) Additional Covenants or Security : to add to the covenants and agreements of the Issuer in this Bond Indenture contained other covenants and agreements thereafter to be observed, to pledge or assign additional security for the Bonds (or any portion thereof), or to surrender any right or power herein reserved to or conferred upon the Issuer;
 
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(2) Curing Defects, Etc .: to make such provisions for the purpose of curing any ambiguity, inconsistency or omission, or of curing or correcting any defective provision, contained in this Bond Indenture, or in regard to matters or questions arising under this Bond Indenture, as the Issuer may deem necessary or desirable and not inconsistent with this Bond Indenture;
(3) Qualification of Bond Indenture : to modify, amend or supplement this Bond Indenture in such manner as to permit the qualification hereof under the Trust Indenture Act of 1939, as amended, or any similar federal statute hereafter in effect, and to add such other terms, conditions and provisions as may be permitted by said act or similar federal statute;
(4) Eligibility of Bonds : to make the Bonds eligible for deposit with any Securities Depository;
(5) Rating : to obtain a rating on the Bonds;
(6) Credit or Liquidity Facility Compatibility : to conform to the terms and provisions of any Liquidity Facility or Credit Facility; or
(7) Prospective Effect : to make any modification or amendment to this Bond Indenture, even if consent of Holders would otherwise be required, (i) if such amendment will be effective upon the remarketing of all Bonds following the mandatory tender of the Bonds pursuant to Sections 4.07, 4.08, 4.09 or 4.10 or (ii) if all Bonds are in one or more of a Daily Mode, a Weekly Mode or an R-FLOATs Mode (except during any Non-Remarketing Period), if notice of such proposed modification or amendment is given to Holders (in the same manner as notices of redemption are given) at least 15 days before the effective date thereof and on or before such effective date, the Holders have the right to demand purchase of their Bonds pursuant to Section 4.06 ; provided that, on or prior to the effective date of such modification or amendment, the Trustee shall obtain a Favorable Opinion of Bond Counsel.
The Trustee shall give notice of any such modification or amendment to each Rating Agency then rating the Bonds provided the Trustee shall incur no liability for failure to do so.
C . Remarketing Agent Notice and Consent . All notices regarding amendments to this Bond Indenture shall be delivered to the Remarketing Agents at the time and in the same manner as such notices are delivered to the registered owners of the Bonds. No amendment shall become effective with respect to a Remarketing Agent without the written consent of such party if it adversely affects the rights, duties, privileges, immunities and liabilities of such party.
D . Trustee’s Rights . The Trustee may in its discretion, but shall not be obligated to, enter into any Supplemental Bond Indenture authorized by Subsections A or B of this Section that materially adversely affects the Trustee’s own rights, duties or immunities under this Bond Indenture or otherwise.
 
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SECTION 9.02. Effect of Supplemental Bond Indenture.
Upon the execution of any Supplemental Bond Indenture pursuant to this Article, this Bond Indenture shall be deemed to be modified and amended in accordance therewith, and the respective rights, duties and obligations under this Bond Indenture of the Issuer, the Trustee and all Holders of Bonds Outstanding shall thereafter be determined, exercised and enforced hereunder subject in all respects to such modification and amendment, and all the terms and conditions of any such Supplemental Bond Indenture shall be deemed to be part of the terms and conditions of this Bond Indenture for any and all purposes.
SECTION 9.03. Endorsement of Bonds; Preparation of New Bonds.
Bonds delivered after the execution of any Supplemental Bond Indenture pursuant to this Article may, and if the Trustee so determines shall, bear a notation by endorsement or otherwise in form approved by the Issuer and the Trustee as to any modification or amendment provided for in such Supplemental Bond Indenture, and, in that case, upon demand of the Holder of any Bond Outstanding at the time of such execution and presentation of his Bond for such purpose at the Principal Corporate Trust Office of the Trustee or at such additional offices as the Trustee may select and designate for that purpose, a suitable notation shall be made on such Bond. If the Supplemental Bond Indenture shall so provide, new Bonds so modified as to conform, in the opinion of the Issuer and the Trustee, to any modification or amendment contained in such Supplemental Bond Indenture, shall be prepared and executed by the Issuer and authenticated by the Trustee, and upon demand of the Holders of any Bonds then Outstanding shall be exchanged at the Principal Corporate Trust Office, without cost to any Bondholder, for Bonds then Outstanding, upon surrender for cancellation of such Bonds, in equal aggregate principal amounts of the same subseries, maturity, Interest Period and interest rate.
SECTION 9.04. Amendment of Particular Bonds.
The provisions of this Article shall not prevent any Bondholder from accepting any amendment as to the particular Bonds held by him, provided that due notation thereof is made on such Bonds.
SECTION 9.05. Consent by Purchasers or Remarketing Agent.
For purposes of this Article, (i) the purchasers of Bonds, whether purchasing as underwriters, for resale or otherwise, upon such purchase and (ii) the Remarketing Agent for Bonds, upon a mandatory tender date for such Bonds, may consent to an amendment, change, modification or waiver of any amendment or supplement with the same effect as a consent given by the Holders of such Bonds.
*            *             *
 
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ARTICLE X
DEFEASANCE
SECTION 10.01. Discharge of Bond Indenture.
The Bonds may be paid or shall be deemed paid by the Issuer in any of the following ways, provided that the Issuer also pays or causes to be paid any other sums payable hereunder by the Issuer:
A. Payment : by paying or causing to be paid the principal or Redemption Price of and interest on the Bonds, as and when the same become due and payable (from funds other than moneys paid pursuant to a Credit Facility);
B. Defeasance : by depositing with the Trustee, in trust, at or before maturity, money or securities in the necessary amount (as provided in Section 10.03 ) to pay or redeem all Bonds then Outstanding (from funds other than moneys paid pursuant to a Credit Facility); or
C. Surrender : by delivering to the Trustee, for cancellation by it, all Bonds then Outstanding.
If the Issuer shall also pay or cause to be paid all other sums payable hereunder by the Issuer and no amounts are owing to any Credit Facility Provider, then and in that case, at the election of the Issuer (evidenced by a Certificate of the Issuer, filed with the Trustee, signifying the intention of the Issuer to discharge all such indebtedness and this Bond Indenture and upon receipt by the Trustee and the Credit Facility Providers (if any) of (i) an Opinion or Opinions of Counsel to the effect that the obligations under this Bond Indenture and the Bonds have been discharged and (ii) written evidence from each Rating Agency then rating the Bonds that defeasance will not result in the reduction or withdrawal of such ratings), and notwithstanding that any Bonds shall not have been surrendered for payment, this Bond Indenture and the pledge of Revenues and other assets made under this Bond Indenture and all covenants, agreements and other obligations of the Issuer under this Bond Indenture shall cease, terminate, become void and be completely discharged and satisfied, except only as provided in Sections 5.06 and 10.02 . In such event, upon Request of the Issuer, the Trustee shall cause an accounting for such period or periods as may be requested by the Issuer to be prepared and filed with the Issuer and shall execute and deliver to the Issuer all such instruments as may be necessary or desirable to evidence such discharge and satisfaction, and the Trustee shall pay over, transfer, assign or deliver all moneys or securities or other property held by it pursuant to this Bond Indenture that are not required for the payment or redemption of Bonds not theretofore surrendered for such payment or redemption (1) to the Liquidity Facility Providers (if any) to the extent of any amounts owed to such Liquidity Facility Providers (if any) pursuant to the respective Liquidity Facilities and (2) otherwise, to the Borrower; provided that in all events moneys in the Rebate Fund shall be subject to the provisions of Section 5.06 .
SECTION 10.02. Discharge of Liability on Bonds.
Upon the deposit with the Trustee, in trust, at or before maturity, of money or securities in the necessary amount (as provided in Section 10.03 ) to pay or redeem any Outstanding Bond (whether upon or prior to its maturity or the redemption date of such Bond), provided that, if such Bond is to be redeemed prior to maturity, notice of such redemption shall have been given as provided in Article IV or provision satisfactory to the Trustee shall have been made for the giving of such notice, then all liability of the Issuer in respect of such Bond shall cease, terminate, become void
 
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and be completely discharged and satisfied, except only that thereafter the Holder thereof shall be entitled to payment of the principal or Redemption Price of and interest on such Bond by the Issuer and the Issuer shall remain liable for such payment, but only out of such money or securities deposited with the Trustee as aforesaid for its payment, provided further, however, that the provisions of Section 10.04 shall apply in all events.
SECTION 10.03. Deposit of Money or Securities with Trustee.
Whenever in this Bond Indenture it is provided or permitted that there be deposited with or held in trust by the Trustee money or securities in the necessary amount to pay or redeem any Bonds, the money or securities so to be deposited or held may include money or securities held by the Trustee in the funds and accounts established pursuant to this Bond Indenture (other than the Purchase Fund and the Rebate Fund) and shall be:
A. Cash : lawful money of the United States of America in an amount equal to the principal amount of such Bonds and all unpaid interest thereon to maturity (based on the Maximum Rate for periods for which the actual interest rate is not known), except that, in the case of Bonds that are to be redeemed prior to maturity and in respect of which notice of such redemption shall have been given as provided in Article IV or provision satisfactory to the Trustee shall have been made for the giving of such notice, the amount to be deposited or held shall be the principal amount or Redemption Price of such Bonds and all unpaid interest thereon to the redemption date (based on the Maximum Rate for periods for which the actual interest rate is not known); or
B. Governmental Obligations : Governmental Obligations, the principal of and interest on which when due (without any income from the reinvestment thereof) will provide money sufficient to pay the principal or Redemption Price of and all unpaid interest to maturity, or to the redemption date, as the case may be, on the Bonds to be paid or redeemed (based on an assumed interest rate of the Maximum Rate for periods for which the actual interest rate is not known), as such principal or Redemption Price and interest become due, provided that, in the case of Bonds that are to be redeemed prior to the maturity thereof, notice of such redemption shall have been given as provided in Article IV or provision satisfactory to the Trustee shall have been made for the giving of such notice;
provided , in each case, that the Trustee shall have been irrevocably instructed (by the terms of this Bond Indenture or by Request of the Issuer) to apply such money to the payment of such principal or Redemption Price and interest on such Bonds. Governmental Obligations issued in book entry form shall be deemed deposited with the Trustee or other escrow agent upon the perfection of a security interest therein in favor of such Person.
SECTION 10.04. Payment of Bonds After Discharge of Bond Indenture.
Notwithstanding any provisions of this Bond Indenture, any moneys held by the Trustee in trust for the payment of the Redemption Price or the principal of, or interest on, any Bonds and remaining unclaimed for two years (or, if less, one day before such moneys would escheat to the State of Texas under then applicable Texas law) after the principal of all of the Bonds has become due and payable (whether at maturity or upon call for redemption or by acceleration as provided in this Bond Indenture), if such moneys were so held at such date, or two years (or, if less, one day before such moneys would escheat to the State of Texas under then applicable Texas law) after the date of deposit of such moneys if deposited after said date when all of the Bonds became due and payable, shall be repaid to the Borrower (unless such moneys are proceeds of a Credit Facility and moneys are
 
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owed by the Borrower to the Credit Facility Provider obligated therein, in which event to such Credit Facility Provider) free from the trusts created by this Bond Indenture upon receipt of an indemnification agreement acceptable to the Trustee indemnifying the Trustee with respect to claims of Holders of Bonds that have not yet been paid, and all liability of the Trustee with respect to such moneys shall thereupon cease; provided, however , that before the repayment of such moneys to the Borrower or any Credit Facility Provider as aforesaid, the Trustee may (at the cost of the Borrower) first mail to the Holders of Bonds that have not yet been paid, at the addresses shown on the bond registration books maintained by the Trustee, a notice, in such form as may be deemed appropriate by the Trustee with respect to the Bonds so payable and not presented and with respect to the provisions relating to the repayment to the Borrower or such Credit Facility Provider of the moneys held for the payment thereof.
*            *             *
 
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ARTICLE XI
MISCELLANEOUS
SECTION 11.01. Liability of Issuer Limited.
Notwithstanding anything in this Bond Indenture or in the Bonds contained, the Issuer shall not be required to advance any moneys derived from any source other than the Revenues, the Additional Payments and other assets pledged under this Bond Indenture for any of the purposes in this Bond Indenture mentioned, whether for the payment of the principal or Redemption Price of or interest on the Bonds or for any other purpose of this Bond Indenture. Nevertheless, the Issuer may, but shall not be required to, advance for any of the purposes hereof any funds of the Issuer that may be made available to it for such purposes.
SECTION 11.02. Successor Is Deemed Included in All References to Predecessor.
Whenever in this Bond Indenture either the Issuer or the Trustee is named or referred to, such reference shall be deemed to include the successors or assigns thereof, and all the covenants and agreements in this Bond Indenture contained by or on behalf of the Issuer or the Trustee shall bind and inure to the benefit of the respective successors and assigns thereof whether so expressed or not.
SECTION 11.03. Limitation of Rights to Parties and Certain Other Persons.
Nothing in this Bond Indenture or in the Bonds expressed or implied is intended or shall be construed to give to any Person other than the Issuer, the Trustee, the Borrower, the Credit Facility Providers (if any), the Liquidity Facility Providers (if any), the Bondholder Representative, and the Holders of the Bonds, any legal or equitable right, remedy or claim under or in respect of this Bond Indenture or any covenant, condition or provision therein or herein contained; and all such covenants, conditions and provisions are and shall be held to be for the sole and exclusive benefit of the Issuer, the Trustee, the Borrower, the Credit Facility Providers (if any), the Liquidity Facility Providers (if any) and the Holders of the Bonds. The Credit Facility Providers (if any), the Bondholder Representative, are expressly deemed to be third-party beneficiaries of this Bond Indenture.
SECTION 11.04. Waiver of Notice.
Whenever in this Bond Indenture the giving of notice by mail, Electronic Means or otherwise is required, the giving of such notice may be waived in writing by the Person entitled to receive such notice and in any such case the giving or receipt of such notice shall not be a condition precedent to the validity of any action taken in reliance upon such waiver.
SECTION 11.05. Destruction of Bonds.
Whenever in this Bond Indenture provision is made for the cancellation by the Trustee and the delivery to the Issuer of any Bonds, the Trustee shall, in lieu of such cancellation and delivery, destroy such Bonds and, upon request of the Issuer, deliver a certificate of such destruction to the Issuer.
SECTION 11.06. Severability of Invalid Provisions.
If any one or more of the provisions contained in this Bond Indenture or in the Bonds shall for any reason be held to be invalid, illegal or unenforceable in any respect, then such provision
 
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or provisions shall be deemed severable from the remaining provisions contained in this Bond Indenture and such invalidity, illegality or unenforceability shall not affect any other provision of this Bond Indenture, and this Bond Indenture shall be construed as if such invalid or illegal or unenforceable provision had never been contained herein.
SECTION 11.07. Notices.
All notices to the Liquidity Facility Provider (if any) shall be given by Electronic Means (unless otherwise provided herein). Any notice required to be given to Bondholders shall also be given to the Credit Facility Providers (if any) and, during a Term Indexed Mode while a Bondholder Agreement is in effect, the Bondholder Representative. Any notice to or demand upon the Trustee may be served or presented, and such demand may be made, at the Principal Corporate Trust Office (original address shown below), or at such other address as may have been filed in writing by the Trustee with the Interested Parties, the Remarketing Agents (if any), and the Liquidity Facility Providers (if any). Except with respect to notices to the Liquidity Facility Providers (if any) or the Credit Facility Providers (if any) with respect to claims under the Liquidity Facilities or the Credit Facility, respectively, which notices shall be given in accordance with such documents, any notice to or demand upon the Issuer, the Borrower, the Remarketing Agents (if any), the Tender Agent, the Liquidity Facility Providers (if any), the Credit Facility Providers (if any), or the Bondholder Representative shall be deemed to have been sufficiently given or served for all purposes by being delivered or sent by Electronic Means or by being deposited, postage prepaid, in a post office letter box, addressed, as the case may be, to the respective following addresses (or to such other address as may have been filed in writing by such party with the Trustee):
 
 	(1)	Issuer :	
Harris County Industrial Development Corporation
c/o Fulbright & Jaworski L.L.P.
1301 McKinney, Suite 5100
Houston, Texas 77010-3095
Attention: President
 
 	(2)	Borrower :	
HFOTCO LLC
1201 South Sheldon Road
Houston, Texas 77015
Attention: Michael Mangan
Tel.: (713) 948-6100
Fax: (281) 452-6306
Email: mmangan@hfotco.com
 
 	(3)	Remarketing Agent :	
Merrill Lynch, Pierce, Fenner & Smith Incorporated
Municipal Money Markets
Municipal Bond Division
4 World Financial Center, 9th Floor
New York, NY 10080
Attention: Mona Payton
 
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 	(4)	Trustee/Tender Agent :	
The Bank of New York Mellon Trust Company, N.A.
601 Travis Street, Floor 16
Houston, Texas 77002
Attention: Public Finance
Tel.: (713) 227-1600
Fax: (713) 483-6979
Email: rosalyn.davis@bnymellon.com
 
 	(5)	Credit Facility Provider/Liquidity Facility Provider:	
As specified in the Reimbursement Agreement (if any) with such Person
 
 	(6)	S&P :	
Standard & Poor’s Rating Service
55 Water Street, 41 st Floor
New York, New York 10041-0003
Attention: Structured Finance LOC Surveillance Group
Email: nyloc@standardandpoors.com
 
 	(7)	Moody’s :	
Moody’s Investors Services, Inc.
7 World Trade Center
New York, New York 10007
Attention: Structured Finance
 
 	(8)	Fitch :	
Fitch Ratings
One State Street Plaza
New York, New York 10004
Attention: U.S. Public Finance
 
 	(9)	Bondholder Representative :	
As specified in the Bondholder Agreement (if any)
SECTION 11.08. Evidence of Rights of Bondholders.
Any request, consent or other instrument required or permitted by this Bond Indenture to be signed and executed by Bondholders may be in any number of concurrent instruments of substantially similar tenor and shall be signed or executed by such Bondholders in person or by an agent or agents duly appointed in writing. Proof of the execution of any such request, consent or other instrument or of a writing appointing any such agent, or of the holding by any Person of Bonds transferable by delivery, shall be sufficient for any purpose of this Bond Indenture and shall be conclusive in favor of the Trustee and of the Issuer if made in the manner provided in this Section.
 
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The fact and date of the execution by any Person of any such request, consent or other instrument or writing may be proved by the certificate of any notary public or other officer of any jurisdiction, authorized by the laws thereof to take acknowledgments of deeds, certifying that the Person signing such request, consent or other instrument acknowledged to him the execution thereof, or by an affidavit of a witness of such execution duly sworn to before such notary public or other officer.
The ownership of Bonds shall be proved by the bond registration books held by the Trustee.
Any request, consent, or other instrument or writing of the Holder of any Bond shall bind every future Holder of the same Bond and the Holder of every Bond issued in exchange therefor or in lieu thereof, in respect of anything done or suffered to be done by the Trustee or the Issuer in accordance therewith or reliance thereon.
SECTION 11.09. Disqualified Bonds.
In determining whether the Holders of the requisite aggregate principal amount of Bonds have concurred in any demand, request, direction, consent or waiver under this Bond Indenture, Bonds that are held by or for the account of the Issuer or the Borrower, or by any other obligor on the Bonds, or by any Person directly or indirectly controlling or controlled by, or under direct or indirect common control with, the Issuer, the Borrower or any other obligor on the Bonds, shall be disregarded and deemed not to be Outstanding for the purpose of any such determination. Bonds so owned that have been pledged in good faith may be regarded as Outstanding for the purposes of this Section if the pledgee shall establish to the satisfaction of the Trustee the pledgee’s right to vote such Bonds and that the pledgee is not a Person directly or indirectly controlling or controlled by, or under direct or indirect common control with, the Issuer, the Borrower or any other obligor on the Bonds. In case of a dispute as to such right, any decision by the Trustee taken upon the advice of counsel shall be full protection to the Trustee.
SECTION 11.10. Money Held for Particular Bonds.
The money held by the Trustee for the payment of the interest, principal or Redemption Price due on any date with respect to particular Bonds (or portions of Bonds in the case of registered Bonds redeemed in part only) shall, on and after such date and pending such payment, be set aside on its books and held in trust by it for the Holders of the Bonds entitled thereto, subject, however , to the provisions of Section 10.04 .
SECTION 11.11. Funds and Accounts.
Any fund or account required by this Bond Indenture to be established and maintained by the Trustee may be established and maintained in the accounting records of the Trustee, either as a fund or an account, and may, for the purposes of such records, any audits thereof and any reports or statements with respect thereto, be treated either as a fund or as an account; but all such records with respect to all such funds and accounts shall at all times be maintained in accordance with industry standards to the extent practicable, and with due regard for the requirements of Section 6.06 and for the protection of the security of the Bonds and the rights of every Holder thereof. The Trustee may establish such additional funds and accounts as it deems necessary to perform its obligations hereunder.
 
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SECTION 11.12. Limitation on Liability.
A. Limitation on Liability of Issuer. No provision of this Bond Indenture shall require the Issuer to expend or risk its own funds (other than the Revenues) or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, and all expenses of the Issuer in carrying out its obligations under this Bond Indenture shall be payable solely from and to the extent of funds derived by the Issuer from the Borrower. Anything in this Bond Indenture to the contrary notwithstanding, the performance by the Issuer of all duties and obligations imposed upon it hereby, the exercise by it of all powers granted to it hereunder, the carrying out of all covenants, agreements, and promises made by it hereunder, and liability of the Issuer for all warranties and other covenants herein shall be limited solely to the money and revenue received from the payments by the Borrower under the Loan Agreement, moneys attributable to the proceeds of Bonds, and income from the temporary investment thereof; and the Issuer shall not be required to effectuate any of such duties, obligations, powers, or covenants except from, and to the extent of, such moneys, revenues, proceeds, and payments. Whether or not therein expressly so provided, every provision of this Bond Indenture relating to the conduct or affecting the liability of the Issuer shall be subject to the provisions of this Section.
B. No Recourse Against Others . No recourse under or upon any obligation, covenant, or agreement contained in this Bond Indenture, or in any Bond, or for any claim based thereon or otherwise in respect thereof, shall be had against any incorporator, or against any past, present, or future director, officer, or employee, as such, of the Issuer, the Trustee, or any successor corporation, either directly or through the Issuer or the Trustee, whether by virtue of any constitution or statute or rule of law, or by the enforcement of any assessment, judgment, or penalty, or otherwise; it being expressly understood that this Bond Indenture and the Bonds are solely corporate obligations, and that no such personal liability whatever shall attach to, or is or shall be incurred by, the incorporators, directors, officers, or employees, as such, of the Issuer, the Trustee, or any successor corporation, or any of them, because of the creation of indebtedness hereby authorized, or under or by reason of the obligations, covenants, or agreements contained in this Bond Indenture or the Bonds or implied therefrom, and that any and all such personal liability either at common law or equity or by constitution or statute, of, and any and all such rights and claims against, every such incorporator, director, officer, or employee, as such, are hereby expressly waived and released as a condition of, and in consideration for, the execution of this Bond Indenture and the issuance of the Bonds.
SECTION 11.13. Credit Facility Providers and Bondholder Representative.
The Bondholder Representative for the Bonds of a subseries, if a Bondholder Agreement is in effect therefor, and otherwise the Credit Facility Provider, if a Credit Facility is in effect for the Bonds of any subseries and the Credit Facility Provider for such Bonds is not in default under the Credit Facility on which it is obligated, shall be deemed to be the owner of such Bonds for the purpose of all approvals, consents, waivers or institution of any action and the direction of all remedies, except as otherwise provided herein.
SECTION 11.14. Business Days.
When any action is provided for herein to be done on a day named or within a specified time period, and the day or the last day of the period falls on a day other than a Business Day, such action may be performed on the next ensuing Business Day with the same effect as though performed on the appointed day or within the specified period.
 
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SECTION 11.15. Governing Law.
This Bond Indenture and the Bonds are contracts made under the laws of the State of Texas and shall be governed by and construed in accordance with such laws applicable to contracts made and performed in said State.
SECTION 11.16. Execution in Several Counterparts.
This Bond Indenture may be executed in any number of counterparts and each of such counterparts shall for all purposes be deemed to be an original; and all such counterparts, or as many of them as the Issuer and the Trustee shall preserve undestroyed, shall together constitute but one and the same instrument.
SECTION 11.17. Consent to Loan Agreement; Exchange of Notes.
The Trustee is hereby authorized to, and does hereby, consent to execution and delivery by the Issuer and the Borrower of the amendment to the Loan Agreement to become effective simultaneously with this Bond Indenture.
On the effective date of this Bond Indenture, the Trustee shall exchange the “Note” (as defined in the Original Loan Agreement) held by it under the Original Bond Indenture for the Note (as defined in the Loan Agreement) issued to it by the Borrower on such effective date and, on behalf of the Borrower, shall cancel such “Note.”
SECTION 11.18. Effective Date and Effect.
This Bond Indenture shall become effective on August 19, 2014, provided that the Tender Agent shall have received the Purchase Price of all Bonds due on such date and (2) the Trustee shall have received written consents hereto from Bank of America, N.A. (as the Credit Facility Provider under the Original Bond Indenture) and an Opinion of Counsel to the effect that the Bonds issued pursuant to Section 3.01 are valid and enforceable obligations of the Issuer and interest on such Bonds is excludable from gross income of the owners thereof for federal income tax purposes, except with respect to any Bond for any period of time during which such Bond is held by a “substantial user” of any of the facilities financed with proceeds of the Bonds or by a “related person”, as such terms are defined in Section 147(a) of the Code. Promptly after this Bond Indenture has become effective, the Trustee shall cancel and release the letter of credit issued to it by Bank of America, N.A. under the Original Bond Indenture and return the same to the issuer thereof in accordance with Section 5.08F of the Original Bond Indenture.
Except as expressly modified by this Bond Indenture, the terms and provisions of the Original Bond Indenture shall remain in force and effect as restated hereby, all of which are expressly ratified and confirmed. No amendment to the Original Bond Indenture or the Bonds effected or authorized hereby is intended to or shall extinguish any indebtedness represented thereby.
*            *             *
 
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IN WITNESS WHEREOF, the Issuer has caused this Bond Indenture to be signed in its named by its duly authorized officer, and The Bank of New York Mellon Trust Company, National Association, in token of its acceptance of the trusts created hereunder, has caused this Bond Indenture to be signed in its corporate name by one of the officers thereunto duly authorized all as of the day and years first above written.

HARRIS COUNTY INDUSTRIAL
DEVELOPMENT CORPORATION	
		
By	 	/s/ Authorized Representative	
	 	Authorized Representative	
[ Signature page to Amended and Restated Bond Indenture Series 2011 ]
 
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[ This page is intentionally left blank ]

[ Signature page to Amended and Restated Bond Indenture Series 2011 ]
 
S-2

			
THE BANK OF NEW YORK MELLON TRUST
COMPANY, NATIONAL ASSOCIATION, as
Trustee	
		
By	 	/s/ Authorized Representative	
	 	Authorized Representative	

 
[ Signature page to Amended and Restated Bond Indenture Series 2011 ]
 
S-3

 
[ This page is intentionally left blank ]
 
[ Signature page to Amended and Restated Bond Indenture Series 2011 ]
 
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E XHIBIT A
T O
B OND I NDENTURE
(FORM OF BOND)
[ Insert legend from Section 2.20, if applicable ]
UNITED STATES OF AMERICA
STATE OF TEXAS
HARRIS COUNTY INDUSTRIAL DEVELOPMENT CORPORATION
MARINE TERMINAL REVENUE BOND
(HFOTCO LLC PROJECT)
SERIES 2011

BOND NUMBER
R-                     	  	PRINCIPAL AMOUNT
$                                  	

INTEREST RATE 1 :	  	DATED DATE 2 :	  	MATURITY DATE:	  	CUSIP:        	
 	  	 	  	 	  	 	
REGISTERED OWNER:                                                                                       
PRINCIPAL AMOUNT:                                                           DOLLARS
INITIAL INTEREST MODE:                                                                              
FIRST DAY OF INITIAL INTEREST PERIOD IN INITIAL INTEREST MODE:                                                        
The Harris County Industrial Development Corporation, a public non-profit corporation organized and existing under and by virtue of the laws of the State of Texas (hereinafter referred to as the “ Issuer ”), acknowledges itself indebted and for value received hereby promises to pay, but only from the sources mentioned herein, to the Registered Owner named above or registered assigns, the Principal Amount stated above on the Maturity Date stated above, upon the presentation and surrender hereof at the Principal Corporate Trust Office of the Trustee hereinafter mentioned, and to pay, but only from such sources, interest on such Principal Amount from the Dated Date stated above, or the most recent Interest Payment Date to which interest hereon has been paid or duly provided for, at the Interest Rate stated [above] 3 [in the Bond Indenture referred to herein] 4 , until the Principal Amount is paid, payable on [May 1 and November 1 of each year] 3 [the days provided in such Bond Indenture] 4 , and calculated as provided in the Bond Indenture referred to herein, which interest shall be paid by the Trustee hereinafter mentioned by check mailed (except as herein provided) to the Registered Owner hereof, at the address of such Registered Owner as it appears on the registration books kept by the Trustee, as registrar of the Issuer, as of the Record Date. Payment of the principal and Redemption Price of this Bond will be

1  	Insert applicable rate per annum for Fixed Rate Bonds and “Variable” for all other Bonds.	
2  	Insert date of initial delivery of the Bonds under the Original Bond Indenture.	
3  	Insert for Fixed Rate Bonds.	
4  	Insert for Bonds other than Fixed Rate Bonds.	
 
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payable at the Principal Corporate Trust Office of the Trustee referred to herein. Registered Owners of at least $1,000,000 principal amount of Bonds (hereinafter defined) may receive the payment of interest by wire transfer at the wire transfer address specified by such Owner in a written request received by the Trustee. The principal and Redemption Price of and interest on this Bond are payable in any coin or currency of the United States of America which at the time of payment is legal tender for the payment of public and private debts. When Cede & Co. is the Holder of the Bonds, said principal or Redemption Price and interest payments shall be made to Cede & Co. by wire transfer in immediately available funds.
Definitions . Unless otherwise defined herein, all terms herein shall have the same meanings, respectively, as such terms are given in the Bond Indenture (as hereafter defined).
Authority . This Bond is one of a duly authorized series of Bonds of the Issuer designated its “Marine Terminal Revenue Bonds (HFOTCO LLC Project), Series 2011” (hereinafter referred to as the “ Bonds ”), issued by the Issuer in the aggregate principal amount of $50,000,000 under and pursuant to the Development Corporation Act, Chapter 501, Texas Local Government Code, as amended to the date hereof (herein referred to as the “ Act ”), and pursuant to the Amended and Restated Bond Indenture, dated as of August 19, 2014 (herein, as supplemented and amended from time to time in accordance with its terms, referred to as the “ Bond Indenture ”), between the Issuer and The Bank of New York Mellon Trust Company, National Association, as trustee (together with its successors in trust, herein referred to as the “ Trustee ”). The Bonds are issued for the purposes described in the Bond Indenture.
Subseries . As provided in the Bond Indenture, the Bonds may be divided into subseries. This Bond is one of the subseries, if any, specified in its title.
Limitation on Recourse . The Bonds are secured by a pledge and assignment to the Trustee of the Revenues and the security therefor and guarantees thereof and by the proceeds from the sale of the Bonds (until disbursed as provided by the Bond Indenture) and all funds and accounts authorized and established by the Bond Indenture (with the exception of the Rebate Fund and the Purchase Fund). This Bond is a limited obligation of the Issuer payable solely from the Revenues specified in the Bond Indenture, which consist of certain payments received or receivable by the Issuer from the Borrower under the Loan Agreement.
No recourse shall be had for the payment of the principal or Redemption Price of or interest on this Bond or for any claims based thereon or under the Bond Indenture against any member, officer, agent or employee of the Issuer or any person executing this Bond, all such liability, if any, being hereby expressly waived and released by every Registered Owner of this Bond by the acceptance hereof, as provided in the Bond Indenture.
NEITHER THE STATE OF TEXAS NOR ANY POLITICAL CORPORATION, SUBDIVISION, OR AGENCY OF THE STATE OF TEXAS, INCLUDING HARRIS COUNTY, TEXAS, SHALL BE OBLIGATED TO PAY THE PRINCIPAL OF OR THE INTEREST ON THE BONDS. NEITHER THE FAITH AND CREDIT NOR THE TAXING POWER OF THE STATE OF TEXAS, HARRIS COUNTY, TEXAS, OR ANY OTHER POLITICAL CORPORATION, SUBDIVISION, OR AGENCY OF THE STATE OF TEXAS IS PLEDGED TO THE PAYMENT OF PRINCIPAL OF OR INTEREST OR ANY REDEMPTION PREMIUM ON THE BONDS. THE ISSUER HAS NO TAXING POWER.
Bond Indenture Controlling . Reference is hereby made to the Bond Indenture for a description of the rights, limitation of rights, duties and immunities of the Issuer, the Trustee, and the Registered Owners of the Bonds. By the acceptance of this Bond, the Registered Owner hereof assents to all provisions of the Bond Indenture. Certified copies of the Bond Indenture are on file at the Principal Corporate Trust Office of the Trustee.
 
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Redemption and Purchase in Lieu of Redemption . The Bonds shall be subject to optional and mandatory redemption, as well as purchase in lieu of redemption, all as provided in the Bond Indenture.
Selection of Bonds to Be Redeemed . In the case of Bonds to be redeemed at the election or direction of the Borrower, the Borrower will select the subseries (if any), Mode, maturities, Interest Periods, interest rates, and principal amounts of the Bonds to be redeemed; if less than all Bonds of the same subseries (if any), maturity, Interest Period, and interest rate are to be redeemed, the Bonds of such subseries, maturity, Interest Period and interest rate to be redeemed will be selected by the Trustee, by lot, using such method of selection as the Trustee in its discretion shall consider appropriate and fair, except as otherwise provided in the Bond Indenture; provided that Liquidity Facility Bonds (if any) of such subseries are to be redeemed first.
Notice of Redemption . The Trustee is to give notice of the redemption of the Bonds in the name of the Issuer as provided in the Bond Indenture, but the failure of any Bondholder other than the Holder of this Bond to receive such notice will not affect the validity of the proceedings for the redemption of this Bond.
If, on any redemption date, moneys for the redemption of the Bonds of this subseries then to be redeemed, together with interest thereon to the redemption date, are held by the Trustee so as to be available for payment of the Redemption Price, then interest on such Bonds will cease to accrue from and after the redemption date and such Bonds will no longer be considered to be Outstanding under the Bond Indenture.
Optional and Mandatory Tender for Purchase . Bonds or portions thereof in the Daily Mode, Weekly Mode, or R- FLOATs Mode are required to be purchased at the option of the Registered Owner on the dates, by the Persons, at the price, from and to the extent of the funds, and on the other terms and conditions provided in the Bond Indenture. The Bond Indenture requires this Bond or a specified portion hereof to be tendered by the Registered Owner for purchase upon each Mandatory Purchase Date therefor described in the Bond Indenture. By accepting this Bond the Holder hereof agrees to all such provisions in the Bond Indenture.
Acceleration . In case an Event of Default as defined in Section 7.01 of the Bond Indenture shall occur, the principal of and interest on this Bond may become or be declared due and payable in the manner and with the effect provided in the Bond Indenture.
Defeasance . The Bond Indenture permits a discharge and satisfaction of the pledge of the Revenues or other moneys and securities pledged by the Bond Indenture upon payment to the Trustee of moneys or certain Investment Securities in an amount which, together with interest thereon, would be sufficient to provide moneys for the payment when due of the principal or Redemption Price of and interest due and to become due on said Bonds on and prior to the redemption or maturity date thereof, as the case may be.
Limitation on Suits . The Registered Owner of this Bond shall have no right to institute any suit, action or proceeding in equity or at law for the execution of any trust under the Bond Indenture, or for any other remedy under the Bond Indenture, except as otherwise expressly provided in the Bond Indenture.
 
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Legal Holidays . If the specified date for any payment hereon shall be a Saturday, Sunday, or legal holiday or the equivalent (other than a moratorium) on which banking institutions generally are authorized to close in the place of payment or in the city in which is located the Principal Corporate Trust Office of the Trustee or shall otherwise be a day other than a Business Day, then such payment may be made on the next succeeding day which is not one of the foregoing days without additional interest and with the same force and effect as if made on the specified date for such payment.
Amendments . The Bond Indenture contains provisions permitting the Issuer to adopt Supplemental Bond Indentures modifying or amending the Bond Indenture and the rights and obligations of the Issuer and the Holders of the Bonds thereunder, in some cases without the consent of the Bondholders and in some cases with the written consent of the Holders of a majority in principal amount of the Bonds Outstanding thereunder; provided, however , that no such modification or amendment shall permit a change in the terms of redemption or maturity of the principal of any Outstanding Bond or of any installment of interest thereon or a reduction in the principal amount or the Redemption Price thereof or in the rate of interest thereon without the consent of the Holders of such Bond, or shall reduce the percentages or otherwise affect the classes of Bonds the consent of the Holders of which is required to effect any such modification or amendment.
Transfer and Exchange . This Bond is a negotiable instrument as provided in the Act, subject, however , to the provisions for registration and transfer contained in the Bond Indenture and in this Bond. This Bond is transferable, as provided in the Bond Indenture, only upon the registration books kept by the Trustee, as registrar of the Issuer, at the request of the Registered Owner hereof in person or by his attorney duly authorized in writing, upon surrender hereof together with a written instrument of transfer satisfactory to the Trustee duly executed by such Registered Owner or his duly authorized attorney and upon the payment of such charges as provided in the Bond Indenture. Upon surrender for transfer of this Bond, the Issuer shall issue in the name of the transferee a new Bond or Bonds in accordance with the provisions of the Bond Indenture and this Bond of the same aggregate principal amount and the same subseries, Interest Period, interest rate and maturity.
The Issuer and the Trustee may deem and treat the Person in whose name this Bond is registered upon the books of the Issuer as the absolute owner hereof, whether this Bond shall be overdue or not, for the purpose of receiving payment of, or on account of, the principal and Redemption Price of and interest on this Bond and for all other purposes whatsoever, and all such payments so made to the Registered Owner hereof or upon his order shall be valid and effectual to satisfy and discharge the liability upon this Bond to the extent of the sum or sums paid, and neither the Issuer nor the Trustee shall be affected by any notice to the contrary.
The Bonds are issuable as fully registered Bonds in denominations specified in the Bond Indenture. Bonds may, at the option of the Holders thereof, be exchanged for an equal aggregate principal amount of Bonds of the same maturity, subseries (if any), Interest Period, and interest rate of any other authorized denominations, upon surrender thereof at the Principal Corporate Trust Office of the Trustee with a written instrument of transfer satisfactory to the Trustee, duly executed by the Registered Owner or his attorney duly authorized in writing.
For every exchange or transfer of Bonds the Issuer or the Trustee may make a charge sufficient to reimburse the Issuer or the Trustee for any tax, fee or other governmental charge required to be paid with respect to such exchange or transfer, which sum or sums shall be paid by the Person requesting such exchange or transfer, as a condition precedent to the exercise of the privilege of making such exchange or transfer. The cost of preparing each new Bond issued upon such exchange or transfer and any other expenses of the Issuer or the Trustee incurred in connection therewith shall be paid by the Person requesting such exchange or transfer.
 
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Due Authority . It is hereby certified and recited by the Issuer that all conditions, acts, and things required by the statutes of the State of Texas and the Bond Indenture to exist, to have happened and to have been performed precedent to or in the issuance of the Bonds and of this Bond in order to make the Bonds and this Bond the legal, valid and binding limited obligations of the Issuer, in accordance with their terms, exist, have happened and have been performed in regular and due form as required by law, and that the issuance of the Bonds is within every debt limit and other limit upon the Issuer prescribed by law or by the Bond Indenture for the Issuer.
Severability; Governing Law . In case any provision in this Bond or any application thereof shall be invalid, illegal, or unenforceable, the validity, legality, and enforceability of the remaining provisions and applications shall not in any way be affected or impaired thereby. This Bond shall be construed in accordance with and governed by the laws of the State of Texas and the federal law of the United States of America.
Unless a certificate of authentication hereon has been executed by the Trustee, by manual signature, this Bond shall not be entitled to any benefit under the Bond Indenture or be valid or obligatory for any purpose.
[ The remainder of this page is intentionally left blank ]
 
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IN WITNESS WHEREOF, as provided by the Act, the Issuer has caused this Bond to be duly executed.

	 		 		 		 	HARRIS COUNTY INDUSTRIAL	
	 		 		 		 	DEVELOPMENT CORPORATION	
					
Date: 	 	 	 		 	By: 	 	 	
	 		 		 		 	[Title]	

(SEAL)	
	
ATTEST:	
		
By:	 	 	
	 	[Title]	
 
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C ERTIFICATE OF A UTHENTICATION
This Bond is one of the Bonds described in the within mentioned Bond Indenture, a predecessor Bond for which has been approved by the Attorney General of Texas and registered by the Comptroller of Public Accounts of the State of Texas.

 	
	 	[ Name of Trustee ], as Trustee	
		
By:	 	 	
	 	Authorized Signature	
 
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A BBREVIATIONS
The following abbreviations, when used in the inscription on the face of the within Bond, shall be construed as though they were written out in full according to applicable laws or regulations:
TEN COM – as tenants in common
TEN ENT – as tenants by the entireties
JT TEN – as joint tenants with right of survivorship and not as tenants in common
UNIF GIFT MIN ACT –                          Custodian                          under Uniform Gift to Minors Act
                                                 (Cust)                               (Minor)

	 	 	
	 	(State)	
Additional abbreviations may also be used though not in the above list.
A SSIGNMENT

FOR VALUE RECEIVED the undersigned hereby sell(s), assign(s) and transfer(s) unto                                                           	

PLEASE INSERT SOCIAL SECURITY OR
OTHER IDENTIFYING NUMBER OF ASSIGNEE

 	  		
 	
(please print or typewrite name and address including postal zip code of assignee)
 	
the within Bond and all rights thereunder, and hereby irrevocably constitutes and appoints                                                                       
                                                                                                                                                                                                               Attorney	
 	
to transfer the within Bond on the books kept for registration hereof, with full power of substitution in the premises.	
Dated:                                     	  		

		
NOTICE: Signature(s) must be guaranteed by an
“eligible guarantor institution” meeting the
requirements of the Trustee which requirements will
include membership or participation in STAMP or
such other “signature guarantee program; as may be
determined by the Trustee in addition to, or in
substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended.	  	NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of the Bond in every particular,
without alteration or enlargement or any
change whatsoever	
 
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E XHIBIT B
T O
B OND I NDENTURE
INVESTMENT SECURITIES
“ Investment Securities” means any of the following securities:
(1) Governments and Agencies: obligations of the United States of America or its agencies and instrumentalities;
(2) Government Guaranteed Obligations: other obligations, the principal of and interest on which are unconditionally guaranteed or insured by, or backed by the full faith and credit of, the United States of America or any agency or instrumentality thereof;
(3) Municipals: obligations of states, agencies, counties, cities, and political subdivisions of any state rated as to investment quality by S&P not less than “AA-” and by Moody’s not less than “A1/P-1” or “Aa3” and having a remaining term of one year or less;
(4) Insured CDs: certificates of deposit issued by a state or national bank or savings bank domiciled in the State of Texas and the short-term debt of which is rated at least “A1/P-1” or “Aa3” by Moody’s, if such certificates of deposit are for a fixed dollar amount plus a fixed rate of interest, and are guaranteed or insured by the Federal Deposit Insurance Corporation or its successor, and are not rated by S&P with the suffix “r”;
(5) Collateralized Repos: fully collateralized agreements to buy, hold for a specified time, and sell back at a future date obligations described in Clauses (1)  through (3)  immediately above, if such agreement:
(a) has a defined termination date within one year after purchase for a fixed principal sum plus interest;
(b) is secured by obligations described in such Clause (1) ;
(c) requires the securities being purchased to be pledged to the Trustee, held in the name of the Trustee, and deposited at the time the investment is made with the Trustee or with a third party selected and approved by Borrower Order;
(d) is placed through a primary government securities dealer, as defined by the Federal Reserve, or a financial institution doing business in the State of Texas; and
(e) is rated not less than “A-1+” by S&P and not less than “A1/P-1” or “Aa3” by Moody’s, and such rating by S&P does not include the suffix “r”, or the Trustee has received written confirmation from each Rating Agency that the investment of funds under such agreement will not result in the assignment of a rating to the Bonds of any subseries that is less than either such level;
(6) Bankers’ Acceptances: bankers’ acceptances that:
(a) have a stated maturity within three months after the date of issuance;
 
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(b) will be, in accordance with their terms, liquidated in full at maturity for a fixed dollar amount plus interest;
(c) are eligible as collateral for borrowing from a Federal Reserve Bank; and
(d) are issued by a bank organized and existing under the laws of the United States of America or any state, the short-term obligations of which bank are rated not less than “A-1+” by S&P and not less than “P-1” by Moody’s, and such rating by S&P does not include the suffix “r”;
(7) Commercial Paper: commercial paper that matures in a fixed dollar amount within three months after the date of its issuance, is rated not less than “A-1+” by S&P and not less than “P-1” by Moody’s, and such rating by S&P does not have an “r” appended to such rating;
(8) Money Market Mutual Funds: money market mutual funds that:
(a) are registered with and regulated by the United States Securities and Exchange Commission;
(b) provide the Trustee or the Issuer with a prospectus and other information required by the Securities Exchange Act of 1934 or the Investment Company Act of 1940;
(c) have a dollar-weight average stated maturity of 90 days or fewer;
(d) include in their investment objectives the maintenance of a stable net asset value of $1 per share; and
(e) are continuously rated as to investment quality not less than “AAAm” or “AAAm-G” by S&P and “Aaa” by Moody’s;
(9) Investment Contracts: obligations of any Person either (1) the long-term senior unsecured debt or claims-paying ability or financial strength of which, or of any unconditional guarantor of full and timely payment of its obligations thereunder, is rated at least “AA-” by S&P and “Aa3” by Moody’s or (2) both (a) which has agreed to pledge collateral therefor and (b) as to which the Trustee has received written confirmation from each Rating Service that an investment of funds under such obligation will not result in the assignment of a long-term rating to the Bonds by such Rating Service that is less than the lower of “AA-,” in the case of S&P, or “Aa3,” in the case of Moody’s, or the rating then assigned by such Rating Service to the long-term senior unsecured debt of the highest rated Credit Facility Provider (if any); and
(10) Deposit Agreements : demand deposits, including interest bearing money market accounts, time deposits, trust funds, trust accounts, overnight bank deposits, interest-bearing deposits, and certificates of deposit or bankers acceptances of depository institutions, including the Trustee or any of its affiliates, rated in the AA long-term ratings category or higher by S&P or Moody’s or which are fully FDIC-insured;
excluding, however , (A) obligations whse payment represents the coupon payments on the outstanding principal balance of underlying mortgage-backed securities collateral and pays no principal; (B) obligations whose payment represents the principal stream of cash flow from underlying mortgage-backed securities collateral and bears no interest; (C) collateralized mortgage obligations that have a
stated final maturity date of greater than 10 years; and (D) collateralized mortgage obligations the interest rate on which is determined by an index that adjusts opposite to the changes in a market index.
 
B-2

E XHIBIT C
T O
B OND I NDENTURE
FORM OF REQUISITION

[Name and Address of Trustee]
Re: Harris County Industrial Development Corporation Marine Terminal Revenue Bonds (HFOTCO LLC Project) Series 2011
REQUISITION NO.        
Ladies and Gentlemen:
HFOTCO LLC, as the Borrower under the Amended and Restated Bond Indenture, dated as of August 19, 2014 (the “ Bond Indenture ”), from the Issuer of the above referenced Bonds to you, as Trustee, hereby directs you to withdraw the sum of $         from the Costs of Issuance Fund and $         from the Project Fund established under the Bond Indenture and to disburse such amounts [ insert payment instructions ].
In connection with this direction, the undersigned officers of the Borrower state that:
1. Eligible Costs : The Borrower has incurred Costs of the Projects at least equal to the above amount, no such Costs are the basis for any other requisition by the Borrower which has previously been honored or is now pending under the Bond Indenture, and either (a) such Costs were paid by the Borrower on or after June 7, 2010, or have not yet been paid by the Borrower, or (b) such Costs were incurred subsequent to, and paid from one or more draws under, a borrowing by the Borrower for such purpose, and the disbursement requested hereby will be applied to repay such borrowing in the same amount, or (c) such Costs were architectural, engineering, survey, soil testing, and similar costs incurred prior to commencement of the acquisition, construction, or rehabilitation of the Projects (other than land acquisition, site preparation, and similar costs incident to commencement of construction), or (d) such Costs are costs of issuance of the Bonds.
2. Limited Costs of Issuance and Non-Qualifying Project Costs : The disbursement requested hereby, when added to all previous disbursements from the Project Fund, will not result in financing by the Bonds of (a) costs of issuance of the Bonds in an amount which exceeds 2% of the proceeds (i.e., issue price exclusive of accrued interest) of the Bonds or (b) costs of issuance of the Bonds and property other than “qualified project costs” for Hurricane Ike Disaster Area Bonds in an aggregate amount that exceeds 5% of the net proceeds (i.e., proceeds reduced by amounts in a reasonably required reserve or replacement fund) of the Bonds.
All capitalized terms herein have the meanings ascribed to such terms in the Bond Indenture.

Very truly yours,	
	
HFOTCO LLC	
		
By:	 	 	
[Name of officer]	
[Title]	
 
C-1

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C-2

Exhibit 4.3

 
HARRIS COUNTY INDUSTRIAL DEVELOPMENT CORPORATION
and
THE BANK OF NEW YORK MELLON TRUST COMPANY,
NATIONAL ASSOCIATION,
as Trustee

 
AMENDED AND RESTATED BOND INDENTURE
Dated as of August 19, 2014

$100,000,000
HARRIS COUNTY INDUSTRIAL DEVELOPMENT CORPORATION
MARINE TERMINAL REVENUE BONDS
(HFOTCO LLC PROJECT)
SERIES 2012

 

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TABLE OF CONTENTS

 	 	 	  	Page	 	
PARTIES	 		  	 	1	 	
RECITALS	 		  	 	1	 	
GENERAL AGREEMENT	  	 	1	 	
	
ARTICLE I
DEFINITIONS; CONTENT OF CERTIFICATES AND OPINIONS	 
 	
SECTION 1.01.	 	Definitions	  	 	2	 	
SECTION 1.02.	 	Content of Certificates and Opinions	  	 	20	 	
SECTION 1.03.	 	Interpretation	  	 	20	 	
	
ARTICLE II	 	
THE BONDS	 	
			
SECTION 2.01.	 	Authorization of Bonds	  	 	22	 	
SECTION 2.02.	 	Denominations; Form; Date; Maturity; Numbering; Interest Accrual; Subseries	  	 	22	 	
SECTION 2.03.	 	Payment of Principal of and Interest on the Bonds	  	 	23	 	
SECTION 2.04.	 	Initial Mode; Change of Mode	  	 	24	 	
SECTION 2.05.	 	Determination of Commercial Paper Rates, Purchase Date and Interest Periods During Commercial Paper Mode	  	 	25	 	
SECTION 2.06.	 	Determination of Interest Rates During the Daily Mode, the Weekly Mode and the R-FLOATs Mode	  	 	26	 	
SECTION 2.07.	 	Determination of Indexed Rates	  	 	28	 	
SECTION 2.08.	 	Determination of Stepped Coupon Rate	  	 	30	 	
SECTION 2.09.	 	Determination of Term Rates	  	 	30	 	
SECTION 2.10.	 	Determination of Fixed Rate	  	 	31	 	
SECTION 2.11.	 	Alternate Rate for Interest Calculation	  	 	31	 	
SECTION 2.12.	 	Changes in Mode and Maximum Rate	  	 	32	 	
SECTION 2.13.	 	Form of Bonds	  	 	36	 	
SECTION 2.14.	 	Execution of Bonds	  	 	36	 	
SECTION 2.15.	 	Transfer of Bonds	  	 	37	 	
SECTION 2.16.	 	Exchange of Bonds	  	 	37	 	
SECTION 2.17.	 	Bond Register	  	 	37	 	
SECTION 2.18.	 	Temporary Bonds	  	 	38	 	
SECTION 2.19.	 	Bonds Mutilated, Lost, Destroyed or Stolen	  	 	38	 	
SECTION 2.20.	 	Use of Securities Depository	  	 	38	 	
SECTION 2.21.	 	The Calculation Agent	  	 	40	 	
	
ARTICLE III	 	
ISSUANCE OF BONDS; APPLICATION OF PROCEEDS	 	
			
SECTION 3.01.	 	Issuance and Exchange of the Bonds	  	 	42	 	
SECTION 3.02.	 	Application of Proceeds of the Bonds	  	 	42	 	
SECTION 3.03.	 	Establishment and Application of Costs of Issuance Fund	  	 	42	 	
 
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TABLE OF CONTENTS
(cont’d)

 	 	 	  	Page	 	
SECTION 3.04.	 	Establishment and Application of Project Fund	  	 	42	 	
SECTION 3.05.	 	Validity of Bonds	  	 	43	 	
	
ARTICLE IV	 	
REDEMPTION AND TENDER OF BONDS	 	
			
SECTION 4.01.	 	Terms of Redemption and Purchase in Lieu of Redemption	  	 	44	 	
SECTION 4.02.	 	Selection of Bonds for Redemption or Purchase	  	 	47	 	
SECTION 4.03.	 	Notice of Redemption	  	 	47	 	
SECTION 4.04.	 	Partial Redemption of Bonds	  	 	48	 	
SECTION 4.05.	 	Effect of Redemption	  	 	48	 	
SECTION 4.06.	 	Optional Tenders of Bonds in the Daily Mode, the Weekly Mode or the R-FLOATs Mode	  	 	48	 	
SECTION 4.07.	 	Mandatory Purchase at End of Commercial Paper Rate Periods	  	 	49	 	
SECTION 4.08.	 	Mandatory Purchase on Mode Change Date, Election to Set a Special R-FLOATs Rate Period or on Borrower Request	  	 	49	 	
SECTION 4.09.	 	Mandatory Purchase at End of Interest Period in Term Rate Mode or Term Indexed Mode or term rate R-FLOATs Rate Interest Period	  	 	50	 	
SECTION 4.10.	 	Mandatory Purchase on Expiration Date, New Liquidity Facility Date, New Credit Facility Date and Termination Date	  	 	50	 	
SECTION 4.11.	 	Remarketing of Bonds; Notices	  	 	51	 	
SECTION 4.12.	 	General Provisions Relating to Tenders	  	 	52	 	
SECTION 4.13.	 	The Remarketing Agents	  	 	55	 	
SECTION 4.14.	 	Qualifications and Substitution of Remarketing Agent	  	 	56	 	
SECTION 4.15.	 	The Tender Agent	  	 	57	 	
SECTION 4.16.	 	Qualifications of Tender Agent	  	 	57	 	
SECTION 4.17.	 	Release of Liquidity Facilities	  	 	58	 	
SECTION 4.18.	 	Acceptance of and Amendments to Liquidity Facilities	  	 	59	 	
ARTICLE V
REVENUES; FUNDS AND ACCOUNTS; PAYMENT OF PRINCIPAL AND INTEREST

SECTION 5.01.	 	Pledge and Assignment	  	 	61	 	
SECTION 5.02.	 	Interest Fund	  	 	61	 	
SECTION 5.03.	 	Principal Fund	  	 	62	 	
SECTION 5.04.	 	Redemption Fund	  	 	63	 	
SECTION 5.05.	 	Investment of Moneys	  	 	63	 	
SECTION 5.06.	 	Rebate Fund	  	 	65	 	
SECTION 5.07.	 	Draws or Claims Under Credit Facilities	  	 	66	 	
SECTION 5.08.	 	Release of Credit Facilities	  	 	67	 	
SECTION 5.09.	 	Acceptance of and Amendments to Credit Facility	  	 	68	 	
SECTION 5.10.	 	Credit Facility Fund	  	 	69	 	
 
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TABLE OF CONTENTS
(cont’d)

 	 	 	  	Page	 	
ARTICLE VI	 	
PARTICULAR COVENANTS	 	
			
SECTION 6.01.	 	Punctual Payment	  	 	71	 	
SECTION 6.02.	 	Extension of Payment of Bonds	  	 	71	 	
SECTION 6.03.	 	Against Encumbrances	  	 	71	 	
SECTION 6.04.	 	Power to Issue Bonds and Make Pledge and Assignment	  	 	71	 	
SECTION 6.05.	 	Accounting Records and Financial Statements	  	 	71	 	
SECTION 6.06.	 	Tax Covenants	  	 	72	 	
SECTION 6.07.	 	Enforcement and Amendment of Loan Agreement	  	 	73	 	
SECTION 6.08.	 	Waiver of Laws	  	 	74	 	
SECTION 6.09.	 	Further Assurances	  	 	74	 	
	
ARTICLE VII	 	
EVENTS OF DEFAULT AND REMEDIES OF BONDHOLDERS	 	
			
SECTION 7.01.	 	Events of Default	  	 	75	 	
SECTION 7.02.	 	Acceleration of Maturities	  	 	76	 	
SECTION 7.03.	 	Institution of Legal Proceedings by Trustee	  	 	77	 	
SECTION 7.04.	 	Application of Revenues and Other Funds After Default	  	 	78	 	
SECTION 7.05.	 	Trustee to Represent Bondholders	  	 	79	 	
SECTION 7.06.	 	Credit Facility Provider’s and Bondholders’ Direction of Proceedings	  	 	79	 	
SECTION 7.07.	 	Limitation on Bondholders’ Right to Sue	  	 	80	 	
SECTION 7.08.	 	Absolute Obligation of Issuer	  	 	80	 	
SECTION 7.09.	 	Termination of Proceedings	  	 	80	 	
SECTION 7.10.	 	Remedies Not Exclusive	  	 	81	 	
SECTION 7.11.	 	Waivers of Default	  	 	81	 	
SECTION 7.12.	 	Notice to Bondholders of Default	  	 	81	 	
	
ARTICLE VIII
THE TRUSTEE AND AGENTS	 

SECTION 8.01.	 	Duties, Immunities and Liabilities of Trustee	  	 	82	 	
SECTION 8.02.	 	Merger or Consolidation	  	 	83	 	
SECTION 8.03.	 	Liability of Trustee	  	 	83	 	
SECTION 8.04.	 	Right of Trustee and Tender Agent to Rely on Documents	  	 	85	 	
SECTION 8.05.	 	Preservation and Inspection of Documents	  	 	85	 	
SECTION 8.06.	 	Separate or Co-Trustee	  	 	85	 	
SECTION 8.07.	 	Compensation and Indemnification	  	 	86	 	
SECTION 8.08.	 	Notice to Rating Agency	  	 	87	 	
SECTION 8.09.	 	Facsimile and Electronic Transmissions	  	 	87	 	
SECTION 8.10.	 	Collateral Agent	  	 	87	 	
 
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TABLE OF CONTENTS
(cont’d)

 	 	 	  	Page	 	
ARTICLE IX
MODIFICATION OR AMENDMENT OF THIS BOND INDENTURE	 

SECTION 9.01.	 	Amendments Permitted	  	 	90	 	
SECTION 9.02.	 	Effect of Supplemental Bond Indenture	  	 	92	 	
SECTION 9.03.	 	Endorsement of Bonds; Preparation of New Bonds	  	 	92	 	
SECTION 9.04.	 	Amendment of Particular Bonds	  	 	92	 	
SECTION 9.05.	 	Consent by Purchasers or Remarketing Agent	  	 	92	 	
	
ARTICLE X	 	
DEFEASANCE	 	
			
SECTION 10.01.	 	Discharge of Bond Indenture	  	 	93	 	
SECTION 10.02.	 	Discharge of Liability on Bonds	  	 	93	 	
SECTION 10.03.	 	Deposit of Money or Securities with Trustee	  	 	94	 	
SECTION 10.04.	 	Payment of Bonds After Discharge of Bond Indenture	  	 	94	 	
	
ARTICLE XI	 	
MISCELLANEOUS	 	
			
SECTION 11.01.	 	Liability of Issuer Limited	  	 	96	 	
SECTION 11.02.	 	Successor Is Deemed Included in All References to Predecessor	  	 	96	 	
SECTION 11.03.	 	Limitation of Rights to Parties and Certain Other Persons	  	 	96	 	
SECTION 11.04.	 	Waiver of Notice	  	 	96	 	
SECTION 11.05.	 	Destruction of Bonds	  	 	96	 	
SECTION 11.06.	 	Severability of Invalid Provisions	  	 	97	 	
SECTION 11.07.	 	Notices	  	 	97	 	
SECTION 11.08.	 	Evidence of Rights of Bondholders	  	 	98	 	
SECTION 11.09.	 	Disqualified Bonds	  	 	99	 	
SECTION 11.10.	 	Money Held for Particular Bonds	  	 	99	 	
SECTION 11.11.	 	Funds and Accounts	  	 	99	 	
SECTION 11.12.	 	Limitation on Liability	  	 	100	 	
SECTION 11.13.	 	Credit Facility Providers and Bondholder Representative	  	 	100	 	
SECTION 11.14.	 	Business Days	  	 	100	 	
SECTION 11.15.	 	Governing Law	  	 	101	 	
SECTION 11.16.	 	Execution in Several Counterparts	  	 	101	 	
SECTION 11.17.	 	Consent to Loan Agreement; Exchange of Notes	  	 	101	 	
SECTION 11.18.	 	Effective Date and Effect	  	 	101	 	
			
TESTIMONIUM	 		  	 	S-1	 	
SIGNATURES	 		  	 	S-1	 	
		
EXHIBIT A – FORM OF BOND	  	 	A-1	 	
EXHIBIT B – INVESTMENT SECURITIES	  	 	B-1	 	
EXHIBIT C – FORM OF REQUISITION	  	 	C-1	 	
 
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BOND INDENTURE
THIS AMENDED AND RESTATED BOND INDENTURE, dated as of August 19, 2014 (this “ Bond Indenture ”), between the Harris County Industrial Development Corporation, a Texas public non-profit corporation (the “ Issuer ”), and The Bank of New York Mellon Trust Company, National Association, a national banking association organized and existing under the laws of the United States of America, as trustee (the “ Trustee ”), being qualified to accept and administer the trusts hereby created,
W I T N E S S E T H:
WHEREAS, the Issuer was created pursuant to the Development Corporation Act of 1979, now codified as Chapter 501, Texas Local Government Code, as amended (the “ Act ”), to act on behalf of Harris County, Texas, for the purpose of, among other things, the promotion and development of enterprises to promote and encourage employment and the public welfare; and
WHEREAS, HFOTCO LLC, a limited liability company organized under the laws of the State of Texas (the “ Borrower ”), requested financial assistance from the Issuer to provide funds to finance eligible costs of the projects described in the Loan Agreement referred to herein (the “ Projects ”); and
WHEREAS, the Issuer issued its Marine Terminal Revenue Bonds (HFOTCO LLC Project), Series 2012 (the “ Bonds ”) to finance eligible costs of the Projects; and
WHEREAS, the Issuer entered into a Loan Agreement, dated as of October 1, 2012, with the Borrower, under which the Issuer loaned to the Borrower the proceeds of the Bonds to provide for the financing of eligible costs of the Projects and the Borrower agreed to make loan payments in amounts and by times sufficient to pay the principal of and premium, if any, and interest on the Bonds and certain related expenses; and
WHEREAS, in order to provide for the authentication and delivery of the Bonds, to establish and declare the terms and conditions upon which the Bonds were to be issued and secured, and to secure the payment of the principal thereof and premium, if any, and interest thereon, the Issuer executed and delivered that certain Bond Indenture, dated as of October 1, 2012, with the Trustee (the “ Original Bond Indenture ”); and
WHEREAS, at the request of the Borrower, the Issuer desires to amend and restate the Original Bond Indenture as herein provided in order to permit the Bonds to be converted to a Mode in which they will bear interest at a function of an interest rate index for a term ending prior to the Maturity Date, and the Original Bond Indenture may be amended for such purpose on the conditions described in Section 9.01B(7) ; and
WHEREAS, all acts and proceedings required by law necessary to make the Bonds, when executed by the Issuer, authenticated and delivered by the Trustee, and duly issued (including as authorized hereby to be amended), valid, binding and legal limited obligations of the Issuer, and to constitute this Bond Indenture a valid and binding agreement for the uses and purposes herein set forth in accordance with its terms, have been done and taken, and the execution and delivery of this Bond Indenture have been in all respects duly authorized;
NOW, THEREFORE, the parties hereto hereby amend and restate the Original Bond Indenture to read as follows:
 
1

THIS BOND INDENTURE WITNESSETH, that in order to secure the payment of the principal of and premium, if any, and the interest on all Bonds at any time issued and outstanding under this Bond Indenture, according to their tenor, and to secure the performance and observance of all the covenants and conditions therein and herein set forth, and to declare the terms and conditions upon and subject to which the Bonds are to be issued and received, and in consideration of the premises and of the mutual covenants herein contained and of the purchase and acceptance of the Bonds by the Holders thereof, and for other valuable consideration, the receipt and sufficiency whereof are hereby acknowledged, the Issuer does hereby covenant and agree with the Trustee, for the benefit of the respective registered owners from time to time of the Bonds, as follows:
ARTICLE I
DEFINITIONS; CONTENT OF CERTIFICATES AND OPINIONS
SECTION 1.01. Definitions.
Unless the context otherwise requires, the terms defined in this Section shall, for all purposes of this Bond Indenture and of any indenture supplemental hereto and of any certificate, opinion or other document herein mentioned, have the meanings herein specified, to be equally applicable to both the singular and plural forms of any of the terms herein defined.
“ Act ” means Chapter 501, Texas Local Government Code, as amended.
“ Additional Payments ” means the payments so designated and required to be made by the Borrower pursuant to Sections 3.06, 5.03 and 5.05 of the Loan Agreement.
“ Administrative Fees and Expenses ” means any application, commitment, financing or similar fee charged, or reimbursement for administrative or other expenses incurred, by the Issuer or the Trustee.
“ Affiliate ” of any specified Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified Person. For purposes of this definition, “ control ” when used with respect to any specified Person means the power to direct the management and policies of such Person, directly or indirectly, whether by contract, through the ownership of voting securities or the power to appoint and remove directors or trustees, or otherwise; and the terms “ controlling ” and “ controlled ” have meanings correlative to the foregoing.
“ Alternate Rate ” means, unless as otherwise set forth in a Supplemental Bond Indenture, (1) with respect to Bonds in a Daily Mode or a Weekly Mode, an annual rate equal to the lower of the percentages of the SIFMA Municipal Swap Index shown in the following table opposite the highest short-term and the highest long-term rating assigned to the Bonds by any Rating Agency:

2

							
Short-Term Rating	  	 	  	Long-Term Rating	  	% of SIFMA
Municipal Swap
Index (Tax-
Exempt)	
A1 or P-1 or F1	  	and	  	AAA or Aaa or AAA	  	150%	
A1 or P-1 or F1	  	and	  	AA or Aa or AA	  	250%	
A1 or P-1 or F1	  	and	  	A or A or A	  	350%	
A2 or P-2 or F2	  	and	  	BBB or Baa or BBB	  	450%	
A3 or P-3 or F3
or below	  	and	  	BBB- or Baa3 or BBB-
or below	  	Maximum Rate	
(2) with respect to Bonds in a Commercial Paper Mode or a Term Rate Mode, an annual rate equal to the lower of the percentages shown in the following table, opposite the highest short-term rating (except during a Term Rate Mode with Interest Periods longer than three years) and the highest long-term rating assigned to the Bonds by any Rating Agency, of LIBOR with a term nearest to the length of the Interest Period for which the Alternate Rate is calculated:

 	  	 	  	 	  	% of LIBOR	
Short-Term Rating	  	 	  	Long-Term Rating	  	(Tax-Exempt)	
A1 or P-1 or F1	  	and	  	AAA or Aaa or AAA	  	100%	
A1 or P-1 or F1	  	and	  	AA or Aa or AA	  	200%	
A1 or P-1 or F1	  	and	  	A or A or A	  	300%	
A2 or P-2 or F2	  	and	  	BBB or Baa or BBB	  	400%	
A3 or P-3 or F3
or below	  	and	  	BBB- or Baa3 or BBB-
or below	  	Maximum Rate	
(3) with respect to Bonds in any R-FLOATs Mode, an annual rate equal to the Maximum Rate, and (4) with respect to Bonds in a Term Indexed Mode (a) if the LIBOR Index is less than 1% per annum as of the most recent LIBOR Index Reset Date on or before such day, then 1% per annum, and (b) if the LIBOR Index is equal to or greater than 1% per annum as of such LIBOR Index Reset Date, then 74% of the LIBOR Index for such LIBOR Index Reset Date.
“ Applicable Factor ” means (1) 70% for the initial Interest Period in the Initial LIBOR Term Indexed Mode and (2) for any subsequent Interest Period in a LIBOR Term Indexed Mode means the factor greater than 65% but not more than 135% to be applied to LIBOR for the Rate Determination Date for such Interest Period in determining the LIBOR Term Indexed Rate in such Interest Period, which shall be as determined by the Remarketing Agent on the Rate Determination Date for such Interest Period.
“ Applicable Spread “ means the per annum rate to be added to the LIBOR Index or any function thereof (as described in the definition thereof in this Section) when Bonds are in a LIBOR Term Indexed Mode, or to the SIFMA Index when Bonds are in a SIFMA Term Indexed Mode, to determine the Indexed Rate for such Bonds pursuant to Section 2.07 . During any day in the initial Interest Period of the Initial LIBOR Term Indexed Mode, the Applicable Spread shall be the “Applicable Spread” (as defined in the initial Bondholder Agreement) so determined for such day in accordance with the initial Bondholder Agreement, which is 1.40% per annum on the first day of such Initial LIBOR Term Indexed Mode, provided that no change in the Applicable Spread in the Initial

3

LIBOR Term Indexed Mode shall be effective unless and until the Trustee receives written notice of such change from the Bondholder Representative or the Borrower. The Applicable Spread for any other Indexed Mode or Interest Period shall be as determined by the Remarketing Agent, or pursuant to any function or scale determined by the Remarketing Agent, prior to the first day of such Interest Period.
“ Authorized Representative ” means the President, the Chief Financial Officer, the Treasurer, or any Vice President of the Borrower or any other person designated as an Authorized Representative of the Borrower by a Certificate of the Borrower signed by another Authorized Representative of the Borrower and filed with the Trustee.
“ Available Money” means all amounts as to which the Trustee and the Credit Facility Providers have received an Opinion of Counsel stating that no disbursement thereof pursuant to this Bond Indenture may be avoided or otherwise recovered under Section 547 (or under Section 550 in respect of such Section) of the Bankruptcy Code or under any similar provision of applicable state law in the event of the bankruptcy, insolvency, liquidation, reorganization, or similar proceeding in respect of the Issuer or the Borrower.
“ Bank Settlement Deadline ” means 30 minutes before the applicable DTC Settlement Deadline.
“ Bond Counsel ” means legal counsel of recognized national standing in the field of obligations the interest on which is excluded from gross income for federal income tax purposes, selected by the Borrower and not objected to by the Trustee or the Credit Facility Provider (if any).
“ Bond Indenture ” means this Bond Indenture, as originally executed or as it may from time to time be supplemented, modified or amended by any Supplemental Bond Indenture.
“ Bond Register ” means the register maintained by the Trustee to record ownership and transfers of the Bonds.
“ Bondholder ” means the Holder of a Bond.
“ Bondholder Agreement “ means (1) until the Bonds are all repurchased by the Borrower or upon remarketing at the end of or during the initial Interest Period in the Initial LIBOR Term Indexed Mode, the Continuing Covenant Agreement, dated as of August 19, 2014, among the Borrower, Buffalo Gulf Coast Terminals LLC, Bank of America, N.A., as Administrative Agent and Collateral Agent, and the Bondholders from time to time party thereto, as originally executed or (if the Trustee receives a Favorable Opinion of Bond Counsel or no change to the definition of “Applicable Spread,” “Default Rate,” or “Determination of Taxability” therein is effected thereby) as supplemented and amended from time to time, and (2) thereafter any agreement entered into by the Borrower with a Bondholder to induce the Bondholder to purchase Bonds, stating that it is a “Bondholder’s Agreement” hereunder, and delivered to the Trustee, if (a) the Trustee receives a Favorable Opinion of Bond Counsel and (b) such agreement requires a Person (who may be the Bondholder Representative) to give prompt notice to the Trustee of any change in the Reserve Percentage, the Default Rate, the Applicable Factor, or the Applicable Spread, when applicable.
 
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“ Bondholder Representative ” means the Person or Persons, if any, authorized by the Bondholder Agreement to take actions, give directions, provide consents, or give or rescind notices to the Trustee on behalf of all (or any required percentage) of the Bondholders and otherwise take such actions and exercise such powers as are delegated by the Bondholders to the Bondholder Representative under the Bondholder Agreement, but only while such Bondholder Agreement is in effect. The Bondholder Representative during the initial Interest Period in the Initial LIBOR Term Indexed Mode is Bank of America, N.A., in its capacity as administrative agent under the initial Bondholder Agreement, or its successors or assigns in such capacity under the initial Bondholder Agreement. Upon any resignation of the Bondholder Representative under the Bondholder Agreement (with written notice of such resignation given to the Trustee) and until the Trustee receives written notice that a new Bondholder Representative has been appointed, the references in this Bond Indenture to “Bondholder Representative” shall be of no effect. For the avoidance of doubt, any resignation or replacement of Bank of America, N.A., as administrative agent under the initial Bondholder Agreement with written notice to the Trustee shall automatically constitute its resignation or replacement as Bondholder Representative hereunder.
“ Bonds ” means all Marine Terminal Revenue Bonds (HFOTCO LLC Project), Series 2012 of the Issuer, authenticated and delivered under the Original Bond Indenture or this Bond Indenture.
“ Borrower ” means HFOTCO LLC, a limited liability company duly organized and existing under the laws of the State of Texas.
“ Borrower Purchase Account ” means the account by that name within the Purchase Fund established pursuant to Section 4.12 .
“ Business Day ,” when used in respect of the Bonds or any subseries thereof, means a day that is not a Saturday, Sunday or legal holiday on which banking institutions generally in the State of Texas, the State of New York or any state in which the office of the Liquidity Facility Provider (if any), Credit Facility Provider (if any), Calculation Agent (if any), Bondholder Representative (if any), or Remarketing Agent (if any) for such Bonds, the Tender Agent (unless such Bonds are in a Term Rate Mode, Term Indexed Mode, Stepped Coupon Mode, or Fixed Rate Mode), or the Trustee at which its obligations under the applicable Credit Facility, Liquidity Facility, or Remarketing Agreement or this Bond Indenture are performed is located are authorized to remain closed or a day on which the New York Stock Exchange is closed and, when used with respect to any LIBOR Index determination, means any day on which dealings in U.S. dollar deposits are conducted by and between banks in the London interbank market and on which the principal office of the Calculation Agent is open for business.
“ Calculation Agent ” means any Person engaged by the Borrower to determine the Indexed Rates (which shall be Bank of America, N.A., or any successor approved by it, during the initial Interest Period in the Initial LIBOR Term Indexed Mode) and its successors and assigns.
“ Certificate,” “Statement,” “Request,” “Requisition” and “Order” of the Issuer or the Borrower, mean, respectively, a written certificate, statement, request, requisition or order signed in the name of the Issuer by the President or any Vice President of the Issuer or such other person as may be designated and authorized to sign for the Issuer and designated by the President or any Vice President of the Issuer in writing to the Trustee, or in the name of the Borrower by an Authorized Representative of the Borrower. Any such instrument and supporting opinions or representations, if any, may, but need not, be combined in a single instrument with any other instrument, opinion or representation, and the two or more so combined shall be read and construed as a single instrument. If and to the extent required by Section 1.02 , each such instrument shall include the statements provided for in Section 1.02 .

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“ Code ” means the Internal Revenue Code of 1986, as amended, or any successor statute thereto, and any regulations promulgated thereunder, to the extent applicable to the taxation of interest on the Bonds.
“ Commercial Paper Mode ” means the Mode during which the Bonds or any subseries bear interest at the Commercial Paper Rate.
“ Commercial Paper Rate ” means the per annum interest rate determined pursuant to Section 2.05 with respect to any Bond in any Interest Period while in the Commercial Paper Mode.
“ Common Issue Bonds ” means the Bonds and any other tax- exempt bonds sold within 15 days of the first day on which there is a binding written contract for the sale or exchange of the Bonds and which are payable from loan payments to be made by the Borrower, which bonds are part of the same “ issue ,” as defined in section 1.150-1(c) of the Regulations, as the Bonds and include the Issuer’s Marine Terminal Revenue Bonds (HFOTCO LLC Project) Series 2010 and Series 2011.
“ Cost ” when used with respect to any Project has the meaning stated in the Loan Agreement.
“ Costs of Issuance ” means all items of expense directly or indirectly payable by or reimbursable to the Issuer or the Borrower and related to the authorization, issuance, sale and delivery of the Bonds, including but not limited to costs of preparation and reproduction of documents, printing expenses, filing and recording fees, initial fees and charges of the Trustee and its counsel, the Remarketing Agents and the Tender Agent, legal fees and charges, fees and disbursements of consultants and professionals, fees and charges for preparation, execution and safekeeping of the Bonds and any other cost, charge or fee in connection with the original issuance of the Bonds.
“ Costs of Issuance Fund ” means the fund of the Borrower by that name established pursuant to Section 3.03 .
“ Credit Facility ” for the Bonds or any subseries thereof means a letter of credit, including, if applicable, a confirming letter of credit, bond insurance policy or similar credit facility issued by a commercial bank, savings institution, insurer or other financial institution, or any portion thereof, which, by its terms, shall provide for or insure the payment of the principal of and interest on such Bonds when due, and delivered to and accepted by the Trustee pursuant to Section 5.09 .
“ Credit Facility Fund ” means the fund of the Trustee by that name established pursuant to Section 5.10 .
“ Credit Facility Provider ”, when used in respect of the Bonds or any subseries thereof, means the commercial bank, savings institution, insurer or other Person issuing the Credit Facility for such Bonds. The initial Credit Facility Provider is Bank of America, N.A.
“ Current Mode ” shall have the meaning specified in Section 2.12 .
“ Daily Mode ” means the Mode during which the Bonds or any subseries thereof bear interest at the Daily Rate.
“ Daily Rate ” means an interest rate that is determined pursuant to Section 2.06 on each Business Day with respect to the Bonds or any subseries thereof while in the Daily Mode.

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“ Default Rate ” as of any date means (1) the rate defined as the “Default Rate” in any Bondholder Agreement then in effect, and (2) at all other times, the rate of interest that would then be borne by the Bonds if they did not bear interest at the Default Rate.
“ Depository Participant ” means a member of, or participant in, the Securities Depository.
“ Determination of Taxability ” shall have the meaning stated in the Bondholder Agreement, except that no Determination of Taxability shall occur or exist unless and until the Trustee has received written notice thereof from the Bondholder Representative or, if none, a Bondholder.
“ Draw Deadline ” means the time by which the Credit Facility Provider or Liquidity Facility Provider must receive documentation from the Trustee to be obligated to advance funds to pay principal of or interest on or the Purchase Price of Bonds by the applicable Bank Settlement Deadline. While the initial Credit Facility and Liquidity Facility remains in effect, the Draw Deadline for purchases of Bonds tendered for purchase in accordance with Article IV is 12:00 noon, New York City time, and for payment of principal of and interest on Bonds is 4:00 p.m., New York City time, on the immediately preceding Business Day.
“ DTC Settlement Deadline ” means the time of day by which funds must be deposited with the Securities Depository to pay the applicable transactions on such day in accordance with its operating procedures from time to time in effect. Such times are currently 2:30 p.m., New York City time, for purchases of Bonds and 3:00 p.m., New York City time, for the payment of principal of and interest on Bonds.
“ Electronic Means ” means by electronic transmission administered by the Society for Worldwide Interbank Financial Telecommunication (SWIFT) or other secure electronic transmission containing applicable authorization codes, passwords, and/or authentication keys issued by the Trustee; facsimile transmission; email transmission; or another method or system specified by the Trustee as available for use in connection with its services hereunder.
“ Eligible Bonds ” means any Bonds other than Liquidity Facility Bonds or Bonds owned by, for the account of, or on behalf of, the Issuer or the Borrower.
“ Event of Default ” means any of the events specified in Section 7.01 .
“ Excluded Purchaser” means each of the Issuer, the Borrower, and, to the knowledge of the Tender Agent, any Affiliate of the Borrower and any nominee, pledgee, or other Person to the extent such Person is purchasing a Bond for the benefit of any of the foregoing, there being no guarantor of any of the Borrower’s obligations under the Loan Agreement.
“ Expiration Date ” for the Bonds of any subseries means the date upon which the Liquidity Facility or Credit Facility for such Bonds is scheduled to expire (taking into account any extensions of such Expiration Date) in accordance with its terms without regard to any early termination thereof.
“ Favorable Opinion of Bond Counsel ” means, with respect to any action the occurrence of which requires such an opinion, an unqualified Opinion of Counsel, rendered by Bond Counsel, to the effect that such action is permitted under this Bond Indenture and will not, in and of itself, result in the inclusion of interest on any Common Issue Bond in gross income for federal income tax purposes (subject to the inclusion of any exceptions contained in the opinion delivered upon the effective date of this Bond Indenture).
 
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“ Fitch ” means Fitch Inc., a corporation organized and existing under the laws of the state of its organization, and its successors and assigns, or, if such corporation shall be dissolved or liquidated or shall no longer perform the functions of a securities rating agency, any other nationally recognized securities rating agency designated by the Borrower by notice to the Issuer, the Credit Facility Provider (if any), the Liquidity Facility Provider (if any) and the Trustee.
“ Fixed Rate ” means the interest rate on Fixed Rate Bonds determined pursuant to Section 2.10 .
“ Fixed Rate Bonds ” means the Bonds while in the Fixed Rate Mode.
“ Fixed Rate Mode ” means the Mode during which the Bonds or any subseries thereof bear interest at a Fixed Rate.
“ Governmental Obligations” means noncallable (1) direct obligations of the United States of America, (2) obligations the full and timely payment of which is unconditionally guaranteed by the United States of America, (3) interest obligations of the Resolution Funding Corp. which are separately registered by book-entry on the books of the Federal Reserve Bank of New York, and (4) obligations of a state or an agency, county, municipality, or other political subdivision thereof that have been refunded and that are rated in the highest rating category by S&P or Moody’s and are secured by cash, obligations of or guaranteed by the United States of America.
“ Holder,” when used with respect to a Bond, means the Person in whose name such Bond is registered on the Bond Register.
“ Indexed Mode ” means the Long Indexed Mode or a Term Indexed Mode.
“ Indexed Rate ” means a Long Indexed Rate or a Term Indexed Rate.
“ Initial LIBOR Term Indexed Mode ” means the LIBOR Term Indexed Mode that commences on the effective date of this Bond Indenture.
“ Interest Fund ” means the fund by that name established pursuant to Section 5.02 .
“ Interest Payment Date ” means:
(1) Commercial Paper : with respect to Bonds in a Commercial Paper Mode (a) with an Interest Period of 180 days or less, the Purchase Date, and (b) with an Interest Period of 181 days or more, each May 1 and November 1 prior to the Purchase Date and the Purchase Date;
(2) Short-Term Modes : with respect to Bonds in a Daily Mode, a Weekly Mode, a weekly R-FLOATs Mode or a monthly R-FLOATs Mode, the first Business Day of each month;
(3) Special R-FLOATs : with respect to Bonds in a Special R-FLOATs Rate Period of 180 days or less, the first Business Day of the month immediately following the last day of such Special R-FLOATs Rate Period, and with respect to Bonds in a Special R- FLOATs Rate Period of more than 180 days, each May 1 and November 1 following the commencement of such Special R-FLOATs Rate Period and the last day of such Special R-FLOATs Rate Period;
 
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(4) Term Modes : with respect to Bonds in a Term Rate Mode or a term rate R-FLOATs Mode, each May 1 and November 1 prior to the Purchase Date and the Purchase Date;
(5) Fixed Rate Mode : with respect to Bonds in the Fixed Rate Mode, each May 1 and November 1;
(6) Mode Change Dates : any Mode Change Date;
(7) Indexed Mode : with respect to Bonds (a) in a Long Indexed Mode, the dates determined by the Remarketing Agent for such Bonds pursuant to Section 2.07 , and (b) in a Term Indexed Mode, (x) the first Business Day of each month during any Interest Period, if the Initial LIBOR Term Indexed Mode is in effect or if elected by the Borrower when directing a change to any Interest Mode, (y) otherwise on the first Business Day of each February, May, August, and November, and (z) each Purchase Date;
(8) Stepped Coupon Mode : with respect to Bonds in a Stepped Coupon Mode, the dates determined by the Remarketing Agent for such Bonds pursuant to Section 2.08 ;
(9) Maturity Dates : the respective Maturity Dates of the Bonds; and
(10) Liquidity Facility Bonds : with respect to Liquidity Facility Bonds of any subseries, the Interest Payment Dates for other Bonds of such subseries (or any other dates specified in any amendment to the initial Reimbursement Agreement or any replacement thereof approved by the Issuer, if the Trustee has received a Favorable Opinion of Bond Counsel).
“ Interest Payment Period ” for any Bond and Interest Payment Date means the period commencing on the last Interest Payment Date therefor to which interest thereon has been paid (or, if no interest has been paid on such Bond, from the date of original issuance of the Bonds) to, but not including, such Interest Payment Date.
“ Interest Period ” for any Bond means the period of time that an interest rate thereon (or the percentage or spread used to determine the same) remains in effect, which period:
(1) Daily Mode : with respect to Bonds in a Daily Mode, commences on a Business Day and extends to, but does not include, the next succeeding Business Day;
(2) Weekly Mode : with respect to Bonds in a Weekly Mode, commences on the first day such Bonds begin to accrue interest in the Weekly Mode and ends on the next succeeding Wednesday (or, if not immediately followed by a Business Day, then on the day preceding the next Business Day) that occurs at least two days later, and thereafter commences on each Thursday (or, if not a Business Day, on the next succeeding Business Day) and ends on Wednesday of the following week (or, if not immediately followed by a Business Day, then on the day preceding the next Business Day);

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(3) R-FLOATs Mode : with respect to Bonds in an R-FLOATs Mode (i) bearing interest at a weekly R-FLOATs Rate, commences on the first day such Bonds begin to accrue interest in the weekly R-FLOATs Mode and ends on the next succeeding Wednesday (or, if not immediately followed by a Business Day, then on the day preceding the next Business Day), and thereafter commences on each Thursday (or, if not a Business Day, on the next succeeding Business Day) and ends on Wednesday of the following week (or, if not immediately followed by a Business Day, then on the day preceding the next Business Day); (ii) bearing interest at a monthly R-FLOATs Rate, commences on the first day such Bonds begin to accrue interest in the monthly R-FLOATs Mode and ends on the day immediately preceding the first Business Day of the next succeeding month, and thereafter commences on the first Business Day of each month and ends on the day immediately preceding the first Business Day of the next succeeding month; (iii) bearing interest at a term rate R-FLOATs Rate, commences on the first day such Bonds begin to accrue interest in the term rate R-FLOATs Mode to, but not including, the next Purchase Date; and (iv) bearing interest at a Special R-FLOATs Rate Period, extends as set forth in Section 2.06E ;
(4) Commercial Paper Mode : with respect to each Bond in a Commercial Paper Mode, shall be as established by the Remarketing Agent for such Bond pursuant to Section 2.05 ;
(5) Indexed Mode : with respect to Bonds (a) in a Long Indexed Mode, shall extend from the first day of such Indexed Mode to the Maturity Date, and (b) in a Term Indexed Mode initially shall extend from the first day of such Term Indexed Mode to, but not including, the Purchase Date established for such Bonds pursuant to Section 2.07 , and thereafter shall extend from and including such Purchase Date to but excluding the next Purchase Date therefor;
(6) Stepped Coupon Mode : with respect to Bonds in the Stepped Coupon Mode, shall be as established for such Bonds pursuant to Section 2.08 ;
(7) Term Rate Mode : with respect to the Bonds in a Term Rate Mode, initially shall extend from and including the first day of such Term Rate Mode to, but not including, the Purchase Date established for such Bonds pursuant to Section 2.09 , and thereafter shall extend from and including such Purchase Date to but not including the next Purchase Date therefor; and
(8) Fixed Rate Mode : with respect to Bonds in the Fixed Rate Mode, commences on the first day of such Fixed Rate Mode and ends on (and includes) the day immediately prior to the Maturity Date of such Bonds.
“ Interested Parties ” means the Borrower, the Issuer, the Trustee, the Tender Agent and the Credit Facility Providers (if any).
“ Investment Securities ” means the securities and other investments described in Exhibit B .
“ Issuer ” means the Harris County Industrial Development Corporation or its successors and assigns.
 
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“LIBOR ” means the London Interbank Offered Rate for deposits in U.S. dollars (with a term nearest to the length of the Interest Payment Period for which the Alternate Rate or Indexed Rate is being calculated or as otherwise provided in the definition of Alternate Rate in this Section) that appears on the applicable Bloomberg screen page (or such other service as may be nominated by the ICE Benchmark Administration Limited for the purpose of displaying London interbank offered rates for U.S. dollar deposits) as of 11:00 a.m., London time, on the Rate Determination Date for such Alternate Rate or Indexed Rate. In the case of a Term Rate Mode with an Interest Period greater than 12 months, LIBOR shall mean the USD-ISDA-Swap Rate for a term nearest in length to the length of such Interest Period.
“ LIBOR Index ” as of any LIBOR Index Reset Date means the rate per annum equal to the London Interbank Offered Rate, as published on the applicable Bloomberg screen page (or other commercially available source providing such quotations as may be designated by the Bondholder Representative or, if none, the Calculation Agent from time to time) at or about 11:00 a.m., London time, on the second Business Day prior to such date for U.S. Dollar deposits with a term of one month commencing on such LIBOR Index Reset Date. Notwithstanding the foregoing, if (a) the Bondholder Representative or, if none, the Calculation Agent determines that (i) U.S. Dollar deposits are not being offered to banks in the London interbank market for U.S. Dollar deposits for an interest period extending from one LIBOR Index Reset Date to the next LIBOR Index Reset Date, or (ii) adequate and reasonable means do not exist for determining the LIBOR Index for any such interest period, (b) the Holders of not less than a majority in aggregate principal amount of the Bonds at the time Outstanding determine that for any reason the LIBOR Index for any such interest period does not result in a rate that adequately and fairly reflects the cost to such Holders of holding the Bonds for such interest period, or (c) any Holder determines that any applicable law has made it unlawful, or that any governmental authority has asserted that it is unlawful, for the Bonds to bear interest at a function of the LIBOR Index, or to determine or charge interest rates based upon the LIBOR Index, or any governmental authority has imposed material restrictions on the authority of such Holder to purchase or sell, or to take deposits of, U.S. Dollars in the London interbank market (any event described in clause (a)(i), (a)(ii), (b) or (c) of this sentence, a “ Disruption Event ”), then the “ LIBOR Index ” shall mean an alternate rate that will result in interest on the Bonds that fairly reflects the costs to Holders of holding the Bonds for such interest period as reasonably determined by the Calculation Agent, until such time as the Bondholder Representative, the Calculation Agent or the Holders of not less than a majority in aggregate principal amount of the Bonds at the time Outstanding, as applicable, reasonably determine that the applicable Disruption Event no longer subsists.
“ LIBOR Index Rate” for any day in any Interest Payment Period in a LIBOR Term Indexed Mode means a per annum rate determined from time to time and equal to (x) the product of (a) the quotient from dividing (i) the LIBOR Index as of the LIBOR Index Reset Date on which such Interest Payment Period begins by (ii) one less the Reserve Percentage, (b) the Applicable Factor, and (c) the Margin Rate Factor as of such day plus (y) the Applicable Spread during such Interest Payment Period (such Applicable Spread to be determined in accordance with Section 2.07 for any Interest Period after the first Interest Period in the Initial LIBOR Term Indexed Mode); provided, however , that the LIBOR Index Rate shall never exceed 135% of the LIBOR Index plus the Applicable Spread or equal or be less than 65% of the LIBOR Index plus the Applicable Spread.
“ LIBOR Index Reset Date ” for Bonds in a LIBOR Term Indexed Mode means the first Business Day of and each Interest Payment Date in such Interest Mode.
“ LIBOR Term Indexed Mode ” means the Mode during which the Bonds or any subseries thereof bear interest at LIBOR Term Indexed Rates for an Interest Period that ends prior to the Maturity Date, including the Initial LIBOR Term Indexed Mode.
 
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“ LIBOR Term Indexed Rate ” means an interest rate that is determined pursuant to Section 2.07 with respect to Bonds in the LIBOR Term Indexed Mode or, if less, the Maximum Rate.
“ Liquidity Facility ” for the Bonds or any subseries thereof means a standby bond purchase agreement, letter of credit or similar liquidity facility issued by a commercial bank, savings institution, insurer or other institution, or any portion thereof, which, by its terms, shall provide for the payment of the Purchase Price of such Bonds tendered for purchase and not remarketed, delivered to and accepted by the Trustee pursuant to Section 4.18 .
“ Liquidity Facility Bond Rate ” for the Bonds of any subseries means the interest rate(s) applicable from time to time to the other Bonds of such subseries (or as otherwise specified in accordance with any amendment to the initial Reimbursement Agreement or substitute Liquidity Facility approved by the Issuer, if the Trustee has received a Favorable Opinion of Bond Counsel).
“ Liquidity Facility Bond Sale Date ” means the day on which a Liquidity Facility Bond ceases to be a Liquidity Facility Bond.
“ Liquidity Facility Bonds ” means Bonds purchased by or with funds drawn on a Liquidity Facility Provider pursuant to a Liquidity Facility, but excluding Bonds no longer considered Liquidity Facility Bonds pursuant to the terms of such Liquidity Facility or the initial Reimbursement Agreement or any substitute therefor approved by the Issuer.
“ Liquidity Facility Deposit Account ” means the account by that name within the Purchase Fund established pursuant to Section 4.12 .
“ Liquidity Facility Provider ,” when used in respect of the Bonds or any subseries thereof, means the commercial bank, savings institution, insurer or other financial institution issuing the Liquidity Facility for such Bonds. The initial Liquidity Facility Provider is Bank of America, N.A.
“ Loan Agreement ” means that certain Loan Agreement, dated as of October 1, 2012, between the Issuer and the Borrower, as originally executed and amended by an amendment thereto dated as of even date herewith and as it may from time to time be further supplemented, modified or amended in accordance with the terms thereof and of this Bond Indenture.
“ Loan Payments ” has the meaning stated in Section 1.01 of the Loan Agreement.
“ Long Indexed Mode ” means the Mode during which the Bonds or any subseries thereof bear interest at a Long Indexed Rate to the Maturity Date or any earlier Mode Change Date therefor or date for redemption thereof.
“ Long Indexed Rate ” means an interest rate that is determined pursuant to Section 2.07 with respect to any Bonds in the Long Indexed Mode or, if less, the Maximum Rate.
“ Mandatory Purchase Date ” for the Bonds or any subseries thereof means: (1) any Purchase Date for such Bonds in the Commercial Paper Mode, the Term Indexed Mode, the Term Rate Mode, the R-FLOATs Mode or the Special R- FLOATs Mode with a Special R-FLOATs Rate Period of greater than 35 days; (2) any Mode Change Date for such Bonds; (3) unless the provisions of Section 4.10 negating mandatory tender for purchase are satisfied, any Termination Date, New Liquidity Facility Date, Expiration Date or New Credit Facility Date for such Bonds; (4) if a Bondholder Agreement is in effect during a Term Indexed Mode, any Mandatory Purchase Date designated by the Bondholder Representative in accordance with the Bondholder Agreement by
 
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written notice given to the Trustee at least four (4) Business Days prior to such Mandatory Purchase Date; and (5) any Business Day on which such Bonds may be redeemed pursuant to Section 4.01 (other than Subsection F thereof) at a Redemption Price equal to 100% of principal amount plus accrued interest, if any, if the Borrower has requested that such Bonds then be subject to mandatory tender in writing given to the Trustee (including pursuant to Section 4.01I ) at least five Business Days before notice thereof must be given pursuant to Section 4.08 .
“ Mandatory Sinking Account Payment ” means the amount required by Section 5.03 to be paid by the Trustee on any single date for the redemption of Bonds.
“ Margin Rate Factor ” as of any date means the greater of one (1) or the product of (i) one (1) minus the Maximum Corporate Tax Rate then in effect multiplied by (ii) 1.53846. The effective date of any change in the Margin Rate Factor shall be the effective date of the increase or decrease (as applicable) in the Maximum Corporate Tax Rate that resulted in such change. As of the first day of the Initial LIBOR Term Indexed Mode, the Margin Rate Factor is one (1). “ Maximum Corporate Tax Rate ” means the highest combined marginal statutory rate of federal income tax imposed on domestic corporations in the U.S.
“ Maturity Date ” means November 1, 2050, or, with respect to the Bonds or any subseries thereof changed to the Stepped Coupon Mode, the maturities determined pursuant to Section 2.08 , or changed to the Fixed Rate Mode, the maturities determined pursuant to Section 2.10 .
“ Maximum Rate ” for the Bonds or any subseries thereof means the least of (1) 15% per annum, (2) the maximum interest rate permitted by law, or (3) when a Credit Facility or Liquidity Facility is in effect for such Bonds, the lower of the rate of interest specified in either thereof as the rate at which money available to be drawn thereunder to pay interest on (or the interest portion of the Purchase Price for) such Bonds has been computed.
“ Mode ” means, as the context may require, the Commercial Paper Mode, the Daily Mode, the Weekly Mode, the R-FLOATs Mode, an Indexed Mode, the Stepped Coupon Mode, the Term Rate Mode or the Fixed Rate Mode.
“ Mode Change Date ” means, with respect to any Bonds, the day immediately following the last day of one Mode for such Bonds on which another Mode begins.
“ Moody’s ” means Moody’s Investors Service, a corporation organized and existing under the laws of the state of its organization, its successors and their assigns, or, if such corporation shall be dissolved or liquidated or shall no longer perform the functions of a securities rating agency, any other nationally recognized securities rating agency designated by the Borrower by notice to the Issuer, the Credit Facility Providers (if any), the Liquidity Facility Providers (if any) and the Trustee.
“ New Credit Facility Date ” for the Bonds or any subseries thereof means the date of delivery by the Borrower to the Trustee of a new or substitute Credit Facility for such Bonds pursuant to Section 5.09 or the effective date of release of the Credit Facility for such Bonds pursuant to Section 5.08F .
“ New Liquidity Facility Date ” for the Bonds or any subseries thereof means the date of delivery by the Borrower to the Trustee of a new or substitute Liquidity Facility for such Bonds pursuant to Section 4.18 or the effective date of release of the Liquidity Facility for such Bonds pursuant to Section 4.17F .
 
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“ New Mode ” shall have the meaning specified in Section 2.12A(1) .
“ Non-Remarketing Period ” has the meaning specified in Section 2.06F(1) .
“ Opinion of Counsel ” means a written opinion of counsel (who may be counsel for an Interested Party) selected by the Borrower and not objected to by the Issuer, the Trustee, any Credit Facility Provider or any Liquidity Facility Provider and, when given with respect to any matter under the United States Bankruptcy Code, shall be counsel of nationally recognized standing in the field of bankruptcy law. If and to the extent required by the provisions of Section 1.02 , each Opinion of Counsel shall include the statements provided for in Section 1.02 .
“ Original Bond Indenture ” has the meaning stated in the recitals to this Bond Indenture.
“ Outstanding ,” when used as of any particular time with reference to Bonds, means (subject to the provisions of Section 11.09 ) all Bonds theretofore, or thereupon being, authenticated and delivered by the Trustee under this Bond Indenture except: (1) Bonds theretofore cancelled by the Trustee or surrendered to the Trustee for cancellation; (2) Bonds with respect to which all liability of the Issuer shall have been discharged in accordance with Section 10.02 , including Bonds (or portions of Bonds) referred to in Section 11.10 ; and (3) Bonds for the transfer or exchange of or in lieu of or in substitution for which other Bonds shall have been authenticated and delivered by the Trustee pursuant to this Bond Indenture.
“ Person ” means an individual, corporation, firm, association, partnership, trust, or other legal entity or group of entities, including a governmental entity or any agency or political subdivision thereof.
“ Principal Corporate Trust Office ” means the office of the Trustee at 601 Travis Street, Floor 16, Houston, Texas 77002, or any other office of the Trustee in the State of Texas or the State of New York designated by it as the place at which Bonds shall be surrendered for transfer, exchange, or payment.
“ Principal Fund ” means the fund by that name established pursuant to Section 5.03 .
“ Principal Payment Date ” means, with respect to a Bond, the date on which principal of such Bond becomes due and payable, either by maturity, redemption, acceleration or otherwise.
“ Project ” means any project described in Exhibit A to the Loan Agreement.
“ Project Fund ” means the fund by that name established pursuant to Section 3.04 .
“ Purchase Date ” for any Bond means (i) during the Commercial Paper Mode, the Term Rate Mode, either Term Indexed Mode, and the term rate R-FLOATs Mode with respect to such Bond, the date specified in Section 2.07 (in the case of the first Interest Period in the Initial LIBOR Term Indexed Mode) or determined by the Remarketing Agent for such Bond on the most recent Rate Determination Date for such Bond as the date on which such Bond shall be subject to purchase, (ii) during the Daily Mode, the Weekly Mode, the weekly R-FLOATs Mode, or the monthly R-FLOATs Mode with respect to such Bond, any Business Day elected by the Holder thereof pursuant to Section 4.06 , and (iii) while such Bond is in the Special R-FLOATs Rate Period, the Interest Payment Date immediately following such Special R-FLOATs Rate Period elected by the Holder thereof pursuant to Section 4.06 ; provided that, if such Bond is in an R-FLOATs Mode, it will be entitled to be purchased only to the extent the proceeds of a remarketing are available for such purchase.
 
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“ Purchase Fund ” means the fund of the Tender Agent by that name established pursuant to Section 4.12 .
“ Purchase Price ” for any Bond means (i) an amount equal to the principal amount of such Bond, if purchased on any Purchase Date therefor, plus, in the case of any purchase of such Bond in the Daily Mode, the Weekly Mode or the R-FLOATs Mode, accrued interest thereon, if any, to the Purchase Date, or (ii) an amount equal to the principal amount of such Bond, if purchased on a Mandatory Purchase Date, plus accrued interest thereon, if any, to the Mandatory Purchase Date.
“ Rate Determination Date ,” when used with respect to any Bond, means the Business Day on which the interest rate(s) with respect to such Bond (or, in the case of Bonds in an Indexed Mode, the function of or spread to the applicable index to be used to determine such interest rates) shall be determined, which,
(1) Commercial Paper Mode : if such Bond is in the Commercial Paper Mode, shall be the first day of an Interest Period;
(2) Daily Mode : if such Bond is in the Daily Mode, shall be each Business Day commencing with the first day such Bond becomes subject to the Daily Mode;
(3) Weekly Mode : in the case of conversion to the Weekly Mode or the weekly R-FLOATs Mode, shall be a day determined by the Remarketing Agent for such Bonds which is no later than the Mode Change Date on which such Mode commences, and thereafter, while such Bond is in a Weekly Mode or a weekly R-FLOATs Mode, shall be each Thursday on which a new Interest Period commences or, if Thursday is not a Business Day, the Business Day immediately succeeding such Thursday;
(4) Special R-FLOATs : if such Bond is in a Special R-FLOATs Rate Period, shall be a day determined by the Remarketing Agent for such Bonds which is no later than the first Business Day of such Special R-FLOATs Rate Period;
(5) Term Modes : if such Bond is in a Term Rate Mode or a term rate R-FLOATs Mode, shall be a day determined by the Remarketing Agent for such Bonds which is a Business Day no earlier than 30 Business Days and no later than the Business Day immediately preceding the first day of each Interest Period;
(6) Indexed, Stepped Coupon and Fixed Mode : if such Bond is in an Indexed Mode (other than during the initial Interest Period in the Initial LIBOR Term Indexed Mode), the Stepped Coupon Mode or the Fixed Rate Mode, shall be a date determined by the Remarketing Agent for such Bond which shall be at least one Business Day prior to the Mode Change Date; and
(7) Monthly R-FLOATs : if such Bond is in the monthly R-FLOATs Mode, shall be the Business Day next preceding the first Business Day of the immediately following month.
“ Rating Agency ” means S&P, Moody’s and Fitch.
 
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“ Rating Category ” means one of the general rating categories of the Rating Agencies without regard to any refinement or graduation of such rating category by numerical modifier or otherwise.
“ Rebate Fund ” means the fund by that name established pursuant to Section 5.06 .
“ Record Date ” for the payment of interest on any Interest Payment Date means (i) with respect to Bonds in a Commercial Paper Mode, a Daily Mode, a Weekly Mode, a weekly or monthly R-FLOATs Mode, or a Term Indexed Mode while a Bondholder Agreement is in effect the day (whether or not a Business Day) immediately preceding such Interest Payment Date, and (ii) with respect to Bonds in a term R-FLOATs Mode, an Indexed Mode (except when a Bondholder Agreement is in effect), a Stepped Coupon Mode, a Term Rate Mode, or a Fixed Rate Mode, the 15th day (whether or not a Business Day) of the month immediately preceding such Interest Payment Date.
“ Redemption Fund ” means the fund by that name established pursuant to Section 5.04 .
“ Redemption Price ” means, with respect to any Bond (or portion thereof), the principal amount of such Bond (or portion) plus the applicable premium, if any, payable upon redemption thereof pursuant to the provisions of such Bond and this Bond Indenture.
“ Regulations ” has the meaning stated in Section 1.01 of the Loan Agreement.
“ Reimbursement Agreement ” means any agreement between the Borrower and a Credit Facility Provider or Liquidity Facility Provider pursuant to which a Credit Facility or Liquidity Facility is issued, in each case as amended, supplemented or extended from time to time in accordance with the provisions thereof. A Reimbursement Agreement is “ for ” or “ applicable ” to the Bonds or any subseries thereof if it provides for the Credit Facility or Liquidity Facility for such Bonds to be issued.
“ Remarketing Agent ” for the Bonds or any subseries thereof means any remarketing agent appointed for such Bonds by the Issuer or the Borrower in accordance with Sections 4.13 and 4.14 and not objected to by the Credit Facility Provider (if any) or the Liquidity Facility Provider (if any) for such Bonds and at the time serving as remarketing agent for such Bonds under a Remarketing Agreement.
“ Remarketing Agreement ” means that certain remarketing agreement between the Borrower and the initial Remarketing Agent, as such agreement may from time to time be amended and supplemented or replaced, to remarket the Bonds of any subseries delivered or deemed to be delivered for purchase by the Holders thereof, subject to approval by the Credit Facility Provider (if any) and the Liquidity Facility Provider (if any) for such Bonds.
“ Remarketing Proceeds Account ” means the account by that name within the Purchase Fund established pursuant to Section 4.12 .
“ Requisition ” means an application by the Borrower for the disbursement of funds held by the Trustee hereunder in substantially the form of Exhibit C , duly completed and signed by an Authorized Representative.
 
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“ R-FLOATs Mode ” means the Mode during which Bonds bear interest at the R-FLOATs Rate, which may be a term rate R-FLOATs Mode, a weekly R-FLOATs Mode, a monthly R-FLOATs Mode, or an R-FLOATs Mode comprised of Special R-FLOATs Rate Periods.
“ R-FLOATs Rate ” means an interest rate that is determined with respect to Bonds in an R-FLOATs Mode pursuant to Section 2.06D , unless such Bonds are in a Non-Remarketing Period, in which case the Maximum Rate determined pursuant to Section 2.06F , or in a Special R-FLOATs Rate Period, in which case the rate determined pursuant to Section 2.06E . The R-FLOATs Rate may be a term rate R-FLOATs Rate, a weekly R-FLOATs Rate, a monthly R-FLOATs Rate, or a Special R-FLOATs Rate.
“ Required Stated Amount ” means, at any time of calculation with respect to the Bonds of any subseries, an amount equal to the aggregate principal amount of all Bonds of such subseries then Outstanding together with interest accruing thereon (assuming an annual rate of interest equal to the Maximum Rate) for the period specified in a Certificate of the Borrower to be the minimum period specified by the Rating Agencies then rating the Bonds of such subseries as necessary to maintain, in the case of the Liquidity Facility, the short- term rating of the Bonds of such subseries, or, in the case of the Credit Facility, the long-term rating of the Bonds of such subseries.
“ Reserve Percentage ” as of any day (1) means the total of the maximum reserve percentages as of such day for determining the reserves to be maintained by member banks of the U.S. Federal Reserve System for “Eurocurrency Liabilities,” as defined in Federal Reserve Board Regulation D, expressed as a decimal and rounded upward to the nearest 1/100 of one percent, whether or not applicable to any Bondholder, including, but not limited to, marginal, emergency, supplemental, special, and other reserve percentages, or (2) has the meaning stated in the Bondholder Agreement, if the Trustee has received a Favorable Opinion of Bond Counsel and Opinion of Counsel to the effect that the use of such meaning of Reserve Percentage to calculate the LIBOR Index Rate is authorized by Texas law; provided that no change in the Reserve Percentage shall change the Reserve Percentage for purposes of this Bond Indenture unless the Trustee receives written notice of such change from the Bondholder Representative or the Borrower. If no Bondholder Agreement is in effect hereunder or “ Reserve Percentage ” is not defined therein, “ Reserve Percentage ” means zero (0).
“ Revenues ” means all amounts received by the Issuer or the Trustee for the account of the Issuer pursuant or with respect to the Loan Agreement, including, without limiting the generality of the foregoing, Loan Payments (including both timely and delinquent payments, any late charges, and whether paid from any source), prepayments, and all interest, profits or other income derived from the investment of amounts in any fund or account established pursuant to this Bond Indenture, but not including any Administrative Fees and Expenses or any moneys required to be deposited in the Rebate Fund or the Purchase Fund.
“ S&P ” means Standard & Poor’s Financial Services LLC, a subsidiary of The McGraw-Hill Companies, Inc., a corporation organized and existing under the laws of the state of its organization, and its successors and assigns, or, if such corporation shall be dissolved or liquidated or shall no longer perform the functions of a securities rating agency, any other nationally recognized securities rating agency designated by the Borrower by notice to the Issuer, the Credit Facility Providers (if any), the Liquidity Facility Providers (if any) and the Trustee.
“ Securities Depository ” means The Depository Trust Company and its successors and assigns, or any other securities depository selected as set forth in Section 2.20 , which agrees to follow the procedures required to be followed by such securities depository in connection with the Bonds.
 
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“ SIFMA ” means the Securities Industry and Financial Markets Association (formerly The Bond Market Association), and any successors thereto.
“ SIFMA Indexed Rate ” for any Bond and Interest Period in a SIFMA Term Indexed Mode means a per annum rate, determined from time to time by adding the Applicable Spread (determined in accordance with Section 2.07B ) from time to time in effect for such Bond and Interest Period to the SIFMA Municipal Swap Index.
“ SIFMA Municipal Swap Index ” means the Securities Industry and Financial Markets Association (formerly The Bond Market Association™) Municipal Swap Index, as disseminated by Municipal Market Data, a Thomson Financial Services Company, or its successor, for the most recently preceding Business Day.
“ SIFMA Term Indexed Mode ” means the Mode during which the Bonds or any subseries thereof bear interest at SIFMA Indexed Rates for an Interest Period that ends prior to the Maturity Date.
“ SIFMA Term Indexed Rate ” means an interest rate that is determined pursuant to Section 2.07 with respect to Bonds in the SIFMA Term Indexed Mode or, if less, the Maximum Rate.
“ Special Record Date ” means the date established by the Trustee pursuant to Section 2.03 as a record date for the payment of defaulted interest on Bonds.
“ Special R-FLOATs Rate Period ” for the Bonds or any subseries thereof means a period which begins on a Business Day and ends on any Business Day and which the Remarketing Agent for such Bonds determines is the shortest period which will enable such Remarketing Agent to remarket such Bonds in the R-FLOATs Mode at a price equal to 100% of principal amount plus accrued interest, if any.
“ Stepped Coupon Mode ” means the Mode during which the Bonds or any subseries thereof bear interest at the Stepped Coupon Rate.
“ Stepped Coupon Period ” has the meaning ascribed thereto in Section 2.08 .
“ Stepped Coupon Rate ” means an interest rate that is determined with respect to Bonds in the Stepped Coupon Mode pursuant to Section 2.08 , provided, however , that the Stepped Coupon Rate shall never exceed the Maximum Rate.
“ subseries ,” when used with respect to Bonds, means all Bonds designated as being of the same subseries pursuant to Section 2.02E, and any Bonds thereafter authenticated and delivered upon a transfer of, in exchange for, in lieu of or in substitution for such Bonds as herein provided.
“ Supplemental Bond Indenture ” means any indenture hereafter duly authorized and entered into between the Issuer and the Trustee, supplementing, modifying or amending this Bond Indenture; but only if and to the extent that such Supplemental Bond Indenture is specifically authorized hereunder.
“ Tax Certificate and Agreement ” means the No Arbitrage Certificate delivered by the Issuer and the Tax Letter of Representation delivered by the Borrower on the first day of the Initial LIBOR Term Indexed Mode for the Bonds, as the same may be amended or supplemented in accordance with its terms.
 
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“ Taxable Rate Factor ” has the meaning stated in the Bondholder Agreement, which is 1.53846 as of the effective date of this Bond Indenture, provided that no change in the Taxable Rate Factor shall occur unless and until the Trustee receives written notice thereof from the Bondholder Representative.
“Tender Agent ” means any tender agent appointed in accordance with Sections 4.15 and 4.16 .
“ Tender Notice Deadline ” shall mean (i) during the Daily Mode, 11:00 a.m. New York City time, on any Business Day, and (ii) during the Weekly Mode and the R-FLOATs Mode, 4:00 p.m. New York City time, on the Business Day five Business Days prior to the applicable Purchase Date.
“ Termination Date ” for the Bonds of any subseries means (a) the date specified in a notice of termination given by the Liquidity Facility Provider for such Bonds to the Trustee as the date on which such Liquidity Facility Provider will no longer be obligated to purchase such Bonds (or otherwise advance funds for the purchase of such Bonds) pursuant to the Liquidity Facility for such Bonds and requesting that such Bonds be subject to mandatory tender for purchase on the Business Day preceding such specified date, or (b) the date specified in a notice given by the Credit Facility Provider for such Bonds to the Trustee requesting that such Bonds be subject to mandatory tender on the Business Day preceding such specified date as a result of an event of default under the Reimbursement Agreement relating to such Credit Facility.
“ Term Indexed Mode ” means a LIBOR Term Indexed Mode or a SIFMA Term Indexed Mode.
“ Term Indexed Rate ” means a LIBOR Term Indexed Rate or a SIFMA Term Indexed Rate.
“ Term Rate ” means the per annum interest rate with respect to Bonds in the Term Rate Mode determined pursuant to Section 2.09 .
“ Term Rate Mode ” means the Mode during which Bonds bear interest at the Term Rate.
“ Trustee ” means The Bank of New York Mellon Trust Company, National Association, a national banking association duly organized and existing under the laws of the United States of America, having a principal corporate trust office in Houston, Texas, or its successor, as Trustee hereunder as provided in Article VIII .
“ USD-ISDA-Swap Rate ” means the rate for U.S. dollar swaps with a designated maturity equal to the length of the Interest Period for which the Alternate Rate is being calculated, expressed as a percentage, which appears on the Reuters Money 3000 Service on the page designated ISDAFIX1 as of 11:00 a.m., New York City time, on the day that is two U.S. Government Securities Business Days immediately preceding such Rate Determination Date. If such rate does not appear on such page on such day, then the “USD-ISDA-Swap Rate” for such maturity and date shall mean the percentage determined on the basis of mid-market semiannual swap rate quotations provided by three leading swap dealers in the New York City interbank market at approximately such time on such day as the mean of the bid and offered rates for the semiannual fixed leg, calculated on a 30/360 day count basis, of a fixed-for-floating U.S. dollar interest rate swap transaction with an effective date of the relevant early termination date and a termination date equal to such maturity, in an amount that is representative for a single transaction in such market at such time, with an acknowledged dealer of good credit in such market, where the floating rate, calculated on the basis of a 360-day year for actual days elapsed, is equal to the London Interbank Offered Rate for loans with a three-month duration.
 
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“ U.S. Government Securities Business Day ” means any day except for a Saturday, a Sunday, or a day on which SIFMA recommends that the fixed income departments of its members be closed for the entire day for purposes of trading U.S. government securities.
“ Weekly Mode ” means the Mode during which Bonds bear interest at the Weekly Rate.
“ Weekly Rate ” means an interest rate that is determined on a weekly basis with respect to Bonds in the Weekly Mode pursuant to Section 2.06 .
SECTION 1.02. Content of Certificates and Opinions.
Every certificate or opinion provided for in this Bond Indenture with respect to compliance with any provision hereof shall include (1) a statement that the Person making or giving such certificate or opinion has read such provision and the definitions herein relating thereto; (2) a brief statement as to the nature and scope of the examination or investigation upon which the certificate or opinion is based; (3) a statement that, in the opinion of such Person, such Person has made or caused to be made such examination or investigation as is necessary to enable such Person to express an informed opinion with respect to the subject matter referred to in the instrument to which such Person’s signature is affixed; (4) a statement of the assumptions upon which such certificate or opinion is based, and that such assumptions are reasonable; and (5) a statement as to whether, in the opinion of such Person, such provision has been complied with.
Any such certificate or opinion made or given by an officer of the Issuer or the Borrower may be based, insofar as it relates to legal, accounting or operational matters, upon a certificate or opinion of or representation by counsel, an accountant or a management consultant, unless such officer knows, or in the exercise of reasonable care should have known, that the certificate, opinion or representation with respect to the matters upon which such certificate or statement may be based, as aforesaid, is erroneous. Any such certificate or opinion made or given by counsel, an accountant or a management consultant may be based, insofar as it relates to factual matters (with respect to which information is in the possession of the Issuer or the Borrower, as the case may be) upon a certificate or opinion of or representation by an officer of the Issuer or the Borrower, unless such counsel, accountant or management consultant knows, or in the exercise of reasonable care should have known, that the certificate or opinion or representation with respect to the matters upon which such Person’s certificate or opinion or representation may be based, as aforesaid, is erroneous. The same officer of the Issuer or the Borrower, or the same counsel or accountant or management consultant, as the case may be, need not certify to all of the matters required to be certified under any provision of this Bond Indenture, but different officers, counsel, accountants or management consultants may certify to different matters, respectively.
SECTION 1.03. Interpretation.
A . Number; Gender . Unless the context otherwise indicates, words expressed in the singular shall include the plural and vice versa and the use of the neuter, masculine, or feminine gender is for convenience only and shall be deemed to mean and include the neuter, masculine or feminine gender, as appropriate.
 
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B . Headings . Headings of Articles and Sections herein and the table of contents hereof are solely for convenience of reference, do not constitute a part hereof and shall not affect the meaning, construction or effect hereof.
C . Subdivision References . All references herein to “ Articles ,” “ Sections ,” “ Exhibits ,” and other subdivisions are to the corresponding Articles, Sections, Exhibits or subdivisions of this Bond Indenture; and the words “ herein ,” “ hereof ,” “ hereby ,” “ hereunder ” and other words of similar import refer to this Bond Indenture as a whole and not to any particular Article, Section, Exhibit or subdivision hereof.
D . Time . All references herein to a particular time of day shall be to New York City time.
*                *                 *
 
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ARTICLE II
THE BONDS
SECTION 2.01. Authorization of Bonds.
An issue of Bonds was created under the Original Bond Indenture in order to obtain moneys for the benefit of the Issuer for loan to the Borrower. The Bonds are designated as “Harris County Industrial Development Corporation Marine Terminal Revenue Bonds (HFOTCO LLC Project) Series 2012.” The aggregate principal amount of Bonds that may be issued and Outstanding under this Bond Indenture shall not exceed $100,000,000. This Bond Indenture constitutes a continuing agreement with the Holders from time to time of the Bonds to secure the full payment of the principal of and premium (if any) and interest on all the Bonds, subject to the covenants, provisions and conditions herein contained.
SECTION 2.02. Denominations; Form; Date; Maturity; Numbering; Interest Accrual; Subseries.
A . Registration . The Bonds were registered initially in the name of “Cede & Co.,” as nominee of the Securities Depository, and evidenced by one Bond in the total aggregate principal amount of the Bonds.
B. Denominations . The Bonds shall be issuable in denominations of (i) $100,000 and any integral multiple of $5,000 in excess thereof, with respect to Bonds in a Daily Mode, a Weekly Mode, a Commercial Paper Mode, a Term Indexed Mode, or a Term Rate Mode of 360 days or less, (ii) $5,000 and any integral multiple thereof, with respect to Bonds in the Fixed Rate Mode, a Long Indexed Mode, a Stepped Coupon Mode, a Term Rate Mode of more than 360 days, or a Special R-FLOATs Rate Period or a term rate R-FLOATs Mode of more than 180 days, and (iii) $25,000 and any integral multiple thereof, with respect to Bonds in a weekly R-FLOATs Mode, a monthly R-FLOATs Mode, a Special R-FLOATs Rate Period or a term rate R-FLOATs Mode of 180 days of less.
C . Dating; Maturity; Numbering . The Bonds shall be dated the date of their authentication and delivery. The Bonds shall mature (subject to prior redemption) on their Maturity Date. The Bonds shall be numbered in such manner as shall be determined by the Trustee to distinguish each Bond from every other Bond.
D . Day Counts for Interest . Interest on the Bonds shall accrue from the date of initial delivery thereof, which shall be inserted in the Bonds under “Dated Date” on the first page thereof, or the most recent Interest Payment Date therefor to which interest thereon has been paid or duly provided for. Interest shall be calculated on the basis of (i) a 365-day or 366-day year for the number of days actually elapsed, during a Commercial Paper Mode, a Daily Mode, a Weekly Mode, a SIFMA-based Long Indexed Mode, a SIFMA Term Indexed Mode, a weekly R-FLOATs Mode, a monthly R-FLOATs Mode, a Term Rate Mode of 360 days or less, a term rate R-FLOATs Mode of 360 days or less and a Special R-FLOATs Rate Period of 360 days or less, (ii) a 360-day year of twelve 30-day months during a Term Rate Mode of more than 360 days, a Special R-FLOATs Rate Period of more than 360 days, a term rate R-FLOATs Mode of more than 360 days, the Fixed Rate Mode, a Stepped Coupon Mode, or a Long Indexed Mode that is not LIBOR-based or SIFMA-based, and (iii) a 360-day year for the number of days actually elapsed during a LIBOR-based Long Indexed Mode or a LIBOR Term Indexed Mode.
 
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The following charts summarize this Section.
AUTHORIZED DENOMINATIONS

$5,000 and any integral
multiple thereof	  	$25,000 and any integral
multiple thereof	  	$100,000 and any integral
multiple of $5,000	
Fixed Rate Mode	  	Weekly R-FLOATs Mode	  	Daily Mode	
Indexed Mode	  	Monthly R- FLOATs Mode	  	Weekly Mode	
Stepped Coupon Mode	  	Special R-FLOATs Rate	  	Commercial Paper Mode	
Term Rate Mode of more than 360 days	  	    Period of 180 days or less	  	Term Rate Mode of 360 days or less	
Special R-FLOATs Rate Period of more
    than 180 days	  	Term rate R-FLOATs Mode of 180
    days or less	  	Term Indexed Mode	
Term rate R-FLOATs Mode of more than
    180 days	  		  		
	
DAY COUNT FOR INTEREST CALCULATIONS	
			
Actual/Actual Days	  	30/360 Days	  	Actual/360 Days	
Commercial Paper Mode	  	Term Rate Mode of more than 360 days	  	LIBOR-based Long Indexed Mode	
Daily Mode	  		  	LIBOR Term Indexed Mode	
Weekly Mode	  	Special R-FLOATs Rate Period of	  		
SIFMA-Based Long Indexed Mode	  	    more than 360 days	  		
SIFMA Term Indexed Mode	  		  		
Weekly R-FLOATs Mode	  	Term rate R-FLOATs Mode of more	  		
Monthly R-FLOATs Mode	  	    than 360 days	  		
Term Rate Mode of 360 days or less	  	Fixed Rate Mode	  		
Term rate R-FLOATs Mode of 360 days or less	  	Stepped Coupon Mode	  		
Special R-FLOATs Rate Period of 360
    days or less	  		  		
E . Subseries . The Bonds shall initially be issued in one subseries. The Borrower may designate additional subseries into which the Bonds or any subseries thereof shall be divided, or merge the Bonds of two or more subseries into a single subseries of Bonds, in either case by Borrower Order effective on a Mandatory Purchase Date for all such Bonds and delivered to the Trustee, the Remarketing Agent for such Bonds, the Credit Facility Providers (if any) for such Bonds, the Liquidity Facility Providers (if any) for such Bonds, and each Rating Agency maintaining a rating for such Bonds not less than 5 Business Days (or such shorter period acceptable to the Trustee), plus the minimum number of days’ notice of such Mandatory Purchase Date which the Trustee must give to the Holders of such Bonds pursuant to Article IV, prior to the effective date of such designation. Unless each such Rating Agency shall have confirmed that such designation or merger will not result in a reduction, suspension, or withdrawal of any such rating, the notice of such Mandatory Tender Date shall state that the rating assigned to such Bonds may then be reduced, suspended, or withdrawn by such Rating Agency.
SECTION 2.03. Payment of Principal of and Interest on the Bonds.
A . Payees; Method . The principal or Redemption Price of the Bonds shall be payable by check in lawful money of the United States of America at the Principal Corporate Trust Office of the Trustee. Interest on the Bonds due on an Interest Payment Date shall be paid to the Person whose name appears on the bond registration books of the Trustee as the Holder thereof as of the close of business on the Record Date for such Interest Payment Date. Any such interest not so punctually paid or duly provided for shall forthwith cease to be payable to the Bondholder as of such Record Date and shall be paid to the Person in whose name the Bond is registered at the close of
 
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business on a Special Record Date for the payment of such defaulted interest to be fixed by the Trustee, notice whereof being given not less 10 days prior to such Special Record Date by Electronic Means to the Bondholder Representative, if any, and by first class mail to the Bondholders. Payment of the interest on (i) any Bonds in a Daily Mode, a Weekly Mode, an R-FLOATs Mode, an Indexed Mode, a Term Rate Mode, a Special R-FLOATs Rate Period of 360 days or less or a Commercial Paper Mode shall be made by wire transfer in immediately available funds to an account within the United States of America designated by such Holder and (ii) any Bonds in a Term Rate Mode, a Special R-FLOATs Rate Period of more than 360 days, a Stepped Coupon Mode or a Fixed Rate Mode shall be made by check mailed by first class mail to such Holder at its address as it appears on such registration books, or, upon the written request of any Holder of at least $1,000,000 in aggregate principal amount of Bonds, submitted to the Trustee at least one Business Day prior to the Record Date for such interest, by wire transfer in immediately available funds to an account within the United States of America designated by such Holder. As long as Cede & Co. is the Holder of the Bonds, said principal or Redemption Price and interest payments shall be made to Cede & Co. by wire transfer in immediately available funds. CUSIP number identification shall accompany all payments of principal or Redemption Price and interest whether by check or by wire transfer. The principal of Liquidity Facility Bonds shall be paid as set forth in the Reimbursement Agreement relating to such Liquidity Facility Bonds.
B . Interest Rates . Interest on the Bonds shall be calculated in accordance with Sections 2.04 , 2.05, 2.06, 2.07, 2.08, 2.09, 2.10 and 2.11 of this Bond Indenture, and interest accrued on Bonds in each Interest Payment Period shall be payable on the immediately succeeding Interest Payment Date therefor. Notwithstanding the foregoing, Liquidity Facility Bonds shall bear interest at a rate per annum equal to the Liquidity Facility Bond Rate for such Bonds, and interest on Liquidity Facility Bonds shall be payable on each Interest Payment Date for such Liquidity Facility Bonds. Additionally, anything herein to the contrary notwithstanding, in no event shall any Bond bear interest at a rate per annum in excess of the Maximum Rate.
SECTION 2.04. Initial Mode; Change of Mode.
A . Initial Mode . The Bonds were issued, and on the effective date of this Bond Indenture remain in, the Weekly Mode. On the effective date of this Bond Indenture, the Mode for the Bonds shall be changed to the LIBOR Term Indexed Mode.
B . Mode Changes . Bonds in any Mode, other than the Fixed Rate Mode, the Long Indexed Mode or the Stepped Coupon Mode, may be changed to any other Mode at the times and in the manner hereinafter provided. All Bonds of any subseries must be in the same Mode. While the Bonds of any subseries are in a Commercial Paper Mode, the Bonds of such subseries may bear interest at different rates at the same time. While Bonds of a subseries are in a Daily Mode, a Weekly Mode, an R-FLOATs Mode, a Term Rate Mode, the Fixed Rate Mode (subject to Section 2.10 ), an Indexed Mode, or the Stepped Coupon Mode, all Bonds of such subseries shall bear interest at the same interest rate. Subsequent to such change in Mode (other than a change to the Fixed Rate Mode, the Long Indexed Mode, or the Stepped Coupon Mode), the Bonds may again be changed to a different Mode at the times and in the manner hereinafter provided. The Fixed Rate Mode, the Long Indexed Mode, and the Stepped Coupon Mode for Bonds shall be in effect until the Maturity Date of such Bonds and may not be changed to any other Mode.
 
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SECTION 2.05. Determination of Commercial Paper Rates, Purchase Date and Interest Periods During Commercial Paper Mode.
A . Interest Periods . Interest Periods for the Bonds of any subseries during a Commercial Paper Mode shall be of such duration, from one to 270 calendar days and ending on a day immediately preceding a Business Day or the Maturity Date, as the Remarketing Agent for such Bonds shall determine in accordance with the provisions of this Section. On each Rate Determination Date for Bonds in a Commercial Paper Mode, the Remarketing Agent for such Bonds shall select for each such Bond then subject to such adjustment the Interest Period which would result in the Remarketing Agent being able to remarket such Bond at a price equal to 100% of principal amount in the secondary market with the lowest interest rate then available and for the longest Interest Period available at such rate. If, on any such Rate Determination Date, such Remarketing Agent determines that current or anticipated future market conditions or anticipated future events are such that a different Interest Period would result in a lower average interest cost with respect to such Bond, then such Remarketing Agent shall select the Interest Period that, in the judgment of such Remarketing Agent, would permit such Bond to achieve such lower average interest cost. If such Remarketing Agent has received notice from the Borrower that any such Bond is to be changed from the Commercial Paper Mode to any other Mode or is to be purchased in accordance with a mandatory purchase pursuant to Section 4.08 , such Remarketing Agent shall, with respect to such Bond, select Interest Periods which do not extend beyond the Mandatory Purchase Date for such Bond. The Remarketing Agent shall also select Interest Periods which permit the amount of Bonds of the applicable subseries to be redeemed in accordance with Section 4.01F or pursuant any optional redemption of which it receives notice on an Interest Payment Date for such Bonds. If a Credit Facility or Liquidity Facility is in effect for Bonds of any subseries in a Commercial Paper Mode, the Remarketing Agent shall not select any Interest Period which would result in the aggregate of interest accrued and to accrue in all Interest Periods for such Bonds then in effect to exceed the amount that may be drawn in respect of interest under either such Credit Facility or such Liquidity Facility.
B . Anticipated Rates and Periods . On or after 9:00 a.m. New York City time on each Rate Determination Date for Bonds in the Commercial Paper Mode, any Holder of such Bonds may telephone the Remarketing Agent for such Bonds and receive notice of the anticipated next Interest Period(s) for such Bonds and the anticipated Commercial Paper Rate(s) for such Interest Period(s).
C . Rate and Period Determinations . By 12:30 p.m. New York City time on each Rate Determination Date for Bonds of any subseries in a Commercial Paper Mode, the Remarketing Agent for such Bonds, with respect to each such Bond in the Commercial Paper Mode which is subject to adjustment on such date, shall determine the Commercial Paper Rate(s) for the Interest Period(s) then selected for such Bond and the Purchase Date(s) immediately following such Interest Period(s) and shall give notice by Electronic Means to the Tender Agent of such Interest Period(s), Purchase Date(s) and the Commercial Paper Rate(s).
D . CUSIP Nos. By 1:00 p.m. New York City time on each Rate Determination Date for Bonds of any subseries in a Commercial Paper Mode, the Tender Agent shall apply for and obtain CUSIP numbers (which the Tender Agent will promptly assign pursuant to Section 4.15A(4) ) for each Bond in the Commercial Paper Mode for which a Commercial Paper Rate, a Purchase Date and Interest Period have been determined on such date and notify the Remarketing Agent of such assignment by Electronic Means.
 
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E . Bondholder Agreement . By acceptance of any Bond during a Commercial Paper Mode, the Holder thereof shall be deemed to have agreed, during each Interest Period, to the Commercial Paper Rate (including the Alternate Rate, if applicable), Interest Period and Purchase Date then applicable thereto and to have further agreed to tender such Bond to the Tender Agent for purchase on such Purchase Date at the Purchase Price.
SECTION 2.06. Determination of Interest Rates During the Daily Mode, the Weekly Mode and the R-FLOATs Mode.
A . Method of Determining Interest Rates . Interest on the Bonds or any subseries thereof in the Daily Mode, Weekly Mode or R-FLOATs Mode (except during any Non-Remarketing Period, when interest shall accrue at the Maximum Rate pursuant to Subsection F of this Section) shall accrue at the rate of interest per annum determined by the Remarketing Agent for such Bonds on and as of the Rate Determination Date for such Bonds as the lower of the Maximum Rate or the minimum rate of interest which, in the judgment of such Remarketing Agent under then-existing market conditions, would result in the sale of such Bonds on such Rate Determination Date at a price equal to the Purchase Price. Such determination shall be conclusive and binding upon the Borrower, the Issuer, the Trustee, the Tender Agent, the Credit Facility Provider(s) (if any), the Liquidity Facility Provider(s) (if any), the Remarketing Agents and the Bondholders.
B . Determination Time for Daily Rate . While the Bonds of any subseries are in the Daily Mode, the Remarketing Agent for such Bonds shall establish the Daily Rate therefor by 10:00 a.m. New York City time on each Business Day. The Daily Rate for Bonds for any day during the Daily Mode which is not a Business Day shall be the Daily Rate for such Bonds established on the immediately preceding Business Day.
C . Determination Time for Weekly Rate . While the Bonds of any subseries are in the Weekly Mode, the Remarketing Agent for such Bonds shall establish the Weekly Rate therefor by 10:00 a.m. New York City time on each Rate Determination Date for such Mode. The Weekly Rate for Bonds shall be in effect (1) initially, from and including the first day such Bonds become subject to the Weekly Mode to and including the following Wednesday (or the second following Wednesday, if the first day of the Weekly Mode is on a Tuesday or Wednesday), and (2) thereafter, from and including each Thursday to and including the following Wednesday. The Remarketing Agents shall make the applicable respective Weekly Rates determined by them available (i) after 10:00 a.m. New York City time on the Rate Determination Date, upon request by telephone to any Bondholder, the Borrower, the Issuer, the Trustee, the Tender Agent, any Credit Facility Provider or any Liquidity Facility Provider and (ii) by Electronic Means to the Trustee not later than the second Business Day after such Rate Determination Date.
D . Determination Time for R-FLOATs Rate . While the Bonds of any subseries are in the R-FLOATs Mode (except during a Special R-FLOATs Rate Period, when interest shall accrue at the R-FLOATs Rate determined pursuant to Subsection E of this Section, and except during any Non-Remarketing Period, when interest shall accrue at the Maximum Rate pursuant to Subsection F of this Section), the Remarketing Agent for such Bonds shall establish the R-FLOATs Rate therefor, by 10:00 a.m. New York City time on each Rate Determination Date for such Bonds. The R-FLOATs Rate shall be in effect during the applicable Interest Period. The Remarketing Agents shall make the R-FLOATs Rates determined by them available (i) after 10:00 a.m. New York City time on the applicable Rate Determination Date, upon request by telephone to any Bondholder or Interested Party, and (ii) by Electronic Means to the Trustee not later than the second Business Day after such Rate Determination Date.
 
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E . Determination Method and Time for R-FLOATs Rate in a Special R-FLOATs Rate Period . In the event that Bonds of any subseries are in an R-FLOATs Mode and are not rated “A3” or “A -”, as applicable, or higher by each Rating Agency, then not later than 1:00 p.m. New York City time on the Business Day immediately preceding the next Interest Payment Date, the Remarketing Agent for such Bonds shall establish the maximum period for a Special R-FLOATs Rate Period, which maximum Special R-FLOATs Rate Period shall be made available after 1:00 p.m. New York City time on the Business Day immediately prior to the applicable Rate Determination Date by posting it electronically and by telephone to any Bondholder or Interested Party who contacts applicable Remarketing Agent. Not later than 10:00 a.m. New York City time on such Rate Determination Date, such Remarketing Agent shall select a Special R-FLOATs Rate Period, which shall be the shortest Interest Period (but in no event longer than the maximum Special R-FLOATs Rate Period previously announced) for such Bonds which in the judgment of such Remarketing Agent in each case would result in such Bonds trading at a price equal to 100% of principal amount plus accrued interest, and an R-FLOATs Rate for such Bonds in accordance with Subsection A of this Section. The Remarketing Agents shall make the respective R-FLOATs Rate and Special R-FLOATs Rate Period determined by them available (i) after 10:00 a.m. New York City time on the applicable Rate Determination Date by telephone to any Bondholder and any Interested Party which contacts such Remarketing Agent and (ii) by Electronic Means to the Trustee not later than the second Business Day following such Rate Determination Date. In the event such Remarketing Agent is unable to set a Special R-FLOATs Rate Period and R-FLOATs Rate which will produce a sale of such Bonds at a price equal to 100% of principal amount plus accrued interest, such Bonds shall bear interest at the Maximum Rate and for the Interest Period determined pursuant to Subsection F of this Section. In addition, the Borrower may elect, with the consent of the applicable Remarketing Agent, to have the Bonds of any subseries in an R-FLOATs Mode converted into a Special R- FLOATs Rate Period having a duration of the Borrower’s choosing by giving at least 10 days notice to the Trustee and the Tender Agent. Notice of such Special R-FLOATs Rate Period shall be given in the same manner as notice of the maximum Special R-FLOATs Rate Period set forth above. On the effective date of such optional conversion to a Special R-FLOATs Rate Period of more than 35 days, the affected Bonds shall be subject to mandatory purchase pursuant to Section 4.08 .
F . Determination of R-FLOATs Non-Remarketing Period and Rate .
(1) Determinations . If any Bond that is in the R-FLOATs Mode is optionally tendered for purchase pursuant to Section 4.06 or is subject to mandatory purchase pursuant to Section 4.08 or Section 4.10 and either (a) the Remarketing Agent for such Bond, after using its reasonable best efforts, is unable to remarket such Bond at the Purchase Price by 2:00 p.m. New York City time on the Purchase Date or Mandatory Purchase Date (whether such inability is due to market conditions or otherwise) or (b) such Bond is returned to the Holder thereof pursuant to Section 4.12C , then, from such Purchase Date or Mandatory Purchase Date until the date on which all Bonds of the same subseries in such Mode that have been tendered or are subject to mandatory tender are successfully remarketed at the Purchase Price (the “ Non-Remarketing Period ”), all Bonds of such subseries in such Mode shall bear interest for a new Interest Period, which shall be the same as the Interest Period for such Bonds just concluding, unless such Interest Period was a Special R-FLOATs Rate Period, in which case such Bonds shall bear interest for a weekly R-FLOATs Mode at the Maximum Rate. Following the Non-Remarketing Period, all Bonds of such subseries in such Mode shall (unless converted to a different Mode) bear interest at a rate per annum determined pursuant to Subsection D or E of this Section.
(2) Special Rate Determination Dates . During each Non-Remarketing Period for the Bonds of a subseries in an R-FLOATs Mode, the Remarketing Agent for such Bonds shall continue to use its best efforts each Business Day to remarket such Bonds in the R-FLOATs Mode at the Purchase Price. In connection therewith, such Remarketing Agent may consider the day on which such Bonds are successfully remarketed at the Purchase Price to be a Rate Determination Date for such Bonds.
 
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SECTION 2.07. Determination of Indexed Rates.
A . Long Indexed Mode . Prior to any conversion of Bonds to a Long Indexed Mode, the Issuer shall enter into a Supplemental Bond Indenture setting forth the index, the spread, the redemption provisions, and the Interest Period for such Bonds. The Borrower shall select the index on which the Long Indexed Rate for such Bonds shall be based not less than five Business Days prior to the applicable Rate Determination Date. Such index shall be three-month LIBOR or, with the consent of the Issuer, the Consumer Price Index, the SIFMA Swap Index or any other index which the Borrower elects. The Remarketing Agent for such Bonds shall determine the percentage of and/or the spread to such index to be used in calculating the Long Indexed Rate not later than 4:00 p.m. New York City time on the Rate Determination Date for such Bonds. The percentage and/or the spread shall be the lowest percentage which, when multiplied by and/or added to the index, such Remarketing Agent determines will result in selling such Bonds at a price equal to the Purchase Price on the Rate Determination Date therefor. At the time such Remarketing Agent determines the percentage and/or the spread to be applied to the index, the Remarketing Agent shall also determine the interest rate for the initial Interest Payment Period from the Mode Change Date to the first Interest Payment Date for such Bonds in the Long Indexed Mode, the frequency with which the Long Indexed Rate shall be recalculated, and the Interest Payment Dates therefor. Unless otherwise agreed by the Issuer with the consent of the Borrower, the Interest Payment Dates for Bonds in the Long Indexed Mode shall be each February 1, May 1, August 1, and November 1, and each Interest Payment Period in such Mode shall extend from the Mode Change Date or any subsequent Interest Payment Date therefor to the immediately succeeding Interest Payment Date therefor. Such Remarketing Agent shall make such information available by Electronic Means to any Bondholder requesting such information and to the Borrower, the Issuer, the Trustee, the Tender Agent and the Credit Facility Providers (if any). Upon request of any Bondholder, the Borrower, the Issuer, the Trustee or the Credit Facility Provider for such Bonds, the Tender Agent shall give notice of such information by Electronic Means. On each date on which the Long Indexed Rate for Bonds is recalculated, the Calculation Agent shall give notice of such rate by Electronic Means upon request from any Bondholder, the Borrower, the Issuer, the Trustee, the Tender Agent or any Credit Facility Provider or Liquidity Facility Provider for such Bonds. Such determination shall be conclusive and binding upon the Borrower, the Issuer, the Trustee, the Tender Agent, the Credit Facility Providers (if any), the Liquidity Facility Providers (if any), the Remarketing Agents and the Bondholders.
B . Term Indexed Modes . On the effective date of this Bond Indenture, the Bonds shall be converted to a LIBOR Term Indexed Mode with an initial Purchase Date of the first Business Day on or after August 19, 2019. Until the Bonds have been converted to a different Mode or a Term Indexed Mode with Interest Periods of a different duration, after each Interest Period in a Term Indexed Mode the Bonds shall bear interest for successive Interest Periods of substantially the same duration beginning on the Purchase Date for such preceding Interest Period and ending on a day immediately preceding a Business Day.
Not later than 4:00 p.m. New York City time on the Rate Determination Date preceding the Purchase Date specified in the first sentence of this subsection or any subsequent Purchase Date in a Term Indexed Mode, and the Rate Determination Date preceding any Mode Change Date on which a subsequent Term Indexed Mode commences, the Remarketing Agent shall determine (a) the next Purchase Date in such LIBOR Term Indexed Mode, which shall be the first Business Day following the Interest Period described in the immediately preceding paragraph, (b) the Applicable Spread for the Interest Period beginning on such prior Purchase Date or Mode Change Date, (c) if such Term Indexed Mode is a LIBOR Term Indexed Mode, the Applicable Factor for such Interest Period, and (d) any function or scale by which such Applicable Spread or Applicable Factor shall be adjusted during such Interest Period.

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The Remarketing Agent shall make each determination of the Applicable Spread and the Applicable Factor (and any function or scale to be used to adjust the Applicable Spread or the Applicable Factor) required to be made by it pursuant to this subsection regardless of whether Bonds are Liquidity Facility Bonds and whether or not an Event of Default exists. On the Rate Determination Date for each Interest Period for Bonds in any Term Indexed Mode, the Remarketing Agent shall (i) if such Term Indexed Mode is the LIBOR Term Indexed Mode, first determine the Applicable Factor (and any function or scale for adjusting the Applicable Spread or Applicable Factor) for the ensuing Interest Period for such Bonds by determining, under prevailing market conditions, the Applicable Factor (and the function or scale for adjustments thereof and of the Applicable Spread, if any, necessary, in the judgment of the Remarketing Agent, to be used to determine the Term Indexed Rate on such Bonds in such Interest Period) that will result in the lowest interest on such Bonds in such Interest Period under reasonably anticipated market conditions, and then (ii) determine the Applicable Spread for such Interest Period and Bonds by determining, under prevailing market conditions, the minimum Applicable Spread necessary, in the judgment of the Remarketing Agent, to produce a bid for such Bonds equal to 100% of the principal amount thereof plus interest, if any, accrued thereon from the most recent Interest Payment Date therefor to which interest has been paid or duly provided for. If for any reason no Remarketing Agent shall have been appointed for the Bonds hereunder on any date on which the Applicable Factor or Applicable Spread (or function or scale to adjust the Applicable Factor or Applicable Spread) therefor must be determined, the Remarketing Agent fails to determine the Applicable Spread or Applicable Factor (or function or scale to adjust the Applicable Spread or Applicable Factor) for any such Bond on such date, or any Applicable Spread or Applicable Factor (or function or scale to adjust the Applicable Spread or Applicable Factor) for any such Bond determined by the Remarketing Agent on such date is determined by a court of competent jurisdiction to be invalid or unenforceable, the Applicable Spread and Applicable Factor (and any function or scale used to adjust the Applicable Spread or Applicable Factor) therefor shall be the Applicable Spread and Applicable Factor (and function and scale for adjusting the Applicable Spread or Applicable Factor) theretofore in effect.
On each day in each Interest Period during which the Bonds of any subseries are in a Term Indexed Mode, such Bonds shall bear interest at the “ Term Indexed Rate ” therefor, which shall be the lesser of 15% per annum or:
(i) Normal Rate : if such Term Indexed Mode is a LIBOR Term Indexed Mode, then the LIBOR Index Rate for such Bonds and day, and if such Indexed Mode is a SIFMA Term Indexed Mode, then the SIFMA Indexed Rate for such Bonds and day, in either case rounded upward to the fourth decimal place and unless otherwise provided in clause (ii)  or (iii) of this subsection;
(ii) Taxable Rate : following a Determination of Taxability, the product of the rate for such day specified in clause (i) of this subsection and the Taxable Rate Factor as of such day; unless otherwise provided in clause (iii)  of this subsection; and
(iii) Default Rate : with respect to principal of or interest on such Bonds that is overdue, the Default Rate following written notice to the Trustee and the Borrower from the Bondholder Representative of the occurrence of an Event of Default, as therein defined, under the Bondholder Agreement, until the Trustee receives notice from the Bondholder Representative that such Event of Default has been cured or is no longer continuing.
 
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Notwithstanding the foregoing, if the applicable rate described in Clause (i), (ii)  or (iii)  of this subsection exceeds 15% per annum while the Bonds of any subseries are in an Interest Period in such Term Indexed Mode, such Bonds thereafter shall continue to bear interest at 15% per annum through the earlier to occur of (A) the first day thereafter when the interest accrued thereon from the first day of such Interest Period is equal to or exceeds the interest that would have accrued thereon had the Term Indexed Rate not been limited to 15% per annum or (B) the last day of such Interest Period.
SECTION 2.08. Determination of Stepped Coupon Rate.
Not later than 4:00 p.m. New York City time, the Remarketing Agent for such Bonds shall divide the period remaining to the final Maturity Date into such number of periods as it shall determine (each a “ Stepped Coupon Period ”) and shall determine an interest rate for each Stepped Coupon Period. The Stepped Coupon Rate for each Stepped Coupon Period shall be the lowest rate which, in the aggregate for all Stepped Coupon Periods, such Remarketing Agent determines would result in a sale of the Bonds of such subseries at a price equal to the Purchase Price at the lowest net interest cost from the Mode Change Date to the final Maturity Date of such Bonds. Such Remarketing Agent shall also determine the Interest Payment Dates applicable during the Stepped Coupon Mode, provided, however , that the day following each Stepped Coupon Period (or the next Business Day if such day is not a Business Day) shall be an Interest Payment Date. Unless otherwise agreed by the Issuer with the consent of the Borrower, Interest Payment Dates in the Stepped Coupon Mode shall be each May 1 and November 1.
If the Remarketing Agent for the Bonds of a subseries in a Stepped Coupon Mode determines that such Bonds would bear a lower effective net interest cost if such Bonds were serial bonds or serial bonds and term bonds with the maturity (or Mandatory Sinking Account Payment) dates and principal amounts to be retired on such dates matching the Mandatory Sinking Account Payments for such Bonds, such Bonds shall become serial bonds or serial bonds and term bonds with such maturity (or Mandatory Sinking Account Payment) dates and principal amounts as determined by such Remarketing Agent to result in the lowest effective net interest cost for such Bonds.
The Remarketing Agents shall make the respective Stepped Coupon Periods and Stepped Coupon Rates determined by them available by Electronic Means and upon request by telephone to the Bondholders, the Borrower, the Issuer, the Trustee, the Tender Agent and the Credit Facility Providers (if any). Upon request of any Bondholder, the Borrower, the Issuer, the Trustee, any Credit Facility Provider or any Liquidity Facility Provider, the Tender Agent shall give notice of such rates by Electronic Means and telephonically if requested by a Bondholder. Such determination shall be conclusive and binding upon the Borrower, the Issuer, the Trustee, the Tender Agent, the Credit Facility Providers (if any), the Liquidity Facility Providers (if any), the Remarketing Agents and the Bondholders.
SECTION 2.09. Determination of Term Rates.
A . Method of Determining Term Rate, Interest Periods and Purchase Dates During Term Rate Mode . The Borrower shall determine the Interest Period for Bonds in a Term Rate Mode on or before the Rate Determination Date for such Interest Period. The Term Rate for Bonds of any subseries and Interest Period shall be the minimum rate which, in the judgment of the Remarketing Agent for such Bonds, would result in a sale of such Bonds at a price equal to the Purchase Price on the Rate Determination Date for such Interest Period. Such Remarketing Agent shall also determine the Purchase Date for such Bonds as the day following the last day of such Interest Period. If a new Interest Period for such Bonds is not selected by the Borrower prior to the Business Day next preceding the Purchase Date for the Interest Period for such Bonds then in effect, or if a Favorable Opinion of Bond Counsel is not then delivered to the Trustee in respect of the change in Interest Period, the new Interest Period for such Bonds shall be the Weekly Mode.
 
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B . Determination Time for Term Rates . Except as provided in Subsection A of this Section, once Bonds of any subseries are changed to the Term Rate Mode, such Bonds shall continue in the Term Rate Mode until changed to another Mode in accordance with Section 2.12 . The Term Rate for the Bonds of any subseries in any Interest Period shall be determined by the Remarketing Agent for such Bonds not later than 4:00 p.m. New York City time on the Rate Determination Date for such Interest Period. After 4:00 p.m. New York City time on such Rate Determination Rate, such Remarketing Agent shall make the Term Rate available by telephone or Electronic Means to any Bondholder, the Borrower, the Issuer, the Trustee, the Tender Agent, the Credit Facility Providers (if any) and the Liquidity Facility Providers (if any).
SECTION 2.10. Determination of Fixed Rate.
Subject to Section 2.12B , at the option of the Borrower, the Bonds or any subseries thereof may be converted to bear interest at the Fixed Rate to the Maturity Date of such Bonds unless, on the date the Remarketing Agent for such Bonds determines the Fixed Rate, such Remarketing Agent also determines that such Bonds would bear a lower effective net interest cost if such Bonds were serial bonds or serial bonds and term bonds with the maturity (or Mandatory Sinking Account Payment) dates and principal amounts to be retired on such dates matching the Mandatory Sinking Account Payments, in which event such Bonds shall become serial bonds or serial bonds and term bonds with such maturity (or Mandatory Sinking Account Payment) dates and principal amounts and shall bear separate Fixed Rates for each maturity. The Remarketing Agent for such Bonds shall determine the Fixed Rate(s) not later than 4:00 p.m. New York City time on the Rate Determination Date therefor. The Fixed Rate for Bonds of any subseries and maturity shall be the minimum interest rate which, in the judgment of the Remarketing Agent for such Bonds, will result in a sale of such Bonds at a price equal to the Purchase Price or, if with the written consent of the Borrower such Remarketing Agent determines that the lowest yield will result by selling such Bonds at a premium or discount, then a price equal to the Purchase Price (plus any such premium or less any such discount) on such Rate Determination Date, provided that, in the case of Bonds to be sold at a discount, either (1) a Liquidity Facility is in effect with respect to such Bonds and provides funds for the purchase of such Bonds at the Purchase Price on the applicable Mode Change Date or (2) the Borrower agrees to transfer to the Tender Agent on the date of change to the Fixed Rate Mode, in immediately available funds, for deposit in the Borrower Purchase Account, an amount equal to such discount. In the case of Bonds sold at a premium, the premium shall be transferred to the Borrower and applied to pay Costs of the Projects, including costs of remarketing such Bonds on the date of change to the Fixed Rate Mode. The Remarketing Agents shall make the Fixed Rates determined by them available by telephone to any Bondholder, the Borrower, the Issuer, the Trustee, the Tender Agent and the Credit Facility Providers (if any). Such determinations shall be conclusive and binding upon the Borrower, the Issuer, the Trustee, the Tender Agent, the Credit Facility Providers (if any), the Liquidity Facility Providers (if any), the Remarketing Agents and the Bondholders.
SECTION 2.11. Alternate Rate for Interest Calculation.
In the case of Bonds of any subseries other than Fixed Rate Bonds, if a Remarketing Agent is to determine any rate or function or component thereof or any Interest Period and (a) the Remarketing Agent for such Bonds fails or is unable to determine the interest rate(s) or Interest Periods with respect to any such Bonds (except as provided in Sections 2.06F ), (b) there is no Remarketing Agent for such Bonds or the Remarketing Agent for such Bonds suspends its remarketing efforts in accordance with its Remarketing Agreement, or (c) the method of determining
 
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the interest rate(s) or Interest Periods with respect to such Bonds shall be held to be unenforceable by a court of law of competent jurisdiction, such Bonds shall thereupon, until such time as such Remarketing Agent again makes such determination or until there is delivered an Opinion of Counsel to the effect that the method of determining such rate is enforceable, bear interest, from the last date on which such rate was determined in the case of clauses (a)  and (b)  and from the date on which interest was legally paid in the case of clause (c) , at the Alternate Rate for the Mode in effect for such Bonds. If any of the circumstances described in clauses (a), (b)  and (c)  of the preceding sentence occurs on a Rate Determination Date for such Bonds while such Bonds are in the Commercial Paper Mode, the relevant Interest Periods shall be from and including such Rate Determination Date to, but not including, the next succeeding Business Day, and thereafter shall commence on each Business Day and extend to, but shall not include, the next Business Day. Notwithstanding clauses (a)  and (b)  of the first sentence of this Section, if such Bonds are in an R-FLOATs Mode and an Interest Period of 35 days or less, the new Interest Period for such Bonds in the R-FLOATs Mode shall be the same duration as the immediately preceding Interest Period therefor and the R-FLOATs Rate therefor in such Interest Period shall be the Alternate Rate, and, if such Bonds are in an R-FLOATs Mode for an Interest Period of greater than 35 days, the new Interest Period for such Bonds in the R-FLOATs Mode shall be the Interest Period therefor for a weekly R-FLOATs Rate and the R-FLOATs Rate thereon in the first such Interest Period shall be the Alternate Rate. The Tender Agent shall make the determinations required by this Section for the Bonds of a subseries upon notification from the Issuer or the Borrower, if there is no Remarketing Agent for such Bonds, if the Remarketing Agent for such Bonds fails to make any such determination or if the Remarketing Agent for such Bonds has suspended its remarketing efforts in accordance with its Remarketing Agreement.
SECTION 2.12. Changes in Mode and Maximum Rate.
Subject to the provisions of this Section, the Borrower may effect a change in Mode with respect to the Bonds of any subseries (other than Fixed Rate Bonds or Bonds in the Stepped Coupon Mode or the Long Indexed Mode) by following the procedures set forth in this Section.
A . Changes to Modes Other Than to Fixed Rate Mode . The Bonds of any subseries (other than Bonds in the Fixed Rate Mode, the Stepped Coupon Mode, or the Long Indexed Mode) may be changed from one Mode to another Mode (other than to the Fixed Rate Mode) on the following terms and conditions:
(1) Mode Change Notice; Notice to Holders . No later than the 15th Business Day preceding the proposed Mode Change Date, the Borrower shall give written notice to the Issuer, the Trustee, the Tender Agent (if any), and the Remarketing Agent (if any), Liquidity Facility Provider (if any) and Credit Facility Provider (if any) for such Bonds of its intention to effect a change in the Mode for such Bonds from the Mode then prevailing (referred to in this Section as the “ Current Mode ”) to another Mode (referred to in this Section as the “ New Mode ”) specified in such written notice and, if the change is to a Term Rate Mode or Term Indexed Mode, the length of the initial Interest Period and, if the change is to the R-FLOATs Mode, whether the New Mode is the weekly, monthly, or term rate R-FLOATs Mode or an R-FLOATs Mode comprised of Special R-FLOATS Rate Periods. Notice of the proposed change in Mode shall be given to the Holders of such Bonds pursuant to Section 4.08 . In the event that the conditions to conversion are not satisfied, including the failure to remarket all such Bonds on the Mode Change Date, such Bonds shall nevertheless be subject to mandatory tender as set forth in S ubsection A(4) of this Section.
 
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(2) Determination of Interest Rates . The New Mode for such Bonds shall commence on the Mode Change Date, and the interest rate(s) (together, in the case of a change to the Commercial Paper Mode, with the Interest Period(s) and Purchase Date(s)) with respect to such Bonds shall be determined by the Remarketing Agent for such Bonds in the manner provided in Sections 2.04, 2.05, 2.06, 2.07, 2.08, 2.09 or 2.10 as applicable.
(3) Conditions Precedent . Each change in Mode pursuant to this Subsection A shall be made only on the following conditions:
(a) Business Day . The Mode Change Date shall be a Business Day.
(b) Purchase Date . Additionally, the Mode Change Date, in the case of a change:
(i) From Commercial Paper Mode : from the Commercial Paper Mode, shall be a day which is the last Purchase Date for all Interest Periods for the affected Bonds set by the Remarketing Agent for such Bonds or any later Business Day;
(ii) From Term Mode : from the Term Rate Mode or term R-FLOATs Mode, shall be the Purchase Date following the current Interest Period for such Bonds; and
(iii) From Term Indexed Mode : from a Term Indexed Mode, shall be a day on which for the Bonds of the applicable subseries may be redeemed at the option of the Borrower pursuant to Section 4.01D .
(c) Opinion of Counsel . The Trustee, the Tender Agent and the Remarketing Agent for such Bonds shall have received on the Mode Change Date a Favorable Opinion of Bond Counsel dated the Mode Change Date and addressed to the Trustee, the Tender Agent and the Credit Facility Provider (if any), Liquidity Facility Provider (if any) and Remarketing Agent for such Bonds and an Opinion of Counsel to the effect that the change in Mode then to become effective is authorized by Texas law and will not adversely affect the validity of such Bonds.
(d) Revocation of Election to Change . The Borrower may revoke its election to effect a conversion of the interest rate on such Bonds to another Mode by giving written notice of such revocation to the Issuer, the Trustee, the Tender Agent, and the Remarketing Agent, Liquidity Facility Provider (if any), and Credit Facility Provider (if any) for such Bonds, at any time prior to 10:00 a.m. New York City time on the Business Day immediately preceding the Rate Determination Date for the proposed Mode Change Date.
(e) Adequate Provisions for Purchase . If there shall be no Liquidity Facility in effect to provide funds for the purchase of such Bonds on the Mode Change Date, the proceeds of remarketing such Bonds available on the Mode Change Date shall be not less than the amount required to purchase all of such Bonds at the Purchase Price (unless the Borrower, in its sole discretion, elects to transfer to the Tender Agent the amount of such deficiency on or before the Mode Change Date).
 
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(f) Long Indexed Mode Supplement . Bonds shall not be changed to a Long Indexed Mode unless the Issuer and the Trustee have entered into the Supplemental Bond Indenture described in Section 2.07A .
(4) Failure to Satisfy Conditions Precedent . If the foregoing conditions have not been satisfied for the Bonds of any subseries by the applicable Mode Change Date, the New Mode for such Bonds shall not take effect, and (a) if the change was from an R-FLOATs Mode, such Bonds shall remain in the R-FLOATs Mode with interest rates established in accordance with Section 2.06D, 2.06E or 2.06F and (b) otherwise, all such Bonds shall be subject to mandatory tender, the Mode for such Bonds shall be changed to a Weekly Mode and such Bonds shall bear interest at the Maximum Rate for the first Interest Period in such Mode.
B . Change to Fixed Rate Mode . At the option of the Borrower, the Bonds of any subseries (other than Bonds in the Long Indexed Mode and the Stepped Coupon Mode) may be changed to the Fixed Rate Mode as provided in this Subsection B . Not less than 20 days (or such shorter time as may be agreed to by the Trustee and the Remarketing Agent for such Bonds) before the proposed Mode Change Date, the Borrower shall give written notice to the Issuer, the Trustee, the Tender Agent, such Remarketing Agent, and the Credit Facility Provider (if any) and Liquidity Facility Provider (if any) for such Bonds and each Rating Agency then rating such Bonds, stating that the Mode for such Bonds will be changed to the Fixed Rate Mode and setting forth the proposed Mode Change Date and a schedule specifying the principal amount of such Bonds, if any, which shall mature or be subject to redemption pursuant to Section 4.01F on November 1 of each year specified in such schedule. Any such change in Mode shall be made on the following terms and conditions:
(1) Mode Change Date . The Mode Change Date for a change in the Mode of such Bonds to a Fixed Rate Mode shall be: (i) in the case of a conversion from a Daily Mode or a Weekly Mode, a regularly scheduled Interest Payment Date for such Bonds on which interest is payable in the Daily Mode or Weekly Mode from which the conversion is to be made; (ii) in the case of a conversion from a Term Rate Period, a regularly scheduled Interest Payment Date for such Bonds on which a new Term Rate Period would otherwise have commenced; (iii) in the case of a conversion from a Commercial Paper Mode, a day which is the last regularly scheduled Interest Payment Date for such Bonds on which interest is payable for any Interest Period established for such Bonds; (iv) in the case of a conversion from a Term Indexed Mode, a day specified in Section 2.12A(3)(b)(iii) ; and (v) in the case of a conversion from an R-FLOATs Mode, any Interest Payment Date for such Bonds on which a new Interest Period therefor would otherwise commence.
(2) Notices and Opinions . Not less than 20 days (or such shorter time as may be agreed to by the Trustee and the Remarketing Agent for such Bonds) before the proposed Mode Change Date, the Borrower shall give written notice of the conversion to the Issuer, the Trustee, the Tender Agent, such Remarketing Agent, and the Liquidity Facility Provider (if any), and Credit Facility Provider (if any) for such Bonds, setting forth the proposed Mode Change Date. Together with such notice, the Borrower shall file with the Issuer, the Trustee and the Tender Agent a Favorable Opinion of Bond Counsel and an Opinion of Counsel to the effect that the conversion of such Bonds to the Fixed Rate Mode, including the assignment of new maturity dates and amortization requirements pursuant to S ubsection B(6) of this Section is authorized by Texas law and shall not adversely affect the validity of such Bonds. No conversion to the Fixed Rate Mode shall occur unless the Borrower shall also file with the Issuer and the Trustee a Favorable Opinion of Bond Counsel dated the Mode Change Date.
 
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(3) Notice to Bondholders; Mandatory Tender . In the event of a conversion of such Bonds from a Daily Mode, Weekly Mode, Term Rate Mode, Term Indexed Mode, R-FLOATs Mode or Commercial Paper Mode, the Trustee shall mail a notice of the proposed conversion to the registered owners of all such Bonds not less than fifteen (15) days prior to the proposed Mode Change Date. Such notice shall state that such Bonds shall be subject to mandatory tender at a price equal to 100% of the principal amount thereof plus accrued interest on the Mode Change Date. In the event that the conditions of a conversion are not satisfied, including the failure to remarket all such Bonds on the Mode Change Date, such Bonds shall be subject to mandatory tender as set forth in Subsection B(8) of this Section.
(4) Rate Determination . Not later than 12:00 noon, New York City time, on the Business Day immediately prior to the Mode Change Date, the Remarketing Agent for such Bonds shall determine the Fixed Rate(s) for such Bonds. Such determination shall be conclusive and binding upon the Issuer, the Borrower, the Trustee, the Liquidity Facility Providers (if any), the Credit Facility Providers (if any), the Tender Agent and the Holders of the Bonds. Not later than 5:00 p.m., New York City time, on the date of determination of such Fixed Rate(s), the Remarketing Agent for such Bonds shall notify the Trustee, the Issuer and the Borrower of such Fixed Rates by telephone or Electronic Means.
(5) Revocation of Election to Change . The Borrower may revoke its election to effect a conversion of the Mode of such Bonds to the Fixed Rate Mode by giving written notice of such revocation to the Issuer, the Trustee, the Tender Agent, and the Remarketing Agent, Liquidity Facility Provider (if any), and Credit Facility Provider (if any) for such Bonds at any time prior to 10:00 a.m. New York City time on the Business Day immediately preceding the Rate Determination Date for the proposed Mode Change Date.
(6) Amortization Schedule . Prior to the conversion of such Bonds to a Fixed Rate Mode pursuant to this Subsection B , the Remarketing Agent for such Bonds shall deliver to the Trustee, the Issuer and the Borrower a certificate which includes a schedule specifying the principal amount of such Bonds which shall mature on November 1 of each year specified in such schedule, and the interest rate payable on such Bonds of each such maturity. In determining the maturity dates and interest rates, such Remarketing Agent shall use the following guidelines:
(a) Serial and Term Bonds . Such Remarketing Agent shall allocate such Bonds between serial bonds and term bonds in such manner as shall produce the lowest aggregate interest payable with respect to such Bonds.
(b) Interest Rate . Such Remarketing Agent shall set the interest rate on each such Bond of a particular maturity at provided in Section 2.10 .
Notwithstanding anything above to the contrary, (x) if due to the reamortization of principal or serialization of Bonds pursuant to this Subsection B(6) , Bond Counsel cannot render a Favorable Opinion of Bond Counsel, then no such serialization shall occur, and (y) the Issuer with the consent of the Borrower may agree to another method for providing for payment of principal of the Bonds on or after the Mode Change Date if (i) the Remarketing Agent for such Bonds deems the utilization of such other method necessary in order to remarket such Bonds at a price of par and (ii) there is delivered to the Trustee and the Issuer by the Borrower a Favorable Opinion of Bond Counsel and an Opinion of Counsel to the effect that utilization of such other method is authorized by Texas law and shall not adversely affect the validity of such Bonds.
 
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(7) Sinking Fund Redemption Prices . Mandatory redemption of such Bonds by operation of the Sinking Fund Account shall be without premium. The Bonds converted to the Fixed Rate Mode shall be redeemed by the Trustee pursuant to the provisions of this Section and Section 4.01F without any notice from or direction by the Issuer or the Borrower.
(8) Failure to Satisfy Conditions Precedent . If the foregoing conditions have not been satisfied by the Mode Change Date, the New Mode for such Bonds shall not take effect and (a) if the change was from an R-FLOATs Mode, such Bonds shall remain in the R-FLOATs Mode with interest rates established in accordance with Section 2.06D, 2.06E or 2.06F and (b) otherwise, all such Bonds shall be subject to mandatory tender, and the Mode for such Bonds shall be changed to a Weekly Mode and bear interest at the Maximum Rate for the first Interest Period in such Mode.
C . Changes in Maximum Rate . The Trustee shall give at least 10 days written notice of each change in the Maximum Rate for the Bonds or any subseries thereof to each Holder thereof resulting from the amendment or replacement of any Credit Facility or Liquidity Facility.
SECTION 2.13. Form of Bonds.
The Bonds, including the form of the Registration Certificate of the Comptroller of Public Accounts of the State of Texas to be reproduced on the initial Bond, the form of the Certificate of Authentication to be reproduced on all subsequently authenticated Bonds, and the form of Assignment to be reproduced on all Bonds, shall be initially in substantially the form as set forth in Exhibit A , with necessary or appropriate variations, omissions and insertions as permitted or required hereby. Upon any designation of a subseries of Bonds, the Bonds so designated shall be exchanged for new Bonds specifying the applicable subseries by a suffix applied to the series designation. Upon any change in Mode, a new form of Bonds may be prepared which contains the terms of the Bonds applicable in the new Mode.
The definitive Bonds shall be printed, lithographed, engraved, typewritten, or photocopied, produced by any combination of these methods, or produced in any other manner, all as determined by the officers executing such Bonds as evidenced by their execution thereof.
SECTION 2.14. Execution of Bonds.
The Bonds shall be executed in the name and on behalf of the Issuer with the manual or facsimile signature of its President or one of its Vice Presidents and attested by the manual or facsimile signature of its Secretary or one of its Assistant Secretaries. The Bonds shall then be delivered to the Trustee for authentication by it. In case any of the officers who shall have signed or attested any of the Bonds shall cease to be such officer or officers of the Issuer before the Bonds so signed or attested shall have been authenticated or delivered by the Trustee or issued by the Issuer, such Bonds may nevertheless be authenticated, delivered and issued and, upon such authentication, delivery and issue, shall be as binding upon the Issuer as though those who signed and attested the same had continued to be such officers of the Issuer, and also any Bonds may be signed and attested on behalf of the Issuer by such persons as at the actual date of execution of such Bonds shall be the proper officers of the Issuer although at the nominal date of such Bonds any such person shall not have been such officer of the Issuer.
 
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No Bond shall be secured by, or be entitled to any lien, right, or benefit under, this Bond Indenture or be valid or obligatory for any purpose, unless there appears on such Bond either a Registration Certificate executed by the Comptroller of Public Accounts of the State of Texas or her duly authorized agent by manual signature, or a Certificate of Authentication executed by the Trustee by manual signature, in either case substantially in the form included in the form of Bond attached hereto as Exhibit A , and either such certificate upon any Bond shall be conclusive evidence, and the only evidence, that such Bond has been duly authenticated or certified and delivered hereunder.
SECTION 2.15. Transfer of Bonds.
Subject to the provisions of Section 2.20 , any Bond may, in accordance with its terms, be transferred, upon the bond registration books required to be kept pursuant to the provisions of Section 2.17 , by the Person in whose name it is registered, in person or by his duly authorized attorney, upon surrender of such registered Bond for cancellation, accompanied by delivery of a written instrument of transfer, duly executed in a form satisfactory to the Trustee.
Whenever any Bond or Bonds shall be surrendered for transfer, the Issuer shall execute and the Trustee shall authenticate and deliver a new Bond or Bonds for a like aggregate principal amount of the same subseries, maturity, Mode, Interest Period, and interest rate. The Trustee shall require the Bondholder requesting such transfer to pay any tax or other governmental charge required to be paid with respect to such transfer.
The Trustee shall not transfer any Bond if the Trustee has received written notice from the Remarketing Agent to the effect that the Remarketing Agent has received notice of tender of such Bond from the Holder of such Bond pursuant to Section 4.06 .
The Trustee shall not be required to transfer any Bond of any subseries, except to the Credit Facility Provider (if any) or Liquidity Facility Provider (if any) for such Bond, during the 15 days immediately preceding (1) the date on which notice of redemption of Bonds of such subseries is given or (2) the date on which Bonds of such subseries will be selected for redemption.
SECTION 2.16. Exchange of Bonds.
Bonds may be exchanged at the Principal Corporate Trust Office for a like aggregate principal amount of Bonds of the same subseries, maturity, Mode, Interest Period, and interest rate of other authorized denominations. The Trustee shall require the Bondholder requesting such exchange to pay any tax or other governmental charge required to be paid with respect to such exchange.
The Trustee shall not be required to exchange any Bond of any subseries, except to the Credit Facility Provider (if any) or Liquidity Facility Provider (if any) for such Bonds, during the 15 days immediately preceding (1) the date on which notice of redemption of Bond of such subseries is given or (2) the date on which Bonds of any subseries will be selected for redemption.
SECTION 2.17. Bond Register.
The Trustee will keep or cause to be kept sufficient books for the registration and transfer of the Bonds, which shall at all times be open to inspection during regular business hours by the Issuer and the Borrower; and, upon presentation for such purpose, the Trustee shall, under such reasonable regulations as it may prescribe, register or transfer or cause to be registered or transferred, on such books, Bonds as hereinbefore provided.
 
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SECTION 2.18. Temporary Bonds.
The Bonds may be issued in temporary form exchangeable for definitive Bonds when ready for delivery. Any temporary Bond may be printed, lithographed or typewritten, shall be of such denomination as may be determined by the Issuer, shall be in fully registered form without coupons and may contain such reference to any of the provisions of this Bond Indenture as may be appropriate. Every temporary Bond shall be executed by the Issuer and be authenticated by the Trustee upon the same conditions and in substantially the same manner as the definitive Bonds. If the Issuer issues temporary Bonds it will issue definitive Bonds as promptly thereafter as practicable, and thereupon the temporary Bonds may be surrendered, for cancellation, in exchange therefor at the Principal Corporate Trust Office, and the Trustee shall authenticate and deliver in exchange for such temporary Bonds an equal aggregate principal amount of definitive Bonds of authorized denominations of the same subseries, maturity, Mode, Interest Period, and interest rate. Until so exchanged, the temporary Bonds shall be entitled to the same benefits under this Bond Indenture as definitive Bonds authenticated and delivered hereunder.
SECTION 2.19. Bonds Mutilated, Lost, Destroyed or Stolen.
If any Bond shall become mutilated, the Issuer, at the expense of the Holder of said Bond, shall execute, and the Trustee shall thereupon authenticate and deliver, a new Bond of like subseries, maturity, Mode, Interest Period, and interest rate in exchange and substitution for the Bond so mutilated, but only upon surrender to the Trustee of the Bond so mutilated. Every mutilated Bond so surrendered to the Trustee shall be cancelled by it and delivered to, or upon the order of, the Issuer. If any Bond shall be lost, destroyed or stolen, evidence of such loss, destruction or theft may be submitted to the Trustee and, if such evidence be satisfactory to the Trustee and indemnity satisfactory to the Trustee to hold the Issuer and the Trustee harmless shall be given, the Issuer, at the expense of the Holder of such Bond, shall execute, and the Trustee shall thereupon authenticate and deliver, a new Bond of like maturity, Mode, Interest Period, and interest rate in lieu of and in substitution for the Bond so lost, destroyed or stolen (or if any such Bond shall have matured or shall be about to mature, instead of issuing a substitute Bond, the Trustee may pay the same without surrender thereof). The Issuer may require payment by the Holder of a sum not exceeding the actual cost of preparing each new Bond issued under this Section and of the expenses that may be incurred by the Issuer and the Trustee in the premises. Any Bond issued under the provisions of this Section in lieu of any Bond alleged to be lost, destroyed or stolen shall constitute an original additional contractual obligation on the part of the Issuer whether or not the Bond so alleged to be lost, destroyed or stolen be at any time enforceable by anyone, and shall be entitled to the benefits of this Bond Indenture with all other Bonds secured by this Bond Indenture.
SECTION 2.20. Use of Securities Depository.
Notwithstanding any provision of this Bond Indenture to the contrary:
A . Permitted Transfers by Securities Depository . On the effective date of this Bond Indenture, the Trustee shall cause the Bonds to be transferred by the Securities Depository to and registered in the name of the Bondholders or their nominees as, and in the respective aggregate principal amounts, specified in the initial Bondholder Agreement. Thereafter the Bonds may be deposited with the Securities Depository with written consent of the Borrower and the Bondholder Representative, if any, after which registered ownership of the Bonds, or any portion thereof, may not be transferred except:
 
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(1) To any successor of the Securities Depository or its nominee, or to any substitute depository designated pursuant to Subsection A(2) of this Section (herein referred to as a “ substitute depository ”); provided that any successor of the Securities Depository or substitute depository shall be qualified under any applicable laws to provide the service proposed to be provided by it;
(2) To any substitute depository designated by the Borrower upon (a) the resignation of the Securities Depository or its successor (or any substitute depository or its successor) from its functions as depository or (b) a determination by the Borrower that the Securities Depository or its successor (or any substitute depository or its successor) is no longer able to carry out its functions as depository; provided that any such substitute depository shall be qualified under any applicable laws to provide the services proposed to be provided by it; or
(3) To any Person as provided below, upon (a) the resignation of the Securities Depository or its successor (or substitute depository or its successor) from its functions as depository; provided that no substitute depository can be obtained or (b) a determination by the Borrower that it is in the best interests of the Borrower to remove the Securities Depository or its successor (or any substitute depository or its successor) from its functions as depository.
B . Issuance of Certificates on Transfer . In the case of any transfer pursuant to clause (1)  or clause (2)  of Subsection A of this Section, upon receipt of the Outstanding Bonds by the Trustee, together with a Certificate of the Issuer to the Trustee, a single new Bond shall be executed and delivered for the Bonds of such subseries in the aggregate principal amount of the Bonds of such subseries then Outstanding, registered in the name of such successor or such substitute depository, or its nominee, as the case may be, all as specified in such Certificate of the Borrower. In the case of any transfer pursuant to clause (3)  of Subsection A of this Section, upon receipt of the Outstanding Bonds by the Trustee together with a Certificate of the Borrower to the Trustee, new Bonds shall be executed and delivered and registered in the names of such Persons as are requested in such a Certificate of the Borrower, subject to the limitations of Section 2.02 , provided the Trustee shall not be required to deliver such new Bonds within a period less than 60 days from the date of receipt of such a Certificate of the Borrower.
C . Notations on Bonds . While the Bonds are registered in the name of the Securities Depository, they shall bear the following legend:
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”) OR A TRANSFEREE OR ASSIGNEE OF DTC OF THIS BOND MAY NOT RELY UPON THE PRINCIPAL AMOUNT INDICATED HEREON AS THE PRINCIPAL AMOUNT HEREOF OUTSTANDING AND TO BE PAID. THE PRINCIPAL AMOUNT OUTSTANDING AND TO BE PAID ON THIS BOND SHALL FOR ALL PURPOSES BE THE AMOUNT INDICATED ON THE BOOKS OF THE TRUSTEE.
UNLESS THIS BOND IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF DTC, TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY BOND ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
 
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In the case of partial redemption or an advance refunding of the Bonds evidencing all or a portion of the principal amount Outstanding, the Securities Depository shall make an appropriate notation on the Bonds indicating the date and amounts of such reduction in principal, in form acceptable to the Trustee.
D . Persons Treated as Owners . The Issuer and the Trustee shall be entitled to treat the Person in whose name any Bond is registered as the Bondholder thereof for all purposes of this Bond Indenture and any applicable laws, notwithstanding any notice to the contrary received by the Trustee or the Issuer; and the Issuer and the Trustee shall have no responsibility for transmitting payments to, communicating with, notifying or otherwise dealing with any beneficial owners of the Bonds. Neither the Issuer nor the Trustee will have any responsibility or obligations, legal or otherwise, to the beneficial owners or to any other party including the Securities Depository or its successor (or substitute depository or its successor), except for the Holder of any Bond.
E . Payments to Cede & Co . Whenever the Outstanding Bonds are registered in the name of Cede & Co. or its registered assign with the written consent of the Borrower and the Bondholder Representative, if any, the Issuer and the Trustee shall cooperate with Cede & Co., as sole registered Bondholder, and its registered assigns in effecting payment of the principal of and premium, if any, and interest on the Bonds by arranging for payment in such manner that funds for such payments are properly identified and are made immediately available on the date they are due, all as provided in the blanket Letter of Representations between the Trustee and the Securities Depository.
F . Compliance with Procedures . Notwithstanding anything to the contrary contained in this Bond Indenture, when Cede & Co., as nominee of the Securities Depository, is the sole registered owner of the Bonds with the written consent of the Borrower and the Bondholder Representative, if any, all tenders and deliveries of Bonds under the provisions of this Bond Indenture shall be made pursuant to the Securities Depository’s procedures as in effect from time to time, and neither the Issuer nor the Borrower nor the Tender Agent nor the Trustee shall have any responsibility for or liability with respect to the implementation of such procedures.
SECTION 2.21. The Calculation Agent.
A . Appointment and Duties. Whenever any Bond is in a Term Indexed Mode, there shall be a Calculation Agent (which may be the Trustee or the Bondholder Representative, if either accepts appointment) appointed by the Borrower (with the consent of the Bondholder Representative) with power to ascertain and notify the Trustee of each LIBOR Index, LIBOR Index Rate, SIFMA Municipal Swap Index, and SIFMA Indexed Rate, as applicable, and Default Rate, and each change in the Applicable Spread or Reserve Percentage known to it. Bank of America, N.A. is hereby designated as the initial Calculation Agent for the Bonds and shall serve as such under the terms and provisions hereof. Each Calculation Agent shall designate its principal office and signify its acceptance of the duties and obligations imposed upon it as described herein by a written instrument of acceptance delivered to the Issuer, the Trustee, and the Borrower (which may be the Bondholder Agreement), under which the Calculation Agent shall agree particularly (1) to determine the LIBOR Index, LIBOR Index Rate, SIFMA Municipal Swap Index, SIFMA Indexed Rate, and Default Rate, as applicable, (2) to designate an alternate source for the LIBOR Index or, during a Disruption Event, an alternative rate therefor, and (3) to give timely notice of such rates and designations to the Trustee.
 
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B . Performance by Trustee . If the Calculation Agent for the Bonds of any subseries shall resign, be removed, or be dissolved, or if the property or affairs of the Calculation Agent for the Bonds of any subseries shall be taken under control of any state or federal court or administrative body because of bankruptcy or insolvency or for any other reason, and the Borrower shall not have appointed a successor as Calculation Agent, the Trustee shall ipso facto be deemed to be the Calculation Agent for such Bonds for all purposes of this Bond Indenture, until the appointment by the Borrower of a successor Calculation Agent for such Bonds; provided, however , that the Trustee, in its capacity as Calculation Agent, shall not be required to determine the interest rate on Bonds hereunder if the Trustee should be prohibited by law or prevented by system or other organizational limitations from conducting such activities. If the Borrower fails to appoint a successor Calculation Agent for such Bonds within 30 days after its receipt of notice of any such event, the Trustee may apply to a court of competent jurisdiction for appointment of a successor Calculation Agent for such Bonds.
C . Permitted Conflicts . Each Calculation Agent may in good faith hold Bonds or any other form of indebtedness issued by the Issuer or any security issued by the Borrower; own, accept or negotiate any drafts, bills of exchange, acceptances or obligations thereof; and make disbursements therefor and enter into any commercial or business arrangement therewith; all without any liability on the part of such Calculation Agent for any real or apparent conflict of interest by reason of any such actions.
*                    *                     *
 
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ARTICLE III
ISSUANCE OF BONDS; APPLICATION OF PROCEEDS
SECTION 3.01. Issuance and Exchange of the Bonds.
Forthwith upon the execution and delivery of the Original Bond Indenture, receipt by the Trustee of Bonds duly executed by the Issuer, the purchase price for such Bonds, and the initial Bond approved by the Attorney General of Texas and registered by the Comptroller of Public Accounts of the State of Texas, the Trustee authenticated and delivered such Bonds upon written application by the Issuer in exchange for such initial Bond, which was thereupon cancelled.
Forthwith upon the effective date of this Bond Indenture and receipt of Bonds in the form set forth in Exhibit A to this Bond Indenture duly executed by the Issuer, the Trustee shall authenticate and deliver such Bonds in exchange for the Bonds tendered to the Tender Agent for purchase on the Mandatory Purchase Date that coincides with such effective date. Neither the amendment of the Bonds provided for herein nor the exchange of Outstanding Bonds for amended Bonds pursuant to this Section is intended to extinguish or novate any debt represented by the Bonds, but rather each amended Bond is intended to evidence the same debt as the Outstanding Bond for which it is exchanged.
SECTION 3.02. Application of Proceeds of the Bonds.
The proceeds received from the sale of the Bonds shall be deposited in trust with the Trustee, who shall forthwith deposit all such proceeds to the Project Fund.
SECTION 3.03. Establishment and Application of Costs of Issuance Fund.
The Trustee established, maintained and held in trust under the Original Bond Indenture a separate fund of the Borrower designated as the “ Costs of Issuance Fund .” The moneys in the Costs of Issuance Fund were used and withdrawn by the Trustee to pay the Costs of Issuance upon Requisition of the Borrower stating the Persons to whom payment is to be made, the amount to be paid, the purpose for which the obligation was incurred and that such payment is a proper charge against said fund. On or before January 5, 2013, amounts, if any, remaining in the Costs of Issuance Fund were transferred to the Project Fund, and the Costs of Issuance Fund was thereafter closed.
SECTION 3.04. Establishment and Application of Project Fund.
A. Trust Fund . The Trustee established under the Original Bond Indenture and shall maintain and hold in trust hereunder a separate fund of the Borrower designated as the “ Project Fund .” On the date of delivery of the initial Bonds, the Trustee transferred from the Project Fund to the Costs of Issuance Fund the amount specified in the application by the Issuer for authentication and delivery of the Bonds. The balance of moneys in the Project Fund have been and shall be used and withdrawn by the Trustee to pay the costs of the Projects.
B. Requisitions . Before any payment from the Project Fund shall be made, the Borrower shall file or cause to be filed with the Trustee a Requisition in the form of Exhibit C , duly completed.
Upon receipt of a Requisition, the Trustee shall pay the amount set forth in such Requisition as directed by the terms thereof out of the Project Fund. The Trustee shall not make any such payment if it has received any written notice of claim of lien, attachment upon, or claim affecting the right to receive payment of any of the monies to be so paid that has not been released or will not be released simultaneously with such payment.
 
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C. Surplus Funds . When the Projects shall have been completed, there shall be delivered to the Trustee a Certificate of the Borrower stating the fact and date of such completion and stating that all of the costs thereof have been determined and paid (or that all of such costs have been paid less specified claims that are subject to dispute and for which a retention in the Project Fund is to be maintained in the full amount of such claims until such dispute is resolved). Upon the receipt of such Certificate, the Trustee shall, as directed by said Certificate, transfer any remaining balance in such Project Fund, less the amount of any such retention, to the Redemption Fund and apply such balance to the optional redemption of Bonds. Upon transfer in full of its balance, the Project Fund shall be closed.
SECTION 3.05. Validity of Bonds.
The validity of the authorization and issuance of the Bonds is not dependent on and shall not be affected in any way by any proceedings taken by the Issuer or the Trustee with respect to or in connection with the Loan Agreement. The recital contained in the Bonds that the same are issued pursuant to the Act and the Constitution and laws of the State of Texas shall be conclusive evidence of their validity and of compliance with the provisions of law in their issuance.
*                    *                     *
 
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ARTICLE IV
REDEMPTION AND TENDER OF BONDS
SECTION 4.01. Terms of Redemption and Purchase in Lieu of Redemption.
The Bonds are subject to redemption and purchase in lieu of redemption as set forth below. All redemptions shall be in authorized denominations.
A. Optional Redemption of Bonds in the Commercial Paper Mode . Bonds in the Commercial Paper Mode are subject to optional redemption on their respective Purchase Dates at a Redemption price equal to 100% of the principal amount thereof without premium.
B. Optional Redemption of Bonds in the Daily Mode, the Weekly Mode, the weekly R-FLOATs Mode . Bonds in the Daily Mode, the Weekly Mode, or the weekly R-FLOATs Mode are subject to redemption prior to their respective stated Maturity Dates, at the option of the Borrower, in whole on any Business Day or in part on any Interest Payment Date therefor at a Redemption Price equal to 100% of the principal amount thereof, without premium, plus unpaid accrued interest thereon, if any.”
C. Optional Redemption of Bonds in the Long Indexed Mode . Bonds in the Long Indexed Mode are subject to redemption prior to their Maturity Date, at the option of the Borrower, in whole or in part on any Interest Payment Date following the earlier of 10 years after the Mode Change Date for such Bonds or the median date between such Mode Change Date and the Maturity Date, at a Redemption Price equal to 100% of the principal amount thereof, without premium, or on any other date permitted by the Supplemental Bond Indenture entered into pursuant to Section 2.07A , at the Redemption Price stated therein.
D. Optional Redemption of Bonds in the Term Rate Mode, the Term Indexed Mode, the term rate R-FLOATs Mode, the Special R-FLOATs Rate Period or the Fixed Rate Mode .
(1) End of Interest Period . Bonds in a Term Rate Mode, Term Indexed Mode, term rate R-FLOATs Mode or Special R-FLOATs Rate Period are subject to redemption prior to their respective stated Maturity Dates, at the option of the Borrower, in whole or in part on their respective Purchase Dates at a Redemption Price equal to 100% of the principal amount thereof, without premium.
(2) Within Interest Period . Bonds in a Term Rate Mode, Term Indexed Mode, term rate R-FLOATs Mode, or Special R-FLOATs Rate Period or the Fixed Rate Mode are also subject to redemption prior to their respective Purchase Dates, (a) in the case of Bonds in a Term Indexed Mode while a Bondholder Agreement is in effect for such Bonds, on any Interest Payment Date therefor, (b) in the case of Bonds in a Term Indexed Mode while no Bondholder Agreement is in effect therefor, on any Business Day within six (6) months prior to the Purchase Date therefor, and (c) at such times and upon such terms as shall be specified by the Borrower prior to the Rate Determination Date for the applicable Interest Period, if a Favorable Opinion of Bond Counsel is issued to the Trustee, and otherwise on any date on or after the earlier of (i) 10 years after the Mode Change Date for such Bonds or (ii) if the Interest Period therefore is at least ten (10) years long, the median date between such Mode Change Date and the last day of such Interest Period, at a Redemption Price equal to 100% of the principal amount thereof, without premium, plus unpaid accrued interest thereon, if any.
 
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E. Optional Redemption of Bonds in the Stepped Coupon Mode . Bonds in the Stepped Coupon Mode are subject to redemption prior to their respective stated Maturity Dates, at the option of the Borrower, in whole or in part on the Interest Payment Date immediately following the last day of a Stepped Coupon Period, at a Redemption Price equal to 100% of the principal amount thereof, without premium.
F. Sinking Fund Redemption . The Bonds are also subject to redemption prior to their stated Maturity Date, in part, from Mandatory Sinking Account Payments deposited in the Principal Fund pursuant to Section 5.03 on November 1 of the years specified in (1) any Supplemental Bond Indenture approved by the Borrower in writing, in the aggregate principal amounts specified in such Supplemental Bond Indenture, or (2) any schedule delivered by the Borrower to the Trustee pursuant to Section 2.12B , in the aggregate principal amounts specified in such schedule (except on the Maturity Dates for serial Bonds established pursuant to Section 2.12B(6) ), in either case at a Redemption Price equal to 100% of the principal amount thereof together with interest accrued thereon to the date fixed for redemption, without premium; provided , however , that, unless otherwise provided in such Supplemental Bond Indenture, the principal amount of Bonds of any subseries to be redeemed on any such date may be modified by Borrower Order given in connection with the creation of any new subseries or the merger of one or more subseries pursuant to Section 2.02E or any change in the Mode, Credit Facility or Liquidity Facility for the Bonds of such subseries, if the aggregate principal amount of Bonds of all subseries so to be redeemed on each such date remains the same; and provided further, however, that, unless otherwise provided in such Supplemental Bond Indenture, the principal amount of Bonds of any subseries so to be redeemed in any year shall be reduced upon Borrower Request by an amount equal to the principal amount of Bonds of such subseries (a) surrendered uncancelled and in transferable form by the Borrower to the Trustee not less than 45 days prior to such redemption date or (b) selected (not less than five days prior to the last day for mailing notice of such redemption date) for redemption in or prior to such year pursuant to any other Subsection of this Section, if in either case such Bonds shall not have previously served as the basis for any such reduction.
G. Extraordinary Optional Redemption . The Bonds in an Indexed Mode, Term Rate Mode, Term Indexed Mode, Stepped Coupon Mode, or Fixed Rate Mode are subject to extraordinary optional redemption, at the option and the written direction of the Borrower, in whole or in part on any Interest Payment Date in a LIBOR Term Indexed Mode while a Bondholder Agreement is in effect and on any date at any other time, in each case under the circumstances described below, at a price equal to 100% of the principal amount together with interest accrued and unpaid thereon to the date fixed for redemption, which shall be a date at least forty-five (45) days following receipt by the Trustee of the written direction of the Borrower. The circumstances, either of which may give rise to an extraordinary optional redemption of such Bonds, are as follows:
(1) Project Damage or Loss . If title to, or the temporary use of, any portion of the facilities financed or refinanced with the proceeds of the Bonds shall have been taken under the exercise of the power of eminent domain by any governmental authority, or any portion of such facilities is damaged or destroyed; and
(2) Change in Law . As a result of (a) any changes in the Constitution of the United States of America or the Home Rule Act, (b) other legislative or administrative action (federal or local), or (c) a final decree, judgment or order of any court or administrative body (federal or local), entered after any contest which may be undertaken at the option of the Borrower in good faith, after any of which the Loan Agreement becomes void or unenforceable or impossible of performance in accordance with the intent and purpose of the parties as expressed in the Loan Agreement or unreasonable burdens or excessive liabilities
 
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shall have been imposed on the Borrower because the Borrower is a party to the Loan Agreement, including, without limitation, the imposition of federal, state or other ad valorem, property, income or other taxes not being imposed on the date of the Loan Agreement which, in the judgment of the Borrower, render the continued operation of such facilities financed or refinanced with the proceeds of the Bonds uneconomic or impossible to perform in accordance with the intent and purpose of the parties as expressed in the Loan Agreement.
H. Mandatory Redemption under Bondholder Agreement . When Bonds are in a Term Indexed Mode and a Bondholder Agreement is in effect, the Bonds are subject to mandatory redemption and shall be redeemed, at a redemption price equal to 100% of the principal amount thereof together with interest accrued and unpaid thereon to the date fixed for redemption, on each date on which such Bonds are required to be redeemed, purchased, or repurchased pursuant to the Bondholder Agreement (other than as provided in Section 4.09 ), provided that the Borrower, the Bondholder Representative or the Required Bondholders (as defined in the Bondholder Agreement) give notice thereof to the Trustee and (unless given by the Borrower) the Borrower at least four (4) Business Days prior to the redemption date.
I. Purchase in Lieu of Redemption . Unless otherwise provided in a Supplemental Bond Indenture, whenever Bonds are subject to redemption, they may instead be purchased at the option of the Borrower at a purchase price equal to the Redemption Price thereof plus interest accrued thereon to the redemption date. The Borrower shall give to the Trustee written notice thereof and of the Bonds of each subseries, maturity, Interest Period, and interest rate to be so purchased. The Trustee shall select the particular Bonds of such subseries and maturity to be so purchased in the same manner as provided in Section 4.02 for the selection of Bonds to be redeemed in part. Promptly thereafter, the Trustee shall give notice of the purchase of such Bonds at the times and in the manner provided in Section 4.03 for notice of redemption. All such purchases may be subject to conditions to the Borrower’s obligation to purchase such Bonds and shall be subject to the conditions that money for the payment of the purchase price therefor is available on the date set for such purchase and that such purchase shall be made solely with Available Money or funds paid by the Liquidity Facility Provider under the Liquidity Facility, if a Credit Facility is in effect. If such a purchase is a purchase in lieu of optional redemption and a Liquidity Facility is in effect on the date of purchase, such purchase in lieu of redemption shall also be conditioned on money sufficient to reimburse the Liquidity Facility Provider for the purchase price being delivered by the Borrower to the Trustee prior to the purchase date, and the Trustee shall give a notice of rescission of such purchase of Bonds on the date set for purchase to the same Persons that were given the notice of purchase if such funds have not been delivered prior to the date set for purchase. Notice of purchase having been given in the manner required above, then, if sufficient money to pay the purchase price of such Bonds or to reimburse the Liquidity Facility Provider therefor is held by the Trustee, the purchase price of the Bonds or portions thereof so called for purchase shall become due and payable on the date set for purchase, upon presentation and surrender of such Bonds (other than Book Entry Bonds) to be purchased at the office or offices specified in such notice, and, in the case of Bonds presented by a Person other than the Holder thereof, together with a written instrument of transfer duly executed by such Holder or his duly authorized attorney. Payment of the purchase price of such Bonds shall be made, upon the request of the Holder of $1,000,000 or more in principal amount of Bonds to be so purchased, by wire transfer to such Holder at the wire transfer address in the continental United States to which such Holder has prior to the purchase date directed in writing the Trustee to wire such purchase price. No purchased Bond shall be considered to be no longer Outstanding by virtue of its purchase, and each such purchased Bond that is not a Book Entry Bond shall be registered in the name or at the direction of the Borrower.
 
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SECTION 4.02. Selection of Bonds for Redemption or Purchase.
Whenever provision is made in this Bond Indenture for the redemption or mandatory purchase of less than all of the Bonds of a subseries, maturity, Interest Period, and interest rate, the Trustee shall select the Bonds of such subseries, maturity, Interest Period, and interest rate to be redeemed, in the authorized denominations specified in Section 2.02 , by lot, in any manner which the Trustee in its sole discretion shall deem appropriate and fair; provided, however , that Liquidity Facility Bonds of such subseries shall be redeemed or purchased prior to any other Bonds of such subseries; and provided, further, however , when Bonds are in a Term Indexed Mode and a Bondholder Agreement is in effect, Bonds shall be selected for redemption or purchase as nearly as possible in proportion to the principal amount of Bonds registered to each Bondholder. The Trustee shall promptly notify the Issuer and the Borrower in writing of any redemption or purchase of the Bonds or portions thereof so selected for redemption or purchase. The selection of Bonds shall be at such time as determined by the Trustee.
SECTION 4.03. Notice of Redemption.
Notice of redemption shall be given by the Trustee by Electronic Means while Bonds are in a Term Indexed Mode and a Bondholders Agreement is in effect and at all other times by first-class mail, not less than one Business Day (for Bonds in a Term Indexed Mode while a Bondholder Agreement is in effect and the Bonds are not registered in the name of the Securities Depository or its nominee), 15 days (for Bonds in a Daily Mode, Weekly Mode, Commercial Paper Mode, Term Indexed Mode while no Bondholder Agreement is in effect or the Bonds are registered in the name of the Securities Depository or its nominee, or weekly R-FLOATs Mode) or 30 days (for Bonds in any other Mode) nor more than 60 days prior to the date fixed for redemption, to the Bondholders Representative (if any), the Liquidity Facility Provider (if any), Credit Facility Provider (if any), and Remarketing Agent for, and the Rating Agencies then rating, the Bonds to be redeemed and the respective Holders of such Bonds at their addresses appearing on the bond registration books of the Trustee. Each notice of redemption shall state the date of such notice, the date of delivery, subseries, maturity, Interest Period, and interest rate of the Bonds to be redeemed, the date fixed for redemption, the Redemption Price, the place or places of redemption (including the name and appropriate address or addresses of the Trustee), the CUSIP number (if any) of the Bonds to be redeemed and, in the case of Bonds to be redeemed in part only, the portion of the principal amount thereof to be redeemed. Each such notice shall also state that on the redemption date there will become due and payable on each of said Bonds the Redemption Price thereof or of said specified portion of the principal amount thereof in the case of a Bond to be redeemed in part only, together with interest accrued thereon to the date fixed for redemption, and that from and after such date, interest on such Bond shall cease to accrue, and shall require that such Bonds be then surrendered at the address or addresses of the Trustee specified in the redemption notice.
Notice of redemption of Bonds shall be given by the Trustee, at the expense of the Borrower.
Failure by the Trustee to mail notice of redemption pursuant to this Section to any Liquidity Facility Provider, Credit Facility Provider, Remarketing Agent, or Rating Agency or one or more of the Holders of any Bonds designated for redemption shall not affect the sufficiency of the proceedings for redemption with respect to the Holder or Holders to whom such notice was mailed.
Any notice of optional redemption given pursuant to this Section may be conditional and may be rescinded by written notice given to the Trustee by the Borrower no later than 5 Business Days prior to the date specified for redemption. Notice of optional redemption of Bonds while a
 
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Credit Facility is in effect that may be drawn on to pay the Redemption Price thereof shall be conditioned on receipt by the Trustee by 1:00 p.m., New York City time, on the date fixed for redemption of sufficient funds from the Issuer or the Borrower to pay or reimburse the Credit Facility Provider for such Redemption Price and any accrued interest on such Bonds then due. The Trustee shall give notice of such rescission (or failure to satisfy such condition), as soon thereafter as practicable, in the same manner, to the same Persons, as notice of such redemption was given pursuant to this Section.
SECTION 4.04. Partial Redemption of Bonds.
Upon surrender of any Bond to be redeemed in part only, the Trustee shall authenticate and deliver to the Holder thereof, at the expense of the Borrower, a new Bond or Bonds of authorized denominations of the same subseries, maturity, Interest Period, and interest rate equal in aggregate principal amount to the unredeemed portion of the Bond surrendered.
SECTION 4.05. Effect of Redemption.
Notice of redemption having been duly given as aforesaid and moneys for payment of the Redemption Price of, together with interest accrued to the date fixed for redemption on, the Bonds (or portions thereof) so called for redemption being held by the Trustee, on the date fixed for redemption designated in such notice the Bonds (or portions thereof) so called for redemption shall become due and payable at the Redemption Price specified in such notice plus interest accrued thereon to the date fixed for redemption (unless such redemption is rescinded or the condition thereto is not satisfied as provided in Section 4.03 ), interest on the Bonds so called for redemption shall cease to accrue, said Bonds (or portions thereof) shall cease to be entitled to any benefit or security under this Bond Indenture, and the Holders of said Bonds shall have no rights in respect thereof except to receive payment of said Redemption Price and accrued interest.
SECTION 4.06. Optional Tenders of Bonds in the Daily Mode, the Weekly Mode or the R-FLOATs Mode.
The Holders of Eligible Bonds (other than Liquidity Facility Bonds) in a Daily Mode, a Weekly Mode or the R-FLOATs Mode may elect to have their Bonds (or portions of those Bonds in amounts equal to the lowest denomination then authorized pursuant to Section 2.02 ) purchased (1) on any Business Day, in the case of Bonds in a Daily Mode, Weekly Mode, or weekly R-FLOATs Mode, (2) two Business Days prior to the next succeeding Interest Period therefor, in the case of Bonds in a monthly R-FLOATs Mode, and (3) on the Interest Payment Date immediately following a Special R-FLOATs Rate Period or term rate R-FLOATs Rate Period, in the case of Bonds in a Special R-FLOATs Rate Period or term rate R-FLOATs Mode, respectively, in each case at a price equal to the Purchase Price,
(i) Daily Mode : in the case of Bonds in a Daily Mode, upon delivery of an irrevocable written notice of tender by Electronic Means and an irrevocable telephonic notice of tender to the Remarketing Agent for such Bonds and the Tender Agent (or, if none, the Trustee) not later than the Tender Notice Deadline; and
(ii) Weekly or R-Floats Mode : in the case of Bonds in a Weekly Mode or the R-FLOATs Mode, upon delivery of an irrevocable written notice of tender by Electronic Means and irrevocable telephonic notice of tender (promptly confirmed in writing to the Tender Agent) to the Remarketing Agent for such Bonds and the Tender Agent (or, if none, the Trustee), not later than the Tender Notice Deadline.
 
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Such notices of tender shall state the CUSIP number, subseries designation (if any), Bond number (if the Bonds are not registered in the name of the Securities Depository), Interest Period and principal amount of such Bond and that such Bond shall be purchased on the Purchase Date specified above. Payment of the Purchase Price shall be made pursuant to this Section only if the Bond so delivered to the Tender Agent conforms in all respects to the description thereof in the notice described in this Section. A Holder who gives the notice of tender as set forth above may repurchase the Bonds so tendered on such Purchase Dates if the Remarketing Agent for such Bonds agrees to sell the Bonds so tendered to such Holder. If such Holder decides to repurchase such Bonds and the Remarketing Agent agrees to sell the specified Bonds to such Holder, the delivery requirements set forth in Section 4.12D shall be waived. The Tender Agent may assume that a Bond is an Eligible Bond unless it has actual knowledge to the contrary.
SECTION 4.07. Mandatory Purchase at End of Commercial Paper Rate Periods.
Each Bond in the Commercial Paper Mode is subject to mandatory purchase on each Purchase Date established therefor at the Purchase Price. No notice of such mandatory purchase shall be given to the Holders of such Bonds.
SECTION 4.08. Mandatory Purchase on Mode Change Date, Election to Set a Special R-FLOATs Rate Period or on Borrower Request.
A. Changes Other Than to Fixed Rate Mode . Bonds to be changed at the election of the Borrower from one Mode to another Mode (other than a change to the Fixed Rate Mode, in which case such Bonds are subject to mandatory purchase pursuant to Subsection B of this Section), and Bonds in an R-FLOATs Mode which are to be changed to a Special R-FLOATs Rate Period of greater than 35 days, are subject to mandatory purchase on the Mode Change Date or the effective date of the Special R-FLOATs Rate Period at the Purchase Price as provided in this Subsection. The Tender Agent shall give notice of such mandatory purchase by Electronic Means to the Holders of the Bonds subject to mandatory purchase no less than 10 Business Days for Bonds which are to be changed to a Mode of 360 days or less, and no less than 20 days for Bonds which are to be changed to a Mode of more than 360 days, a Stepped Coupon Mode or an Indexed Mode, in either case prior to the Mandatory Purchase Date. The notice shall state the Mandatory Purchase Date, the Purchase Price and that interest on Bonds subject to mandatory purchase shall cease to accrue from and after the Mandatory Purchase Date. The failure to give such notice with respect to any Bond shall not affect the validity of the mandatory purchase of any other Bond with respect to which notice was so mailed. Any notice mailed will be conclusively presumed to have been given, whether or not actually received by any Bondholder.
B. Change to Fixed Rate Mode . Bonds to be changed to the Fixed Rate Mode are subject to mandatory purchase on the Mode Change Date at the Purchase Price (subject to Section 2.10 ). The Tender Agent shall give notice of such mandatory purchase as part of the notice of change of Mode to be sent to the Bondholders pursuant to Section 2.12B(3) . The failure to give such notice with respect to any Bond shall not affect the validity of the mandatory purchase of any other Bond with respect to which notice was so given. Any notice mailed will be conclusively presumed to have been given, whether or not actually received by any Bondholder.
C. On Borrower Request. The Bonds shall be subject to mandatory tender for purchase at the Purchase Price upon written request of the Borrower (received by the Trustee at least three Business Days prior to the Mandatory Purchase Date if the Bonds are in a Term Indexed Mode, a Bondholder Agreement is in effect, and the Bonds are not registered in the name of the Securities Depository or its nominee and otherwise 20 days prior to the Mandatory Purchase Date) on any
 
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Business Day on which such Bonds may be redeemed at the option of the Borrower for a redemption price equal to 100% of principal amount plus accrued interest, if any. The Tender Agent shall give notice of such mandatory purchase by Electronic Means to the Bondholder Representative, if any, and the Holders of the Bonds subject to mandatory purchase no less than one Business Day prior to such Mandatory Purchase Date while the Bonds are in a Term Indexed Mode, a Bondholder Agreement is in effect, and the Bonds are not registered in the name of the Securities Depository or its nominee, 15 days prior to the Mandatory Purchase Date for Bonds in a Mode with Interest Periods of less than one year, and otherwise 30 days prior to such Mandatory Purchase Date. The notice shall state the Mandatory Purchase Date, the Purchase Price and that interest on Bonds subject to mandatory purchase shall cease to accrue from and after the Mandatory Purchase Date. The failure to give such notice with respect to any Bond shall not affect the validity of the mandatory purchase of any other Bond with respect to which notice was so mailed. Any notice mailed will be conclusively presumed to have been given, whether or not actually received by any Bondholder.
SECTION 4.09. Mandatory Purchase at End of Interest Period in Term Rate Mode or Term Indexed Mode or term rate R-FLOATs Rate Interest Period.
Bonds in the Term Rate Mode or Term Indexed Mode and Bonds bearing interest at the term rate R- FLOATs Rate are subject to mandatory purchase at the Purchase Price on the Purchase Date following each Interest Period therefor. The Tender Agent shall give notice of such mandatory purchase by Electronic Means to the Bondholder Representative, if any, and the Remarketing Agent, if any, and by mail to the Holders of the Bonds subject to mandatory purchase no less than 15 days prior to the Mandatory Purchase Date. The notice shall state the Mandatory Purchase Date, the Purchase Price and that interest on Bonds subject to mandatory purchase shall cease to accrue from and after the Mandatory Purchase Date. The Tender Agent may assume that a Bond is an Eligible Bond unless it has actual knowledge that such Bond is not an Eligible Bond. The failure to mail such notice with respect to any Bond shall not affect the validity of the mandatory purchase of any other Bond with respect to which notice was so mailed. Any notice mailed will be conclusively presumed to have been given, whether or not actually received by any Bondholder.
SECTION 4.10. Mandatory Purchase on Expiration Date, New Liquidity Facility Date, New Credit Facility Date and Termination Date.
A. Substitution and Expiration . The Eligible Bonds of any subseries shall be subject to mandatory purchase at the Purchase Price:
(1) Substitution or Release : on the last Business Day on or before each New Liquidity Facility Date and New Credit Facility Date for such Bonds, and
(2) Expiration : on the second Business Day immediately preceding each Expiration Date for such Bonds;
provided, however , that such Bonds shall not be subject to mandatory purchase on any such date if, on or prior to the 15 th day prior to such Mandatory Purchase Date, the Borrower has furnished to the Trustee a written agreement from the Liquidity Facility provider or Credit Facility Provider for such Bonds to extend the Liquidity Facility or Credit Facility, as applicable, for such Bonds. The Tender Agent shall give notice of such mandatory purchase by mail to the Holders of the Bonds subject to mandatory purchase no less than 10 days prior to such Mandatory Purchase Date. The notice shall state the Mandatory Purchase Date, the Purchase Price and that interest on the Bonds subject to mandatory purchase shall cease to accrue from and after the Mandatory Purchase Date. The failure to mail such notice with respect to any Bond shall not affect the validity of the mandatory purchase of any other Bond with respect to which notice was so mailed. Any notice mailed will be conclusively presumed to have been given, whether or not actually received by any Bondholder.
 
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B . Termination . On the Business Day before each Termination Date for the Bonds of a subseries, the Eligible Bonds of such subseries shall be subject to mandatory purchase at the principal amount thereof, plus accrued interest, if any, with respect thereto to such Termination Date. The Tender Agent shall give notice of such mandatory purchase by mail to the Holders of the Bonds to be purchased as soon as practicable after receipt of notice of termination from the Liquidity Facility Provider or Credit Facility Provider for such Bonds. The notice shall state the Mandatory Purchase Date, the Purchase Price and that interest on Bonds subject to mandatory purchase shall cease to accrue from and after the Mandatory Purchase Date. The failure to mail such notice with respect to any Bond shall not affect the validity of the mandatory purchase of any other Bond with respect to which notice was so mailed. Any notice mailed will be conclusively presumed to have been given, whether or not actually received by any Bondholder.
SECTION 4.11. Remarketing of Bonds; Notices.
A . Remarketing of Bonds . The Remarketing Agent for the Bonds of a subseries shall use its best efforts to offer for sale:
(1) all Bonds of such subseries or portions thereof as to which notice of tender has been given pursuant to Section 4.06 ;
(2) all Bonds of such subseries required to be purchased pursuant to Sections 4.07, 4.08, 4.09 and 4.10 ; and
(3) all Liquidity Facility Bonds of such subseries.
Notwithstanding the foregoing, in no event may the Remarketing Agent remarket Bonds or any subseries thereof to any Excluded Purchaser while a Credit Facility for such Bond is in effect hereunder.
B . Notice of Remarketing; New Bonds . On each Purchase Date or Mandatory Purchase Date, as the case may be, for the Bonds of a subseries:
(1) Notice of Remarketing : unless the Remarketing Agent for such Bonds has notified the Tender Agent and the Trustee otherwise, such Remarketing Agent shall notify the Tender Agent and the Trustee by Electronic Means, not later than 30 minutes before the applicable Draw Deadline, of the principal amount of tendered Bonds of such subseries which were successfully remarketed and shall provide the Tender Agent with delivery and other instructions for such Remarketing Agent; and
(2) Delivery of Bonds : the delivery of new Bonds of such subseries shall be effected through the Securities Depository and delivered to the Remarketing Agent for such Bonds via the Securities Depository in accordance with the provisions of Section 4.12E .
C . Transfer of Funds; Draw on Liquidity Facility . On each Purchase Date or Mandatory Purchase Date, as the case may be, for the Bonds of a subseries:
 
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(1) Payment for Remarketed Bonds . Upon receipt via the Securities Depository of the Tendered Bonds of such subseries from tendering Bondholders that have been successfully remarketed, the Remarketing Agent for such Bonds shall cause to be paid via the Securities Depository to the Tender Agent the Purchase Price of the remarketed Bonds by 30 minutes before the applicable Draw Deadline. The Tender Agent will immediately make delivery of such Bonds pursuant to Section 4.12E to such Remarketing Agent, and the Tender Agent’s participant account will be credited with the Purchase Price from such Remarketing Agent. The requirement for physical delivery of such Bonds will be satisfied when the ownership rights with respect to such Bonds are transferred by the tendering Bondholder’s direct participant to the Securities Depository and followed by a book-entry credit of such Bonds to the Tender Agent’s participant account.
(2) Notice of Insufficiency . Except with respect to Bonds in any R-FLOATs Mode, if the Remarketing Agent for such Bonds shall have given notice to the Tender Agent pursuant to Subsection B(1) of this Section that it has remarketed less than all of such Bonds tendered for remarketing, the Tender Agent shall give notice to the Trustee, the Borrower and, if a Liquidity Facility is then in effect with respect to the Bonds subject to purchase, to the applicable Liquidity Facility Provider (or the Tender Agent shall instruct the Trustee to give notice and the Trustee shall give notice) in accordance with the terms of the Liquidity Facility for such Bonds prior to the applicable Draw Deadline (and promptly thereafter, the Tender Agent shall so notify the Securities Depository) of the amount equal to the Purchase Price of all such Bonds tendered or deemed tendered less the aggregate amount of remarketing proceeds on hand.
(3) Draw for Insufficiency . Except with respect to any Bonds in an R-FLOATs Mode, in the event not all of such Bonds have been successfully remarketed, if a Liquidity Facility is then in effect with respect to the Bonds subject to purchase, the Tender Agent (or the Trustee if the Trustee is the beneficiary under such Liquidity Facility) shall draw on such Liquidity Facility in accordance with the terms thereof so as to receive thereunder by the Bank Settlement Deadline on such date an amount, in immediately available funds, sufficient, together with the proceeds of the remarketing of such Bonds on such date, to enable the Tender Agent to pay the Purchase Price in connection therewith. In making draws or claims for payment under the Liquidity Facility for the Bonds of a subseries, the Trustee and the Tender Agent shall act on behalf and for the account and benefit of the Holders of such Bonds and not on behalf, for the account or benefit, or subject to the control of any Holder of a Bond other than an Eligible Bond.
(4) Payment by Borrower . Except with respect to any Bonds in an R-FLOATs Mode, in the event not all of such Bonds have been successfully remarketed, if a Liquidity Facility is not then in effect with respect to the Bonds subject to purchase or if the Liquidity Facility Provider has not paid the full amount required by clause (3)  of this Subsection C at the times required therein, the Borrower has agreed in Section 3.05 of the Loan Agreement to pay to the Tender Agent by the Bank Settlement Deadline on such date an amount, in immediately available funds, sufficient, together with the proceeds of the remarketing of such Bonds on such date, to enable the Tender Agent to pay the Purchase Price in connection therewith.
SECTION 4.12. General Provisions Relating to Tenders.
A . Purchase Fund . The Tender Agent shall establish and maintain a special fund designated as the “ Purchase Fund ,” and within such fund three separate accounts designated, respectively, as the “ Liquidity Facility Deposit Account ,” the “ Remarketing Proceeds Account ” and the “ Borrower Purchase Account .” Upon the designation of two or more subseries of Bonds pursuant
 
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to Section 2.02E , the Tender Agent shall establish and maintain a separate subaccount for each subseries within each such Account and shall deposit to and draw on the applicable subaccount all receipts in respect of and all payments of the Purchase Price of the Bonds of the subseries for which such subaccount is established. The money in the Purchase Fund shall be held in trust and applied solely as provided in this Section.
The Tender Agent shall deposit all moneys delivered to it hereunder for the purchase of Bonds into the Remarketing Proceeds Account and shall hold all such moneys in trust for the exclusive benefit of the Person that shall have so delivered such moneys until the Bonds purchased with such moneys shall have been delivered to it for the account of such Person and, thereafter, for the benefit of the Bondholders tendering such Bonds.
The Tender Agent shall deposit all moneys delivered to it hereunder from a payment by or on behalf of any Liquidity Facility Provider for the purchase of Bonds into the Liquidity Facility Deposit Account and shall hold all such moneys in trust for the exclusive benefit of such Liquidity Facility Provider until the Bonds purchased with such moneys shall have been delivered to or for the account of such Liquidity Facility Provider and, after such delivery, the Tender Agent shall hold such funds exclusively for the benefit of the Bondholders tendering such Bonds.
The Tender Agent shall deposit all moneys delivered to it hereunder from a payment by or on behalf of the Borrower for the purchase of Bonds into the Borrower Purchase Account and shall hold all such moneys in trust for the exclusive benefit of the Borrower until the Bonds purchased with such moneys shall have been delivered to or for the account of the Borrower and, after such delivery, the Tender Agent shall hold such funds exclusively for the benefit of the Bondholders tendering such Bonds.
Moneys in the Liquidity Facility Deposit Account, the Remarketing Proceeds Account and the Borrower Purchase Account shall not be commingled with other funds held by the Tender Agent and shall remain uninvested. Neither the Issuer nor the Borrower shall have any right, title or interest in or to any moneys held in the Purchase Fund.
Whenever the Tender Agent is not a federal depository institution or state-chartered depository institution subject to regulations regarding fiduciary funds similar to Section 9.10(b), Title 1, U.S. Code of Federal Regulations, then the Tender Agent shall maintain the Purchase Fund at such a depository institution subject to such regulations, or at a depository institution the short-term obligations of which are rated by each Rating Agency no lower than the short-term rating assigned by it to the Bonds.
B. Payment of Purchase Price . At or before the close of business New York City time on the Purchase Date or Mandatory Purchase Date for Bonds and upon receipt by the Tender Agent of the aggregate Purchase Price of the tendered Bonds, the Tender Agent shall pay the Purchase Price of such Bonds to the tendering Bondholder’s direct participant via the Securities Depository. Payments by participants to beneficial owners shall be governed by standing instructions and customary practices. The Tender Agent shall pay the Purchase Price of the Bonds of any subseries in the following order of priority: (1) the proceeds, if any, from the remarketing of such Bonds, (2) in the case of Eligible Bonds of such subseries, the moneys drawn under the Liquidity Facility (if any) for such Bonds and (3) moneys paid by the Borrower. The Tender Agent may assume that a Bond is an Eligible Bond unless it has actual knowledge to the contrary. If, at close of business New York City time on any Purchase Date or Mandatory Purchase Date for Bonds of any subseries, any balance remains of any draw on the Liquidity Facility for such Bonds in excess of any unsatisfied purchase obligation, such excess shall be promptly returned to the Liquidity Facility Provider obligated thereon.
 
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If, at close of business New York City time on any Purchase Date or Mandatory Purchase Date for Bonds, any balance remains from any payment by the Borrower in excess of any unsatisfied purchase obligation, such excess shall be promptly returned to the Borrower.
C. Inadequate Funds for Tenders . If the funds available for purchases of Eligible Bonds of a subseries pursuant to this Article are inadequate for the purchase of all Bonds of such subseries tendered on any Purchase Date or Mandatory Purchase Date, no purchase of Bonds of such subseries shall be consummated, and the Tender Agent shall, after any applicable grace period, ( 1) return all tendered Bonds of such subseries to the Holders thereof, (2) return all moneys transferred via the Securities Depository for the purchase of such Bonds to the Remarketing Agent for such Bonds for return to the Persons providing such moneys, (3) return all moneys drawn under any Liquidity Facility for such Bonds to the Liquidity Facility Provider obligated thereon and (4) return to the Borrower all moneys transferred from the Borrower. At such time, the Bonds of such subseries shall convert to a Weekly Mode and shall bear interest in the first Interest Period of such Mode at the Maximum Rate.
D. Delivery of Bonds by Tendering Bondholders; Undelivered Bonds Deemed Purchased . All Bonds to be purchased on any Purchase Date or Mandatory Purchase Date shall be required to be delivered to the Tender Agent’s Securities Depository participant account at or before 30 minutes before the Draw Deadline for purchases of Bonds on such date. If the Holder of any Bond (or portion thereof) that is subject to purchase pursuant to this Article fails to deliver such Bond to the Tender Agent for purchase on the Purchase Date or Mandatory Purchase Date, and if the Tender Agent is in receipt of the Purchase Price therefor, such Bond (or portion thereof) shall nevertheless be deemed purchased on the day fixed for purchase thereof, and ownership of such Bond (or portion thereof) shall be transferred to the purchaser thereof as provided in Subsection E of this Section. Any Holder of a Bond who fails to deliver such Bond for purchase shall have no further rights thereunder except the right to receive the Purchase Price thereof upon presentation and surrender of said Bond to the Tender Agent. The Tender Agent shall, as to any tendered Bonds that have not been delivered to it, promptly notify the applicable Remarketing Agent of such nondelivery.
E. Delivery of Bonds . On the Purchase Date or Mandatory Purchase Date for Bonds of any subseries, the Tender Agent shall make delivery of such Bonds via the Securities Depository (1) to the Remarketing Agent for such Bonds to the extent of Bonds of such subseries purchased and remarketed by such Remarketing Agent no later than 30 minutes prior to the applicable Draw Deadline, (2) to the Liquidity Facility Provider (if any) for such Bonds to the extent of Bonds of such subseries purchased with amounts paid by or on behalf of such Liquidity Facility Provider and (3) to the Borrower to the extent of Bonds of such subseries purchased with amounts paid by or on behalf of the Borrower. Notwithstanding the foregoing, the Tender Agent shall not deliver any Bonds pursuant to Clause (2) or upon the remarketing of Liquidity Facility Bonds unless it has received notice from the Liquidity Facility Provider for such Bonds that the amount available for the purchase of Bonds of such subseries (prior to a conversion to Fixed Rate) is at least equal to the aggregate amount of all Bonds of such subseries then Outstanding (other than Liquidity Facility Bonds not then being released) plus an amount equal to (1) 49 days’ interest on Bonds of such subseries in a Daily Mode or a Weekly Mode, (2) 107 days’ interest on Bonds of such subseries in a Term Indexed Mode, and (3) 190 days’ interest on Bonds of such subseries in a Commercial Paper Mode or a Term Rate Mode (assuming an interest rate equal to the Maximum Rate per annum) or the Trustee has given notice to the Liquidity Facility Provider that will increase such amount available to such aggregate amount.
 
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F. No Sales After Payment Default . Anything in this Bond Indenture to the contrary notwithstanding, if there shall have occurred and be continuing an Event of Default described in Section 7.01A or 7.01B in respect of the Bonds of any subseries and the Credit Facility Provider (if any) for such Bonds has not paid such amount under the Credit Facility, then the applicable Remarketing Agent shall not remarket any Bonds of such subseries.
G. R-FLOATs Bonds During Non-Remarketing Period . The provisions of this Section shall not apply to any Bonds in an R-FLOATs Mode during any Non-Remarketing Period.
H. Book-Entry Tenders . Whenever Bonds are to be tendered and purchased pursuant to this Article after the Securities Depository has resigned or been removed and not replaced pursuant to Section 2.20 , (1) Bonds shall be tendered for purchase by delivery, endorsed in blank (or accompanied by a bond power executed in blank) to the extent of the portion to be purchased, at the principal office of the Tender Agent in the City of New York by 30 minutes before the applicable Draw Deadline, on the applicable Purchase Date or Mandatory Purchase Date and (2) the Issuer shall execute, and the Trustee shall authenticate and deliver, in the name of the Person deemed to have purchased the same or its designee, one or more new Bonds of any authorized denomination, of the same subseries and maturity, bearing interest at the same rate (except to the extent such Bond becomes a Liquidity Facility Bond) and for the same Interest Period, and of a like aggregate principal amount pursuant to Section 2.15 .
SECTION 4.13. The Remarketing Agents.
A. Appointment, Duties . Merrill Lynch, Pierce, Fenner & Smith Incorporated is hereby designated as the initial Remarketing Agent for the Bonds and shall serve as such under the terms and provisions hereof. The Remarketing Agent and each successor Remarketing Agent for the Bonds of any subseries appointed in accordance with this Bond Indenture shall designate its principal office and signify its acceptance of the duties and obligations imposed upon it as described herein by a written instrument of acceptance delivered to the Issuer, the Trustee, the Tender Agent and the Borrower, under which the Remarketing Agent will agree particularly:
(1) Hold Money : to hold all moneys delivered to it hereunder for the purchase of such Bonds for the exclusive benefit of the Person or Persons that shall have so delivered such moneys until the Bonds purchased with such moneys shall have been delivered to or for the account of such Person or Persons;
(2) Keep Records : to keep such books and records with respect to such Bonds, as shall be consistent with prudent industry practice and to make such books and records available for inspection by the Borrower, the Issuer and the Trustee, at all reasonable times, upon reasonable notice;
(3) Make Determinations : to determine the Daily Rates, the Weekly Rates, the weekly R-FLOATs Rates, the monthly R-FLOATs Rates, the term R-FLOATs Rates, the lengths and rates of the Special R-FLOATs Rate Periods, the Commercial Paper Rates, the lengths of Interest Periods in the Commercial Paper Mode, the Term Rates, the percentage or spread (and any function or scale therefor) used to determine the Indexed Rates, the Stepped Coupon Rates and the Fixed Rates for such Bonds and give notice of such rates and lengths in accordance with Article II ;
(4) Remarket : to use its best efforts to find purchasers for such Bonds tendered for purchase, any such sale to be made at the Purchase Price in accordance with the terms of this Bond Indenture; and
 
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(5) Deliver Bonds : to deliver to the Tender Agent all such Bonds held by it in accordance with the terms of this Bond Indenture and its Remarketing Agreement.
No Remarketing Agent shall designate a principal office at which its obligations under its Remarketing Agreement are to be performed unless such office is located in a state specified in the definition of “Business Day” included in the Credit Facility and the Liquidity Facility.
B. Performance by Tender Agent . If the Remarketing Agent for the Bonds of any subseries shall resign, be removed, or be dissolved, or if the property or affairs of the Remarketing Agent for the Bonds of any subseries shall be taken under control of any state or federal court or administrative body because of bankruptcy or insolvency or for any other reason, and the Borrower shall not have appointed a successor as Remarketing Agent, the Tender Agent shall ipso facto be deemed to be the Remarketing Agent for such Bonds for all purposes of this Bond Indenture, including Section 2.11 , until the appointment by the Borrower of a successor Remarketing Agent for such Bonds; provided, however, that the Tender Agent, in its capacity as Remarketing Agent, shall not be required to determine the interest rate on Bonds hereunder if the Tender Agent should be prohibited by law from conducting such activities. If the Borrower fails to appoint a successor Remarketing Agent for such Bonds within 30 days after its receipt of notice of any such event, the Trustee may apply to a court of competent jurisdiction for appointment of a successor Remarketing Agent for such Bonds. If a Remarketing Agent resigns, is removed, or is unable to perform its duties hereunder, the Trustee shall accept all notices and money required or permitted to be delivered to such Remarketing Agent hereunder until a successor Remarketing Agent for the Bonds of the applicable subseries has been appointed. The Borrower will notify each Rating Agency then rating the Bonds of any subseries of any successor Remarketing Agent or co-Remarketing Agent for such Bonds.
C. Permitted Conflicts . Each Remarketing Agent may in good faith hold Bonds or any other form of indebtedness issued by the Issuer or any security issued by the Borrower; own, accept or negotiate any drafts, bills of exchange, acceptances or obligations thereof; and make disbursements therefor and enter into any commercial or business arrangement therewith; all without any liability on the part of such Remarketing Agent for any real or apparent conflict of interest by reason of any such actions.
SECTION 4.14. Qualifications and Substitution of Remarketing Agent.
A. Qualifications; Resignation and Replacement . Each Remarketing Agent shall be authorized by law to perform all the duties imposed upon it. A Remarketing Agent may at any time resign and be discharged of the duties and obligations described in this Bond Indenture as set forth in its Remarketing Agreement. A Remarketing Agent may suspend or immediately terminate its remarketing efforts as set forth in its Remarketing Agreement. Successor Remarketing Agents may be appointed from time to time by the Borrower if not objected to by the Credit Facility Provider (if any) or Liquidity Facility Provider (if any) for such Bonds. The Remarketing Agent for the Bonds of any subseries may be removed upon 30 days’ notice upon the written Request of the Borrower and upon written notice to such Remarketing Agent, the Issuer, the Trustee, the Tender Agent, and the Liquidity Facility Provider (if any) and Credit Facility Provider (if any) for such Bonds, so long as a successor Remarketing Agent shall have assumed the duties thereof for such Bonds by the effective date of such removal.
B. Automatic Succession . Notwithstanding any other provision to the contrary contained herein, any corporation or association into which a Remarketing Agent may be converted or merged, or with which it may be consolidated, or to which it may be consolidated, or to which it may sell or transfer its marketing business and assets as a whole or substantially as a whole, shall become successor Remarketing Agent hereunder and fully vested with all of the rights, powers, trusts, duties and obligations of a Remarketing Agent hereunder, without the execution or filing of any instrument or any further act.
 
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SECTION 4.15. The Tender Agent.
The Trustee is hereby appointed as Tender Agent and shall serve as such under the terms and provisions hereof. The Tender Agent and each successor Tender Agent appointed in accordance with this Bond Indenture shall designate its principal corporate office and signify its acceptance of the duties and obligations imposed upon it as described herein by a written instrument of acceptance delivered to the Issuer, the Trustee and the Borrower under which each Tender Agent will agree, particularly:
(1) Custody of Bonds : to hold all Bonds delivered to it for purchase hereunder in trust for the exclusive benefit of the respective Bondholders that shall have so delivered such Bonds until moneys representing the Purchase Price of such Bonds shall have been delivered to or for the account of or to the order of such Holders;
(2) Custody of Money : to hold all moneys delivered to it hereunder for the purchase of Bonds in trust for the exclusive benefit of the Person that shall have so delivered such moneys until the Bonds purchased with such moneys shall have been delivered to it for the account of such Person and, thereafter, for the benefit of the Bondholders tendering such Bonds;
(3) Keep Records : to keep such books and records as shall be consistent with prudent industry practice and to make such books and records available for inspection by the Borrower, the Issuer, the Trustee, the Remarketing Agents, the Liquidity Facility Providers (if any) and the Credit Facility Providers (if any) at all reasonable times; and
(4) Assignment of CUSIPS : for any Bonds in the Commercial Paper Mode, to assign CUSIP numbers to such Bonds on each Rate Determination Date as provided in Section 2.05 .
The Tender Agent shall be entitled to the protections, indemnities, immunities and limitations from liability afforded the Trustee hereunder in the performance of its duties.
SECTION 4.16. Qualifications of Tender Agent.
A. Qualifications; Removal and Replacement . The Tender Agent and each successor Tender Agent shall be a commercial bank with trust powers or trust company duly organized under the laws of the United States of America or any state or territory thereof, and authorized by law to perform all duties imposed upon it hereunder. The Tender Agent shall have an office, affiliate office or agency in New York, New York. The Tender Agent may at any time resign and be discharged of its duties and obligations by giving at least 60 days’ notice to the Issuer, the Trustee, the Remarketing Agents, the Liquidity Facility Providers (if any), the Credit Facility Providers (if any), all Holders of Bonds then Outstanding and the Borrower. Any Tender Agent may be removed at any time by the Borrower upon notice to the Issuer, the Trustee, the Remarketing Agents, the Liquidity Facility Providers (if any), the Credit Facility Providers (if any) and each Rating Agency then rating the Bonds. Any resignation or removal of the Tender Agent and appointment of a successor Tender Agent shall become effective upon acceptance of appointment by the successor Tender Agent. Successor Tender Agents may be appointed from time to time by the Borrower if not objected to by any Credit Facility Provider or Liquidity Facility Provider. The Trustee shall provide notice of such successor Tender Agent to all Holders of the Bonds.
 
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B . Return of Assets . Upon the resignation or removal of a Tender Agent, such Tender Agent shall deliver any Bonds, the Liquidity Facilities (if the Tender Agent is the beneficiary thereunder) and moneys held by it in such capacity to its successor.
C. Automatic Succession . Notwithstanding any other provision to the contrary contained herein, any corporation or association into which the Tender Agent may be converted or merged, or with which it may be consolidated, or to which it may be consolidated, or to which it may sell or transfer its marketing business and assets as a whole or substantially as a whole, shall become successor Tender Agent hereunder and fully vested with all of the rights, powers, trusts, duties and obligations of Tender Agent hereunder, without the execution or filing of any instrument or any further act.
SECTION 4.17. Release of Liquidity Facilities .
The Trustee shall (or shall cause the Tender Agent to) release and return any Liquidity Facility for the Bonds of a subseries to the Liquidity Facility Provider obligated thereon (or, in the case of Clause E , consent to the assignment thereof by such Liquidity Facility Provider) on Borrower Request:
A . Defeasance : when there are no Outstanding Bonds of such subseries; or
B . Expiration or Termination : when such Liquidity Facility has expired or been terminated in accordance with its terms; or
C . Successor Trustee : when a successor Trustee has been appointed and qualified pursuant to Article VIII , and a new Liquidity Facility has been issued to such successor in substitution for such Liquidity Facility; or
D . Reduction of Amount : when the maximum aggregate credit available under such Liquidity Facility is reduced pursuant to the terms thereof and such Liquidity Facility Provider has issued a new Liquidity Facility to the Trustee or Tender Agent, whichever is then the beneficiary thereunder, in substitution therefor in the stated amount of the maximum aggregate credit available under such Liquidity Facility as so reduced but otherwise identical to the Liquidity Facility to be released; or
E . Replacement : at the close of business on a day when the Trustee has received and there is in effect a substitute Liquidity Facility for the Bonds of such subseries in substitution for such Liquidity Facility (or an assignment of such Liquidity Facility by such Liquidity Facility Provider) issued to and accepted by the Trustee or the Tender Agent upon Borrower Order in accordance with Section 4.18 not less than 5 Business Days (or such shorter period acceptable to the Trustee) prior to the date by which the Tender Agent must give notice to Bondholders pursuant to Section 4.10A of the resulting mandatory tender of such Bonds for purchase pursuant to such Section, if (1) such day is a Business Day for such Bonds and, if any such Bonds are in a Commercial Paper Mode, Term Rate Mode, Term Indexed Mode, R-FLOATs Mode, Stepped Coupon Mode, or Fixed Rate Mode, such day is also the first Business Day for such Bonds in an Interest Period for each such Bond in each such Interest Mode or a Business Day on which such Bonds may be redeemed at a redemption price equal to 100% of principal amount plus accrued interest, if any, and (2) the Purchase Price of all Bonds of such subseries tendered or deemed tendered for purchase in respect of such release or assignment pursuant to Section 4.10A has been paid or duly provided for; or
 
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F . Optional Release : at the close of business on a day at least 5 Business Days (or such shorter period acceptable to the Trustee), plus the minimum number of days’ notice which the Tender Agent must give to Bondholders pursuant to Section 4.10A of the resulting mandatory tender of such Bonds for purchase pursuant to such Section, after the Borrower, by Borrower Request, shall have provided that such Liquidity Facility shall then be released, if (1) such day is a Business Day for such Bonds and, if any such Bonds are in a Commercial Paper Mode, Term Rate Mode, Term Indexed Mode, R-FLOATs Mode, Stepped Coupon Mode, or Fixed Rate Mode, such day is also the first Business Day for such Bonds in an Interest Period for each such Bond in each such Interest Mode or a day on which such Bonds or portions thereof may be redeemed at the option of the Borrower at a redemption price equal to 100% of principal amount plus accrued interest, if any, and (2) the Purchase Price of all Bonds of such subseries tendered or deemed tendered for purchase in respect of such release pursuant to Section 4.10A has been paid or duly provided for;
and not otherwise; provided that, if such Liquidity Facility Provider is also a Credit Facility Provider for the Bonds of such subseries, no such release to such Person shall be effected by the Trustee pursuant to Clause E or F of this Section unless the Credit Facility for such Bonds shall then be released to such Person pursuant to Section 5.08 or such Person consents in writing to such release of such Liquidity Facility, and, if such Liquidity Facility Provider is not also the Credit Facility Provider for such Bonds, no such release or assignment shall be effected by the Trustee pursuant to Clause E or F unless the Credit Facility Provider for the Bonds of such subseries consents in writing to such release or assignment of such Liquidity Facility; and provided further that no Liquidity Facility shall be released without the written consent of the Liquidity Facility Provider obligated thereon unless all obligations due and owing to such Liquidity Facility Provider pursuant to such Liquidity Facility or its Reimbursement Agreement have been paid in full. The Tender Agent shall give notice, pursuant to Section 4.10 , of the mandatory tender of Bonds of the applicable subseries prior to the date of any release pursuant to Clause B , E , or F of this Section.
SECTION 4.18. Acceptance of and Amendments to Liquidity Facilities .
Each Liquidity Facility accepted by the Trustee (or by the Tender Agent with the written consent of the Trustee) for the Bonds of a subseries, and each extension, assignment, or amendment of a Liquidity Facility for the Bonds of a subseries then in effect,
A . Stated Amount : shall provide for payments, draws, or claims sufficient to pay a Purchase Price for such Bonds up to the Required Stated Amount thereof, and
B . Approval : shall be consented to (as to both form and the identity of the provider) in writing by the Credit Facility Provider for the Bonds of such subseries if a Credit Facility for such Bonds is then in effect and is not then to be released.
The Trustee shall (or shall cause the Tender Agent to) accept a Liquidity Facility for the Bonds of a subseries or an extension or amendment thereof, or approve an assignment thereof by the Liquidity Facility Provider obligated thereon, upon Borrower Order, but only (except in the case of an extension without amendment) upon receipt, by the Trustee and by any Credit Facility Provider for the Bonds of such subseries which is not obligated on such alternate, confirming, extending, amending, or assigned Liquidity Facility, of a Favorable Opinion of Bond Counsel and an Opinion of Counsel stating that (1) such Liquidity Facility, extension, or amendment was issued or assignment
 
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was made in accordance with the conditions of this Section and (2) such Liquidity Facility as extended, amended, or assigned constitutes a legal, valid, and binding obligation of the obligor thereon and is enforceable in accordance with its terms ( except to the extent that the enforceability thereof may be limited by bankruptcy, insolvency, reorganization, moratorium, or other laws for the relief of debtors other than the Issuer and the Borrower and by general principles of equity which permit the exercise of judicial discretion). The Trustee shall not be required to accept or cause to be accepted any such Liquidity Facility, extension, or amendment which materially adversely affects the rights, duties, and immunities of the Trustee or its agents or the Tender Agent hereunder.
*                    *                     *
 
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ARTICLE V
REVENUES; FUNDS AND ACCOUNTS;
PAYMENT OF PRINCIPAL AND INTEREST
SECTION 5.01. Pledge and Assignment.
A . Pledge . Subject only to the provisions of this Bond Indenture permitting the application thereof for the purposes and on the terms and conditions set forth herein, all of the Revenues and all right, title and interest of the Issuer in and to any other amounts (including proceeds of the sale of Bonds) held in any fund or account established pursuant to this Bond Indenture (other than the Purchase Fund and the Rebate Fund) and in and to all security (if any) and guarantees (if any) for payment of the Loan Payments are hereby pledged to secure the payment of the principal of and premium, if any, and interest on the Bonds in accordance with their terms and the provisions of this Bond Indenture. Said pledge shall constitute a lien on and security interest in such assets and shall attach, be perfected and be valid and binding from and after delivery by the Trustee of the Bonds, without any physical delivery thereof or further act.
B . Assignment . The Issuer hereby transfers in trust, grants a security interest in and assigns to the Trustee, for the benefit of the Holders from time to time of the Bonds, all of the Revenues and other assets pledged in Subsection A of this Section and all of the right, title and interest of the Issuer in the Loan Agreement (except for (i) the right to receive any Additional Payments to the extent payable to the Issuer under the Loan Agreement, (ii) any rights of the Issuer to indemnification and rights of inspection and consent, and (iii) the obligation of the Borrower to make deposits pursuant to the Tax Certificate and Agreement). The Trustee shall be entitled to and shall collect and receive all of the Revenues, and any Revenues collected or received by the Issuer shall be deemed to be held, and to have been collected or received, by the Issuer as the agent of the Trustee and shall forthwith be paid by the Issuer to the Trustee. Subject to the provisions of Section 7.06 with respect to the control of remedial proceedings by the Credit Facility Providers (if any), the Trustee also shall be entitled to and shall take all steps, actions and proceedings reasonably necessary in its judgment to enforce, either jointly with the Issuer or separately, all of the rights of the Issuer that have been assigned to the Trustee and all of the obligations of the Borrower under the Loan Agreement other than for those items excepted in the parenthetical contained in the first sentence of this subsection. All Revenues deposited with the Trustee shall be held, disbursed, allocated and applied by the Trustee only as provided in this Bond Indenture.
C. Notice of Deficiency . If the Trustee has not received the full amount of any Loan Payment by the time the Borrower is required to make the same pursuant to the Loan Agreement, the Trustee shall immediately notify the Borrower, the Liquidity Facility Providers (if any) and the Credit Facility Providers (if any) of such insufficiency by Electronic Means and confirm such notification as soon as possible thereafter by written notice.
SECTION 5.02. Interest Fund.
A . Established in Trust . The Trustee shall establish, maintain and hold in trust a separate fund designated as the “ Interest Fund .” Moneys in the Interest Fund shall be held, disbursed, allocated and applied by the Trustee only as provided in this Bond Indenture.
B . Deposits . The Trustee shall deposit the following Revenues in the Interest Fund when and as such Revenues are received:
 
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(1) Loan Interest Payments : the interest component of all Loan Payments, including the interest component of all cash prepayments of Loan Payments made as a result of the redemption of Bonds;
(2) Investment Earnings : all interest, profits and other income received from the investment of moneys in the Interest Fund; and
(3) Miscellaneous Revenues : any other Revenues not required to be deposited in any other fund or account established pursuant to this Bond Indenture.
C. Applications . All amounts in the Interest Fund shall be used and withdrawn by the Trustee solely for the purpose of paying the interest on the Bonds as the same becomes due and payable (including accrued interest on any Bonds purchased or redeemed prior to maturity pursuant to this Bond Indenture), or to reimburse the Credit Facility Providers (if any) with respect to drawings under the Credit Facilities (if any) for such purposes. So long as a Credit Facility for the Bonds of any subseries is in effect and has been drawn upon to provide sufficient funds to pay in full an interest payment on such Bonds (if Eligible Bonds or Liquidity Facility Bonds not owned by or pledged to the Credit Facility Provider obligated on such Credit Facility) when due as required herein, the Trustee shall (1) apply the amounts so drawn (rather than money in the Interest Fund) to pay interest on such Bonds and (2) use moneys in the Interest Fund deposited by the Borrower to reimburse the applicable Credit Facility Provider for such drawing in such manner as to provide for receipt by such Credit Facility Provider on the same Business Day as the draw is funded.
SECTION 5.03. Principal Fund.
A. Established in Trust . The Trustee shall establish, maintain and hold in trust a separate fund designated as the “ Principal Fund .” Moneys in the Principal Fund shall be held, disbursed, allocated and applied by the Trustee only as provided in this Bond Indenture.
B. Deposits . The Trustee shall deposit the following Revenues in the Principal Fund when and as such Revenues are received:
(1) Loan Principal Payments : the principal component of all Loan Payments, but excluding the principal component of all cash prepayments of Loan Payments made as a result of the redemption of Bonds at the option of the Borrower, which shall be deposited in the Redemption Fund; and
(2) Investment Earnings : all interest, profits and other income received from the investment of moneys in the Principal Fund.
C. Application Generally. All amounts in the Principal Fund shall be used and withdrawn by the Trustee solely to redeem the Bonds pursuant to Section 4.01F , or pay the Bonds at maturity, as provided herein, or to reimburse the Credit Facility Providers (if any) with respect to drawings under the Credit Facility for such purposes. So long as a Credit Facility for the Bonds of any subseries is in effect and has been drawn upon to provide sufficient funds to pay a principal payment due on such Bonds (if Eligible Bonds or Liquidity Facility Bonds not owned by or pledged to the Credit Facility Provider obligated on such Credit Facility) when due as required herein, the Trustee shall (1) apply the amounts so drawn (rather than money in the Principal Fund) to pay the principal or redemption price of such Bonds and (2) use moneys in the Principal Fund deposited by the Borrower to reimburse such Credit Facility Provider for such drawing in such manner as to provide for receipt by such Credit Facility Provider on the same Business Day as the draw is funded.
 
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D. Purchases of Bonds . On each Mandatory Sinking Account Payment date, the Trustee shall apply the Mandatory Sinking Account Payment required to be made on that date in respect of the Bonds of any subseries and maturity to the redemption of such Bonds pursuant to Section 4.01F (or payment thereof at maturity, as the case may be), in the amounts and upon the notice and in the manner provided in Article IV ; provided that, at any time prior to giving such notice of such redemption, the Trustee shall, upon direction of the Borrower, apply such moneys to the purchase of Bonds at public or private sale, as and when and at such prices (including brokerage and other charges, but excluding accrued interest, which is payable from the Interest Fund) as the Borrower may direct, except that the purchase price (excluding accrued interest) shall not exceed 100% of the principal amount of such Bonds. If, during the 12-month period immediately preceding said Mandatory Sinking Account Payment date, the Trustee has purchased Bonds of such subseries and maturity with moneys in the Principal Fund, or, during said period and prior to giving said notice of redemption, the Borrower has deposited such Bonds with the Trustee, or such Bonds were at any time purchased or redeemed by the Trustee from the Redemption Fund and allocable to said Mandatory Sinking Account Payment, such Bonds so purchased, deposited or redeemed shall be applied, to the extent of the full principal amount thereof, to reduce said Mandatory Sinking Account Payment. All Bonds purchased or deposited pursuant to this subsection shall be cancelled and destroyed by the Trustee upon the Order of the Borrower. All Bonds of any subseries and maturity purchased from the Principal Fund or deposited by the Borrower with the Trustee shall be allocated first to the next succeeding Mandatory Sinking Account Payment for such Bonds, then to the remaining Mandatory Sinking Account Payments for such Bonds, unless otherwise provided by Borrower Order.
SECTION 5.04. Redemption Fund.
A. Established in Trust . The Trustee shall establish, maintain and hold in trust a separate fund designated as the “ Redemption Fund. ”
B. Deposits . The Trustee shall deposit the following Revenues in the Redemption Fund when and as such Revenues are received:
(1) Loan Prepayments : the principal component of all cash prepayments of Loan Payments made on account of the redemption of Bonds at the option of the Borrower; and
(2) Investment Earnings : all interest, profits and other income received from the investment of moneys in the Redemption Fund.
C. Application . All amounts deposited in the Redemption Fund shall be used and withdrawn by the Trustee solely for the purpose of redeeming Bonds other than pursuant to Section 4.10F , in the manner and upon the terms and conditions specified in Article IV , at the next succeeding date of redemption for which notice has not been given and at the Redemption Prices then applicable to such redemptions, or to reimburse the Credit Facility Providers (if any) with respect to drawings under the Credit Facilities for such purpose.
SECTION 5.05. Investment of Moneys.
All moneys in any of the funds and accounts established pursuant to this Bond Indenture shall be invested by the Trustee (other than amounts deposited in the Purchase Fund and Credit Facility Fund, which proceeds shall remain uninvested), upon the written direction of the Borrower given at least two days prior to the investment date, solely in Investment Securities. Investment Securities shall be purchased at such prices as the Borrower may direct. All directions of
 
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the Borrower to invest in Investment Securities shall be made subject to the limitations set forth in Section 6.06 , the limitations as to maturities hereinafter in this Section set forth and such additional limitations or requirements consistent with the foregoing as may be established by Request of the Borrower. No Request of the Borrower shall impose any duty on the Trustee inconsistent with its fiduciary responsibilities. In the absence of directions from the Borrower, the Trustee shall invest in Fidelity Institutional Money Market Fund – Prime Money Market Portfolio or in any other Investment Securities specified in Clause (8)  of the definition thereof in Exhibit B specified by the Borrower in writing.
Moneys in all funds and accounts shall be invested in Investment Securities maturing not later than the date on which it is estimated that such moneys will be required for the purposes specified in this Bond Indenture. Investment Securities purchased under a repurchase agreement may be deemed to mature on the date or dates on which the Trustee may deliver such Investment Securities for repurchase under such agreement.
All interest, profits and other income received from the investment of moneys in any fund or account established pursuant to this Bond Indenture shall be deposited when received in such fund or account. Notwithstanding anything to the contrary contained in this paragraph, an amount of interest received with respect to any Investment Security equal to the amount of accrued interest, if any, paid as part of the purchase price of such Investment Security shall be credited to the fund or account for the credit of which such Investment Security was acquired.
Moneys held in the Redemption Fund for the redemption of Bonds shall be invested solely in Investment Securities specified in Clause (1)  or (8)  of the definition thereof in Exhibit B , maturing in such amounts and at such times as are required for such redemption. If the Borrower causes moneys to be deposited with the Trustee as a prepayment of Loan Payments under the Loan Agreement, until such moneys are paid to Bondholders or the Credit Facility Providers (if any), such moneys shall be invested solely in Investment Securities specified in Clause (1)  or (8)  of the definition thereof in Exhibit B .
Investment Securities acquired as an investment of moneys in any fund or account established under this Bond Indenture shall be credited to such fund or account. For the purpose of determining the amount in any such fund or account, all Investment Securities credited to such fund or account shall be valued at the lower of cost (exclusive of accrued interest after the first payment of interest following acquisition) or par value (plus, prior to the first payment of interest following acquisition, the amount of interest paid as part of the purchase price).
The Trustee may commingle any of the funds or accounts established pursuant to this Bond Indenture (other than the Credit Facility Fund, the Rebate Fund and the Purchase Fund) into a separate fund or funds for investment purposes only, provided that all funds or accounts held by the Trustee hereunder shall be accounted for separately as required by this Bond Indenture. The Trustee may act as principal or agent in the making or disposing of any investment. The Trustee may sell at the best price obtainable, or present for redemption, any Investment Securities so purchased whenever it shall be necessary to provide moneys to meet any required payment, transfer, withdrawal or disbursement from the fund or account to which such Investment Security is credited, and, subject to the provisions of Section 8.03 , the Trustee shall not be liable or responsible for any loss resulting from any investment made in accordance with provisions of this Section. Any Investment Securities that are registrable securities shall be registered in the name of the Trustee.
The Trustee is hereby authorized, in making or disposing of any investment permitted by this Section, to deal with itself (in its individual capacity) or with any one or more of its affiliates, whether it or such affiliate is acting as an agent of the Trustee or for any third person or dealing as principal for its own account.
 
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SECTION 5.06. Rebate Fund.
A. Established in Trust; Duties of Trustee . The Trustee shall establish, maintain and hold in trust a separate fund designated as the “ Rebate Fund .” Within the Rebate Fund, the Trustee shall maintain such accounts as shall be specified in writing by the Borrower in order to comply with the Tax Certificate and Agreement. Subject to the transfer provisions provided in Subsection E of this Section, all money at any time deposited in the Rebate Fund shall be held by the Trustee in trust for payment to the federal government of the United States of America the amounts elected or required to be transferred or paid by the Borrower for such purpose pursuant to Section 5.07G of the Loan Agreement. Neither the Issuer nor the Borrower nor the Bondholders shall have any rights in or claim to such money. All amounts deposited into or on deposit in the Rebate Fund shall be governed by this Section, by Section 6.06 and by the Tax Certificate and Agreement (which is incorporated herein by reference). The Trustee shall be deemed conclusively to have complied with such provisions if it follows the written directions of the Borrower, including the Borrower’s supplying all necessary information in the manner provided in the Tax Certificate and Agreement, and shall have no liability or responsibility to enforce compliance by the Borrower or the Issuer with the terms of the Tax Certificate and Agreement.
B. Rebate Fund . Upon the Borrower’s written direction, an amount shall be deposited to the Rebate Fund by the Trustee from deposits by the Borrower, if and to the extent required, so that the balance in the Rebate Fund shall equal the Rebate Amount. Computations of the Rebate Amount shall be furnished by or on behalf of the Borrower in accordance with the Tax Certificate and Agreement.
C. Limited Recourse Against Trustee . The Trustee shall have no obligation to rebate any amounts required to be rebated pursuant to this Section, other than from moneys held in the Rebate Fund or provided to it by the Borrower.
D. Investment . At the written direction of the Borrower, the Trustee shall invest all amounts held in the Rebate Fund in Investment Securities, subject to the restrictions set forth in the Tax Certificate and Agreement. The Trustee shall not be liable for any consequences arising from such investment. Money shall not be transferred from the Rebate Fund except as provided in Subsection E of this Section.
E. Payment to U.S. Treasury . Upon receipt of the Borrower’s written directions, the Trustee shall remit part or all of the balances in the Rebate Fund to the United States of America, as so directed. In addition, if the Borrower so directs, the Trustee will deposit money into or transfer money out of the Rebate Fund from or into such accounts or funds as directed by the Borrower’s written directions. Any funds remaining in the Rebate Fund after redemption and payment of all of the Bonds and payment and satisfaction of any Rebate Amount, or provision made therefor satisfactory to the Trustee, and payment of any amount then owed to the Trustee, shall be withdrawn and remitted to the Borrower.
F. Survival of Obligations . Notwithstanding any other provision of this Bond Indenture, including in particular Article X , the obligation to remit the Rebate Amounts to the United States of America and to comply with all other requirements of this Section, Section 6.06 and the Tax Certificate and Agreement shall survive the defeasance or payment in full of the Bonds.
 
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SECTION 5.07. Draws or Claims Under Credit Facilities .
A. Trustee to Draw or Claim Under Credit Facility . Whenever a Credit Facility for the Bonds of a subseries is in effect hereunder, the Trustee shall claim or draw money thereunder as follows:
(1) Principal, Premium and Interest . The Trustee shall present all notices, drafts, demands, claims, and other documents required by such Credit Facility (in the manner and to the extent therein permitted and by the time required thereby) prior to the applicable Draw Deadline to draw or claim funds thereunder in an amount sufficient, and by the Bank Settlement Deadline (to the extent therein permitted), to pay the principal of (and premium, if any) and interest on ( but not the Purchase Price of) such Bonds when due (whether by reason of the Maturity Date, call for redemption, or declaration of acceleration thereof or of an Interest Payment Date therefor), but in every case only in respect of Eligible Bonds and (if the Liquidity Facility Provider (if any) for such Bonds is not a Credit Facility Provider for such Bonds) Liquidity Facility Bonds.
(2) Recoverable Payments . If (a) any Substitute Credit Facility for the Bonds of such subseries accepted by the Trustee pursuant to Section 5.09 and in effect hereunder at the time of any payment of principal of (or premium, if any) or interest on any Bond may not be drawn or made claim upon to make such payment in respect of Eligible Bonds and (if the Liquidity Facility Providers (if any) for such Bonds are not also the Credit Facility Provider(s) for such Bonds) Liquidity Facility Bonds of such subseries except to the extent of insufficient money in the Interest Fund, Principal Fund, or Redemption Fund, (b) such payment is made from money other than Available Money or funds advanced under such Credit Facility, and (c) prior to, on, or within 123 days after the date of such payment a petition for relief in respect of the Borrower or the Issuer, as debtor, is filed under the Bankruptcy Code, then (i) if a court of competent jurisdiction thereafter enters an order or decree that (A) is unappealable or as to which the time to appeal therefrom has expired with no appeal therefrom having been taken and (B) finds such payment to be a voidable transfer under section 544, 547, 548, or 549 (either directly or by application of section 550) of the Bankruptcy Code, or under any similar state or federal law regarding creditors’ rights, insolvency, or fraudulent conveyance, the Trustee shall, promptly after being notified of such order or decree, present all notices, drafts, demands, claims, and other documents required by such Credit Facility (in the manner and to the extent therein permitted and by the time required thereby) to draw or claim funds thereunder sufficient to pay or reimburse the Bondholders for the amount of such payment so held to be voidable and shall promptly apply such funds for such purpose and (ii) if such Credit Facility is to expire prior to the dismissal of the proceeding commenced by such petition and prior to the entry of any such decree or order, the Trustee shall, on the fifth day prior to expiration thereof, present all notices, drafts, demands, claims, and other documents (in the manner and to the extent therein permitted and by the time required thereby) to draw or claim funds thereunder sufficient to establish a reserve for the payment of any such voided transfer in an amount equal to the entire sum of such payment and, upon the entry of any order or decree described in Clause (i) , apply such reserve for the purpose therein described to the extent such payment is voided and shall remit the balance (and the entire reserve if such proceeding is dismissed without the entry of such an order or decree) to the Credit Facility Provider obligated thereon.
B . Application of Funds . All funds drawn or claimed under any Credit Facility (other than a Credit Facility in the form of a policy of financial guaranty or municipal bond insurance) by the Trustee shall be credited to the applicable account of the Credit Facility Fund and applied in accordance with Section5.10 .
 
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C. Agency . In making draws or claims for payment under the Credit Facility for the Bonds of a subseries, the Trustee shall act on behalf and for the account and benefit of the Holders of the Bonds of such subseries, and not on behalf, for the account or benefit, or subject to the control of the Issuer or the Borrower.
SECTION 5.08. Release of Credit Facilities .
The Trustee shall release and return the Credit Facility for the Bonds of a subseries to the Credit Facility Provider obligated thereon (or, in the case of Clause E , consent to the assignment thereof by such Credit Facility Provider) on Borrower Request:
A . Defeasance : when there are no Outstanding Bonds of such subseries, provided that such Credit Facility provides for its release and return upon defeasance by its terms; or
B . Expiration or Termination : when such Credit Facility has expired or been terminated in accordance with its terms; or
C. Successor Trustee : when a successor Trustee has been appointed and qualified pursuant to Article VIII , and a new Credit Facility for the Bonds of such series has been issued to such successor in substitution for such Credit Facility; or
D. Reduction of Amount : when the maximum aggregate credit available under such Credit Facility is reduced pursuant to the terms thereof and such Credit Facility Provider has issued a new Credit Facility to the Trustee in substitution for such Credit Facility in the stated amount of the maximum aggregate credit available under such Credit Facility as so reduced but otherwise identical to the Credit Facility to be released; or
E. Replacement : at the close of business on a day when there is in effect a Substitute Credit Facility for the Bonds of such subseries in substitution for such Credit Facility (or an assignment of such Credit Facility) issued to and accepted by the Trustee upon Borrower Order given in accordance with Section 5.09 not less than five Business Days (or such shorter period acceptable to the Trustee) for the Bonds of such subseries prior to the date by which the Trustee must give notice to Bondholders pursuant to Section 4.10A of the resulting mandatory tender of Bonds of such subseries for purchase pursuant to such Section, if (1) such day is a Business Day for the Bonds of such subseries and, if any Bonds of such subseries are in a Commercial Paper Mode, Term Rate Mode, R-FLOATs Mode, Indexed Mode, Stepped Coupon Mode, or Fixed Rate Mode, such day is also the first Business Day therefor in an Interest Period for each such Bond or part thereof in each such Mode or a Business Day on which such Bonds may be redeemed at a redemption price equal to 100% of principal amount plus accrued interest, if any, and (2) the Purchase Price of all Bonds of such subseries tendered or deemed tendered for purchase in respect of such release or assignment pursuant to Section 4.10A has been paid or duly provided for from proceeds of remarketing or money drawn under the Credit Facility to be replaced; or
 
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F. Optional Release : at the close of business on a day at least five Business Days (or such shorter period acceptable to the Trustee) for the Bonds of such subseries, plus the minimum number of days’ notice which the Trustee must give to Bondholders pursuant to Section 4.10A of the resulting mandatory tender of Bonds of such subseries for purchase pursuant to such Section, after the Borrower, by Borrower Request, shall have provided that such Credit Facility shall then be released, if (1) such day is a Business Day for the Bonds of such subseries and, if any such Bonds are in a Commercial Paper Mode, Term Rate Mode, R-FLOATs Mode, Indexed Mode, Stepped Coupon Mode, or Fixed Rate Mode, such day is also the first Business Day therefor in an Interest Period for each such Bond or part thereof in each such Mode or a day on which such Bonds may be redeemed at the option of the Borrower at a redemption price equal to 100% of principal amount plus accrued interest, if any, and (2) the Purchase Price of all Bonds of such subseries tendered or deemed tendered for purchase in respect of such release pursuant to Section 4.10A has been paid or duly provided for;
and not otherwise; provided , however , that, if such Credit Facility Provider is also a Liquidity Facility Provider for the Bonds of such subseries, no such release to such Person shall be effected by the Trustee pursuant to Clause E or F unless the Liquidity Facility for such Bonds shall also be released to such Person pursuant to Section 4.17 or such Person consents in writing to such release or assignment of such Credit Facility, and, if such Credit Facility Provider is not also the Liquidity Facility Provider for the Bonds of such subseries, no such release or assignment shall be effected by the Trustee pursuant to Clause E or F unless such Liquidity Facility Provider (if any) consents in writing to such release or assignment of such Credit Facility; and provided further that no Credit Facility shall be released without the written consent of the Credit Facility Provider obligated thereon unless all obligations due and owing to such Credit Facility Provider pursuant to such Credit Facility or its Reimbursement Agreement have been paid in full.
The Trustee shall give notice, pursuant to Section 4.10A , of the mandatory tender of Bonds of the applicable subseries, prior to the date of any release pursuant to Clause B , E , or F of this Section.
SECTION 5.09. Acceptance of and Amendments to Credit Facility .
Each Credit Facility for the Bonds of a subseries accepted by the Trustee in substitution for a Credit Facility then in effect and each extension, amendment or assignment of any Credit Facility for the Bonds of a subseries then in effect,
A. Stated Amount : shall provide for draws or claims sufficient to pay the principal of and interest on the Bonds of such subseries when due up to the Required Stated Amount therefor, and
B. Approval : shall be consented to in writing by the Liquidity Facility Provider for the Bonds of such subseries if a Liquidity Facility is then in effect for such Bonds and not then to be released.
The Trustee shall accept a Credit Facility for the Bonds of a subseries, or an extension, modification, or amendment of the Credit Facility for the Bonds of a subseries, or approve an assignment thereof by the Credit Facility Provider obligated thereon, upon Borrower Order with the written consent of the Liquidity Facility Provider (if any) for the Bonds of such subseries, but only (except in the case of an extension without amendment) upon receipt by the Trustee and by any Liquidity Facility Provider for the Bonds of such subseries which is not obligated on such alternate, extending, modifying, amending, or assigned Credit Facility of a Favorable Opinion of Bond Counsel and an Opinion of Counsel stating that (1) such Credit Facility, extension, modification, or amendment was issued or assignment was made in accordance with the conditions of this Section and (2) such
 
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Credit Facility, as amended, modified, extended, or assigned, constitutes a legal, valid, and binding obligation of the obligor thereon and is enforceable in accordance with its terms ( except to the extent that the enforceability thereof may be limited by bankruptcy, insolvency, reorganization, moratorium, or other laws for the relief of debtors other than the Issuer or the Borrower and by general principles of equity which permit the exercise of judicial discretion). The Trustee shall not be required to accept (or cause to be accepted) any Credit Facility, extension, or amendment or to consent to any assignment thereof which materially adversely affects the rights, duties, or immunities of the Trustee or its agents or the Tender Agent hereunder.
SECTION 5.10. Credit Facility Fund .
A. Creation in Trust . The Trustee shall establish and maintain at all times while a Credit Facility (other than a Credit Facility in the form of municipal bond or financial guaranty insurance) is in effect hereunder, for the account of the Holders of Bonds for the payment of principal of and interest on which money in such Fund may be applied hereunder, a special fund designated as the “ Credit Facility Fund ” ) and, within such fund, a separate account in respect of the Bonds of each subseries, if any. The money deposited to any account or subaccount of the Credit Facility Fund, together with all investments thereof and investment income therefrom, shall be held in trust separate and apart from all other funds held hereunder and applied solely as provided in this Section and Section 5.07A(2) .
B. Deposits. The Trustee shall deposit to the credit of the applicable account of the Credit Facility Fund immediately upon receipt all amounts drawn or claimed by the Trustee under a Credit Facility (other than a Credit Facility in the form of financial guaranty or municipal bond insurance) pursuant to Section 5.07 . No other funds shall be deposited to the Credit Facility Fund.
C. Application. The Trustee shall apply the money in the applicable account of the Credit Facility Fund:
(1) Bond Payments : to set aside on each Maturity Date for Bonds, each date for the redemption of Bonds pursuant to Section 4.01 , each date on which the principal of and accrued interest on the Bonds has been declared to be due and payable immediately pursuant to Section 7.02 , and each Interest Payment Date for Bonds, while a Credit Facility for such Bonds is in effect hereunder, (and, if the Securities Depository is the Holder of such Bonds, transfer to it by the DTC Settlement Deadline) an amount sufficient to pay the principal of and premium, if any, and interest on such Bonds then due, and
(2) Turnover Order : in the case of amounts drawn or claimed pursuant to Section 5.07A(2) , in accordance with the provisions of such Section,
provided that no such application shall be made on Bonds of a subseries other than Eligible Bonds and Liquidity Facility Bonds, if the Liquidity Facility Provider (if any) for such Bonds is not also the Credit Facility Provider for such Bonds.
SECTION 5.11. Security for Deposits .
All money held by the Trustee or the Tender Agent hereunder in excess of the amount guaranteed by the Federal Deposit Insurance Corporation or other federal agency shall, unless the unsecured general obligations of such Person are rated in either of the two highest rating categories (without regard to subcategories) by each Rating Service, be continuously secured by the Trustee, for the benefit of the owners of such money, the Bondholders, and the Credit Facility Providers in any
 
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manner as may then be required or permitted by applicable state or federal laws and regulations regarding the security for, or granting a preference in the case of, the deposit of trust funds; provided, however , that it shall not be necessary for any such Person to give such security for the deposit with it of any money to be used to pay principal, premium, if any, or interest which is at the time of such deposit due and payable with respect to any Bonds, or for the Trustee to give security for any money which shall be represented by obligations purchased under the provisions of Section 5.05 as an investment of such money. Any banking account (other than an Investment Security) to which money credited to the Interest Fund, the Principal Fund, the Redemption Fund, the Credit Facility Fund, or the Purchase Fund is credited shall be maintained (1) in the name of the Trustee and (2) with a federal or state-chartered depository institution or trust company that has an S&P short-term debt rating of at least “A-2” or, if no short-term debt rating, a long-term debt rating of “BBB+”. In the event that any such account no longer satisfies Clause (2)  of the preceding sentence, the Trustee shall promptly (and, in any case within not more than 60 calendar days) move the balance of such account to another account with another financial institution that satisfies such Clause (2) .
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ARTICLE VI
PARTICULAR COVENANTS
SECTION 6.01. Punctual Payment.
The Issuer shall punctually cause to be paid the principal of, Redemption Price, if any, and interest on the Bonds, in strict conformity with the terms of the Bonds and of this Bond Indenture, according to the true intent and meaning thereof, but only out of Revenues and other assets pledged for such payment as provided in this Bond Indenture.
SECTION 6.02. Extension of Payment of Bonds.
The Issuer shall not directly or indirectly extend or assent to the extension of the maturity of any of the Bonds or the time of payment of any claims for interest by the purchase or funding of such Bonds or claims for interest or by any other arrangement and in case the maturity of any of the Bonds or the time of payment of any such claims for interest shall be extended, such Bonds or claims for interest shall not be entitled, in case of any default hereunder, to the benefits of this Bond Indenture, except subject to the prior payment in full of the principal of all of the Bonds then Outstanding and of all claims for interest thereon that shall not have been so extended. Nothing in this Section shall be deemed to limit the right of the Issuer to issue bonds for the purpose of refunding any Outstanding Bonds, and such issuance shall not be deemed to constitute an extension of maturity of Bonds.
SECTION 6.03. Against Encumbrances.
The Issuer shall not create, or permit the creation of, any pledge, lien, charge or other encumbrance upon the Revenues and other assets pledged or assigned under this Bond Indenture while any of the Bonds are Outstanding, except the pledge and assignment created by this Bond Indenture. Subject to this limitation, the Issuer expressly reserves the right to enter into one or more other indentures for any of its corporate purposes, including other programs under the Act, and reserves the right to issue other obligations for such purposes.
SECTION 6.04. Power to Issue Bonds and Make Pledge and Assignment.
The Issuer is duly authorized pursuant to law to issue the Bonds and to enter into this Bond Indenture and to pledge and assign the Revenues and other assets purported to be pledged and assigned, respectively, under this Bond Indenture in the manner and to the extent provided in this Bond Indenture. The Issuer and Trustee shall at all times, to the extent permitted by law, defend, preserve and protect said pledge and assignment of Revenues and other assets and all the rights of the Bondholders under this Bond Indenture against all claims and demands of all Persons whomsoever.
SECTION 6.05. Accounting Records and Financial Statements.
A. Trustee Accounts . The Trustee shall at all times keep, or cause to be kept, proper books of record and account, prepared in accordance with the Trustee’s accounting practices for books of record and account relating to similar trust accounts, in which complete and accurate entries shall be made of all transactions relating to the proceeds of Bonds, the Revenues, the Loan Agreement and all funds and accounts established pursuant to this Bond Indenture. Such books of record and account shall be available for inspection by the Issuer, the Borrower, the Liquidity Facility Providers (if any), the Credit Facility Providers (if any), the Remarketing Agents (if any), and any Bondholder, or his agent or representative duly authorized in writing, at reasonable hours and under reasonable circumstances.
 
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B. Reports . The Trustee shall file and furnish on or before the 15th day of each month to the Borrower (and to the Issuer, the Credit Facility Providers (if any), the Liquidity Facility Providers (if any), the Remarketing Agents (if any) and each Bondholder who shall have filed his or her name and address with the Trustee for such purpose, if requested by such Person) a complete financial statement (which need not be audited) covering receipts, disbursements, allocation and application of Revenues and any other moneys (including proceeds of Bonds) in any of the funds and accounts established pursuant to this Bond Indenture for the immediately preceding month; that the Trustee shall not be required to deliver an accounting for any fund or account that (1) has a balance of $0.00 and (2) has not had any activity since the last reporting date. To the extent that any regulation of the Comptroller of the Currency or other applicable regulatory agency grants to the Issuer or Borrower the right to receive brokerage confirmations of security transactions as they occur, the Issuer waives (and by approving this Bond Indenture the Borrower waives) receipt of such confirmations. The Trustee shall furnish to the Borrower a monthly statement that includes details of all investment transactions made by the Trustee.
SECTION 6.06. Tax Covenants.
A. General. The Issuer shall not knowingly take any action, or omit to take any action within its control, which, if taken or omitted, respectively, would cause the interest on any Common Issue Bond to become includable in the gross income, as defined in section 61 of the Code, of the owners thereof for federal income tax purposes (except during any period when such Common Issue Bond is owned by a “substantial user” of a Project or a “related person” within the meaning of section 147(a) of the Code), and, without limiting the generality of the foregoing, the Issuer will observe and perform each provision of this Section, unless and until a Favorable Opinion of Bond Counsel shall have been delivered to the Trustee. For purposes of this Section, the Issuer’s compliance shall be based solely on acts and omissions of the Issuer, and no acts, omissions, or directions of the Borrower, the Trustee, or any other Person shall be attributable to the Issuer.
B. Not to Invest at Higher Yield. The Issuer shall not direct or itself make any investment of the proceeds of the Common Issue Bonds or any other funds of the Issuer in a manner which would result in constituting any such Common Issue Bonds “ arbitrage bonds” within the meaning of section 148 of the Code or “ hedge bonds” within the meaning of section 149 of the Code.
In the event the Issuer or the Borrower is of the opinion that it is necessary to restrict or limit the yield on the investment of any money paid to or held by the Trustee hereunder in order to avoid classification of any Common Issue Bonds as “ arbitrage bonds” within the meaning of section 148 of the Code, the Issuer or the Borrower may issue to the Trustee a written instrument to such effect (along with appropriate written instructions), in which event the Trustee will comply with such instrument and instructions, irrespective of whether the Trustee shares such opinion. The Trustee may conclusively rely upon any such instructions and shall be responsible for no loss resulting from investment of any money held hereunder in accordance with such instructions.
C . Not Federally Guaranteed. The Issuer shall not direct or itself take any action, or omit to take any action within its control, which, if taken or omitted, respectively, would cause any Common Issue Bond to be “ federally guaranteed” within the meaning of section 149(b) of the Code.
 
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D . Information Report. The Issuer shall timely file (or cause to be filed) with the Secretary of the Treasury the information provided by the Borrower and required by section 149(e) of the Code with respect to the Common Issue Bonds in such form and at such place as such Secretary may prescribe.
E . Rebate of Arbitrage Profits. The Issuer shall pay to the United States of America, but solely from and to the extent of funds advanced by the Borrower for such purpose pursuant to the Loan Agreement, the amounts and at the times described in Section 5.06 , in such manner and accompanied by such forms or other information as is or may be required by section 148(f) of the Code and the Regulations and rulings thereunder. The Issuer shall execute each Internal Revenue Service Form 8038-T delivered to the Trustee by the Borrower, unless such execution is not required by the Regulations or the instructions issued by the Internal Revenue Service for such forms. The Trustee shall not be responsible for the accuracy of any such form, nor shall the Issuer be responsible for the accuracy of any such form delivered by the Borrower.
SECTION 6.07. Enforcement and Amendment of Loan Agreement.
A . Trustee to Enforce . Subject to the provisions of Section 7.06 with respect to the control of remedial proceedings by the Credit Facility Providers (if any) or the Bondholder Representative (if any), the Trustee shall promptly collect all amounts due from the Borrower pursuant to the Loan Agreement, shall perform all duties imposed upon it pursuant to the Loan Agreement and shall diligently enforce, and take all steps, actions and proceedings reasonably necessary for the enforcement of all of the rights of the Issuer assigned to it hereunder and all of the obligations of the Borrower relating thereto.
B . Limitations on Amendments . The Issuer may amend, modify or terminate any of the terms of the Loan Agreement, or consent to any such amendment, modification or termination, when the written consent of (i) the Credit Facility Providers (if any) (provided that a Credit Facility is then in effect or any amounts are owing to a Credit Facility Provider and such Credit Facility Provider is not in default under its payment obligations under a Credit Facility) or (ii) the Holders of a majority in principal amount of the Bonds then Outstanding or the Trustee (if a Credit Facility is no longer in effect or the Credit Facility Providers (if any) are then in default under their payment obligations under the Credit Facilities) and the Liquidity Facility Providers (if any) or the Bondholder Representative (if any) to such amendment, modification or termination have been filed with the Trustee. The Trustee shall give such written consent only if (1) the Trustee receives an Opinion of Counsel to the effect that such amendment, modification or termination will not materially adversely affect the interests of the Bondholders or result in any material impairment of the security hereby given for the payment of the Bonds; or (2) the Trustee first obtains the written consent of the Holders of a majority in principal amount of the Bonds then Outstanding or the Bondholder Representative (if any) to such amendment, modification or termination; or (3) even if consent of Bondholders would otherwise be required, (i) if such amendment will be effective upon the remarketing of the Bonds following the mandatory tender of the Bonds pursuant to Sections 4.07 , 4.08, 4.09 or 4.10 or (ii) with respect to Bonds in a Daily Mode, a Weekly Mode or an R-FLOATs Mode (except during any Non-Remarketing Period) only, if notice of such proposed modification or amendment is given to the Holders of such Bonds (in the same manner as notices of redemption are given) at least 15 days before the effective date thereof, and on or before such effective date, the Holders have the right to demand purchase of their Bonds pursuant to Section 4.06, provided that, on or prior to the effective date of such modification or amendment, the Trustee shall obtain a Favorable Opinion of Bond Counsel; and provided further that, in the cases described in clauses (1), (2)  or (3)  of this Subsection B , no such amendment, modification or termination shall reduce the amount of Loan Payments to be made to the Issuer or the Trustee by the Borrower pursuant to the Loan Agreement, or extend the time for making such payments, without the written consent of all of the Holders of the Bonds then Outstanding.
 
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SECTION 6.08. Waiver of Laws .
The Issuer shall not at any time insist upon or plead in any manner whatsoever, or claim or take the benefit or advantage of, any stay or extension law now or at any time hereafter in force that may affect the covenants and agreements contained in this Bond Indenture or in the Bonds, and all benefit or advantage of any such law or laws is hereby expressly waived by the Issuer to the extent permitted by law.
SECTION 6.09. Further Assurances.
The Issuer will make, execute and deliver any and all such further indentures, instruments and assurances as may be reasonably necessary or proper to carry out the intention or to facilitate the performance of this Bond Indenture and for the better assuring and confirming unto the Holders of the Bonds of the rights and benefits provided in this Bond Indenture.
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ARTICLE VII
EVENTS OF DEFAULT AND REMEDIES OF BONDHOLDERS
SECTION 7.01. Events of Default .
Any one or more of the following events shall be an Event of Default:
A . Principal Default : default in the due and punctual payment of the principal or Redemption Price of any Bond when and as the same shall become due and payable;
B . Interest Default : default in the due and punctual payment of any installment of interest on any Bond when and as the same shall become due and payable;
C . Purchase Price Default : default in the payment from any source (when the same shall become due and payable) of the Purchase Price of any of the Bonds tendered or deemed tendered for purchase pursuant to this Bond Indenture;
D . Covenant Default : default by the Issuer or the Borrower in the observance of any of the other covenants, agreements or conditions on its part contained in this Bond Indenture or the Bonds or in the Loan Agreement, respectively, if such default shall have continued for a period of 60 days after written notice thereof, specifying such default and requiring the same to be remedied, shall have been given to the Issuer or the Borrower, respectively, by the Trustee, or to the Issuer or the Borrower, respectively, and the Trustee by any Credit Facility Provider, the Bondholder Representative (if any) or the Holders of not less than a majority (if a Bondholder Agreement is in effect) and otherwise 25% in aggregate principal amount of the Bonds at the time Outstanding;
E . Credit Facility Provider Notice : receipt by the Trustee of notice from the Credit Facility Provider for the Bonds of a subseries that an Event of Default (as defined in its Reimbursement Agreement) has occurred under such Reimbursement Agreement and requesting acceleration of the Bonds of such subseries pursuant to Section 7.02 ;
F . Involuntary Bankruptcy : the filing of a petition for relief against the Issuer or the Borrower or any guarantor of the Bonds, as debtor, under the Bankruptcy Code or any other applicable federal or state law of similar import, or the entry of a decree or order by a court having jurisdiction in the premises appointing a custodian, receiver, liquidator, assignee, trustee, sequestrator, or other similar official of or for the Issuer or the Borrower, or ordering the winding up or liquidation of the affairs of the Issuer or the Borrower, and the continuance of the case commenced by such petition or any such decree or order unstayed and in effect for a period of 90 consecutive days, unless, in the case of any such action in respect of the Issuer, such decree or order has been limited so as to remove the Revenues and other property of the Issuer assigned and pledged hereunder from the control, supervision, and jurisdiction of the court entering such decree or order and of such custodian, receiver, liquidator, assignee, trustee, sequestrator, or other similar official by the end of such period;
G . Voluntary Bankruptcy : the commencement by the Issuer or the Borrower or any guarantor of the Bonds of a voluntary case under the Bankruptcy Code or any other applicable federal or state law of similar import, or the consent or acquiescence by the Issuer or the Borrower to the commencement of such a case under the Bankruptcy Code or any such law or to the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee, sequestrator, or other similar official of the Issuer or the Borrower, or the
 
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making by the Issuer or the Borrower of an assignment for the benefit of creditors, or the admission by the Issuer or the Borrower in writing of its inability to pay its debts as they become due, or the taking of corporate action by the Issuer or the Borrower in furtherance of any such action and, in the case of any such action in respect of the Issuer, a court shall not have limited such case, petition, or possession so as to remove the Revenues and the other property of the Issuer pledged and assigned hereunder from the control, supervision, and jurisdiction of such court or custodian, receiver, liquidator, assignee, trustee, sequestrator, or other similar official within 90 days after such commencement, consent, or acquiescence; or
H . Cross Default : while a Bondholder Agreement is in effect, receipt by the Trustee of notice from the Bondholder Representative or from a majority in aggregate principal amount of the Holders of the Bonds that an Event of Default (as defined in the Bondholder Agreement) has occurred and is continuing under the Bondholder Agreement and requesting acceleration of the Bonds pursuant to Section 7.02 ;
The Issuer hereby grants to the Borrower full authority for the account of the Issuer to perform any covenant or obligation alleged in any notice given pursuant to Clause D of this Section to be in default or breached, in the name and stead of the Issuer, with full power to do any and all things and acts to the same extent that the Issuer could do and perform any such things and acts and with power of substitution, subject to Section 11.01 .
SECTION 7.02. Acceleration of Maturities.
Upon an Event of Default described in Section 7.01F or 7.01G in respect of the Borrower or any guarantor of the Bonds (except when a Credit Facility is in effect hereunder), the principal of and accrued interest on the Bonds shall become automatically due and payable immediately. During the continuance of any such Event of Default at any other time or any other Event of Default described in Section 7.01 (other than Clause E or H thereof), unless the principal of all the Bonds shall have already become due and payable, the Trustee, upon the written request of the Credit Facility Provider (if any), the Bondholder Representative (if any) or the Holders of not less than a majority in aggregate principal amount (if a Bondholder Agreement is in effect) and otherwise 66-2/3% in aggregate principal amount of the Bonds at the time Outstanding of all subseries for which no Credit Facility is in effect hereunder or in respect of which the Credit Facility Provider obligated thereon is in default thereunder, or upon the occurrence of an Event of Default described in Section 7.01E or 7.01H in respect of the Bonds in any subseries (whether or not the Trustee has received indemnity), shall, promptly upon such occurrence, by notice in writing to the Issuer, the Borrower, the Bondholder Representative (if any), the Credit Facility Providers (if any) and the Liquidity Facility Providers (if any), declare the principal of all the Bonds of such subseries then Outstanding, and the interest accrued thereon, to be due and payable immediately, and upon any such declaration the same shall become and shall be immediately due and payable, anything in this Bond Indenture or in the Bonds contained to the contrary notwithstanding. Upon any such declaration in respect of the Bonds of any subseries the Trustee shall promptly draw upon any then existing Credit Facility for such Bonds in accordance with the terms thereof and apply the amount so drawn to pay the principal of and interest on such Bonds so declared to be due and payable in accordance with and subject to Section 5.10 . Interest on the Bonds of such subseries shall cease to accrue as of the date of such declaration. The Trustee, as promptly as feasible following its knowledge of the automatic acceleration of the Bonds or its declaration of an acceleration of Bonds, shall notify the Holders of such Bonds on the date of acceleration and the cessation of accrual of interest on such Bonds in the same manner as for a notice of redemption; provided, however , that failure to give such notice shall not affect the acceleration of such Bonds.
 
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The preceding paragraph, however, is subject to the condition that if, at any time after the principal of the Bonds of any subseries shall have been so declared due and payable, and before any judgment or decree for the payment of the moneys due shall have been obtained or entered as hereinafter provided, and before the Credit Facility for such Bonds has been drawn upon in accordance with its terms and honored, there shall have been deposited with the Trustee a sum sufficient to pay all the principal of such Bonds matured prior to such declaration and all matured installments of interest (if any) upon all such Bonds, and the reasonable fees and expenses of the Trustee, including reasonable fees and expenses of its attorneys, and any and all other defaults known to the Trustee (other than in the payment of principal of and interest on such Bonds due and payable solely by reason of such declaration) shall have been made good or cured to the satisfaction of the Trustee and such Credit Facility Provider (if any) for such Bonds or the Bondholder Representative (if any) or provision deemed by the Trustee and such Credit Facility Provider (if any) or the Bondholder Representative (if any) to be adequate shall have been made therefor, or, in the case of an Event of Default described in Section 7.01E or 7.01H , the Credit Facility Provider (if any) or the Bondholder Representative (if any) shall have rescinded any notice described in in such Section by written instrument delivered to the Trustee, then, and in every such case, such Credit Facility Provider (if any) or the Bondholder Representative (if any) or the Holders of at least a majority in aggregate principal amount of the Bonds of such subseries then Outstanding, with the written consent of such Credit Facility Provider (if any) or the Bondholder Representative (if any) and written confirmation that such Credit Facility (if any) for such Bonds has been reinstated to the Required Stated Amount, by written notice to the Issuer and to the Trustee, may, on behalf of the Holders of all such Bonds, rescind and annul such declaration and its consequences and waive such default; but no such rescission and annulment shall extend to or shall affect any subsequent default, or shall impair or exhaust any right or power consequent thereon. Notwithstanding any other provision of this Bond Indenture except as provided in the following sentence, the Trustee may not exercise any remedy in respect of the Bonds of any subseries in the event of a default under Section 7.01 (other than Clause E or H thereof) without the written consent of the Credit Facility Provider (if any) for such Bonds, so long as a Credit Facility is in effect for such Bonds and such Credit Facility Provider is not in default under its payment obligations under the Credit Facility. The Trustee may exercise any and all remedies under this Bond Indenture and the Loan Agreement (except acceleration) to collect any fees or expenses due from the Borrower to the Trustee or the Issuer without obtaining the consent of any Credit Facility Providers (if any); provided that the Trustee shall first provide written notice to the Credit Facility Providers (if any) of its intent to exercise such remedies and provide the Credit Facility Providers (if any) with an opportunity to cure any failure of the Borrower with respect to such fees, expenses and indemnification prior to exercising any such remedy.
SECTION 7.03. Institution of Legal Proceedings by Trustee.
Subject to the provisions of Section 7.06 , if an Event of Default shall occur and be continuing, the Trustee in its discretion may, and upon the written request of the Bondholder Representative (if any) or the Credit Facility Provider (if any) (if the Credit Facility is in effect and the Credit Facility Provider (if any) is not in default under its payment obligations under the Credit Facility) or the Holders of a majority in aggregate principal amount (if a Bondholder Agreement is in effect) and otherwise two-thirds in principal amount of the Bonds then Outstanding and upon being indemnified to its satisfaction therefor pursuant to Section 8.03(D) shall, proceed to protect or enforce its rights or the rights of the Holders of Bonds under this Bond Indenture and the Loan Agreement by a suit in equity or action at law, either for the specific performance of any covenant or agreement contained herein or therein, or in aid of the execution of any power herein or therein granted, or by mandamus or other appropriate proceeding for the enforcement of any other legal or equitable remedy as the Trustee shall deem most effectual in support of any of its rights or duties hereunder.
 
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SECTION 7.04. Application of Revenues and Other Funds After Default.
If an Event of Default shall occur and be continuing, all Revenues and any other funds then held or thereafter received by the Trustee under any of the provisions of this Bond Indenture (other than payments received from a Credit Facility Provider and moneys required to be deposited in the Rebate Fund and subject to the requirements of Section 11.10 relating to the use of moneys held for particular Bonds) shall be applied by the Trustee as follows and in the following order:
A . Trustee Expenses : To the payment of any expenses necessary in the opinion of the Trustee to protect the interests of the Holders of the Bonds and payment of reasonable charges and expenses of the Trustee (including reasonable fees and disbursements of its counsel) incurred in and about the performance of its powers and duties under this Bond Indenture; and
B . Bond Payment : To the payment of the principal or Redemption Price of and interest then due on the Bonds (upon presentation of the Bonds to be paid, and stamping thereon of the payment if only partially paid, or surrender thereof if fully paid) subject to the provisions of this Bond Indenture (including Section 6.02 ), as follows:
(1) Before Acceleration : Unless the principal of all of the Bonds of the applicable subseries shall have become or have been declared due and payable,
First : To the payment to the Persons entitled thereto of all installments of interest thereon then due in the order of the maturity of such installments, and, if the amount available shall not be sufficient to pay in full any installment or installments maturing on the same date, then to the payment thereof ratably, according to the amounts due thereon, to the Persons entitled thereto, without any discrimination or preference; and
Second : To the payment to the Persons entitled thereto of the unpaid principal or Redemption Price of any such Bonds that shall have become due, whether at maturity or by call for redemption, with interest on the overdue principal at the rate borne by such Bonds, and, if the amount available shall not be sufficient to pay in full all such Bonds, together with such interest, then to the payment thereof ratably, according to the amounts of principal or Redemption Price due thereon on such date to the Persons entitled thereto, without any discrimination or preference.
(2) Upon Acceleration : If the principal of all of the Bonds of the applicable subseries shall have become or have been declared due and payable, to the payment of the principal and interest then due and unpaid upon such Bonds, with interest on the overdue principal at the rate borne by such Bonds, and, if the amount available shall not be sufficient to pay in full the whole amount so due and unpaid thereon, then to the payment thereof ratably, without preference or priority of principal over interest, or of interest over principal, or of any installment of interest over any other installment of interest, or of any such Bond over any other such Bond, according to the amounts due respectively for principal and interest, to the Persons entitled thereto without any discrimination or preference.
 
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SECTION 7.05. Trustee to Represent Bondholders.
The Trustee is hereby irrevocably appointed (and the successive respective Holders of the Bonds, by taking and holding the same, shall be conclusively deemed to have so appointed the Trustee) as trustee and true and lawful attorney-in-fact of the Holders of the Bonds for the purpose of exercising and prosecuting on their behalf such rights and remedies as may be available to such Holders under the provisions of the Bonds, this Bond Indenture, the Loan Agreement and applicable provisions of any other law. Upon the occurrence and continuance of an Event of Default or other occasion giving rise to a right in the Trustee to represent the Bondholders, the Trustee in its discretion may, and upon the written request of any Credit Facility Provider or the Bondholder Representative (if any) or the Holders of not less than a majority in aggregate principal amount (if a Bondholder Agreement is in effect) and otherwise 25% in aggregate principal amount of the Bonds then Outstanding, with the consent of the Credit Facility Providers (if any), and upon being indemnified to its satisfaction therefor, shall, proceed to protect or enforce its rights or the rights of such Holders and the Credit Facility Providers (if any) by such appropriate action, suit, mandamus or other proceedings as it shall deem most effectual to protect and enforce any such right, at law or in equity, either for the specific performance of any covenant or agreement contained herein, or in aid of the execution of any power herein granted, or for the enforcement of any other appropriate legal or equitable right or remedy vested in the Trustee, in any Credit Facility Provider or in the Bondholders under this Bond Indenture, the Loan Agreement, the Act or any other law; and upon instituting such proceeding, the Trustee shall be entitled, as a matter of right, to the appointment of a receiver of the Revenues and other assets pledged under this Bond Indenture, pending such proceedings. All rights of action under this Bond Indenture or the Bonds or otherwise may be prosecuted and enforced by the Trustee without the possession of any of the Bonds or the production thereof in any proceeding relating thereto, and any such suit, action or proceeding instituted by the Trustee shall be brought in the name of the Trustee for the benefit and protection of all the Holders of such Bonds, subject to the provisions of this Bond Indenture (including Section 6.02 ).
Notwithstanding the foregoing paragraph, during the initial Interest Period in the Initial LIBOR Term Indexed Mode (and for any Interest Period thereafter while the initial Bondholder Agreement is in effect), the Bondholder Representative (if any) is hereby irrevocably appointed and granted authority to exercise all powers, to take all actions, and to have all the rights as are granted to the Trustee in the foregoing paragraph. The Trustee acknowledges that the Bondholder Representative has been appointed for such purpose during the initial Interest Period in the Initial LIBOR Term Indexed Mode and agrees that the Trustee shall have no responsibility to take any actions under this Section 7.05 during such time. While acting under such appointment, the Bondholder Representative (if any) shall be entitled to the protections and limitations of liability afforded the Trustee under Article VIII with respect thereto, including without limitation Section 8.03 , except to the extent inconsistent with the Bondholder Agreement.
SECTION 7.06. Credit Facility Provider’s and Bondholders’ Direction of Proceedings.
Anything in this Bond Indenture to the contrary notwithstanding, the Credit Facility Providers (if any) or the Bondholder Representative (if any) or the Holders of a majority in aggregate principal amount of the Bonds then Outstanding, but with the consent of the Credit Facility Providers (if any), shall have the right, by an instrument or concurrent instruments in writing executed and delivered to the Trustee, to direct the method of conducting all remedial proceedings taken by the Trustee hereunder, provided that such direction shall not be otherwise than in accordance with law and the provisions of this Bond Indenture, and that the Trustee shall have the right to decline to follow any such direction that in the opinion of the Trustee would be unjustly prejudicial to Bondholders not parties to such direction, and that in no event shall the Bondholders directly have the right to make drawings under any Liquidity Facility.
 
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SECTION 7.07. Limitation on Bondholders’ Right to Sue.
No Holder of any Bond shall have the right to institute any suit, action or proceeding at law or in equity, for the protection or enforcement of any right or remedy under this Bond Indenture, the Loan Agreement or any other applicable law with respect to such Bond, unless (1) such Holder shall have given to the Trustee written notice of the occurrence of an Event of Default; (2) the Holders of not less than a majority in aggregate principal amount (if a Bondholder Agreement is in effect) and otherwise 25% in aggregate principal amount of the Bonds then Outstanding shall have made written request upon the Trustee to exercise the powers hereinbefore granted or to institute such suit, action or proceeding in its own name; (3) such Holder or said Holders shall have furnished to the Trustee reasonable indemnity against the costs, expenses and liabilities to be incurred in compliance with such request; and (4) the Trustee shall have refused or omitted to comply with such request for a period of 60 days after such written request shall have been received by, and said indemnity shall have been furnished to, the Trustee.
Such notification, request, furnishing of indemnity and refusal or omission are hereby declared, in every case, to be conditions precedent to the exercise by any Holder of Bonds of any remedy hereunder or under law; it being understood and intended that no one or more Holders of Bonds shall have any right in any manner whatever by his or their action to affect, disturb or prejudice the security of this Bond Indenture or the rights of any other Holders of Bonds, or to enforce any right under this Bond Indenture, the Loan Agreement or other applicable law with respect to the Bonds, except in the manner herein provided, and that all proceedings at law or in equity to enforce any such right shall be instituted, had and maintained in the manner herein provided and for the benefit and protection of all Holders of the Outstanding Bonds, subject to the provisions of this Bond Indenture (including Section 6.02 ).
SECTION 7.08. Absolute Obligation of Issuer.
Nothing in Section 7.07 or in any other provision of this Bond Indenture, or in the Bonds, contained shall affect or impair the obligation of the Issuer, which is absolute and unconditional, to pay the principal or Redemption Price of and interest on the Bonds to the respective Holders of the Bonds at their respective dates of maturity, or upon call for redemption, as herein provided, but only out of the Revenues and other assets herein pledged therefor, or affect or impair the right of such Holders, which is also absolute and unconditional, to enforce such payment by virtue of the contract embodied in the Bonds.
SECTION 7.09. Termination of Proceedings.
In case any proceedings taken by the Trustee, a Credit Facility Provider (if any), the Bondholder Representative (if any) or any one or more Bondholders on account of any Event of Default shall have been discontinued or abandoned for any reason or shall have been determined adversely to the Trustee, such Credit Facility Provider or the Bondholder Representative (if any) or the Bondholders, then in every such case the Issuer, the Liquidity Facility Providers (if any), the Trustee, the Credit Facility Providers (if any), the Bondholder Representative (if any) and the Bondholders, subject to any determination in such proceedings, shall be restored to their former positions and rights hereunder, severally and respectively, and all rights, remedies, powers and duties of the Issuer, the Liquidity Facility Providers (if any), the Trustee, the Credit Facility Providers (if any), the Bondholder Representative (if any) and the Bondholders shall continue as though no such proceedings had been taken.
 
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SECTION 7.10. Remedies Not Exclusive.
No remedy herein conferred upon or reserved to the Trustee, any Liquidity Facility Provider, any Credit Facility Provider or the Bondholder Representative (if any) or the Holders of the Bonds is intended to be exclusive of any other remedy or remedies, and each and every such remedy, to the extent permitted by law, shall be cumulative and in addition to any other remedy given hereunder or now or hereafter existing at law or in equity or otherwise.
SECTION 7.11. Waivers of Default.
No delay or omission of the Trustee, any Credit Facility Provider, any Liquidity Facility Provider, the Bondholder Representative (if any) or any Holder of the Bonds to exercise any right or power arising upon the occurrence of any default shall impair any such right or power or shall be construed to be a waiver of any such default or an acquiescence therein; and every power and remedy given by this Bond Indenture to the Trustee, the Credit Facility Providers (if any), the Liquidity Facility Providers (if any), the Bondholder Representative (if any) or the Holders of the Bonds may be exercised from time to time and as often as may be deemed expedient.
Before any sale of any of the property pledged or assigned hereunder has been made under this Article or any judgment or decree for payment of money due has been obtained by the Trustee as provided in this Article, the Credit Facility Providers, if any and except for any Credit Facility Provider that is in default in payment of its Credit Facility, and in the absence of any such Credit Facility Provider, the Bondholder Representative (if any) or the Holders of not less than a majority in principal amount of the Outstanding Bonds, by writing delivered to the Trustee, the Issuer, and the Borrower, may waive any past default hereunder and its consequences, except a default:
A . Payment or Credit Facility Termination : either (1) in the payment of the principal of (or premium, if any) or interest on, or Purchase Price for, any Bond or (2) described in Section 7.01E , or
B . Unanimous Consent : in respect of a covenant or provision hereof which under Article IX may not be modified or amended without the consent of the Holder of each Outstanding Bond affected.
Upon any such waiver, such default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured, for every purpose of this Bond Indenture; but no such waiver shall extend to any subsequent or other default or impair any right consequent thereon or, unless each of the conditions to rescission described in Section 7.02 have been satisfied, shall (if such Event of Default is described in Section 7.01E ) release the Trustee of its obligation to declare the principal of the Bonds of the applicable series to be immediately due and payable or result in rescission of any declaration of acceleration of Bonds.
SECTION 7.12. Notice to Bondholders of Default.
The Trustee shall promptly give written notice by Electronic Means while a Bondholder Agreement is in effect and otherwise by first class mail to the Bondholders, the Bondholder Representative (if any), the Liquidity Facility Providers (if any) and the Credit Facility Providers (if any) of the occurrence of an Event of Default, if the Trustee has actual knowledge of such Event of Default, and of the giving of any notice under Section 7.01D .
*                    *                     *
 
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ARTICLE VIII
THE TRUSTEE AND AGENTS
SECTION 8.01. Duties, Immunities and Liabilities of Trustee.
A . Implied Duties . The Trustee shall, prior to an Event of Default with the consent of the Borrower, and after the curing of all Events of Default that may have occurred, perform such duties and only such duties as are specifically set forth in this Bond Indenture. The Trustee shall, during the existence of any Event of Default (that has not been cured), exercise such of the rights and powers vested in it by this Bond Indenture, and use the same degree of care and skill in their exercise, as a prudent trustee would exercise or use under the circumstances in the conduct of his own affairs.
B . Removal . The Issuer may with the consent of the Borrower, and upon written request of the Borrower shall, remove the Trustee at any time unless an Event of Default shall have occurred and then be continuing, and shall remove the Trustee if at any time requested to do so by an instrument or concurrent instruments in writing signed by the Holders of not less than a majority in aggregate principal amount of the Bonds then Outstanding (or their attorneys duly authorized in writing) or if at any time the Trustee shall cease to be eligible in accordance with Subsection E of this Section, or shall become incapable of acting, or shall be adjudged a bankrupt or insolvent, or a receiver of the Trustee or its property shall be appointed, or any public officer shall take control or charge of the Trustee or of its property or affairs for the purpose of rehabilitation, conservation or liquidation, in each case by giving written notice of such removal to the Trustee, and thereupon shall appoint, with the written consent of the Borrower, a successor Trustee by an instrument in writing.
C . Resignation . The Trustee may at any time resign by giving written notice of such resignation to the Issuer, the Credit Facility Providers (if any), Remarketing Agents (if any), and the Liquidity Facility Providers (if any) and by giving the Bondholders notice of such resignation by mail at the addresses shown on the bond registration books maintained by the Trustee. Upon receiving such notice of resignation, the Issuer shall promptly appoint, with the written consent of the Borrower and the Credit Facility Providers (if any), a successor Trustee by an instrument in writing. The Trustee shall not be relieved of its duties until such successor Trustee has accepted appointment.
D . Successor Required . Any removal or resignation of the Trustee and appointment of a successor Trustee shall only become effective upon acceptance of appointment by the successor Trustee. If no successor Trustee shall have been appointed and have accepted appointment within 30 days of giving notice of removal or notice of resignation as aforesaid, the resigning Trustee or any Bondholder (on behalf of himself and all other Bondholders) may petition any court of competent jurisdiction for the appointment of a successor Trustee, and such court may thereupon, after such notice (if any) as it may deem proper, appoint such successor Trustee. Any successor Trustee appointed under this Bond Indenture, shall signify its acceptance of such appointment by executing and delivering to the Issuer and to its predecessor Trustee a written acceptance thereof, and thereupon such successor Trustee, without any further act, deed or conveyance, shall become vested with all the moneys, estates, properties, rights, powers, trusts, duties and obligations of such predecessor Trustee, with like effect as if originally named Trustee herein; but , nevertheless, at the Request of the Issuer or the request of the successor Trustee, such predecessor Trustee shall execute and deliver any and all instruments of conveyance or further assurance and do such other things as may reasonably be required for more fully and certainly vesting in and confirming to such successor Trustee all the right, title and interest of such predecessor Trustee in and to any property held by it under this Bond Indenture and shall pay over, transfer, assign and deliver to the successor Trustee any money or other property subject to the trusts and conditions herein set forth. Upon request of the successor Trustee, the Issuer shall execute and deliver any and all instruments as
 
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may be reasonably required for more fully and certainly vesting in and confirming to such successor Trustee all such moneys, estates, properties, rights, powers, trusts, duties and obligations. Upon acceptance of appointment by a successor Trustee as provided in this subsection, the successor Trustee shall mail a notice of the succession of such Trustee to the trusts hereunder to each Rating Agency then rating the Bonds and to the Bondholders at the addresses shown on the bond registration books maintained by the Trustee.
E . Qualifications . Any Trustee appointed under the provisions of this Section in succession to the Trustee shall (1) be a trust company or bank having the powers of a trust company in the State of Texas, having (or if such trust company or bank is a member of a bank holding company system, its bank holding company has) a combined capital and surplus of at least $100,000,000, and subject to supervision or examination by federal or state authority and (2) perform its obligations hereunder in a state specified in the definition of “Business Day” included in the Credit Facility and the Liquidity Facility. If such bank or trust company publishes a report of condition at least annually, pursuant to law or to the requirements of any supervising or examining authority above referred to, then for the purpose of this subsection the combined capital and surplus of such bank or trust company shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. In case at any time the Trustee shall cease to be eligible in accordance with the provisions of this Subsection E , the Trustee shall resign immediately in the manner and with the effect specified in this Section. Whenever the Trustee is not a federal depository institution or state-chartered depository institution subject to regulations regarding fiduciary funds similar to Section 9.10(b), Title 1, U.S. Code of Federal Regulations, then the Tender Agent shall maintain the Credit Facility Fund at such a depository institution subject to such regulations, or at a depository institution the short-term obligations of which are rated by each Rating Agency no lower than the short-term rating assigned by it to the Bonds.
SECTION 8.02. Merger or Consolidation.
Any company into which the Trustee may be merged or converted or with which it may be consolidated or any company resulting from any merger, conversion or consolidation to which it shall be a party or any company to which the Trustee may sell or transfer all or substantially all of its corporate trust business, provided such company shall be eligible under Section 8.01E shall be the successor to such Trustee without the execution or filing of any paper or any further act, anything herein to the contrary notwithstanding.
SECTION 8.03. Liability of Trustee.
A . General Limitation on Liability . The recitals of facts herein and in the Bonds contained shall be taken as statements of the Issuer, and the Trustee shall assume no responsibility for the correctness of the same, or make any representations as to the validity or sufficiency of this Bond Indenture or of the Bonds, or shall incur any responsibility in respect thereof, other than in connection with the duties or obligations herein or in the Bonds assigned to or imposed upon it except for any recital or representation specifically relating to the Trustee or its powers. The Trustee shall, however, be responsible for its representations contained in its Certificate of Authentication on the Bonds. The Trustee shall not be liable in connection with the performance of its duties hereunder, except for its own negligence or willful misconduct. The Trustee may become the owner of Bonds with the same rights it would have if it were not Trustee and, to the extent permitted by law, may act as depositary for and permit any of their officers or directors to act as a member of, or in any other capacity with respect to, any committee formed to protect the rights of Bondholders, whether or not such committee shall represent the Holders of a majority in principal amount of the Bonds then Outstanding.
 
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B . Errors in Judgment . The Trustee shall not be liable for any error of judgment made in good faith by a responsible officer, unless it shall be proved that the Trustee was negligent in ascertaining the pertinent facts.
C . Acting on Direction . The Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the direction of the Credit Facility Provider(s) or the Holders of not less than a majority in aggregate principal amount of the Bonds at the time Outstanding relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee under this Bond Indenture.
D . No Financial Liability . The Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Bond Indenture at the request, order or direction of any of the Bondholders pursuant to the provisions of this Bond Indenture unless such Bondholders shall have furnished to the Trustee reasonable security or indemnity against the costs, expenses and liabilities that may be incurred therein or thereby. The Trustee has no obligation or liability to the Holders for the payment of interest on, principal of or premium, if any, with respect to the Bonds from its own funds; but rather the Trustee’s obligations shall be limited to the performance of its duties hereunder.
E . Knowledge of Defaults . Except with respect to Events of Default specified in Clause A, B, C, E or H of Section 7.01 , the Trustee shall not be deemed to have knowledge of any Event of Default unless and until an officer at the Trustee’s corporate trust operation responsible for the administration of its duties hereunder shall have actual knowledge thereof or the Trustee shall have received written notice thereof at the Principal Corporate Trust Office. The Trustee shall not be bound to ascertain or inquire as to the performance or observance of any of the terms, conditions, covenants or agreements herein or of any of the documents executed in connection with the Bonds, or as to the existence of a default or Event of Default thereunder. The Trustee shall not be responsible for the validity or effectiveness of any collateral given to or held by it.
F . Acting Through Agents . The Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through attorneys-in-fact, agents or receivers, and shall not be answerable for the negligence or misconduct of any such attorney-of-fact, agent or receiver selected by it with due care. The Trustee shall be entitled to advice of counsel and other professionals concerning all matters of trust and its duty hereunder, including verification reports in connection with any defeasance of the Bonds, but the Trustee shall not be answerable for the professional malpractice of any attorney-in-law or certified public accountant in connection with the rendering of his professional advice in accordance with the terms of this Bond Indenture, if such attorney-in-law or certified public accountant was selected by the Trustee with due care.
G . No Responsibility for Disbursed Funds . The Trustee shall not be concerned with or accountable to anyone for the subsequent use or application of any moneys that shall be released or withdrawn in accordance with the provisions hereof.
H . This Section Controlling . Whether or not therein expressly so provided, every provision of this Bond Indenture, the Loan Agreement, the Credit Facilities, the Liquidity Facilities or related documents relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provision of this Article.
 
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SECTION 8.04. Right of Trustee and Tender Agent to Rely on Documents.
The Trustee and the Tender Agent shall be protected in acting upon any notice, resolution, request, consent, order, certificate, report, opinion, bond or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties. The Trustee and the Tender Agent may consult with counsel, who may be counsel of or to the Issuer, with regard to legal questions, and the opinion of such counsel shall be full and complete authorization and protection in respect of any action taken or suffered by it hereunder in good faith and in accordance therewith.
Whenever in the administration of the trusts imposed upon it by this Bond Indenture the Trustee shall deem it necessary or desirable that a matter be proved or established prior to taking or suffering any action hereunder, such matter (unless other evidence in respect thereof be herein specifically prescribed) may be deemed to be conclusively proved and established by a Certificate of the Issuer, and such Certificate shall be full warrant to the Trustee for any action taken or suffered in good faith under the provisions of this Bond Indenture in reliance upon such Certificate, but in its discretion the Trustee may, in lieu thereof, accept other evidence of such matter or may require such additional evidence as it may deem reasonable.
SECTION 8.05. Preservation and Inspection of Documents.
All documents received by the Trustee under the provisions of this Bond Indenture shall be retained in its possession and shall be subject at all reasonable times to the inspection of the Issuer, the Borrower, the Liquidity Facility Providers (if any), the Credit Facility Providers (if any) and any Bondholder, and their agents and representatives duly authorized in writing, at reasonable hours and under reasonable conditions.
SECTION 8.06. Separate or Co-Trustee.
At any time or times, for the purpose of meeting any legal requirements of any jurisdiction, the Trustee shall have power to appoint, and, upon the written request of the Credit Facility Providers (if any) or the Bondholder Representative (if any) or the Holders of at least a majority in aggregate principal amount (if a Bondholder Agreement is in effect) and otherwise 25% in aggregate principal amount of Bonds Outstanding and with the written consent of the Borrower, shall appoint, one or more Persons approved by the Trustee either to act as co-trustee or co-trustees, jointly with the Trustee, to act as separate trustee or separate trustees, and to vest in such Person or Persons, in such capacity, such rights, powers, duties, trusts or obligations as the Trustee may consider necessary or desirable, subject to the remaining provisions of this Section.
Every co-trustee or separate trustee shall, to the extent permitted by law but to such extent only, be appointed subject to the following terms, namely:
A . Authentications . The Bonds shall be authenticated and delivered solely by the Trustee.
B . Joinder of Trustee . All rights, powers, trusts, duties and obligations conferred or imposed upon the trustees shall be conferred or imposed upon and exercised or performed by the Trustee, or by the Trustee and such co-trustee or co-trustees or separate trustee or separate trustees jointly, as shall be provided in the instrument appointing such co-trustee or co-trustees or separate trustee or separate trustees, except to the extent that, under the law of any jurisdiction in which any particular act or acts are to be performed, the Trustee shall be incompetent or unqualified to perform such act or acts, in which event such act or acts shall be performed by such co-trustee or co-trustees or separate trustee or separate trustees.
 
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C . Requests by Trustee . Any request in writing by the Trustee to any co-trustee or separate trustee to take or to refrain from taking any action hereunder shall be sufficient warrant for the taking, or the refraining from taking, of such action by such co-trustee or separate trustee.
D . Return of Powers . Any co-trustee or separate trustee may, to the extent permitted by law, delegate to the Trustee the exercise of any right, power, trust, duty or obligation, discretionary or otherwise.
E. Resignation and Renewal . The Trustee at any time, by any instrument in writing, may accept the resignation of or remove any co-trustee or separate trustee appointed under this Section.
F . No Personal Liability . No trustee hereunder shall be personally liable by reason of any act or omission of any other trustee hereunder, nor will the act or omission of any trustee hereunder be imputed to any other trustee.
G . Demands, Etc . Any demand, request, direction, appointment, removal, notice, consent, waiver or other action in writing delivered to the Trustee shall be deemed to have been delivered to each such co-trustee or separate trustee.
H . Custody . Any moneys, papers, securities or other items of personal property received by any such co-trustee or separate trustee hereunder shall forthwith, so far as may be permitted by law, be turned over to the Trustee.
Upon the acceptance in writing of such appointment by any such co-trustee or separate trustee, it or he shall be vested with such rights, powers, duties or obligations, as shall be specified in the instrument of appointment jointly with the Trustee (except insofar as local law makes it necessary for any such co-trustee or separate trustee to act alone) subject to all the terms hereof. Every such acceptance shall be filed with the Trustee. To the extent permitted by law, any co- trustee or separate trustee may, at any time by an instrument in writing, constitute the Trustee its or his attorney-in-fact and agent, with full power and authority to do all acts and things and to exercise all discretion on its or his behalf and in its or his name.
In case any co-trustee or separate trustee shall die, become incapable of acting, resign or be removed, all rights, powers, trusts, duties and obligations of said co-trustee or separate trustee shall, so far as permitted by law, vest in and be exercised by the Trustee unless and until a successor co-trustee or separate trustee shall be appointed in the manner herein provided.
SECTION 8.07. Compensation and Indemnification.
The Issuer shall pay to the Trustee and the Tender Agent ( but solely from Additional Payments) from time to time reasonable compensation for all services rendered under this Bond Indenture, and also all reasonable expenses, charges, legal and consulting fees and other disbursements and those of their attorneys, agents and employees, incurred in and about the performance of their powers and duties under this Bond Indenture.
 
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No provision of this Bond Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of its rights or powers, if it has not received the agreed compensation for such services or, in cases where the Trustee has a right to reimbursement or indemnification for such performance or exercise, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it; provided, however , that the Tender Agent and the Trustee shall in no event condition any draw upon any Liquidity Facility, any request for payment under any Credit Facility or any payment to Bondholders from such draws under a Liquidity Facility or such payments under a Credit Facility upon the provision of any indemnification for such performance.
SECTION 8.08. Notice to Rating Agency.
The Trustee shall give written notice to any Rating Agency then rating the Bonds if (i) a successor Trustee is appointed hereunder, (ii) if this Bond Indenture, the Loan Agreement, any Remarketing Agreement, any Credit Facility or any Liquidity Facility is amended or supplemented in any material manner, or, if any of such documents are amended with the consent of the Credit Facility Providers (if any), (iii) if a Liquidity Facility or Credit Facility expires, is terminated, substituted, or is extended, (iv) if a successor Remarketing Agent is appointed, (v) if the Bonds are paid and this Bond Indenture defeased pursuant to Section 10.01 , (vi) if the Bonds of any subseries are accelerated pursuant to Section 7.02 , or (viii) if the Bonds are redeemed in whole or in part pursuant to Section 4.01 or are subject to mandatory tender pursuant to Section 4.08 or 4.10 , provided that the Trustee shall incur no liability for failure to give any such notice.
SECTION 8.09. Facsimile and Electronic Transmissions .
The Trustee agrees to accept and act upon instructions or directions pursuant to this Bond Indenture sent by unsecured e-mail, facsimile transmission or other similar unsecured electronic methods, provided , however , that (a) subsequent to such transmission of written instructions and/or directions the Trustee shall forthwith receive the originally executed instructions and/or directions in a timely manner, (b) such originally executed instructions and/or directions shall be signed by a Person designated and authorized to sign for the party signing such instructions and/or directions, and (c) the Trustee shall have received an incumbency certificate listing such designated Persons and containing specimen signatures of such designated Persons, which such incumbency certificate shall be amended and replaced whenever a Person is to be added or deleted from the listing. If the Issuer or the Borrower elects to give the Trustee e-mail or facsimile instructions (or instructions by similar Electronic Means) and the Trustee in its discretion elects to act upon such instructions, the Trustee’s understanding of such instructions shall be deemed controlling. The Trustee shall not be liable for any losses, costs or expenses arising directly or indirectly from the Trustee’s reliance upon and compliance with such instructions notwithstanding such instructions conflict or are inconsistent with a subsequent written instruction. The Issuer agrees (and by approving this Bond Indenture the Borrower agrees) to assume all risks arising out of the use of such Electronic Means to submit instructions and directions to the Trustee, including, without limitation, the risk of the Trustee acting on unauthorized instructions and the risk of interception and misuse by third parties.
SECTION 8.10. Collateral Agent.
The Trustee acknowledges that during the initial Interest Period of the Initial LIBOR Term Indexed Mode and any Interest Period thereafter while the initial Bondholder Agreement remains in effect, the Bondholder Representative (if any) has, pursuant to Section 7.05 , the power to take all actions and exercise all of the rights that the Trustee would otherwise have with respect to any
 
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guarantee of obligations (“ Guarantee ”) relating to the Bonds and any collateral (“ Collateral ”) securing obligations relating to the Bonds (in each case in accordance with the terms set forth in any agreement governing any Guarantee or Collateral), including, without limitation, the power to direct the exercise of remedies by any collateral agent appointed with respect to such Collateral. The Trustee shall have no right, responsibility or obligation to take any action with respect to any such Guarantee or Collateral or in connection with the exercise of remedies in connection therewith.
To the extent required, each of the Trustee and the Issuer authorizes the appointment of any collateral agent in connection with the Collateral and authorizes such collateral agent to enter into any agreements it deems appropriate in connection with the Collateral and any intercreditor arrangements or any remedial rights in connection therewith, including without limitation, any security agreement or intercreditor agreement (each a “ Security Document ”). In connection with the foregoing, and for the avoidance of doubt, any such collateral agent shall not have any duties or obligations except those expressly set forth in the Security Documents, and its duties thereunder shall be administrative in nature. Without limiting the generality of the foregoing, any such collateral agent and its affiliates and the partners, directors, officers, employees, agents, trustees, administrators, managers, advisors and representatives of such collateral agent and of its affiliates:
(i) shall not be subject to any fiduciary or other implied duties, regardless of whether a default or Event of Default has occurred and is continuing;
(ii) shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Security Documents and then only as directed in accordance with the terms thereof; provided that such collateral agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose the collateral agent to liability or that is contrary to any Security Document or applicable law, including for the avoidance of doubt any action that may be in violation of the automatic stay under Title 11 of the United States Code, as amended, and any similar Federal, state or foreign law for the relief of debtors;
(iii) shall not, except as expressly set forth in any Security Document, have any duty or responsibility to disclose, and shall not be liable for the failure to disclose, any information relating to the Borrower or any Affiliate thereof that is communicated to or obtained by such collateral agent or any of its Affiliates in any capacity;
(iv) shall not be liable for any action taken or not taken by it under or in connection with any Security Document or the transactions contemplated thereby (A) with the consent or at the request of the secured party entitled to direct the collateral agent under the applicable Security Document, (B) in the absence of its own gross negligence or willful misconduct as determined by a court of competent jurisdiction by final and nonappealable judgment or (C) in reliance on a certificate of an authorized officer of the Borrower or any applicable guarantor of the obligations secured under such Security Document stating that such action is permitted by the terms of such Security Document, the collateral agent being deemed not to have knowledge of any default or Event of Default unless and until notice describing such default or Event Default is given in writing to the collateral agent by the in accordance with the terms of such Security Document; and
(v) shall not be responsible for or have any duty or obligation to any holder of obligations secured under any Security Document or any other person to ascertain or inquire into (A) any statement, warranty or representation made in or in connection with any Security Document, (B) the contents of any certificate, report or other document delivered hereunder or thereunder or in
 
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connection herewith or therewith, (C) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein or the occurrence of any default or Event of Default, (D) the validity, enforceability, effectiveness or genuineness of any Security Document or any other agreement, instrument or document, or the creation, perfection or priority of any lien purported to be created by any Security Document, (E) the value or the sufficiency of any Collateral, or (F) the satisfaction of any condition or representation or warranty set forth in any Security Document, other than to confirm receipt of items expressly required to be delivered to such collateral agent.
Whether or not therein expressly so provided, every provision of this Bond Indenture, the Loan Agreement, the Credit Facilities, the Liquidity Facilities or related documents relating to the conduct or affecting the liability of or affording protection to any such collateral agent shall be subject to the provision of this Article.
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ARTICLE IX
MODIFICATION OR AMENDMENT OF THIS BOND INDENTURE
SECTION 9.01. Amendments Permitted.
A. With Consents . This Bond Indenture and the rights and obligations of the Issuer and of the Holders of the Bonds and of the Trustee may be modified or amended from time to time and at any time by an indenture or indentures supplemental thereto, which the Issuer and the Trustee may enter into when the written consent of (i) each Credit Facility Provider (so long as a Credit Facility on which it is obligated is in effect or any amounts are owing to a Credit Facility Provider and such Credit Facility Provider is not then in default under its payment obligations under its Credit Facility), (ii) the Bondholder Representative (if any), or (iii) the Holders of a majority in aggregate principal amount of all Bonds then Outstanding (if no Credit Facility is any longer in effect or all Credit Facility Providers are then in default under their payment obligations under the Credit Facilities and no Bondholder Agreement is in effect), and the Liquidity Facility Providers (if any), shall have been filed with the Trustee. No such modification or amendment shall (1) extend the fixed maturity of any Bond, or reduce the amount of principal thereof, or change the method of computing the rate of interest thereon, or extend the time of payment of interest thereon, or extend the time of payment or reduce the amount of any Mandatory Sinking Account Payment, or reduce any premium payable upon the redemption thereof, without the consent of the Holder of each Bond so affected, or (2) reduce the aforesaid percentage of Bonds the consent of the Holders of which is required to effect any such modification or amendment, or permit the creation of any lien on the Revenues and other assets pledged under this Bond Indenture prior to or on a parity with the lien created by this Bond Indenture, or deprive the Holders of the Bonds of the lien created by this Bond Indenture on such Revenues and other assets (except as expressly provided in this Bond Indenture), without the consent of the Holders of all of the Bonds then Outstanding, or (3) modify any of the rights or obligations of the Trustee without its prior written consent thereto; nor shall the Trustee be required to consent to any such amendment that adversely affects its rights or obligations hereunder or under the Loan Agreement, the Liquidity Facilities or the Remarketing Agreements. It shall not be necessary for the consent of the Bondholders to approve the particular form of any Supplemental Bond Indenture, but it shall be sufficient if such consent shall approve the substance thereof. Promptly after the execution by the Issuer and the Trustee of any Supplemental Bond Indenture pursuant to this Subsection A , the Trustee shall mail a notice, setting forth in general terms the substance of such Supplemental Bond Indenture, to each Rating Agency then rating Bonds, to the Liquidity Facility Providers (if any), to the Credit Facility Providers (if any) and to the Holders of the Bonds at the addresses shown on the bond registration books of the Trustee. Any failure to give such notice, or any defect therein, shall not, however, in any way impair or affect the validity of any such Supplemental Bond Indenture.
B. Without Bondholder Consent . This Bond Indenture and the rights and obligations of the Issuer, of the Trustee and of the Holders of the Bonds may also be modified or amended from time to time and at any time by an indenture or indentures supplemental hereto, which the Issuer and the Trustee may enter into without the consent of any Bondholders (but with the consent of the Credit Facility Providers (if any) and only if not objected to by the Liquidity Facility Providers (if any) within five calendar days after it has been given written notice of such supplemental indenture, unless such modification or amendment affects only the Fixed Rate Bonds), if the Trustee determines that the provisions of such Supplemental Bond Indenture shall not materially adversely affect the interests of the Holders of the Bonds, including, without limitation, for any one or more of the following purposes:
(1) Additional Covenants or Security : to add to the covenants and agreements of the Issuer in this Bond Indenture contained other covenants and agreements thereafter to be observed, to pledge or assign additional security for the Bonds (or any portion thereof), or to surrender any right or power herein reserved to or conferred upon the Issuer;
 
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(2) Curing Defects, Etc .: to make such provisions for the purpose of curing any ambiguity, inconsistency or omission, or of curing or correcting any defective provision, contained in this Bond Indenture, or in regard to matters or questions arising under this Bond Indenture, as the Issuer may deem necessary or desirable and not inconsistent with this Bond Indenture;
(3) Qualification of Bond Indenture : to modify, amend or supplement this Bond Indenture in such manner as to permit the qualification hereof under the Trust Indenture Act of 1939, as amended, or any similar federal statute hereafter in effect, and to add such other terms, conditions and provisions as may be permitted by said act or similar federal statute;
(4) Eligibility of Bonds : to make the Bonds eligible for deposit with any Securities Depository;
(5) Rating : to obtain a rating on the Bonds;
(6) Credit or Liq uidity Facility Compatibility : to conform to the terms and provisions of any Liquidity Facility or Credit Facility; or
(7) Prospective Effect : to make any modification or amendment to this Bond Indenture, even if consent of Holders would otherwise be required, (i) if such amendment will be effective upon the remarketing of all Bonds following the mandatory tender of the Bonds pursuant to Sections 4.07, 4.08, 4.09 or 4.10 or (ii) if all Bonds are in one or more of a Daily Mode, a Weekly Mode or an R-FLOATs Mode (except during any Non-Remarketing Period), if notice of such proposed modification or amendment is given to Holders (in the same manner as notices of redemption are given) at least 15 days before the effective date thereof and on or before such effective date, the Holders have the right to demand purchase of their Bonds pursuant to Section 4.06 ; provided that, on or prior to the effective date of such modification or amendment, the Trustee shall obtain a Favorable Opinion of Bond Counsel.
The Trustee shall give notice of any such modification or amendment to each Rating Agency then rating the Bonds provided the Trustee shall incur no liability for failure to do so.
C. Remarketing Agent Notice and Consent . All notices regarding amendments to this Bond Indenture shall be delivered to the Remarketing Agents at the time and in the same manner as such notices are delivered to the registered owners of the Bonds. No amendment shall become effective with respect to a Remarketing Agent without the written consent of such party if it adversely affects the rights, duties, privileges, immunities and liabilities of such party.
D. Trustee’s Rights . The Trustee may in its discretion, but shall not be obligated to, enter into any Supplemental Bond Indenture authorized by Subsections A or B of this Section that materially adversely affects the Trustee’s own rights, duties or immunities under this Bond Indenture or otherwise.
 
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SECTION 9.02. Effect of Supplemental Bond Indenture.
Upon the execution of any Supplemental Bond Indenture pursuant to this Article, this Bond Indenture shall be deemed to be modified and amended in accordance therewith, and the respective rights, duties and obligations under this Bond Indenture of the Issuer, the Trustee and all Holders of Bonds Outstanding shall thereafter be determined, exercised and enforced hereunder subject in all respects to such modification and amendment, and all the terms and conditions of any such Supplemental Bond Indenture shall be deemed to be part of the terms and conditions of this Bond Indenture for any and all purposes.
SECTION 9.03. Endorsement of Bonds; Preparation of New Bonds.
Bonds delivered after the execution of any Supplemental Bond Indenture pursuant to this Article may, and if the Trustee so determines shall, bear a notation by endorsement or otherwise in form approved by the Issuer and the Trustee as to any modification or amendment provided for in such Supplemental Bond Indenture, and, in that case, upon demand of the Holder of any Bond Outstanding at the time of such execution and presentation of his Bond for such purpose at the Principal Corporate Trust Office of the Trustee or at such additional offices as the Trustee may select and designate for that purpose, a suitable notation shall be made on such Bond. If the Supplemental Bond Indenture shall so provide, new Bonds so modified as to conform, in the opinion of the Issuer and the Trustee, to any modification or amendment contained in such Supplemental Bond Indenture, shall be prepared and executed by the Issuer and authenticated by the Trustee, and upon demand of the Holders of any Bonds then Outstanding shall be exchanged at the Principal Corporate Trust Office, without cost to any Bondholder, for Bonds then Outstanding, upon surrender for cancellation of such Bonds, in equal aggregate principal amounts of the same subseries, maturity, Interest Period and interest rate.
SECTION 9.04. Amendment of Particular Bonds.
The provisions of this Article shall not prevent any Bondholder from accepting any amendment as to the particular Bonds held by him, provided that due notation thereof is made on such Bonds.
SECTION 9.05. Consent by Purchasers or Remarketing Agent.
For purposes of this Article, (i) the purchasers of Bonds, whether purchasing as underwriters, for resale or otherwise, upon such purchase and (ii) the Remarketing Agent for Bonds, upon a mandatory tender date for such Bonds, may consent to an amendment, change, modification or waiver of any amendment or supplement with the same effect as a consent given by the Holders of such Bonds.
*                    *                     *
 
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ARTICLE X
DEFEASANCE
SECTION 10.01. Discharge of Bond Indenture.
The Bonds may be paid or shall be deemed paid by the Issuer in any of the following ways, provided that the Issuer also pays or causes to be paid any other sums payable hereunder by the Issuer:
A. Payment : by paying or causing to be paid the principal or Redemption Price of and interest on the Bonds, as and when the same become due and payable (from funds other than moneys paid pursuant to a Credit Facility);
B. Defeasance : by depositing with the Trustee, in trust, at or before maturity, money or securities in the necessary amount (as provided in Section 10.03 ) to pay or redeem all Bonds then Outstanding (from funds other than moneys paid pursuant to a Credit Facility); or
C. Surrender : by delivering to the Trustee, for cancellation by it, all Bonds then Outstanding.
If the Issuer shall also pay or cause to be paid all other sums payable hereunder by the Issuer and no amounts are owing to any Credit Facility Provider, then and in that case, at the election of the Issuer (evidenced by a Certificate of the Issuer, filed with the Trustee, signifying the intention of the Issuer to discharge all such indebtedness and this Bond Indenture and upon receipt by the Trustee and the Credit Facility Providers (if any) of (i) an Opinion or Opinions of Counsel to the effect that the obligations under this Bond Indenture and the Bonds have been discharged and (ii) written evidence from each Rating Agency then rating the Bonds that defeasance will not result in the reduction or withdrawal of such ratings), and notwithstanding that any Bonds shall not have been surrendered for payment, this Bond Indenture and the pledge of Revenues and other assets made under this Bond Indenture and all covenants, agreements and other obligations of the Issuer under this Bond Indenture shall cease, terminate, become void and be completely discharged and satisfied, except only as provided in Sections 5.06 and 10.02 . In such event, upon Request of the Issuer, the Trustee shall cause an accounting for such period or periods as may be requested by the Issuer to be prepared and filed with the Issuer and shall execute and deliver to the Issuer all such instruments as may be necessary or desirable to evidence such discharge and satisfaction, and the Trustee shall pay over, transfer, assign or deliver all moneys or securities or other property held by it pursuant to this Bond Indenture that are not required for the payment or redemption of Bonds not theretofore surrendered for such payment or redemption (1) to the Liquidity Facility Providers (if any) to the extent of any amounts owed to such Liquidity Facility Providers (if any) pursuant to the respective Liquidity Facilities and (2) otherwise, to the Borrower; provided that in all events moneys in the Rebate Fund shall be subject to the provisions of Section 5.06 .
SECTION 10.02. Discharge of Liability on Bonds.
Upon the deposit with the Trustee, in trust, at or before maturity, of money or securities in the necessary amount (as provided in Section 10.03 ) to pay or redeem any Outstanding Bond (whether upon or prior to its maturity or the redemption date of such Bond), provided that, if such Bond is to be redeemed prior to maturity, notice of such redemption shall have been given as provided in Article IV or provision satisfactory to the Trustee shall have been made for the giving of such notice, then all liability of the Issuer in respect of such Bond shall cease, terminate, become void
 
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and be completely discharged and satisfied, except only that thereafter the Holder thereof shall be entitled to payment of the principal or Redemption Price of and interest on such Bond by the Issuer and the Issuer shall remain liable for such payment, but only out of such money or securities deposited with the Trustee as aforesaid for its payment, provided further, however, that the provisions of Section 10.04 shall apply in all events.
SECTION 10.03. Deposit of Money or Securities with Trustee.
Whenever in this Bond Indenture it is provided or permitted that there be deposited with or held in trust by the Trustee money or securities in the necessary amount to pay or redeem any Bonds, the money or securities so to be deposited or held may include money or securities held by the Trustee in the funds and accounts established pursuant to this Bond Indenture (other than the Purchase Fund and the Rebate Fund) and shall be:
A. Cash : lawful money of the United States of America in an amount equal to the principal amount of such Bonds and all unpaid interest thereon to maturity (based on the Maximum Rate for periods for which the actual interest rate is not known), except that, in the case of Bonds that are to be redeemed prior to maturity and in respect of which notice of such redemption shall have been given as provided in Article IV or provision satisfactory to the Trustee shall have been made for the giving of such notice, the amount to be deposited or held shall be the principal amount or Redemption Price of such Bonds and all unpaid interest thereon to the redemption date (based on the Maximum Rate for periods for which the actual interest rate is not known); or
B. Governmental Obligations : Governmental Obligations, the principal of and interest on which when due (without any income from the reinvestment thereof) will provide money sufficient to pay the principal or Redemption Price of and all unpaid interest to maturity, or to the redemption date, as the case may be, on the Bonds to be paid or redeemed (based on an assumed interest rate of the Maximum Rate for periods for which the actual interest rate is not known), as such principal or Redemption Price and interest become due, provided that, in the case of Bonds that are to be redeemed prior to the maturity thereof, notice of such redemption shall have been given as provided in Article IV or provision satisfactory to the Trustee shall have been made for the giving of such notice;
provided , in each case, that the Trustee shall have been irrevocably instructed (by the terms of this Bond Indenture or by Request of the Issuer) to apply such money to the payment of such principal or Redemption Price and interest on such Bonds. Governmental Obligations issued in book entry form shall be deemed deposited with the Trustee or other escrow agent upon the perfection of a security interest therein in favor of such Person.
SECTION 10.04. Payment of Bonds After Discharge of Bond Indenture.
Notwithstanding any provisions of this Bond Indenture, any moneys held by the Trustee in trust for the payment of the Redemption Price or the principal of, or interest on, any Bonds and remaining unclaimed for two years (or, if less, one day before such moneys would escheat to the State of Texas under then applicable Texas law) after the principal of all of the Bonds has become due and payable (whether at maturity or upon call for redemption or by acceleration as provided in this Bond Indenture), if such moneys were so held at such date, or two years (or, if less, one day before such moneys would escheat to the State of Texas under then applicable Texas law) after the date of deposit of such moneys if deposited after said date when all of the Bonds became due and payable, shall be repaid to the Borrower (unless such moneys are proceeds of a Credit Facility and moneys are
 
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owed by the Borrower to the Credit Facility Provider obligated therein, in which event to such Credit Facility Provider) free from the trusts created by this Bond Indenture upon receipt of an indemnification agreement acceptable to the Trustee indemnifying the Trustee with respect to claims of Holders of Bonds that have not yet been paid, and all liability of the Trustee with respect to such moneys shall thereupon cease; provided, however , that before the repayment of such moneys to the Borrower or any Credit Facility Provider as aforesaid, the Trustee may (at the cost of the Borrower) first mail to the Holders of Bonds that have not yet been paid, at the addresses shown on the bond registration books maintained by the Trustee, a notice, in such form as may be deemed appropriate by the Trustee with respect to the Bonds so payable and not presented and with respect to the provisions relating to the repayment to the Borrower or such Credit Facility Provider of the moneys held for the payment thereof.
*                    *                     *
 
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ARTICLE XI
MISCELLANEOUS
SECTION 11.01. Liability of Issuer Limited.
Notwithstanding anything in this Bond Indenture or in the Bonds contained, the Issuer shall not be required to advance any moneys derived from any source other than the Revenues, the Additional Payments and other assets pledged under this Bond Indenture for any of the purposes in this Bond Indenture mentioned, whether for the payment of the principal or Redemption Price of or interest on the Bonds or for any other purpose of this Bond Indenture. Nevertheless, the Issuer may, but shall not be required to, advance for any of the purposes hereof any funds of the Issuer that may be made available to it for such purposes.
SECTION 11.02. Successor Is Deemed Included in All References to Predecessor.
Whenever in this Bond Indenture either the Issuer or the Trustee is named or referred to, such reference shall be deemed to include the successors or assigns thereof, and all the covenants and agreements in this Bond Indenture contained by or on behalf of the Issuer or the Trustee shall bind and inure to the benefit of the respective successors and assigns thereof whether so expressed or not.
SECTION 11.03. Limitation of Rights to Parties and Certain Other Persons.
Nothing in this Bond Indenture or in the Bonds expressed or implied is intended or shall be construed to give to any Person other than the Issuer, the Trustee, the Borrower, the Credit Facility Providers (if any), the Liquidity Facility Providers (if any), the Bondholder Representative, and the Holders of the Bonds, any legal or equitable right, remedy or claim under or in respect of this Bond Indenture or any covenant, condition or provision therein or herein contained; and all such covenants, conditions and provisions are and shall be held to be for the sole and exclusive benefit of the Issuer, the Trustee, the Borrower, the Credit Facility Providers (if any), the Liquidity Facility Providers (if any) and the Holders of the Bonds. The Credit Facility Providers (if any), the Bondholder Representative, are expressly deemed to be third-party beneficiaries of this Bond Indenture.
SECTION 11.04. Waiver of Notice.
Whenever in this Bond Indenture the giving of notice by mail, Electronic Means or otherwise is required, the giving of such notice may be waived in writing by the Person entitled to receive such notice and in any such case the giving or receipt of such notice shall not be a condition precedent to the validity of any action taken in reliance upon such waiver.
SECTION 11.05. Destruction of Bonds.
Whenever in this Bond Indenture provision is made for the cancellation by the Trustee and the delivery to the Issuer of any Bonds, the Trustee shall, in lieu of such cancellation and delivery, destroy such Bonds and, upon request of the Issuer, deliver a certificate of such destruction to the Issuer.
 
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SECTION 11.06. Severability of Invalid Provisions.
If any one or more of the provisions contained in this Bond Indenture or in the Bonds shall for any reason be held to be invalid, illegal or unenforceable in any respect, then such provision or provisions shall be deemed severable from the remaining provisions contained in this Bond Indenture and such invalidity, illegality or unenforceability shall not affect any other provision of this Bond Indenture, and this Bond Indenture shall be construed as if such invalid or illegal or unenforceable provision had never been contained herein.
SECTION 11.07. Notices.
All notices to the Liquidity Facility Provider (if any) shall be given by Electronic Means (unless otherwise provided herein). Any notice required to be given to Bondholders shall also be given to the Credit Facility Providers (if any) and, during a Term Indexed Mode while a Bondholder Agreement is in effect, the Bondholder Representative. Any notice to or demand upon the Trustee may be served or presented, and such demand may be made, at the Principal Corporate Trust Office (original address shown below), or at such other address as may have been filed in writing by the Trustee with the Interested Parties, the Remarketing Agents (if any), and the Liquidity Facility Providers (if any). Except with respect to notices to the Liquidity Facility Providers (if any) or the Credit Facility Providers (if any) with respect to claims under the Liquidity Facilities or the Credit Facility, respectively, which notices shall be given in accordance with such documents, any notice to or demand upon the Issuer, the Borrower, the Remarketing Agents (if any), the Tender Agent, the Liquidity Facility Providers (if any), the Credit Facility Providers (if any), or the Bondholder Representative shall be deemed to have been sufficiently given or served for all purposes by being delivered or sent by Electronic Means or by being deposited, postage prepaid, in a post office letter box, addressed, as the case may be, to the respective following addresses (or to such other address as may have been filed in writing by such party with the Trustee):
 
 	(1)	Issuer :	
Harris County Industrial Development Corporation
c/o Fulbright & Jaworski L.L.P.
1301 McKinney, Suite 5100
Houston, Texas 77010-3095
Attention: President
 
 	(2)	Borrower :	
HFOTCO LLC
1201 South Sheldon Road
Houston, Texas 77015
Attention: Michael Mangan
Tel.: (713) 948-6100
Fax: (281) 452-6306
Email: mmangan@hfotco.com
 
 	(3)	Remarketing Agent :	
Merrill Lynch, Pierce, Fenner & Smith Incorporated
Municipal Money Markets
Municipal Bond Division
4 World Financial Center, 9th Floor
New York, NY 10080
Attention: Mona Payton
 
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 	(4)	Trustee/Tender Agent :	
The Bank of New York Mellon Trust Company, N.A.
601 Travis Street, Floor 16
Houston, Texas 77002
Attention: Public Finance
Tel.: (713) 227-1600
Fax: (713) 483-6979
Email: rosalyn.davis@bnymellon.com
 
 	(5)	Credit Facility Provider/Liquidity Facility Provider:	
As specified in the Reimbursement Agreement (if any) with such Person
 
 	(6)	S&P :	
Standard & Poor’s Rating Service
55 Water Street, 41 st Floor
New York, New York 10041-0003
Attention: Structured Finance LOC Surveillance Group
Email: nyloc@standardandpoors.com
 
 	(7)	Moody’s :	
Moody’s Investors Services, Inc.
7 World Trade Center
New York, New York 10007
Attention: Structured Finance
 
 	(8)	Fitch :	
 
 	Fitch	Ratings	
One State Street Plaza
New York, New York 10004
Attention: U.S. Public Finance
 
 	(9)	Bondholder Representative :	
As specified in the Bondholder Agreement (if any)
SECTION 11.08. Evidence of Rights of Bondholders.
Any request, consent or other instrument required or permitted by this Bond Indenture to be signed and executed by Bondholders may be in any number of concurrent instruments of substantially similar tenor and shall be signed or executed by such Bondholders in person or by an agent or agents duly appointed in writing. Proof of the execution of any such request, consent or other instrument or of a writing appointing any such agent, or of the holding by any Person of Bonds transferable by delivery, shall be sufficient for any purpose of this Bond Indenture and shall be conclusive in favor of the Trustee and of the Issuer if made in the manner provided in this Section.
 
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The fact and date of the execution by any Person of any such request, consent or other instrument or writing may be proved by the certificate of any notary public or other officer of any jurisdiction, authorized by the laws thereof to take acknowledgments of deeds, certifying that the Person signing such request, consent or other instrument acknowledged to him the execution thereof, or by an affidavit of a witness of such execution duly sworn to before such notary public or other officer.
The ownership of Bonds shall be proved by the bond registration books held by the Trustee.
Any request, consent, or other instrument or writing of the Holder of any Bond shall bind every future Holder of the same Bond and the Holder of every Bond issued in exchange therefor or in lieu thereof, in respect of anything done or suffered to be done by the Trustee or the Issuer in accordance therewith or reliance thereon.
SECTION 11.09. Disqualified Bonds.
In determining whether the Holders of the requisite aggregate principal amount of Bonds have concurred in any demand, request, direction, consent or waiver under this Bond Indenture, Bonds that are held by or for the account of the Issuer or the Borrower, or by any other obligor on the Bonds, or by any Person directly or indirectly controlling or controlled by, or under direct or indirect common control with, the Issuer, the Borrower or any other obligor on the Bonds, shall be disregarded and deemed not to be Outstanding for the purpose of any such determination. Bonds so owned that have been pledged in good faith may be regarded as Outstanding for the purposes of this Section if the pledgee shall establish to the satisfaction of the Trustee the pledgee’s right to vote such Bonds and that the pledgee is not a Person directly or indirectly controlling or controlled by, or under direct or indirect common control with, the Issuer, the Borrower or any other obligor on the Bonds. In case of a dispute as to such right, any decision by the Trustee taken upon the advice of counsel shall be full protection to the Trustee.
SECTION 11.10. Money Held for Particular Bonds.
The money held by the Trustee for the payment of the interest, principal or Redemption Price due on any date with respect to particular Bonds (or portions of Bonds in the case of registered Bonds redeemed in part only) shall, on and after such date and pending such payment, be set aside on its books and held in trust by it for the Holders of the Bonds entitled thereto, subject, however , to the provisions of Section 10.04 .
SECTION 11.11. Funds and Accounts.
Any fund or account required by this Bond Indenture to be established and maintained by the Trustee may be established and maintained in the accounting records of the Trustee, either as a fund or an account, and may, for the purposes of such records, any audits thereof and any reports or statements with respect thereto, be treated either as a fund or as an account; but all such records with respect to all such funds and accounts shall at all times be maintained in accordance with industry standards to the extent practicable, and with due regard for the requirements of Section 6.06 and for the protection of the security of the Bonds and the rights of every Holder thereof. The Trustee may establish such additional funds and accounts as it deems necessary to perform its obligations hereunder.
 
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SECTION 11.12. Limitation on Liability.
A. Limitation on Liability of Issuer. No provision of this Bond Indenture shall require the Issuer to expend or risk its own funds (other than the Revenues) or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, and all expenses of the Issuer in carrying out its obligations under this Bond Indenture shall be payable solely from and to the extent of funds derived by the Issuer from the Borrower. Anything in this Bond Indenture to the contrary notwithstanding, the performance by the Issuer of all duties and obligations imposed upon it hereby, the exercise by it of all powers granted to it hereunder, the carrying out of all covenants, agreements, and promises made by it hereunder, and liability of the Issuer for all warranties and other covenants herein shall be limited solely to the money and revenue received from the payments by the Borrower under the Loan Agreement, moneys attributable to the proceeds of Bonds, and income from the temporary investment thereof; and the Issuer shall not be required to effectuate any of such duties, obligations, powers, or covenants except from, and to the extent of, such moneys, revenues, proceeds, and payments. Whether or not therein expressly so provided, every provision of this Bond Indenture relating to the conduct or affecting the liability of the Issuer shall be subject to the provisions of this Section.
B. No Recourse Against Others . No recourse under or upon any obligation, covenant, or agreement contained in this Bond Indenture, or in any Bond, or for any claim based thereon or otherwise in respect thereof, shall be had against any incorporator, or against any past, present, or future director, officer, or employee, as such, of the Issuer, the Trustee, or any successor corporation, either directly or through the Issuer or the Trustee, whether by virtue of any constitution or statute or rule of law, or by the enforcement of any assessment, judgment, or penalty, or otherwise; it being expressly understood that this Bond Indenture and the Bonds are solely corporate obligations, and that no such personal liability whatever shall attach to, or is or shall be incurred by, the incorporators, directors, officers, or employees, as such, of the Issuer, the Trustee, or any successor corporation, or any of them, because of the creation of indebtedness hereby authorized, or under or by reason of the obligations, covenants, or agreements contained in this Bond Indenture or the Bonds or implied therefrom, and that any and all such personal liability either at common law or equity or by constitution or statute, of, and any and all such rights and claims against, every such incorporator, director, officer, or employee, as such, are hereby expressly waived and released as a condition of, and in consideration for, the execution of this Bond Indenture and the issuance of the Bonds.
SECTION 11.13. Credit Facility Providers and Bondholder Representative.
The Bondholder Representative for the Bonds of a subseries, if a Bondholder Agreement is in effect therefor, and otherwise the Credit Facility Provider, if a Credit Facility is in effect for the Bonds of any subseries and the Credit Facility Provider for such Bonds is not in default under the Credit Facility on which it is obligated, shall be deemed to be the owner of such Bonds for the purpose of all approvals, consents, waivers or institution of any action and the direction of all remedies, except as otherwise provided herein.
SECTION 11.14. Business Days.
When any action is provided for herein to be done on a day named or within a specified time period, and the day or the last day of the period falls on a day other than a Business Day, such action may be performed on the next ensuing Business Day with the same effect as though performed on the appointed day or within the specified period.
 
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SECTION 11.15. Governing Law.
This Bond Indenture and the Bonds are contracts made under the laws of the State of Texas and shall be governed by and construed in accordance with such laws applicable to contracts made and performed in said State.
SECTION 11.16. Execution in Several Counterparts.
This Bond Indenture may be executed in any number of counterparts and each of such counterparts shall for all purposes be deemed to be an original; and all such counterparts, or as many of them as the Issuer and the Trustee shall preserve undestroyed, shall together constitute but one and the same instrument.
SECTION 11.17. Consent to Loan Agreement; Exchange of Notes.
The Trustee is hereby authorized to, and does hereby, consent to execution and delivery by the Issuer and the Borrower of the amendment to the Loan Agreement to become effective simultaneously with this Bond Indenture.
On the effective date of this Bond Indenture, the Trustee shall exchange the “Note” (as defined in the Original Loan Agreement) held by it under the Original Bond Indenture for the Note (as defined in the Loan Agreement) issued to it by the Borrower on such effective date and, on behalf of the Borrower, shall cancel such “Note.”
SECTION 11.18. Effective Date and Effect.
This Bond Indenture shall become effective on August 19, 2014, provided that the Tender Agent shall have received the Purchase Price of all Bonds due on such date and (2) the Trustee shall have received written consents hereto from Bank of America, N.A. (as the Credit Facility Provider under the Original Bond Indenture) and an Opinion of Counsel to the effect that the Bonds issued pursuant to Section 3.01 are valid and enforceable obligations of the Issuer and interest on such Bonds is excludable from gross income of the owners thereof for federal income tax purposes, except with respect to any Bond for any period of time during which such Bond is held by a “substantial user” of any of the facilities financed with proceeds of the Bonds or by a “related person”, as such terms are defined in Section 147(a) of the Code. Promptly after this Bond Indenture has become effective, the Trustee shall cancel and release the letter of credit issued to it by Bank of America, N.A. under the Original Bond Indenture and return the same to the issuer thereof in accordance with Section 5.08F of the Original Bond Indenture.
Except as expressly modified by this Bond Indenture, the terms and provisions of the Original Bond Indenture shall remain in force and effect as restated hereby, all of which are expressly ratified and confirmed. No amendment to the Original Bond Indenture or the Bonds effected or authorized hereby is intended to or shall extinguish any indebtedness represented thereby.
*                    *                     *
 
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IN WITNESS WHEREOF, the Issuer has caused this Bond Indenture to be signed in its name by its duly authorized officer, and The Bank of New York Mellon Trust Company, National Association, in token of its acceptance of the trusts created hereunder, has caused this Bond Indenture to be signed in its corporate name by one of the officers thereunto duly authorized all as of the day and year first above written.

HARRIS COUNTY INDUSTRIAL	
DEVELOPMENT CORPORATION	
		
By	 	/s/ Authorized Representative	
	 	Authorized Representative	
[ Signature page to Amended and Restated Bond Indenture Series 2012 ]
 
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[ This page is intentionally left blank ]
[ Signature page to Amended and Restated Bond Indenture Series 2012 ]
 
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THE BANK OF NEW YORK MELLON TRUST	
COMPANY, NATIONAL ASSOCIATION , as Trustee	
		
By:	 	/s/ Authorized Representative	
	 	Authorized Representative	
[ Signature page to Amended and Restated Bond Indenture Series 2012 ]
 
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[ This page is intentionally left blank ]
[ Signature page to Amended and Restated Bond Indenture Series 2012 ]
 
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E XHIBIT A
T O
B OND I NDENTURE
(FORM OF BOND)
[ Insert legend from Section 2.20, if applicable ]
UNITED STATES OF AMERICA
STATE OF TEXAS
HARRIS COUNTY INDUSTRIAL DEVELOPMENT CORPORATION
MARINE TERMINAL REVENUE BOND
(HFOTCO LLC PROJECT)
SERIES 2012

BOND NUMBER	  		  		  	PRINCIPAL AMOUNT	
R-                     	  		  		  	$                     	

INTEREST RATE 1 :	  	DATED DATE 2 :	  	MATURITY DATE:	  	CUSIP:	
                                           	  	                                           	  	                                           	  	                                  	
REGISTERED OWNER:                                                                          
PRINCIPAL AMOUNT:                                          DOLLARS
INITIAL INTEREST MODE:                                                                              
FIRST DAY OF INITIAL INTEREST PERIOD IN INITIAL INTEREST MODE:                                                  
The Harris County Industrial Development Corporation, a public non-profit corporation organized and existing under and by virtue of the laws of the State of Texas (hereinafter referred to as the “ Issuer ”), acknowledges itself indebted and for value received hereby promises to pay, but only from the sources mentioned herein, to the Registered Owner named above or registered assigns, the Principal Amount stated above on the Maturity Date stated above, upon the presentation and surrender hereof at the Principal Corporate Trust Office of the Trustee hereinafter mentioned, and to pay, but only from such sources, interest on such Principal Amount from the Dated Date stated above, or the most recent Interest Payment Date to which interest hereon has been paid or duly provided for, at the Interest Rate stated [above] 3 [in the Bond Indenture referred to herein] 4 , until the Principal Amount is paid, payable on [May 1 and November 1 of each year] 3 [the days provided in such Bond Indenture] 4 , and calculated as provided in the Bond Indenture referred to herein, which interest shall be paid by the Trustee hereinafter mentioned by check mailed (except as herein provided) to the Registered Owner hereof, at the address of such Registered Owner as it appears on the registration books kept by the Trustee, as registrar of the Issuer, as of the Record Date. Payment of the principal and Redemption Price of this Bond will be

1  	Insert applicable rate per annum for Fixed Rate Bonds and “Variable” for all other Bonds.	
2  	Insert date of initial delivery of the Bonds under the Original Bond Indenture.	
3  	Insert for Fixed Rate Bonds.	
4  	Insert for Bonds other than Fixed Rate Bonds.	
 
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payable at the Principal Corporate Trust Office of the Trustee referred to herein. Registered Owners of at least $1,000,000 principal amount of Bonds (hereinafter defined) may receive the payment of interest by wire transfer at the wire transfer address specified by such Owner in a written request received by the Trustee. The principal and Redemption Price of and interest on this Bond are payable in any coin or currency of the United States of America which at the time of payment is legal tender for the payment of public and private debts. When Cede & Co. is the Holder of the Bonds, said principal or Redemption Price and interest payments shall be made to Cede & Co. by wire transfer in immediately available funds.
Definitions . Unless otherwise defined herein, all terms herein shall have the same meanings, respectively, as such terms are given in the Bond Indenture (as hereafter defined).
Authority . This Bond is one of a duly authorized series of Bonds of the Issuer designated its “Marine Terminal Revenue Bonds (HFOTCO LLC Project), Series 2012” (hereinafter referred to as the “ Bonds ”), issued by the Issuer in the aggregate principal amount of $100,000,000 under and pursuant to the Development Corporation Act, Chapter 501, Texas Local Government Code, as amended to the date hereof (herein referred to as the “ Act ”), and pursuant to the Amended and Restated Bond Indenture, dated as of August 19, 2014 (herein, as supplemented and amended from time to time in accordance with its terms, referred to as the “ Bond Indenture ”), between the Issuer and The Bank of New York Mellon Trust Company, National Association, as trustee (together with its successors in trust, herein referred to as the “ Trustee ”). The Bonds are issued for the purposes described in the Bond Indenture.
Subseries . As provided in the Bond Indenture, the Bonds may be divided into subseries. This Bond is one of the subseries, if any, specified in its title.
Limitation on Recourse . The Bonds are secured by a pledge and assignment to the Trustee of the Revenues and the security therefor and guarantees thereof and by the proceeds from the sale of the Bonds (until disbursed as provided by the Bond Indenture) and all funds and accounts authorized and established by the Bond Indenture (with the exception of the Rebate Fund and the Purchase Fund). This Bond is a limited obligation of the Issuer payable solely from the Revenues specified in the Bond Indenture, which consist of certain payments received or receivable by the Issuer from the Borrower under the Loan Agreement.
No recourse shall be had for the payment of the principal or Redemption Price of or interest on this Bond or for any claims based thereon or under the Bond Indenture against any member, officer, agent or employee of the Issuer or any person executing this Bond, all such liability, if any, being hereby expressly waived and released by every Registered Owner of this Bond by the acceptance hereof, as provided in the Bond Indenture.
NEITHER THE STATE OF TEXAS NOR ANY POLITICAL CORPORATION, SUBDIVISION, OR AGENCY OF THE STATE OF TEXAS, INCLUDING HARRIS COUNTY, TEXAS, SHALL BE OBLIGATED TO PAY THE PRINCIPAL OF OR THE INTEREST ON THE BONDS. NEITHER THE FAITH AND CREDIT NOR THE TAXING POWER OF THE STATE OF TEXAS, HARRIS COUNTY, TEXAS, OR ANY OTHER POLITICAL CORPORATION, SUBDIVISION, OR AGENCY OF THE STATE OF TEXAS IS PLEDGED TO THE PAYMENT OF PRINCIPAL OF OR INTEREST OR ANY REDEMPTION PREMIUM ON THE BONDS. THE ISSUER HAS NO TAXING POWER.
Bond Indenture Controlling . Reference is hereby made to the Bond Indenture for a description of the rights, limitation of rights, duties and immunities of the Issuer, the Trustee, and the Registered Owners of the Bonds. By the acceptance of this Bond, the Registered Owner hereof assents to all provisions of the Bond Indenture. Certified copies of the Bond Indenture are on file at the Principal Corporate Trust Office of the Trustee.
 
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Redemption and Purchase in Lieu of Redemption . The Bonds shall be subject to optional and mandatory redemption, as well as purchase in lieu of redemption, all as provided in the Bond Indenture.
Selection of Bonds to Be Redeemed . In the case of Bonds to be redeemed at the election or direction of the Borrower, the Borrower will select the subseries (if any), Mode, maturities, Interest Periods, interest rates, and principal amounts of the Bonds to be redeemed; if less than all Bonds of the same subseries (if any), maturity, Interest Period, and interest rate are to be redeemed, the Bonds of such subseries, maturity, Interest Period and interest rate to be redeemed will be selected by the Trustee, by lot, using such method of selection as the Trustee in its discretion shall consider appropriate and fair, except as otherwise provided in the Bond Indenture; provided that Liquidity Facility Bonds (if any) of such subseries are to be redeemed first.
Notice of Redemption . The Trustee is to give notice of the redemption of the Bonds in the name of the Issuer as provided in the Bond Indenture, but the failure of any Bondholder other than the Holder of this Bond to receive such notice will not affect the validity of the proceedings for the redemption of this Bond.
If, on any redemption date, moneys for the redemption of the Bonds of this subseries then to be redeemed, together with interest thereon to the redemption date, are held by the Trustee so as to be available for payment of the Redemption Price, then interest on such Bonds will cease to accrue from and after the redemption date and such Bonds will no longer be considered to be Outstanding under the Bond Indenture.
Optional and Mandatory Tender for Purchase . Bonds or portions thereof in the Daily Mode, Weekly Mode, or R- FLOATs Mode are required to be purchased at the option of the Registered Owner on the dates, by the Persons, at the price, from and to the extent of the funds, and on the other terms and conditions provided in the Bond Indenture. The Bond Indenture requires this Bond or a specified portion hereof to be tendered by the Registered Owner for purchase upon each Mandatory Purchase Date therefor described in the Bond Indenture. By accepting this Bond the Holder hereof agrees to all such provisions in the Bond Indenture.
Acceleration . In case an Event of Default as defined in Section 7.01 of the Bond Indenture shall occur, the principal of and interest on this Bond may become or be declared due and payable in the manner and with the effect provided in the Bond Indenture.
Defeasance . The Bond Indenture permits a discharge and satisfaction of the pledge of the Revenues or other moneys and securities pledged by the Bond Indenture upon payment to the Trustee of moneys or certain Investment Securities in an amount which, together with interest thereon, would be sufficient to provide moneys for the payment when due of the principal or Redemption Price of and interest due and to become due on said Bonds on and prior to the redemption or maturity date thereof, as the case may be.
Limitation on Suits . The Registered Owner of this Bond shall have no right to institute any suit, action or proceeding in equity or at law for the execution of any trust under the Bond Indenture, or for any other remedy under the Bond Indenture, except as otherwise expressly provided in the Bond Indenture.

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Legal Holidays . If the specified date for any payment hereon shall be a Saturday, Sunday, or legal holiday or the equivalent (other than a moratorium) on which banking institutions generally are authorized to close in the place of payment or in the city in which is located the Principal Corporate Trust Office of the Trustee or shall otherwise be a day other than a Business Day, then such payment may be made on the next succeeding day which is not one of the foregoing days without additional interest and with the same force and effect as if made on the specified date for such payment.
Amendments . The Bond Indenture contains provisions permitting the Issuer to adopt Supplemental Bond Indentures modifying or amending the Bond Indenture and the rights and obligations of the Issuer and the Holders of the Bonds thereunder, in some cases without the consent of the Bondholders and in some cases with the written consent of the Holders of a majority in principal amount of the Bonds Outstanding thereunder; provided, however , that no such modification or amendment shall permit a change in the terms of redemption or maturity of the principal of any Outstanding Bond or of any installment of interest thereon or a reduction in the principal amount or the Redemption Price thereof or in the rate of interest thereon without the consent of the Holders of such Bond, or shall reduce the percentages or otherwise affect the classes of Bonds the consent of the Holders of which is required to effect any such modification or amendment.
Transfer and Exchange . This Bond is a negotiable instrument as provided in the Act, subject, however , to the provisions for registration and transfer contained in the Bond Indenture and in this Bond. This Bond is transferable, as provided in the Bond Indenture, only upon the registration books kept by the Trustee, as registrar of the Issuer, at the request of the Registered Owner hereof in person or by his attorney duly authorized in writing, upon surrender hereof together with a written instrument of transfer satisfactory to the Trustee duly executed by such Registered Owner or his duly authorized attorney and upon the payment of such charges as provided in the Bond Indenture. Upon surrender for transfer of this Bond, the Issuer shall issue in the name of the transferee a new Bond or Bonds in accordance with the provisions of the Bond Indenture and this Bond of the same aggregate principal amount and the same subseries, Interest Period, interest rate and maturity.
The Issuer and the Trustee may deem and treat the Person in whose name this Bond is registered upon the books of the Issuer as the absolute owner hereof, whether this Bond shall be overdue or not, for the purpose of receiving payment of, or on account of, the principal and Redemption Price of and interest on this Bond and for all other purposes whatsoever, and all such payments so made to the Registered Owner hereof or upon his order shall be valid and effectual to satisfy and discharge the liability upon this Bond to the extent of the sum or sums paid, and neither the Issuer nor the Trustee shall be affected by any notice to the contrary.
The Bonds are issuable as fully registered Bonds in denominations specified in the Bond Indenture. Bonds may, at the option of the Holders thereof, be exchanged for an equal aggregate principal amount of Bonds of the same maturity, subseries (if any), Interest Period, and interest rate of any other authorized denominations, upon surrender thereof at the Principal Corporate Trust Office of the Trustee with a written instrument of transfer satisfactory to the Trustee, duly executed by the Registered Owner or his attorney duly authorized in writing.
For every exchange or transfer of Bonds the Issuer or the Trustee may make a charge sufficient to reimburse the Issuer or the Trustee for any tax, fee or other governmental charge required to be paid with respect to such exchange or transfer, which sum or sums shall be paid by the Person requesting such exchange or transfer, as a condition precedent to the exercise of the privilege of making such exchange or transfer. The cost of preparing each new Bond issued upon such exchange or transfer and any other expenses of the Issuer or the Trustee incurred in connection therewith shall be paid by the Person requesting such exchange or transfer.

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Due Authority . It is hereby certified and recited by the Issuer that all conditions, acts, and things required by the statutes of the State of Texas and the Bond Indenture to exist, to have happened and to have been performed precedent to or in the issuance of the Bonds and of this Bond in order to make the Bonds and this Bond the legal, valid and binding limited obligations of the Issuer, in accordance with their terms, exist, have happened and have been performed in regular and due form as required by law, and that the issuance of the Bonds is within every debt limit and other limit upon the Issuer prescribed by law or by the Bond Indenture for the Issuer.
Severability; Governing Law . In case any provision in this Bond or any application thereof shall be invalid, illegal, or unenforceable, the validity, legality, and enforceability of the remaining provisions and applications shall not in any way be affected or impaired thereby. This Bond shall be construed in accordance with and governed by the laws of the State of Texas and the federal law of the United States of America.
Unless a certificate of authentication hereon has been executed by the Trustee, by manual signature, this Bond shall not be entitled to any benefit under the Bond Indenture or be valid or obligatory for any purpose.
[ The remainder of this page is intentionally left blank ]
 
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IN WITNESS WHEREOF, as provided by the Act, the Issuer has caused this Bond to be duly executed.

	 		  	HARRIS COUNTY INDUSTRIAL	
	 		  	DEVELOPMENT CORPORATION	
				
Date:	 	 	  	By:	  	 	
	 		  		  	[Title]	

(SEAL)	 		
		
ATTEST:	 		
		
By:	 	 	
	 	[Title]	
 
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C ERTIFICATE OF A UTHENTICATION
This Bond is one of the Bonds described in the within mentioned Bond Indenture, a predecessor Bond for which has been approved by the Attorney General of Texas and registered by the Comptroller of Public Accounts of the State of Texas.

 	
	 	[ Name of Trustee ], as Trustee	
		
By:	 	 	
	 	Authorized Signature	 		
 
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A BBREVIATIONS
The following abbreviations, when used in the inscription on the face of the within Bond, shall be construed as though they were written out in full according to applicable laws or regulations:
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN – as joint tenants with right of survivorship and not as tenants in common
UNIF GIFT MIN ACT -                      Custodian                                   under Uniform Gift to Minors Act
                                                     (Cust)                                 (Minor)

                             (State)
Additional abbreviations may also be used though not in the above list.
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sell(s), assign(s) and transfer(s) unto

 

PLEASE INSERT SOCIAL SECURITY OR
OTHER IDENTIFYING NUMBER OF ASSIGNEE	

    	

(please print or typewrite name and address including postal zip code of assignee)

the within Bond and all rights thereunder, and hereby irrevocably constitutes and appoints                              Attorney                                                       to transfer the within Bond on the books kept for registration hereof, with full power of substitution in the premises.
Dated:                                                  

 
NOTICE: Signature(s) must be guaranteed by an “eligible guarantor institution” meeting the requirements of the Trustee which requirements will include membership or participation in STAMP or such other “signature guarantee program; as may be determined by the Trustee in addition to, or in substitution for, STAMP, all in accordance with the Securities Exchange Act of 1934, as amended.	  	 
NOTICE: The signature to this assignment must correspond with the name as written upon the face of the Bond in every particular, without alteration or enlargement or any change whatsoever	
 
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E XHIBIT B
T O
B OND I NDENTURE
INVESTMENT SECURITIES
“ Investment Securities” means any of the following securities:
(1) Governments and Agencies: obligations of the United States of America or its agencies and instrumentalities;
(2) Government Guaranteed Obligations: other obligations, the principal of and interest on which are unconditionally guaranteed or insured by, or backed by the full faith and credit of, the United States of America or any agency or instrumentality thereof;
(3) Municipals: obligations of states, agencies, counties, cities, and political subdivisions of any state rated as to investment quality by S&P not less than “AA-” and by Moody’s not less than “A1/P-1” or “Aa3” and having a remaining term of one year or less;
(4) Insured CDs: certificates of deposit issued by a state or national bank or savings bank domiciled in the State of Texas and the short-term debt of which is rated at least “A1/P-1” or “Aa3” by Moody’s, if such certificates of deposit are for a fixed dollar amount plus a fixed rate of interest, and are guaranteed or insured by the Federal Deposit Insurance Corporation or its successor, and are not rated by S&P with the suffix “r”;
(5) Collateralized Repos: fully collateralized agreements to buy, hold for a specified time, and sell back at a future date obligations described in Clauses (1)  through (3)  immediately above, if such agreement:
(a) has a defined termination date within one year after purchase for a fixed principal sum plus interest;
(b) is secured by obligations described in such Clause (1) ;
(c) requires the securities being purchased to be pledged to the Trustee, held in the name of the Trustee, and deposited at the time the investment is made with the Trustee or with a third party selected and approved by Borrower Order;
(d) is placed through a primary government securities dealer, as defined by the Federal Reserve, or a financial institution doing business in the State of Texas; and
(e) is rated not less than “A-1+” by S&P and not less than “A1/P-1” or “Aa3” by Moody’s, and such rating by S&P does not include the suffix “r”, or the Trustee has received written confirmation from each Rating Agency that the investment of funds under such agreement will not result in the assignment of a rating to the Bonds of any subseries that is less than either such level;
(6) Bankers’ Acceptances: bankers’ acceptances that:
(a) have a stated maturity within three months after the date of issuance;
 
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(b) will be, in accordance with their terms, liquidated in full at maturity for a fixed dollar amount plus interest;
(c) are eligible as collateral for borrowing from a Federal Reserve Bank; and
(d) are issued by a bank organized and existing under the laws of the United States of America or any state, the short-term obligations of which bank are rated not less than “A-1+” by S&P and not less than “P-1” by Moody’s, and such rating by S&P does not include the suffix “r”;
(7) Commercial Paper: commercial paper that matures in a fixed dollar amount within three months after the date of its issuance, is rated not less than “A-1+” by S&P and not less than “P-1” by Moody’s, and such rating by S&P does not have an “r” appended to such rating;
(8) Money Market Mutual Funds: money market mutual funds that:
(a) are registered with and regulated by the United States Securities and Exchange Commission;
(b) provide the Trustee or the Issuer with a prospectus and other information required by the Securities Exchange Act of 1934 or the Investment Company Act of 1940;
(c) have a dollar-weight average stated maturity of 90 days or fewer;
(d) include in their investment objectives the maintenance of a stable net asset value of $1 per share; and
(e) are continuously rated as to investment quality not less than “AAAm” or “AAAm-G” by S&P and “Aaa” by Moody’s;
(9) Investment Contracts: obligations of any Person either (1) the long-term senior unsecured debt or claims-paying ability or financial strength of which, or of any unconditional guarantor of full and timely payment of its obligations thereunder, is rated at least “AA-” by S&P and “Aa3” by Moody’s or (2) both (a) which has agreed to pledge collateral therefor and (b) as to which the Trustee has received written confirmation from each Rating Service that an investment of funds under such obligation will not result in the assignment of a long-term rating to the Bonds by such Rating Service that is less than the lower of “AA-,” in the case of S&P, or “Aa3,” in the case of Moody’s, or the rating then assigned by such Rating Service to the long-term senior unsecured debt of the highest rated Credit Facility Provider (if any); and
(10) Deposit Agreements : demand deposits, including interest bearing money market accounts, time deposits, trust funds, trust accounts, overnight bank deposits, interest-bearing deposits, and certificates of deposit or bankers acceptances of depository institutions, including the Trustee or any of its affiliates, rated in the AA long-term ratings category or higher by S&P or Moody’s or which are fully FDIC-insured;
excluding, however , (A) obligations whse payment represents the coupon payments on the outstanding principal balance of underlying mortgage-backed securities collateral and pays no principal; (B) obligations whose payment represents the principal stream of cash flow from underlying mortgage-backed securities collateral and bears no interest; (C) collateralized mortgage obligations that have a stated final maturity date of greater than 10 years; and (D) collateralized mortgage obligations the interest rate on which is determined by an index that adjusts opposite to the changes in a market index.
 
B-2

E XHIBIT C
T O
B OND I NDENTURE
FORM OF REQUISITION

[ Name and Address of Trustee ]
Re:         Harris County Industrial Development Corporation Marine Terminal Revenue Bonds (HFOTCO LLC Project) Series 2012
REQUISITION NO.
Ladies and Gentlemen:
HFOTCO LLC, as the Borrower under the Amended and Restated Bond Indenture, dated as of August 19, 2014 (the “ Bond Indenture ”), from the Issuer of the above referenced Bonds to you, as Trustee, hereby directs you to withdraw the sum of $             from the Costs of Issuance Fund and $             from the Project Fund established under the Bond Indenture and to disburse such amounts [ insert payment instructions ].
In connection with this direction, the undersigned officers of the Borrower state that:
1. Eligible Costs : The Borrower has incurred Costs of the Projects at least equal to the above amount, no such Costs are the basis for any other requisition by the Borrower which has previously been honored or is now pending under the Bond Indenture, and either (a) such Costs were paid by the Borrower on or after January 13, 2012, or have not yet been paid by the Borrower, or (b) such Costs were incurred subsequent to, and paid from one or more draws under, a borrowing by the Borrower for such purpose, and the disbursement requested hereby will be applied to repay such borrowing in the same amount, or (c) such Costs were architectural, engineering, survey, soil testing, and similar costs incurred prior to commencement of the acquisition, construction, or rehabilitation of the Projects (other than land acquisition, site preparation, and similar costs incident to commencement of construction), or (d) such Costs are costs of issuance of the Bonds.
2. Limited Costs of Issuance and Non-Qualifying Project Costs : The disbursement requested hereby, when added to all previous disbursements from the Project Fund, will not result in financing by the Bonds of (a) costs of issuance of the Bonds in an amount which exceeds 2% of the proceeds (i.e., issue price exclusive of accrued interest) of the Bonds or (b) costs of issuance of the Bonds and property other than “qualified project costs” for Hurricane Ike Disaster Area Bonds in an aggregate amount that exceeds 5% of the net proceeds (i.e., proceeds reduced by amounts in a reasonably required reserve or replacement fund) of the Bonds.
All capitalized terms herein have the meanings ascribed to such terms in the Bond Indenture.

	
Very truly yours,	
	
HFOTCO LLC	
	
By:                                                                  	
[ Name of Officer ]	
[ Title ]	
 
C-1

[ This page is intentionally left blank ]
 
C-2

Exhibit 4.4

 
CONTINUING COVENANT AGREEMENT
dated as of August 19, 2014,
between
HFOTCO LLC,
as Obligor
BUFFALO GULF COAST TERMINALS LLC,
as the Parent
BANK OF AMERICA, N.A.,
as Administrative Agent and Collateral Agent,
and
THE BONDHOLDERS FROM TIME TO TIME PARTY HERETO
relating to:
Harris County Industrial Development Corporation
Marine Terminal Revenue Bonds (HFOTCO LLC Project)
Series 2010 ($75,000,000)
Series 2011 ($50,000,000)
Series 2012 ($100,000,000)
Joint Lead Arrangers and Joint Bookrunners :
Bank of America, N.A.
SunTrust Bank
Compass Bank

 

TABLE OF CONTENTS

 	 	 	  	Page	 	
ARTICLE I	 	DEFINITIONS AND ACCOUNTING TERMS	  	 	1	 	
			
Section 1.01.	 	Defined Terms	  	 	1	 	
Section 1.02.	 	Other Interpretive Provisions	  	 	43	 	
Section 1.03.	 	Times of Day	  	 	44	 	
			
ARTICLE II	 	PURCHASE OF BONDS AND THE OBLIGOR’S OBLIGATIONS	  	 	44	 	
			
Section 2.01.	 	Purchase of Bonds	  	 	44	 	
Section 2.02.	 	Payment Obligations	  	 	45	 	
Section 2.03.	 	Default Rate	  	 	45	 	
Section 2.04.	 	Determination of Taxability	  	 	45	 	
Section 2.05.	 	Maximum Interest Rate	  	 	46	 	
Section 2.06.	 	Obligations Absolute	  	 	46	 	
Section 2.07.	 	No Bond Rating; CUSIP	  	 	47	 	
Section 2.08.	 	Bondholder Consent to Subsequent Indexed Mode	  	 	47	 	
Section 2.09.	 	Optional Redemptions and Purchases	  	 	48	 	
Section 2.10.	 	Mandatory Conversions and Redemptions	  	 	48	 	
Section 2.11.	 	Fees	  	 	49	 	
Section 2.12.	 	Sharing of Payments by Bondholders	  	 	49	 	
Section 2.13.	 	Taxes	  	 	50	 	
Section 2.14.	 	Increased Costs	  	 	54	 	
Section 2.15.	 	LIBOR Breakage Fee	  	 	56	 	
Section 2.16.	 	Survival	  	 	56	 	
			
ARTICLE III	 	REPRESENTATIONS AND WARRANTIES	  	 	56	 	
			
Section 3.01.	 	Organization; Power and Authority	  	 	56	 	
Section 3.02.	 	Ownership of Equity Interests; Subsidiaries	  	 	56	 	
Section 3.03.	 	Authorization; No Conflict	  	 	57	 	
Section 3.04.	 	Enforceability	  	 	57	 	
Section 3.05.	 	Governmental Approvals	  	 	57	 	
Section 3.06.	 	Financial Statements	  	 	58	 	
Section 3.07.	 	No Material Adverse Effect	  	 	58	 	
Section 3.08.	 	Title to Properties; Possession Under Leases	  	 	58	 	
Section 3.09.	 	Litigation; Compliance with Laws	  	 	59	 	
Section 3.10.	 	Federal Reserve Regulations	  	 	60	 	
 
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TABLE OF CONTENTS
(CONTINUED)

 	 	 	  	Page	 	
Section 3.11.	 	Investment Company Act	  	 	60	 	
Section 3.12.	 	Taxes	  	 	60	 	
Section 3.13.	 	Disclosure and Projections	  	 	61	 	
Section 3.14.	 	Employee Matters	  	 	61	 	
Section 3.15.	 	Environmental Matters; Hazardous Materials	  	 	63	 	
Section 3.16.	 	Solvency	  	 	63	 	
Section 3.17.	 	Licenses; Permits	  	 	64	 	
Section 3.18.	 	No Default	  	 	64	 	
Section 3.19.	 	Collateral Matters	  	 	64	 	
Section 3.20.	 	Insurance	  	 	65	 	
Section 3.21.	 	Pari Passu Obligations	  	 	65	 	
Section 3.22.	 	Use of Proceeds	  	 	65	 	
Section 3.23.	 	Tax-Exempt Status	  	 	65	 	
Section 3.24.	 	Usury	  	 	65	 	
Section 3.25.	 	Trustee	  	 	66	 	
			
ARTICLE IV	 	CONDITIONS PRECEDENT TO PURCHASE OF BONDS; INVESTOR REPRESENTATIONS	  	 	66	 	
			
Section 4.01.	 	Closing Date	  	 	66	 	
Section 4.02.	 	Investment Representations	  	 	70	 	
			
ARTICLE V	 	AFFIRMATIVE COVENANTS	  	 	71	 	
			
Section 5.01.	 	Use of Proceeds	  	 	71	 	
Section 5.02.	 	Maintenance of Properties	  	 	71	 	
Section 5.03.	 	Notices	  	 	71	 	
Section 5.04.	 	Financial Statements and Other Information	  	 	74	 	
Section 5.05.	 	Maintenance of Existence	  	 	76	 	
Section 5.06.	 	Maintenance of Records; Access to Properties and Inspections	  	 	76	 	
Section 5.07.	 	Compliance with Laws; Permits	  	 	76	 	
Section 5.08.	 	Financial Covenant Calculations	  	 	77	 	
Section 5.09.	 	Operation and Maintenance of Terminal Storage Facility; Leases of Real Property	  	 	78	 	
Section 5.10.	 	Additional Subsidiaries	  	 	78	 	
 
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TABLE OF CONTENTS
(CONTINUED)

 	  	 	  	Page	 	
Section 5.11.	  	Information Regarding Collateral; Deposit and Securities Accounts	  	 	79	 	
Section 5.12.	  	Further Assurances	  	 	79	 	
Section 5.13.	  	Maintenance of Insurance	  	 	80	 	
Section 5.14.	  	Taxes, Assessments and Utility Charges	  	 	80	 	
Section 5.15.	  	Interest Rate Protection	  	 	81	 	
Section 5.16.	  	[Reserved]	  	 	81	 	
Section 5.17.	  	Designation of Subsidiaries	  	 	81	 	
Section 5.18.	  	Certain Post-Closing Collateral Obligations	  	 	82	 	
Section 5.19.	  	Treasury Management	  	 	83	 	
			
ARTICLE VI	  	NEGATIVE COVENANTS	  	 	83	 	
			
Section 6.01.	  	Liens	  	 	83	 	
Section 6.02.	  	Indebtedness	  	 	83	 	
Section 6.03.	  	Restricted Payments; Certain Payments of Indebtedness	  	 	83	 	
Section 6.04.	  	Sale of Assets	  	 	84	 	
Section 6.05.	  	Business Activities	  	 	86	 	
Section 6.06.	  	No Liquidation, Merger or Consolidation	  	 	86	 	
Section 6.07.	  	Investments	  	 	87	 	
Section 6.08.	  	Transactions with Affiliates	  	 	89	 	
Section 6.09.	  	Amendments to Material Agreements	  	 	89	 	
Section 6.10.	  	Fiscal Year	  	 	89	 	
Section 6.11.	  	Hazardous Materials	  	 	89	 	
Section 6.12.	  	Hedge Agreements	  	 	89	 	
Section 6.13.	  	Restrictive Agreements	  	 	90	 	
Section 6.14.	  	Financial Covenants	  	 	91	 	
Section 6.15.	  	Sanctions Regulations	  	 	91	 	
Section 6.16.	  	No Impairment	  	 	92	 	
Section 6.17.	  	Trustee	  	 	92	 	
Section 6.18.	  	Bond Documents	  	 	92	 	
Section 6.19.	  	Maintenance of Tax-Exempt Status of Bonds	  	 	92	 	
 
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TABLE OF CONTENTS
(CONTINUED)

 	  	 	  	Page	 	
			
ARTICLE VII	  	EVENTS OF DEFAULT	  	 	92	 	
			
Section 7.01.	  	Events of Default	  	 	92	 	
Section 7.02.	  	Consequences of an Event of Default	  	 	95	 	
Section 7.03.	  	Remedies Waterfall	  	 	96	 	
Section 7.04.	  	Solely for the Benefit of Bondholders and Administrative Agent	  	 	96	 	
Section 7.05.	  	Discontinuance of Proceedings	  	 	97	 	
Section 7.06.	  	Specified Equity Contributions	  	 	97	 	
			
ARTICLE VIII	  	ADMINISTRATIVE AGENT	  	 	97	 	
			
Section 8.01.	  	Appointment and Authority	  	 	97	 	
Section 8.02.	  	Rights as a Bondholder	  	 	98	 	
Section 8.03.	  	Exculpatory Provisions	  	 	98	 	
Section 8.04.	  	Reliance by the Administrative Agent	  	 	99	 	
Section 8.05.	  	Delegation of Duties	  	 	100	 	
Section 8.06.	  	Resignation of Administrative Agent	  	 	100	 	
Section 8.07.	  	Non-Reliance on Administrative Agent and Other Bondholders	  	 	101	 	
Section 8.08.	  	No Other Duties, Etc; No Partnership	  	 	101	 	
Section 8.09.	  	Administrative Agent May File Proofs of Claim; Credit Bidding	  	 	101	 	
Section 8.10.	  	Collateral and Guaranty Matters	  	 	103	 	
Section 8.11.	  	Intercreditor Agreement	  	 	104	 	
			
ARTICLE IX	  	MISCELLANEOUS	  	 	104	 	
			
Section 9.01.	  	Amendments, Etc.	  	 	104	 	
Section 9.02.	  	Notices; Effectiveness; Electronic Communication	  	 	106	 	
Section 9.03.	  	No Waiver; Cumulative Remedies	  	 	108	 	
Section 9.04.	  	Costs and Expenses; Damage Waiver	  	 	109	 	
Section 9.05.	  	Payments Set Aside	  	 	112	 	
Section 9.06.	  	Successors and Assigns	  	 	112	 	
Section 9.07.	  	Treatment of Certain Information; Confidentiality	  	 	116	 	
Section 9.08.	  	Right of Setoff	  	 	117	 	
Section 9.09.	  	Counterparts; Integration; Effectiveness	  	 	117	 	
Section 9.10.	  	Survival of Representations and Warranties	  	 	118	 	
Section 9.11.	  	Severability	  	 	118	 	
 
-iv-

TABLE OF CONTENTS
(CONTINUED)

 	 	 	  	Page	 	
Section 9.12.	 	Governing Law; Jurisdiction; Etc	  	 	118	 	
Section 9.13.	 	Waiver of Jury Trial	  	 	119	 	
Section 9.14.	 	No Advisory or Fiduciary Relationship	  	 	119	 	
Section 9.15.	 	Electronic Execution of Certain Documents	  	 	120	 	
Section 9.16.	 	USA Patriot Act	  	 	121	 	
Section 9.17.	 	Entire Agreement	  	 	121	 	
Section 9.18.	 	Acknowledgement and Appointment as the Calculation Agent	  	 	121	 	
Section 9.19.	 	Interest Rate Limitation	  	 	121	 	
 
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TABLE OF CONTENTS
(CONTINUED)
					
EXHIBITS/SCHEDULES	
			
Exhibit A	  	–	  	Form of Administrative Questionnaire	
Exhibit B	  	–	  	Form of Assignment and Assumption	
Exhibit C	  	–	  	Form of Compliance Certificate	
Exhibit D-1	  	–	  	Form of Closing Date Certificate	
Exhibit D-2	  	–	  	Form of Solvency Certificate	
Exhibit E	  	–	  	Form of Insurance Broker’s Certificate	
Exhibit F	  	–	  	Investor Letter	
Exhibit G	  	–	  	Form of Second Lien Intercreditor Agreement	
Exhibit H-1	  	–	  	Form of U.S. Tax Compliance Certificate	
Exhibit H-2	  	–	  	Form of U.S. Tax Compliance Certificate	
Exhibit H-3	  	–	  	Form of U.S. Tax Compliance Certificate	
Exhibit H-4	  	–	  	Form of U.S. Tax Compliance Certificate	
			
Schedule I	  	–	  	Certain Addresses For Notices	
Schedule II	  	–	  	Purchaser	
Schedule 1.01	  	–	  	Storage Contracts	
Schedule 3.02	  	–	  	Corporate Structure	
Schedule 3.05	  	–	  	Governmental Consents	
Schedule 3.08(b)	  	–	  	Owned Real Property	
Schedule 3.08(c)	  	–	  	Leased Real Property	
Schedule 3.14	  	–	  	ERISA Matters	
Schedule 6.01	  	–	  	Liens	
Schedule 6.02	  	–	  	Indebtedness	
Schedule 6.07	  	–	  	Investments	
Schedule 6.13	  	–	  	Restrictive Agreements	
 
-vi-

CONTINUING COVENANT AGREEMENT
This CONTINUING COVENANT AGREEMENT dated as of August 19, 2014 (as amended, modified or restated from time to time, this “ Agreement ”), between HFOTCO LLC, a Texas limited liability company (the “ Obligor ”), BUFFALO GULF COAST TERMINALS LLC, a Delaware limited liability company (the “ Parent ”), Bank of America, N.A., a national banking association, as Administrative Agent and Collateral Agent, and the Bondholders (as defined herein) from time to time party hereto.
RECITALS
WHEREAS, the Parent is the direct owner of 100% of the Equity Interests in the Obligor;
WHEREAS, the Obligor is the direct 100% owner of an oil terminal storage facility located on the Houston Ship Channel near Houston, Texas, with an aggregate capacity as of the Closing Date of approximately 16.1 million barrels of residual and crude oil storage capacity (the “ Terminal Storage Facility ”);
WHEREAS, the Bonds (as defined herein) have been issued and are outstanding pursuant to separate Indentures (as defined herein) with respect to each series of the Bonds as further described herein, between the Issuer (as defined herein) and the Trustee (as defined herein); and
WHEREAS, the Purchasers have agreed to purchase the Bonds in connection with the conversion of the interest rate mode on all of the Bonds from the Weekly Mode to the LIBOR Term Indexed Mode under the Indentures, and as a condition to such purchase, the parties have agreed to enter into this Agreement; and
WHEREAS, the Bondholders and the Obligor have agreed that Bank of America, N.A. will serve as Administrative Agent for the Bondholders pursuant to the terms of this Agreement;
NOW, THEREFORE, to induce the Purchasers to purchase the Bonds, and for other valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound hereby, the Obligor, the Administrative Agent, the Collateral Agent and the Bondholders hereby agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
Section 1.01. Defined Terms . In addition to the terms defined in the recitals and elsewhere in this Agreement, (i) terms used herein that are defined in the Indentures and that are not defined herein shall have the meanings herein as therein defined and (ii) the following terms shall have the meanings set forth below:
“ Acceleration Rescission Date ” shall have the meaning assigned to such term in Section 7.02(b) .
“ Acquisition ” means the purchase or other acquisition (in one transaction or a series of transactions, including pursuant to any merger or consolidation) of all or substantially all the issued and outstanding Equity Interests in, or all or substantially all the assets of (or all or substantially all the assets constituting a business unit, division, product line or line of business of), any Person.

“ Adjusted EBITDA ” means, for any period, EBITDA for such period, plus (i) the Crude Topping Unit EBITDA Adjustment, less (ii) the Interest Expense for such period in respect of the Bonds.
“ Administrative Agent ” means Bank of America, in its capacity as Administrative Agent for the Purchasers under the Bond Documents, and any successors or assigns in such capacity hereunder.
“ Administrative Agent’s Office ” means the Administrative Agent’s address as set forth on Schedule I or such other address or account as the Administrative Agent may from time to time notify to the Obligor and the Bondholders.
“ Administrative Questionnaire ” means an Administrative Questionnaire in substantially the form of Exhibit A or any other form approved by the Administrative Agent.
“ Affiliate ” means, when used with respect to a specified Person, another Person that directly, or indirectly through one or more intermediaries, Controls or is Controlled by or is under common Control with the Person specified.
“ Agency Fee Letter ” means the letter agreement, dated July 28, 2014, between the Administrative Agent, the Collateral Agent and the Obligor.
“ Agents ” means each of the Administrative Agent and the Collateral Agent.
“ Aggregate Cap ” means, with respect to any period of four consecutive Fiscal Quarters of the Parent, an amount equal to 20% of the EBITDA for such period, calculated prior to giving effect to any Specified EBITDA Adjustment for such period. For the avoidance of doubt, the Aggregate Cap acts to limit the inclusion of all Specified EBITDA Adjustments in any period of four consecutive Fiscal Quarters of the Parent, in the aggregate.
“ Agreement ” has the meaning set forth in the introductory paragraph hereof.
“ Anti-Money Laundering Laws ” shall have the meaning assigned to such term in Section 3.09(b) .
“ Applicable Percentage ” means, with respect to any Bondholder at any time, the percentage (carried out to the ninth decimal place) of the Total Exposure represented by the Bonds held by such Bondholder at such time. The Applicable Percentage of each Bondholder is set forth opposite the name of such Bondholder on Schedule II or in the Assignment and Assumption pursuant to which such Bondholder becomes a party hereto.
 
-2-

“ Applicable Spread ” means, for any day, a rate per annum that is a component of the LIBOR Term Indexed Rate, based upon the Super Senior Leverage Ratio as specified in the table below.

SUPER SENIOR
LEVERAGE RATIO	  	APPLICABLE
SPREAD	
<1.75:1.00	  	1.25%	
³ 1.75:1.00 <2.75:1.00	  	1.40%	
³ 2.75:1.00	  	1.65%	
Any increase or decrease in the Applicable Spread resulting from a change in the Super Senior Leverage Ratio shall become effective as of the first Business Day immediately following the date a Compliance Certificate is delivered pursuant to Section 5.08 ; provided , however , that if a Compliance Certificate is not delivered when due in accordance with such Section, then, upon the request of the Required Bondholders, an Applicable Spread of 1.65% shall apply, in each case as of the first Business Day after the date on which such Compliance Certificate was required to have been delivered and in each case shall remain in effect until the first Business Day following the date on which such Compliance Certificate is delivered. In addition, at all times while the Default Rate is in effect, an Applicable Spread of 1.65% shall apply.
Notwithstanding anything to the contrary contained in this definition, (a) the determination of the Applicable Spread for any period shall be subject to the provisions of this paragraph and (b) the initial Applicable Spread shall be 1.40% until the first Business Day immediately following the date a Compliance Certificate is delivered pursuant to Section 5.08 for the Fiscal Quarter ending September 30, 2014 to the Administrative Agent. Any adjustment in the Applicable Spread shall be applicable to all Bonds. If, as a result of any restatement of or other adjustment to the financial statements of the Obligor and its Subsidiaries or for any other reason, the Obligor, the Administrative Agent or the Bondholders determine that (i) the Super Senior Leverage Ratio as calculated by the Obligor as of any applicable date was inaccurate and (ii) a proper calculation of the Super Senior Leverage Ratio would have resulted in higher pricing for such period, the Obligor shall immediately and retroactively be obligated to pay to the Administrative Agent for the account of the Bondholders promptly on demand by the Administrative Agent (or, after the occurrence of an actual or deemed entry of an order for relief with respect to the Obligor under the U.S. Bankruptcy Code, automatically and without further action by the Administrative Agent or any Bondholder), an amount equal to the excess of the amount of interest and fees that should have been paid for such period over the amount of interest and fees actually paid for such period. This paragraph shall not limit the rights of the Administrative Agent or any Bondholder, as the case may be, under any provision of this Agreement to payment of any Obligations hereunder at the Default Rate or under Article IX . The Obligor’s obligations under this paragraph shall survive the repayment of all other Obligations hereunder. The Administrative Agent shall notify the Calculation Agent and the Trustee of any change in the Applicable Spread arising from the provisions set forth in this definition.
 
-3-

“ Applicable Total Adjusted Net Leverage Ratio ” means:
(a) with respect to any Fiscal Quarter ending on or prior to September 30, 2016, 8.50 to 1.00; and
(b) with respect to any such Fiscal Quarter ending on or after December 31, 2016, 7.50 to 1.00.
“ Arranger Fee Letter ” means the letter agreement, dated July 28, 2014, between the Arrangers and the Obligor.
“ Arrangers ” means Bank of America, N.A., SunTrust Bank and Compass Bank, in their capacities as joint lead arrangers and joint bookrunners.
“ Asset Sale ” means any Disposition of property or series of related Dispositions of property made in reliance on clause (n)  of Section 6.04 .
“ Assignment and Assumption ” means an assignment and assumption entered into by a Purchaser and the applicable assignee, and accepted by the Administrative Agent, in substantially the form of Exhibit B or any other form (including an electronic documentation form by use of an electronic platform) approved by the Administrative Agent.
“ Authorized Representative ” means, with respect to any Indebtedness, the administrative agent, collateral agent, trustee and/or any similar representative (in each case, as determined by the Collateral Agent and the Administrative Agent) acting on behalf of the holders of such Indebtedness.
“ Available Amount ” means, at any time, an amount equal to (a) the sum of (i) $75,000,000 and (ii) an amount equal to (A) the Available Equity Amount, minus (B) the aggregate amount of Investments made pursuant to Section 6.07(m) subsequent to the Closing Date as of such time, minus (b) the aggregate amount of all Available Amount Expenditures subsequent to the Closing Date as of such time.
“ Available Amount Expenditures ” means (a) Restricted Payments made pursuant to Section 6.03(a)(iii) , (b) payments of or in respect of Indebtedness pursuant to Section 6.03(b)(v) and (c) Investments made pursuant to Section 6.07(n) .
“ Available Equity Amount ” means, at any time, the aggregate amount received by the Parent and contributed to the Obligor subsequent to the Closing Date constituting either (a) cash equity contributions (in the form of common equity) made to the Parent by any Person other than the Obligor or any other Restricted Subsidiary or (b) the Net Issuance Proceeds from any sale or issuance of common Equity Interests in the Parent (in the case of each of clauses (a)  and (b) , other than Specified Equity Contributions).
“ Bank of America ” means Bank of America and its successors.
“ Base Case Projections ” means the projections of the Parent’s and the Obligor’s operating results (over a period ending no sooner than December 31, 2018) delivered to the Administrative Agent on the Closing Date pursuant to Section 4.01(k) .
 
-4-

“ Board ” means the Board of Governors of the Federal Reserve System of the United States.
“ Bond Counsel ” means Norton Rose Fulbright, or any other firm of attorneys nationally recognized on the subject of tax-exempt municipal finance selected by the Obligor.
“ Bond Documents ” means this Agreement, the Indentures, the Loan Agreements, the Bonds, the Notes, the Guaranty Agreement, the Security Documents, and any other bond, loan or security agreements or letter agreement or similar document, entered into by a Bondholder Party or any Secured Party, on the one hand, and the Obligor or one or more Loan Parties, on the other hand, in connection with the transactions expressly contemplated by this Agreement. Notwithstanding the foregoing, the Commitment Letter, Hedge Agreements and agreements for Treasury Services shall not be Bond Documents.
“ Bond Interest Rate Hedge Agreement ” means any interest rate swap, cap, collar or other interest rate hedge agreement entered into between an Interest Hedge Bondholder and the Obligor for the purpose of hedging the interest payable by the Obligor under the Loan Agreements.
“ Bondholder ” means a Purchaser and each Purchaser Transferee or Non-Purchaser Transferee pursuant to Section 9.06 hereof so long as such Purchaser Transferee or Non-Purchaser Transferee is an owner of Bonds, or, with respect to Sections 2.04 , 2.12 , 2.13 , 2.14 , 2.15 , 4.02 , 9.04 and 9.05 hereof, was a Bondholder during the relevant period of time.
“ Bondholder Parties ” means the Bondholders, the Agents and the Arrangers.
“ Bonds ” means collectively, the Series 2010 Bonds, the Series 2011 Bonds and the Series 2012 Bonds.
“ Business Day ” has the meaning given to such term in the Indenture.
“ Calculation Agent ” means Bank of America, N.A, in its capacity as Calculation Agent for the Bondholders under the Bond Documents, and any successors or assigns in such capacity.
“ Capital Lease Obligations ” of any Person means the obligations of such Person to pay rent or other amounts under any lease of (or other arrangement conveying the right to use) real or personal property, or a combination thereof, which obligations are required to be classified and accounted for as capital leases on a balance sheet of such Person under GAAP and, for purposes hereof, the amount of such obligations at any time shall be the capitalized amount thereof at such time determined in accordance with GAAP. For the avoidance of doubt, obligations of any Group Member under any lease of Real Property from the Port of Houston shall not be treated as Capital Lease Obligations (regardless of any change after the Closing Date in the treatment of leases under GAAP).
“ CFC ” means (a) each Person that is a “controlled foreign corporation” for purposes of the Code, (b) each Subsidiary of any Person described in clause (a)  and (c) each Person substantially all of the assets of which consist of Equity Interests in and, if applicable, Indebtedness of one or more Persons described in clause (a) .
 
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“ Change in Law ” means the occurrence, after the Closing Date, of any of the following: (a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any change in any law, rule, regulation or treaty or in the administration, interpretation, implementation or application thereof by any Governmental Authority or (c) the making or issuance of any request, rule, guideline or directive (whether or not having the force of law) by any Governmental Authority; provided that notwithstanding anything herein to the contrary, (i) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (ii) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a “ Change in Law ”, regardless of the date enacted, adopted or issued.
“ Change of Control ” means (a) any sale, assignment, transfer or other Disposition as a result of which (i) the Sponsor ceases to, directly or indirectly, beneficially own more than 50% on a fully diluted basis of the voting Equity Interests in the Parent or (ii) the Parent ceases to directly and beneficially own 100% on a fully diluted basis of the economic and voting interests in the Equity Interests in the Obligor, or (b) the occurrence of a “Change of Control” as defined in the HFOTCO Credit Documents or any “change in control” (or similar event, however denominated) with respect to the Parent or the Obligor under and as defined in any indenture or other agreement or instrument evidencing, governing the rights of the holders of or otherwise relating to any Material Indebtedness of the Parent, the Obligor or any other Subsidiary.
“ Charges ” has the meaning set forth in Section 9.19 hereof.
“ Class ” shall have the meaning assigned to such term in the HFOTCO Credit Agreement.
“ Closing Date ” the date on which each of the conditions set forth in Section 4.01 shall have been satisfied or waived in accordance with the terms hereof, which date is August 19, 2014.
“ Closing Tax Letter ” means the HFOTCO LLC Tax Letter of Representation for Hurricane Ike Disaster Area Bonds dated August 19, 2014.
“ Code ” means the Internal Revenue Code of 1986, as amended from time to time.
“ Collateral ” means all property which is subject or is intended to become subject to the security interests or Liens granted pursuant to any of the Security Documents. For the avoidance of doubt, the Excluded Property shall not constitute Collateral.
“ Collateral Agent ” means Bank of America in its capacity as collateral agent under any of the Bond Documents, or any successor collateral agent.
“ Collateral and Guarantee Requirement ” means, at any time, the requirement that:
(a) the Collateral Agent shall have received from the Parent, the Obligor and each other Designated Subsidiary either (i) counterparts of the Guaranty Agreement and the Security Agreement duly executed and delivered on behalf of such Person or (ii) in
 
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the case of any Person that becomes a Designated Subsidiary after the Closing Date, supplements to the Guaranty Agreement and the Security Agreement, in the forms specified therein, duly executed and delivered on behalf of such Person, together with documents and opinions of the type referred to in Sections 4.01(a) and 4.01(d) with respect to such Designated Subsidiary;
(b) all Equity Interests in any Restricted Subsidiary owned by or on behalf of any Loan Party shall have been pledged pursuant to the Security Agreement and, in the case of Equity Interests in any Foreign Subsidiary that is a Restricted Subsidiary and a Material Subsidiary, a Foreign Pledge Agreement ( provided that the Loan Parties shall not be required to pledge (i) more than 65% of the outstanding voting Equity Interests in any CFC owned directly by a Loan Party or (ii) any Equity Interests in a CFC that are not owned directly by any Loan Party), and the Collateral Agent shall, to the extent required by the Security Agreement, have received certificates or other instruments representing all such Equity Interests, together with undated stock powers or other instruments of transfer with respect thereto endorsed in blank;
(c) (i) all Indebtedness of the Parent, the Obligor and each other Subsidiary and (ii) all Indebtedness of any other Person in a principal amount of $1,000,000 or more that, in each case, is owing to any Loan Party shall be evidenced by a promissory note and shall have been pledged pursuant to the Security Agreement, and the Collateral Agent shall have received all such promissory notes, together with undated instruments of transfer with respect thereto endorsed in blank;
(d) all documents and instruments, including Uniform Commercial Code financing statements, required by applicable law or reasonably requested by the Administrative Agent to be filed, registered or recorded to create the Liens intended to be created by the Security Documents and perfect such Liens to the extent required by, and with the priority required by, the Security Documents, shall have been filed, registered or recorded or delivered to the Collateral Agent for filing, registration or recording;
(e) the Collateral Agent shall have received (i) counterparts of a Mortgage with respect to each Mortgaged Property duly executed and delivered by the record owner or lessee of such Mortgaged Property, (ii) a policy or policies of title insurance in an amount as shall be reasonably specified by the Collateral Agent issued by a nationally recognized title insurance company insuring the Lien of each such Mortgage as a valid and enforceable first Lien on the Mortgaged Property described therein, free of any other Liens except as permitted under Section 6.01 , together with such endorsements, coinsurance and reinsurance as the Collateral Agent may reasonably request, consistent with applicable Governmental Rules, (iii) if any owned (but not leased) Mortgaged Property is located in an area determined by the Federal Emergency Management Agency to have special flood hazards, evidence of such flood insurance as may be required under applicable law, including Regulation H of the Board (“ Regulation H ”), and (iv) such surveys, abstracts, appraisals, legal opinions, consents, estoppels, subordination, non-disturbance and attornment agreements and other documents as the Collateral Agent may reasonably request with respect to any such Mortgage or Mortgaged Property (it being understood that (A) any survey described in clause (iv)  above may take the form of an
 
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orthophotographic aerial map or a similar map of the related Mortgaged Property ( provided that such map is in a form sufficient to permit a nationally recognized title insurance company to issue a policy or policies of title insurance with respect to the Lien on such Mortgaged Property in compliance with the requirements of clause (ii)  above), (B) to the extent that any consent, estoppel, subordination, non-disturbance and attornment agreement or other document reasonably requested by the Collateral Agent pursuant to clause (iv)  above requires the consent or approval of any Person that is not an Affiliate of the Parent or any Subsidiary and that is not contractually obligated to execute, deliver or otherwise provide the same, then the requirement of such clause (iv)  to obtain such consent, estoppel, subordination, non-disturbance and attornment agreement or other document shall be deemed to have been satisfied so long as the Loan Parties shall have used commercially reasonable efforts to obtain the same from such Person);
(f) the Collateral Agent shall have received a counterpart, duly executed and delivered by the applicable Loan Party and the applicable depositary bank or securities intermediary, as the case may be, of a Control Agreement with respect to (i) each deposit account maintained by any Loan Party with any depositary bank (other than any Excluded Deposit Account) and (ii) each securities account maintained by any Loan Party with any securities intermediary (other than any Excluded Securities Account); and
(g) each Loan Party shall have obtained all landlord, warehouseman, agent, bailee and processor acknowledgments required to be obtained by it pursuant to the Security Agreement and all other consents and approvals required to be obtained by it in connection with the execution and delivery of all Security Documents to which it is a party, the performance of its obligations thereunder and the granting by it of the Liens thereunder.
Notwithstanding the foregoing, the foregoing definition shall not require the creation or perfection of pledges of or security interests in, or the obtaining of title insurance, legal opinions or other deliverables with respect to, any Excluded Property. In addition, the foregoing definition shall not require the creation or perfection of pledges of or security interests in, or the obtaining of title insurance, legal opinions or other deliverables with respect to particular assets of the Loan Parties, or the provision of Guarantees by any Subsidiary, if, and for so long as the Collateral Agent and the Administrative Agent, in consultation with the Parent and the Obligor, determine that the cost of creating or perfecting such pledges or security interests in such assets, or obtaining such title insurance, legal opinions or other deliverables in respect of such assets, or providing such Guarantees (taking into account any adverse tax consequences to the Obligor and its Affiliates (including the imposition of withholding or other material taxes)), shall be excessive in view of the benefits to be obtained by the Bondholders therefrom. The Collateral Agent and the Administrative Agent may, without the consent of any Bondholder, grant extensions of time for the creation and perfection of security interests in or the obtaining of title insurance, legal opinions or other deliverables with respect to particular assets or the provision of any Guarantee by any Subsidiary (including extensions beyond the Closing Date or in connection with assets acquired, or Subsidiaries formed or acquired, after the Closing Date) where the Collateral Agent and the Administrative Agent determine that such action cannot be accomplished without undue effort or expense by the time or times at which it would otherwise be required to be accomplished by this Agreement or the Security Documents.
 
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“ Commitment Letter ” means the Commitment Letter dated as of July 28, 2014 among the Obligor, the Administrative Agent, the Arrangers and the Purchasers.
“ Compliance Certificate ” means a certificate of the Parent and the Obligor executed and delivered by a Responsible Officer of the Parent and the Obligor, substantially in the form of Exhibit C .
“ Connection Income Taxes ” means Other Connection Taxes that are imposed on or measured by net income (however denominated) or that are franchise Taxes or branch profits Taxes.
“ Control ” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ownership of voting securities, by contract or otherwise, and “ Controlling ” and “ Controlled ” shall have meanings correlative thereto.
“ Control Agreement ” means, with respect to any deposit account or securities account maintained by any Loan Party, a control agreement in customary form and substance and otherwise reasonably satisfactory to the Collateral Agent, duly executed and delivered by such Loan Party and the depositary bank or the securities intermediary, as the case may be, with which such account is maintained.
“ Crude Topping Unit ” means the 25,000 barrels a day crude topping unit being constructed by a customer of the Obligor on land leased from the Obligor, and the related infrastructure being constructed by the Obligor.
“ Crude Topping Unit Completion Date ” means the date on which the Crude Topping Unit is placed in service (as determined in good faith by the Parent and the Obligor).
“ Crude Topping Unit EBITDA Adjustment ” means, for any period of four consecutive Fiscal Quarters of the Parent, $12,800,000; provided that, for each period of four consecutive Fiscal Quarters of the Parent ending on or after the last day of the first full Fiscal Quarter following the Crude Topping Unit Completion Date, the Crude Topping Unit EBITDA Adjustment shall be equal to (a) the Crude Topping Unit EBITDA Adjustment for the immediately preceding period of four consecutive Fiscal Quarters of the Parent, less (b) $3,200,000; provided , further , that the Crude Topping Unit EBITDA Adjustment shall at no time be less than $0. Solely by way of example, (i) for the period of four consecutive Fiscal Quarters of the Parent ending on the last day of the first full Fiscal Quarter following the Crude Topping Unit Completion Date, the Crude Topping Unit EBITDA Adjustment shall be $9,600,000, and (ii) for the period of four consecutive Fiscal Quarters of the Parent ending on the last day of the second full Fiscal Quarter following the Crude Topping Unit Completion Date, the Crude Topping Unit EBITDA Adjustment shall be $6,400,000.
“ Currency Hedge Agreement ” means any foreign exchange contract, currency swap agreement, futures contract, option contract, synthetic cap or other similar agreement or arrangement.
“ Debtor Relief Law ” has the meaning assigned to such term in the Security Agreement.
 
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“ Default ” means any event or condition that upon notice, lapse of time or both would constitute an Event of Default.
“ Default Rate ” means, for any day, a rate of interest per annum equal to the sum of the LIBOR Term Indexed Rate in effect on such day plus two percent (2.00%). Notwithstanding the foregoing, the Default Rate shall not exceed the Maximum Rate as defined in the Indenture.
“ Designated Subsidiary ” means (a) the Obligor and (b) each other wholly-owned Restricted Subsidiary other than, in the case of this clause (b) , (i) any Restricted Subsidiary that is a CFC and (ii) any Restricted Subsidiary that is not a Material Subsidiary. The term “Designated Subsidiary” shall also include any Restricted Subsidiary designated as such pursuant to Section 5.10(b) .
“ Determination of Taxability ” means and shall be deemed to have occurred on the first to occur of the following:
(i) on the date when the Issuer or Obligor files any statement, supplemental statement or other Tax schedule, return or document which discloses that an Event of Taxability has occurred;
(ii) on the date when a Bondholder or any former Bondholder notifies the Issuer, the Administrative Agent or the Obligor that it has received a written opinion by a nationally recognized firm of attorneys of substantial expertise on the subject of tax-exempt municipal finance to the effect that an Event of Taxability shall have occurred unless, within one hundred eighty (180) days after receipt by the Issuer, the Administrative Agent or the Obligor of such notification from such Bondholder or such former Bondholder, the Issuer, the Administrative Agent or the Obligor shall deliver to such Bondholder or such former Bondholder, as applicable, a ruling or determination letter issued to or on behalf of the Issuer, the Administrative Agent or the Obligor by the Commissioner or any District Director of the Internal Revenue Service (or any other governmental official exercising the same or a substantially similar function from time to time) to the effect that, after taking into consideration such facts as form the basis for the opinion that an Event of Taxability has occurred, an Event of Taxability shall not have occurred;
(iii) on the date when the Issuer, the Administrative Agent or the Obligor shall be advised in writing by the Commissioner or any District Director of the Internal Revenue Service (or any other government official or agent exercising the same or a substantially similar function from time to time) that, based upon filings of the Issuer, the Administrative Agent or the Obligor, or upon any review or audit of the Issuer, the Obligor or the Administrative Agent or upon any other ground whatsoever, an Event of Taxability shall have occurred; or
(iv) on the date when the Issuer, the Administrative Agent or the Obligor shall receive notice from a Bondholder or any former Bondholder that is not, or was not, a Substantial User that the Internal Revenue Service (or any other government official or agency exercising the same or a substantially similar function from time to time) has assessed as includable in the gross income of such Bondholder or such former Bondholder the interest on the Bonds due to the occurrence of an Event of Taxability;
 
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provided , however , no Determination of Taxability shall occur under subparagraph (i), (iii)  or (iv)  hereunder unless the Obligor has been afforded the reasonable opportunity, at the Obligor’s expense, to contest any such assessment, and, further, no Determination of Taxability shall occur until such contest, if made, has been finally determined; provided further , however , that upon demand from a Bondholder or former Bondholder, the Obligor shall promptly reimburse such Bondholder or former Bondholder for any payments, including any Taxes, interest, penalties or other charges, such Bondholder (or former Bondholder) shall be obligated to make as a result of any delay in a Determination of Taxability resulting from such contest.
“ Determination of Taxability Payment ” means all amounts payable or owing to a Bondholder pursuant to Section 2.04 .
“ Discharge Date ” means the date on which (a) this Agreement shall have terminated (other than those provisions which shall survive such termination under Section 9.10 ), and (b) the principal of and interest on each Bond and all fees and all other expenses or amounts payable under any Bond Document to any Bondholder Party (other than unasserted contingent payment obligations that by their nature survive termination of the Bond Documents) shall have been paid in full in cash.
“ Disposition ” means, with respect to any property, any sale, lease, sale and leaseback, conveyance, transfer or other disposition thereof; and the terms “ Dispose ” and “ Disposed of ” shall have correlative meanings.
“ Disqualified Institution ” means (a) any Person specified by the Oligor in writing to the Arrangers on July 17, 2014 as a “Disqualified Institution” (and its Affiliates reasonably identifiable by name) and (b) any Person that is a competitor or customer of the Parent or the Subsidiaries and that was specified by the Obligor in writing to the Arrangers on July 17, 2014 as a “Disqualified Institution” (and its Affiliates reasonably identifiable by name) (in the case of this clause (b) , excluding any such Affiliate that is a bona fide diversified debt fund (unless such Person was otherwise specified as a “Disqualified Institution” pursuant to clause (a) )). Upon reasonable notice to the Administrative Agent and the Bondholders, the Obligor may supplement in writing the list of Disqualified Institutions to include any Person that becomes a competitor or customer of the Parent and the Subsidiaries after the Closing Date, which supplement shall become effective two days after delivery to the Administrative Agent, but which shall not apply retroactively to disqualify any Bondholder that has previously acquired any rights and obligations under this Agreement; provided , that notwithstanding the foregoing, no Affiliate of any Arranger shall be designated as a “Disqualified Institution” hereunder.
“ Divestiture ” means the Disposition (in one transaction or a series of transactions) of (a) all or substantially all the issued and outstanding Equity Interests in any Person that are owned by the Parent, the Obligor or any other Restricted Subsidiary or (b) all or substantially all the assets of (or all or substantially all the assets constituting a business unit, division, product line or line of business of) any Person.
 
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“ Dock 5 ” means the approximately 31.05 acres of land (consisting of 9.1 upland acres and 21.95 submerged acres) located in Harris County, Texas leased to Obligor pursuant to the Dock 5 Lease for the construction, maintenance, repair, replacement and operation of a single T-Head dock and related improvements, and certain pipelines and all related appurtenances thereto.
“ Dock 5 Lease ” means the leasehold interest in the Dock 5 held by the Obligor pursuant to that certain Lease Agreement dated September 30, 2013 between the Port of Houston and the Obligor.
“ Dollars ” or “ $ ” means lawful money of the United States.
“ Domestic Subsidiary ” means any Subsidiary incorporated or organized under the laws of the United States of America, any State thereof or the District of Columbia.
“ EBITDA ” means, for any period, Net Income for such period, plus :
(a) without duplication and to the extent deducted in the determination of Net Income for such period:
(i) all federal, state and other income taxes (including state franchise taxes based upon income) of the Parent and the Restricted Subsidiaries paid or accrued according to GAAP during such period,
(ii) Interest Expense for such period,
(iii) depreciation and amortization of the Parent and the Restricted Subsidiaries for such period determined in accordance with GAAP,
(iv) any non-cash charges for such period (excluding write-downs of current assets),
(v) any unusual, extraordinary or non-recurring expenses or losses for such period,
(vi) any fees, costs and expenses incurred during such period in connection with the Transactions,
(vii) any fees, costs and expenses incurred during such period in connection with the structuring, negotiation, documentation and consummation of Permitted Acquisitions, permitted issuances of Equity Interests, permitted Investments, permitted Restricted Payments and permitted incurrences of Indebtedness, in each case, whether or not consummated,
(viii) any fees, costs, or expenses incurred during such period in connection with the redemption or retirement of any Indebtedness (including prepayment premiums and make whole amounts, but excluding the payment of accrued interest and fees thereon),
 
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(ix) charges, losses and expenses for such period to the extent (A) paid for or reimbursed by any Person (other than an Affiliate of the Parent or any Subsidiary) during such period or (B) reasonably expected to be paid for or reimbursed by any such Person during the period of four consecutive Fiscal Quarters of the Parent immediately following such period, and
(x) subject to the Aggregate Cap, restructuring charges incurred during such period, minus
(b) without duplication,
(i) all cash payments made during such period on account of non-cash charges added back in computing EBITDA pursuant to clause (a)(iv) for a previous period, and
(ii) to the extent included in the determination of Net Income for such period, any unusual, extraordinary or non-recurring gains and all non-cash items of income (including non-cash gains) for such period.
If any charges, losses or expenses are added back in computing EBITDA pursuant to clause (a)(ix)(B) for any period and such charges, losses or expenses are not paid for or reimbursed by any Person (other than an Affiliate of the Parent or any Subsidiary) during the period of four consecutive Fiscal Quarters of the Parent immediately following such period, then such charges, losses or expenses shall be subtracted in computing EBITDA for the Fiscal Quarter of the Parent immediately following such period of four consecutive Fiscal Quarters of the Parent. For purposes of calculating EBITDA for any period to determine the Total Adjusted Net Leverage Ratio, the Super Senior Leverage Ratio or the Interest Coverage Ratio, if during such period the Parent, the Obligor or any other Restricted Subsidiary shall have consummated a Specified Transaction, EBITDA for such period shall be calculated after giving pro forma effect thereto in accordance with Section 1.02(f) .
“ EMMA ” means the Electronic Municipal Market Access system as provided by the Municipal Securities Rulemaking Board.
“ Environment ” means ambient and indoor air, surface water and groundwater (including potable water, navigable water and wetlands), the land surface or subsurface strata or sediment and natural resources such as flora and fauna.
“ Environmental Claim ” means any and all suits, demands, demand letters, claims, Liens, notices of non-compliance or violation, notices of liability or potential liability, investigations, adversarial proceedings, consent orders, consent decrees or consent agreements arising out of or pursuant to any Environmental Law, the presence or Release of, or human exposure to, any Hazardous Material or natural resource damages.
“ Environmental Law ” means, collectively, all applicable federal, state, local or foreign laws, including common law, ordinances, regulations, rules, legal codes, orders, judgments or other Governmental Rules that relate to (a) the prevention, abatement or elimination of pollution, or the protection or preservation of the Environment, wildlife or natural resources, (b) the use,
 
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generation, handling, treatment, storage, Release, transportation or regulation of, or exposure to, Hazardous Materials and (c) the protection of employee health and workplace safety, including the Comprehensive Environmental Response Compensation and Liability Act, 42 U.S.C. §§ 9601 et seq., the Endangered Species Act, 16 U.S.C. §§ 1531 et seq., the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act, 42 U.S.C. §§ 6901 et seq., the Clean Air Act, 42 U.S.C. §§ 7401 et seq., the Clean Water Act, 33 U.S.C. §§ 1251 et seq., the Toxic Substances Control Act, 15 U.S.C. §§ 2601 et seq., the Emergency Planning and Community Right to Know Act, 42 U.S.C. §§ 11001 et seq., and the Oil Pollution Act of 1990, 33 U.S.C. §§ 2701 et seq., each as amended, and their applicable foreign, state or local counterparts or equivalents.
“ Equity Interests ” in or of any Person means any and all shares, interests, rights to purchase, warrants, options, participation or other equivalents of or interests in (however designated) equity of such Person, including any Preferred Stock, any limited or general partnership interest and any limited liability company interest.
“ 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.
“ ERISA Affiliate ” means any corporation, trade or business (whether or not incorporated) that, together with any of the Group Members, is treated as a single employer under Section 414(b) or (c) of the Code, or, solely for purposes of Section 302 or 303 of ERISA and Section 412 or 430 of the Code, is treated as a single employer under Section 414(b), (c), (m) or (o) of the Code.
“ Event of Default ” shall have the meaning assigned to such term in Section 7.01 .
“ Event of Taxability ” means (i) to the extent occurring after the Closing Date, a change in law or fact or the interpretation thereof, or the occurrence or existence of any fact, event or circumstance (including, without limitation, the taking of any action by the Issuer, the Administrative Agent or Obligor, or the failure to take any action by the Issuer, the Administrative Agent or Obligor, or the making by the Issuer, the Administrative Agent or Obligor of any misrepresentation herein or in any certificate required to be given in connection with the issuance, remarketing, sale or delivery of the Bonds) which has the effect of causing interest paid or payable on the Bonds to become includable, in whole or in part, in the gross income of a Bondholder or any former Bondholder that is not, or was not, a Substantial User for federal income Tax purposes or (ii) the entry of any decree or judgment by a court of competent jurisdiction, or the taking of any official action by the Internal Revenue Service or the Department of the Treasury, which decree, judgment or action shall be final under applicable procedural law, in either case, which has the effect of causing interest paid or payable on the Bonds to become includable, in whole or in part, in the gross income of a Bondholder or any former Bondholder for federal income Tax purposes.
“ Excess Interest Amount ” has the meaning set forth in Section 2.05 hereof.
 
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“ Excluded Deposit Account ” shall have the meaning assigned to such term in the Security Agreement.
“ Excluded Property ” means (a) the Excluded Real Property and (b) the “Excluded Property” under and as defined in the Security Agreement.
“ Excluded Real Property ” means the Dock 5 Lease, the Moore Road Property and any easement, right-of-way or similar such interest or estate in Real Property with respect to the Pipelines.
“ Excluded Securities Account ” shall have the meaning assigned to such term in the Security Agreement.
“ Excluded Taxes ” means any of the following Taxes imposed on or with respect to a Bondholder Party or required to be withheld or deducted from a payment to a Bondholder Party, (a) Taxes imposed on or measured by net income (however denominated), franchise Taxes, and branch profits Taxes, in each case, (i) imposed as a result of such Bondholder Party being organized under the laws of, or having its principal office in, the jurisdiction imposing such Tax (or any political subdivision thereof) or (ii) that are Other Connection Taxes, (b) in the case of a Bondholder, U.S. federal withholding Taxes imposed on amounts payable to or for the account of such Bondholder (i) with respect to an applicable interest in a Bond pursuant to a Governmental Rule in effect on the date on which such Bondholder acquires such interest in the Bond (except to the extent amounts with respect to Taxes were payable to the assignor immediately before the Bondholder acquired its interest in such Bond), (ii) on or after the date on which a Determination of Taxability occurs except to the extent such U.S. federal withholding Taxes are imposed on such amounts payable as a result of a Change in Law after the date on which such Determination of Taxability occurs, and (iii) with respect to a Determination of Taxability Payment, (c) Taxes attributable to such Bondholder’s failure to comply with Section 2.13(e) and (d) any U.S. federal withholding Taxes imposed under FATCA.
“ Existing Letter of Credit Issuer ” means Bank of America, in its capacity as letter of credit issuer under each Existing Letter of Credit.
“ Existing Letters of Credit ” means the direct-pay letters of credit issued by the Existing Letter of Credit Issuer prior to the Closing Date under the Existing Revolving Credit Agreement as credit and liquidity support for the Bonds.
“ Existing Indebtedness ” means all principal, premium, if any, interest, fees and other amounts due or outstanding under the Existing Parent Term Credit Agreement, the Existing Revolving Credit Agreement and the Existing Notes Facility.
“ Existing Notes Facility ” means the Note Purchase and Private Shelf Agreement, dated as of January 8, 2007, among the Obligor, the purchasers listed on Schedule A thereto, Prudential Investment Management, Inc., and each other Prudential Affiliate (as defined therein) party thereto, as amended by Letter Amendment No. 1 to Note Purchase and Private Shelf Agreement, dated as of June 30, 2007, Letter Amendment No. 2 to Note Purchase and Private Shelf Agreement, dated as of January 10, 2008, and Letter Amendment No. 3 to Note Purchase and Private Shelf Agreement, dated as of January 8, 2009.
 
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“ Existing Parent Term Credit Agreement ” means the Credit Agreement, dated as of October 31, 2011, among the Parent, the lenders party hereto, Barclays Bank PLC, as administrative agent, and Union Bank, N.A., as collateral agent, as amended by the Waiver and Amendment, dated as of November 23, 2011, the Second Amendment to Credit Agreement, dated as of February 23, 2012, and the Third Amendment to Credit Agreement and Lien Reaffirmation Agreement, dated as of November 1, 2012.
“ Existing Revolving Credit Agreement ” means the Amended and Restated Credit Agreement, dated as of November 12, 2010, as amended by Amendment No. 1 and Joinder to Amended and Restated Credit Agreement, dated as of July 26, 2011, Amendment No. 2 to Amended and Restated Credit Agreement and Waiver, dated as of October 19, 2011, Amendment No. 3 and Joinder to Amended and Restated Credit Agreement, dated as of January 31, 2012, and Amendment No. 4 to Amended and Restated Credit Agreement, dated as of September 21, 2012, among the Obligor, the lenders party thereto, Bank of America, as administrative agent, and Compass Bank, as syndication agent.
“ Fair Market Value ” means, at any time with respect to any property of any kind or character, the sale value of such property that would be realized in an arm’s length sale at such time between an informed and willing buyer and an informed and willing seller, under no compulsion to buy or sell, respectively.
“ FATCA ” means Sections 1471 through 1474 of the Code, as of the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof and any agreements entered into pursuant to Section 1471(b)(1) of the Code, any intergovernmental agreement entered into in connection with the implementation of such Sections of the Code and any fiscal or regulatory legislation, rules or practices adopted pursuant to such intergovernmental agreement.
“ Federal Funds Rate ” means, for any day, the rate per annum equal to the weighted average of the rates on overnight federal funds transactions with members of the Federal Reserve System arranged by federal funds brokers on such day, as published by the Federal Reserve Bank of New York on the Business Day next succeeding such day; provided that (a) if such day is not a Business Day, the Federal Funds Rate for such day shall be such rate on such transactions on the next preceding Business Day as so published on the next succeeding Business Day, and (b) if no such rate is so published on such next succeeding Business Day, the Federal Funds Rate for such day shall be the average rate (rounded upward, if necessary, to a whole multiple of 1/100 of 1%) charged to Bank of America on such day on such transactions as determined by the Administrative Agent.
“ Fee Letters ” means the Arranger Fee Letter and the Agency Fee Letter.
“ Financial Covenant Event of Default ” means any default made in the due observance or performance by the Parent or the Obligor of any financial covenant set forth in Section 6.14 .
“ Financial Officer ” of any Person means a Responsible Officer of such Person who is a senior financial officer of such Person.
 
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“ Fiscal Quarter ” means any fiscal quarter of a Fiscal Year.
“ Fiscal Year ” means a fiscal year of a Group Member; references to a Fiscal Year with a number corresponding to any calendar year (e.g., “Fiscal Year 2014”) refer to the Fiscal Year ending on or about December 31 of such calendar year.
“ Foreign Pledge Agreement ” means a pledge or charge agreement granting a Lien on Equity Interests in a Foreign Subsidiary to secure the Secured Obligations, governed by the law of the jurisdiction of organization of such Foreign Subsidiary and in form and substance reasonably satisfactory to the Collateral Agent.
“ Foreign Subsidiary ” means any Subsidiary that is not a Domestic Subsidiary.
“ Funds Flow Memorandum ” means the memorandum, dated the Closing Date, delivered by the Obligor to the Administrative Agent with respect to the disbursement of funds on the Closing Date.
“ GAAP ” means generally accepted accounting principles in effect from time to time in the United States, applied on a consistent basis, subject to the provisions of Section 1.02 .
“ Governmental Authority ” means any federal, state, local or foreign court or governmental agency, authority, instrumentality or regulatory, judicial or legislative body.
“ Governmental Rule ” means, with respect to any Person, any law, rule, regulation, ordinance, order, code, treaty, judgment, decree, directive, guideline, policy or similar form of decision of any Governmental Authority binding on such Person.
“ Group Members ” means the Parent, the Obligor and each of the other Restricted Subsidiaries.
“ Guarantee ” means of or by any Person (the “guarantor”) means any obligation, contingent or otherwise, of the guarantor guaranteeing or having the economic effect of guaranteeing any Indebtedness or other obligation of any other Person (the “primary obligor”) in any manner, whether directly or indirectly, and including any obligation of the guarantor, direct or indirect, (a) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or other obligation or to purchase (or to advance or supply funds for the purchase of) any security for the payment thereof, (b) to purchase or lease property, securities or services for the purpose of assuring the owner of such Indebtedness or other obligation of the payment thereof, (c) to maintain working capital, equity capital or any other financial statement condition or liquidity of the primary obligor so as to enable the primary obligor to pay such Indebtedness or other obligation or (d) as an account party in respect of any letter of credit or letter of guaranty issued to support such Indebtedness or other obligation; provided that the term “Guarantee” shall not include endorsements for collection or deposit in the ordinary course of business. The amount, as of any date of determination, of any Guarantee shall be the principal amount outstanding on such date of Indebtedness or other obligation guaranteed thereby (or, in the case of (i) any Guarantee the terms of which limit the monetary exposure of the guarantor or (ii) any Guarantee of an obligation that does not have a principal amount, the maximum monetary exposure as of such date of the guarantor under such Guarantee (as determined, in the case of clause (i) , pursuant to such terms or, in the case of clause (ii) , reasonably and in good faith by the chief financial officer of the Parent)).
 
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“ Guaranteed Obligations ” shall have the meaning assigned to such term in the Guaranty Agreement.
“ Guaranteed Party ” shall have the meaning assigned to such term in the Guaranty Agreement.
“ Guaranty Agreement ” means the Guaranty Agreement, dated as of the Closing Date, among the Parent, the Loan Parties (other than the Borrower) and the Administrative Agent.
“ Hazardous Materials ” means all pollutants, contaminants, wastes, chemicals, materials, substances and constituents, including explosive or radioactive substances or petroleum or petroleum distillates, asbestos or asbestos containing materials, polychlorinated biphenyls or radon gas, of any nature, in each case subject to regulation or which can give rise to liability under any Environmental Law.
“ Hedge Agreements ” means any HFOTCO Credit Facilities Interest Rate Hedge Agreement, Bond Interest Rate Hedge Agreement, Currency Hedge Agreement or any other agreement with respect to any swap, forward, future or derivative transaction or option or similar agreement involving, or settled by reference to, one or more rates, currencies, commodities, equity or debt instruments or securities, or economic, financial or pricing indices or measures of economic, financial or pricing risk or value or any similar transaction or any combination of these transactions.
“ HFOTCO Company Agreement ” means the limited liability company agreement of the Obligor (entitled “Company Agreement”), effective as of January 8, 2008.
“ HFOTCO Credit Agreement ” means the Credit Agreement, dated as of August 19, 2014, among the Parent, the Obligor, the HFOTCO Credit Facilities Administrative Agent, the Collateral Agent and the lenders from time to time party thereto.
“ HFOTCO Credit Documents ” means the HFOTCO Credit Agreement and all other instruments, agreements and other documents evidencing or governing the HFOTCO Credit Facilities.
“ HFOTCO Credit Facilities ” means the senior secured credit facilities of the Obligor, to be established pursuant to the HFOTCO Credit Agreement, and the Indebtedness represented thereby.
“ HFOTCO Credit Facilities Administrative Agent ” means Morgan Stanley Senior Funding, Inc., as administrative agent under the HFOTCO Credit Documents, together with its successors and permitted assigns in such capacity.
“ HFOTCO Credit Facilities Closing Date ” shall have the meaning assigned to the term “Closing Date” in the HFOTCO Credit Agreement.
 
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“ HFOTCO Credit Facilities Interest Rate Hedge Agreement ” means any interest rate swap, cap, collar or other interest rate hedge agreement entered into between an Interest Hedge Lender and the Obligor for the purpose of hedging the HFOTCO Credit Facilities.
“ HFOTCO Credit Facilities Maturity Date ” shall have the meaning assigned to the term “Maturity Date” in the HFOTCO Credit Agreement.
“ HFOTCO Credit Facilities Term Borrowings ” shall have the meaning assigned to the term “Term Borrowings” in the HFOTCO Credit Agreement.
“ Indebtedness ” of any Person means, without duplication, (a) all obligations of such Person for borrowed money (including loans) and all redemption obligations of such Person in respect of mandatorily redeemable Preferred Stock, (b) all obligations of such Person evidenced by bonds, debentures, notes or similar instruments, (c) all obligations of such Person under conditional sale or other title retention agreements relating to property or assets purchased by such Person, (d) all obligations of such Person issued or assumed as the deferred purchase price of property or services (other than accrued liabilities and trade liabilities incurred in the ordinary course of business and maturing within 90 days after the incurrence thereof), (e) all Guarantees by such Person of Indebtedness of others, (f) all Capital Lease Obligations of such Person, (g) the principal component of all obligations, contingent or otherwise, of such Person (i) as an account party in respect of letters of credit and (ii) in respect of bankers’ acceptances, (h) the maximum aggregate amount (giving effect to any netting agreements) that such Person would be required to pay under Hedge Agreements if such Hedge Agreements were terminated at the time of determination and (g) all obligations of others secured by (or for which the holder of such obligation has an existing right, contingent or otherwise, to be secured by) any Lien on property owned or acquired by such Person, whether or not the obligations secured thereby have been assumed. The Indebtedness of any Person shall include the Indebtedness of any partnership in which such Person is a general partner, other than to the extent that the instrument or agreement evidencing such Indebtedness expressly limits the liability of such Person in respect thereof.
“ Indemnified Taxes ” means (a) Taxes, other than Excluded Taxes, imposed on or with respect to any payment that is not a Determination of Taxability Payment made by or on account of any obligation of the Obligor under any Bond Document and (b) to the extent not otherwise described in (a), Other Taxes.
“ Indemnitee ” has the meaning set forth in Section 9.04(b) hereof.
“ Indenture ” means: (i) with respect to the Series 2010 Bonds, the Bond Indenture, originally dated as of November 1, 2010, between the Issuer and the Trustee, (ii) with respect to the Series 2011 Bonds, the Bond Indenture, originally dated as of December 1, 2011 between the Issuer and the Trustee, and (iii) with respect to the Series 2012 Bonds, the Bond Indenture, originally dated as of October 1, 2012, between the Issuer and the Trustee, and collectively referred to herein as the “ Indentures ”.
“ Intercreditor Agreement ” means the Intercreditor Agreement, dated as of the Closing Date, among the Loan Parties, the Collateral Agent, the Administrative Agent, the HFOTCO Credit Facilities Administrative Agent and each Authorized Representative with respect to any Permitted First Lien Refinancing Debt.
 
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“ Interest Coverage Ratio ” means, as of any date of calculation, the ratio of (a) EBITDA for the period of four consecutive Fiscal Quarters of the Parent most recently ended on or prior to such date, to (b) Interest Expense for such four Fiscal Quarter period.
“ Interest Expense ” means, for any period, the sum (without duplication) of (i) all interest, prepayment charges and fees incurred (whether paid or accrued) in respect of any Indebtedness of the Parent and the Restricted Subsidiaries (including imputed interest in respect of Capital Lease Obligations of the Parent and the Restricted Subsidiaries, net payments received or made under interest rate hedge agreements of the Parent and the Restricted Subsidiaries and all fees, commissions and discounts owed by the Parent and the Restricted Subsidiaries with respect to letters of credit and bankers’ acceptance financing) deducted in determining Net Income for such period, together with all interest capitalized or deferred of the Parent and the Restricted Subsidiaries for such period and not deducted in determining Net Income for such period, (ii) all debt discount and expense amortized or required to be amortized in the determination of Net Income for such period and (iii) dividends in respect of Preferred Stock of the Parent and the Restricted Subsidiaries paid during such period.
“ Interest Hedge Lender ” means any Interest Hedge Lender (as that term is defined in the HFOTCO Credit Agreement).
“ Interest Hedge Bondholder ” means (a) any Secured Hedge Bondholder and (b) any counterparty to any Bond Interest Rate Hedge Agreement that, at the time such Bond Interest Rate Hedge Agreement is entered into, (i) has (A) a credit rating of at least BBB+ by S&P and at least A3 by Moody’s and (B) a capital and surplus of at least $1,000,000,000 or (ii) is otherwise reasonably satisfactory to the Administrative Agent.
“ Interest Rate Hedge Agreements ” means any Bond Interest Rate Hedge Agreements and any HFOTCO Credit Facilities Interest Rate Hedge Agreements.
“ Investment ” means, with respect to any Person, (a) any Equity Interests, evidences of Indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of any other Person that are held by such Person, (b) any deposit with, advance, loan or capital contribution to, assumption of Indebtedness of or other extension of credit to, any other Person that are made by such Person (excluding any such advance, loan or extension of credit having a term not exceeding 90 days representing the purchase price of inventory or supplies sold by such Person), or (c) Guarantees of any Indebtedness or other obligations of any other Person that are made by such Person.
“ Investor Letter ” has the meaning set forth in Section 9.06(c) hereof.
“ Issuer ” means the Harris County Industrial Development Corporation, and any permitted successor or assign thereof under the Indentures.
“ Junior Indebtedness ” means Indebtedness of any Group Member that is (a) secured by Liens that are contractually subordinated to any Lien securing the Secured Obligations, (b) unsecured or (c) Subordinated Indebtedness. For the avoidance of doubt, the HFOTCO Credit Facilities and the other Secured Obligations are not Junior Indebtedness.
 
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“ knowledge ” means, with respect to any Person, the actual knowledge of a Responsible Officer of such Person.
“ Legal Requirements ” means, as to any Person, any requirement under a Permit and any Governmental Rules, in each case applicable to or binding upon such Person or any of its properties or to which such Person or any of its properties is subject.
“ LIBOR Index Reset Date ” has the meaning meaning assigned to that term in the Indenture.
“ LIBOR Term Indexed Mode ” has the meaning assigned that term in the Indenture.
“ LIBOR Term Indexed Rate ” has the meaning assigned that term in the Indenture.
“ Lien ” means, with respect to any asset, (a) any mortgage, deed of trust, lien, hypothecation, pledge, encumbrance, charge or security interest in or on such asset, (b) the interest of a vendor or a lessor under any conditional sale agreement, capital lease or title retention agreement (or any financing lease having substantially the same economic effect as any of the foregoing) relating to such asset, (c) any shared facilities arrangement and (d) in the case of securities, any purchase option, call or similar right of a third party with respect to such securities.
“ Loan Agreement ” means: (i) with respect to the Series 2010 Bonds, the Loan Agreement dated as of November 1, 2010 between the Issuer and the Obligor, (ii) with respect to the Series 2011 Bonds, the Loan Agreement dated as of December 1, 2011 between the Issuer and the Obligor, and (iii) with respect to the Series 2012 Bonds, the Loan Agreement dated as of October 1, 2012 between the Issuer and the Obligor, and collectively referred to herein as the “ Loan Agreements ”.
“ Loan Agreement Exclusive Default ” means a default under any Loan Agreement that does not constitute a default under any other Bond Document (other than any other Loan Agreement).
“ Loan Parties ” means the Parent, the Obligor and each other Subsidiary Loan Party.
“ Mandatory Purchase Date ” means the earliest of (i) August 19, 2019, the date on which the Bonds are subject to mandatory tender for purchase, pursuant to Section 4.09 of the Indenture, (ii) the date on which the interest rate mode of the Bonds is converted from the interest rate mode in effect on the Closing Date to another interest rate mode, and (iii) the date on which the Bonds are required to be redeemed or purchased in full pursuant to the Indenture.
“ Mandatory Tender Purchase Price ” means an amount equal to 100% of the principal amount of the Bonds subject to mandatory tender for purchase on the Mandatory Purchase Date and accrued interest thereon, if applicable.
 
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“ Margin Rate Factor ” shall have the meaning assigned to that term in the Indenture. As of the Closing Date, the Margin Rate Factor is one (1).
“ Margin Stock ” shall have the meaning assigned to such term in Regulations U and X.
“ Material Adverse Effect ” means a material adverse effect on (i) the assets, liabilities, or condition (financial or otherwise), business or results of operations of the Parent and the Subsidiaries, taken as a whole, (ii) the enforceability or validity of any Bond Document or the enforceability, validity or priority of the Liens created under the Security Documents, or (iii) the rights and remedies of any Agent under the Bond Documents.
“ Material Indebtedness ” means Indebtedness (other than the Bonds and the Guarantees under the Bond Documents) of any one or more of the Group Members in an aggregate principal amount of $10,000,000 or more.
“ Material Subsidiary ” means the Obligor and each other Subsidiary (a) the consolidated total assets of which equal 5.0% or more of the consolidated total assets of the Parent and the Restricted Subsidiaries or (b) the consolidated revenues of which equal 5.0% or more of the consolidated revenues of the Parent and the Restricted Subsidiaries, in each case as of the end of or for the most recent period of four consecutive Fiscal Quarters of the Parent for which financial statements have been delivered pursuant to Section 5.04(a) or 5.04(b) (or, prior to the first delivery of any such financial statements, as of the end of or for the period of four consecutive Fiscal Quarters of the Parent most recently ended prior to the date of this Agreement); provided that if at the end of or for any such most recent period of four consecutive Fiscal Quarters the combined consolidated total assets or combined consolidated revenues of all Subsidiaries that under clauses (a)  and (b)  above would not constitute Material Subsidiaries shall have exceeded 15.0% of the consolidated total assets of the Parent and the Restricted Subsidiaries or 15.0% of the consolidated revenues of the Parent and the Restricted Subsidiaries, then one or more of such excluded Subsidiaries shall for all purposes of this Agreement be deemed to be Material Subsidiaries in descending order based on the amounts of their consolidated total assets or consolidated revenues, as the case may be, until such excess shall have been eliminated.
“ Maximum Rate ” has the meaning assigned to such term in the Indentures.
“ Moody’s ” means Moody’s Investors Service, Inc.
“ Moore Road Property ” means the 12.0813 acre tract of unimproved Real Property owned by the Obligor and located on Moore Road in Harris County, Texas.
“ Mortgage ” means a mortgage, deed of trust, assignment of leases and rents, leasehold mortgage or other security document granting a Lien on any Mortgaged Property to secure the Secured Obligations. Each Mortgage shall be in form and substance reasonably satisfactory to the Collateral Agent.
“ Mortgaged Property ” means (a) each parcel of Real Property owned in fee by a Loan Party, and the improvements thereto, that (together with such improvements) (i) is (A) contiguous to the Sites and (B) material to the business or operations of the Parent and the Restricted Subsidiaries, taken as a whole, or (ii) has a book or fair value (when including such
 
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improvements) of $2,000,000 or more and (b) each leasehold interest in Real Property held by a Loan Party to the extent that (i) the terms of the lease agreement or other document creating or evidencing such leasehold interest do not prohibit the granting of a Lien therein or a Loan Party has obtained the requisite consent for the granting of a Lien therein (it being understood that the Loan Parties shall use commercially reasonable efforts to obtain the requisite consent for the granting of a Lien in any leasehold interest of the type referred to in clause (ii) below), and (ii) such leasehold interest is material to the business or operations of the Parent and the Subsidiaries, taken as a whole, and could not readily be replaced with a comparable leasehold interest on terms not materially less favorable to the lessee; provided that the Excluded Real Property shall not constitute Mortgaged Property. For the avoidance of doubt each portion of the Sites owned in fee by a Loan Party and each leasehold interest in the Sites held by a Loan Party shall constitute Mortgaged Properties (other than any portion of the Sites owned in fee by a Loan Party or any leasehold interest in any portion of the Sites held by a Loan Party that, in each case, is expressly included in the definition of “Excluded Property”).
“ Multiemployer Plan ” means a multiemployer plan as defined in Section 4001(a)(3) of ERISA subject to the provisions of Title IV of ERISA and in respect of which any Group Member or any ERISA Affiliate is an “employer” as defined in Section 3(5) of ERISA.
“ Net Income ” means, for any period, cumulative net income earned by the Parent and the Restricted Subsidiaries on a consolidated basis during such period as determined in accordance with GAAP; provided that there shall be excluded (a) the income of any Person (other than the Parent) that is not a consolidated Restricted Subsidiary except to the extent of the amount of cash dividends or similar cash distributions actually paid by such Person to the Parent, the Obligor or, subject to clauses (b) and (c) below, any other consolidated Restricted Subsidiary during such period, (b) the income of, and any amounts referred to in clause (a) above paid to, any consolidated Restricted Subsidiary (other than the Obligor or any other Subsidiary Loan Party) to the extent that, on the date of determination, the declaration or payment of cash dividends or similar cash distributions by such Restricted Subsidiary is not permitted without any prior approval of any Governmental Authority that has not been obtained or is not permitted by the operation of the terms of the Organizational Documents of such Restricted Subsidiary, any agreement or other instrument binding upon the Parent or any Restricted Subsidiary or any law applicable to the Parent or any Restricted Subsidiary, unless such restrictions with respect to the payment of cash dividends and other similar cash distributions has been legally and effectively waived, and (c) the income or loss of, and any amounts referred to in clause (a) above paid to, any consolidated Restricted Subsidiary that is not wholly-owned by the Parent to the extent such income or loss or such amounts are attributable to the noncontrolling interest in such consolidated Restricted Subsidiary.
“ Net Issuance Proceeds ” means, an amount equal to (a) with respect to any incurrence of any Indebtedness of the Parent, the Obligor or any other Restricted Subsidiary, the cash payments received by the Parent or any of the Restricted Subsidiaries from such incurrence of Indebtedness and (b) with respect to any sale or issuance of Equity Interests in the Parent, the cash payments received by the Parent from such sale or issuance of Equity Interests, in each case, net of underwriting discounts and commissions and other reasonable costs and expenses associated therewith, including reasonable legal fees and expenses.
 
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“ Net Recovery Proceeds ” means, with respect to any Recovery Event, an amount equal to the cash payments received by the Parent or any of the Restricted Subsidiaries from such Recovery Event, net of (i) reasonable costs and expenses associated therewith, including fees and expenses of attorneys, accountants, insurance adjusters, appraisers, environmental consultants, engineers, architects and other professionals and consultants, (ii) any tax liability arising therefrom, and (iii) amounts applied to the repayment of Permitted Debt (other than the Secured Obligations) secured by a Lien permitted under Section 6.01 on the property subject to such Recovery Event.
“ Net Sale Proceeds ” means, with respect to any Asset Sale, an amount equal to the cash payments received by the Parent or any of the Restricted Subsidiaries from such Asset Sale, net of (i) reasonable costs and expenses associated therewith, including fees and expenses of investment bankers, brokers, attorneys, accountants, engineers, environmental consultants and other professionals and consultants, (ii) any tax liability arising therefrom, (iii) any escrow established pursuant to the documents evidencing such Asset Sale to secure any indemnification obligations or adjustments to the purchase price associated with such Asset Sale ( provided that, upon release of such escrow, the amount released shall constitute Net Sale Proceeds) and (iv) amounts applied to the repayment of Permitted Debt (other than the Secured Obligations) secured by a Lien permitted under Section 6.01 on the property Disposed of.
“ Non-Purchaser Transferee ” has the meaning set forth in Section 8.06(c) hereof.
“ Non-U.S. Bondholder ” means any Bondholder that is not a U.S. Person.
“ Note ” has the meaning assigned to such term in each Loan Agreement.
“ Obligations ” means all obligations (monetary or otherwise, whether absolute or contingent, matured or unmatured) of any of the Loan Parties arising under or in connection with a Bond Document, including the principal of and premium, if any, and interest (including interest accruing during the pendency of any proceeding under any Debtor Relief Law, whether or not allowed in such proceeding) on the Bonds, fees, indemnities, costs, expenses (including all fees, charges and disbursements of counsel to the Administrative Agent, the Collateral Agent, the Arrangers or to any Bondholder that are required to be paid by any of the Loan Parties pursuant hereto) or otherwise with respect to the Bonds; provided, that “Obligations” shall not include any Administrative Fees and Expenses (as defined in the Indenture) or any Indemnity Payments (as defined in the Loan Agreement).
“ Obligor ” has the meaning assigned to such term in the introductory paragraph hereto.
“ Obligor Materials ” has the assigned meaning set forth in Section 5.03 hereof.
“ Obligor Tax Agreements ” means (i) the HFOTCO LLC Tax Letter of Representation for Hurricane Ike Disaster Area Bonds, dated November 17, 2010, relating to the Series 2010 Bonds, (ii) the HFOTCO LLC Tax Letter of Representation for Hurricane Ike Disaster Area Bonds, dated December 1, 2011, relating to the Series 2011 Bonds, and (iii) the HFOTCO LLC Tax Letter of Representation for Hurricane Ike Disaster Area Bonds, dated October 10, 2012, relating to the Series 2012 Bonds.
 
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“ Organizational Documents ” means, with respect to any Person, as applicable, its certificate or articles of incorporation or organization, by laws, certificate of partnership, partnership agreement, certificate of formation, articles of organization, limited liability company agreement and/or operating agreement, and all shareholder agreements, voting trusts and similar arrangements applicable to any of such Person’s partnership interests, limited liability company interests or authorized shares of Equity Interests, in each case as amended.
“ Other Connection Taxes ” means, with respect to any Recipient, Taxes imposed as a result of a present or former connection between such Recipient and the jurisdiction imposing such Tax (other than connections arising from such Recipient having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced any Bond Document, or sold or assigned an interest in any Bond or Bond Document).
“ Other Taxes ” means all present or future stamp, court or documentary, intangible, recording, filing or similar Taxes that arise from any payment made under, from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with respect to, any Bond Document, except any such Taxes that are Other Connection Taxes imposed with respect to an assignment.
“ Parent ” has the meaning assigned to such term in the introductory paragraph hereto.
“ Participant ” has the meaning set forth in Section 9.06(h) hereof.
“ Participant Register ” has the meaning set forth in Section 9.06(h) hereof.
“ PBGC ” means the Pension Benefit Guaranty Corporation referred to and defined in ERISA.
“ Perfection Certificate ” shall have the meaning assigned to such term in the Security Agreement.
“ Perfection Certificate Supplement ” shall have the meaning assigned to such term in the Security Agreement.
“ Permits ” means any and all franchises, licenses, leases, permits, approvals, notifications, certifications, registrations, authorizations, exemptions, qualifications, and other rights, privileges and approvals required under or issued pursuant to any Governmental Rule.
“ Permitted Acquisition ” means any Acquisition by the Obligor or any other Restricted Subsidiary; provided that:
(a) (i) in the case of any purchase or other acquisition of Equity Interests in a Person, such Person (including each subsidiary of such Person) is organized under the laws of the United States of America, any State thereof or the District of Columbia and, upon the consummation of such acquisition, will be a wholly-owned Restricted Subsidiary that is a Domestic Subsidiary (including as a result of a merger or consolidation between any Restricted Subsidiary and such Person) or (ii) in the case of any purchase or other acquisition of other assets, such assets will be owned by the Obligor or a Subsidiary Loan Party;
 
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(b) such Acquisition was not preceded by, or consummated pursuant to, an unsolicited tender offer or proxy contest initiated by or on behalf of the Parent, the Obligor or any other Subsidiary;
(c) all transactions related thereto are consummated in accordance with applicable law;
(d) the business of such Person, or such assets, as the case may be, constitute a business permitted under Section 6.05(b) ;
(e) with respect to each Acquisition, the Parent, the Obligor and the Restricted Subsidiaries shall take all actions required in order to cause the Collateral and Guarantee Requirement to be satisfied within the time period specified in Section 5.10(a) with respect to each newly created or acquired Subsidiary or assets;
(f) not less than five (5) Business Days prior to the consummation of any Acquisition for which the aggregate consideration paid shall exceed $10,000,000, the Administrative Agent shall have received (i) a description of the material terms of such Acquisition, and (ii) if requested, such financial statements, financial information, material documentation and other material information regarding such Acquisition as the Administrative Agent may reasonably require, in each case, to the extent such documentation and information are available to any Group Member and may be disclosed by any Group Member in a manner that would not violate any confidentiality agreement of such Group Member or applicable Legal Requirements;
(g) the aggregate consideration paid therefor (including, in each case, Indebtedness assumed in connection therewith, all obligations in respect of deferred purchase price (including obligations under any purchase price adjustment but excluding earnout payments) and all other consideration payable in connection therewith (including payment obligations in respect of noncompetition agreements or other arrangements representing acquisition consideration)) shall not exceed 25% of the consolidated total assets of the Parent and the Restricted Subsidiaries immediately prior to giving effect thereto; and
(h) at the time of and immediately after giving effect to any such Acquisition, (i) no Specified Default or Event of Default shall have occurred and be continuing, (ii) the Total Adjusted Net Leverage Ratio shall not exceed the Applicable Total Adjusted Net Leverage Ratio with respect to the Fiscal Quarter of the Parent most recently ended as of the time of such Acquisition on a pro forma basis, and (iii) the Parent and the Obligor shall have delivered to the Administrative Agent a certificate of a Financial Officer of each of the Parent and the Obligor, in form and substance reasonably satisfactory to the Administrative Agent, certifying that all the requirements set forth in this definition have been satisfied with respect to such purchase or other acquisition, together with reasonably detailed calculations demonstrating satisfaction of the requirements set forth in clauses (g) and (h)(ii) above.
 
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“ Permitted Debt ” means:
(a) Indebtedness incurred under the Bond Documents;
(b) (i) the HFOTCO Credit Facilities and Refinancing Indebtedness in respect thereof, and (ii)(A)(I) Permitted First Lien Refinancing Debt and (II) Permitted Second Lien Refinancing Debt, provided that at the time such Indebtedness is incurred in reliance on this clause (b)(ii)(A) , no Default or Event of Default shall have occurred and be continuing or would result therefrom, and (B) Refinancing Indebtedness in respect thereof;
(c) Indebtedness existing on the date hereof and set forth on Schedule 6.02 and Refinancing Indebtedness in respect thereof;
(d) [Reserved];
(e) Indebtedness of any Restricted Subsidiary to the Parent, the Obligor or any other Restricted Subsidiary; provided that (A) such Indebtedness shall not have been transferred to any Person other than the Parent, the Obligor or any other Restricted Subsidiary, (B) any such Indebtedness owing by any Loan Party shall be unsecured and subordinated in right of payment to the Obligations on terms customary for intercompany subordinated Indebtedness, as reasonably determined by the Administrative Agent, (C) any such Indebtedness owing to any Loan Party shall be evidenced by a promissory note that shall have been pledged pursuant to the Security Agreement and (D) any such Indebtedness owing by any Restricted Subsidiary that is not a Loan Party to any Loan Party shall be incurred in compliance with Section 6.07 ;
(f) Guarantees incurred in compliance with Section 6.07(e) ;
(g) Indebtedness incurred under Hedge Agreements not otherwise prohibited by Section 6.12 ;
(h) Indebtedness of the Obligor or any other Restricted Subsidiary (A) incurred to finance the acquisition, construction or improvement of any fixed or capital assets, including Capital Lease Obligations, provided that such Indebtedness is incurred prior to or within 90 days after such acquisition or the completion of such construction or improvement and the principal amount of such Indebtedness does not exceed the cost of acquiring, constructing or improving such fixed or capital assets or (B) assumed in connection with the acquisition of any fixed or capital assets, and any Refinancing Indebtedness in respect of any of the foregoing; provided that the aggregate principal amount of Indebtedness permitted by this clause (h)  shall not exceed $20,000,000 at any time outstanding;
 
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(i) Indebtedness of any Person that becomes a Subsidiary (or of any Person not previously a Subsidiary that is merged or consolidated with or into a Subsidiary in a transaction permitted hereunder) after the date hereof, or Indebtedness of any Person that is assumed by any Subsidiary in connection with an acquisition of assets by such Subsidiary in a Permitted Acquisition, provided that (A) such Indebtedness exists at the time such Person becomes a Subsidiary (or is so merged or consolidated) or such assets are acquired and is not created in contemplation of or in connection with such Person becoming a Subsidiary (or such merger or consolidation) or such assets being acquired and (B) neither the Parent nor any Restricted Subsidiary (other than such Person or the Subsidiary with which such Person is merged or consolidated or the Person that so assumes such Person’s Indebtedness) shall Guarantee or otherwise become liable for the payment of such Indebtedness, and Refinancing Indebtedness in respect of any of the foregoing; provided that the aggregate principal amount of Indebtedness permitted by this clause (i)  shall not exceed $35,000,000 at any time outstanding;
(j) Indebtedness incurred in the ordinary course of business and owed in respect of any overdrafts and related liabilities arising from treasury, depository and cash management services or in connection with any automated clearing-house transfers of funds;
(k) Indebtedness relating to premium financing arrangements for property and casualty insurance plans and health and welfare benefit plans (including health and workers compensation insurance, employment practices liability insurance and directors and officers insurance), in each case incurred in the ordinary course of business;
(l) Indebtedness in respect of letters of credit, bankers acceptances, completion guarantees and similar instruments issued for the account of the Obligor or any other Restricted Subsidiary in the ordinary course of business supporting obligations under (i) workers’ compensation, unemployment insurance and other social security laws and (ii) bids, trade contracts, leases, statutory obligations, surety and appeal bonds, performance bonds and obligations of a like nature and, in each case, not in connection with the borrowing of money or obtaining of advances;
(m) Indebtedness consisting of advances or deposits received by the Obligor or any other Restricted Subsidiary from customers in the ordinary course of business;
(n) Indebtedness of the Obligor or any other Restricted Subsidiary in the form of purchase price adjustments (including in respect of working capital), earnouts, deferred compensation, indemnification or other arrangements representing acquisition consideration or deferred payments of a similar nature incurred in connection with any Permitted Acquisition or other Investment permitted under Section 6.07 or any Disposition permitted under Section 6.04 ;
(o) (i)(A) Subordinated Third Party Indebtedness in an aggregate principal amount not exceeding $25,000,000 at any time outstanding, and (B) Subordinated Affiliate Indebtedness of the Obligor or any other Restricted Subsidiary, provided that, in the case of this clause (i), at the time such Indebtedness is incurred, no Default or Event of Default shall have occurred and be continuing or would result therefrom, and (ii) Refinancing Indebtedness in respect of Subordinated Third Party Indebtedness; and
 
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(p) other Indebtedness of the Obligor or any Restricted Subsidiary in an aggregate principal amount not exceeding $25,000,000 at any time outstanding.
“ Permitted First Lien Refinancing Debt ” means Permitted HFOTCO Credit Agreement Refinancing Debt that is secured by Liens on the Collateral on a pari passu basis (but without regard to the control of remedies and subject to Section 2.01 of the Intercreditor Agreement) with the Secured Obligations; provided that (a) such Indebtedness is not secured by any Lien on any asset of the Parent or any Subsidiary other than the Collateral, (b) the Liens securing such Indebtedness are created under and evidenced by the Security Agreement and the other Security Documents and (c) the Authorized Representative with respect to such Indebtedness shall have become party to the Intercreditor Agreement.
“ Permitted HFOTCO Credit Agreement Refinancing Debt ” means any Indebtedness of the Obligor, and Guarantees thereof by the Parent and/or any Subsidiary Loan Party; provided that (i) such Indebtedness is in the form of notes, (ii) the stated final maturity of such Indebtedness shall not be earlier than the date that is 180 days after the latest HFOTCO Credit Facilities Maturity Date in effect at the time such Indebtedness is incurred, and such stated final maturity shall not be subject to any conditions that could result in such stated final maturity occurring on a date that precedes the date that is 180 days after the latest HFOTCO Credit Facilities Maturity Date in effect at the time such Indebtedness is incurred, (iii) such Indebtedness shall not be required to be repaid, prepaid, redeemed, repurchased or defeased, whether on one or more fixed dates, upon the occurrence of one or more events or at the option of any holder thereof (other than customary offers to repurchase upon a change of control, asset sale or event of loss and customary acceleration rights after an event of default) prior to the date 180 days after the latest HFOTCO Credit Facilities Maturity Date in effect at the time such Indebtedness is incurred; (iv) such Indebtedness shall not constitute an obligation (including pursuant to a Guarantee) of any Person other than the Loan Parties; and (v) substantially concurrently with the incurrence of such Indebtedness, the Obligor shall repay or prepay then outstanding HFOTCO Credit Facilities Term Borrowings in an aggregate principal amount equal to the aggregate amount of such Indebtedness (less the aggregate amount of accrued and unpaid interest with respect to such outstanding HFOTCO Credit Facilities Term Borrowings and any reasonable fees, premium and expenses relating to such refinancing).
“ Permitted Investments ” means:
(a) obligations backed by the full faith and credit of the United States Government (whether issued by the United States Government or an agency thereof), and obligations guaranteed by the United States Government;
(b) bonds, debentures, notes or similar debt instruments issued by a state or municipality given an “A” rating or better by S&P or an equivalent rating by another nationally recognized credit rating agency and maturing not more than one year from the date acquired;
(c) certificates of deposit issued by a bank given an “A” rating or better by S&P or an equivalent rating by another nationally recognized credit rating agency and maturing not more than one year from the date acquired;
 
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(d) readily marketable commercial paper rated at the time of acquisition as A-1 or better by S&P or Prime l or better by Moody’s and maturing not more than 270 days from the date of creation thereof;
(e) bankers’ acceptances which mature within 180 days; and
(f) money market mutual funds that (i) are denominated in U.S. Dollars, (ii) have average asset maturities not in excess of 365 days, (iii) have total invested assets in excess of $1,000,000,000 and (iv) invest exclusively in Permitted Investments described in clauses (a)  through (e)  above.
“ Permitted Liens ” means:
(a) as of the Closing Date only, the Terminated Liens;
(b) the Liens of the Secured Parties as provided in the Security Documents;
(c) Liens on the Collateral securing Indebtedness permitted pursuant to clause (b)(ii) of the definition of “Permitted Debt”;
(d) any Lien on any asset of the Parent, the Obligor or any other Restricted Subsidiary existing on the date hereof and set forth on Schedule 6.01 ; provided that (i) such Lien shall not apply to any other asset of the Parent, the Obligor or any other Restricted Subsidiary and (ii) such Lien shall secure only those obligations that it secures on the date hereof and any extensions, renewals and refinancings thereof that (A) do not increase the outstanding principal amount thereof and (B) in the case of any such obligations constituting Indebtedness, that are permitted under Section 6.02 as Refinancing Indebtedness in respect thereof;
(e) Liens for Taxes, assessments or other governmental levies or charges which are not yet due or which are being contested in good faith by the Parent, the Obligor or any other Restricted Subsidiary, as the case may be, and for which adequate reserves have been taken in accordance with GAAP;
(f) any attachment or judgment Lien in respect of judgments that do not constitute an Event of Default under Section 7.01(i) ;
(g) banker’s liens, rights of setoff or similar rights and remedies as to deposit accounts or other funds maintained with depository institutions; provided that such deposit accounts or funds are not established or deposited for the purpose of providing collateral for any Indebtedness and are not subject to restrictions on access by the Parent or any Restricted Subsidiary in excess of those required by applicable banking regulations;
(h) solely with respect to the assets of the Obligor or any other Restricted Subsidiary:
 
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(i) any Lien existing on any asset prior to the acquisition thereof by the Obligor or any other Restricted Subsidiary or existing on any asset of any Person that becomes a Restricted Subsidiary (or of any Person not previously a Restricted Subsidiary that is merged or consolidated with or into a Restricted Subsidiary in a transaction permitted hereunder) after the date hereof prior to the time such Person becomes a Restricted Subsidiary (or is so merged or consolidated); provided that (A) such Lien is not created in contemplation of or in connection with such acquisition or such Person becoming a Restricted Subsidiary (or such merger or consolidation), (B) such Lien shall not apply to any other asset of the Parent, the Obligor or any other Restricted Subsidiary (other than, in the case of any such merger or consolidation, the assets of any Restricted Subsidiary that is a party thereto) and (C) such Lien shall secure only those obligations that it secures on the date of such acquisition or the date such Person becomes a Restricted Subsidiary (or is so merged or consolidated), and any extensions, renewals and refinancings thereof that (1) do not increase the outstanding principal amount thereof and (2) in the case of any such obligations constituting Indebtedness, that are permitted under Section 6.02 as Refinancing Indebtedness in respect thereof;
(ii) Liens on fixed or capital assets acquired, constructed or improved by the Obligor or any other Restricted Subsidiary; provided that (A) such Liens secure only Indebtedness permitted by clause (h)  of the definition of “Permitted Debt” and obligations relating thereto not constituting Indebtedness and (B) such Liens shall not apply to any other asset of the Parent, the Obligor or any other Restricted Subsidiary (other than the proceeds and products thereof); provided further that in the event purchase money obligations are owed to any Person with respect to financing of more than one purchase of any fixed or capital assets, such Liens may secure all such purchase money obligations and may apply to all such fixed or capital assets financed by such Person;
(iii) statutory Liens of landlords and Liens of carriers, contractors, warehousemen, mechanics and materialmen and other like Liens incurred in the ordinary course of business which are not overdue for a period of 30 days or are being contested in good faith by the Obligor or any of its Restricted Subsidiaries and for which adequate reserves have been taken in accordance with GAAP;
(iv) Liens (other than any Lien imposed by ERISA) incurred, or deposits made, in the ordinary course of business (A) in connection with workers’ compensation, unemployment insurance, old age benefit and other types of social security, (B) to secure (or to obtain letters of credit that secure) the performance of tenders, statutory obligations, surety bonds, appeal bonds, bids, leases (other than Capital Lease Obligations), performance bonds, purchase, construction or sales contracts and other similar obligations or (C) otherwise to satisfy statutory or legal obligations; provided that, in each case, such Liens (1) were not incurred or made in connection with the incurrence or maintenance of Indebtedness, the borrowing of money or the obtaining of advance or credit and (2) do not, in the aggregate, materially detract from the value of the property or assets so encumbered or materially impair the use thereof in the operation of the business of the Obligor or its Restricted Subsidiaries;
 
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(v) leases or subleases granted to others, easements, rights-of-way, licenses, reservations, servitudes, permits, conditions, covenants, rights of others, restrictions, oil, gas and other mineral interests, royalty interests and leases, minor defects, exceptions or irregularities in title, encroachments, protrusions and other similar encumbrances or exceptions to title which do not interfere in any material respect with the ordinary course of business of the Obligor and the other Restricted Subsidiaries, taken as a whole;
(vi) with respect to any leasehold Real Property of the Obligor or any other Restricted Subsidiary, the terms and provisions of any lease or other instrument creating or evidencing such leasehold ( provided that such terms and provisions are customary for leases and instruments of such type);
(vii) with respect to any Real Property of the Obligor or any other Restricted Subsidiaries held in the form of an easement, right-of-way or similar such interest or estate, the terms and provisions of any easement, right of way grant, or other instrument creating or evidencing such easement, right-of-way or similar such interest or estate ( provided that such terms and provisions are customary for agreements and instruments of such type);
(viii) zoning, building codes, and other land use ordinances, variances, conditional use permits, entitlements and similar regulations, permits, approvals and conditions applicable to any Real Property;
(ix) Liens not created by the Obligor or any other Restricted Subsidiaries that affect the underlying fee interest of any Real Property leased by the Obligor or any Restricted Subsidiary, including master leases or ground leases and subordination or similar agreements;
(x) matters disclosed in any policy of title insurance insuring the Lien of any Mortgage (whether issued as of the Closing Date or issued with respect to any Real Property that is acquired or otherwise becomes a Mortgaged Property after the Closing Date) delivered to and accepted by the Collateral Agent and the Administrative Agent in accordance with the Collateral and Guarantee Requirement, but excluding any standard or pre-printed title exceptions in any promulgated form of such policy of title insurance pursuant to applicable Governmental Rules, and further excluding any so-called “blanket” or similar exceptions included in any such policy of title insurance pursuant to applicable Governmental Rules;
(xi) Liens on project funds and project accounts as described in, and to secure, the Obligor’s obligations under any Loan Agreement;
(xii) in connection with the Disposition of any Equity Interests or other assets in a transaction permitted by Section 6.04 , customary rights and restrictions contained in merger agreements, stock or asset purchase agreements and similar agreements in respect of such Disposition pending the completion thereof;
 
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(xiii) Liens solely on any cash earnest money deposits, escrow arrangements or similar arrangements made in connection with any letter of intent or purchase agreement for a Permitted Acquisition or other transaction permitted hereunder;
(xiv) in the case of (A) any Restricted Subsidiary that is not a wholly-owned Restricted Subsidiary or (B) the Equity Interests in any Person that is not a Restricted Subsidiary, any encumbrance or restriction, including any options, put and call arrangements, rights of first refusal and similar rights, set forth in the Organizational Documents of such Restricted Subsidiary or such other Person or any related joint venture, shareholders’ or similar agreement;
(xv) Liens arising by virtue of any precautionary Uniform Commercial Code financing statement filings in respect of leases entered into in the ordinary course of business;
(xvi) Liens on Equity Interests of any Unrestricted Subsidiary or any Equity Interests owned by a Loan Party in any Person that is not a Subsidiary;
(xvii) Liens on cash and Permitted Investments securing obligations under Hedge Agreements permitted under Section 6.12 in an aggregate amount not to exceed $15,000,000 at any time outstanding; and
(xviii) other Liens securing Indebtedness or other obligations in an aggregate principal amount not to exceed $7,500,000 at any time outstanding.
“ Permitted Second Lien Refinancing Debt ” means Permitted HFOTCO Credit Agreement Refinancing Debt that is secured by Liens on the Collateral on a second lien, subordinated basis to the Secured Obligations; provided that (a) such Indebtedness is not secured by any Lien on any asset of the Parent or any Subsidiary other than the Collateral, (b) the security agreements relating to such Indebtedness are substantially the same as the Security Documents (with such differences as are reasonably satisfactory to the Collateral Agent and the Administrative Agent) and (c) the Authorized Representative with respect to such Indebtedness shall have become party to the Second Lien Intercreditor Agreement.
“ Person ” any natural person, corporation, business trust, joint venture, association, company, partnership, limited liability company or government, individual or family trusts, or any agency or political subdivision thereof.
“ Pipelines ” means the approximately 10-mile pipeline which travels south-westerly from the Terminal Storage Facility and connects the Terminal Storage Facility to Magellan Speed Junction.
“ Plan ” means any employee pension benefit plan subject to the provisions of Title IV of ERISA or Section 412 or 430 of the Code or Section 302 or 303 of ERISA and in respect of which the Obligor or any ERISA Affiliate is (or if such plan were terminated would under Section 4069 of ERISA be deemed to be) an “employer” as defined in Section 3(5) of ERISA.
 
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“ Port of Houston ” means the Port of Houston Authority of Harris County, Texas.
“ Preferred Stock ” means any class of capital stock of a Person that is preferred over any other class of capital stock (or similar equity interests) of such Person as to the payment of dividends or the payment of any amount upon liquidation or dissolution of such Person.
“ Purchase Price ” has the meaning set forth in Section 2.01(a) hereof.
“ Purchaser Transferee ” has the meaning set forth in Section 9.06(b) hereof.
“ Purchasers ” means the Purchasers set forth on Schedule II and each other Person that becomes a “ Purchaser ” in accordance with Section 9.06 of this Agreement and their respective successors and assigns.
“ Quarterly Date ” means the last Business Day of each March, June, September and December.
“ Real Property ” of any Person means all right, title and interest of such Person in and to any and all parcels of real property owned, leased, licensed or operated by such Person together with all improvements and appurtenant fixtures, equipment, personal property, easements and other property and rights incidental to the ownership, lease or operation thereof, including, with respect to the Obligor, the Sites.
“ Recovery Event ” means any settlement of or payment in respect of any property or casualty insurance claim or any condemnation proceeding relating to any asset of any of the Group Members, but excluding all identifiable amounts constituting compensation for lost earnings or revenues.
“ Refinancing Indebtedness ” means, in respect of any Indebtedness (the “ Original Indebtedness ”), any Indebtedness that extends, renews or refinances such Original Indebtedness (or any Refinancing Indebtedness in respect thereof); provided that (a) the principal amount of such Refinancing Indebtedness shall not exceed the principal amount of such Original Indebtedness except by an amount no greater than accrued and unpaid interest with respect to such Original Indebtedness and any reasonable fees, premium and expenses relating to such extension, renewal or refinancing; (b) the stated final maturity of such Refinancing Indebtedness shall not be earlier than that of such Original Indebtedness, and such stated final maturity shall not be subject to any conditions that could result in such stated final maturity occurring on a date that precedes the stated final maturity of such Original Indebtedness; (c) such Refinancing Indebtedness shall not be required to be repaid, prepaid, redeemed, repurchased or defeased, whether on one or more fixed dates, upon the occurrence of one or more events or at the option of any holder thereof (except, in each case, upon the occurrence of an event of default or a change in control or as and to the extent such repayment, prepayment, redemption, repurchase or defeasance would have been required pursuant to the terms of such Original Indebtedness) prior to the earlier of (i) the maturity of such Original Indebtedness and (ii) the date that is 180 days after the latest HFOTCO Credit Facilities Maturity Date in effect on the date of such extension,
 
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renewal or refinancing, provided that, notwithstanding the foregoing, scheduled amortization payments (however denominated) of such Refinancing Indebtedness shall be permitted so long as the weighted average life to maturity of such Refinancing Indebtedness shall be longer than the shorter of (x) the weighted average life to maturity of such Original Indebtedness remaining as of the date of such extension, renewal or refinancing and (y) the weighted average life to maturity of each Class of the Term Loans under the HFOTCO Credit Facilities remaining as of the date of such extension, renewal or refinancing; (d) such Refinancing Indebtedness shall not constitute an obligation (including pursuant to a Guarantee) of any Subsidiary that shall not have been (or, in the case of after-acquired Subsidiaries, shall not have been required to become) an obligor in respect of such Original Indebtedness, and shall not constitute an obligation of the Parent if the Parent shall not have been an obligor in respect of such Original Indebtedness, and, in each case, shall constitute an obligation of such Subsidiary or of the Parent only to the extent of their obligations in respect of such Original Indebtedness; (e) if such Original Indebtedness shall have been subordinated to the Obligations, such Refinancing Indebtedness shall also be subordinated to the Obligations on terms not less favorable in any material respect to the Bondholders; (f) such Refinancing Indebtedness shall not be secured by any Lien on any asset other than the assets that secured such Original Indebtedness (or would have been required to secure such Original Indebtedness pursuant to the terms thereof) or, in the event Liens securing such Original Indebtedness shall have been contractually subordinated to any Lien securing the Secured Obligations, by any Lien that shall not have been contractually subordinated to at least the same extent and (g) in the event that the Authorized Representative with respect to such Original Indebtedness shall have been party to the Intercreditor Agreement or the Second Lien Intercreditor Agreement, then the Authorized Representative with respect to such Refinancing Indebtedness shall have become party to the Intercreditor Agreement or the Second Lien Intercreditor Agreement, as the case may be.
“ Register ” has the meaning set forth in Section 9.06(e) hereof.
“ Regulation H ” shall have the meaning assigned to such term in the definition of “Collateral and Guarantee Requirement.”
“ Regulation U ” means Regulation U of the Board as from time to time in effect and all official rulings and interpretations thereunder or thereof.
“ Regulation X ” means Regulation X of the Board as from time to time in effect and all official rulings and interpretations thereunder or thereof.
“ Related Parties ” means, with respect to any Person, such Person’s Affiliates and the partners, directors, officers, employees, agents, trustees, administrators, managers, advisors and representatives of such Person and of such Person’s Affiliates.
“ Release ” means any placing, spilling, leaking, seepage, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, disposing or depositing or migrating in, onto or through the Environment.
 
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“ Reportable Event ” means 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.
“ Required Bondholders ” means, at any time, Bondholders having Total Exposures representing more than 50% of the Total Exposures of all Bondholders.
“ Resignation Effective Date ” has the meaning assigned to such term in Section 8.06 .
“ Responsible Officer ” of any Person means any duly appointed and authorized chief executive, president, vice president, treasurer or secretary of such Person and any other officer or similar official thereof responsible for the administration of the obligations of such Person in respect of this Agreement, in each case, whose signatures and incumbency shall have been certified to the Administrative Agent and the Bondholders pursuant to Section 4.01(a)(iii) or pursuant to a certificate delivered to the Administrative Agent after the Closing Date in form and substance satisfactory to the Administrative Agent.
“ Restricted ” means, when used in reference to cash or Permitted Investments of any Person, that such cash or Permitted Investments (a) appear (or would be required to appear) as “restricted” on a consolidated balance sheet of such Person prepared in accordance with GAAP (unless such classification results from any Lien referred to in the parenthetical set forth in clause (b) below), (b) are controlled by or subject to any Lien or other preferential arrangement in favor of any creditor (including any counterparty under a Hedge Agreement) (other than (i) Liens created under the Security Documents and (ii) Liens permitted pursuant to clause (c) or (g) of the definition of “Permitted Liens”) or (c) are not otherwise generally available for use by such Person due to contractual requirements or Legal Requirements.
“ Restricted Payment ” means any dividend or other distribution (whether in cash, securities or other property) on any Equity Interests in the Parent, the Obligor or any other Restricted Subsidiary, or any payment (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, defeasance, retirement, acquisition, cancellation, repayment or termination of, or any other return of capital with respect to, any Equity Interests in the Parent, the Obligor or any other Restricted Subsidiary or any option, warrant or other right to acquire any such Equity Interest in the Parent, the Obligor or any other Restricted Subsidiary.
“ Restricted Subsidiaries ” means (a) the Obligor and (b) the other Subsidiaries other than the Unrestricted Subsidiaries; provided that upon any Unrestricted Subsidiary ceasing to be an Unrestricted Subsidiary, such Subsidiary shall be a “Restricted Subsidiary”.
“ S&P ” means Standard & Poor’s Ratings Group, Inc.
“ Sanctions ” shall have the meaning assigned to such term in Section 3.09(d)(i) .
“ Second Lien Intercreditor Agreement ” means an intercreditor agreement among the Loan Parties, the Collateral Agent and each Authorized Representative with respect to any Permitted Second Lien Refinancing Debt, in the form of Exhibit G .
 
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“ Secured Hedge Agreement ” means any Hedge Agreement entered into between a Secured Hedge Bondholder and any Loan Party.
“ Secured Hedge Bondholder ” means any counterparty to any Hedge Agreement, if and to the extent that (a) such party was (i) an Arranger, an Agent or an Affiliate of any of the foregoing under this Agreement as of the Closing Date or at the time such Hedge Agreement was entered into or (ii) a Bondholder or an Affiliate of a Bondholder at the time such Hedge Agreement was entered into and (b) such counterparty executes a Secured Hedge/Treasury Holder Joinder Agreement and thereby becomes a Secured Party under this Agreement, the Security Documents (including the Intercreditor Agreement) and the Guaranty Agreement, provided , however that such Secured Hedge Bondholder need execute only one Secured Hedge/Treasury Holder Joinder Agreement for any ISDA or other master agreement governing one or more Hedge Agreements.
“ Secured Hedge/Treasury Holder Joinder Agreement ” shall have the meaning assigned to such term in the Security Agreement.
“ Secured Hedge Lender ” has the meaning assigned to such term in the HFOTCO Credit Agreement.
“ Secured Obligations ” has the meaning assigned to such term in the Security Agreement.
“ Secured Parties ” has the meaning assigned to such term in the Security Agreement.
“ Secured Treasury Bondholder ” means any provider of any Treasury Services, if and to the extent that (a) such provider was (i) an Arranger, an Agent or an Affiliate of any of the foregoing under this Agreement as of the Closing Date or at the time such Treasury Services were provided or (ii) a Bondholder or an Affiliate of a Bondholder at the time such Treasury Services were provided into and (b) such provider executes a Secured Hedge/Treasury Holder Joinder Agreement and thereby becomes a Secured Party under this Agreement, the Security Documents (including the Intercreditor Agreement) and the Guaranty Agreement.
“ Securities Act ” means the Securities Act of 1933.
“ Securities Exchange Act ” has the meaning assigned to such term in Section 5.03(k) .
“ Security Agreement ” means the Pledge and Security Agreement, dated as of the Closing Date, among the Loan Parties and the Collateral Agent.
“ Security Documents ” means the Security Agreement, the Mortgages, the Control Agreements, the Intercreditor Agreement and all other instruments and documents executed and delivered pursuant to any of the foregoing or pursuant to Section 5.10 , 5.11 or 5.12 .
“ Series ” means each separate series of Bonds.
“ Series 2010 Bonds ” means the Harris County Industrial Development Corporation Marine Terminal Revenue Bonds (HFOTCO LLC Project) Series 2010, issued and outstanding in the aggregate principal amount of $75,000,000.
 
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“ Series 2011 Bonds ” means the Harris County Industrial Development Corporation Marine Terminal Revenue Bonds (HFOTCO LLC Project) Series 2011, issued and outstanding in the aggregate principal amount of $50,000,000.
“ Series 2012 Bonds ” means the Harris County Industrial Development Corporation Marine Terminal Revenue Bonds (HFOTCO LLC Project) Series 2012, issued and outstanding in the aggregate principal amount of $100,000,000.
“ Sites ” means each parcel of land on which any portion of the Terminal Storage Facility is located.
“ Specified Default ” means any event or condition that upon notice, lapse of time or both would constitute an Event of Default under clause (b) , (c) , (g)  or (h)  of Section 7.01 .
“ Specified EBITDA Adjustment ” means, for any period of four consecutive Fiscal Quarters of the Parent, (a) the item described in clause (a)(x) of the definition of “EBITDA” and included in the calculation of EBITDA for such period and (b) any cost savings and synergies referred to in clause (ii)  of Section 1.02(f) included in the calculation of EBITDA for such period.
“ Specified Equity Contribution ” shall have the meaning assigned to such term in Section 7.06 .
“ Specified Redemption Amount ” means, with respect to any Net Recovery Proceeds or Net Sale Proceeds, the product of (a) the amount of such Net Recovery Proceeds or Net Sale Proceeds, as applicable, multiplied by (b) a fraction, (i) the numerator of which is the aggregate outstanding principal amount of the Permitted First Lien Refinancing Debt and (ii) the denominator of which is the sum of (A) the aggregate outstanding principal amount of the Permitted First Lien Refinancing Debt and (B) the aggregate outstanding principal amount of the Term Loans.
“ Specified Total Adjusted Net Leverage Ratio ” means 5.00 to 1.00.
“ Specified Transaction ” means (a) an Acquisition, (b) a Divestiture or (c) the designation of any Subsidiary as an Unrestricted Subsidiary pursuant to Section 5.17 .
“ Sponsor ” means Alinda Capital Partners Ltd.; provided that, solely for purposes of its use in the definition of “ Change of Control ”, “ Sponsor ” means, collectively, Alinda Capital Partners Ltd., the Sponsor Funds, Alinda Infrastructure Fund I, L.P., Alinda Infrastructure Parallel Fund I, L.P., Alinda Infrastructure Parallel Fund I-A, L.P. and each other fund formed after the Closing Date that is Controlled and managed by Alinda Capital Partners Ltd. or managed by an Affiliate of Alinda Capital Partners Ltd. that is principally engaged in the business of managing private investment funds.
“ Sponsor Funds ” means, collectively, Alinda Infrastructure Fund II, L.P., a Delaware limited partnership, and Alinda Infrastructure Parallel Fund II, L.P., a Cayman Islands exempted limited partnership.
 
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“ Storage Contracts ” means each of the agreements listed on Schedule 1.01 and each other fuel oil storage contract or agreement for the provision by the Obligor or any other Restricted Subsidiary of fuel oil storage capacity at the Terminal Storage Facility, entered into by, or assigned to, the Obligor or any other Restricted Subsidiary.
“ Subordinated Affiliate Indebtedness ” means any Indebtedness of the Obligor or any Restricted Subsidiary thereof that (a) is owed to any Person that is an Affiliate of the Obligor or any Restricted Subsidiary thereof and (b) satisfies the Subordinated Indebtedness Requirement.
“ Subordinated Indebtedness ” of any Person means any Indebtedness of such Person that is subordinated in right of payment to any other Indebtedness of such Person (including, for the avoidance of doubt, Subordinated Affiliate Indebtedness and Subordinated Third Party Indebtedness).
“ Subordinated Indebtedness Requirement ” means, with respect to any Indebtedness, the requirement that (a) such Indebtedness is subordinated in right of payment to the Obligations on terms and conditions reasonably satisfactory to the Administrative Agent, (b) such Indebtedness is unsecured, (c) the stated final maturity of such Indebtedness is not earlier than the date that is 180 days after the latest HFOTCO Credit Facilities Maturity Date in effect in effect at the time such Indebtedness is incurred, and such stated final maturity is not subject to any conditions that could result in such stated final maturity occurring on a date that precedes the date that is 180 days after the latest HFOTCO Credit Facilities Maturity Date in effect at the time such Indebtedness is incurred, (d) such Indebtedness is not required to be amortized, repaid, prepaid, redeemed, repurchased or defeased, whether on one or more fixed dates, upon the occurrence of one or more events or at the option of any holder thereof (other than customary offers to repurchase upon a change of control, asset sale or event of loss and customary acceleration rights after an event of default) prior to the date 180 days after the latest HFOTCO Credit Facilities Maturity Date in effect at the time such Indebtedness is incurred, (e) such Indebtedness does not constitute an obligation (including pursuant to a Guarantee) of any Person other than the Loan Parties and (f) such Indebtedness contains terms and conditions (excluding pricing, premiums and optional prepayment or optional redemption provisions) that are market terms on the date of incurrence thereof (as determined in good faith by the board of directors (or other governing body) of the Parent) or are not materially more restrictive than the covenants and events of default contained in this Agreement ( provided that a certificate of a Responsible Officer of the Parent and the Obligor delivered to the Administrative Agent at least five Business Days prior to the incurrence of such Indebtedness, together with a reasonably detailed description of the material terms and conditions of such Indebtedness or drafts of the documentation relating thereto, stating that the Parent and the Obligor have determined in good faith that such terms and conditions satisfy the requirement of this clause (f) shall be conclusive evidence that such terms and conditions satisfy such requirement unless the Administrative Agent notifies the Parent and the Obligor within such five Business Day period that it disagrees with such determination (including a reasonable description of the basis upon which it disagrees).
“ Subordinated Third Party Indebtedness ” means any Indebtedness of the Obligor or any Restricted Subsidiary thereof that (a) is owed to any Person that is not an Affiliate of the Parent or any Subsidiary and (b) satisfies the Subordinated Indebtedness Requirement (except for clause (d) of the definition thereof, to the extent that such clause would prohibit the amortization or the making of scheduled repayments of such Indebtedness).
 
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“ Subsidiary ” means, with respect to any Person, any corporation, partnership, limited liability company, association or other business entity of which securities or other ownership interests representing more than 50% of the equity or more than 50% of the ordinary voting power or more than 50% of the general partnership interests are, at the time any determination is being made, directly or indirectly, owned, Controlled or held by such Person. Unless the context requires otherwise, references herein to a “Subsidiary” shall refer to a Subsidiary of the Parent.
“ Subsidiary Loan Party ” means each Subsidiary that is a party to the Guaranty Agreement and the Security Agreement. Unless the context requires otherwise, the term “Subsidiary Loan Party” shall include the Obligor.
“ Substantial User ” means any Bondholder that is a “substantial user” of the Terminal Storage Facility (or any other property financed by a Series of the Bonds) or any “related person” within the meaning of Section 147(a) of the Code.
“ Super Senior Leverage Ratio ” means, as of any date of calculation, the ratio of (a) Total Super Senior Indebtedness as of such date to (b) EBITDA for the period of four consecutive Fiscal Quarters of the Parent most recently ended on or prior to such date.
“ Tax Certificate and Agreement ” shall have the meaning assigned to such term in the Indenture.
“ Taxable Date ” means the date on which interest on the Bonds is first includable in gross income of a Bondholder (including, without limitation, any previous Bondholder) as a result of an Event of Taxability as such date is established pursuant to a Determination of Taxability.
“ Taxable Period ” has the meaning set forth in Section 2.04 hereof.
“ Taxable Rate ” means, with respect to a Taxable Period, the product of (i) the LIBOR Term Indexed Rate and (ii) the Taxable Rate Factor. As of the Closing Date, the Taxable Rate Factor is 1.53846.
“ Taxable Rate Factor ” means the amount by which the LIBOR Term Indexed Rate must be multiplied to achieve the equivalent taxable rate given the highest marginal federal corporate income Tax rate (which is 35%, as of the Closing Date). The Taxable Rate Factor from time to time shall be determined by the Administrative Agent and notified by the Administrative Agent to the Trustee.
“ Taxes ” means any and all present or future taxes, levies, imposts, duties, deductions, charges or withholdings (including backup withholding), assessments, fees or other charges imposed, levied, withheld, collected or assessed by any Governmental Authority, including any interest, penalties, additions to tax or fines applicable thereto.
“ Term Loans ” has the meaning given to such term in the HFOTCO Credit Agreement.
 
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“ Terminal Storage Facility ” shall have the meaning assigned to such term in the recitals.
“ Terminated Liens ” means the Liens securing the Existing Indebtedness.
“ Total Adjusted Net Indebtedness ” means, as of any date of determination, an amount equal to (a) Total Indebtedness as of such date, less (b) all or a portion (as determined by the Parent and the Obligor) (but, for any date on or prior to December 31, 2015, not in excess of $25,000,000) of the aggregate amount of Unrestricted cash and Permitted Investments of the Loan Parties as of such date that is subject to a Control Agreement.
“ Total Adjusted Net Leverage Ratio ” means, as of any date of calculation, the ratio of (a) Total Adjusted Net Indebtedness as of such date to (b) Adjusted EBITDA for the period of four consecutive Fiscal Quarters of the Parent most recently ended on or prior to such date.
“ Total Indebtedness ” means, as of any date of determination, the total consolidated Indebtedness of the Parent and the Restricted Subsidiaries determined in accordance with GAAP as of such date, without giving effect to (a) any election to value any Indebtedness at “fair value”, as described in Section 1.02(d), (b) Indebtedness of the type referred to in clause (h) of the definition of “Indebtedness” or (c) Indebtedness incurred in reliance on clause (a) of the definition of “Permitted Debt”.
“ Total Exposure ” means, at any date, the aggregate outstanding principal amount of the Bonds at such time less the aggregate principal amount of Bonds that have been repurchased or redeemed on or prior to such date.
“ Total Loss ” means (a) the complete destruction of all or substantially all of the Terminal Storage Facility, (b) the destruction of all or substantially all of the Terminal Storage Facility irretrievably beyond repair or (c) the destruction of all or substantially all of the Terminal Storage Facility such that the insured may claim the whole amount of any insurance policy covering the Terminal Storage Facility upon abandoning the Terminal Storage Facility to the insurance underwriters therefor.
“ Total Super Senior Indebtedness ” means, as of any date of calculation, with respect to the Parent and the Restricted Subsidiaries on a consolidated basis, an amount equal to the principal amount of the outstanding Bonds less the aggregate principal amount of Bonds that have been repurchased or redeemed on or prior to such date.
“ Transactions ” means (a) the execution, delivery and performance by each Loan Party of the Bond Documents to which it is to be a party and the sale and purchase of Bonds contemplated thereunder, (b) the execution, delivery and performance by each Loan Party of the HFOTCO Credit Document to which it is to be a party, the borrowing of loans thereunder, the use of the proceeds thereof and the issuance (or deemed issuance) of letters of credit (if any) thereunder, (c) the granting of the Liens contemplated hereby and by the Security Documents and (d) the other transactions contemplated by this Agreement, the other Bond Documents and the HFOTCO Credit Documents.
“ Transferee ” means (i) each Non-Purchaser Transferee and (ii) each Purchaser Transferee other any Purchaser Transferee pursuant to Section 9.06(b)(ii).
 
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“ Treasury Services ” shall have the meaning assigned to such term in the Security Agreement.
“ Trustee ” means The Bank of New York Mellon Trust Company, National Association, as trustee under each of the Indentures, and its successors and assigns in such capacity as permitted thereunder.
“ UCC ” means the Uniform Commercial Code as in effect from time to time in the state of New York; provided that if, with respect to any financing statement or by reason of any provisions of law, the perfection or the effect of perfection or non-perfection of the security interests granted to the Collateral Agent pursuant to the applicable Bond Document is governed by the Uniform Commercial Code as in effect in a jurisdiction of the United States other than New York, UCC means the Uniform Commercial Code as in effect from time to time in such other jurisdiction for purposes of the provisions of each Bond Document and any financing statement relating to such perfection or effect of perfection or non-perfection.
“ United States ” and “ U.S. ” shall each mean the United States of America.
“ Unrestricted ” means, when used in reference to cash or Permitted Investments of any Person, that such cash or Permitted Investments is not Restricted.
“ Unrestricted Subsidiary ” means any Subsidiary (other than the Obligor) designated by the board of directors (or similar governing body) of the Parent as an Unrestricted Subsidiary pursuant to Section 5.17 subsequent to the Closing Date. The Parent may designate any Subsidiary (other than the Obligor) to be an Unrestricted Subsidiary unless such Subsidiary or any of its Subsidiaries owns any Equity Interests or Indebtedness of, or owns or holds any Lien on any property of, the Parent, the Obligor or any other Restricted Subsidiary (other than any Subsidiary of the Subsidiary to be so designated).
“ U.S. Bankruptcy Code ” means Title 11 of the United States Code, as amended, or any similar federal or state law for the relief of debtors.
“ U.S.A. Patriot Act ” means the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, Public Law 107-56 (signed into law on October 26, 2001).
“ U.S. Person ” means a “United States person” within the meaning of Section 7701(a)(30) of the Code.
“ U.S. Tax Compliance Certificate ” has the meaning set forth in Section 2.13(e)(ii)(B)(iii) hereof.
“ wholly-owned ”, when used in reference to a Subsidiary of any Person, means that all the Equity Interests in such Subsidiary (other than directors’ qualifying shares and other nominal amounts of Equity Interests that are required to be held by other Persons under applicable law) are owned, beneficially and of record, by such Person, another wholly-owned Subsidiary of such Person or any combination thereof.
 
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Section 1.02. Other Interpretive Provisions . With reference to this Agreement, unless otherwise specified herein:
(a) the definitions of terms herein shall apply equally to the singular and plural forms of the terms defined. Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. The words “include,” “includes” and “including” shall be deemed to be followed by the phrase “without limitation.” The word “will” shall be construed to have the same meaning and effect as the word “shall.” Unless the context requires otherwise, (i) any definition of or reference to any agreement, instrument or other document shall be construed as referring to such agreement, instrument or other document as from time to time amended, supplemented or otherwise modified (subject to any restrictions on such amendments, supplements or modifications set forth herein or in any other Bond Document), (ii) any reference herein to any Person shall be construed to include such Person’s successors and assigns, (iii) the words “hereto,” “herein,” “hereof” and “hereunder,” and words of similar import when used in any Bond Document, shall be construed to refer to such Bond Document in its entirety and not to any particular provision thereof, (iv) all references in a Bond Document to Articles, Sections, Exhibits and Schedules shall be construed to refer to Articles and Sections of, and Exhibits and Schedules to, the Bond Document in which such references appear, and (v) any reference to any law shall include all statutory and regulatory provisions consolidating, amending, replacing or interpreting such law and any reference to any law or regulation shall, unless otherwise specified, refer to such law or regulation as amended, modified or supplemented from time to time;
(b) in the computation of periods of time from a specified date to a later specified date, the word “from” means “from and including;” the words “to” and “until” each mean “to but excluding;” and the word “through” means “to and including”;
(c) section headings herein and in the other Bond Documents are included for convenience of reference only and shall not affect the interpretation of this Agreement or any other Bond Document;
(d) except as otherwise expressly provided herein, all terms of an accounting or financial nature shall be construed in accordance with GAAP, as in effect from time to time; provided that (i) if the Obligor notifies the Administrative Agent that the Obligor requests an amendment to any provision hereof to eliminate the effect of any change occurring after the Closing Date in GAAP or in the application thereof on the operation of such provision (or if the Administrative Agent notifies the Obligor that the Required Bondholders request an amendment to any provision hereof for such purpose), regardless of whether any such notice is given before or after such change in GAAP or in the application thereof, then such provision shall be interpreted on the basis of GAAP as in effect and applied immediately before such change shall have become effective until such notice shall have been withdrawn or such provision amended in accordance herewith, and (ii) notwithstanding any other provision contained herein, all terms of an accounting or financial nature used herein shall be construed, and all computations of amounts and ratios referred to herein shall be made, without giving effect to any election under Accounting Standards Codification 825-10-25, or any successor thereto, to value any Indebtedness of the Parent or any Subsidiary at “fair value”, as defined therein;
 
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(e) the words “asset” and “property” shall be construed to have the same meaning and effect and to refer to any and all tangible and intangible assets and properties, including cash, securities, accounts and contract rights; and
(f) all pro forma computations required to be made hereunder giving effect to any Specified Transaction, Permitted Acquisition or other transaction (i) shall be calculated after giving pro forma effect thereto (and, in the case of any pro forma computations made hereunder to determine whether such Specified Transaction, Permitted Acquisition or other transaction is permitted to be consummated hereunder, to any other such transaction consummated since the first day of the period covered by any component of such pro forma computation and on or prior to the date of such computation) as if such transaction had occurred on the first day of the period of four consecutive Fiscal Quarters ending with the most recent Fiscal Quarter for which financial statements shall have been delivered pursuant to Section 5.04(a) or 5.04(b) (or, prior to the delivery of any such financial statements, ending with the last Fiscal Quarter included in the unaudited financial statements referred to in Section 3.06(b) ), and, to the extent applicable, to the historical earnings and cash flows associated with the assets acquired or disposed of and any related incurrence or reduction of Indebtedness, all in accordance with Article 11 of Regulation S-X under the Securities Act, and (ii) in the case of any Acquisition, may reflect pro forma adjustments for cost savings and synergies (net of continuing associated expenses) to the extent such cost savings or synergies, as the case may be, have been realized or are reasonably expected to be realized within 365 days following such Acquisition, provided that (A) the Parent and the Obligor shall have delivered to the Administrative Agent a certificate of the chief financial officer of the Parent and the Obligor, in form and substance reasonably satisfactory to the Administrative Agent, certifying that such cost savings or synergies meet the requirements set forth in this clause (ii) , together with reasonably detailed evidence in support thereof, (B) any adjustment to EBITDA for any period of four consecutive Fiscal Quarters of the Parent as a result of such cost savings or synergies shall be subject to the Aggregate Cap and (C) if any cost savings or synergies included in any pro forma calculations based on the expectation that such cost savings or synergies will be realized within 365 days following such acquisition shall at any time cease to be reasonably expected to be so realized within such period, then on and after such time pro forma calculations required to be made hereunder shall not reflect such cost savings or synergies. If any Indebtedness bears a floating rate of interest and is being given pro forma effect, the interest on such Indebtedness shall be calculated as if the rate in effect on the date of determination had been the applicable rate for the entire period (taking into account any Hedge Agreement applicable to such Indebtedness if such Hedge Agreement has a remaining term in excess of 12 months).
Section 1.03. Times of Day . Unless otherwise specified, all references herein to times of day shall be references to Eastern time (daylight or standard, as applicable).
ARTICLE II
PURCHASE OF BONDS AND THE OBLIGOR’S OBLIGATIONS
Section 2.01. Purchase of Bonds.
(a) Purchase Price . Upon the satisfaction of the conditions set forth in Section 4.01 hereof and based on the representations, warranties and covenants of the Obligor set forth herein,
 
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the Purchasers hereby agree to purchase from the Obligor (in the respective principal amounts for each Purchaser set forth on Schedule II ), and the Obligor hereby agrees to sell to the Purchasers, all, but not less than all, of the Bonds at a purchase price equal to 100% of principal amount (the “ Purchase Price ”).
(b) Closing . On the Closing Date, the Obligor shall deliver to the Purchasers the documents described in and otherwise satisfy the conditions described in Section 4.01 hereof. Upon the satisfaction of such conditions, the Purchasers will pay the Purchase Price for the Bonds in immediately available federal funds to the Existing Letter of Credit Issuer as reimbursement for the amounts drawn on the Existing Letters of Credit to pay, in connection with the mandatory tender of the Bonds on the Closing Date, the purchase price thereof. One fully registered Bond for each series, in principal amount equal to the Purchase Price of such Bonds paid by the applicable Purchaser, shall be issued in certificated form to, registered in the name of, and delivered to such Purchaser.
Section 2.02. Payment Obligations . (a) The Obligor hereby unconditionally, irrevocably and absolutely agrees to make prompt and full payment of all payment Obligations owed by the Obligor to the Bondholders under the Bond Documents and hereby unconditionally, irrevocably and absolutely guarantees prompt and full payment (and not merely collection) when due of all payment obligations owing by the Issuer to the Bondholders under the Bond Documents, on the terms and conditions therein provided, whether now existing or hereafter arising, irrespective of their nature, whether direct or indirect, absolute or contingent, with interest thereon at the rate or rates provided in such Bond Documents.
(b) In the event the Bondholders do not receive the Mandatory Tender Purchase Price for the Bonds owned by them on the Mandatory Purchase Date, then the same shall constitute an Event of Default hereunder, and the Administrative Agent shall, upon the direction of the Required Bondholders, notify the Trustee that the Bonds shall bear interest at the Default Rate from and including the Mandatory Purchase Date until such date as such Event of Default is no longer continuing.
(c) The Obligor shall pay within thirty (30) days after demand any amounts advanced by or on behalf of the Bondholders to the extent required to cure any Default, Event of Default or event of nonperformance hereunder or any Bond Document, together with interest at the Default Rate.
Section 2.03. Default Rate . Past due payments on the Bonds shall bear interest at the Default Rate pursuant to Section 2.07B of the Indenture, and all other past due Obligations shall bear interest at the Default Rate, which, in the case of all such other past due Obligations, shall be payable by the Obligor to the Administrative Agent for the ratable benefit of each Bondholder upon demand therefor and be calculated on the basis of a 360-day year and actual days elapsed.
Section 2.04. Determination of Taxability . (a) In the event a Determination of Taxability occurs, the Obligor hereby agrees to pay to the Administrative Agent for the ratable benefit of each Bondholder on demand therefor (i) an amount equal to the difference between (A) the amount of interest that would have been paid to such Bondholder on the Bonds during the period from the Taxable Date to the date of the Determination of Taxability if the Bonds had
 
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borne interest at the Taxable Rate (the “ Taxable Period ”), and (B) the amount of interest actually paid to the Bondholder during the Taxable Period, and (ii) an amount equal to any interest, penalties or charges owed by such Bondholder as a result of interest on the Bonds accrued in the Taxable Period becoming included in the gross income of such Bondholder, together with any and all attorneys’ fees, court costs, or other out-of-pocket costs incurred by such Bondholder in connection therewith;
(b) Subject to the provisions of paragraph (c)  below, such Bondholder shall afford the Obligor the reasonable opportunity, at the Obligor’s sole cost and expense, to contest (i) the validity of any amendment to the Code which causes the interest on the Bonds to be included in the gross income of such Bondholder or (ii) any challenge to the validity of the Tax exemption with respect to the interest on the Bonds, including the right to direct the necessary litigation contesting such challenge (including administrative audit appeals); and
(c) As a condition precedent to the exercise by the Obligor of its right to contest set forth in paragraph (b)  above, the Obligor shall, on demand, immediately reimburse such Bondholder for any and all reasonable and documented expenses (including reasonable and documented attorneys’ fees for services that may be required or desirable, as determined by such Bondholder (in its sole discretion) that may be incurred by the Bondholder in connection with any such contest, and shall, on demand, immediately reimburse the Bondholder for any payments, including any Taxes, interest, penalties or other charges payable by such Bondholder for failure to include such interest in its gross income.
Section 2.05. Maximum Interest Rate . (a) If the amount of interest payable for any period in accordance with the terms hereof or the Bonds exceeds the amount of interest that would be payable for such period had interest for such period been calculated at the Maximum Rate, then interest for such period shall be payable in an amount calculated at the Maximum Rate.
(b) Any interest that would have been due and payable for any period but for the operation of the immediately preceding paragraph (a)  shall accrue and be payable as provided in this paragraph (b)  and shall, less interest actually paid to each Bondholder for such period, constitute the “ Excess Interest Amount .” If there is any accrued and unpaid Excess Interest Amount as of any date, then the principal amount with respect to which interest is payable shall bear interest at the Maximum Rate until payment to each Bondholder of the entire Excess Interest Amount.
(c) Notwithstanding the foregoing, on the date on which no principal amount with respect to the Bonds remains unpaid, to the extent permitted by law and upon receipt by the Trustee of a Favorable Opinion of Bond Counsel, which the Obligor shall promptly request upon the request of the Administrative Agent or any Bondholder, the Obligor shall pay to the Administrative Agent for the ratable benefit of each Bondholder a fee equal to any accrued and unpaid Excess Interest Amount.
Section 2.06. Obligations Absolute . The payment obligations of the Obligor under this Agreement shall be unconditional and irrevocable herein and shall be paid strictly in accordance with the terms of this Agreement under all circumstances, including without limitation the following:
 
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(a) any lack of validity or enforceability of this Agreement, the Bonds or any of the other Bond Documents;
(b) any amendment or waiver of or any consent to departure from all or any of the Bond Documents;
(c) the existence of any claim, set-off, defense or other right which the Obligor may have at any time against the Purchasers, any other Bondholder or any other person or entity, whether in connection with this Agreement, the other Bond Documents, the transactions contemplated herein or therein or any unrelated transaction; or
(d) any other circumstance or happening whatsoever, whether or not similar to any of the foregoing.
Section 2.07. No Bond Rating; CUSIP . The Obligor shall not be required to maintain a rating on the Bonds. The Bonds delivered to the Purchasers on the Closing Date shall not bear CUSIP numbers; however, if any of the Bonds are subsequently transferred to the Securities Depository (as defined in the Indentures) pursuant to Section 2.20 of any of the respective Indenture, the Bondholder Representative shall have the right (with the consent of the Obligor, not to be unreasonably withheld and to the extent CUSIP numbers are legally obtainable) to obtain CUSIP numbers for such Bonds and, in such event may obtain replacement Bonds pursuant to the respective Indenture which bear such CUSIP numbers.
Section 2.08. Bondholder Consent to Subsequent Indexed Mode . (a) On or before the date that is one hundred twenty (120) days prior to the Mandatory Purchase Date, the Obligor may provide written notice to the Bondholders of its desire to change the interest rate Mode of the Bonds (including remarketing for a new Interest Period in the LIBOR Term Indexed Mode) and requesting the Bondholders to purchase such Bonds in such new Mode or for such new Interest Period or provide the liquidity or credit enhancement necessary to facilitate the conversion of the Bonds to such new Mode. The Bondholders will make reasonable efforts to respond to such request within sixty (60) days after receipt of all information necessary, in the Bondholders’ reasonable judgment, to permit the Bondholders to make an informed credit decision. The Bondholders may, in their sole and absolute discretion, decide to accept or reject any such request, and no consent shall become effective unless all of the Bondholders shall have consented thereto in writing. In the event the Bondholders fail to definitively respond to such request within such sixty (60) day period, the Bondholders shall be deemed to have refused to grant such request. The consent of the Bondholders, if granted, shall be conditioned upon the preparation, execution and delivery of documentation in form and substance satisfactory to the Bondholders (which may include, but not be limited to, the delivery of a “no adverse effect opinion” of Bond Counsel to the Bondholders with respect to the tax-exempt status of the Bonds as a result of such conversion or remarketing). In the event the Obligor and the Bondholders fail to document in writing their agreement of the proposed terms of the succeeding Interest Period(s), the Obligor shall continue to be required to repurchase the Bonds on the Mandatory Purchase Date at the Mandatory Tender Purchase Price.
 
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Section 2.09. Optional Redemptions and Purchases . The Obligor may, upon notice to the Administrative Agent, at any time and from time to time undertake an optional redemption or purchase of Bonds pursuant to the terms of the Indenture; provided , that, (a) unless otherwise agreed by the Administrative Agent, such notice shall be received by the Administrative Agent at least 30 days prior to the date of such proposed optional redemption or purchase in lieu of redemption of Bonds, and (b) any such optional redemption or purchase in lieu of redemption of Bonds shall be in denominations authorized by the Indenture. Any redemption or purchase of the Bonds shall be accompanied by all accrued interest on the amount prepaid. In addition, in connection with any such redemption or purchase of the Bonds, the Obligor shall pay to each Bondholder any additional amounts required to be paid to such Bondholder pursuant to Section 2.15 .
Section 2.10. Mandatory Conversions and Redemptions.
(a) No later than the fifth Business Day following the date of receipt by the Parent or any Restricted Subsidiary of any Net Recovery Proceeds exceeding $1,000,000, the Obligor shall apply all such Net Recovery Proceeds (A) first, to mandatory redemption or purchase of the outstanding Bonds pursuant to Section 4.01H of the Indenture and in accordance with Section 2.10(d) and (B) second, to the prepayment of Term Loans under the HFOTCO Credit Facilities ( provided , that the Obligor may apply a portion of the Net Recovery Proceeds to be applied in accordance with this clause (B) to redeem or repurchase Permitted First Lien Refinancing Debt in an amount not to exceed the Specified Redemption Amount); provided , further , that, in the case of any Recovery Event (other than any Recovery Event in respect of a Total Loss), if the Obligor shall, prior to the date of the required prepayment, deliver to the Administrative Agent a certificate of a Financial Officer of the Obligor to the effect that the Obligor intends to cause the Net Recovery Proceeds with respect to such Recovery Event (or a portion of such Net Recovery Proceeds specified in such certificate) to be applied within 365 days after receipt of such Net Recovery Proceeds to acquire real property, equipment or other tangible long-term assets to be used in the business of the Obligor or the other Restricted Subsidiaries or to demolish, repair or restore the real property or equipment damaged as a result of a casualty, then no prepayment shall be required pursuant to this paragraph in respect of such Net Recovery Proceeds (or the portion of such Net Recovery Proceeds specified in such certificate, if applicable) except to the extent of any such Net Recovery Proceeds that have not been so applied by the end of such 365 day period (or within a period of 545 days after receipt of such Net Recovery Proceeds if by the end of such initial 365 day period the Obligor or one or more other Restricted Subsidiaries shall have entered into an agreement with a third party to acquire such real property, equipment or other tangible long-term assets with such Net Recovery Proceeds), at which time a prepayment shall be required in an amount equal to such Net Recovery Proceeds that have not been so applied.
(b) No later than the fifth Business Day following the date of receipt by the Parent or any Restricted Subsidiary of any Net Sale Proceeds exceeding $1,000,000, the Obligor shall apply all such Net Sale Proceeds (A) first, to first, to mandatory redemption or purchase of the outstanding Bonds pursuant to Section 4.01H of the Indenture and in accordance with Section 2.10(d) and (B) second, to the prepayment of the Term Loans under the HFOTCO Credit Facilities ( provided , that the Obligor may apply a portion of the Net Recovery Proceeds to be applied in accordance with this clause (B) to redeem or repurchase Permitted First Lien
 
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Refinancing Debt in an amount not to exceed the Specified Redemption Amount); provided , further , that, in the case of any Asset Sale, if the Obligor shall, prior to the date of the required prepayment, deliver to the Administrative Agent a certificate of a Financial Officer of the Obligor to the effect that the Obligor intends to cause the Net Sale Proceeds with respect to such Asset Sale (or a portion of such Net Sale Proceeds specified in such certificate) to be applied within 365 days after receipt of such Net Sale Proceeds to acquire real property, equipment or other tangible long-term assets to be used in the business of the Obligor or the other Restricted Subsidiaries, or to consummate any Permitted Acquisition permitted hereunder, then no prepayment shall be required pursuant to this paragraph in respect of such Net Sale Proceeds (or the portion of such Net Sale Proceeds specified in such certificate, if applicable) except to the extent of any such Net Sale Proceeds that have not been so applied by the end of such 365 day period (or within a period of 545 days after receipt of such Net Sale Proceeds if by the end of such initial 365 day period the Obligor or one or more other Restricted Subsidiaries shall have entered into an agreement with a third party to acquire such real property, equipment or other tangible long-term assets, or to consummate such Permitted Acquisition, with such Net Sale Proceeds), at which time a prepayment shall be required in an amount equal to such Net Sale Proceeds that have not been so applied.
(c) No later than the first Business Day following the date of receipt by the Parent or any Restricted Subsidiary of any Net Issuance Proceeds from the incurrence of any Indebtedness of the Parent, the Obligor or any other Restricted Subsidiary (other than with respect to any Indebtedness permitted to be incurred by Section 6.02 ), the Obligor shall apply such Net Issuance Proceeds to the redemption, repurchase or prepayment, as applicable, on a pro rata basis, of (A) the outstanding Bonds pursuant to Section 4.01H of the Indenture and in accordance with Section 2.10(d) and (B) Term Loans under the HFOTCO Credit Facilities.
(d) Payments made on account of the optional or mandatory redemption or purchase of the Bonds made pursuant to Section 2.09 or Section 2.10(a) , (b)  or (c) , shall be applied ratably to each Series of Bonds and to each Bondholder as nearly as practicable in accordance with their Applicable Percentage, giving effect to the minimum Bond denominations in the Indenture.
(e) The Obligor shall give all notices required to be given to the Trustee pursuant to the terms of the Indenture to effectuate any optional or mandatory redemption or purchase of the Bonds to be made pursuant to Section 2.09 or Section 2.10(a) , (b)  or (c) .
Section 2.11. Fees . The Obligor shall pay to the Administrative Agent and the Collateral Agent, each for its own account, fees in the amounts and at the times specified in the Agency Fee Letter. Such fees shall be fully earned when paid and shall not be refundable for any reason whatsoever.
Section 2.12. Sharing of Payments by Bondholders . If any Bondholder shall, by exercising any right of setoff or counterclaim or otherwise, obtain payment in respect of (a) any Obligations due and payable to such Bondholder hereunder and under the other Bond Documents at such time in excess of its ratable share (according to the proportion of (i) the amount of such Obligations due and payable to such Bondholder at such time to (ii) the aggregate amount of the Obligations due and payable to all Bondholders hereunder and under the other Bond Documents at such time) of payments on account of the Obligations due and payable to all Bondholders
 
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hereunder and under the other Bond Documents at such time obtained by all the Bondholders at such time or (b) Obligations owing (but not due and payable) to such Bondholder hereunder and under the other Bond Documents at such time in excess of its ratable share (according to the proportion of (i) the amount of such Obligations owing (but not due and payable) to such Bondholder at such time to (ii) the aggregate amount of the Obligations owing (but not due and payable) to all Bondholders hereunder and under the other Bond Documents at such time) of payments on account of the Obligations owing (but not due and payable) to all Bondholders hereunder and under the other Bond Documents at such time obtained by all of the Bondholders at such time, then, in each case under clauses (a)  and (b)  above, the Bondholder receiving such greater proportion shall (A) notify the Administrative Agent of such fact, and (B) purchase (for cash at face value) participations in the Bonds of the other Bondholders, or make such other adjustments as shall be equitable, so that the benefit of all such payments shall be shared by the Bondholders ratably in accordance with the aggregate amount of Obligations then due and payable to the Bondholders or owing (but not due and payable) to the Bondholders, as the case may be, provided that:
(a) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest; and
(b) the provisions of this Section shall not be construed to apply to (x) any payment made by or on behalf of the Obligor pursuant to and in accordance with the express terms of this Agreement, or (z) any payment obtained by a Bondholder as consideration for the assignment of or sale of a participation in any of its Bonds to any assignee or participant.
Each Loan Party consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Bondholder acquiring a participation pursuant to the foregoing arrangements may exercise against such Loan Party rights of setoff and counterclaim with respect to such participation as fully as if such Bondholder were a direct creditor of such Loan Party in the amount of such participation.
Section 2.13. Taxes.
(a) Except as otherwise required by Governmental Rule, any and all payments by or on account of any Obligation shall be made free and clear of and without deduction or withholding for or on account of any Taxes; provided that, if by Governmental Rule any Taxes are required to be deducted or withheld from any such payments, then (i) the applicable withholding agent shall make such deductions or withholdings, (ii) the applicable withholding agent shall timely pay or cause to be paid the full amount deducted or withheld to the relevant Governmental Authority in accordance with applicable Governmental Rule and (iii) to the extent that such Taxes consist of Indemnified Taxes, the sum payable by or on behalf of the Obligor to the applicable Bondholder Party (or to the Issuer on behalf of or for the benefit of such Bondholder Party) shall be increased as necessary so that after such deduction or withholding has been made (including such deductions and withholdings of Indemnified Taxes applicable to additional sums payable under this Section 2.13(a) ) the applicable Bondholder Party receives an amount equal to the sum it would have received had no such deduction or withholding been made.
 
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(b) In addition, the Obligor shall timely pay or cause to be paid any Other Taxes to the relevant Governmental Authority in accordance with applicable Governmental Rule.
(c) The Obligor shall indemnify or cause to be indemnified each Bondholder Party, within 10 days after written demand therefor, for the full amount of any Indemnified Taxes payable or paid by such Bondholder Party (other than any penalties and interest resulting from gross negligence or willful misconduct, as determined by a final non-appealable judgment of the highest court of competent jurisdiction, of such Bondholder Party and without duplication of any amounts indemnified under Section 2.13(a) ) including Indemnified Taxes imposed or asserted on or attributable to amounts payable under this Section 2.13(c) ) and any reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability and setting forth in reasonable detail the calculation for such payment or liability delivered to the Obligor by a Bondholder Party, or by the Administrative Agent on its own behalf or on behalf of a Bondholder Party, shall be conclusive absent manifest error of such Bondholder Party or the Administrative Agent; provided that the Obligor shall not be required to compensate a Bondholder Party pursuant to this Section 2.13 for any Indemnified Taxes unless such Bondholder Party requests compensation from the Obligor not later than 365 days after the earlier of (i) the date on which the relevant Governmental Authority makes written demand upon such Bondholder Party for payment of such Indemnified Taxes, and (ii) the date on which such Bondholder Party has made payment of such Indemnified Taxes.
(d) As soon as practicable after any payment of Indemnified Taxes or Other Taxes by or on behalf of the Obligor to a Governmental Authority, the Obligor shall deliver to the Administrative Agent the original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment, a copy of the return reporting such payment or other evidence of such payment reasonably satisfactory to the Administrative Agent.
(e) (i) Any Bondholder that is entitled to an exemption from or reduction of withholding Tax with respect to payments under any Bond Document shall deliver to the Obligor and the Administrative Agent (with a copy to the Trustee), at the time or times reasonably requested by the Obligor or the Administrative Agent, such properly completed and executed documentation reasonably requested by the Obligor or the Administrative Agent as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Bondholder, if reasonably requested by the Obligor or the Administrative Agent, shall deliver such other documentation prescribed by Governmental Rule or reasonably requested by the Obligor or the Administrative Agent as will enable the Obligor or the Administrative Agent to determine whether or not such Bondholder is subject to backup withholding or information reporting requirements. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in Section 2.13(e)(ii)(A) , (ii)(B) and (ii)(D) below) shall not be required if in the Bondholder’s reasonable judgment such completion, execution or submission would subject such Bondholder to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Bondholder.
(ii) Without limiting the generality of the foregoing,
 
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(A) any Bondholder that is a U.S. Person shall deliver to the Obligor and the Administrative Agent (with a copy to the Trustee) on or prior to the date on which such Bondholder becomes a Bondholder under this Agreement (and from time to time thereafter upon the reasonable request of the Obligor or the Administrative Agent), executed originals of IRS Form W-9 certifying that such Bondholder is exempt from U.S. federal backup withholding Tax;
(B) any Non-U.S. Bondholder shall, to the extent it is legally entitled to do so, deliver to the Obligor and the Administrative Agent (in such number of copies as shall be requested by the recipient and with a copy being delivered to the Trustee) on or prior to the date on which such Non-U.S. Bondholder becomes a Bondholder under this Agreement (and from time to time thereafter upon the reasonable request of the Obligor or the Administrative Agent), whichever of the following is applicable:
i. in the case of a Non-U.S. Bondholder claiming the benefits of an income tax treaty to which the United States is a party (x) with respect to payments of interest under any Bond Document, executed originals of IRS Form W-8BEN or IRS Form W-8BEN-E establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty and (y) with respect to any other applicable payments under any Bond Document, IRS Form W-8BEN or IRS W-8BEN-E establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty;
ii. executed originals of IRS Form W-8ECI; or
iii. in the case of a Non-U.S. Bondholder claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, (x) a certificate substantially in the form of Exhibit H-1 to the effect that such Non-U.S. Bondholder is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, a “10 percent shareholder” of the Obligor within the meaning of Section 881(c)(3)(B) of the Code, or a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code (a “ U.S. Tax Compliance Certificate ”) and (y) executed originals of IRS Form W-8BEN or IRS Form W-8BEN-E; or
iv. to the extent a Non-U.S. Bondholder is not the beneficial owner, executed originals of IRS Form W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN or IRS Form W-8BEN-E, a U.S. Tax Compliance Certificate substantially in the form of Exhibit H-2 or Exhibit H-3 , IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that if the Non-U.S. Bondholder is a partnership and one or more direct or indirect partners of such Non-U.S. Bondholder are claiming the portfolio interest exemption, such Non-U.S. Bondholder may provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit H-4 on behalf of each such direct and indirect partner;
 
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(C) any Non-U.S. Bondholder shall, to the extent it is legally entitled to do so, deliver to the Obligor and the Administrative Agent (in such number of copies as shall be requested by the recipient and with a copy being delivered to the Trustee) on or prior to the date on which such Non-U.S. Bondholder becomes a Bondholder under this Agreement (and from time to time thereafter upon the reasonable request of the Obligor or the Administrative Agent), executed originals of any other form prescribed by Governmental Rule as a basis for claiming exemption from or a reduction in U.S. federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by applicable law to permit the Obligor or the Administrative Agent to determine the withholding or deduction required to be made; and
(D) if a payment made to a Bondholder Party under any Bond Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Bondholder Party were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Bondholder Party shall deliver to the Obligor and the Administrative Agent (with a copy to the Trustee) at the time or times prescribed by Governmental Rule and at such time or times reasonably requested by the Obligor or the Administrative Agent such documentation prescribed by Governmental Rule (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Obligor or the Administrative Agent as may be necessary for the Obligor, ,the Administrative Agent and, if applicable, the Trustee to comply with their obligations under FATCA and to determine that such Bondholder Party has complied with such Bondholder Party’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this clause (D) , “ FATCA ” shall include any amendments made to FATCA after the date of this Agreement.
Each Bondholder Party agrees that if any form or certification it previously delivered expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the Obligor, the Administrative Agent and, if applicable, the Trustee in writing of its legal inability to do so.
(f) Each Bondholder shall severally indemnify the Administrative Agent, within 10 days after demand therefor, for (i) any Indemnified Taxes attributable to such Bondholder (but only to the extent that the Obligor has not already indemnified the Administrative Agent for such Indemnified Taxes and without limiting the obligation of the Obligor to do so), (ii) any Taxes attributable to such Bondholder’s failure to comply with the provisions of Section 9.06(h) relating to the maintenance of a Participant Register and (iii) any Excluded Taxes attributable to such Bondholder, in each case, that are payable or paid by the Administrative Agent in connection with any Bond Document, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the
 
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relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to any Bondholder by the Administrative Agent shall be conclusive absent manifest error. Each Bondholder hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Bondholder under any Bond Document or otherwise payable by the Administrative Agent to the Bondholder from any other source against any amount due to the Administrative Agent under this paragraph (f) .
(g) If any party determines, in its sole discretion exercised in good faith, that it has received a refund of any Taxes as to which it has been indemnified pursuant to this Section 2.13 (including by the payment of additional amounts pursuant to this Section 2.13 ), it shall pay to the indemnifying party an amount equal to such refund (but only to the extent of indemnity payments made under this Section 2.13 with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses (including Taxes) of such indemnified party and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund). Such indemnifying party, upon the request of such indemnified party, shall repay to such indemnified party the amount paid over pursuant to this paragraph (g)  (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) in the event that such indemnified party is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary in this paragraph (g) , in no event will the indemnified party be required to pay any amount to an indemnifying party pursuant to this paragraph (g)  the payment of which would place the indemnified party in a less favorable net after-Tax position than the indemnified party would have been in if the Tax subject to indemnification and giving rise to such refund had not been deducted, withheld or otherwise imposed and the indemnification payments or additional amounts with respect to such Tax had never been paid. This paragraph shall not be construed to require any indemnified party to make available its Tax returns (or any other information relating to its Taxes that it deems confidential) to the indemnifying party or any other Person.
(h) For purposes of this Section 2.13 , the term “ Governmental Rule ” includes FATCA.
(i) On or before the date that the initial Administrative Agent (or any successor or replacement Administrative Agent) becomes an Administrative Agent hereunder, it shall deliver to the Obligor two duly executed originals of either (i) if the Administrative Agent is a U.S. Person, IRS Form W-9, or (ii), in the case of an Administrative Agent that is not a U.S. Person, (A) a duly completed IRS Form W-8ECI or (B) any other U.S. Tax form requested by the Obligor that the Administrative Agent can legally provide which establishes that payments made to such Administrative Agent are not subject to U.S. withholding Tax.
Section 2.14. Increased Costs.
(a) Increased Costs Generally . If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special deposit, compulsory loan, insurance charge or similar requirement against assets of, deposits with or for the account of, or credit extended or participated in by, a Bondholder;
 
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(ii) subject any Bondholder Party to any Taxes (other than (A) Indemnified Taxes, (B) Taxes described in clauses (b)  through (d)  of the definition of Excluded Taxes and (C) Connection Income Taxes) on its loans, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto; or
(iii) impose on a Bondholder or the London interbank market any other condition, cost or expense affecting this Agreement;
and the result of any of the foregoing shall be to increase the cost to any such Bondholder Party with respect to this Agreement, the Bonds, or the making, maintenance or funding of the purchase price of the Bonds, or to reduce the amount of any sum received or receivable by such Bondholder Party hereunder (whether of principal, interest or any other amount), in each case by an amount reasonably determined by such Bondholder Party to be material, then, upon request of such Bondholder Party, the Obligor will pay to such Bondholder Party, such additional amount or amounts as will compensate such Bondholder Party, for such additional costs incurred or reduction suffered.
(b) Capital Requirements . If a Bondholder determines that any Change in Law affecting such Bondholder or any such Bondholder’s holding company, if any, regarding capital or liquidity requirements has or would have the effect of reducing the rate of return on such Bondholder’s capital or liquidity or on the capital or liquidity of such Bondholder’s holding company, if any, as a consequence of this Agreement or the Bonds to a level below that which such Bondholder or such Bondholder’s holding company could have achieved but for such Change in Law (taking into consideration such Bondholder’s policies and the policies of such Bondholder’s holding company with respect to capital adequacy), in each case by an amount reasonably determined by such Lender to be material, then from time to time the Obligor will pay to such Bondholder, such additional amount or amounts as will compensate such Bondholder or such Bondholder’s holding company for any such reduction suffered.
(c) Certificates for Reimbursement . A certificate of a Bondholder Party setting forth in reasonable detail the amount or amounts necessary to compensate such Bondholder Party or its holding company, as the case may be, as specified in subsection (a) or (b)  of this Section and delivered to the Obligor shall be conclusive absent manifest error. The Obligor shall pay such Bondholder Party the amount shown as due on any such certificate within ten (10) days after receipt thereof.
(d) Delay in Requests . Failure or delay on the part of a Bondholder Party to demand compensation pursuant to the foregoing provisions of this Section shall not constitute a waiver of such Bondholder Party’s right to demand such compensation; provided that the Obligor shall not be required to compensate such Bondholder Party pursuant to the foregoing provisions of this Section for any increased costs incurred or reductions suffered more than 180 days prior to to the date that such Bondholder Party notifies the Obligor of the Change in Law giving rise to such increased costs or reductions and of such Bondholder Party’s intention to claim compensation therefor (except that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the 180 day period referred to above shall be extended to include the period of retroactive effect thereof).
 
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Section 2.15. LIBOR Breakage Fee . In the event any Bondholder shall incur any loss, cost, or expense (including, without limitation, any loss, cost, or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired or contracted to be acquired by such Bondholder to purchase or hold the Bonds or the relending or reinvesting of such deposits or other funds or amounts paid or prepaid to the Bondholder) as a result of any purchase, redemption, or other prepayment of the Bonds on a date other than a LIBOR Index Reset Date for any reason, including, without limitation pursuant to Section 2.9 or Section 2.10 , whether before or after default, and whether or not such payment is required by any provision of this Agreement or the Indenture, then upon the demand of such Bondholder, with copy to the Administrative Agent, the Obligor shall pay to such Bondholder a premium in such amount as will reimburse such Bondholder for such loss, cost, or expense. If such Bondholder requests such premium, it shall provide to the Obligor a certificate setting forth the computation of the loss, cost, or expense giving rise to the request for such premium in reasonable detail and such certificate shall be conclusive if reasonably determined.
Section 2.16. Survival . All of the Obligor’s obligations under this Article II shall survive the termination of this Agreement, the repayment, satisfaction or discharge of all other Obligations and resignation of the Administrative Agent or the Collateral Agent.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
Each of the Parent and the Obligor represents and warrants to each Bondholder Party that:
Section 3.01. Organization; Power and Authority . Each Group Member (a) is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, (b) has all requisite organizational power and authority to own its property and assets and to carry on its business as now conducted, (c) is qualified to do business and is in good standing in each jurisdiction where such qualification is required, except, in the case of the Obligor and the other Restricted Subsidiaries, where the failure to so qualify or be in good standing could not reasonably be expected to have a Material Adverse Effect, and (d) has the organizational power and authority to enter into the Transactions to be entered into by such Group Member.
Section 3.02. Ownership of Equity Interests; Subsidiaries .
(a) The Equity Interests in the Parent and each Restricted Subsidiary have been duly authorized and validly issued and are fully paid and non-assessable. 100% of the Equity Interests in the Obligor are owned, beneficially and of record, directly by the Parent, free and clear of any Lien other than the Terminated Liens (which shall be released on or prior to the Closing Date), the Liens contemplated by the Security Documents and non-consensual Liens permitted under Section 6.01 arising by operation of law. There is no existing option, warrant, call, right, commitment or other agreement to which any Group Member is a party requiring, and there is no Equity Interest in the Parent or any Restricted Subsidiary outstanding which upon conversion or exchange would require, the issuance of any additional Equity Interests in the Parent or any Restricted Subsidiary or other securities convertible into, exchangeable for or
 
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evidencing the right to subscribe for or purchase an Equity Interest in the Parent or any Restricted Subsidiary. As of the Closing Date, the corporate and organizational structure of the direct owners of the Group Members is set forth on Schedule 3.02 . The Obligor has delivered to the Administrative Agent and the Bondholders a true and complete copy of the HFOTCO Company Agreement (including each amendment, modification or supplement thereto) as in effect on the Closing Date. As of the Closing Date, the Parent is not a party to, or otherwise subject to, any legal, regulatory, contractual or other restriction (other than the Bond Documents, the HFOTCO Company Agreement and the limited liability company agreement of the Parent) that limits or restricts in any manner the right of the Parent to exercise the incidents of ownership of the Equity Interests in the Obligor owned by the Parent, including the right to vote, transfer or encumber such Equity Interests and the rights to exercise any rights or remedies under the HFOTCO Company Agreement relating to such Equity Interests.
(b) As of the Closing Date, (i) the Parent does not have any Subsidiaries (other than the Obligor) and (ii) the Obligor does not have any Subsidiaries.
Section 3.03. Authorization; No Conflict . The Transactions to be entered into by each Loan Party (a) have been duly authorized by all limited liability company, corporate or other organizational action, as applicable, required to be taken or obtained by such Loan Party and (b) will not (i) violate in any material respect (A) any provision of any Legal Requirement, (B) any provision of the HFOTCO Company Agreement or the limited liability agreement or other constitutive documents of such Loan Party, as applicable, or (C) any provision of any indenture, mortgage, deed of trust, loan, purchase or credit agreement, lease, Organizational Document or any other agreement or instrument to which such Loan Party is a party or by which it or any of its property is or may be bound, (ii) be in conflict in any material respect with, result in a material breach of or constitute (alone or with notice or lapse of time or both) a default under, or give rise to a right of or result in any cancellation or acceleration of any right or obligation (including any payment) or to a loss of a material benefit under, any such indenture, lease, agreement or other instrument, or (iii) result in the creation or imposition of any Lien upon or with respect to any property or assets now owned or hereafter acquired by such Loan Party, other than Liens permitted under Section 6.01 .
Section 3.04. Enforceability . This Agreement and each other Bond Document to which any Loan Party is a party have been duly executed and delivered by such Loan Party and constitutes a legal, valid and binding obligation of such Loan Party, enforceable against the such Loan Party in accordance with its terms, subject to (a) the effects of bankruptcy, insolvency, moratorium, reorganization or other similar laws affecting creditors’ rights generally and (b) general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law).
Section 3.05. Governmental Approvals . No action, consent or approval of, registration, filing or declaration with, Permit from, notice to, or any other action by, any Governmental Authority is or will be required in connection with (a) the due execution, delivery and performance by any Loan Party of the Bond Documents to which it is a party, (b) the consummation of the Transactions or (c) the grant by any Loan Party of the Liens granted or purported to be granted under the Security Documents to which it is a party or the validity, perfection and enforceability thereof or for the exercise by the Collateral Agent of its rights and
 
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remedies thereunder, except (i) such as are set forth on Schedule 3.05 , (ii) filings necessary to perfect Liens created under the Bond Documents, (iii) such as have been made or obtained and are in full force and effect, (iv) such as may be required under applicable securities laws in connection with any disposition of the Equity Interests included in the Collateral, (v) such as are not required to consummate the Transactions occurring on the Closing Date but are required to be obtained or made after the Closing Date to enable any Loan Party to comply with requirements of any applicable Legal Requirement including those required to maintain the existence and good standing of such Loan Party and (vi) such as those the failure to obtain which could not reasonably be expected to have a Material Adverse Effect.
Section 3.06. Financial Statements . The Obligor has furnished to the Administrative Agent and the Bondholders (a) the audited consolidated balance sheet and related statements of income, stockholders’ equity and cash flows of the Parent and the Subsidiaries for the 2011, 2012 and 2013 Fiscal Years and (b) the unaudited consolidated balance sheet and related statements of income, stockholders’ equity and cash flows of the Parent and the Subsidiaries for the Fiscal Quarter ended March 31, 2014. Such financial statements fairly present in all material respects the financial position of the Parent and the Subsidiaries as of the respective dates thereof and the results of its operations and cash flows for the respective periods then ended and have been prepared in accordance with GAAP 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). As of the Closing Date, neither the Parent nor any Subsidiary has any material liabilities that are required to be disclosed in such financial statements of the Parent and the Subsidiaries for the Fiscal Quarter ended March 31, 2014, in accordance with GAAP, that are not reflected in such unaudited balance sheet (subject, in the case of any interim financial statements, to normal year-end adjustments).
Section 3.07. No Material Adverse Effect . Since December 31, 2013, there has been no change, event or loss affecting any Group Member that has resulted in or would reasonably be expected to result in, individually or in the aggregate, any Material Adverse Effect.
Section 3.08. Title to Properties; Possession Under Leases .
(a) Each Loan Party has good and indefeasible fee simple or valid leasehold title to all of the material properties and owned or leased by it, as the case may be (including all material owned or leased Real Property), in each case free and clear of Liens other than Liens permitted under Section 6.01 . All material leases (including all material leases of Real Property) of each Loan Party as tenant are valid and subsisting and are in full force and effect in all material respects.
(b) As of the Closing Date, Schedule 3.08(b) sets forth a complete and accurate list of all Real Property owned in fee simple by the Parent, the Obligor or any other Restricted Subsidiary, showing the street address, county or other relevant jurisdiction, state and record owner thereof.
(c) As of the Closing Date, Schedule 3.08(c) sets forth a complete and accurate list of all leases of Real Property under which the Parent, the Obligor or any other Restricted Subsidiary is the lessee, showing the street address, county or other relevant jurisdiction, state, lessor, lessee, and expiration date thereof.
 
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(d) As of the Closing Date, none of the Parent, the Obligor or any other Restricted Subsidiary (i) has received written notice, or has knowledge, of any pending or contemplated condemnation proceeding affecting any Mortgaged Property or any sale or disposition thereof in lieu of condemnation or (ii) is or could be obligated under any right of first refusal, option or other contractual right to sell, transfer or otherwise dispose of any Mortgaged Property or any interest therein.
Section 3.09. Litigation; Compliance with Laws .
(a) There are no actions, suits, investigations or proceedings at law or in equity or by or on behalf of any Governmental Authority or in arbitration now pending against, or, to the knowledge of the Parent or the Obligor, threatened in writing against or affecting, any of the Group Members or any business, property or rights of any of the Group Members which, individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect.
(b) The operations of the Parent, the Obligor and the other Subsidiaries are and have been conducted at all times in material compliance with all applicable financial recordkeeping and reporting requirements, including those of the Bank Secrecy Act, as amended by the U.S.A. Patriot Act, and the applicable anti-money laundering statutes of jurisdictions where the Parent, the Obligor and each other Subsidiary conduct business, the rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered or enforced by any governmental agency (collectively, the “ Anti-Money Laundering Laws ”), and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Parent, the Obligor or any other Subsidiary with respect to the Anti-Money Laundering Laws is pending or, to the best knowledge of the Parent or the Obligor, threatened. The Loan Parties shall, promptly following a request by the Administrative Agent or any Bondholder, provide all such other documentation and information that the Administrative Agent or such Bondholder requests in order to comply with its ongoing obligations under applicable Anti-Money Laundering Laws.
(c) None of the Parent, the Obligor or any other Subsidiary, or any director or officer, or, to the knowledge of the Parent or the Obligor, any employee, agent or representative of Parent, the Obligor or any other Subsidiary, has taken or will take any action by or on behalf of the Parent, the Borrower or any Subsidiary in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment or giving of money, property, gifts of anything else of value, directly or indirectly, to any “government official” (including any officer or employee of a government or government-owned or controlled entity or of a public international organization, or any person acting in an official capacity for or on behalf of any of the foregoing, or any political party or party official or candidate for political office) to influence official action or secure an improper advantage for the Parent, the Borrower or any other Subsidiary; and each of the Parent, the Obligor and the other Subsidiaries have conducted their businesses in compliance with applicable anti-corruption laws and have instituted and maintain and will continue to maintain policies and procedures designed to promote and achieve compliance with such laws and with the representation and warranty contained herein.
 
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(d) None of the Parent, the Obligor or any other Subsidiary or any director or officer thereof, or, to the knowledge of the Parent or the Obligor, any employee, agent, affiliate or representative of the Parent, the Obligor or any other Subsidiary, is a Person that is, or is owned or controlled by any Person that is:
(i) the subject or target of any sanctions administered or enforced by the United States Government (including the U.S. Department of Treasury’s Office of Foreign Assets Control) (collectively, “ Sanctions ”); or
(ii) located, organized or resident in a country or territory that is the subject of Sanctions (including, without limitation, Cuba, Iran, North Korea, Sudan and Syria).
(e) As of the Closing Date, there are no material judgments against any Group Member or any property of such Group Member.
(f) None of the Group Members nor any of the Group Members’ properties or assets are in violation of any currently applicable Legal Requirements (including any zoning, building, or Environmental Law, ordinance, code or approval or any building permit), or is in default with respect to any judgment, writ, injunction or decree of any Governmental Authority, where such violation or default could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
Section 3.10. Federal Reserve Regulations .
(a) No Group Member is engaged principally, or as one of its important activities, in the business of extending credit for the purpose of purchasing or carrying Margin Stock.
(b) No part of the proceeds of any purchase of Bonds will be used, whether directly or indirectly, and whether immediately, incidentally or ultimately, (i) to purchase or carry Margin Stock or to extend credit to others for the purpose of purchasing or carrying Margin Stock or to refund indebtedness originally incurred for such purpose, or (ii) for any purpose that entails a violation of, or that is inconsistent with, the provisions of the Regulations of the Board, including Regulation U or Regulation X.
Section 3.11. Investment Company Act . No Group Member is an “investment company” as defined in, or subject to regulation under, the Investment Company Act of 1940, as amended.
Section 3.12. Taxes .
(a) The Parent is properly classified (i) as a partnership or (ii) as a disregarded entity for federal income Tax purposes under Treasury Regulations Sections 301.7701-2 and -3 and any comparable provision of applicable state or local Tax law that permits such treatment, and no election under Treasury Regulations Section 301.7701-3(c) has been made with respect to the Obligor to be classified as an association taxable as a corporation for federal income Tax purposes.
 
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(b) The Obligor is properly classified (i) as a partnership or (ii) as a disregarded entity for federal income Tax purposes under Treasury Regulations Sections 301.7701-2 and -3 and any comparable provision of applicable state or local Tax law that permits such treatment.
(c) Each Group Member has filed or caused to be filed all U.S. federal income Tax returns and all material state, local and other Tax returns that are required to have been filed by it in any jurisdiction and has paid all Taxes due and payable with respect to such Tax returns, and all other Taxes levied upon its properties, assets, income or franchises, to the extent such Taxes have become due and payable and before they have become delinquent except for any Taxes (i) the amount, applicability or validity of which is currently being contested in good faith by appropriate proceedings in accordance with Section 5.14 and with respect to which the relevant Group Member has established adequate reserves in accordance with GAAP or (ii) the failure of which to pay could not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
Section 3.13. Disclosure and Projections .
(a) All written information (other than the Base Case Projections and estimates, projections and information of a general economic or industry nature) concerning the Group Members and their respective businesses, including the Terminal Storage Facility, or otherwise prepared by, or as directed by, any Group Member or any representative of any Group Member, and made available to any Bondholder Party in connection with the Transactions, when taken as a whole and after giving effect to supplements made thereto by the applicable Group Member, is complete and correct in all material respects as of the Closing Date and does not, when taken as a whole, contain any untrue statement of a material fact as of the Closing Date or omit to state any material fact necessary in order to make the statements contained therein not materially misleading in light of the circumstances under which such statements were made.
(b) The Base Case Projections and estimates, projections and information of a general economic or industry nature prepared by or on behalf of, or as directed by, the Group Members or any Affiliate or representative thereof that have been made available to any Bondholder Party on or prior to the Closing Date have been prepared in good faith based upon assumptions stated therein which the Obligor believes as of the Closing Date to be reasonable (it being understood that estimates, projections and information of a general economic or industry nature by their nature are inherently uncertain and no assurances are being given that the results reflected in such estimates, projections or information of a general economic or industry nature will be achieved).
Section 3.14. Employee Matters .
(a) No Group Member is engaged in any unfair labor practice that could reasonably be expected to have a Material Adverse Effect. There is (i) no unfair labor practice complaint pending against any Group Member, or to the Parent’s or the Obligor’s knowledge, threatened against any Group Member before the National Labor Relations Board and no grievance or arbitration proceeding arising out of or under any collective bargaining agreement that is so pending against any Group Member or to the Parent’s or the Obligor’s knowledge, threatened against any Group Member or (ii) no strike or work stoppage in existence or threatened
 
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involving any of the Group Members or the Terminal Storage Facility, except those (with respect to any matter specified in clause (i)  or (ii)  above, either individually or in the aggregate) that could not reasonably be expected to have a Material Adverse Effect.
(b) The Parent does not sponsor, maintain or contribute to, or have any liability (except as a member of a controlled group) with respect to, any Plan. The Parent has no employees.
(c) The Obligor and each ERISA Affiliate has 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, either individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect. Except as could not reasonably be expected to result in a Material Adverse Effect, neither the Obligor nor any ERISA Affiliate has incurred any material liability pursuant to Title I or IV of ERISA (other than to make contributions on a timely basis to satisfy the minimum funding standards of ERISA or to pay required premiums on a timely basis to the PBGC, both of which have been timely paid) or the penalty or excise tax provisions of the Code relating to employee benefit plans (as defined in Section 3 of ERISA), no Plan has failed, or is reasonably expected to, 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 or 430 of the Code or Section 302 or 303 of ERISA, no Reportable Event has occurred or is reasonably expected to occur, and no event, transaction or condition has occurred or exists that could reasonably be expected, either individually or in the aggregate, to result in the incurrence of any such material liability by any Group Member or any ERISA Affiliate, or in the imposition of any material Lien on any of the rights, properties or assets of any Group Member or any ERISA Affiliate, in either case pursuant to Title I or IV of ERISA or to such penalty or excise tax provisions or to Section 436(f), 412 or 430 of the Code or Section 4068 of ERISA.
(d) Except as set forth on Schedule 3.14 , 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 in an amount that could reasonably be expected, either individually or in the aggregate, to result in a Material Adverse Effect. Except as could not reasonably be expected to result in a Material Adverse Effect, no Plan is, or is reasonably expected to be in “at-risk” status (as defined in Section 303(i)(4) of ERISA or Section 430(i)(4) of the Code). The term “benefit liabilities” has the meaning specified in Section 4001 of ERISA and the terms “current value” and “present value” have the meaning specified in Section 3 of ERISA.
(e) The Obligor and the ERISA Affiliates have not incurred withdrawal liabilities (and are not subject to material contingent withdrawal liabilities) under Section 4201 or 4204 of ERISA in respect of Multiemployer Plans that could reasonably be expected, either individually or in the aggregate, to result in a Material Adverse Effect. The Obligor and the ERISA Affiliates do not participate in, contribute to, or are otherwise required to contribute to, any Multiemployer Plan that is, or is reasonably expected to be in “critical” or “endangered” status as defined in Section 432 of the Code or Section 305 of ERISA that could reasonably be expected, either individually or in the aggregate, to result in a Material Adverse Effect.
 
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(f) The present value of all postretirement benefit obligations vested under each Plan (based on the assumptions used to fund such Plan, without regard to liabilities attributable to continuation coverage mandated by Section 4980B of the Code) did not, as of the last annual valuation date applicable thereto, exceed the value of the assets of such Plan allocable to such vested benefits in an amount that could reasonably be expected to result in a Material Adverse Effect.
(g) The Transactions will not involve any non-exempt prohibited transaction under Section 406(a)(1)(A-D) of ERISA or in connection with which a tax could be imposed pursuant to Section 4975(c)(1)(A)-(D) of the Code.
Section 3.15. Environmental Matters; Hazardous Materials .
(a) There is no pending or, to the Parent’s or the Obligor’s knowledge, threatened, and, in the past two years, there has not been, any Environmental Claim against any Group Member or otherwise with respect to the Terminal Storage Facility or any other real properties or other assets now or formerly owned, leased or operated by any Group Member, and no Group Member has received any notice of any such Environmental Claim, and no proceeding has been instituted raising any such Environmental Claim, except, in the case of the Obligor and the other Restricted Subsidiaries, such as could not reasonably be expected to result in a Material Adverse Effect.
(b) The Group Members have obtained all material Permits required pursuant to any Environmental Law for the operation of the Terminal Storage Facility and all such material Permits are in full force and effect.
(c) Neither the Parent nor the Obligor has any knowledge of any facts which would reasonably be expected to give rise to any Environmental Claim, public or private, including any violation of Environmental Laws, any Release of Hazardous Materials or any damage to the Environment emanating from, occurring on or in any way related to the Terminal Storage Facility or any other real properties or other assets now or formerly owned, leased or operated by any Group Member, except, in the case of the Obligor and the other Restricted Subsidiaries and their respective real properties and assets, such as could not reasonably be expected to result in a Material Adverse Effect.
(d) No Hazardous Materials have been used, generated, manufactured, stored, Released, transported or treated any Hazardous Materials either by any Group Member or on, at, under or from the Terminal Storage Facility or any other real properties or other assets now or formerly owned, leased or operated by any Group Member, except, in the case of any of the foregoing, in the ordinary course of business and in material compliance with Environmental Laws and, in the case of the Obligor and the other Restricted Subsidiaries, in a manner that could not reasonably be expected to result in a Material Adverse Effect.
Section 3.16. Solvency . Immediately after giving effect to the Transactions to occur on the Closing Date, (a) the fair value of the aggregate assets of the Loan Parties, at a fair valuation,

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will exceed the debts and liabilities, direct, subordinated, contingent or otherwise, of the Loan Parties, (b) the present fair value of the property of the Loan Parties will be greater than the amount that will be required to pay the probable liability of the Loan Parties on their debts and other liabilities, direct, subordinated, contingent or otherwise, as such debts and other liabilities become absolute and matured, (c) the Loan Parties will be able to pay their debts and other liabilities, direct, subordinated, contingent or otherwise, as such debts and other liabilities become absolute and matured (after giving effect to any guarantees and credit support), and (d) the Loan Parties will not have unreasonably small capital with which to conduct the business in which they are engaged as such business is now conducted and is proposed to be conducted following the Closing Date (after giving effect to any guarantees and credit support).
Section 3.17. Licenses; Permits . The Group Members own or have the right to use all Permits, patents, copyrights, proprietary software, service marks, trademarks and trade names, or licenses thereof material to the operation of their business, without, to the Parent’s and the Obligor’s knowledge, conflict with the rights of others.
Section 3.18. No Default . As of the Closing Date, no Group Member is in default under any agreement or instrument to which it is a party or by which it is bound, which default, individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect.
Section 3.19. Collateral Matters . (a) The Security Agreement, upon execution and delivery thereof by the parties thereto, will create in favor of the Collateral Agent, for the benefit of the Secured Parties, a valid and enforceable security interest in the Collateral and (i) when the Collateral constituting certificated securities (as defined in the UCC) is delivered to the Collateral Agent, together with instruments of transfer duly endorsed in blank, the security interest created under the Security Agreement will constitute a fully perfected security interest in all right, title and interest of the pledgors thereunder in such Collateral, prior and superior in right to any other Person, (ii) when Control Agreements with respect to Collateral constituting deposit accounts and securities accounts maintained by the Loan Parties are executed and delivered by the parties thereto, the security interest created under the Security Agreement will constitute a fully perfected security interest in all right, title and interest of the Loan Parties in such Collateral, prior and superior in right to any other Person, and (iii) when financing statements in appropriate form are filed in the applicable filing offices, the security interest created under the Security Agreement will constitute a fully perfected security interest in all right, title and interest of the Loan Parties in the remaining Collateral to the extent perfection can be obtained by filing UCC financing statements, prior and superior to the rights of any other Person, except for rights secured by Liens permitted under Section 6.01 .
(b) Each Mortgage, upon execution and delivery thereof by the parties thereto, will create in favor of the Collateral Agent, for the benefit of the Secured Parties, a legal, valid and enforceable security interest in all the applicable mortgagor’s right, title and interest in and to the Mortgaged Properties subject thereto and the proceeds thereof, and when the Mortgages have been filed in the jurisdictions specified therein, the Mortgages will constitute a fully perfected security interest in all right, title and interest of the mortgagors in the Mortgaged Properties and the proceeds thereof, prior and superior in right to any other Person, but subject to Liens permitted under Section 6.01 .
 
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(c) Upon the recordation of intellectual property security agreements with the United States Patent and Trademark Office or the United States Copyright Office, as applicable, and the filing of the financing statements referred to in paragraph (a)  of this Section, the security interest created under the Security Agreement will constitute a fully perfected security interest in all right, title and interest of the Loan Parties in patents, trademarks, copyrights and exclusive copyright licenses in which a security interest may be perfected by filing in the United States of America, in each case prior and superior in right to any other Person, but subject to Liens permitted under Section 6.01 (it being understood that subsequent recordings in the United States Patent and Trademark Office or the United States Copyright Office may be necessary to perfect a security interest in patents, trademarks, copyrights and exclusive copyright licenses acquired by the Loan Parties after the Closing Date).
(d) Each Security Document, other than the Intercreditor Agreement and any Security Document referred to in the preceding paragraphs of this Section, upon execution and delivery thereof by the parties thereto and the making of the filings and taking of the other actions provided for therein, will be effective under applicable law to create in favor of the Collateral Agent, for the benefit of the Secured Parties, a valid and enforceable security interest in the Collateral subject thereto, and will constitute a fully perfected security interest in all right, title and interest of the Loan Parties in the Collateral subject thereto, prior and superior to the rights of any other Person, except for rights secured by Liens permitted under Section 6.01 .
Section 3.20. Insurance . The insurance required by Section 5.13 is in full force and effect and all premiums due and payable in respect of such insurance have been paid.
Section 3.21. Pari Passu Obligations . The Obligations of the Loan Parties rank at least pari passu in priority of payment with all other unsecured and secured Indebtedness for borrowed money of the Loan Parties.
Section 3.22. Use of Proceeds . The proceeds of the purchase of Bonds on the Closing Date will be applied in accordance with Section 5.01 .
Section 3.23. Tax-Exempt Status . No Loan Party has taken any action or omitted to take any action, and no Loan Party has actual knowledge of any action taken or omitted to be taken by any other Person, which action, if taken or omitted, respectively, would adversely affect the exclusion of interest on the Bonds from gross income for federal income Tax purposes (except when owned by a Substantial User). The Obligor complied in all material respects with the Obligor Tax Agreements, and each representation and statement of expectations made by the Obligor in each such Obligor Tax Agreement was true and correct as of the date each such Obligor Tax Agreement was executed and delivered. The Obligor has and will comply with the covenants contained in Section 5.07 of each Loan Agreement, the Closing Tax Letter and the Tax Certificate and Agreement executed by the Obligor, and each representation and statement of expectations made by the Obligor in the Closing Tax Letter is true and correct as of the Closing Date.
Section 3.24. Usury . None of the Bond Documents or the Bonds provide for any payments that would violate any applicable law regarding permissible maximum rates of interest.
 
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Section 3.25. Trustee . As of the Closing Date, the Bank of New York Mellon Trust Company, National Association is duly appointed and acting as Trustee for the Bonds.
ARTICLE IV
CONDITIONS PRECEDENT TO PURCHASE OF BONDS; INVESTOR REPRESENTATIONS
Section 4.01. Closing Date . The obligation of each Purchaser to purchase any Bond on the Closing Date is subject to the fulfillment, to such Purchaser’s satisfaction (acting reasonably), of each of the following conditions:
(a) Governing Documents . The Administrative Agent shall have received:
(i) a copy of the certificate of formation, including all amendments thereto, of each of the Loan Parties, each certified as of a recent date by the Secretary of State of the state of such Loan Party’s organization, and a certificate as to the good standing of such Person as of a recent date from such Secretary of State;
(ii) a certificate of a Responsible Officer of each of the Loan Parties, dated the Closing Date and certifying (A) that attached thereto is a true and complete copy of the limited liability company operating agreement of such Person, as in effect on the Closing Date and at all times since a date prior to the date of the resolutions described in clause (B)  below, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the appropriate governing entity or body of such Person, authorizing the Transactions, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate of formation or other formation documents of such Person have not been amended since the date of the last amendment thereto shown on the certificate of good standing (or its equivalent in the applicable jurisdiction) furnished pursuant to clause (i)  above, (D) as to the incumbency and specimen signature of each officer executing any Bond Document or any other document delivered in connection herewith on behalf of such Person and (E) as to the absence of any pending proceeding for the dissolution or liquidation of such Person or, to the knowledge of such Responsible Officer, threatening the existence of such Person;
(iii) a certificate of another officer as to the incumbency and specimen signature of the Responsible Officer executing the certificate pursuant to clause (i)  above; and
(iv) such other documents with respect to any Group Member, as the Administrative Agent or the Collateral Agent may reasonably request.
(b) Closing Certificates; Trustee Certificate . The Administrative Agent shall have received (i) a certificate substantially in the form of Exhibit D-1 , dated the Closing Date and duly executed and delivered by a Responsible Officer of the Parent and the Obligor, confirming compliance with the conditions precedent set forth in clauses (o)  and (p)  below, (ii) a solvency certificate substantially in the form of Exhibit D-2 , dated the Closing Date and duly executed and delivered by a Responsible Officer of the Parent and the Obligor; and (iii) a certificate from the Trustee dated the Closing Date, to the effect that the Bond Documents to which the Trustee is a
 
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party have been duly authorized by the Trustee and executed and delivered by a duly authorized representative of the Trustee, and that the Trustee has due power and authority to perform its obligations and exercise its rights and powers under such Bond Documents in accordance with their terms and stating that the Bondholder Parties may rely on such certificate.
(c) Bond Documents . (i) The Administrative Agent and the Collateral Agent shall have received (A) duly authorized and executed originals of this Agreement and each other Bond Document (other than the Bonds, the Notes, the Indentures and the Loan Agreements and other Bond Documents not executed and delivered in connection with this Agreement) then required to be in effect, and (ii) evidence that as of the Closing Date the Bonds shall be issued in certificated form and registered in the name of, and delivered to, the applicable Purchaser. Prior to or substantially contemporaneously with the purchase of the Bonds on the Closing Date, (a) the Indentures shall have been amended and restated and the Loan Agreements shall have been amended, (b) the Administrative Agent shall have received fully executed copies of the Indentures, as so amended and restated, and the amendments to the Loan Agreements, certified by a Financial Officer as being complete and correct, and (c) the provisions of the Indentures and the Loan Agreements, as so amended and restated or amended, as applicable, shall be reasonably satisfactory to the Administrative Agent.
(d) Legal Opinions . The Administrative Agent shall have received, on behalf of itself and the other Bondholder Parties and with copies to the Collateral Agent, favorable written opinions from:
(i) Vinson & Elkins LLP, counsel for the Loan Parties, (i) in form and substance reasonably satisfactory to the Agents and the Arrangers, (ii) dated the Closing Date, (iii) addressed to the Bondholder Parties and (iv) covering such matters relating to the Bond Documents to which any Loan Party is a party, as the Agents and the Arrangers shall reasonably request and which are customary for transactions of the type contemplated by the Bond Documents, and the Obligor hereby requests such counsel to deliver such opinions;
(ii) Bond Counsel (i) in form and substance reasonably satisfactory to the Administrative Agent, (ii) dated the Closing Date, (iii) addressed to the Bondholder Parties and (iv) to the effect that the conversion of the interest rate on the Bonds to the LIBOR Term Indexed Rate and the Transactions will not adversely affect the validity of the Bonds under state law or the exclusion from gross income of interest on the Bonds for federal income Tax purposes and permitting the Bondholder Parties to rely on the opinion of Bond Counsel with respect to the Bonds dated as of the original issuance date of the Bonds (but without any undertaking to update the same), and covering illegality and such other customary matters as the Bondholder Parties may reasonable request, and the Obligor hereby requests such counsel to deliver such opinions; and
(iii) Norton Rose Fulbright, counsel to the Issuer, (i) in form and substance reasonably satisfactory to the Administrative Agent, (ii) dated the Closing Date, (iii) addressed to the Bondholder Parties, (iv) to the effect that the Bond Documents to which
 
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the Issuer is a party have been duly authorized, executed and delivered by the Issuer and constitute legal, valid and binding obligations of the Issuer enforceable in accordance with their terms (subject to customary exceptions regarding enforceability);
(e) Organizational Actions . All limited liability company and other proceedings in connection with the Transactions, and all documents and instruments incident to the Transactions, shall be satisfactory to the Administrative Agent and its counsel, and the Administrative Agent and its counsel shall have received all such counterpart originals or certified or other copies of such documents as the Administrative Agent or such counsel may reasonably request. The Loan Parties shall have obtained all consents and approvals of Governmental Authorities, if any, and other Persons necessary to be obtained by the Closing Date in connection with the transactions contemplated by this Agreement and the other Bond Documents and each of the foregoing shall be in full force and effect, and the Administrative Agent shall have received evidence of such consents and approvals (if any).
(f) Collateral and Guarantee Requirement; Perfection Certificate . The Collateral and Guarantee Requirement shall have been satisfied.The Collateral Agent shall have received a completed Perfection Certificate, dated the Closing Date and signed by an executive officer or a Financial Officer of each of the Parent and the Obligor, together with all attachments contemplated thereby, including the results of UCC filing, tax lien, judgment and bankruptcy searches made with respect to the Loan Parties and evidence reasonably satisfactory to the Collateral Agent and the Administrative Agent that the Liens indicated by the results of such searches are permitted under Section 6.01 or have been, or substantially contemporaneously with the initial funding of Loans on the Closing Date will be, released.
(g) HFOTCO Credit Documents . Prior to or substantially contemporaneously with the purchase of the Bonds on the Closing Date, (a) the Administrative Agent shall have received fully executed copies of the HFOTCO Credit Agreement and the other HFOTCO Credit Documents, certified by a Financial Officer as being complete and correct, (b) the provisions of the HFOTCO Credit Agreement and the other HFOTCO Credit Documents shall be reasonably satisfactory to the Administrative Agent, and (c) the HFOTCO Credit Facilities Closing Date shall have occurred.
(h) Insurance . Insurance complying with Section 5.13 shall be in full force and effect, and the Administrative Agent shall have received evidence that the insurance required by Section 5.13 is in effect, together with endorsements naming the Collateral Agent, for the benefit of the Secured Parties, as additional insured and loss payee thereunder to the extent required under Section 5.13 .
(i) Repayment of Existing Indebtedness and Release of Terminated Liens . Prior to or substantially contemporaneously with the purchase of the Bonds on the Closing Date, (i) the Existing Indebtedness shall have been or shall be paid in full, (ii) the commitments under the Existing Parent Term Credit Agreement, the Existing Revolving Credit Agreement and the Existing Notes Facility shall have been or shall be terminated, (iii) all guarantees and Liens existing in connection with the Existing Parent Term Credit Agreement, the Existing Revolving Credit Agreement and the Existing Notes Facility shall have been or shall be discharged and released, and the Administrative Agent shall have received reasonably satisfactory evidence
 
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thereof, and (iv) the Existing Letters of Credit shall have been or shall be cancelled and all obligations of the Parent or any Restricted Subsidiary in respect thereof shall have been or shall be paid in full, and the Administrative Agent shall have received reasonably satisfactory evidence thereof.
(j) Financial Statements . The Administrative Agent shall have received correct and complete copies of the financial statements described in Section 3.06 .
(k) Base Case Projections . The Administrative Agent shall have received the Base Case Projections.
(l) Fees and Expenses . The Obligor shall have paid or otherwise made arrangements reasonably satisfactory to the Administrative Agent to pay the fees payable on the Closing Date pursuant to the Fee Letters. Each Bondholder Party and each Arranger and, to the extent invoiced at least two Business Days prior to the Closing Date, their counsel and consultants shall have received for their respective accounts all fees, costs and expenses due and payable pursuant to the Commitment Letter and, to the extent invoiced at least two Business Days prior to the Closing Date, Section 9.04 .
(m) U.S.A. Patriot Act . To the extent requested by it, each Agent shall have received at least five Business Days prior to the Closing Date all documentation and other information required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the U.S.A. Patriot Act.
(n) Environmental Report . The Administrative Agent shall have received a Phase I Environmental Site Assessment report with respect to the Sites and such Real Property, in form and substance reasonably satisfactory to it.
(o) Representations and Warranties . The representations and warranties set forth in Article III hereof and in the other Bond Documents shall be true and correct (i) in the case of the representations and warranties qualified or modified as to materiality in the text thereof, in all respects and (ii) otherwise, in all material respects, in each case on and as of the Closing Date.
(p) No Default or Event of Default . At the time of and immediately after the purchase of Bonds contemplated hereunder, no Default or Event of Default shall have occurred and be continuing.
Notwithstanding the foregoing, if the Parent and the Obligor shall have used commercially reasonable efforts to procure and deliver, but shall nevertheless be unable to deliver, any policy or policies of title insurance or any survey, abstract, consent, estoppel or subordination, non-disturbance and attornment agreement with respect to any Mortgage or Mortgaged Property that is required to be delivered in order to satisfy the requirements of the Collateral and Guarantee Requirement, such delivery shall not be a condition precedent to the obligations of the Bondholders hereunder on the Closing Date, but shall be required to be accomplished as provided in Section 5.18 .
The Administrative Agent shall notify the Parent, the Obligor and the Bondholders of the Closing Date, and such notice shall be conclusive and binding. Notwithstanding the foregoing,
 
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the obligations of the Bondholders to purchase the Bonds as contemplated herein shall not become effective unless each of the foregoing conditions shall have been satisfied (or waived in accordance with Section 9.01 ) at or prior to 5:00 p.m., New York City time, on September 15, 2014 (and, in the event such conditions shall not have been so satisfied or waived, the obligation to purchase such Bonds shall terminate at such time).
Section 4.02. Investment Representations . On and as of the Closing Date each Purchaser represents and warrants to the Obligor that:
(a) such Purchaser understands that the Bonds have not been registered pursuant to the Securities Act, the securities laws of any state nor has the Indenture been qualified pursuant to the Trust Indenture Act of 1939, in reliance upon certain exemptions set forth in this Section 4.02 and acknowledges that the Bonds (i) are not being registered or otherwise qualified for sale under the “blue sky” laws and regulations of any state, and (ii) will not be listed on any securities exchange;
(b) such Purchaser has not offered, offered to sell, offered for sale or sold any of the Bonds by means of any form of general solicitation or general advertising, and is not an underwriter of the Bonds within the meaning of Section 2(11) of the Securities Act;
(c) such Purchaser has sufficient knowledge and experience in financial and business matters, including purchase and ownership of municipal and other tax-exempt obligations, to be able to evaluate the risks and merits of the investment represented by the purchase of the applicable Bonds;
(d) such Purchaser is either a “qualified institutional buyer” as defined in Rule 144A promulgated under the Securities Act, or an “accredited investor” as defined in Rule 501 of Regulation D under the Securities Act and is able to bear the economic risks of such investment;
(e) such Purchaser understands that no official statement, prospectus, offering circular, or other comprehensive offering statement is being provided with respect to the Bonds and has made its own inquiry and analysis with respect to the Issuer, the Obligor, the Bonds and the security therefor, and other material factors affecting the security for and payment of the Bonds;
(f) such Purchaser acknowledges that it has either been supplied with or been given access to information, including financial statements and other financial information, regarding the Issuer and the Obligor to which a reasonable investor would attach significance in making investment decisions, and has had the opportunity to ask questions and receive answers from knowledgeable individuals concerning the Issuer and the Obligor, the Bonds and the security therefor, so that as a reasonable investor, it has been able to make its decision to purchase the Bonds; and
(g) the Bonds being acquired by such Purchaser are for investment for its own account and not with a present view toward resale or distribution; provided, however, that such Purchaser reserves the right to sell, transfer or redistribute such Bonds, but agrees that any such sale, transfer or distribution by such Purchaser shall be to a Person:
 
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(i) that is an affiliate of such Purchaser;
(ii) that is a trust or other custodial arrangement established by such Purchaser or one of its affiliates, the owners of any beneficial interest in which are limited to qualified institutional buyers or accredited investors;
(iii) that is a secured party, custodian or other entity in connection with a pledge by such Purchaser to secure public deposits or other obligations of such Purchaser or one of its affiliates to state or local governmental entities; or
(iv) that such Purchaser reasonably believes to be a qualified institutional buyer or accredited investor; provided, that such requirement shall be deemed to be satisfied in the case of any Purchaser who executes an Investor Letter.
ARTICLE V
AFFIRMATIVE COVENANTS
Each of the Parent and the Obligor covenants and agrees with each Bondholder Party that, until the Discharge Date, each of the Parent and the Obligor shall, and shall cause the other Restricted Subsidiaries to, abide by the following affirmative covenants.
Section 5.01. Use of Proceeds . The Obligor shall, on the Closing Date, apply the Purchase Price of the Bonds to reimburse any drawing on the Existing Letters of Credit that was applied to pay the tender price of the Bonds on the Closing Date resulting from the mandatory tender of Bonds in connection with the conversion of the Bonds to the LIBOR Term Indexed Mode and in accordance with the Funds Flow Memorandum.
Section 5.02. Maintenance of Properties . Each of the Parent and the Obligor shall, and shall cause each of the other Restricted Subsidiaries to, maintain and keep, or cause to be maintained and kept, their respective properties, including the Terminal Storage Facility, in good repair, working order and condition (other than ordinary wear and tear) and to make or cause to be made all repairs (structural and non-structural, extraordinary or ordinary (ordinary wear and tear excepted)) necessary to keep such properties (including the Terminal Storage Facility) in such condition, in each case, as would allow for the ordinary conduct of business of the Obligor and the other Restricted Subsidiaries; provided that this Section 5.02 shall not prevent the Obligor or any other Restricted Subsidiary from (a) entering into any transaction permitted by Section 6.04 , Section 6.06 , or Section 6.07 or (b) from discontinuing the operation and the maintenance of any of its properties (i) as a result of any casualty or condemnation affecting such properties (but only to the extent and for the duration of such casualty or condemnation) or (ii) if such discontinuance is desirable in the conduct of its business and the Obligor or the applicable Restricted Subsidiary has concluded that such discontinuance could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
Section 5.03. Notices . Each of the Parent and the Obligor shall deliver to the Administrative Agent:
(a) promptly, and in any event within five days, after a Responsible Officer of the Parent or the Obligor becomes aware of the existence of any Default or Event of Default, a written notice specifying the nature and period of existence thereof and what action the Parent or the Obligor is taking or proposes to take with respect thereto;
 
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(b) promptly, and in any event within ten Business Days, after a Responsible Officer of the Parent or the Obligor becomes aware of any of the following, a written notice setting forth the nature thereof and the action, if any, that the applicable Group Member or ERISA Affiliate (or, with respect to a Multiemployer Plan, the plan sponsor or administrator) proposes to take with respect thereto:
(i) the occurrence of a Reportable Event;
(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 any Group Member 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;
(iii) any event, transaction or condition that could result in the incurrence of any liability by any Group Member or any ERISA Affiliate pursuant to Title I or IV of ERISA (other than liability to make contributions on a timely basis to satisfy the minimum funding standards of ERISA or to pay required premiums on a timely basis to the PBGC) 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 any Group Member 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
(iv) (A) any Plan is in “at-risk” status (as defined in Section 303(i)(4) of ERISA or Section 430(i)(4) of the Code) or (B) any Multiemployer Plan is in “critical” or “endangered” status (as defined in Section 432 of the Code or Section 305 of ERISA);
(c) promptly, and in any event within 30 days of receipt thereof, copies of any notice to the Parent or the Obligor from any federal or state Governmental Authority relating to any order, ruling, statute or other law or regulation if the actions or conditions referred to in such notice could reasonably be expected to have a Material Adverse Effect;
(d) promptly, and in any event within five Business Days, after a Responsible Officer of the Parent or the Obligor becomes aware thereof, notice of any other event or condition which could reasonably be expected to have a Material Adverse Effect;
(e) promptly, and in any event within five Business Days, after a Responsible Officer of the Parent or the Obligor becomes aware thereof, notice of (i) the commencement of, or material development in, any material litigation or proceeding affecting any of the Group Members or any of their assets or properties (including the Terminal Storage Facility) or any material federal, state or local Tax affecting any of the Group Members or any of their assets or properties (including the Terminal Storage Facility) or (ii) the incurrence or imposition of any material claim, judgment, Lien or other encumbrance affecting any property of any of the Group Members, including the Terminal Storage Facility, which in the cases of the events or conditions referred to in clauses (i)  and (ii)  above could reasonably be expected to have a Material Adverse Effect;
 
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(f) together with the financial statements required under Section 5.04(a) , a summary of the current storage contracts of the Obligor and the other Restricted Subsidiaries by product, storage volume, maturity date and rates (to the extent such information may be provided in a manner that would not violate customer confidentiality requirements);
(g) promptly (i) if the Parent, the Obligor or any other Subsidiary or any director or officer thereof, or, to the knowledge of the Parent or the Obligor, any employee, agent, affiliate or representative of the Parent, the Obligor or any other Subsidiary, is a Person that is, or is owned or controlled by any Person that is (A) the subject or target of any Sanctions or (ii) located, organized or resident in a country or territory that is the subject of Sanctions (including, without limitation, Cuba, Iran, North Korea, Sudan and Syria), each of the Parent and the Obligor shall notify the Administrative Agent and (ii) upon the request of any Bondholder Party, each of the Parent and the Obligor shall provide any information such Bondholder Party believes is reasonably necessary to be delivered to comply with its obligations under Sanctions laws;
(h) with reasonable promptness, such other data and information relating to the business, operations, affairs, financial condition, assets or properties of any of the Group Members or relating to the ability of any Loan Party to perform its obligations under any Bond Document to which it is a party as from time to time may be reasonably requested by the Administrative Agent or any Bondholder (which request shall be made through the Administrative Agent);
(i) promptly following delivery or receipt thereof, as applicable, copies of (A) all material notices given by the Obligor to the Trustee, (B) all material notices given by the Trustee to the Obligor, and (C) all notices given by the Obligor to the Municipal Securities Rulemaking Board pursuant to Section 6.01B (Material Event Notices) of any Loan Agreement;
(j) promptly following receipt thereof, written notice of any resignation of the Trustee immediately upon receiving notice of the same (and the name and notice information of any replacement or successor Trustee);
(k) (A) within ten (10) days after the issuance of any securities by or on behalf of the Obligor with respect to which a final official statement or other offering or disclosure document has been prepared by the Obligor, (1) a copy of such official statement or offering or disclosure document or (2) notice that such information has been filed with EMMA and is publicly available; provided that if the securities are issued in a private transaction, fee, rate and price data shall not be required to be provided; and (B) during any period of time the Obligor is subject to continuing disclosure requirements under Rule 15c2-12 promulgated pursuant to the Securities Exchange Act of 1934, as amended (17 C.F.R. Sec. 240-15c2-12) (the “ Securities Exchange Act ”), or any successor or similar legal requirement, immediately following any dissemination, distribution or provision thereof to any Person, (1) a copy of any reportable event notice (as described in b(5)(i)(C) of Rule 15c2-12) disseminated, distributed or provided in satisfaction of or as may be required pursuant to such requirements or (2) notice that such event notice has been filed with EMMA and is publicly available;
 
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(l) promptly after the adoption thereof, copies of any amendments to the Bond Documents; and
(m) promptly, and in any event within five Business Days, after any Responsible Officer of any Loan Party becomes aware of any Event of Taxability or Determination of Taxability, written notice thereof (with copy to the Calculation Agent).
The Obligor hereby acknowledges that (A) the Administrative Agent and/or an Affiliate thereof may, but shall not be obligated to, make available to the Bondholders materials and/or information provided by or on behalf of the Obligor hereunder (collectively, “ Obligor Materials ”) by posting the Obligor Materials on Debt Domain, IntraLinks, Syndtrak, ClearPar or another similar electronic system, and (B) certain of the Bondholders (each, a “ Public Bondholder ”) may have personnel who do not wish to receive material non-public information with respect to the Obligor or its Affiliates, or the respective securities of any of the foregoing, and who may be engaged in investment and other market-related activities with respect to such Persons’ securities. The Obligor hereby agrees that so long as the Obligor is the issuer of any outstanding debt or Equity Interests that are registered or issued pursuant to a private offering or is actively contemplating issuing any such securities it will use commercially reasonable efforts to identify that portion of the Obligor Materials that may be distributed to the Public Bondholders and that (1) all such Obligor Materials shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page thereof; (2) by marking Obligor Materials “PUBLIC,” the Obligor shall be deemed to have authorized the Administrative Agent, any Affiliate thereof, the Collateral Agent, the Arrangers and the Bondholders to treat such Obligor Materials as not containing any material non-public information (although it may be sensitive and proprietary) with respect to the Obligor or its securities for purposes of United States federal and state securities laws (provided, however, that to the extent such Obligor Materials constitute Information, they shall be treated as set forth in Section 9.07); (3) all Obligor Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Side Information;” and (4) the Administrative Agent and any Affiliate thereof and the Arranger shall be entitled to treat any Obligor Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not designated “Public Side Information.” Each of the Parent and the Obligor acknowledges and agrees that the list of Disqualified Institutions shall be deemed suitable for posting and may be posted by the Administrative Agent on the Platform, including the portion of the Platform that is designated for “Public Side Information”.
Section 5.04. Financial Statements and Other Information . Each of the Parent and the Obligor shall deliver or cause to be delivered to the Administrative Agent:
(a) within 120 days after end of the Fiscal Year of the Parent, (i) a consolidated balance sheet of the Parent and the Subsidiaries as of the end of such Fiscal Year and (ii) consolidated statements of income, changes in members’ equity and cash flows of the Parent and the Subsidiaries for such Fiscal Year, setting forth in each case in comparative form the figures for the previous Fiscal Year, all in reasonable detail, prepared in accordance with GAAP,
 
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and accompanied by an opinion thereon of independent public accountants of recognized national standing (without a “going concern” or like qualification or exception and without any qualification or exception as to the scope of such audit (other than any qualification or exception attributable solely to the occurrence of the stated maturity of any Loan within 12 months after the date of such opinion)), which opinion shall state that such financial statements present fairly, in all material respects, the financial position of the companies being reported upon and their results of operations and cash flows and have been prepared in conformity with GAAP, 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;
(b) within 60 days after the end of each Fiscal Quarter of each Fiscal Year of the Parent, (i) a consolidated balance sheet of the Parent and the Subsidiaries as of the end of such Fiscal Quarter and (ii) consolidated statements of income, changes in shareholders’ equity and cash flows of the Parent and the Subsidiaries, for such Fiscal Quarter and (in the case of the second, third and fourth Fiscal Quarters) for the portion of the Fiscal Year ending with such Fiscal Quarter, setting forth in each case in comparative form the figures for the corresponding periods in the previous Fiscal Year, all in reasonable detail, prepared in accordance with GAAP applicable to quarterly financial statements generally, and certified by a Responsible Officer of the Parent as fairly presenting, in all material respects, the financial position of the companies being reported on and their results of operations and cash flows, subject to changes resulting from year-end adjustments;
(c) concurrently with each delivery of the financial statements described in clauses (a)  and (b)  above, a report in form and method of analysis similar to a “Management’s Discussion and Analysis” in form and substance reasonably satisfactory to the Administrative Agent (covering such topics as the Parent and the Subsidiaries’ financial condition and results of operations and the Parent and the Subsidiaries’ businesses);
(d) concurrently with each delivery of the financial statements described in clauses (a)  and (b)  above, if there are any Unrestricted Subsidiaries during the period covered by such financial statements, the related consolidating financial statements reflecting the adjustments necessary to eliminate the accounts of the Unrestricted Subsidiaries (which may be in footnote form only) from such consolidated financial statements;
(e) concurrently with each delivery of the financial statements described in clause (a) above, a Perfection Certificate Supplement in accordance with Section 4.01(b) of the Security Agreement;
(f) promptly upon receipt thereof by the Obligor or any Affiliate of the Obligor in connection with (i) any HFOTCO Credit Document or (ii) any indenture or other agreement or instrument evidencing Material Indebtedness, one copy of each notice of any default or event of default thereunder; and
(g) promptly, and in any event no later than 30 days after the beginning of each Fiscal Year of the Parent, a consolidated budget and business plan for the Parent and the Subsidiaries for such Fiscal Year and updated Base Case Projections for such Fiscal Year, in each case, in form reasonably satisfactory to the Administrative Agent.
 
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Section 5.05. Maintenance of Existence . Except as otherwise expressly permitted under this Agreement, each of the Parent and the Obligor shall, and shall cause the other Restricted Subsidiaries to, (a) at all times preserve and keep in full force and effect its corporate or limited liability company existence, as applicable, (b) preserve and keep in full force and effect all rights and franchises of the Group Members unless, in the good faith judgment of the applicable Group Member, 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.
Section 5.06. Maintenance of Records; Access to Properties and Inspections . Each of the Parent and the Obligor shall, and shall cause the other Restricted Subsidiaries to, maintain all financial records to be able to prepare financial statements in accordance with GAAP and permit any Persons designated by the Administrative Agent or, upon the occurrence and during the continuation of an Event of Default, any Bondholder to visit and inspect the financial records and the other properties of the Group Members, including the Terminal Storage Facility, in any case, at reasonable times, upon reasonable prior notice to the Parent and the Obligor, and as often as reasonably requested (but no more than two such visits in any Fiscal Year, other than while an Event of Default is continuing) and to make extracts from and copies of such financial records, and permit any Persons designated by the Administrative Agent or, upon the occurrence and during the continuation of an Event of Default, any Bondholder upon reasonable prior notice to the Parent and the Obligor to discuss the affairs, finances and condition of the Group Members with the officers thereof and independent accountants therefor (subject to reasonable requirements of safety and confidentiality, including requirements imposed by law or by contract). Notwithstanding the foregoing, no Group Member shall be required to permit the inspection of any information (a) that constitutes trade secrets or proprietary information with respect to any Group Member, (b) in respect of which disclosure to the Administrative Agent, any Bondholder or any of their respective representatives would violate (i) any confidentiality agreement of such Group Member or (ii) applicable Legal Requirements or (c) that is subject to attorney client or similar privilege or constitutes attorney work product; provided that each Group Member shall use commercially reasonable efforts to obtain the agreement of any Person necessary in order to disclose information that the Group Members would otherwise not be required to permit the inspection of pursuant to clause (b)(i) or (c)  above; provided , further that if the Administrative Agent or any Bondholder requests the inspection of any information described in the foregoing clauses (a)  through (c)  in accordance with this Section 5.06 , and any Group Member does not provide such information to the Administrative Agent or such Bondholder, then the Parent and the Obligor shall so notify the Administrative Agent.
Section 5.07. Compliance with Laws; Permits.
(a) Each of the Parent and the Obligor shall comply, and shall cause each of the other Restricted Subsidiaries to comply, and the Obligor shall cause the Terminal Storage Facility to be operated and maintained in compliance, with all Legal Requirements, including Legal Requirements relating to equal employment opportunity, employee benefit plans and employee safety and Environmental Laws, and exercise diligent good faith efforts to make such alterations to the Terminal Storage Facility as may be required for such compliance, except such non-compliance as would not, in the aggregate, reasonably be expected to have a Material Adverse Effect.
 
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(b) Each of the Parent and the Obligor shall, and shall cause each of the other Restricted Subsidiaries to, obtain, maintain in full force and effect and comply with all Permits necessary to the ownership of their respective properties or to the conduct of their respective businesses, including the operation of the Terminal Storage Facility, except to the extent that a failure to do so could not reasonably be expected to have a Material Adverse Effect.
(c) Each of the Parent and the Obligor shall, and shall cause each of the other Restricted Subsidiaries to, comply in a timely manner with, or operate, including the operation of the Terminal Storage Facility, pursuant to valid waivers of the provisions of, all Environmental Laws including those relating to the Release of Hazardous Materials, together with any other applicable legal requirements for conducting, on a timely basis, periodic tests, monitoring and remediation of contamination of the Environment, and diligently comply with the regulations (except to the extent such regulations are waived by appropriate Governmental Authorities) of the United States Environmental Protection Agency and other applicable federal, state or local Governmental Authorities, except where the failure to do so would not reasonably be expected to have a Material Adverse Effect. Neither the Parent nor the Obligor shall be deemed to have breached or violated this Section 5.07(c) if the Parent, the Obligor or the applicable Restricted Subsidiary is challenging in good faith by appropriate proceedings diligently pursued the application or enforcement of such Environmental Laws for which adequate reserves have been established in accordance with GAAP.
Section 5.08. Financial Covenant Calculations . Each set of financial statements of the Parent required to be delivered to the Administrative Agent pursuant to Section 5.04(a) or (b)  shall be accompanied by a Compliance Certificate setting forth, among other things:
(a) the information (including detailed calculations) required in order to establish whether the Obligor was in compliance with the financial covenant set forth in Section 6.14 during the Fiscal Quarter or Fiscal Year covered by the statements then being furnished (including with respect to each such Section, where applicable, the 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);
(b) a certification of the Total Adjusted Net Leverage Ratio, Super Senior Leverage Ratio and Interest Coverage Ratio for the four consecutive Fiscal Quarters ending with the Fiscal Quarter or the last Fiscal Quarter of the Fiscal Year, as the case may be, to which such financial statements relate;
(c) certification of the Available Amount as of the last day of such Fiscal Quarter or Fiscal Year, including details of any Available Amount Expenditures during such Fiscal Quarter or Fiscal Year; and
 
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(d) a statement that the applicable Responsible 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 Parent and the Subsidiaries from the beginning of the Fiscal Quarter or Fiscal Year covered by the statements then being furnished to the date of such Compliance 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, specifying the nature and period of existence thereof and what action the Parent or the Obligor shall have taken or proposes to take with respect thereto.
Section 5.09. Operation and Maintenance of Terminal Storage Facility; Leases of Real Property . (a) The Obligor shall, and shall cause the other Restricted Subsidiaries to, (i) operate and maintain the Terminal Storage Facility in a manner consistent with all applicable Legal Requirements, all Permits necessary to operate, manage and maintain the Terminal Storage Facility, this Agreement and the provisions of the Storage Contracts and prevailing industry standards for similar facilities, unless a failure to so operate and maintain the Terminal Storage Facility could not reasonably be expected to have a Material Adverse Effect, (ii) operate and maintain, and if the Obligor or any other Restricted Subsidiary decides to do so, construct and expand the Terminal Storage Facility, or cause the same to be constructed, expanded, operated and maintained, in accordance with applicable Legal Requirements and in a manner consistent with the Storage Contracts and with prevailing industry standards for similar facilities, unless a failure to so construct, expand, operate and maintain the Terminal Storage Facility could not reasonably be expected to have a Material Adverse Effect, and (iii) obtain and maintain all Permits, patents, copyrights, proprietary software, service marks, trademark, trade names and domain names or rights thereto necessary to manage and operate the Terminal Storage Facility, unless a failure to do so could not reasonably be expected to have a Material Adverse Effect.
(b) The Obligor shall, and shall cause the other Restricted Subsidiaries to, (i) make all payments and otherwise perform all obligations in respect of all leases of Real Property to which the Obligor or any other Restricted Subsidiary is a party, (ii) keep such leases in full force and effect and not allow such leases to lapse or be terminated or any rights to renew such leases to be forfeited or cancelled, (iii) notify the Administrative Agent and the Collateral Agent of any default by any party with respect to such leases of which it has knowledge and cooperate with the Administrative Agent and the Collateral Agent in all respects to cure any such default, except, in the case of clauses (i) , (ii)  and (iii) , where the failure to do so, either individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect.
Section 5.10. Additional Subsidiaries . (a) If any Subsidiary is formed or acquired, or any Unrestricted Subsidiary is converted into a Restricted Subsidiary, after the Closing Date, the Parent and the Obligor will, if such Subsidiary is a Designated Subsidiary, as promptly as practicable, and in any event within 30 days (or with respect to the requirements set forth in clauses (e)  and (g)  of the definition of “Collateral and Guarantee Requirement”, if applicable, 60 days) (or, in each case, such longer period as the Collateral Agent and the Administrative Agent may agree to in writing), notify the Collateral Agent and the Administrative Agent thereof and cause the Collateral and Guarantee Requirement to be satisfied with respect to such Subsidiary and with respect to any Equity Interests in or Indebtedness of such Subsidiary owned by any Loan Party.
 
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(b) The Parent may designate a Domestic Subsidiary meeting the criteria set forth in clause (b)(ii) of the definition of the term “Designated Subsidiary” as a Designated Subsidiary; provided that the Parent and the Obligor shall have caused the Collateral and Guarantee Requirement to be satisfied with respect to such Subsidiary.
Section 5.11. Information Regarding Collateral; Deposit and Securities Accounts . (a) Each of the Parent and the Obligor shall furnish to the Collateral Agent and the Administrative Agent prompt written notice of any change in (i) the legal name of any Loan Party, as set forth in its Organizational Documents, (ii) the jurisdiction of organization or the form of organization of any Loan Party (including as a result of any merger or consolidation), (iii) the location of the chief executive office of any Loan Party or (iv) with respect to any Loan Party organized under the laws of a jurisdiction that requires such information to be set forth on the face of a UCC financing statement, the organizational identification number, if any, or the Federal Taxpayer Identification Number of such Loan Party. Each of the Parent and the Obligor agrees not to effect or permit any change referred to in the preceding sentence unless all filings have been made under the UCC or otherwise that are required in order for the Collateral Agent to continue at all times following such change to have a valid, legal and perfected security interest in all the Collateral.
(b) Each of the Parent and the Obligor shall furnish to the Collateral Agent and the Administrative Agent prompt written notice of (i) the acquisition by any Loan Party of, or any real property or leasehold interest otherwise becoming, a Mortgaged Property after the Closing Date and (ii) the acquisition by any Loan Party of any other material assets after the Closing Date, other than any assets constituting Collateral under the Security Documents in which the Collateral Agent shall have a valid, legal and perfected security interest (with the priority contemplated by the applicable Security Document) upon the acquisition thereof.
(c) Each of the Parent and the Obligor shall cause all cash owned by any Group Member at any time, other than (i) cash used in the operation of Foreign Subsidiaries, (ii) cash in an aggregate amount not greater than $1,000,000 at any time held in payroll and other local operating accounts and (iii) cash held by the Parent or any Subsidiary in trust for any director, officer or employee of the Parent or any Subsidiary or any employee benefit plan maintained by the Parent or any Subsidiary, to be held in deposit accounts maintained in the name of one or more Loan Parties.
(d) Each of the Parent and the Obligor shall, in each case as promptly as practicable, notify the Collateral Agent and the Administrative Agent of the existence of any deposit account or securities account maintained by a Loan Party in respect of which a Control Agreement is required to be in effect pursuant to clause (f)  of the definition of “Collateral and Guarantee Requirement” but is not yet in effect.
Section 5.12. Further Assurances . Each Loan Party shall execute any and all further documents, financing statements, agreements and instruments, and take all such further actions (including the filing and recording of financing statements, fixture filings, mortgages, deeds of trust and other documents), that may be required under any applicable law, or that the Collateral Agent or the Administrative Agent may reasonably request, to cause the Collateral and Guarantee Requirement to be and remain satisfied at all times or otherwise to effectuate the provisions of the Bond Documents, all at the expense of the Loan Parties. Each of the Parent and the Obligor shall provide to the Collateral Agent and the Administrative Agent, from time to time upon request, evidence reasonably satisfactory to the Administrative Agent as to the perfection and priority of the Liens created or intended to be created by the Security Documents.
 
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Section 5.13. Maintenance of Insurance.
(a) The Parent, the Obligor and each other Restricted Subsidiary shall maintain, with financially sound and reputable insurance companies, insurance in such amounts (with no greater risk retention) and against such risks as are customarily maintained by companies of established repute engaged in the same or similar businesses operating in the same or similar locations. Each such policy of liability or casualty insurance maintained by or on behalf of Loan Parties shall (i) in the case of each liability insurance policy, name the Collateral Agent, on behalf of the Secured Parties, as an additional insured thereunder, (ii) in the case of each casualty insurance policy, contain a loss payable clause or endorsement that names the Collateral Agent, on behalf of the Secured Parties, as the loss payee thereunder and (iii) provide for at least 30 days’ (or such shorter number of days as may be agreed to by the Collateral Agent) prior written notice to the Collateral Agent of any cancellation of such policy. With respect to each Mortgaged Property that is located in an area determined by the Federal Emergency Management Agency to have special flood hazards, the applicable Loan Party has obtained, and will maintain, with financially sound and reputable insurance companies, such flood insurance as is required under applicable law, including Regulation H.
(b) Each of the Parent and the Obligor shall, within 30 days after each annual policy renewal date, deliver to the Administrative Agent and the Collateral Agent evidence (which, in the case of clause (i)  below, shall be in the form of one or more certificates of insurance) that (i) the insurance requirements of this Section 5.13 have been implemented and are being complied with in all material respects, and (ii) the applicable Group Member has paid all insurance premiums then due and payable.
(c) Within 30 days following the Closing Date, each of the Parent and the Obligor shall deliver, or cause to be delivered, to the Administrative Agent a certificate from the Obligor’s insurance broker substantially in the form of Exhibit E , confirming the Obligor’s compliance with the insurance requirements set forth in this Section 5.13 .
Section 5.14. Taxes, Assessments and Utility Charges . The Parent shall at all times maintain a classification of the Parent as a partnership or entity disregarded as separate from its sole owner for federal income Tax purposes under Treasury Regulations Sections 301.7701-2 and-3 and any comparable provision of applicable state or local Tax law that permits such treatment and will not make an election under Treasury Regulations Section 301.7701-3(c) to be classified as an association taxable as a corporation for federal income Tax purposes. The Obligor shall at all times maintain its status as a partnership or entity disregarded as separate from its sole owner for federal income Tax purposes under Treasury Regulations Sections 301.7701-2 and -3. Each of the Parent and the Obligor shall, and shall cause each of the other Restricted Subsidiaries to, (a) timely file all material Tax returns required to be filed in any jurisdiction and to pay and discharge all material Taxes due and payable and all other material Taxes 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 could reasonably be expected to become
 
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a Lien on properties or assets of any of the Group Members, and (b) pay, or cause to be paid, as and when due and prior to delinquency, all material utility and other material charges incurred in the operation, maintenance, use, occupancy and upkeep of the Terminal Storage Facility; provided that, in each case, none of the Group Members shall be required to pay any such Tax or charge to the extent the amount, applicability or validity thereof is contested by such Group Member on a timely basis in good faith and in appropriate proceedings, and such Group Member has established adequate reserves therefor in accordance with GAAP on the books of such Group Member.
Section 5.15. Interest Rate Protection.
(a) Bond Interest Rate Hedge Agreements . The Obligor shall, within 60 days after the Closing Date, enter into and thereafter maintain for a period of not less than three years following the Closing Date interest rate protection through Bond Interest Rate Hedge Agreements in form and substance reasonably satisfactory to the Administrative Agent against increases in the interest rates with respect to an aggregate notional amount at least equivalent to 50% of the aggregate principal amount of the Bonds anticipated to be outstanding (after giving effect to expected mandatory redemptions or repurchases hereunder) as of each Quarterly Date during such period of not less than three years; provided , however , that in no event shall the aggregate notional amount of all interest rate swaps, caps, collars and other interest rate hedge agreements entered into by the Group Members at any time exceed the aggregate principal amount of the Bonds, loans and any other Indebtedness of the Group Members bearing a floating rate of interest outstanding at such time.
(b) Security . Each Bond Interest Rate Hedge Agreement provided by a Secured Hedge Bondholder (including all reasonable costs, fees and expenses incurred by the Obligor in connection with any unwinding, breach or termination of any transactions thereunder) shall be secured by the Security Documents, pari passu with the Bonds and other Secured Obligations.
Section 5.16. [Reserved] .
Section 5.17. Designation of Subsidiaries . The board of directors (or similar governing body) of the Parent may at any time designate any Subsidiary as an Unrestricted Subsidiary or any Subsidiary as a Restricted Subsidiary; provided that (a) immediately before and after such designation, no Default or Event of Default shall have occurred and be continuing, (b) immediately after giving effect to such designation, the Total Adjusted Net Leverage Ratio shall not exceed the Applicable Total Adjusted Net Leverage Ratio with respect to the Fiscal Quarter of the Parent most recently ended as of the time of such designation on a pro forma basis, (c) no Subsidiary may be designated as an Unrestricted Subsidiary if it is a “Restricted Subsidiary” for the purpose of the HFOTCO Credit Documents or any other Indebtedness, (d) no Restricted Subsidiary may be designated as an Unrestricted Subsidiary if it was previously designated an Unrestricted Subsidiary, (e) the Obligor may not be designated as an Unrestricted Subsidiary, (f) no Subsidiary may be designated as an Unrestricted Subsidiary if such Subsidiary, or any of its Subsidiaries, has incurred, created, assumed or become liable for any Indebtedness pursuant to which any holder thereof has recourse to any of the assets of the Parent or any Restricted Subsidiary, and no Unrestricted Subsidiary may, at any time, incur, create, assume or be liable for any Indebtedness pursuant to which any holder thereof has recourse to any of the
 
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assets of the Parent or any Restricted Subsidiary, (g) the Parent and the Obligor shall deliver to Administrative Agent at least five Business Days prior to such designation a certificate of an Responsible Officer of the Obligor, together with all relevant financial information reasonably requested by Administrative Agent, demonstrating compliance with the foregoing clauses (a)  through (f)  of this Section 5.17 and, if applicable, certifying that such Subsidiary meets the requirements of an “Unrestricted Subsidiary” and (h) at least five Business Days prior to the designation of any Unrestricted Subsidiary as a Restricted Subsidiary, the Bondholders shall have received all documentation and other information required by bank regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including the U.S.A. Patriot Act, with respect to such Subsidiary. The designation of any Subsidiary as an Unrestricted Subsidiary shall constitute an Investment by the Parent therein at the date of designation in an amount equal to the fair market value of the Parent’s Investment therein; provided that upon a redesignation of such Subsidiary as a Restricted Subsidiary, the Parent shall be deemed to continue to have a permanent Investment in an Unrestricted Subsidiary in an amount (if positive) equal to (i) the lesser of (A) the fair market value of Investments of the Parent and the Restricted Subsidiaries in such Unrestricted Subsidiary at the time of such redesignation, combination or transfer (or of the assets transferred or conveyed, as applicable) and (B) the fair market value of Investments of the Parent and the Restricted Subsidiaries made in connection with the designation of such Subsidiary as an Unrestricted Subsidiary minus (ii) the portion (proportionate to the Parent’s and the Restricted Subsidiaries’ Equity Interest in such Subsidiary) of the fair market value of the net assets of such Subsidiary at the time of such redesignation. The designation of any Subsidiary as a Restricted Subsidiary shall constitute the incurrence at the time of designation of any Indebtedness or Liens of such Subsidiary existing at such time.
Section 5.18. Certain Post-Closing Collateral Obligations . (a) As promptly as practicable, and in any event within 60 days (or such later date as the Collateral Agent and the Administrative Agent may agree), after the Closing Date, the Parent, the Obligor and each other Loan Party will deliver all policies of title insurance and surveys, abstracts, consents, estoppels and subordination, non-disturbance and attornment agreements with respect to any Mortgage or Mortgaged Property that would have been required to be delivered on the Closing Date but for the penultimate paragraph of Section 4.01 , in each case except to the extent otherwise agreed by the Collateral Agent and the Administrative Agent pursuant to its authority as set forth in the definition of “Collateral and Guarantee Requirement”. In conjunction with the delivery of such policies of title insurance and surveys, abstracts, consents, estoppels and subordination, non-disturbance and attornment agreements, the Parent, the Obligor and each other Loan Party will enter into such agreement or agreements in writing to amend or otherwise modify the Mortgages executed and delivered on the Closing Date as may be necessary to correct any errors in the legal descriptions of the related Mortgaged Properties.
(b) If the Loan Parties expend more than $5,000,000 in the aggregate to develop the Dock 5, then the Loan Parties will (i) use commercially reasonable efforts to obtain the consent of the Port of Houston to create in favor of the Collateral Agent, for the benefit of the Secured Parties, a Lien in the Dock 5 Lease and (ii) upon obtaining such consent, cause the requirements set forth in clause (e)  of the definition of “Collateral and Guarantee Requirement” to be satisfied with respect to the Dock 5 Lease.
 
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Section 5.19. Treasury Management . The Obligor shall maintain Bank of America (or one of its affiliates) or any other Purchaser (or one of its affiliates) as its principal depository bank, including for the maintenance of business, cash management, operating and administrative deposit accounts and other Treasury Services.
ARTICLE VI
NEGATIVE COVENANTS
Each of the Parent and the Obligor covenants and agrees with each Bondholder Party that, until the Discharge Date, each of the Parent and the Obligor shall, and shall cause the other Restricted Subsidiaries to, abide by the following negative covenants.
Section 6.01. Liens . None of the Parent, the Obligor or any other Restricted Subsidiary shall create, assume or suffer to exist (a) any Lien on its assets, except Permitted Liens, or (b) any Lien on the Excluded Real Property, except Liens permitted by clause (e) , (f) , (h)(iii) , (h)(v) , (h)(vi) , (h)(vii) , (h)(viii) or (h)(ix) of the definition of “Permitted Liens”.
Section 6.02. Indebtedness . None of the Parent, the Obligor or any other Restricted Subsidiary shall incur, create, assume or be liable for any Indebtedness, except Permitted Debt.
Section 6.03. Restricted Payments; Certain Payments of Indebtedness . (a)None of the Parent, the Obligor or any other Restricted Subsidiary shall make payments which are Restricted Payments, other than:
(i) Restricted Payments made by any Restricted Subsidiary of the Obligor in respect of its Equity Interests ratably to the holders of such Equity Interests;
(ii) dividends paid by the Parent with respect to its Equity Interests payable solely in additional Equity Interests (other than Preferred Stock);
(iii) other Restricted Payments; provided that (A) no Specified Default or Event of Default shall have occurred and be continuing or would result therefrom and (B) at the time each such Restricted Payment is made, the aggregate amount of such Restricted Payment shall not exceed the Available Amount at such time (in each case, as certified by a Responsible Officer of the Obligor); and
(iv) other Restricted Payments; provided that (A) no Specified Default or Event of Default shall have occurred and be continuing or would result therefrom and (B) at the time of and immediately after giving effect to any such Restricted Payment, the Total Adjusted Net Leverage Ratio shall not exceed the Specified Total Adjusted Net Leverage Ratio on a pro forma basis (in each case, as certified by a Responsible Officer of the Obligor).
(b) None of the Parent, the Obligor or any other Restricted Subsidiary will make or agree to pay or make, directly or indirectly, any payment or other distribution (whether in cash, securities or other property) of or in respect of principal of or interest on any Junior Indebtedness, or any payment or other distribution (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, defeasance, cancelation or termination of any Junior Indebtedness, except:
 
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(i) regularly scheduled interest and principal payments as and when due in respect of any Junior Indebtedness other than (A) such payments in respect of Subordinated Affiliate Indebtedness and (B) such payments in respect of Subordinated Indebtedness that are prohibited by the subordination provisions thereof;
(ii) refinancings of Junior Indebtedness with the proceeds of other Indebtedness permitted under Section 6.02 ;
(iii) payments of secured Junior Indebtedness that becomes due as a result of the voluntary sale or transfer of the assets securing such Indebtedness in transactions permitted hereunder;
(iv) payments of or in respect of Junior Indebtedness made solely with Equity Interests in the Parent (other than Preferred Stock); and
(v) other payments of or in respect of Junior Indebtedness; provided that (A) no Specified Default or Event of Default shall have occurred and be continuing or would result therefrom and (B) at the time each such payment is made, the aggregate amount of such payment shall not exceed the Available Amount at such time (in each case, as certified by a Responsible Officer of the Obligor); and
(vi) other payments of or in respect of Junior Indebtedness; provided that (A) no Specified Default or Event of Default shall have occurred and be continuing or would result therefrom and (B) at the time of and immediately after giving effect to any such payment, the Total Adjusted Net Leverage Ratio shall not exceed the Specified Total Adjusted Net Leverage Ratio on a pro forma basis (in each case, as certified by a Responsible Officer of the Obligor).
Section 6.04. Sale of Assets . None of the Parent, the Obligor or any other Restricted Subsidiary shall sell, lease, transfer or otherwise Dispose of any of its assets (including Equity Interests in its Subsidiaries), except:
(a) sales by the Obligor or any other Restricted Subsidiary of inventory in the ordinary course of business and sales by the Obligor or any other Restricted Subsidiary as contemplated by the Storage Contracts;
(b) Dispositions of property of the Obligor or any other Restricted Subsidiary that is obsolete, damaged, worn out, surplus or not used or useful in the ordinary course of business of the Obligor or such Restricted Subsidiary;
(c) Dispositions resulting from any casualty or other insured damage to, or any taking under power of eminent domain or by condemnation or similar proceeding of, any asset of any of Group Member;
(d) the liquidation or use of Permitted Investments;
 
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(e) Dispositions to the Parent, the Obligor or any other Restricted Subsidiary; provided that any such sales, transfers, leases or other dispositions involving a Restricted Subsidiary that is not a Loan Party shall be made in compliance with Sections 6.07 and 6.08 ;
(f) Liens permitted under Section 6.01 and, to the extent constituting Dispositions of cash, Restricted Payments permitted under Section 6.03 and Investments permitted under Section 6.07 ;
(g) leases or subleases of real or personal property, exchanges of real or personal property or the granting of easements, rights-of-way, permits, licenses, restrictions or the like, in each case, which do not interfere in any material respect with the ordinary course of business of the Obligor and the other Restricted Subsidiaries, provided that with respect to leases or subleases of Real Property or exchanges of Real Property, such Real Property is unimproved at the time of the lease, sublease or exchange;
(h) any Disposition of any Real Property (other than any Mortgaged Property) that is not material to the business or operations of the Obligor and the other Restricted Subsidiaries;
(i) any Disposition of the Moore Road Property; provided that, at the time of such Disposition, the Moore Road Property does not constitute a Mortgaged Property;
(j) the unwinding of any Hedge Agreements permitted under Section 6.12 ;
(k) Dispositions of accounts receivable in connection with the compromise, settlement or collection thereof in the ordinary course of business consistent with past practice and not as part of any accounts receivables financing transaction;
(l) Dispositions of Investments in joint ventures to the extent required by the Organizational Documents of such joint venture or any related joint venture, shareholders’ or similar agreement;
(m) the surrender, modification, release or waiver of contract rights (including under leases, subleases and licenses of Real Property) or the settlement, release, modification, waiver or surrender of contract, tort or other claims of any kind, in each case, that do not interfere in any material respect with the ordinary course of business of the Obligor and the other Restricted Subsidiaries; and
(n) other Dispositions of the property of the Obligor or any other Restricted Subsidiary so long as (i) both before and after the occurrence of such Disposition, no Default or Event of Default shall exist or result therefrom and (ii) the value of such assets (valued at the time of such Disposition at the greater of net book value and Fair Market Value) does not, together with the aggregate value of all other assets of the Obligor and the other Restricted Subsidiaries disposed of on or after the Closing Date in reliance on this clause (n) (each asset valued at the respective purchase price of such asset), exceed $75,000,000.
 
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Section 6.05. Business Activities .
The Parent shall not engage in any business or activity except the holding of the Equity Interests in the Obligor, the performance of its obligations under, and, subject to any limitations in this Agreement or the other Bond Documents, the exercise of its rights under this Agreement, the other Bond Documents, the HFOTCO Credit Documents, the instruments, agreements and other documents evidencing or governing Permitted First Lien Refinancing Debt or Permitted Second Lien Refinancing Debt and the HFOTCO Company Agreement, and activities incidental thereto. Except as permitted under this Agreement or the other Bond Documents, the Parent shall not become a party to any contract or instrument other than this Agreement, the other Bond Documents, the HFOTCO Credit Documents, the instruments, agreements and other documents evidencing or governing Permitted First Lien Refinancing Debt or Permitted Second Lien Refinancing Debt and the HFOTCO Company Agreement and will not incur any liabilities, contingent or otherwise, except under this Agreement, the other Bond Documents, the HFOTCO Credit Documents, the instruments, agreements and other documents evidencing or governing Permitted First Lien Refinancing Debt or Permitted Second Lien Refinancing Debt and the HFOTCO Company Agreement, or incidental to the foregoing activities.
(a) None of the Obligor or any of the other Restricted Subsidiaries shall engage in activities other than (i) the ownership, development, expansion, operation, maintenance and financing of the Terminal Storage Facility and (ii) such other businesses if, as a result thereof, the general nature of the business in which the Obligor and the other Restricted Subsidiaries, taken as a whole, would then be engaged would be substantially changed from the general nature of the business in which the Obligor and the other Restricted Subsidiaries, taken as a whole, are engaged on the Closing Date. None of the Obligor or any of the other Restricted Subsidiaries shall use the Dock 5 in any way that would materially and adversely affect the ability of the Obligor and the Restricted Subsidiaries to use the Terminal Storage Facility in the way in which it is used as of the Closing Date.
Section 6.06. No Liquidation, Merger or Consolidation . None of the Parent, the Obligor or any other Restricted Subsidiary shall liquidate, wind-up or dissolve, or sell, lease or otherwise transfer or Dispose of all or substantially all of its property, assets or business or combine, merge into or consolidate with any other Person, or permit any other Person to combine, merge into or consolidate with it, except that, if at the time thereof and immediately after giving effect thereto no Default or Event of Default shall have occurred and be continuing, (a) any Person may merge into the Obligor in a transaction in which the Obligor is the surviving entity, (b) any Person (other than the Obligor) may merge or consolidate with any Restricted Subsidiary (other than the Obligor) in a transaction in which the surviving entity is a Restricted Subsidiary (and, if any party to such merger or consolidation is a Subsidiary Loan Party, is a Subsidiary Loan Party), (c) any Restricted Subsidiary (other than the Obligor) may merge into or consolidate with any Person (other than the Parent or the Obligor) in a transaction permitted under Section 6.04 in which, after giving effect to such transaction, the surviving entity is not a Subsidiary and (d) any Restricted Subsidiary (other than the Obligor) may liquidate or dissolve if the Obligor determines in good faith that such liquidation or dissolution is in the best interests of the Obligor and is not materially disadvantageous to the Bondholders; provided that any such merger or consolidation involving a Person that is not a wholly-owned Restricted Subsidiary immediately prior thereto shall not be permitted unless it is also permitted under Section 6.07 .
 
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Section 6.07. Investments . None of the Parent, the Obligor or any other Restricted Subsidiary shall purchase or acquire (including pursuant to any merger or consolidation with any Person that was not a wholly-owned Restricted Subsidiary prior thereto), hold, make or otherwise suffer to exist any Investment in any other Person, or make any Acquisition, other than:
(a) Permitted Investments;
(b) Investments existing on the Closing Date in Subsidiaries, and other Investments existing on the Closing Date and set forth on Schedule 6.07 (but not any additions thereto (including any capital contributions) made after the Closing Date);
(c) investments by the Parent, the Obligor and the other Restricted Subsidiaries in Equity Interests in their Restricted Subsidiaries (including as capital contributions to such Restricted Subsidiaries); provided that (i) such Restricted Subsidiaries are Restricted Subsidiaries of the Parent prior to such investments, (ii) any such Equity Interests held by a Loan Party shall be pledged to the extent required by the definition of the term “Collateral and Guarantee Requirement” and (iii) the aggregate amount of such investments by the Loan Parties in, and loans and advances by the Loan Parties to, and Guarantees by the Loan Parties of Indebtedness and other obligations of, Restricted Subsidiaries that are not Loan Parties (excluding all such investments, loans, advances and Guarantees existing on the date hereof and permitted by clause (b)  above) shall not exceed $15,000,000 at any time outstanding;
(d) loans or advances made by the Parent, the Obligor or any other Restricted Subsidiary to any Restricted Subsidiary; provided that (i) the Indebtedness resulting therefrom is permitted by clause (e)  of the definition of “Permitted Debt” and (ii) the amount of such loans and advances made by the Loan Parties to Restricted Subsidiaries that are not Loan Parties shall be subject to the limitation set forth in clause (c)(iii) above;
(e) Guarantees by the Parent, the Obligor or any other Restricted Subsidiary of Indebtedness or other obligations of the Parent, the Obligor or any other Restricted Subsidiary (including any such Guarantees arising as a result of any such Person being a joint and several co-applicant with respect to any Letter of Credit or any other letter of credit or letter of guaranty); provided that (i) a Restricted Subsidiary shall not Guarantee any Material Indebtedness unless such Restricted Subsidiary has Guaranteed the Obligations pursuant to the Guaranty Agreement, (ii) a Restricted Subsidiary that has not Guaranteed the Obligations pursuant to the Guaranty Agreement shall not Guarantee any Indebtedness or other obligations of any Loan Party, (iii) the Parent shall not Guarantee any Indebtedness or other obligation of any Restricted Subsidiary except for any such Guarantees under the Bond Documents or of Indebtedness permitted by clause (b)  or (e)  of the definition of the term “Permitted Debt”, and (iv) the aggregate amount of Indebtedness and other obligations of Restricted Subsidiaries that are not Loan Parties that is Guaranteed by any Loan Party shall be subject to the limitation set forth in clause (c)(iii) above;
(f) Investments in the form of Hedge Agreements permitted under Section 6.12 ;
(g) Permitted Acquisitions;
 
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(h) Any payroll, travel, entertainment, relocation and similar advances to directors, officers and employees of any Group Member that are expected at the time of such advances to be treated as expenses of such Group Member for accounting purposes and that are made in the ordinary course of business;
(i) Investments received in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts and disputes with, customers and suppliers, or in connection with the satisfaction or enforcement of claims due or owing to any Group Member, in each case in the ordinary course of business;
(j) Investments held by any Restricted Subsidiary the Equity Interests in which are acquired after the Closing Date in compliance with this Section 6.07 or held by any Person merged into or consolidated with any Group Member after the Closing Date in compliance with Section 6.06 and this Section 6.07 , in each case, so long as such Investments were not made in contemplation of or in connection with such acquisition, merger or consolidation and were in existence on the date of such acquisition, merger or consolidation;
(k) Investments made as a result of the receipt of noncash consideration from any Disposition of any asset in compliance with Section 6.04 ;
(l) Investments consisting of (i) extensions of trade credit, (ii) deposits made in connection with the purchase of goods or services or the performance of leases, licenses or contracts, in each case, in the ordinary course of business, and (iii) notes receivable of, or prepaid royalties and other extensions of credit to, customers and suppliers that are not Affiliates of any Group Member and that are made in the ordinary course of business;
(m) other Investments and other acquisitions; provided that, at the time each such Investment or acquisition is purchased, made or otherwise acquired, the aggregate amount of such Investment or the aggregate amount of all consideration paid in connection with such acquisition (determined as set forth in clause (g)  of the definition of “Permitted Acquisition”) shall not exceed an amount equal to (i) the Available Equity Amount at such time, minus (ii) the sum of (A) the aggregate amount of Investments made pursuant to this clause (m) subsequent to the Closing Date as of such time and (B) the aggregate amount of all Available Amount Expenditures based on usage of the Available Equity Amount subsequent to the Closing Date as of such time;
(n) other Investments and other acquisitions; provided that (A) no Specified Default or Event of Default shall have occurred and be continuing or would result therefrom and (B) at the time each such Investment or acquisition is purchased, made or otherwise acquired, the aggregate amount of such Investment or the aggregate amount of all consideration paid in connection with such acquisition (determined as set forth in clause (g) of the definition of “Permitted Acquisition”) shall not exceed the Available Amount at such time (in each case, as certified by a Responsible Officer of the Obligor); and
(o) other Investments and other acquisitions; provided that (A) no Specified Default or Event of Default shall have occurred and be continuing or would result therefrom and (B) at the time of and immediately after giving effect to any such Investment or acquisition, the Total Adjusted Net Leverage Ratio shall not exceed the Specified Total Adjusted Net Leverage Ratio on a pro forma basis (in each case, as certified by a Responsible Officer of the Obligor).
 
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Section 6.08. Transactions with Affiliates . None of the Parent, the Obligor or any other Restricted Subsidiary shall directly or indirectly enter into any transaction or series of related transactions with or for the benefit of any of its Affiliates, except for (a) transactions in the ordinary course of business on fair and reasonable terms that, taken as a whole, are no less favorable to the Parent, the Obligor or such Restricted Subsidiary than those which would be included in an arm’s-length transaction with a non-Affiliate, (b) transactions between or among the Loan Parties not involving any other Affiliate, (c) the payment of fees and indemnities to directors, officers, consultants and employees of any of the Loan Parties in the ordinary course of business, (d) issuances of Equity Interests in any Group Member permitted under this Agreement or any other Bond Document, (e) the making of Restricted Payments permitted under Section 6.04 , (f) Investments permitted under Section 6.07(h) , and (g) incurrences by the Obligor or any Restricted Subsidiary of Subordinated Affiliate Indebtedness owed to the Sponsor or any Affiliate thereof (other than the Parent or any Subsidiary).
Section 6.09. Amendments to Material Agreements . None of the Parent, the Obligor or any other Restricted Subsidiary will amend, modify or waive any of its rights under (a) any HFOTCO Credit Document to the extent such amendment, modification or waiver is not permitted by the provisions of the Intercreditor Agreement or (b) (i) any agreement or instrument governing or evidencing any Junior Indebtedness or (ii) its certificate of incorporation, bylaws or other Organizational Documents, including the HFOTCO Company Agreement, in the case of this clause (b)  to the extent such amendment, modification or waiver could reasonably be expected to be adverse in any material respect to the Bondholders.
Section 6.10. Fiscal Year . None of the Parent, the Obligor or any other Subsidiary shall change its Fiscal Year.
Section 6.11. Hazardous Materials . None of the Parent, the Obligor or any other Restricted Subsidiary shall use, generate, manufacture, store, Release, transport or treat any Hazardous Materials in violation of any Environmental Laws, any other Legal Requirements or any Permits necessary to the ownership of their respective properties or to the conduct of their respective businesses, which violation could reasonably be expected to (a) subject the Secured Parties to material liability or (b) result in a Material Adverse Effect.
Section 6.12. Hedge Agreements . None of the Parent, the Obligor or any other Restricted Subsidiary shall engage in any transaction involving interest rate hedging, currency hedging, commodity hedging, swaps, options, futures contracts, derivative transactions, or any similar transactions, or enter into any Hedge Agreement other than (a) Hedge Agreements entered into in accordance with Section 5.15 of the HFOTCO Credit Agreement, (b) Bond Interest Rate Hedge Agreements entered into in accordance with Section 5.15 , (c) Hedge Agreements entered into to hedge or mitigate risks to which the Parent, the Obligor or any other Restricted Subsidiary has actual exposure (other than in respect of Equity Interests or Indebtedness of the Parent, the Obligor or any other Restricted Subsidiary) and (c) Hedge Agreements entered into in order to effectively cap, collar or exchange interest rates (from fixed to floating rates, from one floating rate to another floating rate or otherwise) with respect to any interest-bearing liability or investment of the Parent, the Obligor or any other Restricted Subsidiary.
 
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Section 6.13. Restrictive Agreements . None of the Parent, the Obligor or any other Restricted Subsidiary shall become subject to any contractual restrictions upon (a) the ability of the Parent, the Obligor or any other Restricted Subsidiary to create, incur or permit to exist any Lien upon any of its assets to secure any Secured Obligations or (b) the ability of any Restricted Subsidiary to pay dividends or other distributions with respect to its Equity Interests or to make or repay loans or advances to the Parent, the Obligor or any other Restricted Subsidiary or to Guarantee Indebtedness of the Parent, the Obligor or any other Restricted Subsidiary; provided that:
(i) the foregoing shall not apply to:
(A) restrictions in the HFOTCO Company Agreement as in effect on the Closing Date;
(B) restrictions in the Bond Documents;
(C) restrictions and conditions imposed by the HFOTCO Credit Agreement as in effect on the Closing Date, or any agreement or document governing or evidencing Refinancing Indebtedness in respect thereof permitted under clause (b)  of the definition of the term “Permitted Debt”, provided that the restrictions and conditions contained in any such agreement or document, taken as a whole, are not less favorable to the Bondholders than the restrictions and conditions imposed by the HFOTCO Credit Agreement as in effect on the Closing Date;
(D) restrictions and conditions existing on the Closing Date identified on Schedule 6.13 (but shall apply to any extension, renewal, amendment or modification expanding the scope of any such restriction or condition);
(E) in the case of any Restricted Subsidiary that is not a wholly-owned Restricted Subsidiary, restrictions and conditions imposed by its Organizational Documents or any related joint venture or similar agreement, provided that such restrictions and conditions apply only to such Restricted Subsidiary and to any Equity Interests in such Restricted Subsidiary; or
(F) restrictions and conditions imposed by any agreement or instrument evidencing any Indebtedness permitted to be incurred under Section 6.02 subsequent to the Closing Date, provided that the restrictions and conditions contained in any such agreement or instrument, taken as a whole, are not less favorable to the Bondholders than the restrictions and conditions imposed by the the HFOTCO Credit Agreement as in effect on the Closing Date;
(ii) clause (a)  of the foregoing shall not apply to:
 
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(A) restrictions and conditions imposed by any agreement relating to secured Indebtedness permitted by clause (h)  or (i)  of the definition of “Permitted Debt” if such restrictions or conditions apply only to the assets securing such Indebtedness;
(B) customary provisions in leases and other agreements restricting the assignment thereof; or
(C) restrictions and conditions imposed by any agreement or instrument of or with respect to any Restricted Subsidiary or the property or assets of any Person at the time the Equity Interests in such Restricted Subsidiary or such property or assets are acquired by the Parent or any Restricted Subsidiary, in each case, so long as such agreement or instrument was not entered into, or such restrictions and conditions were not imposed, in contemplation of or in connection with such acquisition and were in existence on the date of such acquisition; and
(iii) clause (b)  of the foregoing shall not apply to:
(A) customary restrictions and conditions contained in agreements relating to the sale of a Restricted Subsidiary, or a business unit, division, product line or line of business, that are applicable solely pending such sale, provided that such restrictions and conditions apply only to the Restricted Subsidiary, or the business unit, division, product line or line of business, that is to be sold and such sale is permitted hereunder; or
(B) restrictions and conditions imposed by agreements relating to Indebtedness of any Restricted Subsidiary in existence at the time such Restricted Subsidiary became a Subsidiary and otherwise permitted by clause (i)  of the definition of “Permitted Debt” (but shall apply to any extension, renewal, amendment or modification expanding the scope of any such restriction or condition), provided that such restrictions and conditions apply only to such Restricted Subsidiary.
Nothing in this paragraph shall be deemed to modify the requirements set forth in the definition of the term “Collateral and Guarantee Requirement” or the obligations of the Loan Parties under Sections 5.10 , 5.11 or 5.12 or under the Security Documents.
Section 6.14. Financial Covenants . The Parent and the Obligor shall not permit:
(a) the Super Senior Leverage Ratio as of the last day of any Fiscal Quarter ending on or after September 30, 2014, to exceed 3.50 to 1.00; and
(b) the Interest Coverage Ratio as of the last day of any Fiscal Quarter ending on or after September 30, 2014, to be less than 2.00 to 1.00.
Section 6.15. Sanctions Regulations . None of the Parent, the Obligor or any other Subsidiary shall, directly or indirectly, use the proceeds of the purchase of the Bonds, or lend, contribute or otherwise make available such proceeds to any Person (a) to fund or facilitate any
 
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activities of or with any Person in any country or territory that, at the time of such funding or facilitation, is the subject of Sanctions or (b) in any other manner that will result in a violation of Sanctions by any Person (including any Person participating in this Agreement).
Section 6.16. No Impairment . No Loan Party will take any action, or cause the Trustee to take any action, under any Indenture or Loan Agreement which would materially adversely affect the rights, interests, remedies or security of any Bondholder under this Agreement or any other Bond Document.
Section 6.17. Trustee . No Loan Party will, without the prior written consent of the Required Bondholders (which consent shall not be unreasonably withheld) remove, or seek to remove, the Trustee. The Obligor shall at all times maintain a Trustee pursuant to the terms of the Indentures that is reasonably acceptable to the Administrative Agent and the Required Bondholders.
Section 6.18. Bond Documents . No Loan Party shall modify, amend or consent to any material modification, amendment or waiver of any Bond Document without the prior written consent of the Administrative Agent and the Required Bondholders.
Section 6.19. Maintenance of Tax-Exempt Status of Bonds . No Loan Party shall take any action or omit to take any action which, if taken or omitted, would adversely affect the tax-exempt status of the Bonds (other than with respect to any Bonds owned by a Substantial User).
ARTICLE VII
EVENTS OF DEFAULT
Section 7.01. Events of Default . The occurrence of any of the following events shall constitute an event of default hereunder (each, an “ Event of Default ”):
(a) Misrepresentations . Any representation, warranty or certification made or deemed made by any Loan Party in any Bond Document, or any representation, warranty or certification made by any Loan Party and contained in any certificate or other document required to be delivery by such Loan Party in connection with or pursuant to any Bond Document, shall prove to have been false or misleading in any material respect when so made, deemed made or furnished by the applicable Loan Party.
(b) Principal Payment Default . Default shall be made in the payment of any principal of any Bond when and as the same shall become due and payable, whether at the due date thereof or at a date fixed for prepayment thereof or by acceleration thereof or otherwise.
(c) Interest Payment Default . Default shall be made (i) in the payment of any interest on any Bond or in the payment of any fee under the Agency Fee Letter or any other scheduled fee due under any Bond Document when and as the same shall become due and payable, and such default shall continue unremedied for a period of three Business Days or (ii) in the payment of any other amounts (other than an amount referred to in paragraph (b)  above or the foregoing clause (i) ) due under any Bond Document (including, without limitation, any increased costs, breakage costs or indemnity payments) when and as the same shall become due and payable, and such default shall continue unremedied for a period of five Business Days.
 
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(d) Immediate Covenant Default . Default shall be made in the due observance or performance by the Parent or the Obligor of any covenant, condition or agreement contained in Section 5.01 , 5.03(a) , 5.05(a) (with respect to the Parent and the Obligor), 5.10(a) , 5.11 , 5.13 , 5.15(a) or 5.18(a) or in Article VI .
(e) Covenant Defaults with Cure . A Loan Party shall default in the due performance or observance of any other agreement contained in any Bond Document to which such Loan Party is party, and such default shall continue unremedied for a period of 30 days after the earlier to occur of (i) written notice thereof having been given to the Obligor by the Administrative Agent or any Bondholder or (ii) the date on which a Responsible Officer of the applicable Loan Party first obtains actual knowledge of such default or, solely in the case of a Loan Agreement Exclusive Default, if longer, such later period of time as is provided in the applicable Indenture.
(f) Cross Default . Any event or condition occurs that results in any Material Indebtedness becoming due prior to its scheduled maturity or that enables or permits (with or without the giving of notice, the lapse of time or both) the holder or holders of any Material Indebtedness or any trustee or agent on its or their behalf, or, in the case of any Hedge Agreement, the applicable counterparty, to cause such Material Indebtedness to become due, or to require the prepayment, repurchase, redemption or defeasance thereof, prior to its scheduled maturity or, in the case of any Hedge Agreement, to cause the termination thereof; provided that this clause (f)  shall not apply to (i) any secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the assets securing such Indebtedness or (ii) any Indebtedness that becomes due as a result of a refinancing thereof permitted under Section 6.02 .
(g) Involuntary Bankruptcy . An involuntary proceeding shall be commenced or an involuntary petition shall be filed in a court of competent jurisdiction seeking (i) relief in respect of any Group Member or of a substantial part of the property or assets of any Group Member under the U.S. Bankruptcy Code, as now constituted or hereafter amended, or any other federal, state or foreign bankruptcy, insolvency, receivership or similar law, (ii) the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for any Group Member or for a substantial part of the property or assets of any Group Member or (iii) the winding-up or liquidation of any Group Member, and in each case such proceeding or petition shall continue undismissed for 60 days or an order or decree approving or ordering any of the foregoing shall be entered.
(h) Voluntary Bankruptcy . Any Group Member shall (i) voluntarily commence any proceeding or file any petition seeking relief under the U.S. Bankruptcy Code, as now constituted or hereafter amended, or any other federal, state or foreign bankruptcy, insolvency, receivership or similar law, (ii) consent to the institution of, or fail to contest in a timely and appropriate manner, any proceeding or the filing of any petition described in paragraph (g)  above, (iii) apply for, request or consent to the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for any Group Member or for a substantial part of the property or assets of any Group Member, (iv) file an answer admitting the material allegations of a petition filed against it in any such proceeding, (v) make a general assignment for the benefit of creditors or (vi) become unable, admit in writing its inability or fail generally to pay its debts as they become due.
 
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(i) Judgments . One or more judgments or orders for the payment of money in excess of $10,000,000 in the aggregate (taking into account any insurance proceeds payable under a policy where the insurer has accepted coverage without reservation) shall be rendered against any of the Group Members and such judgment or order is not, within 60 days after entry thereof, bonded, discharged or stayed pending appeal, or is not discharged within 60 days after the expiration of such stay.
(j) ERISA . One or more of the following events shall have occurred that, when taken together with all other such events that have occurred, could reasonably be expected to have a Material Adverse Effect: (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 or 430 of the Code or Section 302 or 303 of ERISA, (ii) the termination of any Plan occurs or 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 Section 4042 of ERISA to terminate or appoint a trustee to administer any Plan or the PBGC shall have notified any Group Member or any ERISA Affiliate that a Plan may become a subject of any such proceedings, (iii) there is any 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, (iv) any Group Member or any ERISA Affiliate shall have incurred or is reasonably expected to incur any liability pursuant to Title I or IV of ERISA (other than to make contributions on a timely basis to satisfy the minimum funding standards of ERISA or to pay required premiums on a timely basis to the PBGC) or the penalty or excise tax provisions of the Code relating to employee benefit plans, (v) any Group Member or any ERISA Affiliate fails to make required contributions to or withdraws from any Multiemployer Plan or receives notice that a Multiemployer Plan is, or is expected to be, in “critical” or “endangered” status within the meaning of Section 432 of the Code or Section 305 of ERISA, (vi) any Group Member establishes or amends any employee welfare benefit plan that provides post employment welfare benefits in a manner that would increase the liability of any Group Member thereunder, (vii) any Plan is in “at-risk” status (as defined in Section 303(i)(4) of ERISA or Section 430(i)(4) of the Code), (viii) any Reportable Event has occurred or (ix) the imposition of a Lien pursuant to Section 430(k) of the Code or Section 303(k) of ERISA or a violation of Section 436 of the Code with respect to any Plan occurs.
(k) Bond Documentation . (i) The Guaranty Agreement or any Security Document (or any material provision of any other Bond Document) shall cease to be in full force and effect or shall be declared void by a Governmental Authority, or any party thereto (other than a Bondholder Party) shall claim such unenforceability or invalidity, (ii) any Guarantee purported to be created under this Agreement or the Guaranty Agreement shall cease to be, or shall be asserted by any Loan Party not to be, in full force and effect or (iii) any security interest in the Collateral purported to be created by any Security Document shall cease to be, or shall be asserted in writing by any Loan Party not to be, a valid and perfected security interest (having the priority required by this Agreement or the relevant Security Document) in the securities, assets or properties covered thereby.
 
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(l) Change of Control . A Change of Control shall have occurred.
(m) Event of Default under Indenture or Loan Agreement . Any “event of default” under any Indenture or Loan Agreement shall have occurred.
Section 7.02. Consequences of an Event of Default . Upon the occurrence and during the continuation of an Event of Default (other than an Event of Default with respect to any Loan Party described in paragraph (g)  or (h)  of Section 7.01 ), and at any time thereafter during the continuation of such Event of Default, the Administrative Agent, at the request of the Required Bondholders, shall, by notice to the Obligor and Trustee, take any or all of the following actions, at the same or different times:
(a) by written notice to the Trustee and the Obligor, declare the outstanding amount of the Obligations (other than the Bonds which shall be subject to clause (b)  below) under the Bond Documents to be immediately due and payable without presentment, demand, protest or further notice of any kind, all of which are hereby expressly waived, and an action therefor shall immediately accrue;
(b) deliver a written notice to the Trustee and the Obligor that an Event of Default has occurred and is continuing and direct the Trustee to cause an acceleration of the Bonds or take any such other remedial action or remedy as is provided for in the Indenture; provided, that, if, before the earlier of (i) two Business Days following acceleration of the Bonds pursuant to this paragraph (b), and (ii) the occurrence of any event with respect to any Loan Party described in paragraph (g)  or (h)  of Section 7.01 , the Obligor pays to the Trustee for the benefit of the Bondholder Parties, an amount equal to the amount of all outstanding Obligations (including, without limitation, the outstanding principal of, and interest on, each Bond (including all interest accrued on any outstanding Obligations up to and including the Acceleration Rescission Date)) (other than unasserted contingent payment obligations that by their nature survive termination of the Bond Documents) in full in cash (such payment date, the “ Acceleration Rescission Date ”), then upon receipt of such amounts by the Trustee and notice to the Trustee from the Obligor (which notice shall be acknowledged by the Administrative Agent), the Administrative Agent and the Bondholders shall take the actions required under Section 7.2 of the Indenture to rescind acceleration of the Bonds pursuant to Section 7.2 of the Indenture, the payment of such amounts shall be deemed to be a repurchase of the Bonds by the Obligor under the Indenture and such Bonds shall remain Outstanding (as defined in the Indenture) thereunder;
(c) subject to the provisions of the Intercreditor Agreement, either personally or by attorney or agent without bringing any action or proceeding, or by a receiver to be appointed by a court in any appropriate action or proceeding, take whatever action at law or in equity may appear necessary or desirable to collect the amounts due and payable under the Bond Documents or to enforce performance or observance of any obligation, agreement or covenant of the Obligor under the Bond Documents, whether for specific performance of any agreement or covenant of the Obligor or in aid of the execution of any power granted to the Bondholders in the Bond Documents;
(d) subject to the provisions of the Intercreditor Agreement, at the expense of the Obligor, cure any Default, Event of Default or event of nonperformance hereunder or under any Bond Document; provided , however , that the Administrative Agent and the Bondholders shall have no obligation to effect such a cure;
 
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(e) subject to the provisions of the Intercreditor Agreement, exercise, or cause to be exercised, any and all other remedies as it may have under the Bond Documents and as otherwise available at law and at equity; and
(f) subject to the provisions of the Intercreditor Agreement, direct the Collateral Agent to exercise the rights and remedies under the Security Documents (or at law or pursuant to the UCC).
In the case of any event with respect to any Loan Party described in paragraph (g)  or (h)  of Section 7.01 , the outstanding amount of the Obligations under the Bond Documents, together with accrued interest thereon and any unpaid accrued fees (including fees due and payable under the Agency Fee Letter) and all other liabilities of the Loan Parties accrued hereunder and under any other Bond Document, shall automatically become due and payable, in accordance with Section 7.2 of the Indenture.
Section 7.03. Remedies Waterfall . Upon the occurrence and during the continuance of an Event of Default, subject to Section 2.02 of the Intercreditor Agreement, all Proceeds (as defined in the Intercreditor Agreement) received by any Guaranteed Party under this Agreement or any other Bond Document shall be applied as follows:
(a) FIRST, to the payment of all costs and expenses incurred by the Administrative Agent in connection with this Agreement, any other Bond Document or any of the Guaranteed Obligations, including all court costs and the fees and expenses of its agents and legal counsel, the repayment of all advances made by the Administrative Agent hereunder or under any other Bond Document on behalf of any Loan Party and any other costs or expenses incurred in connection with the exercise of any right or remedy hereunder or under any other Bond Document (in the case of such costs and expenses, to the extent any Loan Party is obligated under the Bond Documents to pay such costs and expenses);
(b) SECOND, to the extent of any excess of such Proceeds, to the payment in full of the Guaranteed Obligations (the amounts so applied to be distributed among the Guaranteed Parties pro rata in accordance with the amounts of the Guaranteed Obligations owed to them on the date of any such distribution); and
(c) THIRD, to the payment to or upon the order of the Loan Parties or to whosoever may be lawfully entitled to receive the same pursuant to the Second Lien Intercreditor Agreement or otherwise, or as a court of competent jurisdiction may direct.
Section 7.04. Solely for the Benefit of Bondholders and Administrative Agent . The rights and remedies of the Bondholders specified herein are for the sole and exclusive benefit, use and protection of the Bondholders and the Administrative Agent, and the Bondholders and the Administrative Agent are entitled, but shall have no duty or obligation to the Obligor, the Trustee or any other Person or otherwise, to exercise or to refrain from exercising any right or remedy reserved to the Bondholders or the Administrative Agent hereunder or under any of the other Bond Documents.
 
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Section 7.05. Discontinuance of Proceedings . In case the Bondholders or the Administrative Agent shall proceed to invoke any right, remedy or recourse permitted hereunder or under the Bond Documents and shall thereafter elect to discontinue or abandon the same for any reason, the Bondholders and Administrative Agent shall have the unqualified right so to do and, in such event, the Obligor, the Administrative Agent and the Bondholders shall be restored to their former positions with respect to the Obligations, the Bond Documents and otherwise, and the rights, remedies, recourse and powers of the Bondholders or the Administrative Agent hereunder shall continue as if the same had never been invoked.
Section 7.06. Specified Equity Contributions . Notwithstanding anything to the contrary contained in Section 7.02 , in the event of any Financial Covenant Event of Default, any cash equity contribution (in the form of common equity) made to the Parent during any Fiscal Quarter or on or prior to the day that is 10 days after the day on which financial statements are required to be delivered for such Fiscal Quarter will be, at the request of the Parent, included in the calculation of EBITDA solely for the purposes of determining compliance with the financial covenants set forth in Section 6.14 at the end of such Fiscal Quarter and any subsequent period that includes such Fiscal Quarter (any such equity contribution, a “ Specified Equity Contribution ”) and if, after giving effect to the foregoing calculation, the Parent and the Obligor would then be in compliance with the financial covenants set forth in Section 6.14 at the end of such Fiscal Quarter, the Obligor shall be deemed to be in compliance with the financial covenants set forth in Section 6.14 at the end of such Fiscal Quarter and such Financial Covenant Event of Default shall be deemed not to have existed or occurred; provided that (a) there shall be no more than two Specified Equity Contributions made in any period of four consecutive Fiscal Quarters, (b) there shall be no more than five Specified Equity Contributions at any time prior to the Mandatory Purchase Date, (c) there shall be no more than one Specified Equity Contribution in any two consecutive Fiscal Quarters, (d) the amount of any Specified Equity Contribution and the use of proceeds therefrom will be no greater than the amount required to cause the Obligor to be in compliance with the financial covenants set forth in Section 6.14 and (e) all Specified Equity Contributions and the use of proceeds therefrom will be disregarded for all other purposes under the Bond Documents (including for purposes of calculating the Available Equity Amount and any ratios or items calculated by reference to EBITDA). To the extent that the proceeds of any Specified Equity Contribution are used to repay Indebtedness, such Indebtedness shall not be deemed to have been repaid for purposes of calculating the financial covenants set forth in Section 6.14 for any period of four consecutive Fiscal Quarters of the Parent in which EBITDA shall have been increased as a result of such Specified Equity Contribution.
ARTICLE VIII
ADMINISTRATIVE AGENT
Section 8.01. Appointment and Authority . Each of the Bondholders hereby irrevocably appoints, designates and authorizes Bank of America to act on its behalf as the Administrative Agent hereunder and under the other Bond Documents and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms hereof or thereof, together with such actions and powers as are reasonably incidental thereto, including, without limitation, the power to deliver notices to the Trustee in connection with the Bonds upon the direction of the Required Bondholders and to take all such other actions with respect to the Bond Documents as the
 
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Required Bondholders may direct. Except as expressly provided in Sections 8.06 and 8.10 , the provisions of this Article are solely for the benefit of the Administrative Agent and the Bondholders, and neither the Obligor nor any Loan Party shall have rights as a third party beneficiary of any such provision. It is understood and agreed that the use of the term “agent” herein or in any other Bond Documents (or any other similar term) with reference to the Administrative Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead such term is used as a matter of market custom, and is intended to create or reflect only an administrative relationship between contracting parties.
Section 8.02. Rights as a Bondholder . The Person serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Bondholder as any other Bondholder and may exercise the same as though it were not the Administrative Agent and the term “Bondholder” or “Bondholders” shall, unless otherwise expressly indicated or unless the context otherwise requires, include the Person serving as the Administrative Agent hereunder in its individual capacity. Such Person and its Affiliates may accept deposits from, lend money to, own securities of, act as the financial advisor or in any other advisory capacity for and generally engage in any kind of banking, trust, financial, advisory, underwriting or other business with any Loan Party or any Subsidiary or other Affiliate thereof as if such Person were not the Administrative Agent hereunder and without any duty to account therefor to the Bondholders or to provide notice to or consent of the Bondholders with respect thereto.
Section 8.03. Exculpatory Provisions . The Administrative Agent shall not have any duties or obligations except those expressly set forth herein and in the other Bond Documents, and its duties hereunder shall be administrative in nature. Without limiting the generality of the foregoing, the Administrative Agent and its Related Parties:
(a) shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing;
(b) shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby or by the other Bond Documents that the Administrative Agent is required to exercise as directed in writing by the Required Bondholders (or such other number or percentage of the Bondholders as shall be expressly provided for herein or in the other Bond Documents) or the Secured Parties in accordance with the provisions of the Intercreditor Agreement, provided that Administrative Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose the Administrative Agent to liability or that is contrary to any Bond Document or applicable law, including for the avoidance of doubt any action that may be in violation of the automatic stay under any Debtor Relief Law; and
(c) shall not, except as expressly set forth herein and in the other Bond Documents, have any duty or responsibility to disclose, and shall not be liable for the failure to disclose, any information relating to any Loan Party or any of its Affiliates that is communicated to or obtained by the Person serving as the Administrative Agent or any of its Affiliates in any capacity.
 
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Neither the Administrative Agent nor any of its Related Parties shall be liable for any action taken or not taken by the Administrative Agent under or in connection with this Agreement or any other Bond Document or the transactions contemplated hereby or thereby (i) with the consent or at the request of the Required Bondholders (or such other number or percentage of the Bondholders as shall be necessary) or the Secured Parties in accordance with the provisions of the Intercreditor Agreement, or as the Administrative Agent shall believe in good faith shall be necessary, under the circumstances as provided in Sections 9.01 and 7.02 ) or (ii) in the absence of its own gross negligence, willful misconduct, or material breach in bad faith of its express material obligations hereunder or under any other Bond Document, as determined by a court of competent jurisdiction by final and nonappealable judgment. The Administrative Agent shall not be deemed to have knowledge of any Default unless and until notice describing such Default is given in writing to the Administrative Agent by the Obligor or a Bondholder or notice of default under the Indenture is received by the Administrative Agent from the Trustee.
Neither the Administrative Agent nor any of its Related Parties have any duty or obligation to any Bondholder or participant or any other Person to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other Bond Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein or the occurrence of any Default, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any other Bond Document or any other agreement, instrument or document, or the creation, perfection or priority of any Lien purported to be created by the Security Documents, (v) the value or the sufficiency of any Collateral, or (vi) the satisfaction of any condition or representation and warranty set forth in Article IV or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. The Administrative Agent shall not be responsible or have any liability for, or have any duty to ascertain, inquire into, monitor or enforce, compliance with the provisions hereof relating to Disqualified Institutions. Without limiting the generality of the foregoing, the Administrative Agent shall not (A) be obligated to ascertain, monitor or inquire as to whether any Bondholder or Participant or prospective Bondholder or Participant is a Disqualified Institution or (B) have any liability with respect to or arising out of any assignment or participation of Bonds, or disclosure of confidential information, to any Disqualified Institution.
Section 8.04. Reliance by the Administrative Agent . The Administrative Agent shall be entitled to rely upon, and shall be fully protected in relying and shall not incur any liability for relying upon, any notice, request, certificate, communication, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed, sent or otherwise authenticated by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person, and shall be fully protected in relying and shall not incur any liability for relying thereon. In determining compliance with any condition hereunder to the purchase of Bonds, that by its terms must be fulfilled to the satisfaction of a Bondholder, the Administrative Agent may presume that such condition is satisfactory to such Bondholder unless the Administrative Agent shall have received notice to the contrary from such Bondholder prior to the purchase of such Bond. Each Agent may consult with legal counsel (who may be counsel for the Loan Parties), independent
 
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accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. For purposes of determining compliance with the conditions specified in Section 4.01 , each Bondholder that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Bondholder unless the Administrative Agent shall have received notice from such Bondholder prior to the proposed Closing Date specifying its objections.
Section 8.05. Delegation of Duties . The Administrative Agent may perform any and all of its duties and exercise its rights and powers hereunder or under any other Bond Document by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all of its duties and exercise its rights and powers by or through their respective Related Parties. The exculpatory provisions of this Article shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to any activities as Administrative Agent. The Administrative Agent shall not be responsible for the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and nonappealable judgment that the Administrative Agent acted with gross negligence or willful misconduct in the selection of such sub-agents.
Section 8.06. Resignation of Administrative Agent.
(a) Notice of Resignation of Administrative Agent . The Administrative Agent may at any time give notice of its resignation to the Bondholders and the Obligor. Upon receipt of any such notice of resignation, the Required Bondholders shall have the right, in consultation with the Obligor, to appoint a successor, which shall be a bank with an office in the United States, or an Affiliate of any such bank with an office in the United States. If no such successor shall have been so appointed by the Required Bondholders and shall have accepted such appointment within thirty (30) days after the retiring Administrative Agent gives notice of its resignation (or such earlier day as shall be agreed by the Required Bondholders) (the “ Resignation Effective Date ”), then the retiring Administrative Agent may (but shall not be obligated to) on behalf of the Bondholders, appoint a successor Administrative Agent meeting the qualifications set forth above. Whether or not a successor has been appointed, such resignation shall become effective in accordance with such notice on the Resignation Effective Date.
(b) Effect of Resignation or Removal of Administrative Agent . With effect from the Resignation Effective Date (i) the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Bond Documents (except that in the case of any collateral security held by the Administrative Agent on behalf of the Bondholders under any of the Bond Documents, the retiring Administrative Agent shall continue to hold such collateral security until such time as a successor Administrative Agent is appointed) and (ii) except for any indemnity payments or other amounts then owed to the retiring Administrative Agent, all payments, communications and determinations provided to be made by, to or through the Administrative Agent shall instead be made by or to each Bondholder directly, until such time, if any, as the Required Bondholders appoint a successor Administrative Agent as provided for above. Upon the acceptance of a successor’s appointment as Administrative Agent hereunder,
 
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such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Administrative Agent (other than as provided in Section 2.16 and other than any rights to indemnity payments or other amounts owed to the retiring Administrative Agent as of the Resignation Effective Date), and the retiring Administrative Agent shall be discharged from all of its duties and obligations hereunder or under the other Bond Documents (if not already discharged therefrom as provided above in this Section). The fees payable by the Obligor to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Obligor and such successor. After the retiring Administrative Agent’s resignation hereunder and under the other Bond Documents, the provisions of this Article and Section 9.04 shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while the retiring Administrative Agent was acting as Administrative Agent.
Section 8.07. Non-Reliance on Administrative Agent and Other Bondholders . Each Bondholder acknowledges that it has, independently and without reliance upon the Administrative Agent or any other Bondholder or any of their Related Parties and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Bondholder also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Bondholder or any of their Related Parties and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Bond Document or any related agreement or any document furnished hereunder or thereunder.
Section 8.08. No Other Duties, Etc; No Partnership . Anything herein to the contrary notwithstanding, (a) none of the titles listed on the cover page hereof shall have any powers, duties or responsibilities under this Agreement or any of the other Bond Documents, except in its capacity, as applicable, as the Administrative Agent, any Arranger or a Bondholder hereunder, and (b) no action taken by the Administrative Agent, any Arranger or any Bondholder hereunder or pursuant hereto, shall be deemed to constitute any such Persons, a partnership, association, joint venture or other entity.
Section 8.09. Administrative Agent May File Proofs of Claim; Credit Bidding . In case of the pendency of any proceeding under any Debtor Relief Law or any other judicial proceeding relative to any Loan Party, the Administrative Agent (irrespective of whether the principal of any Bond shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether the Administrative Agent shall have made any demand on the Obligor) shall be entitled and empowered, by intervention in such proceeding or otherwise:
(a) to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of any Bond and all other Secured Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims of the Bondholders and the Administrative Agent (including any claim for the reasonable compensation, expenses, disbursements and advances of the Bondholders and the Administrative Agent and their respective agents and counsel and all other amounts due the Bondholders and the Administrative Agent under Sections 2.11 and 9.04 ) allowed in such judicial proceeding; and
 
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(b) to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Bondholder to make such payments to the Administrative Agent and, in the event that the Administrative Agent shall consent to the making of such payments directly to the Bondholders, to pay to the Administrative Agent any amount due for the reasonable compensation, expenses, disbursements and advances of the Administrative Agent and its agents and counsel, and any other amounts due the Administrative Agent under 2.11 and 9.04.
Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or consent to or accept or adopt on behalf of any Bondholder any plan of reorganization, arrangement, adjustment or composition affecting the Secured Obligations or the rights of any Bondholder to authorize the Administrative Agent to vote in respect of the claim of any Bondholder in any such proceeding.
The Bondholders hereby irrevocably authorize the Collateral Agent, at the direction of the Required Bondholders, to credit bid all or any portion of the Secured Obligations (including accepting some or all of the Collateral in satisfaction of some or all of the Secured Obligations pursuant to a deed in lieu of foreclosure or otherwise) and in such manner purchase (either directly or through one or more acquisition vehicles) all or any portion of the Collateral (a) at any sale thereof conducted under the provisions of the U.S. Bankruptcy Code, including under Sections 363, 1123 or 1129 of the U.S. Bankruptcy Code, or any similar laws in any other jurisdictions to which a Loan Party is subject, (b) at any other sale or foreclosure or acceptance of collateral in lieu of debt conducted by (or with the consent or at the direction of) the Collateral Agent (whether by judicial action or otherwise) in accordance with any applicable law. In connection with any such credit bid and purchase, the Secured Obligations owed to the Secured Parties shall be entitled to be, and shall be, credit bid on a ratable basis (with Secured Obligations with respect to contingent or unliquidated claims receiving contingent interests in the acquired assets on a ratable basis that would vest upon the liquidation of such claims in an amount proportional to the liquidated portion of the contingent claim amount used in allocating the contingent interests) in the asset or assets so purchased (or in the Equity Interests or debt instruments of the acquisition vehicle or vehicles that are used to consummate such purchase). In connection with any such bid (i) the Collateral Agent shall be authorized to form one or more acquisition vehicles to make a bid, (ii) to adopt documents providing for the governance of the acquisition vehicle or vehicles ( provided that any actions by the Collateral Agent with respect to such acquisition vehicle or vehicles, including any disposition of the assets or Equity Interests thereof shall be governed, directly or indirectly, by the vote of the Required Bondholders, irrespective of the termination of this Agreement and without giving effect to the limitations on actions by the Required Bondholders contained in clauses (a)  through (j)  of Section 9.01 of this Agreement, and (iii) to the extent that Secured Obligations that are assigned to an acquisition vehicle are not used to acquire Collateral for any reason (as a result of another bid being higher or better, because the amount of Secured Obligations assigned to the acquisition vehicle exceeds the amount of debt credit bid by the acquisition vehicle or otherwise), such Secured Obligations shall automatically be reassigned to the Bondholders pro rata and the Equity Interests and/or debt instruments issued by any acquisition vehicle on account of the Secured Obligations that had been assigned to the acquisition vehicle shall automatically be cancelled, without the need for any Secured Party or any acquisition vehicle to take any further action.
 
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Section 8.10. Collateral and Guaranty Matters.
(a) In the event that any Loan Party Disposes of all or any portion of any of its assets to any Person (other than a Loan Party) in a transaction permitted by Section 6.04 , the Administrative Agent and the Collateral Agent shall promptly (and the Bondholders hereby authorize the Administrative Agent and the Collateral Agent to) take such action and execute any such documents as may be reasonably requested by the Obligor and at the Obligor’s expense to (i) release any Liens created by any Bond Document in respect of such assets and (ii) if such Disposition is a sale of the Equity Interests in a Subsidiary, release such Subsidiary as a guarantor under the Guaranty Agreement. In addition, if the Obligor or any other Restricted Subsidiary enters into any lease or sublease with, or grants any easement, right-of-way, permit, license, restriction or the like to, any Person (other than a Loan Party or any other Affiliate of the Parent or any Subsidiary) in a transaction permitted by Section 6.04 , the Administrative Agent and the Collateral Agent may (and the Bondholders hereby authorize the Administrative Agent and the Collateral Agent to) take such action and execute any such documents as may be reasonably requested by the Obligor and at the Obligor’s expense to subordinate any Liens created by any Bond Document with respect to such lease, sublease, easement, right-of-way, permit, license, restriction or the like to such Person. In connection with any such transaction, the Administrative Agent and the Collateral Agent may rely conclusively (and without further inquiry) on a certificate provided to it upon its reasonable request by any Loan Party to the effect that such transaction is permitted by Section 6.04 .
(b) In the event that any Subsidiary Loan Party becomes an Unrestricted Subsidiary pursuant to Section 5.17 , the Administrative Agent and the Collateral Agent shall promptly (and the Bondholders hereby authorize the Administrative Agent and the Collateral Agent to) take such action and execute any such documents as may be reasonably requested by the Obligor and at the Obligor’s expense to (i) release any Liens created by any Bond Document in respect of the assets of such Unrestricted Subsidiary and the Equity Interests in such Unrestricted Subsidiary and (ii) release such Subsidiary as a Guarantor under the Guaranty Agreement. In connection with the foregoing, the Administrative Agent and the Collateral Agent may rely conclusively (and without further inquiry) on a certificate provided to it upon its reasonable request by any Loan Party to the effect that such transaction is permitted by Section 5.17 .
The Collateral Agent and the Administrative Agent shall not be responsible for or have a duty to ascertain or inquire into any representation or warranty regarding the existence, value or collectability of the Collateral, the existence, priority or perfection of the Collateral Agent’s Lien thereon, or any certificate prepared by any Loan Party in connection therewith, nor shall the Collateral Agent or the Administrative Agent be responsible or liable to the Bondholders for any failure to monitor or maintain any portion of the Collateral.
 
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Section 8.11. Intercreditor Agreement .
(a) Each of the Bondholders hereby acknowledges that it has received and reviewed a copy of the Intercreditor Agreement and agrees to be bound by the terms thereof. Without limiting the generality of the foregoing, each Bondholder (and each Person that becomes a Bondholder hereunder pursuant to Section 9.04 ) hereby (i) authorizes and directs the Administrative Agent and the Collateral Agent to enter into the Intercreditor Agreement on behalf of such Bondholder and agrees that the Administrative Agent and the Collateral Agent may take such actions on its behalf as are contemplated by the terms of the Intercreditor Agreement, (ii) authorizes and directs the Administrative Agent and the Collateral Agent to execute the Intercreditor Agreement and the other Bond Documents to which they are or either of them is a party on behalf of such Bondholder and agrees that the Collateral Agent may take such actions on behalf of such Bondholder as are contemplated by the terms of the Intercreditor Agreement, and (iii) acknowledges that the Collateral Agent is acting as Collateral Agent for all of the Secured Parties and not solely the Bondholder Parties.
(b) Each of the Bondholders hereby acknowledges that it has received and reviewed Exhibit G and, upon execution and delivery thereof by the parties thereto, agrees to be bound by the terms of the Second Lien Intercreditor Agreement. Without limiting the generality of the foregoing, each Bondholder (and each Person that becomes a Bondholder hereunder pursuant to Section 9.04) hereby (i) authorizes and directs the Administrative Agent and the Collateral Agent to enter into the Second Lien Intercreditor Agreement on behalf of such Bondholder and agrees that the Administrative Agent and the Collateral Agent may take such actions on its behalf as are contemplated by the terms of the Second Lien Intercreditor Agreement, (ii) authorizes and directs the Administrative Agent and the Collateral Agent to execute the Second Lien Intercreditor Agreement and the other Bond Documents to which they are or either of them is a party on behalf of such Bondholder and agrees that the Collateral Agent may take such actions on behalf of such Bondholder as are contemplated by the terms of the Second Lien Intercreditor Agreement, and (iii) acknowledges that the Collateral Agent is acting as Collateral Agent for all of the Secured Parties and not solely the Bondholder Parties.
ARTICLE IX
MISCELLANEOUS
Section 9.01. Amendments, Etc .. Except as provided in the Guaranty Agreement, the Security Documents, the Second Lien Intercreditor Agreement (at any time when the Second Lien Intercreditor Agreement is in effect), the Indentures, the Loan Agreements and the Bonds, no amendment or waiver of any provision of this Agreement or any other Bond Document, and no consent to any departure by the Obligor or any other Loan Party therefrom, shall be effective unless in writing signed by the Required Bondholders (or the Administrative Agent with the consent of the Required Bondholders) and the Obligor or the applicable Loan Party, and each such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given; provided , however that no such amendment, waiver or consent shall:
(a) waive any condition set forth in Section 4.01 , without the written consent of each Bondholder;
(b) extend the Mandatory Purchase Date or increase the obligation of any Bondholder to purchase Bonds without the written consent of such Bondholder (it being understood and agreed that a waiver of any Default or Event of Default does not constitute an extension of the Mandatory Purchase Date);
 
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(c) postpone any date fixed by this Agreement or any other Bond Document for any payment (excluding payments made as the result of a mandatory redemption or purchase of the Bonds pursuant to the terms of Section 2.10 hereof) of principal, interest, fees or other amounts due to the Bondholders (or any of them) hereunder or under such other Bond Document without the written consent of each Bondholder entitled to such payment;
(d) reduce the principal of, or the rate of interest specified herein on, any Bond, or (subject to clause (iii)  of the second proviso to this Section 9.01 ) any fees or other amounts payable hereunder or under any other Bond Document without the written consent of each Bondholder entitled to such amount; provided , however , that only the consent of the Required Bondholders shall be necessary to amend the definition of “Default Rate” or to waive any obligation of the Obligor to pay interest at the Default Rate;
(e) change (i)  Section 7.03 in a manner that would alter the pro rata sharing of payments required thereby without the written consent of each Bondholder or (ii)  Section 2.12 in a manner that would alter the pro rata application required thereby without the written consent of each Bondholder directly affected thereby;
(f) change any provision of this Section 9.01 or the definition of “Required Bondholders” or any other provision of any Bond Document specifying the number or percentage of Bondholders required to amend, waive or otherwise modify any rights hereunder or thereunder or make any determination or grant any consent hereunder, without the written consent of each Bondholder;
(g) except as expressly permitted under Section 8.10 and Section 3.07(a) of the Intercreditor Agreement (other than clause (iii) thereof), release all or substantially all of the Collateral from the Liens under the Security Documents without the written consent of each Bondholder;
(h) except as expressly permitted under Section 8.10 , release the Parent or any Subsidiary Loan Party from its Guarantee under the Guaranty Agreement, or limit its liability in respect of such Guarantee, without the written consent of each Bondholder; or
(i) release the Obligor or permit the Obligor to assign or transfer any of its rights or obligations under this Agreement or the other Bond Documents without the consent of each Bondholder; or
(j) (ix) change the order of priority of payments set forth in Section 7.03 , Section 5.04 of the Security Agreement or Section 2.01 of the Intercreditor Agreement, without the prior written consent of each Bondholder; or
and provided , further , that (i) no amendment, waiver or consent shall, unless in writing and signed by the Administrative Agent in addition to the Bondholders required above, affect the rights or duties of the Administrative Agent under this Agreement or any other Bond Document; (ii) no amendment, waiver or consent shall, unless in writing and signed by the Collateral Agent in addition to the Bondholders required above, affect the rights or duties of the Collateral Agent under this Agreement or any other Bond Document, and (iii) the Agency Fee Letter may be amended, or rights or privileges thereunder waived, in a writing executed only by the parties
 
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thereto. Each Bondholder shall be bound by any waiver, amendment or modification authorized by this Section 9.01 and any consent by any Bondholder pursuant to this Section 9.01 shall bind any assignee of such Bondholder.
Without the consent of any Bondholder, the Parent, the Obligor and the Administrative Agent and/or the Collateral Agent may (in their respective sole discretion, or shall, to the extent required by any Bond Document) enter into any amendment, modification or waiver of any Bond Document, or enter into any new agreement or instrument, in each case at the Obligor’s expense, to effect the granting, perfection, protection, expansion or enhancement of any security interest in any Collateral or additional property to become Collateral for the benefit of the Secured Parties, or as required by local law to give effect to or protect any security interest for the benefit of the Secured Parties in any property or so that the security interests therein comply with applicable law.
Notwithstanding the other provisions of this Section 9.01 , the applicable Loan Parties and the Administrative Agent and/or the Collateral Agent may (but shall have no obligation to) amend or supplement the Bond Documents without the consent of any other Bondholder Party for the purpose of (i) curing any ambiguity, defect, inconsistency or typographical or drafting error, (ii) making any change that would provide any additional rights or benefits to the Bondholder Parties and (iii) making, completing or confirming any grant of Collateral permitted or required by this Agreement or any of the Security Documents or any release of any Collateral that is otherwise permitted under the terms of this Agreement and the Security Documents.
Section 9.02. Notices; Effectiveness; Electronic Communication . (a) Except in the case of notices and other communications expressly permitted to be given by telephone (and except as provided in subsection (b)  below), all notices and other communications provided for herein shall be in writing and shall be delivered by hand or overnight courier service, mailed by certified or registered mail or sent by fax transmission or e-mail transmission as follows, and all notices and other communications expressly permitted hereunder to be given by telephone shall be made to the applicable telephone number, as follows:
(i) if to the Obligor, any Loan Parties, the Administrative Agent or the Collateral Agent, to the address, fax number, e-mail address or telephone number specified for such Person on Schedule I ; and
(ii) if to any Bondholder, to the address, fax number, e-mail address or telephone number specified in its Administrative Questionnaire.
Notices and other communications sent by hand or overnight courier service, or mailed by certified or registered mail, shall be deemed to have been given when received; notices and other communications sent by fax transmission or e-mail transmission shall be deemed to have been given when sent (except that, if not given during normal business hours for the recipient, shall be deemed to have been given at the opening of business on the next Business Day for the recipient). Notices and other communications delivered through electronic communications to the extent provided in subsection (b)  below, shall be effective as provided in such subsection (c) .
 
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(b) Electronic Communications . Notices and other communications to the Administrative Agent, the Collateral Agent and the Bondholders hereunder may be delivered or furnished by electronic communication (including e-mail, FPML messaging and Internet or intranet websites) pursuant to procedures approved by the Administrative Agent, provided that the foregoing shall not apply to notices to any Bondholder pursuant to Article II if such Bondholder has notified the Administrative Agent that it is incapable of receiving notices under such Article by electronic communication. The Administrative Agent, the Collateral Agent or the Obligor may each, in its discretion, agree to accept notices and other communications to it hereunder by electronic communications pursuant to procedures approved by it, provided that approval of such procedures may be limited to particular notices or communications.
Unless the Administrative Agent otherwise prescribes, (i) notices and other communications sent to an e-mail address shall be deemed received upon the sender’s receipt of an acknowledgment from the intended recipient (such as by the “return receipt requested” function, as available, return e-mail or other written acknowledgement) and (ii) notices and other communications posted to an Internet or intranet website shall be deemed received by the intended recipient upon the sender’s receipt of an acknowledgement from the intended recipient (such as by the “return receipt requested” function, as available, return e-mail address or other written acknowledgement) indicating that such notice or communication is available and identifying the website address therefor; provided that for both clauses (i)  and (ii) , if such notice or other communication is not sent during the normal business hours of the recipient, such notice, email or communication shall be deemed to have been sent at the opening of business on the next Business Day for the recipient.
(c) The Platform . THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE.” THE AGENT PARTIES (AS DEFINED BELOW) DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE OBLIGOR MATERIALS OR THE ADEQUACY OF THE PLATFORM, AND EXPRESSLY DISCLAIM LIABILITY FOR ERRORS IN OR OMISSIONS FROM THE OBLIGOR MATERIALS. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS, IS MADE BY ANY AGENT PARTY IN CONNECTION WITH THE OBLIGOR MATERIALS OR THE PLATFORM. In no event shall the Administrative Agent, the Collateral Agent or any of their respective Related Parties (collectively, the “ Agent Parties ”) have any liability to the Obligor, any Bondholder or any other Person for losses, claims, damages, liabilities or expenses of any kind (whether in tort, contract or otherwise) arising out of the Obligor’s, any Loan Party’s or any Agent’s transmission of Obligor Materials or notices through the Platform, any other electronic platform or electronic messaging service, or through the Internet.
(d) Change of Address, Etc . Each of the Obligor, each Loan Party, the Administrative Agent, and the Collateral Agent may change its address, fax number or telephone number or e-mail address for notices and other communications hereunder by notice to the other parties hereto. Each Bondholder may change its address, fax number or telephone number or e-mail address for notices and other communications hereunder by notice to the Obligor, the Administrative Agent and the Collateral Agent. In addition, each Bondholder agrees to notify
 
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the Administrative Agent from time to time to ensure that the Administrative Agent has on record (i) an effective address, contact name, telephone number, fax number and e-mail address to which notices and other communications may be sent and (ii) accurate wire instructions for such Bondholder.
(e) Reliance by Administrative Agent, Collateral Agent and Bondholders . The Administrative Agent, the Collateral Agent and the Bondholders shall be entitled to rely and act upon any notices (including, without limitation, telephonic or electronic notices) purportedly given by or on behalf of any Loan Party even if (i) such notices were not made in a manner specified herein, were incomplete or were not preceded or followed by any other form of notice specified herein, or (ii) the terms thereof, as understood by the recipient, varied from any confirmation thereof. The Loan Parties shall indemnify the Administrative Agent, the Collateral Agent, each Bondholder and the Related Parties of each of them from all losses, costs, expenses and liabilities resulting from the reliance by such Person on each notice purportedly given by or on behalf of a Loan Party provided that such indemnity shall not, as to any such Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses have resulted from the gross negligence or willful misconduct of such Indemnitee as determined by the final, non-appealable judgment of a court of competent jurisdiction. All telephonic notices to and other telephonic communications with the Administrative Agent may be recorded by the Administrative Agent, and each of the parties hereto hereby consents to such recording.
Section 9.03. No Waiver; Cumulative Remedies .
No failure by any Bondholder, the Collateral Agent or the Administrative Agent to exercise, and no delay by any such Person in exercising, any right, remedy, power or privilege hereunder or under any other Bond Document shall operate as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder or under any other Bond Document preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege. The rights, remedies, powers and privileges herein provided, and provided under each other Bond Document, are cumulative and not exclusive of any rights, remedies, powers and privileges provided by law.
Notwithstanding anything to the contrary contained herein or in any other Bond Document, the authority to enforce rights and remedies hereunder and under the other Bond Documents against the Loan Parties or any of them shall be vested exclusively in, and all actions and proceedings at law in connection with such enforcement shall be instituted and maintained exclusively by, the Administrative Agent in accordance with Section 7.02 for the benefit of all the Bondholders; provided, however , that the foregoing shall not prohibit (a) the Administrative Agent from exercising on its own behalf the rights and remedies that inure to its benefit (solely in its capacity as Administrative Agent) hereunder and under the other Bond Documents, (b) the Collateral Agent from exercising the rights and remedies that inure to its benefit (solely in its capacity as Collateral Agent) hereunder and under the other Bond Documents, (c) any Bondholder from exercising setoff rights in accordance with Section 9.08 (subject to the terms of Section 2.12 ), or (d) any Bondholder from filing proofs of claim or appearing and filing pleadings on its own behalf during the pendency of a proceeding relative to any Loan Party under any Debtor Relief Law; and provided, further , that if at any time there is no Person acting as Administrative Agent hereunder and under the other Bond Documents, then (i) the Required
 
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Bondholders shall have the rights otherwise ascribed to the Administrative Agent pursuant to Section 7.02 and (ii) in addition to the matters set forth in clauses (b) , (c)  and (d)  of the preceding proviso and subject to Section 2.12 , any Bondholder may, with the consent of the Required Bondholders, enforce any rights and remedies available to it and as authorized by the Required Bondholders.
Section 9.04. Costs and Expenses; Damage Waiver . (a) The Loan Parties shall pay (i) all reasonable and documented out-of-pocket expenses incurred by the Administrative Agent, the Collateral Agent, and the Bondholders (including, in each case, reasonable and documented expenses incurred in connection with initial due diligence and initial Collateral examination (including reasonable travel expenses) and the reasonable and documented fees, disbursements and the charges for no more than one counsel for the Administrative Agent, the Collateral Agent and the Bondholders, taken as a group and one counsel in each jurisdiction where Collateral is located and, in the event of any perceived or actual conflict of interest (as reasonably determined by the Administrative Agent, the Collateral Agent or any Bondholder) one additional firm of counsel for any similarly affected persons), in connection with the preparation, negotiation, execution, and delivery of this Agreement and the other Bond Documents and the purchase of the Bonds (whether or not the transactions contemplated hereby or thereby shall be consummated), (ii) all reasonable and documented out-of-pocket expenses incurred by the Administrative Agent and the Collateral Agent incurred in connection with the administration of this Agreement and any amendments, modifications, supplements or waivers of the provisions hereof or thereof and any other documents or matters requested by the Obligor or any other Loan Party in connection with this Agreement or any other Bond Document (whether or not the transactions contemplated hereby or thereby shall be consummated) (which shall be limited to the reasonable and documented fees, charges and disbursements of one counsel for the Administrative Agent and the Collateral Agent, taken as a group), (iii) all actual costs and reasonable expenses of creating, perfecting, recording, maintaining and preserving Liens in favor of the Collateral Agent, for the benefit of the Secured Parties, including filing and recording fees, expenses and taxes, stamp or documentary taxes, search fees and reasonable fees, expenses and disbursements of any counsel for the Administrative Agent, the Arrangers, and the Collateral Agent, (iv) all out-of-pocket expenses incurred by the Administrative Agent, the Collateral Agent or any Bondholder (including the fees, charges and disbursements of any counsel for the Administrative Agent or any Bondholder), in connection with the enforcement or protection of its rights (including any costs of settlement) (A) in connection with this Agreement and the other Bond Documents, including its rights under this Section, or (B) in connection with the purchase of the Bonds, including all such out-of-pocket expenses incurred during any workout, restructuring or negotiations in respect of the Bonds and (v) from and after the occurrence of an Event of Default, the fees, charges and disbursements of the Bondholder Parties, including the fees, expenses, charges and disbursements of any counsel and financial or restructuring advisors for the Administrative Agent or any Bondholder and costs of settlement, in each case, incurred during any workout, restructuring or negotiations in connection with this Agreement or any other Bond Document or in connection with the custody, use or preservation of, or the sale of, collection from or realization upon, any of the Collateral, including the expenses of the taking, holding, preparing for sale or lease, selling or otherwise disposing of or realizing on the Collateral.
 
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(b) Indemnification by the Loan Parties . The Loan Parties shall indemnify the Administrative Agent (and any sub-agent thereof), the Collateral Agent (and any sub-agent thereof), each Bondholder and each Related Party of any Purchaser or such Bondholder (each such Person being called an “ Indemnitee ”) against, and hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and related expenses (which, in the case of legal fees and expenses, shall be limited to the reasonable and documented fees, disbursements and other charges of one firm as counsel to such Indemnified Persons taken as a group, one firm of local counsel for each relevant jurisdiction, and, in the event of any perceived or actual conflict of interest (as reasonably determined by such Indemnitee), one additional firm of counsel for any similarly affected persons), incurred by any Indemnitee or asserted against any Indemnitee by any Person (including the Obligor or any Loan Party) other than such Indemnitee and its Related Parties arising out of, in connection with, or as a result of (i) the execution or delivery of this Agreement, any other Bond Document or any agreement or instrument contemplated hereby or thereby, the performance by the parties hereto and thereto of their respective obligations hereunder or thereunder, the consummation of the transactions contemplated hereby or thereby, or, in the case of the Administrative Agent (and any sub-agent thereof) and the Collateral Agent (and any sub-agent thereof) and their respective Related Parties only, the administration of this Agreement and the other Bond Documents (including in respect of any matters addressed in Section 2.13 ), (ii) the purchase of the Bonds or the use or proposed use of the proceeds therefrom (it being agreed that the indemnification provided herein is not intended as a guarantee of the market value of such Bonds), (iii) solely in the case of the Administrative Agent, as a result of any purported assignment to any Disqualified Institution being rendered void ab initio , or (iii) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory, whether brought by a third party or by the Obligor or any Loan Party or any of the Obligor or such Loan Party’s directors, shareholders or creditors, and regardless of whether any Indemnitee is a party thereto, in all cases, WHETHER OR NOT CAUSED BY OR ARISING, IN WHOLE OR IN PART, OUT OF THE COMPARATIVE, CONTRIBUTORY OR SOLE NEGLIGENCE OF THE INDEMNITEE ; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses have resulted from (i) the gross negligence or willful misconduct of such Indemnitee or a material breach in bad faith by such Indemnitee of its express material obligations under this Agreement, in each case, as determined by the final, non-appealable judgment of a court of competent jurisdiction or (iii) any proceeding that does not involve an act or omission by the Loan Parties or any of their Affiliates and that is brought by one Indemnitee against any other Indemnitee (other than any claims brought against any Arranger, the Administrative Agent or the Collateral Agent in their respective capacities or fulfilling their respective roles as an arranger or agent in connection with the Bond Documents). Subject to and without limiting the generality of the foregoing sentence, the Obligor agrees to indemnify each Indemnitee against, and hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and related expenses, including reasonable and documented counsel or consultant fees, charges and disbursements, incurred by or asserted against any Indemnitee arising out of, in any way connected with, or as a result of (1) any Environmental Claim to the extent related in any way to any of the Group Members or the Terminal Storage Facility or (2) any actual or alleged presence, Release or threatened Release of Hazardous Materials at, under, on or from any Real Property, any property owned, leased or operated by any predecessor of any of the Group Members or the Terminal Storage Facility, or,
 
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to the extent related in any way to any of the Group Members, any property at which any of the Group Members has sent Hazardous Materials for treatment, storage or disposal; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses result from the gross negligence or willful misconduct of such Indemnitee or a material breach in bad faith by such Indemnitee of its express material obligations under this Agreement, in each case, as determined by a final, non-appealable judgment of a court of competent jurisdiction.
(c) Tax Indemnification . Sections 9.04(a) and (b)  shall not apply to Indemnified Taxes and Other Taxes indemnified by the Obligor pursuant to Section 2.13 or described in Section 2.04 . .
(d) Reimbursement by Bondholders . To the extent that the Loan Parties for any reason fail to indefeasibly pay any amount required under subsection (a)  or (b)  of this Section to be paid by it to the Administrative Agent (or any sub-agent thereof) or the Collateral Agent (or any sub-agent thereof) or any Related Party of any of the foregoing, each Bondholder severally agrees to pay to the Administrative Agent (or any such sub-agent), the Collateral Agent (or any sub-agent thereof) or such Related Party, as the case may be, such Bondholder’s pro rata share (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought based on each Bondholder’s share of the Total Exposures at such time) of such unpaid amount (including any such unpaid amount in respect of a claim asserted by such Bondholder), such payment to be made severally among them based on such Bondholder’s Applicable Percentage (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought), provided , further that, the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted against the Administrative Agent (or any such sub-agent) or the Collateral Agent (or any sub-agent thereof) in its capacity as such, or against any Related Party of any of the foregoing acting for the Administrative Agent (or any such sub-agent) or the Collateral Agent (or any sub-agent thereof) in connection with such capacity. The obligations of the Bondholders under this subsection (d)  are subject to the provisions of Section 2.13(c) .
(e) Waiver of Consequential Damages, Etc . To the fullest extent permitted by applicable law, the Loan Parties shall not assert, and each Loan Party hereby waives, and acknowledges that no other Person shall have, any claim against any Indemnitee, on any theory of liability, for special, indirect, incidental, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement, any other Bond Document or any agreement or instrument contemplated hereby, the transactions contemplated hereby or thereby, the purchase of the Bonds or the use of the proceeds thereof. No Indemnitee referred to in subsection (b)  above shall be liable for any damages arising from the use by unintended recipients of any information or other materials distributed to such unintended recipients by such Indemnitee through telecommunications, electronic or other information transmission systems in connection with this Agreement or the other Bond Documents or the transactions contemplated hereby or thereby.
(f) Payments . All amounts due under this Section shall be payable not later than ten Business Days after demand therefor.
 
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(g) Survival . The agreements in this Section shall survive the payment in full of the Bonds, the resignation of the Administrative Agent or the Collateral Agent, the repayment, satisfaction or discharge of all other Obligations and the termination of this Agreement.
Section 9.05. Payments Set Aside . To the extent that any payment by or on behalf of the Obligor is made to the Administrative Agent or any Bondholder, or the Administrative Agent or any Bondholder exercises its right of setoff, and such payment or the proceeds of such setoff or any part thereof is subsequently invalidated, declared to be fraudulent or preferential, set aside or required (including pursuant to any settlement entered into by the Administrative Agent or such Bondholder in its discretion) to be repaid to a trustee, receiver or any other party, in connection with any proceeding under any Debtor Relief Law or otherwise, then (a) to the extent of such recovery, the obligation or part thereof originally intended to be satisfied shall be revived and continued in full force and effect as if such payment had not been made or such setoff had not occurred, and (b) each Bondholder severally agrees to pay to the Administrative Agent upon demand its applicable share (without duplication) of any amount so recovered from or repaid by the Administrative Agent, plus interest thereon from the date of such demand to the date such payment is made at a rate per annum equal to the Federal Funds Rate from time to time in effect. The obligations of the Bondholders under clause (b)  of the preceding sentence shall survive the payment in full of the Obligations and the termination of this Agreement.
Section 9.06. Successors and Assigns .
(a) Successors and Assigns Generally . This Agreement and each other Bond Documents is a continuing obligation and shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors, transferees and assigns permitted hereby. Neither the Obligor nor any other Loan Party may assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of each Bondholder (and any attempted assignment or transfer by any Loan Party without such consent shall be null and void). Each Bondholder may, in its sole discretion and in accordance with applicable law, from time to time assign, sell or transfer in whole or in part, this Agreement, its interest in the Bonds and the Bond Documents in accordance with the provisions of paragraph (b)  or (c)  of this Section, but subject to paragraphs (d), (e), and (f)  of this Section (and any attempted assignment or transfer by Bondholder except in accordance with this Section shall be null and void). Each Bondholder may at any time and from time to time enter into participation agreements in accordance with the provisions of paragraph (h)  of this Section. Each Bondholder may at any time pledge or assign a security interest subject to the restrictions of paragraph (i)  of this Section. The Purchasers indicated on Schedule II shall be the Purchasers hereunder until such time as a Purchaser designates an alternate Person to serve as a Purchaser hereunder by delivery of written notice to the Obligor, the Administrative Agent and the Trustee and such Person accepts and agrees to act as a Purchaser hereunder and under the Bond Documents. Upon acceptance by such Person, and notification thereof to the Obligor, the Administrative Agent and the Trustee, the successor to the Purchaser for such purposes shall thereupon succeed to and become vested with all of the rights, powers, privileges and responsibilities of such Purchaser, and any Person being replaced as a Purchaser shall be discharged from its duties and obligations as a Purchaser hereunder. Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby, participants to the extent provided in paragraph (d)  of this Section and, to the extent expressly contemplated hereby, the Related Parties of each of the Administrative Agent, the Collateral Agent and the Bondholders) any legal or equitable right, remedy or claim under or by reason of this Agreement.
 
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(b) Sales and Transfers by Bondholder to a Purchaser Transferee .
(i) Without limitation of the foregoing generality, a Bondholder may at any time sell or otherwise transfer all or a portion of the Bonds to one or more Persons that is (i) an Affiliate of such Bondholder or (ii) a trust or other custodial arrangement established by such Bondholder or an Affiliate of such Bondholder, the owners of any beneficial interest in which are limited to “qualified institutional buyers” as defined in Rule 144A promulgated under the Securities Act, or “accredited investors” as defined in Rule 501 of Regulation D under the Securities Act (each, a “ Purchaser Transferee ”) if, in the case of any sale or transfer other than a sale or transfer effected pursuant to clause (b)(ii) below, (A) written notice of such sale or transfer, including that such sale or transfer is to a Purchaser Transferee, together with addresses and related information with respect to the Purchaser Transferee, shall have been given to the Administrative Agent, the Obligor, the Trustee and the Purchaser (if different than the Bondholder) by such selling Bondholder and Purchaser Transferee, (B) the Purchaser Transferee shall have delivered (i) to the Administrative Agent, the Obligor, the Trustee and the selling Bondholder an Assignment and Assumption, and (ii) to the Administrative Agent a processing and recordation fee in the amount of $3,500, and if the assignee is not a Bondholder, an Administrative Questionnaire; provided , that the Administrative Agent may, in its sole discretion, elect to waive such processing and recordation fee in the case of any assignment.
(ii) From and after the date of any sale or transfer to any Purchaser Transferee, if so elected by the Bondholder, such Bondholder (and its successors) shall continue to have all of the rights of a Bondholder hereunder and under the other Bond Documents as if no such transfer or sale had occurred, in which case (A) no such sale or transfer shall in any way affect the obligations of the Bondholder hereunder, (B) the Obligor, the Administrative Agent and the Trustee shall be required to deal only with the Bondholder with respect to any matters under this Agreement and (C) only the Bondholer shall be entitled to enforce the provisions of this Agreement against the Obligor.
(c) Sales and Transfers by Bondholder to a Non-Purchaser Transferee . Without limitation of the foregoing generality, a Bondholder may at any time sell or otherwise transfer to all or a portion of the Bonds to one or more Persons (other than a Disqualified Institution) that is not a Purchaser Transferee but which constitutes a “qualified institutional buyer” as defined in Rule 144A promulgated under the Securities Act or an “accredited investor” as defined in Rule 501 of Regulation D under the Securities Act (each a “ Non-Purchaser Transferee ”) all or a portion of the Bonds if (A) written notice of such sale or transfer, including that such sale or transfer is to a Non-Purchaser Transferee, together with addresses and related information with respect to the Non-Purchaser Transferee, shall have been given to the Administrative Agent, the Obligor, the Trustee and the Purchaser (if different than the Bondholder) by such selling Bondholder and Non-Purchaser Transferee, (B) the Non-Purchaser Transferee shall have delivered (i) to the Administrative Agent, the Obligor, the Trustee and the selling Bondholder an Assignment and Assumption, and (ii) to the Administrative Agent a processing and recordation
 
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fee in the amount of $3,500, and if the assignee is not a Bondholder, an Administrative Questionnaire; provided , that the Administrative Agent may, in its sole discretion, elect to waive such processing and recordation fee in the case of any assignment, and (C) any such Non-Purchaser Transferee executes an investment letter in substantially the form attached as Exhibit F hereto (the “ Investor Letter ”).
(d) Assignment and Assumption . Subject to acceptance and recording of the Assignment and Assumption by the Administrative Agent pursuant to paragraph (e) , from and after the effective date specified in the applicable Assignment and Assumption and subject to compliance with the requirements of paragraph (b)(i) or (c)  above, as applicable, (A) the Transferee thereunder shall be a party hereto and shall have the rights and obligations of a Bondholder hereunder and under the other Bond Documents, and this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to effect the addition of the Transferee, and any reference to the assigning Bondholder hereunder and under the other Bond Documents shall thereafter refer to such transferring Bondholder and to the Transferee to the extent of their respective interests, and (B) the assigning Bondholder thereunder, to the extent of the interests assigned by such Assignment and Assumption, be released from its obligations under this Agreement (and in the case of any Assignment and Assumption covering all of the assigning Bondholder’s rights and obligations under this Agreement, then it shall relinquish its rights and be released from its obligations hereunder and under the Bond Documents but shall continue to be entitled to the benefits of Section 3.5 , 2.14 , 2.15 and 9.04 ) .
(e) Register . The Administrative Agent, acting solely for this purpose as an agent of the Obligor (and such agency being solely for Tax purposes), shall maintain at the Administrative Agent’s Office a copy of each Assignment and Assumption delivered to it (or the equivalent thereof in electronic form) and a register for the recordation of the names and addresses of the Bondholders, the principal amounts (and stated interest) of the Bonds owing to, each Bondholder pursuant to the terms hereof from time to time (the “ Register ”). The entries in the Register shall be conclusive, absent manifest error, and the Obligor, the Administrative Agent and the Bondholders shall treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Bondholder hereunder for all purposes of this Agreement; provided , that if any discrepancy exists between the register of the Trustee and the Register, the register of the Trustee shall prevail to the extent of such discrepancy. The Register shall be available for inspection by the Obligor and any Bondholder, at any reasonable time and from time to time upon reasonable prior notice.
(f) Proportional Amounts; Pro Rata Assignments of Bonds .
(i) Each assignment of a portion of the Bonds made pursuant to paragraph (b)  or (c)  above shall be made as an assignment of a proportionate part of all the assigning Bondholder’s rights and obligations under this Agreement and the other Bond Documents with respect to the Bonds assigned.
(ii) Each assignment of Bonds by a Bondholder made pursuant to paragraph (b)  or (c)  above shall be made on a ratable basis as between each Series of Bonds held by such assigning Bondholder.
 
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(g) No Assignments to Certain Persons . No such assignment shall be made pursuant to paragraph (b)  or (c)  above (A) to the Obligor or any of the Obligor’s Affiliates or Subsidiaries, or (B) to a natural Person or (C) to a Disqualified Institution without the consent of the Obligor, it being agreed and understood that any purported assignment to a Disqualified Institution shall be void ab initio and such purported assignee shall be removed from the Register upon written notification by the Obligor to the Administrative Agent.
(h) Participations . Each Bondholder shall have the right to grant participations in all or a portion of such Bondholder’s interest in the Bonds, this Agreement and the other Bond Documents to one or more other banking institutions (each a “ Participant ”); provided , however , that (i) no such participation by any such participant shall in any way affect the obligations of the Bondholder hereunder and (ii) the Administrative Agent, Obligor and the Trustee shall be required to deal only with the Bondholder, with respect to any matters under this Agreement, the Bonds and the other Bond Documents and no such participant shall be entitled to enforce any provision hereunder against the Obligor. The Obligor agrees that each participant shall be entitled to the benefits of Sections 2.14 , 2.15 and 9.04 hereof to the same extent as if it were a Bondholder hereunder; provided , however , that a participant shall not be entitled to receive any greater payment under Sections 2.14 and 2.15 than such Bondholder would have been entitled to receive with respect to the participation sold to such participant, unless the sale of the participation to such participant is made with the Obligor’s prior written consent. For the avoidance of doubt, each Bondholder shall be responsible for the indemnity under Section 9.04(d) without regard to the existence of any participations.
Any agreement or instrument pursuant to which a Bondholder sells such a participation shall provide that such Bondholder shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement or instrument may provide that such Bondholder will not, without the consent of the Participant, agree to any amendment, waiver or other modification described in the first proviso to Section 9.01 that affects such Participant. To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 9.08 as though it were a Bondholder; provided that such Participant agrees to be subject to Section 2.13 as though it were a Bondholder (it being understood that the documentation required under Section 2.13(e) shall be delivered to the participating Bondholders). Each Bondholder that sells a participation shall, acting solely for this purpose as an agent of the Obligor, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Bonds or other obligations under the Bond Documents (the “ Participant Register ”); provided that no Bondholder shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any Bonds or its other obligations under any Bond Document) to any Person except to the extent that such disclosure is necessary to establish that such Bond or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Bondholder shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.
 
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(i) Certain Pledges . In addition to the rights of the Purchaser set forth above, each Bondholder may at any time pledge or grant a security interest in all or any portion of its rights or interests under the Bonds, this Agreement and/or the Bond Documents to secure obligations of the Bondholder or an Affiliate of the Bondholder or any Affiliate of the Bondholder, including any pledge or assignment to secure obligations to a Federal Reserve Bank or to any state or local governmental entity or with respect to public deposits; provided that no such pledge or assignment shall release such Bondholder from any of its obligations hereunder or substitute any such pledgee or assignee for the Bondholder as a party hereto.
Section 9.07. Treatment of Certain Information; Confidentiality .
(a) Treatment of Certain Information . Each of the Administrative Agent, the Bondholders and the Trustee agrees to maintain the confidentiality of the Information (as defined below), except that Information may be disclosed (a) to its Affiliates and to its Related Parties (it being understood that the Persons to whom such disclosure is made will be informed of the confidential nature of such Information and instructed to keep such Information confidential), (b) to the extent required or requested by any regulatory authority purporting to have jurisdiction over such Person or its Related Parties (including any self-regulatory authority, such as the National Association of Insurance Commissioners), (c) to the extent required by applicable laws or regulations or by any subpoena or similar legal process, (d) to any other party hereto, (e) in connection with the exercise of any remedies hereunder or under any other Bond Document or any action or proceeding relating to this Agreement or any other Bond Document or the enforcement of rights hereunder or thereunder, (f) subject to an agreement containing provisions substantially the same as those of this Section, to (i) any assignee of or Participant in, or any prospective assignee of or Participant in, any of its rights and obligations under this Agreement or (ii) any actual or prospective party (or its Related Parties) to any swap, derivative or other transaction under which payments are to be made by reference to the Obligor and its obligations, this Agreement or payments hereunder, (g) on a confidential basis to (i) any rating agency in connection with rating the Obligor or the credit facilities provided hereunder or (ii) the CUSIP Service Bureau or any similar agency in connection with the issuance and monitoring of CUSIP numbers or other market identifiers with respect to the obligations to purchase provided hereunder, (h) with the consent of the Obligor or (i) to the extent such Information (x) becomes publicly available other than as a result of a breach of this Section or (y) becomes available to the Bondholders or any of their Affiliates on a nonconfidential basis from a source other than the Obligor. For purposes of this Section, “ Information ” means all information received from the Parent or the Obligor relating to the Parent, the Obligor or any Subsidiary or any of their respective businesses that is confidential or proprietary in nature or that is clearly identified as confidential at the time of delivery thereof, other than any such information that is available to the Bondholders, the Administrative Agent or the Trustee on a nonconfidential basis prior to disclosure by the Obligor or any Subsidiary. Any Person required to maintain the confidentiality of Information as provided in this Section shall be considered to have complied with its obligation to do so if such Person has exercised the same degree of care to maintain the confidentiality of such Information as such Person would accord to its own confidential information.
 
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(b) Press Releases . The Loan Parties and their Affiliates agree that they will not in the future issue any press releases or other public disclosure using the name of the Administrative Agent or any Bondholder or their respective Affiliates or referring to this Agreement or any of the Bond Documents without the prior written consent of the Administrative Agent and such Bondholder, unless (and only to the extent that) the Loan Parties or such Affiliate is required to do so under law and then, in any event the Loan Parties or such Affiliate will consult with such Person before issuing such press release or other public disclosure. The Bondholder Parties agree that they will not in the future issue any press releases or other public disclosure using the name of the Loan Parties or their respective Affiliates or referring to this Agreement or any of the Bond Documents without the prior written consent of the Obligor, unless (and only to the extent that) the Bondholder Parties are required to do so under law and then, in any event the Bondholder Parties will consult with the Obligor before issuing such press release or other public disclosure.
(c) Customary Advertising Material . The Loan Parties consent to the publication by the Administrative Agent or any Bondholder of customary advertising material relating to the transactions contemplated hereby using the name, product photographs, logo or trademark of the Loan Parties, provided that the Loan Parties shall be given the right to review and approve any such materials before they are published or disclosed.
Section 9.08. Right of Setoff . If an Event of Default shall have occurred and be continuing, each Bondholder Party and each of their respective Affiliates are hereby authorized at any time and from time to time, to the fullest extent permitted by applicable law, to set off and apply any and all deposits (general or special, time or demand, provisional or final, in whatever currency) at any time held and other obligations (in whatever currency) at any time owing by such Bondholder Party or any such Affiliate to or for the credit or the account of the Obligor or any Loan Party against any and all of the obligations of the Obligor or any Loan Party, now or hereafter existing under this Agreement or any other Bond Document to such Bondholder Party or its Affiliates, irrespective of whether or not such Bondholder Party or its Affiliates shall have made any demand under this Agreement or any other Bond Document and although such obligations of the Obligor may be contingent or unmatured or are owed to a branch, office or Affiliate of such Bondholder Party different from the branch, office or Affiliate holding such deposit or obligated on such indebtedness. The rights of each Bondholder Party and its Affiliates under this Section are in addition to other rights and remedies (including other rights of setoff) that such Bondholder Party or its Affiliates may have. Each Bondholder Party agrees to notify the Obligor and the Administrative Agent promptly after any such setoff and application, provided that the failure to give such notice shall not affect the validity of such setoff and application.
Section 9.09. Counterparts; Integration; Effectiveness . This Agreement may be executed in counterparts (and by different parties hereto in different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract. This Agreement and the other Bond Documents constitute the entire contract among the parties relating to the subject matter hereof and supersede any and all previous agreements and understandings, oral or written, relating to the subject matter hereof. Except as provided in Section 4.01 , this Agreement shall become effective when it shall have been executed by the Bondholders and when the Bondholders shall have received counterparts hereof that, when taken together, bear the signatures of each of the other parties hereto. Delivery of an executed counterpart of a signature page of this Agreement by fax transmission or e-mail transmission
 
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(e.g., “pdf” or “tif”) shall be effective as delivery of a manually executed counterpart of this Agreement. Without limiting the foregoing, to the extent a manually executed counterpart is not specifically required to be delivered under the terms of any Bond Document, upon the request of any party, such fax transmission or e-mail transmission shall be promptly followed by such manually executed counterpart.
Section 9.10. Survival of Representations and Warranties . All representations and warranties made hereunder and in any other Bond Document or other document delivered pursuant hereto or thereto or in connection herewith or therewith shall survive the execution and delivery hereof and thereof. Such representations and warranties have been or will be relied upon by the Administrative Agent and the Bondholders, regardless of any investigation made by the Bondholders or on its behalf and notwithstanding that the Bondholders may have had notice or knowledge of any Default at the time of the purchase of the Bonds, and shall continue in full force and effect as long as any Obligation hereunder shall remain unpaid or unsatisfied.
Section 9.11. Severability . If any provision of this Agreement or the other Bond Documents is held to be illegal, invalid or unenforceable, (a) the legality, validity and enforceability of the remaining provisions of this Agreement and the other Bond Documents shall not be affected or impaired thereby and (b) the parties shall endeavor in good faith negotiations to replace the illegal, invalid or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the illegal, invalid or unenforceable provisions. The invalidity of a provision in a particular jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.
Section 9.12. Governing Law; Jurisdiction; Etc . (a) This Agreement and the other Bond Documents and any claims, controversy, dispute or cause of action (whether in contract or tort or otherwise) based upon, arising out of or relating to this Agreement or any other Bond Document (except, as to any other Bond Document, as expressly set forth therein) and the transactions contemplated hereby and thereby shall be governed by, and construed in accordance with, the law of the State of New York .
(b) Submission to Jurisdiction . THE OBLIGOR IRREVOCABLY AND UNCONDITIONALLY AGREES THAT IT WILL NOT COMMENCE ANY ACTION, LITIGATION OR PROCEEDING OF ANY KIND OR DESCRIPTION, WHETHER IN LAW OR EQUITY, WHETHER IN CONTRACT OR IN TORT OR OTHERWISE, AGAINST THE PURCHASERS OR ANY RELATED PARTY OF THE PURCHASERS IN ANY WAY RELATING TO THIS AGREEMENT OR ANY OTHER BOND DOCUMENT OR THE TRANSACTIONS RELATING HERETO OR THERETO, IN ANY FORUM OTHER THAN THE COURTS OF THE STATE OF NEW YORK SITTING IN NEW YORK COUNTY AND OF THE UNITED STATES DISTRICT COURT OF THE SOUTHERN DISTRICT OF NEW YORK, AND ANY APPELLATE COURT FROM ANY THEREOF, AND EACH OF THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY SUBMITS TO THE JURISDICTION OF SUCH COURTS AND AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION, LITIGATION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH NEW YORK STATE COURT OR, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN SUCH FEDERAL COURT. EACH OF THE PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION,
 
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LITIGATION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW. NOTHING IN THIS AGREEMENT OR IN ANY OTHER BOND DOCUMENT SHALL AFFECT ANY RIGHT THAT THE PURCHASERS MAY OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER BOND DOCUMENT AGAINST THE OBLIGOR OR ITS PROPERTIES IN THE COURTS OF ANY JURISDICTION.
(c) Waiver of Venue. THE OBLIGOR IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER BOND DOCUMENT IN ANY COURT REFERRED TO IN PARAGRAPH (B)  OF THIS SECTION. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING IN ANY SUCH COURT.
(d) Service of Process . EACH PARTY HERETO IRREVOCABLY CONSENTS TO SERVICE OF PROCESS IN THE MANNER PROVIDED FOR NOTICES IN SECTION 9.02 . NOTHING IN THIS AGREEMENT WILL AFFECT THE RIGHT OF ANY PARTY HERETO TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY APPLICABLE LAW.
Section 9.13. Waiver of Jury Trial . EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER BOND DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER BOND DOCUMENTS BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
Section 9.14. No Advisory or Fiduciary Relationship . In connection with all aspects of each transaction contemplated hereby (including in connection with any amendment, waiver or other modification hereof or of any other Bond Document), the Obligor, the Parent and each other Loan Party acknowledges and agrees, and acknowledges its respective Affiliates’ understanding, that: (a) (i) the arranging and other services regarding this Agreement provided by the Administrative Agent, the Collateral Agent, the Arrangers, the Bondholders and any Affiliate thereof are arm’s-length commercial transactions between the Obligor, each other Loan Party and their respective Affiliates, on the one hand, and the Administrative Agent, the Collateral Agent, the Bondholders and, as applicable, their respective Affiliates (collectively,
 
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solely for purposes of this Section, the “ Bondholders ”), on the other hand, (ii) each of the Obligor and the other Loan Parties has consulted its own legal, accounting, regulatory and Tax advisors to the extent it has deemed appropriate, (iii) the Obligor and each other Loan Party is capable of evaluating, and understands and accepts, the terms, risks and conditions of the transactions contemplated hereby and by the other Bond Documents, (iv) no Bondholder is acting as a municipal advisor or financial advisor to the Obligor and (v) no Bondholder has any fiduciary duty pursuant to Section 15B of the Securities Exchange Act to the Obligor or any other Loan Party with respect to the transaction contemplated hereby and the discussions, undertakings and procedures leading thereto (irrespective of whether any Bondholder has provided other services or is currently providing other services to the Obligor or any Loan Party on other matters); (b) (i) each Bondholder is and has been acting solely as a principal and, except as expressly agreed in writing by the relevant parties, has not been, is not, and will not be acting as an advisor, agent or fiduciary, for the Obligor, any other Loan Party or any of their respective Affiliates or any other Person and (ii) none of the Bondholders has any obligation to the Obligor, any other Loan Party or any of their respective Affiliates with respect to the transactions contemplated hereby except those obligations expressly set forth herein and in the other Bond Documents; and (c) the Bondholders may be engaged in a broad range of transactions that involve interests that differ from those of the Obligor, the other Loan Parties and their respective Affiliates, and none of the Bondholders has any obligation to disclose any of such interests to the Obligor, any other Loan Party or any of their respective Affiliates. To the fullest extent permitted by law, each of the Obligor and each other Loan Party hereby waives and releases any claims that it may have against any Bondholder with respect to any breach or alleged breach of agency or fiduciary duty in connection with any aspect of any transactions contemplated hereby. If the Obligor or any other Loan Party would like a municipal advisor in this transaction that has legal fiduciary duties to the Obligor or any such Loan Party, the Obligor or such Loan Party is free to engage a municipal advisor to serve in that capacity. The Bond Documents are entered into pursuant to and in reliance upon the bank exemption and/or the institutional buyer exemption provided under the municipal advisor rules of the Securities and Exchange Commission, Rule 15Ba1-1 et seq.
Section 9.15. Electronic Execution of Certain Documents . The words “delivery,” “execute,” “execution,” “signed,” “signature,” and words of like import in any Bond Document (including waivers and consents) or any other document executed in connection herewith shall be deemed to include electronic signatures, the electronic matching of assignment terms and contract formations on electronic platforms approved by the Administrative Agent, or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature, physical delivery thereof or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar state laws based on the Uniform Electronic Transactions Act; provided that notwithstanding anything contained herein to the contrary neither the Administrative Agent nor any Bondholder is under any obligation to agree to accept electronic signatures in any form or in any format unless expressly agreed to by the Administrative Agent or such Bondholder pursuant to procedures approved by it and provided further without limiting the foregoing, upon the request of any party, any electronic signature shall be promptly followed by such manually executed counterpart.
 
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Section 9.16. USA Patriot Act . Each Bondholder that is subject to the Patriot Act (as hereinafter defined) and each Agent (for itself and not on behalf of any Bondholder) hereby notifies the Obligor and the other Loan Parties that pursuant to the requirements of the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the “ Patriot Act ”), it is required to obtain, verify and record information that identifies each Loan Party, which information includes the name and address of each Loan Party and other information that will allow such Bondholder or Agent, as applicable, to identify each Loan Party in accordance with the Patriot Act. The Obligor and the other Loan Parties agree to, promptly following a request by any Agent or Bondholder, provide all such other documentation and information that such Agent or Bondholder requests in order to comply with its ongoing obligations under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act.
Section 9.17. Entire Agreement . This Agreement and the other Bond Documents represent the final agreement among the parties and may not be contradicted by evidence of prior, contemporaneous, or subsequent oral agreements of the parties. There are no unwritten oral agreements among the parties. Notwithstanding the foregoing, the Commitment Letter and the Fee Letters (and any separate letter agreements with respect to fees payable to the Administrative Agent or the Collateral Agent) shall, to the extent expressly provided therein, survive the execution and delivery of this Agreement and remain in full force and effect.
Section 9.18. Acknowledgement and Appointment as the Calculation Agent . Bank of America hereby acknowledges and accepts its appointment as Calculation Agent pursuant to the Indentures and acknowledges, accepts and agrees to all the duties and obligations of the Calculation Agent set forth in the Indentures.
Section 9.19. Interest Rate Limitation .
Notwithstanding anything to the contrary contained in any Bond Document, the interest together with all fees, charges and other amounts treated as interest under applicable law (“ Charges ”) paid or agreed to be paid under the Bond Documents shall not exceed the Maximum Rate. If the Administrative Agent or any Bondholder shall receive interest and Charges in an amount that exceeds the Maximum Rate, the excess interest and Charges shall be applied to the principal of the Bonds or, if it exceeds such unpaid principal, refunded to the Obligor. In determining whether the interest contracted for, charged, or received by the Administrative Agent or a Bondholder exceeds the Maximum Rate, such Person may, to the extent permitted by applicable law, (a) characterize any payment that is not principal as an expense, fee, or premium rather than interest, (b) exclude voluntary redemptions, voluntary purchases and the effects thereof, and (c) amortize, prorate, allocate, and spread in equal or unequal parts the total amount of interest throughout the contemplated term of the Obligations hereunder.
[Signatures Begin on the Following Page.]
 
-121-

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed and delivered as of the Closing Date.

BANK OF AMERICA, N.A.,	
as Administrative Agent and Collateral Agent for the
Bondholders	
		
By:	 	/s/ Priscilla Baker	
Name:	 	Priscilla Baker	
Title:	 	Assistant Vice President	
Signature Page to Continuing Covenant Agreement

			
BANC OF AMERICA PREFERRED FUNDING CORP,
as a Purchaser	

By:	 	/s/ Eric Kosmin	
Name: Eric Kosmin	
Title: Authorized Agent	
Signature Page to Continuing Covenant Agreement

			
STI INSTITUTIONAL & GOVERNMENT, INC.,
as a Purchaser	
		
By:	 	/s/ Henry B. Harris, III	
Name:	 	Henry B. Harris, III	
Title:	 	Managing Director	
Signature Page to Continuing Covenant Agreement

			
COMPASS MORTGAGE CORPORATION,	
as a Purchaser	
		
By:	 	/s/ Debbie Leal	
Name:	 	Debbie Leal	
Title:	 	Senior Vice President	
Signature Page to Continuing Covenant Agreement

			
HFOTCO LLC
as Obligor	
		
By:	 	/s/ Michael Mangan	
Name:	 	Michael Mangan	
Title:	 	Vice President of Finance	
Signature Page to Continuing Covenant Agreement

			
BUFFALO GULF COAST TERMINALS LLC
as Parent	
		
By:	 	/s/ Guy Lotem	
Name:	 	Guy Lotem	
Title:	 	Treasurer	
Signature Page to Continuing Covenant Agreement

SCHEDULE I
ADDRESSES

The Obligor and the Loan Parties:	  	HFOTCO LLC	
	  	1201 South Sheldon Road	
	  	Houston, TX 77015	
	  	Attention:          Michael Mangan	
	  	Facsimile:         (281) 452-3458	
	  	Telephone:        (281) 452-3390	
	  	Email: MMangan@hfotco.com	
		
The Administrative Agent	  	Bank of America, N.A.	
(on behalf of the	  	Credit Services – Servicing Dallas	
Bondholders) – For Payment s:	  	901 Main Street	
	  	Dallas, Texas 75202-3714	
	  	Attention:          Angie Hidalgo	
	  	Telephone:        (972) 338-3768	
	  	Email: angie.hidalgo@baml.com	
		
The Administrative Agent	  	Bank of America Merrill Lynch	
(on behalf of the	  	Agency Management East	
Bondholders) – Other Notices :	  	900 W Trade Street	
	  	NC1-026-06-03	
	  	Charlotte, NC 28255	
	  	Attention: Priscilla Baker	
	  	Telephone: (980) 386-3475	
	  	Facsimile: (704) 409-0918	
	  	Email: priscilla.l.baker@baml.com	
		
The Collateral Agent	  	Bank of America, N.A.	
(on behalf of the	  	Credit Services – Servicing Dallas	
Bondholders) – For Payments :	  	901 Main Street	
	  	Dallas, Texas 75202-3714	
	  	Attention:          Angie Hidalgo	
	  	Telephone:        (972) 338-3768	
	  	Email: angie.hidalgo@baml.com	
Schedule I to Continuing Covenant Agreement

			
The Collateral Agent	  	Bank of America Merrill Lynch	
(on behalf of the	  	Agency Management East	
Bondholders) – Other Notices :	  	900 W Trade Street	
	  	NC1-026-06-03	
	  	Charlotte, NC 28255	
	  	Attention: Priscilla Baker	
	  	Telephone: (980) 386-3475	
	  	Facsimile: (704) 409-0918	
	  	Email: priscilla.l.baker@baml.com	
		
The Trustee:	  	The Bank of New York Mellon Trust Company, National Association	
	  	601 Travis Street, Floor 16	
	  	Houston, Texas 77002	
	  	Attention:          Public Finance	
	  	Facsimile:         (713) 483-6979	
	  	Telephone:        (713) 227-1600	
Schedule I to Continuing Covenant Agreement

SCHEDULE II
PURCHASERS

Purchaser Name	  	Bond Series	  	Par Amount	
Banc of America Preferred Funding Corp	  	Series 2010	  	$25,000,000	
Banc of America Preferred Funding Corp	  	Series 2011	  	$16,670,000	
Banc of America Preferred Funding Corp	  	Series 2012	  	$33,340,000	
STI Institutional & Government, Inc.	  	Series 2010	  	$25,000,000	
STI Institutional & Government, Inc.	  	Series 2011	  	$16,665,000	
STI Institutional & Government, Inc.	  	Series 2012	  	$33,330,000	
Compass Mortgage Corporation	  	Series 2010	  	$25,000,000	
Compass Mortgage Corporation	  	Series 2011	  	$16,665,000	
Compass Mortgage Corporation	  	Series 2012	  	$33,330,000	
Schedule II to Continuing Covenant Agreement

SCHEDULE 1.01
STORAGE CONTRACTS
 
1.	Terminaling and Storage Agreement, effective September 17, 2010, by and between the Borrower and Conoco-Phillips Company.	
 
2.	Terminaling and Storage Agreement, effective January 1, 2014, by and between the Borrower and Koch Supply and Trading, LP.	
 
3.	Terminaling and Storage Agreement, effective February 1, 2008, by and between the Borrower and Vitol Inc., as amended by First Amendment to Terminaling and Storage Agreement, dated April 29, 2011, as further amended by the Addendum to Terminaling and Storage Agreement, effective November 17, 2013, and as further amended by the Addendum to Terminaling and Storage Agreement, effective December 12, 2013.	
 
4.	Terminaling and Storage Agreement, effective June 1, 2012, by and between the Borrower and Westport Petroleum, Inc.	
 
5.	Terminaling and Storage Agreement, effective February 10, 2010, by and between the Borrower and Chemoil Corporation, as amended by the First Amendment to Terminaling and Storage Agreement, effective February 1, 2011, and as further amended by the Addendum to Terminaling and Storage Agreement, effective April 7, 2014.	
 
6.	Terminaling and Storage Agreement #14-004, effective January 29, 2014, by and between the Borrower and Chemoil Corporation.	
 
7.	Terminaling and Storage Agreement, effective August 1, 2012, by and between the Borrower and Glencore Ltd., as amended by the Addendum to Terminaling and Storage Agreement, effective December 24, 2013, as further amended by the Addendum to Terminaling and Storage Agreement, entered into February 22, 2014, as further amended by the Addendum to Terminaling and Storage Agreement, entered into March 5, 2014, as further amended by the Addendum to Terminaling and Storage Agreement, effective April 5, 2014, and as further amended by the Addendum to Terminaling and Storage Agreement, entered into June 6, 2014.	
 
8.	Terminaling and Storage Agreement, effective July 1, 2013, by and between the Borrower and P.M.I. Trading Ltd.	
 
9.	Terminaling and Storage Agreement, effective April 1, 2012, by and between the Borrower and Chevron Marine Products, LLC.	
 
10.	Terminaling and Storage Agreement, effective February 1, 2006, by and between the Borrower and Atlantic Trading and Marketing, Inc., as amended by the First Amendment to Terminaling and Storage Agreement, dated November 27, 2007, as further amended and by the Second Amendment to Fuel Oil Terminaling and Storage Agreement, dated September 24, 2010, and as further amended by the Third Amendment to Fuel Oil Terminaling and Storage Agreement, dated January 30, 2014.	
Schedule 1.01 to Continuing Covenant Agreement

11.	Terminaling and Storage Agreement, effective April 1, 2010, by and between the Borrower and BP Products North America, Inc., as amended by the First Amendment to Terminaling and Storage Agreement, dated June 13, 2011, and as further amended by the Second Amendment to Terminaling and Storage Agreement, dated March 22, 2012.	
 
12.	Terminaling and Storage Agreement Number 13-001, entered into May 23, 2013, by and between the Borrower and Davison Petroleum Supply, LLC.	
 
13.	Terminaling and Storage Agreement Number 13-004, effective December 1, 2013, by and between the Borrower and Davison Petroleum Supply LLC.	
 
14.	Terminaling and Storage Agreement, effective March 1, 2008, by and between the Borrower and Fortis International Energy, Ltd., as amended by the First Amendment to Terminaling and Storage Agreement, dated March 3, 2011.	
 
15.	Terminaling and Storage Agreement, effective January 1, 2013, by and between the Borrower and Rio Energy International, Inc.	
 
16.	Terminaling and Storage Agreement, entered into January 11, 2011, by and between the Borrower and Shell Trading (US) Company.	
 
17.	Terminaling and Storage Agreement, effective February 1, 2014, by and between the Borrower and Shell Trading (US) Company.	
 
18.	Terminaling and Storage Agreement, effective February 1, 2006, by and between the Borrower and Shell Trading (US) Co., as amended by the First Amendment to Terminaling and Storage Agreement, dated October 23, 2007, and as further amended by the Second Amendment to Terminaling and Storage Agreement, dated May 7, 2014.	
 
19.	Terminaling and Storage Agreement, effective April 1, 2006, by and between the Borrower and Sempra Energy Trading Corp., as amended by the First Amendment to Terminaling and Storage Agreement, dated November 1, 2007, and as further amended by the Novation Agreement by and among the Borrower, Sempra Energy Trading LLC, and J.P. Morgan Ventures Energy Corporation, effective May 10, 2010.	
 
20.	Terminaling and Storage Agreement, effective February 1, 2008, by and between the Borrower and Tauber Oil Company, as amended by the First Amendment to Terminaling and Storage Agreement, dated February 12, 2008, and as further amended by the Second Amendment to Terminaling and Storage Agreement, dated February 1, 2011.	
 
21.	Terminaling and Storage Agreement, entered into May 17, 2012, by and between the Borrower and Tauber Oil Company.	
 
22.	Terminaling and Storage Agreement, effective September 11, 2010, by and between the Borrower and Astra Oil Company, LLC.	
Schedule 1.01 to Continuing Covenant Agreement

23.	Terminaling and Storage Agreement, entered into April 4, 2011, by and between the Borrower and Brightoil Petroleum (USA) Inc., as amended by the First Amendment to Terminaling and Storage Agreement, dated February 27, 2013.	
 
24.	Terminaling and Storage Agreement, entered into May 3, 2011, by and between the Borrower and Noble Americas Corp.	
 
25.	Terminaling and Storage Agreement, entered into August 2, 2011, by and between the Borrower and Trafigura AG, as amended by the First Amendment to Terminaling and Storage Agreement, dated November 26, 2012, and as further amended by the Second Amendment to Terminaling and Storage Agreement, dated June 28, 2013.	
 
26.	Crude Oil Terminaling and Storage Agreement, effective August 1, 2006, by and between the Borrower and Deer Park Refining Limited Partnership, as amended by the First Amendment to Crude Oil Terminaling and Storage Agreement, dated December 21, 2010, and as further amended by the Second Amendment to Crude Oil Terminaling and Storage Agreement, dated September 12, 2012.	
 
27.	Fuel Oil Terminaling and Storage Agreement, effective October 1, 2006, by and between the Borrower and Valero Marketing and Supply Company, as amended by the letter agreement dated October 19, 2009, as further amended by the Second Amendment to Fuel Oil Terminaling and Storage Agreement, dated January 12, 2010, and as further amended by the Third Amendment to Fuel Oil Terminaling and Storage Agreement, dated September 20, 2010.	
 
28.	Crude Oil Terminaling and Storage Agreement, effective July 1, 2004, by and between the Borrower and Valero Marketing and Supply Company.	
 
29.	Terminaling and Storage Agreement #14-005 Tanks and Barge Dock, entered into May 5, 2014, by and between the Borrower and Bayview Refining Company, LLC.	
 
30.	Terminaling and Storage Agreement #14-006 “AGO,” entered into May 5, 2014, by and between the Borrower and Bayview Refining Company, LLC.	
 
31.	Terminaling and Storage Agreement, effective March 1, 2013, by and between the Borrower and Castleton Commodities Merchant Trading L.P.	
 
32.	Terminaling and Storage Agreement, entered into January 20, 2012, by and between the Borrower and International Chemical Company.	
 
33.	Terminaling and Storage Agreement, effective June 6, 2012, by and between the Borrower and Mercuria Energy Trading Inc., as amended by the Addendum to Terminaling and Storage Agreement, dated February 3, 2014.	
 
34.	Terminaling and Storage Agreement 14-007, entered into May 14, 2014, by and between the Borrower and Motiva Enterprises LLC.	
Schedule 1.01 to Continuing Covenant Agreement

35.	Terminaling and Storage Agreement, effective May 1, 2012, by and between the Borrower and Orion Engineered Carbons, LLC.	
 
36.	Terminaling and Storage Agreement 14-009, dated July 31, 2014 and effective August 1, 2014, by and between the Borrower and Freepoint Commodities Trading and Marketing LLC.	
Schedule 1.01 to Continuing Covenant Agreement

SCHEDULE 3.02
CORPORATE STRUCTURE

Schedule 3.02 to Continuing Covenant Agreement

SCHEDULE 3.05
GOVERNMENTAL CONSENTS
None.
Schedule 3.05 to Continuing Covenant Agreement

SCHEDULE 3.08(b)
OWNED REAL PROPERTY

Record Owner	  	Street
Address	  	County	  	State	
    HFOTCO LLC	  	16642 Jacintoport Bvld.	  	Harris	  	TX	
				
    HFOTCO LLC	  	1201 S. Sheldon Rd.	  	Harris	  	TX	
				
    HFOTCO LLC	  	1515 S. Sheldon Rd.	  	Harris	  	TX	
				
    HFOTCO LLC	  	0 Moore Rd.	  	Harris	  	TX	
Schedule 3.08(b) to Continuing Covenant Agreement

SCHEDULE 3.08(c)
LEASED REAL PROPERTY

Lessor	  	Street Address	  	County	  	State	  	Lessee	  	Expiration
Date of
Lease	
						
Johann Haltermann, Ltd.	  	16717 Jacintoport Blvd	  	Harris	  	TX	  	HFOTCO LLC	  	March 31, 2051	
						
Port of Houston Authority of
Harris County, Texas	  	None (Pipeline Lease)	  	Harris	  	TX	  	HFOTCO LLC	  	January 31, 2041	
						
Port of Houston Authority of
Harris County, Texas	  	None (“Dock 5” Lease)	  	Harris	  	TX	  	HFOTCO LLC	  	September 30, 2043	
Schedule 3.08(c) to Continuing Covenant Agreement

SCHEDULE 3.14
ERISA MATTERS
None.
Schedule 3.14 to Continuing Covenant Agreement

SCHEDULE 6.01
LIENS

DEBTOR	  	SECURED
PARTY	  	COLLATERAL	  	FILING
OFFICE
AND
JURISDICTION	  	ORIGINAL
FILE DATE
AND
NUMBER	
HFOTCO LLC	  	WebBank	  	Certain computer equipment and software financed pursuant to that certain revolving credit Account
#687945020500026XXXX
dated May 26, 2011	  	Secretary of State,State of Texas	  	6/03/2011
#11-
0016512815	
					
HFOTCO LLC	  	Toshiba America Business Solutions, Inc.	  	All equipment leased or
financed under that certain
Equipment Lease
Agreement No. 7733325-001	  	Secretary of State,State of Texas	  	3/27/2012
#12-
0009481540	
Schedule 6.01 to Continuing Covenant Agreement

SCHEDULE 6.02
INDEBTEDNESS
None.
Schedule 6.02 to Continuing Covenant Agreement

SCHEDULE 6.07
INVESTMENTS
None.
Schedule 6.07 to Continuing Covenant Agreement

SCHEDULE 6.13
RESTRICTIVE AGREEMENTS
None.
Schedule 6.13 to Continuing Covenant Agreement

EXHIBIT A
FORM OF ADMINISTRATIVE QUESTIONNAIRE
See attached.
Exhibit A to Continuing Covenant Agreement

ADMINISTRATIVE QUESTIONNAIRE – (US DOLLAR ONLY) CONFIDENTIAL 1. Borrower or Deal Name: HFOTCO LLC E-mail this document with your commitment letter to: Priscilla Baker E-mail address of recipient: priscilla.l.baker@baml.com 2. Legal Name of Lender of Record for Signature Page: Markit Entity Identifier (MEI) #: Fund Manager Name (if applicable): Legal Address from Tax Document of Lender of Record: Country: Address: City: State/Province: Postal Code: 3. Domestic Funding Address: 4. Eurodollar Funding Address (if different than #3): Street Address: Street Address: Suite/ Mail Code: Suite/ Mail Code: City: State: City: State: Postal Code: Country: Postal Code: Country: 5. Credit Contact Information: Syndicate level information (which may contain material non-public information about the Borrower and its related parties or theirrespective securities will be made available to the Credit Contact(s). The Credit Contacts identified must be able to receive suchinformation in accordance with his/her institution’s compliance procedures and applicable laws, including Federal and Statesecurities laws. Primary Credit Contact: Secondary Credit Contact: First Name: First Name: Middle Name: Middle Name: Last Name: Last Name: Title: Title: Street Address: Street Address: Suite/Mail Code: Suite/Mail Code: City: City: State: State: Postal Code: Postal Code: Country: Country: Office Telephone #: Office Telephone #: Office Facsimile #: Office Facsimile #: Work E-Mail Address: Work E-Mail Address: SyndTrak E-Mail Address: SyndTrak E-Mail Address: Additional Syndtrak User Access: Enter E-Mail Addresses of any respective contact who should have access to Syndtrak below. SyndTrak E-Mail Addresses: REV April 2014

2 ADMINISTRATIVE QUESTIONNAIRE – (US DOLLAR ONLY) CONFIDENTIAL Primary Operations Contact: Secondary Operations Contact: First: MI: Last: First: MI: Last: Title: Title: Street Address: Street Address: Suite/ Mail Code: Suite/ Mail Code: City: State: City: State: Postal Code: Country: Postal Code: Country: Telephone: Facsimile: Telephone: Facsimile: E-Mail Address: E-Mail Address: SyndTrak E-Mail Address: SyndTrak E-Mail Address: Does Secondary Operations Contact need copy of notices? YES NO Letter of Credit Contact: Draft Documentation Contact or Legal Counsel: First: MI: Last: First: MI: Last: Title: Title: Street Address: Street Address: Suite/ Mail Code: Suite/ Mail Code: City: State: City: State: Postal Code: Country: Postal Code: Country: Telephone: Facsimile: Telephone: Facsimile: E-Mail Address: E-Mail Address: 6. Lender’s Fed Wire Payment Instructions: Pay to: Bank Name: ABA #: City: State: Account #: Account Name: Attention: 7. Lender’s Standby Letter of Credit, Commercial Letter of Credit, and Bankers’ Acceptance Fed Wire Payment Instructions (if applicable): Pay to: Bank Name: ABA #: City: State: Account #: Account Name: Attention: Use Lender’s Fed Wire Payment Instructions in Section #6 above? YES NO REV April 2014

ADMINISTRATIVE QUESTIONNAIRE – (US DOLLAR ONLY) CONFIDENTIAL 8. Lender’s Organizational Structure and Tax Status Please refer to the enclosed withholding tax instructions below and then complete this section accordingly: Lender Taxpayer Identification Number (TIN): — Tax Withholding Form Delivered to Bank of America (check applicable one): W-9 W-8BENW-8ECI W-8EXP W-8IMY Tax Contact: First: MI: Last: Title: Street Address: Suite/ Mail Code: City: State: Postal Code: Telephone: E-Mail Address: SyndTrak E-Mail Address: NON–U.S. LENDER INSTITUTIONS 1. Corporations: If your institution is incorporated outside of the United States for U.S. federal income tax purposes, and is the beneficial owner of the interest and other income it receives, you must complete one of the following three tax forms, as applicable to your institution: a.) Form W-8BEN (Certificate of Foreign Status of Beneficial Owner), b.) Form W-8ECI (Income Effectively Connected to a U.S. Trade or Business), or c.) Form W-8EXP (Certificate of Foreign Government or Governmental Agency). A U.S. taxpayer identification number is required for any institution submitting a Form W-8 ECI. It is also required on Form W-8BEN for certain institutions claiming the benefits of a tax treaty with the U.S. Please refer to the instructions when completing the form applicable to your institution. In addition, please be advised that U.S. tax regulations do not permit the acceptance of faxed forms. An original tax form must be submitted. 2. Flow-Through Entities If your institution is organized outside the U.S., and is classified for U.S. federal income tax purposes as either a Partnership, Trust, Qualified or Non-Qualified Intermediary, or other non-U.S. flow-through entity, an original Form W-8IMY (Certificate of Foreign Intermediary, Foreign Flow-Through Entity, or Certain U.S. branches for United States Tax Withholding) must be completed by the intermediary together with a withholding statement. Flow-through entities other than Qualified Intermediaries are required to include tax forms for each of the underlying beneficial owners. Please refer to the instructions when completing this form. In addition, please be advised that U.S. tax regulations do not permit the acceptance of faxed forms. Original tax form(s) must be submitted. U.S. LENDER INSTITUTIONS: If your institution is incorporated or organized within the United States, you must complete and return Form W-9 (Request for Taxpayer Identification Number and Certification). Please be advised that we require an original form W-9. REV April 2014

4 ADMINISTRATIVE QUESTIONNAIRE – (US DOLLAR ONLY) CONFIDENTIAL Pursuant to the language contained in the tax section of the Credit Agreement, the applicable tax form for your institution must be completed and returned on or prior to the date on which your institution becomes a lender under this Credit Agreement. Failure to provide the proper tax form when requested will subject your institution to U.S. tax withholding. *Additional guidance and instructions as to where to submit this documentation can be found at this link: Tax Form Tool Kit & Mailing Instructions 9. Bank of America’s Payment Instructions: Pay to: Bank of America, N.A. ABA # 026009593 New York, NY Account #: 1292000883 Attn: Corporate Credit Services Ref: HFOTCO LLC REV April 2014

EXHIBIT B
[FORM OF] ASSIGNMENT AND ASSUMPTION
This Assignment and Assumption (this “ Assignment and Assumption ”) is dated as of the Effective Date set forth below and is entered into by and between [the][each] 1 Assignor identified in item 1 below ([the][each, an] “ Assignor ”) and [the][each] 2 Assignee identified in item 2 below ([the][each, an] “ Assignee ”). [It is understood and agreed that the rights and obligations of [the Assignors][the Assignees] 3 hereunder are several and not joint.] 4 Capitalized terms used but not defined herein shall have the meanings given to them in the Continuing Covenant Agreement identified below (the “ Continuing Covenant Agreement ”), receipt of a copy of which is hereby acknowledged by the Assignee. The Standard Terms and Conditions set forth in Annex 1 attached hereto are hereby agreed to and incorporated herein by reference and made a part of this Assignment and Assumption as if set forth herein in full.
For an agreed consideration, [the][each] Assignor hereby irrevocably sells and assigns to [the Assignee][the respective Assignees], and [the][each] Assignee hereby irrevocably purchases and assumes from [the Assignor][the respective Assignors], subject to and in accordance with the Standard Terms and Conditions and the Continuing Covenant Agreement, as of the Effective Date inserted by the Administrative Agent as contemplated below (a) all of [the Assignor’s][the respective Assignors’] rights and obligations in [its capacity as a Bondholder][their respective capacities as Bondholders] under the Continuing Covenant Agreement and any other Bond Documents in the amount[s] and equal to the percentage interest[s] identified below of all the outstanding rights and obligations under the Bonds and (b) to the extent permitted to be assigned under applicable law, all claims, suits, causes of action and any other right of [the Assignor (in its capacity as a Bondholder)][the respective Assignors (in their respective capacities as Bondholders)] against any Person, whether known or unknown, arising under or in connection with the Continuing Covenant Agreement, any other Bond Documents or the loan transactions governed thereby or in any way based on or related to any of the foregoing, including, but not limited to, contract claims, tort claims, malpractice claims, statutory claims and all other claims at law or in equity related to the rights and obligations sold and assigned pursuant to clause (a) above (the rights and obligations sold and assigned by [the][any] Assignor to [the][any] Assignee pursuant to clauses (a) and (b) above being referred to herein collectively as [the][an] “ Assigned Interest ”). Each such sale and assignment is without recourse to [the][any] Assignor and, except as expressly provided in this Assignment and Assumption, without representation or warranty by [the][any] Assignor.

1.  Assignor[s] :	  	 	  		

1  	For bracketed language here and elsewhere in this form relating to the Assignor(s), if the assignment is from a single Assignor, choose the first bracketed language. If the assignment is from multiple Assignors, choose the second bracketed language.	
2  	For bracketed language here and elsewhere in this form relating to the Assignee(s), if the assignment is to a single Assignee, choose the first bracketed language. If the assignment is to multiple Assignees, choose the second bracketed language.	
3  	Select as appropriate.	
4  	Include bracketed language if there are either multiple Assignors or multiple Assignees.	

					
2.  Assignee[s] :	  	 	  		
	  	 	  		
[for each Assignee, indicate [[Affiliate of][a trust or other custodial arrangement established by] [identify Bondholder][identify Affiliate of Bondholder]] 5 [a Non-Purchaser Transferee] 6 ]
3. Obligor : HFOTCO LLC, a Texas limited liability company
4. Administrative Agent : Bank of America, N.A., as the administrative agent under the Continuing Covenant Agreement
5. Continuing Covenant Agreement : Continuing Covenant Agreement, dated as of August 19, 2014 among HFOTCO LLC, as Obligor, the Parent, the Bondholders from time to time party thereto and Bank of America, N.A., as Administrative Agent and Collateral Agent
6. Assigned Interest :

Assignor[s] 7	  	Assignee[s] 8	  	Aggregate
Amount of
Bonds
for all
Bondholders 9	  	Amount of
Bonds
Assigned 1011	  	Percentage
Assigned of Bonds 12	  	[CUSIP
Number] 13	
						
	  		  	Series 2010	  	Series 2010	  	%	  		
	  		  	Bonds: $	  	Bonds: $	  		  		
						
	  		  	Series 2011	  	Series 2011	  		  		
	  		  	Bonds: $	  	Bonds: $	  		  		
						
	  		  	Series 2012	  	Series 2012	  		  		
	  		  	Bonds: $	  	Bonds: $	  		  		
						
	  		  	Series 2010	  	Series 2010	  	%	  		
	  		  	Bonds: $	  	Bonds: $	  		  		

5  	For Purchaser Transferees.	
6  	Each Non-Purchaser Transferee must deliver an Investor Letter pursuant to Section 9.09(c) of the Continuing Covenant Agreement.	
7  	List each Assignor, as appropriate.	
8  	List each Assignee, as appropriate.	
9  	Amounts in this column and in the column immediately to the right to be adjusted by the counterparties to take into account any payments or prepayments made between the Trade Date and the Effective Date.	
10  	Amounts to be determined after giving effect to minimum Bond denominations in the Indentures.	
11  	Amounts assigned shall be on a ratable basis as between each Series of Bonds held by [the][each] Assignor	
12  	Set forth, to at least 9 decimals, as a percentage of the Bonds of all Bondholder thereunder.	
13  	If applicable.	

											
	  		  	Series 2011	  	Series 2011	  		  		
	  		  	Bonds: $	  	Bonds: $	  		  		
						
	  		  	Series 2012	  	Series 2012	  		  		
	  		  	Bonds: $	  	Bonds: $	  		  		
						
	  		  	Series 2010	  	Series 2010	  	%	  		
	  		  	Bonds: $	  	Bonds: $	  		  		
						
	  		  	Series 2011	  	Series 2011	  		  		
	  		  	Bonds: $	  	Bonds: $	  		  		
						
	  		  	Series 2012	  	Series 2012	  		  		
	  		  	Bonds: $	  	Bonds: $	  		  		
[7. Trade Date:                         ] 14
Effective Date:                     , 20    [TO BE INSERTED BY ADMINISTRATIVE AGENT AND WHICH SHALL BE THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER THEREFOR.]
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]

14  	To be completed if the Assignor and the Assignee intend that the minimum assignment amount is to be determined as of the Trade Date.	

The terms set forth in this Assignment and Assumption are hereby agreed to:

ASSIGNOR	
[NAME OF ASSIGNOR]	
		
By:	 	 	
Name:	 	 	
Title:	 	 	

ASSIGNEE	
[NAME OF ASSIGNEE]	
		
By:	 	 	
Name:	 	 	
Title:	 	 	

Accepted:	
BANK OF AMERICA, N.A., as	
Administrative Agent	
		
By:	 	 	
Name:	 	 	
Title:	 	 	

[Consented to:] 15	
		
By:	 	 	
Name:	 	 	
Title:	 	 	

15	To be added only if assignment is to a Disqualified Institution.	

ANNEX 1 TO ASSIGNMENT AND ASSUMPTION
Standard Terms and Conditions for Assignment and Assumption
1. Representations and Warranties .
1.1. Assignor . [The][Each] Assignor (a) represents and warrants that (i) it is the legal and beneficial owner of [the][the relevant] Assigned Interest, (ii) [the][such] Assigned Interest is free and clear of any lien, encumbrance or other adverse claim, (iii) it has full power and authority, and has taken all action necessary, to execute and deliver this Assignment and Assumption and to consummate the transactions contemplated hereby and (iv) it has reviewed the current list of Disqualified Institutions and has determined that the Assignee is not a Disqualified Institution; and (b) assumes no responsibility with respect to (i) any statements, warranties or representations made in or in connection with the Continuing Covenant Agreement or any other Bond Document, (ii) the execution, legality, validity, enforceability, genuineness, sufficiency or value of the Bond Documents or any collateral thereunder, (iii) the financial condition of the Obligor, any of its Subsidiaries or Affiliates or any other Person obligated in respect of any Bond Document or (iv) the performance or observance by the Obligor, any of its Subsidiaries or Affiliates or any other Person of any of their respective obligations under any Bond Document.
1.2. Assignee . [The][Each] Assignee (a) represents and warrants that (i) it has full power and authority, and has taken all action necessary, to execute and deliver this Assignment and Assumption and to consummate the transactions contemplated hereby and to become a Bondholder under the Continuing Covenant Agreement, (ii) it meets all the requirements to be an assignee under the terms of the Continuing Covenant Agreement (subject to such consents, if any, as may be required under the terms of the Continuing Covenant Agreement), (iii) it has reviewed the current list of Disqualified Institutions and is not a Disqualified Institution, a natural Person, the Obligor or an Affiliate or Subsidiary of the Obligor, (iv) from and after the Effective Date, it shall be bound by the provisions of the Continuing Covenant Agreement and the other Bond Documents as a Bondholder thereunder and, to the extent of [the][the relevant] Assigned Interest, shall have the obligations of a Bondholder thereunder, (v) it is sophisticated with respect to decisions to acquire assets of the type represented by [the][such] Assigned Interest and either it, or the Person exercising discretion in making its decision to acquire [the][such] Assigned Interest, is experienced in acquiring assets of such type, (vi) it has received a copy of the Continuing Covenant Agreement, and has received or has been accorded the opportunity to receive copies of the most recent financial statements delivered pursuant to the terms of the Continuing Covenant Agreement, and such other documents and information as it deems appropriate to make its own credit analysis and decision to enter into this Assignment and Assumption and to purchase [the][such] Assigned Interest, (vii) it has, independently and without reliance upon the Administrative Agent or any other Bondholder and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Assignment and Assumption and to purchase [the][such] Assigned Interest, (viii) attached hereto is any documentation required to be delivered by it pursuant to Section 2.13 of the Continuing Covenant Agreement, duly completed and executed by [the][such] Assignee and (ix) if it is a Non-Purchaser Transferee, attached hereto is the Investor Letter required to be

delivered by it pursuant to Section 9.06(c) of the Continuing Covenant Agreement, duly completed and executed by [the][such] Assignee; and (b) agrees that (i) it will, independently and without reliance upon the Administrative Agent, [the][any] Assignor or any other Bondholder, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under the Bond Documents, and (ii) it will perform in accordance with their terms all of the obligations which by the terms of the Bond Documents are required to be performed by it as a Bondholder.
2. Payments . From and after the Effective Date, the Administrative Agent shall make all payments in respect of [the][each] Assigned Interest (including payments of principal, interest, fees and other amounts) to [the][the relevant] Assignor for amounts which have accrued to but excluding the Effective Date and to [the][the relevant] Assignee for amounts which have accrued from and after the Effective Date.
3. General Provisions . This Assignment and Assumption shall be binding upon, and inure to the benefit of, the parties hereto and their respective successors and assigns. This Assignment and Assumption may be executed in any number of counterparts, which together shall constitute one instrument. Delivery of an executed counterpart of a signature page of this Assignment and Assumption by fax transmission or other electronic mail transmission (e.g. “pdf” or “tif”) shall be effective as delivery of a manually executed counterpart of this Assignment and Assumption. This Assignment and Assumption shall be governed by, and construed in accordance with, the law of the State of New York.
 
-3-

EXHIBIT C
[FORM OF] COMPLIANCE CERTIFICATE
The form of this Compliance Certificate has been prepared for convenience only, and is not to affect, or to be taken into consideration in interpreting, the terms of the Continuing Covenant Agreement referred to below. The obligations of the Parent and the Obligor under the Continuing Covenant Agreement are as set forth in the Continuing Covenant Agreement, and nothing in this Compliance Certificate, or the form hereof, shall modify such obligations or constitute a waiver of compliance therewith in accordance with the terms of the Continuing Covenant Agreement. In the event of any conflict between the terms of this Compliance Certificate and the terms of the Continuing Covenant Agreement, the terms of the Continuing Covenant Agreement shall govern and control, and the terms of this Compliance Certificate are to be modified accordingly.
This Compliance Certificate, dated as of [            ], 20[            ] (this “ Compliance Certificate ”), is delivered to you pursuant to Section 5.08 of the Continuing Covenant Agreement, dated as of August 19, 2014 (as amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “ Continuing Covenant Agreement ”), by and among Buffalo Gulf Coast Terminals LLC, a Delaware limited liability company (the “ Parent ”), HFOTCO LLC, a Texas limited liability company (the “ Obligor ”), the Bondholders party thereto from time to time and Bank of America, N.A., as Administrative Agent and Collateral Agent. Each capitalized term used but not otherwise defined in this Compliance Certificate shall have the meaning assigned to such term in the Continuing Covenant Agreement.
Each of the undersigned hereby certifies, on behalf of the Parent or the Obligor, as applicable, in his or her capacity as a duly elected, qualified and acting Responsible Officer of the Parent or the Obligor, as applicable, and not in such Responsible Officer’s individual capacity, as follows:
1. I am a duly elected, qualified and acting Responsible Officer of the Parent or the Obligor, as applicable, having the title set forth next to my signature below.
2. I have reviewed and am familiar with the contents of this Compliance Certificate.
3. I have reviewed the terms of the Continuing Covenant Agreement and the other Bond Documents that are relevant to the furnishing of this Compliance Certificate and have made or caused to be made under my supervision, a review in reasonable detail of the transactions and conditions of the Parent and the Subsidiaries from the beginning of the [Fiscal Quarter][Fiscal Year] covered by the financial statements attached hereto as Annex 1 (the “ Financial Statements ”) to the date hereof. The examination described in this paragraph 3 did not disclose, and I have no knowledge of, the existence of any condition or event which constitutes a Default or an Event of Default during or at the end of such period[, except as set forth in a separate attachment, if any, to this Compliance Certificate, describing in reasonable detail, the nature of the condition or event, the period during which it has existed and the action which the Parent or the Obligor has taken, is taking, or proposes to take with respect to each such condition or event],

4. The Total Adjusted Net Leverage Ratio for the four consecutive Fiscal Quarters ending with the [Fiscal Quarter] [last Fiscal Quarter of the Fiscal Year] to which the Financial Statements relate is [            ] to 1.00. Attached hereto as Annex 2 is the calculation of such Total Adjusted Net Leverage Ratio.
5. The Super Senior Leverage Ratio for the four consecutive Fiscal Quarters ending with the [Fiscal Quarter] [last Fiscal Quarter of the Fiscal Year] to which the Financial Statements relate is [            ] to 1.00. Attached hereto as Annex 3 is the calculation of such Super Senior Leverage Ratio.
6. The Interest Coverage Ratio for the four consecutive Fiscal Quarters ending with the [Fiscal Quarter] [last Fiscal Quarter of the Fiscal Year] to which the Financial Statements relate is [            ] to 1.00. Attached hereto as Annex 4 is the calculation of such Interest Coverage Ratio.
7. The Available Amount as of the last day of the [Fiscal Quarter] [Fiscal Year] to which the Financial Statements relate is $[            ]. Attached hereto as Annex 5 is the calculation of such Available Amount[ and details of the Available Amount Expenditures during such [Fiscal Quarter] [Fiscal Year]].
8. Attached hereto as Annex 6 is a report in form and method of analysis similar to a “Management’s Discussion and Analysis” in form and substance reasonably satisfactory to the Administrative Agent (covering such topics as the Parent and the Subsidiaries’ financial condition and results of operations and the Parent and the Subsidiaries’ businesses).
[9. Attached hereto as Annex 7 are consolidating financial statements for the [Fiscal Quarter] [Fiscal Year] to which the Financial Statements relate reflecting the adjustments necessary to eliminate the accounts of the Unrestricted Subsidiaries from the Financial Statements.] 16
[10. Concurrently with the delivery of this Compliance Certificate, each of the Parent and the Borrower has delivered or caused to be delivered or shall deliver or cause to be delivered to the Administrative Agent a Perfection Certificate Supplement in accordance with Section 4.01(b) of the Security Agreement.] 17
[ Signature Page Follows ]

16  	To be included only if there are any Unrestricted Subsidiaries during the Fiscal Quarter or Fiscal Year covered by the Financial Statements.	
17  	To be included in each Compliance Certificate delivered with respect to a Fiscal Year.	

IN WITNESS WHEREOF, the undersigned Responsible Officers have executed and delivered this Compliance Certificate on behalf of the Parent or the Obligor, as applicable, and have made the certifications and statements contained herein, as of the date first above written.

			
BUFFALO GULF COAST TERMINALS LLC	

By:	 	 	
Name:	 		
Title:	 		

HFOTCO LLC	

By:	 	 	
Name:	 		
Title:	 		

Annex 1
[Attach financial statements]

Annex 2 – Total Adjusted Net Leverage Ratio
The information described herein is as of             , 20            , and pertains to the period from             , 20            to             , 20            . Section references herein relate to Sections of the Continuing Covenant Agreement.

1. Total Adjusted Net Indebtedness : (i) – (ii) =	  	$[      ,      ,      ]	
			
	  	(i)     Total Indebtedness:	  		
			
	  	Total consolidated Indebtedness of the Parent and the Restricted Subsidiaries 18	  	$[      ,      ,      ]	
			
	  	(ii)    [The designated portion of the][The] aggregate amount of Unrestricted cash and Permitted Investments of the Loan Parties as of the date hereof that is subject to a Control Agreement 19	  	$[      ,      ,      ]	
		
2. Adjusted EBITDA : 20 (i) + (ii) + (iii) – (iv) – (v) =	  	$[      ,      ,      ]	
					
	  	(i)     Net Income:	  		  		  	$[      ,      ,      ]	
					
	  	(ii)    to the extent deducted in the determination of Net Income:	  		  		  	$[      ,      ,      ]	
			
	  	(a) all federal, state and other income taxes (including state franchise taxes based upon income) of the Parent and the Restricted Subsidiaries paid or accrued according to GAAP	  	$[      ,      ,      ]	
			
	  	(b) Interest Expense: (I) + (II) + (III)	  	$[      ,      ,      ]	
			
	  	(I)     All interest, prepayment charges and fees incurred (whether paid or accrued) in respect of any Indebtedness of the Parent and the Restricted Subsidiaries (including imputed interest in respect of Capital Lease	  		

18  	To be determined in accordance with GAAP, without giving effect to (a) any election to value any Indebtedness at “fair value”, as described in Section 1.02(d), (b) Indebtedness of the type referred to in clause (h) of the definition of “Indebtedness”, or (c) Indebtedness incurred in reliance on clause (a) of the definition of “Permitted Debt”.	
19  	[For any date on or prior to December 31, 2015, [not]][Not] to exceed $25,000,000.	
20  	For purposes of calculating EBITDA for any period to determine the Total Adjusted Net Leverage Ratio, if during such period the Parent, the Obligor or any other Restricted Subsidiary shall have consummated a Specified Transaction, EBITDA for such period shall be calculated after giving pro forma effect thereto in accordance with Section 1.02(f).	

			
Obligations of the Parent and the Restricted Subsidiaries, net payments received or made under interest rate hedge agreements of the Parent and the Restricted Subsidiaries and all fees, commissions and discounts owed by the Parent and the Restricted Subsidiaries with respect to letters of credit and bankers’ acceptance financing) deducted in determining Net Income, together with all interest capitalized or deferred of the Parent and the Restricted Subsidiaries and not deducted in determining Net Income	  	$ [      ,      ,      ]	
		
(II)   All debt discount and expense amortized or required to be amortized in the determination of Net Income	  	$[      ,      ,      ]	
		
(III)  Dividends in respect of Preferred Stock of the Parent and the Restricted Subsidiaries paid	  	$[      ,      ,      ]	
		
(c) depreciation and amortization of the Parent and the Restricted Subsidiaries determined in accordance with GAAP	  	$[      ,      ,      ]	
		
(d) non-cash charges (excluding write-downs of current assets)	  	$[      ,      ,      ]	
		
(e) unusual, extraordinary or non-recurring expenses or losses	  	$[      ,      ,      ]	
		
(f) fees, costs and expenses incurred in connection with the Transactions	  	$[      ,      ,      ]	
		
(g) fees, costs and expenses incurred in connection with the structuring, negotiation, documentation and consummation of Permitted Acquisitions, permitted issuances of Equity Interests, permitted Investments, permitted Restricted Payments and permitted incurrences of Indebtedness, in each case, whether or not consummated	  	$[      ,      ,      ]	
		
(h) fees, costs or expenses incurred in connection with the redemption or retirement of any Indebtedness (including prepayment premiums and make whole amounts, but excluding the payment of accrued interest and fees thereon)	  	$[      ,      ,      ]	

			
(i) charges, losses and expenses for such period to the extent (I) paid for or reimbursed by any Person (other than an Affiliate of the Parent or any Subsidiary) or (II) reasonably expected to be paid for or reimbursed by any such Person during the period of four consecutive Fiscal Quarters of the Parent immediately following the period described above 21	  	$[      ,      ,      ]	
		
(j) restructuring charges incurred during such period 22	  	$[      ,      ,      ]	
		
(iii)  Crude Topping Unit EBITDA Adjustment:	  	$[      ,      ,      ]	
		
(iv)   Without duplication:	  	$[      ,      ,      ]	
		
(a) all cash payments made on account of non-cash charges added back in computing EBITDA pursuant to (ii)(d) above	  	$[      ,      ,      ]	
		
(b) to the extent including in the determination of Net Income for such period, any unusual, extraordinary or non- recurring gains and all non-cash items of income (including non-cash gains)	  	$[      ,      ,      ]	
		
(v)    Interest Expense in respect of the Bonds	  	$[      ,      ,      ]	
		
3.      Total Adjusted Net Leverage Ratio (1. / 2.)	  	[          ]:1.00	

21  	If any charges, losses or expenses are added back in computing EBITDA pursuant to clause (ii)(i)(II) for any period and such charges, losses or expenses are not paid for or reimbursed by any Person (other than an Affiliate of the Parent or any Subsidiary) during the period of four consecutive Fiscal Quarters of the Parent immediately following such period, then such charges, losses or expenses shall be subtracted in computing EBITDA for the Fiscal Quarter of the Parent immediately following such period of four consecutive Fiscal Quarters of the Parent.	
22  	Subject to the Aggregate Cap.	

Annex 3 – Super Senior Leverage Ratio
The information described herein is as of             , 20            , and pertains to the period from             , 20            to             , 20            . Section references herein relate to Sections of the Continuing Covenant Agreement.

1.      Total Super Senior Indebtedness: (i) – (ii) =	  		  		  		  		  	$[      ,      ,      ]	
					
(i)     principal amount of the outstanding Bonds:	  		  		  		  	$[      ,      ,      ]	
				
(ii)    aggregate principal amount of the outstanding Bonds that have been repurchased or redeemed on or prior to the date hereof	  		  		  	$[      ,      ,      ]	
						
2.       EBTIDA : 23 (i) + (ii) – (iii) – (iv) =	  		  		  		  		  	$[      ,      ,      ]	
					
(i)     Net Income:	  		  		  		  	$[      ,      ,      ]	
					
(ii)    to the extent deducted in the determination of Net Income:	  		  		  		  	$[      ,      ,      ]	
					
(a) all federal, state and other income taxes (including state franchise taxes based upon income) of the Parent and the Restricted Subsidiaries paid or accrued according to GAAP	  		  		  		  	$[      ,      ,      ]	
					
(b) Interest Expense: (I) + (II) + (III)	  		  		  		  	$[      ,      ,      ]	
		
(I)     All interest, prepayment charges and fees incurred (whether paid or accrued) in respect of any Indebtedness of the Parent and the Restricted Subsidiaries (including imputed interest in respect of Capital Lease Obligations of the Parent and the Restricted Subsidiaries, net payments received or made under interest rate hedge agreements of the Parent and the Restricted Subsidiaries and all fees, commissions and discounts owed by the Parent and the Restricted Subsidiaries with respect to letters of credit and bankers’ acceptance financing) deducted in determining Net Income, together with all interest capitalized or deferred of the Parent and the Restricted Subsidiaries and not deducted in determining Net Income	  	$[      ,      ,      ]	

23  	For purposes of the Super Senior Leverage Ratio, EBITDA shall be calculated for the period of four consecutive Fiscal Quarters of the Parent most recently ended on or prior to the date hereof. For purposes of calculating EBITDA for any period to determine the Super Senior Leverage Ratio, if during such period the Parent, the Obligor or any other Restricted Subsidiary shall have consummated a Specified Transaction, EBITDA for such period shall be calculated after giving pro forma effect thereto in accordance with Section 1.02(f).	

			
		
(II)      All debt discount and expense amortized or required to be amortized in the determination of Net Income	  	$[      ,      ,      ]	
		
(III)    Dividends in respect of Preferred Stock of the Parent and the Restricted Subsidiaries paid	  	$[      ,      ,      ]	
		
(c) depreciation and amortization of the Parent and the Restricted Subsidiaries determined in accordance with GAAP	  	$[      ,      ,      ]	
		
(d) non-cash charges (excluding write-downs of current assets)	  	$[      ,      ,      ]	
		
(e) unusual, extraordinary or non-recurring expenses or losses	  	$[      ,      ,      ]	
		
(f) fees, costs and expenses incurred in connection with the Transactions	  	$[      ,      ,      ]	
		
(g) fees, costs and expenses incurred in connection with the structuring, negotiation, documentation and consummation of Permitted Acquisitions, permitted issuances of Equity Interests, permitted Investments, permitted Restricted Payments and permitted incurrences of Indebtedness, in each case, whether or not consummated	  	$[      ,      ,      ]	
		
(h) fees, costs or expenses incurred in connection with the redemption or retirement of any Indebtedness (including prepayment premiums and make whole amounts, but excluding the payment of accrued interest and fees thereon)	  	$[      ,      ,      ]	
		
(i) charges, losses and expenses for such period to the extent (I) paid for or reimbursed by any Person (other than an Affiliate of the Parent or any Subsidiary) or (II) reasonably expected to be paid for or reimbursed by any such Person during the period of four consecutive Fiscal Quarters of the Parent immediately following the period described above 24	  	$[      ,      ,      ]	

24  	If any charges, losses or expenses are added back in computing EBITDA pursuant to clause (ii)(i)(II) for any period and such charges, losses or expenses are not paid for or reimbursed by any Person (other than an Affiliate of the Parent or any Subsidiary) during the period of four consecutive Fiscal Quarters of the Parent immediately following such period, then such charges, losses or expenses shall be subtracted in computing EBITDA for the Fiscal Quarter of the Parent immediately following such period of four consecutive Fiscal Quarters of the Parent.	

			
		
(j) restructuring charges incurred during such period 25	  	$[      ,      ,      ]	
		
(iii)  Without duplication:	  	$[      ,      ,      ]	
		
(a) all cash payments made on account of non-cash charges added back in computing EBITDA pursuant to (ii)(d) above	  	$[      ,      ,      ]	
		
(b) to the extent including in the determination of Net Income for such period, any unusual, extraordinary or non- recurring gains and all non-cash items of income (including non-cash gains)	  	$[      ,      ,      ]	
		
3.      Super Senior Leverage Ratio (1. / 2.)	  	[        ]:1.00	

25  	Subject to the Aggregate Cap.	

			
Annex 4 – Interest Coverage Ratio	
		
The information described herein is as of             , 20        , and pertains to the period from             , 20         to             , 20        . Section references herein relate to Sections of the Continuing Covenant Agreement.	  		
		
1. EBITDA : 26 (i) + (ii) – (iii) – (iv) =	  	$[      ,      ,      ]	
		
(i)     Net Income:	  	$[      ,      ,      ]	
		
(ii)    to the extent deducted in the determination of Net Income:	  	$[      ,      ,      ]	
		
(a) all federal, state and other income taxes (including state franchise taxes based upon income) of the Parent and the Restricted Subsidiaries paid or accrued according to GAAP	  	$[      ,      ,      ]	
		
(b) Interest Expense: (I) + (II) + (III)	  	$[      ,      ,      ]	
		
(I)     All interest, prepayment charges and fees incurred (whether paid or accrued) in respect of any Indebtedness of the Parent and the Restricted Subsidiaries (including imputed interest in respect of Capital Lease Obligations of the Parent and the Restricted Subsidiaries, net payments received or made under interest rate hedge agreements of the Parent and the Restricted Subsidiaries and all fees, commissions and discounts owed by the Parent and the Restricted Subsidiaries with respect to letters of credit and bankers’ acceptance financing) deducted in determining Net Income, together with all interest capitalized or deferred of the Parent and the Restricted Subsidiaries and not deducted in determining Net Income	  	$[      ,      ,      ]	
		
(II)   All debt discount and expense amortized or required to be amortized in the determination of Net Income	  	$[      ,      ,      ]	

26  	For purposes of the Interest Coverage Ratio, EBITDA shall be calculated for the period of four consecutive Fiscal Quarters of the Parent most recently ended on or prior to the date hereof . For purposes of calculating EBITDA for any period to determine the Interest Coverage Ratio, if during such period the Parent, the Obligor or any other Restricted Subsidiary shall have consummated a Specified Transaction, EBITDA for such period shall be calculated after giving pro forma effect thereto in accordance with Section 1.02(f).	

			
		
(III) Dividends in respect of Preferred Stock of the Parent and the Restricted Subsidiaries paid	  	$[      ,      ,      ]	
		
(c) depreciation and amortization of the Parent and the Restricted Subsidiaries determined in accordance with GAAP	  	$[      ,      ,      ]	
		
(d) non-cash charges (excluding write-downs of current assets)	  	$[      ,      ,      ]	
		
(e) unusual, extraordinary or non-recurring expenses or losses	  	$[      ,      ,      ]	
		
(f) fees, costs and expenses incurred in connection with the Transactions	  	$[      ,      ,      ]	
		
(g) fees, costs and expenses incurred in connection with the structuring, negotiation, documentation and consummation of Permitted Acquisitions, permitted issuances of Equity Interests, permitted Investments, permitted Restricted Payments and permitted incurrences of Indebtedness, in each case, whether or not consummated	  	$[      ,      ,      ]	
		
(h) fees, costs or expenses incurred in connection with the redemption or retirement of any Indebtedness (including prepayment premiums and make whole amounts, but excluding the payment of accrued interest and fees thereon)	  	$[      ,      ,      ]	
		
(i) charges, losses and expenses for such period to the extent (I) paid for or reimbursed by any Person (other than an Affiliate of the Parent or any Subsidiary) or (II) reasonably expected to be paid for or reimbursed by any such Person during the period of four consecutive Fiscal Quarters of the Parent immediately following the period described above 27	  	$[      ,      ,      ]
 
$[      ,      ,      ]	

27  	If any charges, losses or expenses are added back in computing EBITDA pursuant to clause (ii)(i)(II) for any period and such charges, losses or expenses are not paid for or reimbursed by any Person (other than an Affiliate of the Parent or any Subsidiary) during the period of four consecutive Fiscal Quarters of the Parent immediately following such period, then such charges, losses or expenses shall be subtracted in computing EBITDA for the Fiscal Quarter of the Parent immediately following such period of four consecutive Fiscal Quarters of the Parent.	

			
(j) restructuring charges incurred during such period 28	  	$[      ,      ,      ]	
		
(iv)   Without duplication:	  	$[      ,      ,      ]	
		
(a) all cash payments made on account of non-cash charges added back in computing EBITDA pursuant to (ii)(d) above	  	$[      ,      ,      ]	
		
(b) to the extent including in the determination of Net Income for such period, any unusual, extraordinary or non-recurring gains and all non-cash items of income (including non-cash gains)	  	$[      ,      ,      ]	
		
2.       Interest Expense : (i) + (ii) + (iii) =	  	$[      ,      ,      ]	
		
(i)     All interest, prepayment charges and fees incurred (whether paid or accrued) in respect of any Indebtedness of the Parent and the Restricted Subsidiaries (including imputed interest in respect of Capital Lease Obligations of the Parent and the Restricted Subsidiaries, net payments received or made under interest rate hedge agreements of the Parent and the Restricted Subsidiaries and all fees, commissions and discounts owed by the Parent and the Restricted Subsidiaries with respect to letters of credit and bankers’ acceptance financing) deducted in determining Net Income, together with all interest capitalized or deferred of the Parent and the Restricted Subsidiaries and not deducted in determining Net Income	  	$[      ,      ,      ]	
		
(ii)    All debt discount and expense amortized or required to be amortized in the determination of Net Income	  	$[      ,      ,      ]	
		
(iii)  Dividends in respect of Preferred Stock of the Parent and the Restricted Subsidiaries paid	  	$[      ,      ,      ]	

28  	Subject to the Aggregate Cap.	

Annex5 – Available Amount

		
3.       Interest Coverage Ratio (1. / 2.)	  	[        ]:1.00	
The information described herein is as of             , 20            , and pertains to the period from             , 20            to             , 20            . Section references herein relate to Sections of the Continuing Covenant Agreement.

		
Available Amount : (i) + (ii) – (iii) – (iv) =	  	$[      ,      ,      ]	
		
(i)     $75,000,000	  	$75,000,000	
		
(ii)    Available Equity Amount (a) + (b)	  	$[      ,      ,      ]	
		
(a) Cash equity contributions (in the form of common equity) made to the Parent by any Person other than the Obligor or any other Restricted Subsidiary (other than Specified Equity Contributions)	  	$[      ,      ,      ]	
		
(b) Net Issuance Proceeds from any sale or issuance of common Equity Interests in the Parent (other than Specified Equity Contributions)	  	$[      ,      ,      ]	
		
(iii)  the aggregate amount of Investments made pursuant to Section 6.07(m) subsequent to the Closing Date	  	$[      ,      ,      ]	
		
(iv)   Available Amount Expenditures (a) + (b) + (c)	  	$[      ,      ,      ]	
		
(a) Restricted Payments made pursuant to Section 6.03(a)(iii)	  	$[      ,      ,      ]	
		
(b) payments of or in respect of Indebtedness pursuant to Section 6.03(b)(v)	  	$[      ,      ,      ]	
		
(c) Investments made pursuant to Section 6.07(n)	  	$[      ,      ,      ]	

EXHIBIT D-1
[FORM OF] CLOSING DATE CERTIFICATE
This Closing Date Certificate, dated as of August 19, 2014 (this “ Certificate ”), is delivered pursuant to Section 4.01(b) of the Continuing Covenant Agreement, dated as of August 19, 2014 (as amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “ Continuing Covenant Agreement ”), by and among Buffalo Gulf Coast Terminals LLC, a Delaware limited liability company (the “ Parent ”), HFOTCO LLC, a Texas limited liability company (the “ Obligor ”), the Bondholders party thereto from time to time, and Bank of America, N.A., as Administrative Agent and Collateral Agent. Each capitalized term used but not otherwise defined in this Certificate shall have the meaning assigned to such term in the Continuing Covenant Agreement.
Each of the undersigned hereby certifies, on behalf of the Parent or the Obligor, as applicable, in his or her capacity as a duly elected, qualified and acting Responsible Officer of the Parent or the Obligor, as applicable, and not in such Responsible Officer’s individual capacity, as follows:
1. I am a duly elected, qualified and acting Responsible Officer of the Parent or the Obligor, as applicable, having the title set forth next to my signature below, and, as such, I am authorized to execute and deliver this Certificate on behalf of the Parent or the Obligor, as applicable.
2. I have reviewed the terms of Articles III of the Continuing Covenant Agreement and the definitions and provisions contained in the Continuing Covenant Agreement relating thereto, and in my opinion I have made, or have caused to be made under my supervision, such examination or investigation as is necessary to enable me to express an informed opinion as to the matters referred to herein.
3. The representations and warranties set forth in Article III of the Continuing Covenant Agreement and the other Bond Documents are true and correct (i) in the case of the representations and warranties qualified or modified as to materiality in the text thereof, in all respects and (ii) otherwise, in all material respects, in each case as of the date hereof, except in the case of any such representation and warranty that expressly relates to an earlier date, in which case such representation and warranty shall be so true and correct on and as of such earlier date.
4. At the time of and immediately after the purchase of the Bonds, no Default or Event of Default has occurred and is continuing.
[ Signature Pages to Follow ]

IN WITNESS WHEREOF, the undersigned Responsible Officers have executed and delivered this Certificate on behalf of the Parent or the Obligor, as applicable, and have made the certifications and statements contained herein, as of the date first above written.

	
BUFFALO GULF COAST TERMINALS LLC	
	
By:                                                                        	
Name:	
Title:	
	
HFOTCO LLC	
	
By:                                                                        	
Name:	
Title:	

EXHIBIT D-2
[FORM OF] SOLVENCY CERTIFICATE
This Solvency Certificate, dated as of August 19, 2014 (this “ Solvency Certificate ”), is delivered pursuant to Section 4.01(b) of the Continuing Covenant Agreement, dated as of August 19, 2014 (as amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “ Continuing Covenant Agreement ”), by and among Buffalo Gulf Coast Terminals LLC, a Delaware limited liability company (the “ Parent ”), HFOTCO LLC, a Texas limited liability company (the “ Obligor ”), the Bondholders party thereto from time to time, and Bank of America, N.A., as Administrative Agent and Collateral Agent. Each capitalized term used but not otherwise defined in this Certificate shall have the meaning assigned to such term in the Continuing Covenant Agreement.
It is understood that the Administrative Agent and the other Secured Parties are relying on the truth and accuracy of this Solvency Certificate in connection with the Transactions.
Each of the undersigned hereby certifies, on behalf of the Parent or the Obligor, as applicable, in his or her capacity as a duly elected, qualified and acting Responsible Officer of the Parent or the Obligor, as applicable, and not in such Responsible Officer’s individual capacity, as follows:
1. I am a duly elected, qualified and acting Responsible Officer of the Parent or the Obligor, as applicable, having the title set forth next to my signature below, and, as such, I am authorized to execute and deliver this Solvency Certificate on behalf of the Parent or the Obligor, as applicable.
2. I am generally familiar with the properties, businesses and assets of the Loan Parties and have reviewed the provisions of the Continuing Covenant Agreement and the other Bond Documents that are relevant to the furnishing of this Solvency Certificate and the contents of this Solvency Certificate, and in my opinion I have made, or caused to be made under my supervision, such examination or investigation as is necessary to enable me to express an informed opinion as to the matters referred to in this Solvency Certificate. The financial information and assumptions that underlie and form the basis for the representations made in this Solvency Certificate were reasonable when made and were made in good faith and continue to be reasonable as of the date hereof.
3. On the date hereof, immediately after giving effect to the Transactions, the fair value of the aggregate assets of the Loan Parties, at a fair valuation, exceeds the debts and liabilities, direct, subordinated, contingent or otherwise, of the Loan Parties.
4. On the date hereof, immediately after giving effect to the Transactions, the present fair value of the property of the Loan Parties is greater than the amount that will be required to pay the probable liabilities of the Loan Parties on their debts and other liabilities, direct, subordinated, contingent or otherwise, as such debts and other liabilities become absolute and matured. I have assumed that in this context “present fair value” means the price available upon the sale of such assets by a willing seller to a willing buyer, where material information as to the asset and the market for such asset is known to both, and where the sale is executed with commercially reasonable promptness.

5. On the date hereof, immediately after giving effect to the Transactions, the Loan Parties are able to pay their debts and other liabilities, direct, subordinated, contingent or otherwise, as such debts and other liabilities become absolute and matured (after giving effect to any guarantees and credit support).
6. On the date hereof, immediately after giving effect to the Transactions, the Loan Parties do not have unreasonably small capital with which to conduct the businesses in which they are engaged as such businesses are now conducted and are proposed to be conducted following the date hereof (after giving effect to any guarantees and credit support). I have assumed for purposes of reaching this conclusion that “unreasonably small capital” depends upon the nature of the particular business or businesses conducted or to be conducted, and I have reached my conclusion based on the needs and anticipated needs for capital of the businesses conducted or anticipated to be conducted by the Loan Parties in light of the projections made on the date hereof and available credit capacity (as the same may be restricted by the terms and conditions of the Loan Documents).
7. In making the certifications set forth herein, I have considered, among other things, the Base Case Projections delivered pursuant to the Continuing Covenant Agreement.
[ Signature Pages to Follow ]

IN WITNESS WHEREOF, the undersigned Responsible Officers have executed and delivered this Solvency Certificate on behalf of the Parent or the Obligor, as applicable, and have made the certifications and statements contained herein, as of the date first above written.

	
BUFFALO GULF COAST TERMINALS LLC	
	
By:                                                                        	
Name:	
Title:	
	
HFOTCO LLC	
	
By:                                                                        	
Name:	
Title:	

EXHIBIT E
FORM OF INSURANCE BROKER’S CERTIFICATE
[ Insert Insurance Broker’s Letterhead ]
August 19, 2014
Bank of America, N.A.,
as Administrative Agent
and Collateral Agent
Agency Management East
900 W Trade Street
NC1-026-06-03
Charlotte, NC 28255
Attention: Priscilla Baker
Attention:
Re:          HFOTCO LLC
Ladies and Gentlemen:
The undersigned, a duly authorized officer of [•] (the “ Insurance Broker ”), hereby provides this letter (this “ Insurance Broker’s Certificate ”) to you in accordance with Section 4.01(h) of the Continuing Covenant Agreement, dated as of August 19, 2014 (as amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “ Continuing Covenant Agreement ”), by and among Buffalo Gulf Coast Terminals LLC, a Delaware limited liability company (the “ Parent ”), HFOTCO LLC, a Texas limited liability company (the “ Obligor ”), the Bondholders party thereto from time to time, and Bank of America, N.A., as Administrative Agent and Collateral Agent. Each capitalized term used by not otherwise defined in this Insurance Broker’s Certificate shall have the meaning assigned to such term (whether directly or by reference to another agreement or document) in the Continuing Covenant Agreement.
I, on behalf of the Insurance Broker, do hereby certify to the Administrative Agent as of the date hereof that:
1. Attached hereto as Appendix A are certificates of insurance and/or certified copies of the insurance policies of the Obligor and its Subsidiaries.
2. Attached hereto as Appendix B is an accurate and complete list of the Loan Parties’ insurance coverages which have been obtained to date in connection with the properties and businesses of the Loan Parties. Such insurance coverages are in full force and effect as of the date hereof, and all premiums due and payable on or prior to the date hereof have been paid in full by the Loan Parties.

3. In our view, the Loan Parties’ insurance coverages (as represented by the certificates or policies provided as Appendix A ) meet or exceed the insurance requirements specified in Section 5.13 of the Continuing Covenant Agreement.
The Insurance Broker acknowledges that, pursuant to the Continuing Covenant Agreement, the Bondholder Parties are providing financing to the Obligor, and in so doing are relying on this Insurance Broker’s Certificate with respect to the insurance policies of the Loan Parties and their respective properties and businesses.
*         *         *
IN WITNESS WHEREOF, the Insurance Broker has caused this Insurance Broker’s Certificate to be duly executed and delivered by an authorized officer of the Insurance Broker as of the date first written above.

	
[•]	
	
By:                                                    	
Name:	
Title:	

Appendix A
to Insurance Broker’s Certificate
[ Attach certificates of insurance and/or certified copies of the insurance policies ]

Appendix B
to Insurance Broker’s Certificate
[ Attach list of insurance coverages ]

E XHIBIT F – F ORM OF I NVESTOR L ETTER
            , 20            
HFOTCO LLC, as Borrower
1201 South Sheldon Road
Houston, Texas 77015
Attention: Michael Mangan
Re: $            Harris County Industrial Development Corporation
Marine Terminal Revenue Bonds (HFOTCO LLC Project ) Series 2010;
            $             Harris County Industrial Development Corporation
    Marine Terminal Revenue Bonds (HFOTCO LLC Project ) Series 2011; and
            $             Harris County Industrial Development Corporation
        Marine Terminal Revenue Bonds (HFOTCO LLC Project ) Series 2012
Ladies and Gentlemen:
This letter is to provide you with certain representations and agreements with respect to our purchase of all of the above-referenced bonds (the “Bonds” ), dated their date of issuance. The Bonds were issued under and secured in the manner set forth in (i) with respect to the Series 2010 Bonds, that certain Amended and Restated Bond Indenture dated as of August 19, 2014, between Harris County Industrial Development Corporation (the “Issuer” ) and The Bank of New York Mellon Trust Company (the “Trustee” ) (the “2010 Indenture” ), (ii) with respect to the Series 2011 Bonds, that certain Amended and Restated Bond Indenture dated as of August 19, 2014, between the Issuer the Trustee (the “2011 Indenture” ) and (iii) with respect to the Series 2012 Bonds, that certain Amended and Restated Bond Indenture dated as of August 19, 2014, between the Issuer and the Trustee (the “2012 Indenture” , and together with the 2010 Indenture and the 2011 Indenture, collectively the “ Indentures ”). [            ] (the “Purchaser,” the “undersigned,” “us” or “we,” as applicable) is purchasing the Bonds pursuant to a Continuing Covenant Agreement dated as of August 19, 2014, between HFOTCO LLC (the “ Borrower ”), Buffalo Gulf Coast Terminals LLC, Bank of America, N.A., as Administrative Agent and Collateral Agent, and the other entities party thereto from time to time as Bondholders (the “ Continuing Covenant Agreement ”). Defined terms used herein but not defined have the meaning assigned to such terms in the Continuing Covenant Agreement.
We hereby represent and warrant to you and agree with you as follows:
1. We understand that the Bonds have not been registered pursuant to the Securities Act of 1933, as amended (the “1933 Act” ), the securities laws of any state nor have the Indentures been qualified pursuant to the Trust Indenture Act of 1939, as amended, in reliance upon certain exemptions set forth therein. We acknowledge that the Bonds (i) are not being registered or otherwise qualified for sale under the “blue sky” laws and regulations of any state and (ii) will not be listed on any securities exchange.

2. We have not offered, offered to sell, offered for sale or sold any of the Bonds by means of any form of general solicitation or general advertising, and we are not an underwriter of the Bonds within the meaning of Section 2(11) of the 1933 Act.
3. We have sufficient knowledge and experience in financial and business matters, including purchase and ownership of municipal and other tax-exempt obligations, to be able to evaluate the risks and merits of the investment represented by the purchase of the Bonds.
4. The Purchaser is either a “qualified institutional buyer” as defined in Rule 144A promulgated under the 1933 Act, or an “accredited investor” as defined in Rule 501 of Regulation D under the 1933 Act and is able to bear the economic risks of such investment.
5. The Purchaser understands that no official statement, prospectus, offering circular, or other comprehensive offering statement is being provided with respect to the Bonds. The Purchaser has made its own inquiry and analysis with respect to the Borrower, the Bonds and the security therefor, and other material factors affecting the security for and payment of the Bonds.
6. The Purchaser acknowledges that it has either been supplied with or been given access to information, including financial statements and other financial information, regarding the Borrower, to which a reasonable investor would attach significance in making investment decisions, and has had the opportunity to ask questions and receive answers from knowledgeable individuals concerning the Borrower, the Bonds and the security therefor, so that as a reasonable investor, it has been able to make its decision to purchase the Bonds.
7. The Bonds are being acquired by the Purchaser for investment for its own account and not with a present view toward resale or distribution; provided, however , that the Purchaser reserves the right to sell, transfer or redistribute the Bonds, but agrees that any such sale, transfer or distribution by the Purchaser shall be to a Person:
(a) that is an affiliate of the Purchaser;
(b) that is a trust or other custodial arrangement established by the Purchaser or one of its affiliates, the owners of any beneficial interest in which are limited to qualified institutional buyers or accredited investors;
(c) that is a secured party, custodian or other entity in connection with a pledge by the Purchaser to secure public deposits or other obligations of the Purchaser or one of its affiliates to state or local governmental entities; or
(d) that the Purchaser reasonably believes to be a qualified institutional buyer or accredited investor and who executes an investor letter substantially in the form of this letter.

			
Very truly yours,	
	
[            ]	
		
By:	 	 	
	 	Name:	
	 	Title:	
S IGNATURE P AGE TO I NVESTOR L ETTER

EXHIBIT G
[FORM OF]
SECOND LIEN INTERCREDITOR AGREEMENT
Dated as of [            ], 20[    ]
among
BUFFALO GULF COAST TERMINALS LLC,
HFOTCO LLC,
THE OTHER GRANTORS PARTY HERETO,
BANK OF AMERICA, N.A.,
as the Collateral Agent for the First Lien Secured Parties and
as the First Lien Authorized Representative for the Bond Facility Secured Parties
MORGAN STANLEY SENIOR FUNDING, INC.,
as the First Lien Authorized Representative for the Credit Facilities Secured Parties
[        ],
as the Second Lien Authorized Representative for the Initial Second Lien Secured Parties
and
THE OTHER AUTHORIZED REPRESENTATIVES PARTY HERETO

SECOND LIEN INTERCREDITOR AGREEMENT dated as of [        ], 20[     ] (as it may be amended, restated, amended and restated, supplemented or otherwise modified from time to time, this “ Agreement ”), is by and among BUFFALO GULF COAST TERMINALS LLC, a Delaware limited liability company (the “ Parent ”), HFOTCO LLC, a Texas limited liability company (the “ Borrower ”), the other Grantors party hereto, BANK OF AMERICA, N.A., in its capacity as collateral agent for the First Lien Secured Parties (in such capacity, together with its successors and permitted assigns in such capacity, the “ First Lien Collateral Agent ”), and as First Lien Authorized Representative for the Bond Facility Secured Parties (in such capacity, together with its successors and permitted assigns in such capacity, the “ Bond Facility Administrative Agent ”), MORGAN STANLEY SENIOR FUNDING, INC., in its capacity as First Lien Authorized Representative for the Credit Facilities Secured Parties (in such capacity, together with its successors and permitted assigns in such capacity, the “ Credit Facilities Administrative Agent ”) and [INSERT NAME AND CAPACITY], as Second Lien Authorized Representative for the Initial Second Lien Secured Parties (in such capacity, together with its successors and permitted assigns in such capacity, the “ Initial Second Lien Authorized Representative ”) and each additional Authorized Representative that from time to time becomes a party hereto in accordance with Section 8.10.
In consideration of the premises and the agreements, provisions and covenants herein contained, and for other good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, the Grantors, the First Lien Collateral Agent, the Bond Facility Administrative Agent (for itself and on behalf of the Bond Facility Secured Parties), the Credit Facilities Administrative Agent (for itself and on behalf of the Credit Facilities Secured Parties, the Initial Second Lien Authorized Representative (for itself and on behalf of the Initial Second Lien Secured Parties), each additional First Lien Authorized Representative (for itself and on behalf of the Additional First Lien Secured Parties of the applicable Series) and each additional Second Lien Authorized Representative (for itself and on behalf of the Second Lien Secured Parties of the applicable Series) agree as follows:
ARTICLE I
Definitions
SECTION 1.01. Certain Defined Terms .
(a) Other than the terms set forth in Section 1.01(b) , each capitalized term used and not otherwise defined herein (including the preamble, recitals, exhibits and schedules hereof) shall have the meaning assigned to such term (whether directly or by reference to another agreement or document) in the Bond Facility Agreement or the Credit Facilities Agreement, as applicable, or, if defined in the UCC, the meaning assigned to such term therein.
(b) In addition to the terms defined in the Bond Facility Agreement, the Credit Facilities Agreement, the preamble and the recitals, as applicable, the following terms shall have the following respective meanings:
“ Additional First Lien Documents ” shall have the meaning assigned to such term in the First Lien Security Agreement.

“ Additional First Lien Obligations ” shall have the meaning assigned to such term in the First Lien Security Agreement.
“ Additional First Lien Secured Parties ” shall have the meaning assigned to such term in the First Lien Security Agreement.
“ Additional Second Lien Documents ” shall mean, with respect to any Series of Additional Second Lien Obligations, the notes, indentures, security documents and other operative agreements evidencing or governing such Additional Second Lien Obligations, including each agreement entered into for the purpose of securing such Additional Second Lien Obligations; provided that, in each case, such Additional Second Lien Obligations have been designated as Additional Second Lien Obligations pursuant to and in accordance with Section 8.10(b).
“ Additional Second Lien Obligations ” shall mean, with respect to any Series of Additional Second Lien Documents, the Second Lien Obligations with respect to such Series of Additional Second Lien Documents that have been designated as Additional Second Lien Obligations pursuant to and in accordance with Section 8.10(b).
“ Additional Second Lien Secured Parties ” shall mean, with respect to any Series of Additional Second Lien Obligations, the holders of such Additional Second Lien Obligations and any Second Lien Authorized Representative with respect thereto.
“ Agreement ” shall have the meaning assigned to such term in the preamble.
“ Applicable First Lien Secured Parties ” shall mean, at any time, the Secured Parties entitled to direct the Collateral Agent at such time pursuant to the First Lien Intercreditor Agreement.
“ Applicable Second Lien Secured Parties ” shall mean, at any time, Second Lien Secured Parties owed, having or holding Second Lien Obligations representing more than 50% of the Second Lien Obligations at such time.
“ Authorized Representatives ” shall mean the First Lien Authorized Representatives and the Second Lien Authorized Representatives.
“ Bankruptcy Case ” shall mean a case under the Bankruptcy Code.
“ Bankruptcy Code ” shall mean Title 11 of the United States Code, as amended.
“ Bankruptcy Law ” shall mean the Bankruptcy Code and any similar Federal, state or foreign law for the relief of debtors.
“ Bond Facility Administrative Agent ” shall have the meaning assigned to such term in the recitals.
“ Bond Facility Secured Parties ” shall have the meaning assigned to such term in the First Lien Security Agreement.
 
2

“ Business Day ” shall mean any day that is not a Saturday, Sunday or other day on which commercial banks in New York City are authorized or required by law to remain closed.
“ Collateral ” shall mean the First Lien Collateral and the Second Lien Collateral.
“ Control ” shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ability to exercise voting power, by contract or otherwise. “ Controlling ” and “ Controlled ” have meanings correlative thereto.
“ Credit Facilities Administrative Agent ” shall have the meaning assigned to such term in the preamble.
“ Credit Facilities Secured Parties ” shall have the meaning assigned to such term in the First Lien Security Agreement.
“ Debtor Relief Law ” shall mean any applicable liquidation, conservatorship, bankruptcy, insolvency, rearrangement, moratorium, reorganization or similar debtor relief laws affecting the rights, remedies, powers, privileges or benefits of creditors generally from time to time in effect.
“ Designated Second Lien Authorized Representative ” shall mean (a) the Initial Second Lien Authorized Representative, until such time as the Initial Second Lien Obligations cease to be the only Series of Second Lien Obligations hereunder, and (b) thereafter, the Second Lien Authorized Representative designated from time to time by the Applicable Second Lien Secured Parties, in a notice to the First Lien Collateral Agent, the Parent and the Borrower, as the “Designated Second Lien Authorized Representative” for purposes hereof.
“ Discharge ” shall mean, with respect to any Series of Secured Obligations, the date on which all principal, premium, if any, interest, fees and other amounts due or outstanding under the First Lien Documents or Second Lien Documents, as the case may be, evidencing or governing such Series of Secured Obligations has been paid in full (or, in the case of the Bond Facility Documents Obligations, the Bonds have been repurchased in full by the Parent, the Borrower or an Affiliate thereof) and all commitments thereunder have terminated and all guarantees guaranteeing and all Liens securing such Series of Secured Obligations have been discharged and released. The term “ Discharged ” shall have a corresponding meaning.
“ First Lien Authorized Representative ” shall mean each “Authorized Representative” under and as defined in the First Lien Intercreditor Agreement.
“ First Lien Authorized Representative Joinder Agreement ” shall mean an “Authorized Representative Joinder Agreement” under and as defined in the First Lien Intercreditor Agreement.
“ First Lien Collateral ” shall mean all assets and properties that are (or are required by any First Lien Document to be) subject to Liens created pursuant to any First Lien Security Document to secure one or more Series of First Lien Obligations.
 
3

“ First Lien Collateral Agent ” shall have the meaning assigned to such term in the preamble.
“ First Lien Documents ” shall have the meaning assigned to such term in the First Lien Security Agreement.
“ First Lien Event of Default ” shall mean an “Event of Default” under and as defined in any First Lien Document.
“ First Lien Intercreditor Agreement ” shall mean the Intercreditor Agreement, dated as of August 19, 2014, among the Parent, the Borrower, the other Loan Parties party thereto, the First Lien Collateral Agent, the Bond Facility Administrative Agent, the Credit Facilities Administrative Agent and each additional First Lien Authorized Representative from time to time party thereto.
“ First Lien Obligations ” shall have the meaning assigned to such term in the First Lien Intercreditor Agreement.
“ First Lien Secured Parties ” shall have the meaning assigned to such term in the First Lien Intercreditor Agreement.
“ First Lien Security Agreement ” shall mean the Pledge and Security Agreement, dated as of August 19, 2014, among the Parent, the Borrower, the other Grantors party thereto and the First Lien Collateral Agent.
“ First Lien Security Documents ” shall have the meaning assigned to such term in the First Lien Intercreditor Agreement.
“ Grantor Joinder Agreement ” shall mean a written instrument substantially in the form of Exhibit B .
“ Grantors ” shall mean the Parent, the Borrower and each other Subsidiary or direct or indirect parent company of the Parent which has granted a security interest pursuant to any Security Document to secure any Series of Secured Obligations.
“ Initial Second Lien Documents ” shall mean the [[Indenture] dated as of [], 20[ ], by and among []], and the notes, security documents and other operative agreements evidencing or governing the Initial Second Lien Obligations, including each agreement entered into for the purpose of securing the Initial Second Lien Obligations.
“ Initial Second Lien Obligations ” shall mean the Second Lien Obligations with respect to the Initial Second Lien Documents.
“ Initial Second Lien Secured Parties ” shall mean the holders of the Initial Second Lien Obligations and the Initial Second Lien Authorized Representative.
“ Initial Second Lien Authorized Representative ” shall have the meaning assigned to such term in the preamble.
 
4

“ Insolvency or Liquidation Proceeding ” shall mean:
(1) any voluntary or involuntary case or proceeding under the Bankruptcy Code or any other Bankruptcy Law with respect to any Grantor;
(2) any proceeding for the reorganization of any Grantor, any receivership or any other similar case or proceeding with respect to any Grantor or a material portion of its property, in each case whether voluntary or involuntary;
(3) any liquidation, dissolution or winding up of or relating to any Grantor, in each case whether voluntary or involuntary and whether or not involving insolvency or bankruptcy; or
(4) any assignment for the benefit of creditors or marshaling of assets or liabilities relating to any Grantor.
“ Loan Parties ” shall mean the Parent, the Borrower and each other Subsidiary or direct or indirect parent company of the Parent which has (a) granted a security interest pursuant to any Security Document to secure any Series of Secured Obligations or (b) guaranteed any Series of Secured Obligations pursuant to any First Lien Document or Second Lien Document, as the case may be.
“ New Second Lien Authorized Representative ” shall have the meaning assigned to such term in Section 8.10(b)(ii).
“ New Second Lien Documents ” shall have the meaning assigned to such term in Section 8.10(b)(i).
“ New Second Lien Obligations ” shall have the meaning assigned to such term in Section 8.10(b).
“ New Second Lien Secured Parties ” shall have the meaning assigned to such term in Section 8.10(b)(ii).
“ Officer’s Certificate ” has the meaning assigned to such term in Section 8.09.
“ Parent ” shall have the meaning assigned to such term in the preamble.
“ Person ” shall mean any natural person, corporation, business trust, joint venture, association, company, partnership, limited liability company or government, individual or family trusts, or any agency or political subdivision thereof.
“ Pledged or Controlled Collateral ” shall have the meaning assigned to such term in Section 5.05(a).
“ Possessory Collateral ” shall mean any Shared Collateral in the possession of the First Lien Collateral Agent (or its agents or bailees), to the extent that possession thereof perfects a Lien thereon under the Uniform Commercial Code of any jurisdiction. Possessory Collateral
 
5

includes, without limitation, any Certificated Securities, Promissory Notes, Instruments and Chattel Paper, in each case, delivered to or in the possession of the First Lien Collateral Agent under the terms of the First Lien Security Documents.
“ Proceeds ” shall mean the proceeds of any sale, collection or other liquidation of Shared Collateral, any payment or distribution made in respect of Shared Collateral in a Bankruptcy Case and any amounts received by the First Lien Collateral Agent, any First Lien Authorized Representative or any First Lien Secured Party from a Second Lien Secured Party in respect of Shared Collateral pursuant to this Agreement or any other intercreditor agreement.
“ Recovery ” shall have the meaning assigned to such term in Section 6.04.
“ Refinance ” shall mean, in respect of any indebtedness, to refinance, extend, renew, defease, amend, increase, modify, supplement, restructure, refund, replace or repay, or to issue other indebtedness or enter alternative financing arrangements, in exchange or replacement for such indebtedness (in whole or in part), including by adding or replacing lenders, creditors, agents, borrowers and/or guarantors, and including in each case, but not limited to, after the original instrument giving rise to such indebtedness has been terminated and including, in each case, through any credit agreement, indenture or other agreement. “Refinanced” and “Refinancing” shall have correlative meanings.
“ Second Lien Authorized Representative ” shall mean (a) in the case of the Initial Second Lien Obligations, the Initial Second Lien Authorized Representative and (b) in the case of any Series of Additional Second Lien Obligations or Additional Second Lien Secured Parties that become subject to this Agreement after the date hereof, the Second Lien Authorized Representative named for such Series in the applicable Second Lien Authorized Representative Joinder Agreement.
“ Second Lien Authorized Representative Joinder Agreement ” shall mean a written instrument substantially in the form of Exhibit A .
“ Second Lien Collateral ” shall mean all assets and properties that are (or are required by any Second Lien Document to be) subject to Liens created pursuant to any Second Lien Security Document to secure one or more Series of Second Lien Obligations.
“ Second Lien Document ” shall mean (a) each Initial Second Lien Document and (b) each Additional Second Lien Document.
“ Second Lien Obligations ” shall mean, with respect to any Series of Second Lien Documents, (a) all obligations (monetary or otherwise, whether absolute or contingent, matured or unmatured) of any of the Loan Parties arising under or in connection with such Series of Second Lien Documents, including the principal of and premium, if any, and interest (including interest accruing during the pendency of any proceeding under any Debtor Relief Law, whether or not allowed in such proceeding) on the Indebtedness under such Series of Second Lien Documents and reimbursement obligations, fees, indemnities, costs, expenses (including all fees, charges and disbursements of counsel to the related Second Lien Secured Parties that are required to be paid by any of the Loan Parties pursuant to such Series of Second Lien Documents) or otherwise with respect to the Indebtedness under such Series of Second Lien
 
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Documents and (b) all other amounts due to the related Second Lien Secured Parties under or in respect of such Series of Second Lien Documents, in each case whether now existing or hereafter incurred, whether direct, indirect, fixed, contingent, liquidated, unliquidated, joint, several, or joint and several, now or hereafter existing, due or to become due whether evidenced in writing or not, together with all costs, expenses (including attorneys’ fees incurred in the enforcement or collection thereof), and interest accruing thereon including interest accruing after the commencement of any proceedings against any Loan Party under any Debtor Relief Law, whether or not allowed in such proceeding.
“ Second Lien Secured Parties ” shall mean (a) the Initial Second Lien Secured Parties and (b) any Additional Second Lien Secured Parties.
“ Second Lien Security Documents ” shall mean each agreement entered into in favor of any Second Lien Authorized Representative for the purpose of securing any Series of Second Lien Obligations.
“ Secured Obligations ” shall mean the First Lien Obligations and the Second Lien Obligations.
“ Secured Parties ” shall mean the First Lien Secured Parties and the Second Lien Secured Parties.
“ Security Documents ” shall mean the First Lien Security Documents and the Second Lien Security Documents.
“ Series ” shall mean (a) with respect to the First Lien Secured Parties, any First Lien Obligations or any First Lien Documents, each “Series” (under and as defined in the First Lien Intercreditor Agreement) thereof and (b)(i) with respect to the Second Lien Secured Parties, each of (A) the Initial Second Lien Secured Parties (in their capacities as such) and (B) the Additional Second Lien Secured Parties that become subject to this Agreement after the date hereof and that are represented by a common Second Lien Authorized Representative (in its capacity as such for such Additional Second Lien Secured Parties), (ii) with respect to any Second Lien Obligations, each of (A) the Initial Second Lien Obligations and (B) the Additional Second Lien Obligations incurred pursuant to any Additional Second Lien Document which, pursuant to any Second Lien Authorized Representative Joinder Agreement, are to be represented hereunder by a common Second Lien Authorized Representative (in its capacity as such for such Additional Second Lien Obligations) and (iii) with respect to any Second Lien Documents, each of (A) the Initial Second Lien Documents and (B) the Additional Second Lien Documents evidencing or governing Additional Second Lien Obligations which, pursuant to any Second Lien Authorized Representative Joinder Agreement, are to be represented hereunder by a common Second Lien Authorized Representative (in its capacity as such for such Additional Second Lien Obligations).
“ Shared Collateral ” shall mean, at any time, First Lien Collateral in which the holders of at least one Series of Second Lien Obligations (or its Authorized Representative) holds a valid and perfected security interest at such time. If, at any time, any portion of the First Lien Collateral does not constitute Second Lien Collateral under one or more Series of Second
 
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Lien Obligations, then such portion of the First Lien Collateral shall constitute Shared Collateral only with respect to those Series of Second Lien Obligations for which it constitutes Second Lien Collateral and shall not constitute Shared Collateral for any Series of Second Lien Obligations which does not have a valid and perfected security interest in such Collateral at such time.
“ Uniform Commercial Code ” or “ UCC ” shall mean, unless otherwise specified, the Uniform Commercial Code as from time to time in effect in the State of New York.
SECTION 1.02. Terms Generally . The following rules of interpretation shall apply to this Agreement:
(a) the definitions set forth or referred to in Section 1.01 shall apply equally to both the singular and plural forms of the terms defined;
(b) whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms;
(c) the words “include,” “includes” and “including” shall be deemed to be followed by the phrase “without limitation”;
(d) all references herein to Articles, Sections, Exhibits, Schedules, recitals and the preamble shall be deemed references to Articles and Sections of, and Exhibits, Schedules, recitals and the preamble to, this Agreement unless the context shall otherwise require;
(e) the term “or” is not exclusive;
(f) the words “asset” and “property” shall be construed to have the same meaning and effect and to refer to any and all tangible and intangible assets and properties (whether real or personal), including cash, Equity Interests, securities, revenues, accounts, leasehold interests and contract rights; and
(g) references to agreements or other contractual obligations shall, unless otherwise specified, be deemed to refer to such agreements or contractual obligations as amended, supplemented, restated or otherwise modified from time to time (subject to any applicable restrictions in any First Lien Document or Second Lien Document).
ARTICLE II
Priorities and Agreements with Respect to Shared Collateral
SECTION 2.01. Subordination . (a) Notwithstanding the date, time, manner or order of filing or recordation of any document or instrument or grant, attachment or perfection of any Liens granted to any Second Lien Authorized Representative or any Second Lien Secured Party on the Shared Collateral or of any Liens granted to the First Lien Collateral Agent or the First Lien Secured Parties on the Shared Collateral (or any actual or alleged defect in any of the foregoing) and notwithstanding any provision of the UCC, any applicable law, any Second Lien Document or any First Lien Document or any other circumstance whatsoever, each Second Lien Authorized Representative, on behalf of itself and its Second Lien Secured Parties, hereby agrees
 
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that (a) any Lien on the Shared Collateral securing any First Lien Obligations now or hereafter held by or on behalf of the First Lien Collateral Agent, any First Lien Authorized Representative or other agent or trustee therefor or any First Lien Secured Party, regardless of how acquired, whether by grant, statute, operation of law, subrogation or otherwise, shall have priority over and be senior in all respects and prior to any Lien on the Shared Collateral securing any Second Lien Obligations and (b) any Lien on the Shared Collateral securing any Second Lien Obligations now or hereafter held by or on behalf of any Second Lien Authorized Representative or other agent or trustee therefor or any Second Lien Secured Party, regardless of how acquired, whether by grant, statute, operation of law, subrogation or otherwise, shall be junior and subordinate in all respects to all Liens on the Shared Collateral securing the First Lien Obligations. All Liens on the Shared Collateral securing the First Lien Obligations shall be and remain senior in all respects and prior to all Liens on the Shared Collateral securing any Second Lien Obligations for all purposes, whether or not such Liens securing any Series of First Lien Obligations are subordinated to any Lien securing any other obligation of the Parent, the Borrower, any other Grantor or any other Person or otherwise subordinated, voided, avoided, invalidated or lapsed.
SECTION 2.02. Nature of First Lien Obligations . Each Second Lien Authorized Representative, on behalf of itself and its Second Lien Secured Parties, acknowledges that (a) a portion of the First Lien Obligations is revolving in nature and that the amount thereof that may be outstanding at any time or from time to time may be increased or reduced and subsequently reborrowed, (b) the terms of the First Lien Documents and the First Lien Obligations may be amended, supplemented or otherwise modified, and the First Lien Obligations, or a portion thereof, may be Refinanced from time to time and (c) the aggregate amount of the First Lien Obligations may be increased, in each case, without notice to or consent by any Second Lien Authorized Representative or Second Lien Secured Party and without affecting the provisions hereof. The Lien priorities provided for in Section 2.01 shall not be altered or otherwise affected by any amendment, supplement or other modification, or any Refinancing, of either the First Lien Obligations or the Second Lien Obligations, or any portion thereof. As between the Parent, the Borrower and the other Grantors and the Second Lien Secured Parties, the foregoing provisions will not limit or otherwise affect the obligations of the Parent, the Borrower and the other Grantors contained in any Second Lien Document with respect to the incurrence of additional First Lien Obligations.
SECTION 2.03. Prohibition on Contesting Liens . Each of the Second Lien Authorized Representatives, for itself and on behalf of its Second Lien Secured Parties, agrees that it shall not (and hereby waives any right to) contest or support any other Person in contesting, in any proceeding (including any Insolvency or Liquidation Proceeding), the validity, extent, perfection, priority or enforceability of any Lien securing the First Lien Obligations held (or purported to be held) by or on behalf of the First Lien Collateral Agent, any First Lien Authorized Representative or other agent or trustee therefor or any First Lien Secured Party in any First Lien Collateral. Notwithstanding anything to the contrary contained in this Agreement, no provision in this Agreement shall be construed to prevent or impair the rights of the First Lien Collateral Agent or any First Lien Authorized Representative to enforce this Agreement (including the priority of the Liens securing the First Lien Obligations as provided in Section 2.01) or any of the First Lien Documents.
 
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SECTION 2.04. No New Liens . The parties hereto agree that, so long as the Discharge of the First Lien Obligations has not occurred, (a) none of the Grantors shall, or shall permit any of its Subsidiaries to, grant or permit any additional Liens on any asset to secure any Second Lien Obligation unless it has granted, or concurrently therewith grants, a Lien on such asset to secure the First Lien Obligations and (b) if any Second Lien Authorized Representative or any Second Lien Secured Party shall hold any Lien on any asset of any Grantor or any other Person securing any Second Lien Obligation that are not also subject to the first-priority Liens securing the First Lien Obligations under the First Lien Security Documents, such Second Lien Authorized Representative or Second Lien Secured Party (i) shall notify the First Lien Collateral Agent promptly upon becoming aware thereof and, unless such Grantor or other Person shall promptly grant a similar Lien on such asset to the First Lien Collateral Agent as security for the First Lien Obligations, shall assign such Lien to the First Lien Collateral Agent as security for the First Lien Obligations (but may retain a junior lien on such asset subject to the terms hereof) and (ii) until such assignment or such grant of a similar Lien to the First Lien Collateral Agent, shall be deemed to hold and have held such Lien for the benefit of the First Lien Collateral Agent as security for the First Lien Obligations. To the extent that the provisions of the immediately preceding sentence are not complied with for any reason, without limiting any other right or remedy available to the First Lien Collateral Agent, the First Lien Authorized Representatives or the First Lien Secured Parties, each Second Lien Authorized Representative agrees, for itself and on behalf of its Second Lien Secured Parties, that any amounts received by or distributed to any Second Lien Secured Party pursuant to or as a result of any Lien granted in contravention of this Section 2.04 shall be subject to Section 4.02.
SECTION 2.05. Perfection of Liens . Except for the agreements of the First Lien Collateral Agent pursuant to Section 5.05 hereof, none of the First Lien Collateral Agent, the First Lien Authorized Representatives or the First Lien Secured Parties shall be responsible for perfecting and maintaining the perfection of Liens with respect to the Shared Collateral for the benefit of the Second Lien Authorized Representatives or the Second Lien Secured Parties. The provisions of this Agreement are intended solely to govern the respective Lien priorities as between the First Lien Secured Parties and the Second Lien Secured Parties and shall not impose on the First Lien Collateral Agent, the First Lien Authorized Representatives, the First Lien Secured Parties, the Second Lien Authorized Representatives, the Second Lien Secured Parties or any agent or trustee therefor any obligations in respect of the disposition of Proceeds of any Shared Collateral which would conflict with prior perfected claims therein in favor of any other Person or any order or decree of any court or governmental authority or any applicable law.
ARTICLE III
Enforcement
SECTION 3.01. Exercise of Remedies . (a) So long as the Discharge of the First Lien Obligations has not occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against the Parent, the Borrower or any other Grantor, (i) neither any Second Lien Authorized Representative nor any Second Lien Secured Party will (A) exercise or seek to exercise any rights or remedies (including setoff) with respect to any Shared Collateral in respect of any Second Lien Obligations, or institute any action or proceeding with respect to such rights or remedies (including any action of foreclosure), (B) contest, protest or object to any
 
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foreclosure proceeding or action brought with respect to the Shared Collateral or any other First Lien Collateral by the First Lien Collateral Agent, any First Lien Authorized Representative or any First Lien Secured Party in respect of the First Lien Obligations, the exercise of any right by the First Lien Collateral Agent, any First Lien Authorized Representative or any First Lien Secured Party (or any agent or sub-agent on their behalf) in respect of the First Lien Obligations under any lockbox agreement, control agreement, landlord waiver or bailee’s letter or similar agreement or arrangement to which the First Lien Collateral Agent, any First Lien Authorized Representative or any First Lien Secured Party either is a party or may have rights as a third party beneficiary, or any other exercise by any such party of any rights and remedies relating to the Shared Collateral under the First Lien Documents or otherwise in respect of the First Lien Collateral or the First Lien Obligations, or (C) object to the forbearance by the First Lien Secured Parties from bringing or pursuing any foreclosure proceeding or action or any other exercise of any rights or remedies relating to the Shared Collateral in respect of First Lien Obligations and (ii) except as otherwise provided herein, the First Lien Collateral Agent, the First Lien Authorized Representatives and the First Lien Secured Parties shall have the exclusive right to enforce rights, exercise remedies (including setoff and the right to credit bid their debt) and make determinations regarding the release, disposition or restrictions with respect to the Shared Collateral without any consultation with or the consent of any Second Lien Authorized Representative or any Second Lien Secured Party; provided , however , that (1) in any Insolvency or Liquidation Proceeding commenced by or against the Parent, the Borrower or any other Grantor, any Second Lien Authorized Representative may file a claim or statement of interest with respect to its Second Lien Obligations, (2) any Second Lien Authorized Representative may take any action (not adverse to the prior Liens on the Shared Collateral securing the First Lien Obligations or the rights of the First Lien Collateral Agent, the First Lien Authorized Representatives or the First Lien Secured Parties to exercise remedies in respect thereof) in order to create, prove, perfect, preserve or protect (but not enforce) its rights in, and perfection and priority of its Lien on, the Shared Collateral, (3) any Second Lien Authorized Representative and the Second Lien Secured Parties may exercise their rights and remedies as unsecured creditors, as provided in Section 5.04, and (4) any Second Lien Authorized Representative may exercise the rights and remedies provided for in Section 6.03. In exercising rights and remedies with respect to the First Lien Collateral, the First Lien Collateral Agent, the First Lien Authorized Representatives and the First Lien Secured Parties may enforce the provisions of the First Lien Documents and exercise remedies thereunder, all in such order and in such manner as they may determine in the exercise of their sole discretion. Such exercise and enforcement shall include the rights of an agent appointed by them to sell or otherwise dispose of Shared Collateral upon foreclosure, to incur expenses in connection with such sale or disposition and to exercise all the rights and remedies of a secured lender under the Uniform Commercial Code of any applicable jurisdiction and of a secured creditor under Bankruptcy Laws of any applicable jurisdiction.
(b) So long as the Discharge of the First Lien Obligations has not occurred, each Second Lien Authorized Representative, on behalf of itself and its Second Lien Secured Parties, agrees that it will not, in the context of its role as secured creditor, take or receive any Shared Collateral or any Proceeds of Shared Collateral in connection with the exercise of any right or remedy (including setoff) with respect to any Shared Collateral in respect of Second Lien Obligations. Without limiting the generality of the foregoing, unless and until the Discharge of the First Lien Obligations has occurred, except as expressly provided in the proviso in clause (ii) of Section 3.01(a), the sole right of the Second Lien Authorized Representatives and the Second
 
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Lien Secured Parties with respect to the Shared Collateral is to hold a Lien on the Shared Collateral in respect of Second Lien Obligations pursuant to the Second Lien Documents for the period and to the extent granted therein and to receive a share of the Proceeds thereof, if any, after the Discharge of the First Lien Obligations has occurred.
(c) Subject to the proviso in clause (ii) of Section 3.01(a), (i) each Second Lien Authorized Representative, for itself and on behalf of its Second Lien Secured Parties, agrees that neither such Second Lien Authorized Representative nor any of its Second Lien Secured Parties will take any action that would hinder any exercise of remedies undertaken by the First Lien Collateral Agent, any First Lien Authorized Representative or any First Lien Secured Party with respect to the Shared Collateral under the First Lien Documents, including any sale, lease, exchange, transfer or other disposition of the Shared Collateral, whether by foreclosure or otherwise, and (ii) each Second Lien Authorized Representative, for itself and on behalf of its Second Lien Secured Parties, hereby waives any and all rights it or any of its Second Lien Secured Parties may have as a junior lien creditor or otherwise to object to the manner in which the First Lien Collateral Agent, the First Lien Authorized Representatives or the First Lien Secured Parties seek to enforce or collect the First Lien Obligations or the Liens granted on any of the First Lien Collateral, regardless of whether any action or failure to act by or on behalf of the First Lien Collateral Agent, any First Lien Authorized Representative or any other First Lien Secured Party is adverse to the interests of the Second Lien Secured Parties.
(d) Each Second Lien Authorized Representative hereby acknowledges and agrees that no covenant, agreement or restriction contained in any Second Lien Document shall be deemed to restrict in any way the rights and remedies of the First Lien Collateral Agent, the First Lien Authorized Representatives or the First Lien Secured Parties with respect to the First Lien Collateral as set forth in this Agreement and the First Lien Documents.
(e) Until the Discharge of the First Lien Obligations, the First Lien Collateral Agent (acting at the direction of the Applicable First Lien Secured Parties) shall have the exclusive right to exercise any right or remedy with respect to the Shared Collateral and shall have the exclusive right to determine and direct the time, method and place for exercising such right or remedy or conducting any proceeding with respect thereto. Following the Discharge of the First Lien Obligations, the Designated Second Lien Authorized Representative (acting at the direction of the Applicable Second Lien Secured Parties) shall have the exclusive right to exercise any right or remedy with respect to the Collateral, and the Designated Second Lien Authorized Representative (acting at the direction of the Applicable Second Lien Secured Parties) shall have the exclusive right to direct the time, method and place of exercising or conducting any proceeding for the exercise of any right or remedy available to the Second Lien Secured Parties with respect to the Collateral, or of exercising or directing the exercise of any trust or power conferred on the Second Lien Authorized Representatives, or for the taking of any other action authorized by the Second Lien Security Documents; provided , however , that nothing in this Section shall impair the right of any Second Lien Authorized Representative or other agent or trustee acting on behalf of the Second Lien Secured Parties to take such actions with respect to the Collateral after the Discharge of the First Lien Obligations as may be otherwise required or authorized pursuant to any intercreditor agreement governing the Second Lien Secured Parties or the Second Lien Obligations.
 
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SECTION 3.02. Cooperation . Subject to the proviso in clause (ii) of Section 3.01(a), each Second Lien Authorized Representative, on behalf of itself and its Second Lien Secured Parties, agrees that, unless and until the Discharge of the First Lien Obligations has occurred, it will not commence, or join with any Person (other than the First Lien Secured Parties and the First Lien Collateral Agent upon the request thereof) in commencing, any enforcement, collection, execution, levy or foreclosure action or proceeding with respect to any Lien held by it in the Shared Collateral under any of the Second Lien Documents or otherwise in respect of the Second Lien Obligations.
SECTION 3.03. Actions upon Breach . Should any Second Lien Authorized Representative or Second Lien Secured Party, contrary to this Agreement, in any way take, attempt to take or threaten to take any action with respect to the Shared Collateral (including any attempt to realize upon or enforce any remedy with respect to this Agreement) or fail to take any action required by this Agreement, the First Lien Collateral Agent, any First Lien Authorized Representative or any First Lien Secured Party (in its or their own name or in the name of the Parent, the Borrower or any other Grantor) or the Parent, the Borrower or any Grantor may obtain relief against such Second Lien Authorized Representative or Second Lien Secured Party by injunction, specific performance or other appropriate equitable relief. Each Second Lien Authorized Representative, on behalf of itself and its Second Lien Secured Parties, hereby (i) agrees that the damages of the First Lien Collateral Agent, the First Lien Authorized Representatives and the First Lien Secured Parties from the actions of such Second Lien Authorized Representative or any of its Second Lien Secured Parties may at any time be difficult to ascertain and may be irreparable and waives any defense that the Parent, the Borrower, any other Grantor or the First Lien Collateral Agent, any First Lien Authorized Representative or any First Lien Secured Party cannot demonstrate damage or be made whole by the awarding of damages and (ii) irrevocably waives any defense based on the adequacy of a remedy at law and any other defense that might be asserted to bar the remedy of specific performance in any action that may be brought by the First Lien Collateral Agent, any First Lien Authorized Representative or any First Lien Secured Party.
ARTICLE IV
Payments
SECTION 4.01. Application of Proceeds . From and after the occurrence and during the continuance of any First Lien Event of Default, so long as the Discharge of the First Lien Obligations has not occurred, the Shared Collateral or Proceeds thereof received in connection with the sale or other disposition of, or collection on, such Shared Collateral upon the exercise of remedies shall be applied by the First Lien Collateral Agent to the First Lien Obligations in the order specified in the First Lien Intercreditor Agreement until the Discharge of the First Lien Obligations has occurred. Upon the Discharge of the First Lien Obligations, the First Lien Collateral Agent shall deliver promptly to the Designated Second Lien Authorized Representative any Shared Collateral or Proceeds thereof held by it in the same form as received, with any necessary endorsements, or as a court of competent jurisdiction may otherwise direct, to be applied by the Designated Second Lien Authorized Representative to the Second Lien Obligations in the order specified in the relevant Second Lien Documents.
 
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SECTION 4.02. Payments Over . Any Shared Collateral or Proceeds thereof received by any Second Lien Authorized Representative or any Second Lien Secured Party in connection with the exercise of any right or remedy (including setoff) relating to the Shared Collateral in contravention of this Agreement shall be segregated and held in trust for the benefit of and forthwith paid over to the First Lien Collateral Agent for the benefit of the First Lien Secured Parties in the same form as received, with any necessary endorsements, or as a court of competent jurisdiction may otherwise direct. The First Lien Collateral Agent is hereby authorized to make any such endorsements as agent for each Second Lien Authorized Representative or any Second Lien Secured Party. This authorization is coupled with an interest and is irrevocable.
ARTICLE V
Other Agreements
SECTION 5.01. Releases . (a) Each Second Lien Authorized Representative, for itself and on behalf of its Second Lien Secured Parties, agrees that, in the event of a sale, transfer or other disposition of any specified item of Shared Collateral (including all or substantially all of the equity interests of any Subsidiary), the Liens granted to the Second Lien Authorized Representatives and the Second Lien Secured Parties upon such Shared Collateral to secure Second Lien Obligations shall terminate and be released, automatically and without any further action, concurrently with the termination and release of all Liens granted upon such Shared Collateral to secure First Lien Obligations. Upon delivery to a Second Lien Authorized Representative of an Officer’s Certificate stating that any such termination and release of Liens securing the First Lien Obligations has become effective (or shall become effective concurrently with such termination and release of the Liens granted to the Second Lien Secured Parties and the Second Lien Authorized Representatives) and any necessary or proper instruments of termination or release prepared by the Parent, the Borrower or any other Grantor, such Second Lien Authorized Representative will promptly execute, deliver or acknowledge, at the Parent’s, the Borrower’s or such other Grantor’s sole cost and expense, such instruments to evidence such termination and release of the Liens. Nothing in this Section 5.01(a) will be deemed to affect any agreement of a Second Lien Authorized Representative, for itself and on behalf of its Second Lien Secured Parties, to release the Liens on the Second Lien Collateral as set forth in the relevant Second Lien Documents.
(b) Each Second Lien Authorized Representative, for itself and on behalf of its Second Lien Secured Parties, hereby irrevocably constitutes and appoints the First Lien Collateral Agent and any officer or agent of the First Lien Collateral Agent, with full power of substitution, as its true and lawful attorney-in-fact with full irrevocable power and authority in the place and stead of such Second Lien Authorized Representative or such Second Lien Secured Party or in the First Lien Collateral Agent’s own name, from time to time in the First Lien Collateral Agent’s discretion, for the purpose of carrying out the terms of Section 5.01(a), to take any and all appropriate action and to execute any and all documents and instruments that may be necessary or desirable to accomplish the purposes of Section 5.01(a), including any termination statements, endorsements or other instruments of transfer or release.
 
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(c) Unless and until the Discharge of the First Lien Obligations has occurred, each Second Lien Authorized Representative, for itself and on behalf of its Second Lien Secured Parties, hereby consents to the application, whether prior to or after an event of default under any First Lien Document of proceeds of Shared Collateral to the repayment of First Lien Obligations pursuant to the First Lien Documents, provided that nothing in this Section 5.01(c) shall be construed to prevent or impair the rights of the Second Lien Authorized Representatives or the Second Lien Secured Parties to receive proceeds in connection with the Second Lien Obligations not otherwise in contravention of this Agreement.
(d) Notwithstanding anything to the contrary in any Second Lien Security Document, in the event the terms of a First Lien Security Document and a Second Lien Security Document each require any Grantor (i) to make payment in respect of any item of Shared Collateral, (ii) to deliver or afford control over any item of Shared Collateral to, or deposit any item of Shared Collateral with, (iii) to register ownership of any item of Shared Collateral in the name of or make an assignment of ownership of any Shared Collateral or the rights thereunder to, (iv) cause any securities intermediary, commodity intermediary or other Person acting in a similar capacity to agree to comply, in respect of any item of Shared Collateral, with instructions or orders from, or to treat, in respect of any item of Shared Collateral, as the entitlement holder, (v) hold any item of Shared Collateral in trust for (to the extent such item of Shared Collateral cannot be held in trust for multiple parties under applicable law), (vi) obtain the agreement of a bailee or other third party to hold any item of Shared Collateral for the benefit of or subject to the control of or, in respect of any item of Shared Collateral, to follow the instructions of or (vii) obtain the agreement of a landlord with respect to access to leased premises where any item of Shared Collateral is located or waivers or subordination of rights with respect to any item of Shared Collateral in favor of, in any case, both the First Lien Collateral Agent and any Second Lien Authorized Representative or Second Lien Secured Party, such Grantor may, until the Discharge of the First Lien Obligations has occurred, comply with such requirement under the Second Lien Security Document as it relates to such Shared Collateral by taking any of the actions set forth above only with respect to, or in favor of, the First Lien Collateral Agent.
SECTION 5.02. Insurance and Condemnation Awards . Unless and until the Discharge of the First Lien Obligations has occurred, the First Lien Collateral Agent and the First Lien Secured Parties shall have the sole and exclusive right, subject to the rights of the Grantors under the First Lien Documents, (a) to be named as additional insured and loss payee under any insurance policies maintained from time to time by any Grantor, (b) to adjust settlement for any insurance policy covering the Shared Collateral in the event of any loss thereunder and (c) to approve any award granted in any condemnation or similar proceeding affecting the Shared Collateral. Unless and until the Discharge of the First Lien Obligations has occurred, all proceeds of any such policy and any such award, if in respect of the Shared Collateral, shall be paid (i) first, prior to the occurrence of the Discharge of the First Lien Obligations, to the First Lien Collateral Agent for the benefit of the First Lien Secured Parties pursuant to the terms of the First Lien Documents, (ii) second, after the occurrence of the Discharge of the First Lien Obligations, to the Designated Second Lien Authorized Representative for the benefit of the Second Lien Secured Parties pursuant to the terms of the applicable Second Lien Documents and (iii) third, if no Second Lien Obligations are outstanding, to the owner of the subject property, such other Person as may be entitled thereto or as a court of competent jurisdiction may otherwise direct. If any Second Lien Authorized Representative or
 
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any Second Lien Secured Party shall, at any time, receive any proceeds of any such insurance policy or any such award in contravention of this Agreement, it shall pay such proceeds over to the First Lien Collateral Agent in accordance with the terms of Section 4.02.
SECTION 5.03. Amendments to Second Lien Security Documents . (a) Without the prior written consent of the First Lien Collateral Agent and each First Lien Authorized Representativ (acting in accordance with the applicable First Lien Documents), no Second Lien Security Document may be amended, supplemented or otherwise modified or entered into to the extent such amendment, supplement or modification, or the terms of any new Second Lien Security Document, would be prohibited by or inconsistent with any of the terms of this Agreement. Each Grantor agrees to deliver to the First Lien Collateral Agent copies of (i) any amendments, supplements or other modifications to the Second Lien Security Documents and (ii) any new Second Lien Security Documents promptly after effectiveness thereof, and each Second Lien Authorized Representative, for itself and on behalf of its Second Lien Secured Parties, agrees that each Second Lien Security Document shall include the following language (or language to similar effect reasonably approved by the First Lien Collateral Agent):
“Notwithstanding anything herein to the contrary, (i) the liens and security interests granted to the [Second Lien Authorized Representative] pursuant to this Agreement are expressly subject and subordinate to the liens and security interests granted in favor of the First Lien Secured Parties (as defined in the Intercreditor Agreement referred to below), including liens and security interests granted to Bank of America, N.A., in its capacity as collateral agent for the First Lien Secured Parties, and (ii) the exercise of any right or remedy by the [Second Lien Authorized Representative] hereunder is subject to the limitations and provisions of the Second Lien Intercreditor Agreement dated as of [        ], 20[     ] (as amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “ Intercreditor Agreement ”), by and among Buffalo Gulf Coast Terminals LLC, HFOTCO LLC, the other grantors party hereto, Bank of America, N.A., in its capacity as collateral agent for the First Lien Secured Parties, [Second Lien Authorized Representative] and the other parties thereto. In the event of any conflict between the terms of the Intercreditor Agreement and the terms of this Agreement, the terms of the Intercreditor Agreement shall govern.”
(b) In the event that the First Lien Collateral Agent or the First Lien Secured Parties enter into any amendment, waiver or consent in respect of any of the First Lien Security Documents for the purpose of adding to or deleting from, or waiving or consenting to any departures from any provisions of, any First Lien Security Document or changing in any manner the rights of the First Lien Collateral Agent, the First Lien Secured Parties, the Parent, the Borrower or any other Grantor thereunder (including the release of any Liens in First Lien Collateral), then such amendment, waiver or consent shall apply automatically to any comparable provision of the comparable Second Lien Security Documents without the consent of any Second Lien Authorized Representative or any Second Lien Secured Party and without any action by any Second Lien Authorized Representative, the Parent, the Borrower or any other Grantor; provided , however , that written notice of such amendment, waiver or consent shall have been given to each Second Lien Authorized Representative within 10 Business Days after the effectiveness of such amendment, waiver or consent.
 
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SECTION 5.04. Rights as Unsecured Creditors . Notwithstanding anything to the contrary in this Agreement, the Second Lien Authorized Representatives and the Second Lien Secured Parties may exercise rights and remedies as unsecured creditors against the Parent, the Borrower and any other Grantor in accordance with the terms of the Second Lien Documents and applicable law. Nothing in this Agreement shall prohibit the receipt by any Second Lien Authorized Representative or any Second Lien Secured Party of the required payments of principal, premium, interest, fees and other amounts due under the Second Lien Documents so long as such receipt is not the direct or indirect result of the exercise by a Second Lien Authorized Representative or any Second Lien Secured Party of rights or remedies as a secured creditor in respect of Shared Collateral. In the event any Second Lien Authorized Representative or any Second Lien Secured Party becomes a judgment lien creditor in respect of Shared Collateral as a result of its enforcement of its rights as an unsecured creditor in respect of Second Lien Obligations, such judgment lien shall be subordinated to the Liens securing First Lien Obligations on the same basis as the other Liens securing the Second Lien Obligations are so subordinated to such Liens securing First Lien Obligations under this Agreement. Nothing in this Agreement shall impair or otherwise adversely affect any rights or remedies the First Lien Collateral Agent, the First Lien Authorized Representatives or the First Lien Secured Parties may have with respect to the First Lien Collateral.
SECTION 5.05. Gratuitous Bailee for Perfection . (a) The First Lien Collateral Agent acknowledges and agrees that if it shall at any time hold a Lien securing any First Lien Obligations on any Shared Collateral that can be perfected by the possession or control of such Shared Collateral or of any account in which such Shared Collateral is held, and if such Shared Collateral or any such account is in fact in the possession or under the control of the First Lien Collateral Agent, or of agents or bailees of the First Lien Collateral Agent (such Shared Collateral being referred to herein as the “ Pledged or Controlled Collateral ”), or if it shall any time obtain any landlord waiver or bailee’s letter or any similar agreement or arrangement granting it rights or access to Shared Collateral, the First Lien Collateral Agent shall also hold such Pledged or Controlled Collateral, or take such actions with respect to such landlord waiver, bailee’s letter or similar agreement or arrangement, as sub-agent or gratuitous bailee for the relevant Second Lien Authorized Representatives, in each case solely for the purpose of perfecting the Liens granted under the relevant Second Lien Security Documents and subject to the terms and conditions of this Section 5.05.
(b) In the event that the First Lien Collateral Agent (or its agents or bailees) has Lien filings against intellectual property that is part of the Shared Collateral that are necessary for the perfection of Liens in such Shared Collateral, the First Lien Collateral Agent agrees to hold such Liens as sub-agent and gratuitous bailee for the relevant Second Lien Authorized Representatives and any assignee thereof, solely for the purpose of perfecting the security interest granted in such Liens pursuant to the relevant Second Lien Security Documents, subject to the terms and conditions of this Section 5.05.
(c) Except as otherwise specifically provided herein, until the Discharge of the First Lien Obligations has occurred, the First Lien Collateral Agent shall be entitled to deal with the Pledged or Controlled Collateral in accordance with the terms of the First Lien Documents as if the Liens under the Second Lien Security Documents did not exist. The rights of the Second Lien Authorized Representatives and the Second Lien Secured Parties with respect to the Pledged or Controlled Collateral shall at all times be subject to the terms of this Agreement.
 
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(d) The First Lien Collateral Agent shall have no obligation whatsoever to the Second Lien Authorized Representatives or any Second Lien Secured Party to assure that any of the Pledged or Controlled Collateral is genuine or owned by the Grantors or to protect or preserve rights or benefits of any Person or any rights pertaining to the Shared Collateral, except as expressly set forth in this Section 5.05. The duties or responsibilities of the First Lien Collateral Agent under this Section 5.05 shall be limited solely to holding or controlling the Shared Collateral and the related Liens referred to in paragraphs (a) and (b) of this Section 5.05 as subagent and gratuitous bailee for the relevant Second Lien Authorized Representative for purposes of perfecting the Lien held by such Second Lien Authorized Representative.
(e) The First Lien Collateral Agent shall not have by reason of the Second Lien Security Documents or this Agreement, or any other document, a fiduciary relationship in respect of any Second Lien Authorized Representative or any Second Lien Secured Party, and each, Second Lien Authorized Representative, for itself and on behalf of its Second Lien Secured Parties, hereby waives and releases the First Lien Collateral Agent from all claims and liabilities arising pursuant to the First Lien Collateral Agent’s role under this Section 5.05 as sub-agent and gratuitous bailee with respect to the Shared Collateral.
(f) Upon the Discharge of the First Lien Obligations, the First Lien Collateral Agent shall, at the Grantors’ sole cost and expense, (i) (A) deliver to the Designated Second Lien Authorized Representative, to the extent that it is legally permitted to do so, all Shared Collateral, including all proceeds thereof, held or controlled by the First Lien Collateral Agent or any of its agents or bailees, including the transfer of possession and control, as applicable, of the Pledged or Controlled Collateral, together with any necessary endorsements and notices to depositary banks, securities intermediaries and commodities intermediaries, and assign its rights under any landlord waiver or bailee’s letter or any similar agreement or arrangement granting it rights or access to Shared Collateral, or (B) direct and deliver such Shared Collateral as a court of competent jurisdiction may otherwise direct, (ii) notify any applicable insurance carrier that it is no longer entitled to be a loss payee or additional insured under the insurance policies of any Grantor issued by such insurance carrier and (iii) notify any governmental authority involved in any condemnation or similar proceeding involving any Grantor that the Designated Second Lien Authorized Representative is entitled to approve any awards granted in such proceeding. The Parent, the Borrower and the other Grantors shall take such further action as is required to effectuate the transfer contemplated hereby and shall indemnify the First Lien Collateral Agent for loss or damage suffered by the First Lien Collateral Agent as a result of such transfer, except for loss or damage suffered by the First Lien Collateral Agent as a result of its own willful misconduct or gross negligence. The First Lien Collateral Agent has no obligation to follow instructions from the Designated Second Lien Authorized Representative in contravention of this Agreement.
(g) None of the First Lien Collateral Agent, any First Lien Authorized Representative or any First Lien Secured Party shall be required to marshal any present or future collateral security for any obligations of the Parent, the Borrower or any Subsidiary to the First Lien Collateral Agent, any First Lien Authorized Representative or any First Lien Secured Party
 
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under the First Lien Documents or any assurance of payment in respect thereof, or to resort to such collateral security or other assurances of payment in any particular order, and all of their rights in respect of such collateral security or any assurance of payment in respect thereof shall be cumulative and in addition to all other rights, however existing or arising.
SECTION 5.06. When Discharge of First Lien Obligations Deemed to Not Have Occurred . If, at any time after any Discharge of the First Lien Obligations has occurred, the Parent, the Borrower or any Subsidiary incurs any First Lien Obligations (other than in respect of the payment of indemnities surviving the Discharge of the First Lien Obligations), then such Discharge of the First Lien Obligations shall automatically be deemed not to have occurred for all purposes of this Agreement (other than with respect to any actions taken prior to the date of the incurrence of such First Lien Obligations as a result of the occurrence of such Discharge of the First Lien Obligations) and the documents evidencing or governing such First Lien Obligations shall automatically be treated as First Lien Documents for all purposes of this Agreement, including for purposes of the Lien priorities and rights in respect of Shared Collateral set forth herein and the granting by the First Lien Collateral Agent of amendments, waivers and consents hereunder and the administrative agent, collateral agent, trustee and/or similar representative acting on behalf of the holders of such First Lien Obligations shall be the First Lien Collateral Agent for all purposes of this Agreement. Upon receipt of notice of the incurrence of such First Lien Obligations (including the identity of the new First Lien Collateral Agent), each Second Lien Authorized Representative (including the Designated Second Lien Authorized Representative) shall promptly (a) enter into such documents and agreements (at the expense of the Borrower), including amendments or supplements to this Agreement, as the Borrower or the new First Lien Collateral Agent shall reasonably request in writing in order to provide the new First Lien Collateral Agent the rights of the First Lien Collateral Agent contemplated hereby, (b) deliver to the new First Lien Collateral Agent, to the extent that it is legally permitted to do so, all Shared Collateral, including all proceeds thereof, held or controlled by such Second Lien Authorized Representative or any of its agents or bailees, including the transfer of possession and control, as applicable, of the Pledged or Controlled Collateral, together with any necessary endorsements and notices to depositary banks, securities intermediaries and commodities intermediaries, and assign its rights under any landlord waiver or bailee’s letter or any similar agreement or arrangement granting it rights or access to Shared Collateral, (c) notify any applicable insurance carrier that it is no longer entitled to be a loss payee or additional insured under the insurance policies of any Grantor issued by such insurance carrier and (d) notify any governmental authority involved in any condemnation or similar proceeding involving a Grantor that the new First Lien Collateral Agent is entitled to approve any awards granted in such proceeding.
ARTICLE VI
Insolvency or Liquidation Proceedings .
SECTION 6.01. Financing Issues . Until the Discharge of the First Lien Obligations has occurred, if the Parent, the Borrower or any other Grantor shall be subject to any Insolvency or Liquidation Proceeding and the First Lien Collateral Agent, any First Lien Authorized Representative or any First Lien Secured Party shall desire to consent (or not object) to the sale, use or lease of cash or other collateral or to consent (or not object) to the Parent’s, the
 
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Borrower’s or any other Grantor’s obtaining financing under Section 363 or Section 364 of Title 11 of the United States Code or any similar provision of any other Bankruptcy Law (“ DIP Financing ”), then each Second Lien Authorized Representative, for itself and on behalf of its Second Lien Secured Parties, agrees that (a) it will raise no objection to and will not otherwise contest such sale, use or lease of such cash or other collateral or such DIP Financing and, except to the extent permitted by the proviso in clause (ii) of Section 3.01(a) and Section 6.03, will not request adequate protection or any other relief in connection therewith and, to the extent the Liens securing the First Lien Obligations are subordinated or pari passu with such DIP Financing, will subordinate (and will be deemed hereunder to have subordinated) its Liens in the Shared Collateral to (x) such DIP Financing (and all obligations relating thereto) on the same basis as the Liens securing the Second Lien Obligations are so subordinated to Liens securing the First Lien Obligations under this Agreement and (y) to any “carve-out” for professional and United States Trustee fees agreed to by the First Lien Collateral Agent or the First Lien Authorized Representatives, (b) it will raise no objection to (and will not otherwise contest) any motion for relief from the automatic stay or from any injunction against foreclosure or enforcement in respect of the First Lien Obligations made by the First Lien Collateral Agent, any First Lien Authorized Representative or any First Lien Secured Party, (c) it will raise no objection to (and will not otherwise contest) any lawful exercise by any First Lien Secured Party of the right to credit bid First Lien Obligations at any sale in foreclosure of any First Lien Collateral, (d) it will raise no objection to (and will not otherwise contest) any other request for judicial relief made in any court by any First Lien Secured Party relating to the lawful enforcement of any Lien on any First Lien Collateral or (e) it will raise no objection to (and will not otherwise contest or oppose) any order relating to a sale or other disposition of any asset of any Grantor for which the First Lien Collateral Agent has consented that provides, to the extent such sale or other disposition is to be free and clear of Liens, that the Liens securing the First Lien Obligations and the Second Lien Obligations will attach to the proceeds of the sale on the same basis of priority as the Liens on the Shared Collateral securing the First Lien Obligations rank to the Liens on the Shared Collateral securing the Second Lien Obligations pursuant to this Agreement. Each Second Lien Authorized Representative, for itself and on behalf of its Second Lien Secured Parties, agrees that notice received two Business Days prior to the entry of an order approving such usage of cash or other collateral or approving such financing shall be adequate notice.
SECTION 6.02. Relief from the Automatic Stay . Until the Discharge of the First Lien Obligations has occurred, each Second Lien Authorized Representative, for itself and on behalf of its Second Lien Secured Parties, agrees that none of them shall seek relief from the automatic stay or any other stay in any Insolvency or Liquidation Proceeding or take any action in derogation thereof, in each case in respect of any Shared Collateral, without the prior written consent of the First Lien Collateral Agent.
SECTION 6.03. Adequate Protection . Each Second Lien Authorized Representative, for itself and on behalf of its Second Lien Secured Parties, agrees that none of them shall object, contest or support any other Person objecting to or contesting (a) any request by the First Lien Collateral Agent, any First Lien Authorized Representative or any First Lien Secured Party for adequate protection, (b) any objection by the First Lien Collateral Agent, any First Lien Authorized Representative or any First Lien Secured Party to any motion, relief, action or proceeding based on the First Lien Collateral Agent’s, any First Lien Authorized
 
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Representative’s or any First Lien Secured Party’s claiming a lack of adequate protection or (c) the payment of interest, fees, expenses or other amounts of the First Lien Collateral Agent, any First Lien Authorized Representative or any First Lien Secured Party under Section 506(b) or 506(c) of Title 11 of the United States Code or any similar provision of any other Bankruptcy Law. Notwithstanding anything contained in this Section 6.03 or in Section 6.01, in any Insolvency or Liquidation Proceeding, (i) if the First Lien Secured Parties (or any subset thereof) are granted adequate protection in the form of additional collateral in connection with any DIP Financing or use of cash collateral under Section 363 or 364 of Title 11 of the United States Code or any similar provision of any other Bankruptcy Law and the First Lien Collateral Agent and the First Lien Secured Parties do not object to the adequate protection being provided to the First Lien Secured Parties, then each Second Lien Authorized Representative, for itself and on behalf of its Second Lien Secured Parties, may seek or request adequate protection in the form of a replacement Lien on such additional collateral, which Lien is subordinated to the Liens securing the First Lien Obligations and such DIP Financing (and all obligations relating thereto) on the same basis as the other Liens securing the Second Lien Obligations are so subordinated to the Liens securing the First Lien Obligations under this Agreement and (ii) in the event any Second Lien Authorized Representative, for itself and on behalf of its Second Lien Secured Parties, seeks or requests adequate protection and such adequate protection is granted in the form of additional collateral, then such Second Lien Authorized Representative, for itself and on behalf of its Second Lien Secured Parties, agrees that the First Lien Collateral Agent shall also be granted a senior Lien on such additional collateral as security for the First Lien Obligations and any such DIP Financing and that any Lien on such additional collateral securing the Second Lien Obligations shall be subordinated to the Liens on such collateral securing the First Lien Obligations and any such DIP Financing (and all obligations relating thereto) and any other Liens granted to the First Lien Secured Parties as adequate protection on the same basis as the other Liens securing the Second Lien Obligations are so subordinated to such Liens securing the First Lien Obligations under this Agreement.
SECTION 6.04. Preference Issues . If any First Lien Secured Party is required in any Insolvency or Liquidation Proceeding or otherwise to disgorge, turn over or otherwise pay any amount to the estate of the Parent, the Borrower or any other Grantor (or any trustee, receiver or similar Person therefor), because the payment of such amount was declared to be fraudulent or preferential in any respect or for any other reason, any amount (a “ Recovery ”), whether received as proceeds of security, enforcement of any right of setoff or otherwise, then the First Lien Obligations shall be reinstated to the extent of such Recovery and deemed to be outstanding as if such payment had not occurred and the First Lien Secured Parties shall be entitled to a Discharge of the First Lien Obligations with respect to all such recovered amounts. If this Agreement shall have been terminated prior to such Recovery, this Agreement shall be reinstated in full force and effect, and such prior termination shall not diminish, release, discharge, impair or otherwise affect the obligations of the parties hereto. Each Second Lien Authorized Representative, for itself and on behalf of its Second Lien Secured Parties, hereby agrees that none of them shall be entitled to benefit from any avoidance action affecting or otherwise relating to any distribution or allocation made in accordance with this Agreement, whether by preference or otherwise, it being understood and agreed that the benefit of such avoidance action otherwise allocable to them shall instead be allocated and turned over for application in accordance with the priorities set forth in this Agreement.
 
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SECTION 6.05. Separate Grants of Security and Separate Classifications . Each Second Lien Authorized Representative, for itself and on behalf of its Second Lien Secured Parties, acknowledges and agrees that (a) the grants of Liens pursuant to the First Lien Security Documents and the Second Lien Security Documents constitute two separate and distinct grants of Liens and (b) because of, among other things, their differing rights in the Shared Collateral, the Second Lien Obligations are fundamentally different from the First Lien Obligations and must be separately classified in any plan of reorganization proposed or adopted in an Insolvency or Liquidation Proceeding. To further effectuate the intent of the parties as provided in the immediately preceding sentence, if it is held that the claims of the First Lien Secured Parties and the Second Lien Secured Parties in respect of the Shared Collateral constitute only one secured claim (rather than separate classes of senior and junior secured claims), then each Second Lien Authorized Representative, for itself and on behalf of its Second Lien Secured Parties, hereby acknowledges and agrees that all distributions shall be made as if there were separate classes of senior and junior secured claims against the Grantors in respect of the Shared Collateral (with the effect being that, to the extent that the aggregate value of the Shared Collateral is sufficient (for this purpose ignoring all claims held by the Second Lien Secured Parties), the First Lien Secured Parties shall be entitled to receive, in addition to amounts distributed to them in respect of principal, pre-petition interest and other claims, all amounts owing in respect of post-petition interest (whether or not allowed or allowable) before any distribution is made in respect of the Second Lien Obligations, with each Second Lien Authorized Representative, for itself and on behalf of its Second Lien Secured Parties, hereby acknowledging and agreeing to turn over to the First Lien Collateral Agent amounts otherwise received or receivable by them to the extent necessary to effectuate the intent of this sentence, even if such turnover has the effect of reducing the claim or recovery of the Second Lien Secured Parties.
SECTION 6.06. No Waivers of Rights of First Lien Secured Parties . Nothing contained herein shall, except as expressly provided herein, prohibit or in any way limit the First Lien Collateral Agent, any First Lien Authorized Representative or any First Lien Secured Party from objecting in any Insolvency or Liquidation Proceeding or otherwise to any action taken by any Second Lien Secured Party, including the seeking by any Second Lien Secured Party of adequate protection or the asserting by any Second Lien Secured Party of any of its rights and remedies under the Second Lien Documents or otherwise.
SECTION 6.07. Application . This Agreement, which the parties hereto expressly acknowledge is a “subordination agreement” under Section 510(a) of Title 11 of the United States Code or any similar provision of any other Bankruptcy Law, shall be effective before, during and after the commencement of any Insolvency or Liquidation Proceeding. The relative rights as to the Shared Collateral and proceeds thereof shall continue after the commencement of any Insolvency or Liquidation Proceeding on the same basis as prior to the date of the petition therefor, subject to any court order approving the financing of, or use of cash collateral by, any Grantor. All references herein to any Grantor shall include such Grantor as a debtor-in-possession and any receiver or trustee for such Grantor.
SECTION 6.08. Other Matters . To the extent that any Second Lien Authorized Representative or any Second Lien Secured Party has or acquires rights under Section 363 or Section 364 of Title 11 of the United States Code or any similar provision of any other Bankruptcy Law with respect to any of the Shared Collateral, such Second Lien Authorized
 
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Representative, on behalf of itself and its Second Lien Secured Parties, agrees not to assert any such rights without the prior written consent of the First Lien Collateral Agent, provided that if requested by the First Lien Collateral Agent, such Second Lien Authorized Representative shall timely exercise such rights in the manner requested by the First Lien Collateral Agent, including any rights to payments in respect of such rights.
SECTION 6.09. 506(c) Claims . Until the Discharge of the First Lien Obligations has occurred, each Second Lien Authorized Representative, on behalf of itself and its Second Lien Secured Parties, agrees that it will not assert or enforce any claim under Section 506(c) of Title 11 of the United States Code or any similar provision of any other Bankruptcy Law senior to or on a parity with the Liens securing the First Lien Obligations for costs or expenses of preserving or disposing of any Shared Collateral.
SECTION 6.10. Reorganization Securities . If, in any Insolvency or Liquidation Proceeding, debt obligations of the reorganized debtor secured by Liens upon any property of the reorganized debtor are distributed, pursuant to a plan of reorganization or similar dispositive restructuring plan, on account of both the First Lien Obligations and the Second Lien Obligations, then, to the extent the debt obligations distributed on account of the First Lien Obligations and on account of the Second Lien Obligations are secured by Liens upon the same assets, the provisions of this Agreement will survive the distribution of such debt obligations pursuant to such plan and will apply with like effect to the Liens securing such debt obligations.
ARTICLE VII
Reliance; etc .
SECTION 7.01. Reliance . The consent by the First Lien Secured Parties to the execution and delivery of the Second Lien Documents to which the First Lien Secured Parties have consented and all loans and other extensions of credit made or deemed made on and after the date hereof by the First Lien Secured Parties to the Parent, the Company or any Subsidiary shall be deemed to have been given and made in reliance upon this Agreement. Each Second Lien Authorized Representative, on behalf of itself and its Second Lien Secured Parties, acknowledges that it and its Second Lien Secured Parties have, independently and without reliance on the First Lien Collateral Agent, any First Lien Authorized Representative or any First Lien Secured Party, and based on documents and information deemed by them appropriate, made their own credit analysis and decision to enter into the Second Lien Documents to which they are party or by which they are bound, this Agreement and the transactions contemplated hereby and thereby, and they will continue to make their own credit decision in taking or not taking any action under the Second Lien Documents or this Agreement.
SECTION 7.02. No Warranties or Liability . Each Second Lien Authorized Representative, on behalf of itself and its Second Lien Secured Parties, acknowledges and agrees that none of the First Lien Collateral Agent, any First Lien Authorized Representative or any First Lien Secured Party has made any express or implied representation or warranty, including with respect to the execution, validity, legality, completeness, collectibility or enforceability of any of the First Lien Documents, the ownership of any Shared Collateral or the perfection or priority of any Liens thereon. The First Lien Secured Parties will be entitled to manage and
 
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supervise their respective loans and extensions of credit under the First Lien Documents in accordance with law and as they may otherwise, in their sole discretion, deem appropriate, and the First Lien Secured Parties may manage their loans and extensions of credit without regard to any rights or interests that the Second Lien Authorized Representatives and the Second Lien Secured Parties have in the Shared Collateral or otherwise, except as otherwise provided in this Agreement. None of the First Lien Collateral Agent, any First Lien Authorized Representative or any First Lien Secured Party shall have any duty to any Second Lien Authorized Representative or Second Lien Secured Party to act or refrain from acting in a manner that allows, or results in, the occurrence or continuance of an event of default or default under any agreement with the Parent, the Borrower or any Subsidiary (including the Second Lien Documents), regardless of any knowledge thereof that they may have or be charged with. Except as expressly set forth in this Agreement, the First Lien Collateral Agent, the First Lien Authorized Representatives, the First Lien Secured Parties, the Second Lien Authorized Representatives and the Second Lien Secured Parties have not otherwise made to each other, nor do they hereby make to each other, any warranties, express or implied, nor do they assume any liability to each other with respect to (a) the enforceability, validity, value or collectibility of any of the First Lien Obligations, the Second Lien Obligations or any guarantee or security which may have been granted to any of them in connection therewith, (b) any Grantor’s title to or right to transfer any of the Shared Collateral or (c) any other matter except as expressly set forth in this Agreement.
SECTION 7.03. Obligations Unconditional . All rights, interests, agreements and obligations of the First Lien Collateral Agent, the First Lien Authorized Representatives, the First Lien Secured Parties, the Second Lien Authorized Representatives and the Second Lien Secured Parties hereunder shall remain in full force and effect irrespective of:
(a) any lack of validity or enforceability of any First Lien Document or any Second Lien Document;
(b) any change in the time, manner or place of payment of, or in any other terms of, all or any of the First Lien Obligations or Second Lien Obligations, or any amendment or waiver or other modification, including any increase in the amount thereof, whether by course of conduct or otherwise, of the terms of the Bond Facility Agreement, the Credit Facilities Agreement or any other First Lien Document or of the terms of any Second Lien Document;
(c) any exchange of any security interest in any Shared Collateral or any other collateral or any amendment, waiver or other modification, whether in writing or by course of conduct or otherwise, of all or any of the First Lien Obligations or Second Lien Obligations or any guarantee thereof;
(d) the commencement of any Insolvency or Liquidation Proceeding in respect of the Parent, the Borrower or any other Grantor; or
(e) any other circumstances that otherwise might constitute a defense available to, or a discharge of, (i) the Parent, the Borrower or any other Grantor in respect of the First Lien Obligations or (ii) any Second Lien Authorized Representative or Second Lien Secured Party in respect of this Agreement.
 
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ARTICLE VIII
Miscellaneous
SECTION 8.01. Conflicts . Subject to Section 8.18, in the event of any conflict between the provisions of this Agreement and the provisions of any First Lien Document or any Second Lien Document, the provisions of this Agreement shall govern.
SECTION 8.02. Continuing Nature of this Agreement . Subject to Section 6.04, this Agreement shall continue to be effective until the Discharge of the First Lien Obligations shall have occurred. This is a continuing agreement of Lien subordination, and the First Lien Secured Parties may continue, at any time and without notice to any Second Lien Authorized Representative or Second Lien Secured Party, to extend credit and other financial accommodations and lend monies to or for the benefit of the Parent, the Borrower or any Subsidiary constituting First Lien Obligations in reliance hereon. The terms of this Agreement shall survive and continue in full force and effect in any Insolvency or Liquidation Proceeding.
SECTION 8.03. Severability . In the event any one or more of the provisions contained in this Agreement should be held invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein shall not in any way be affected or impaired thereby. The parties shall endeavor in good-faith negotiations to replace the invalid, illegal or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the invalid, illegal or unenforceable provisions.
SECTION 8.04. Waivers; Amendments; Joinder Agreements . (a) No failure or delay on the part of any party hereto in exercising any right, remedy, power or privilege hereunder shall operate as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder or under any other Security Document preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege hereunder. The rights and remedies herein expressly provided of the parties hereto are cumulative and not exclusive of any rights or remedies which they would otherwise have. No waiver of any provision of this Agreement, or consent to any departure by any party hereto herefrom shall in any event be effective unless the same shall be permitted by paragraph (b) below, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. No notice or demand on any party hereto in any case shall entitle such party to any other or further notice or demand in similar or other circumstances.
(b) Neither this Agreement nor any provision hereof may be terminated, waived, amended, supplemented or otherwise or modified (other than as supplemented pursuant to any First Lien Authorized Representative Joinder Agreement, Second Lien Authorized Representative Joinder Agreement or Grantor Joinder Agreement) except pursuant to an agreement or agreements in writing entered into by each First Lien Authorized Representative (acting in accordance with the applicable First Lien Documents) and each Second Lien Authorized Representative (acting in accordance with the applicable Second Lien Documents); provided that no such termination, waiver, amendment, supplement or modification shall amend, modify or otherwise affect the rights or obligations of any Grantor without such Grantor’s prior written consent.
 
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(c) Notwithstanding the foregoing:
(i) without the consent of any Secured Party, any First Lien Authorized Representative may become a party hereto by execution and delivery of an First Lien Authorized Representative Joinder Agreement in accordance with Section 6.18(a) of the First Lien Security Agreement and upon such execution and delivery, such First Lien Authorized Representative and the First Lien Secured Parties and First Lien Obligations of the Series for which such First Lien Authorized Representative is acting shall be subject to the terms hereof;
(ii) without the consent of any Secured Party, any Second Lien Authorized Representative may become a party hereto by execution and delivery of a Second Lien Authorized Representative Joinder Agreement in accordance with Section 8.10(b) of this Agreement and upon such execution and delivery, such Second Lien Authorized Representative and the Second Lien Secured Parties and Second Lien Obligations of the Series for which such Second Lien Authorized Representative is acting shall be subject to the terms hereof; and
(iii) without the consent of any party hereto, any Subsidiary or direct or indirect parent company of the Parent may become a party hereto by execution and delivery of a Grantor Joinder Agreement in accordance with Section 8.08 and upon such execution and delivery, such Subsidiary or direct or indirect parent company of the Parent shall be subject to the terms hereof.
SECTION 8.05. Information Concerning Financial Condition of the Parent, the Borrower and the Subsidiaries . The First Lien Collateral Agent, the First Lien Authorized Representatives, the First Lien Secured Parties, the Second Lien Authorized Representatives and the Second Lien Secured Parties shall each be responsible for keeping themselves informed of (a) the financial condition of the Parent, the Borrower and the Subsidiaries and all endorsers or guarantors of the First Lien Obligations or the Second Lien Obligations and (b) all other circumstances bearing upon the risk of nonpayment of the First Lien Obligations or the Second Lien Obligations. The First Lien Collateral Agent, the First Lien Authorized Representatives, the First Lien Secured Parties, the Second Lien Authorized Representatives and the Second Lien Secured Parties shall have no duty to advise any other party hereunder of information known to it or them regarding such condition or any such circumstances or otherwise. In the event that the First Lien Collateral Agent, any First Lien Authorized Representative, any First Lien Secured Party, any Second Lien Authorized Representative or any Second Lien Secured Party, in its sole discretion, undertakes at any time or from time to time to provide any such information to any other party, it shall be under no obligation to (i) make, and the First Lien Collateral Agent, the First Lien Authorized Representatives, the First Lien Secured Parties, the Second Lien Authorized Representatives and the Second Lien Secured Parties shall not make or be deemed to have made, any express or implied representation or warranty, including with respect to the accuracy, completeness, truthfulness or validity of any such information so provided, (ii) provide any additional information or to provide any such information on any subsequent occasion, (iii) undertake any investigation or (iv) disclose any information that, pursuant to accepted or reasonable commercial finance practices, such party wishes to maintain confidential or is otherwise required to maintain confidential.
 
26

SECTION 8.06. Subrogation . Each Second Lien Authorized Representative, on behalf of itself and its Second Lien Secured Parties, hereby waives any rights of subrogation it may acquire as a result of any payment hereunder until the Discharge of the First Lien Obligations has occurred.
SECTION 8.07. Application of Payments . Except as otherwise provided herein, all payments received by the First Lien Secured Parties may be applied, reversed and reapplied, in whole or in part, to such part of the First Lien Obligations as the First Lien Secured Parties, in their sole discretion, deem appropriate, consistent with the terms of the First Lien Documents. Except as otherwise provided herein, each Second Lien Authorized Representative, on behalf of itself and its Second Lien Secured Parties, assents to any such extension or postponement of the time of payment of the First Lien Obligations or any part thereof and to any other indulgence with respect thereto, to any substitution, exchange or release of any security that may at any time secure any part of the First Lien Obligations and to the addition or release of any other Person primarily or secondarily liable therefor.
SECTION 8.08. Additional Grantors . If any Subsidiary or direct or indirect parent company of the Parent grants a security interest pursuant to any Security Document to secure any Series of Secured Obligations, the Parent and the Borrower will, substantially concurrently therewith, cause such Subsidiary or direct or indirect parent company of the Parent, if not already a party hereto, to become a party hereto as a “Grantor”. Upon execution and delivery by the First Lien Collateral Agent, the Designated Second Lien Authorized Representative and such Subsidiary or direct or indirect parent company of the Parent of a Grantor Joinder Agreement, such Subsidiary or direct or indirect parent company of the Parent shall become a Grantor hereunder with the same force and effect as if originally named as a Grantor herein. The execution and delivery of any Grantor Joinder Agreement shall not require the consent of any other party hereto. The rights and obligations of each party hereto hereunder shall remain in full force and effect notwithstanding the addition of any new Grantor as a party to this Agreement.
SECTION 8.09. Dealings with Grantors . Upon any application or demand by the Parent, the Borrower or any other Grantor to the First Lien Collateral Agent, the Applicable First Lien Secured Parties, the Designated Second Lien Authorized Representative or the Applicable Second Lien Secured Parties to take or permit any action under any of the provisions of this Agreement or under any Security Document (if such action is subject to the provisions hereof), the Parent, the Company or such other Grantor, as appropriate, shall furnish to the Designated Second Lien Authorized Representative or the First Lien Collateral Agent a certificate of an appropriate officer (an “ Officer’s Certificate ”) stating that all conditions precedent, if any, provided for in this Agreement or such Security Document, as the case may be, relating to the proposed action have been complied with, except that in the case of any such application or demand as to which the furnishing of such documents is specifically required by any provision of this Agreement or any Security Document relating to such particular application or demand, no additional certificate or opinion need be furnished.
 
27

SECTION 8.10. Additional First Lien Obligations; Additional Second Lien Obligations . (a) On or after the date hereof and so long as such Indebtedness is permitted to be incurred under the First Lien Documents and Second Lien Documents then in effect, the Borrower may from time to time designate Indebtedness to be secured on a pari passu basis with the First Lien Obligations as First Lien Obligations under this Agreement by satisfying the conditions set forth in clauses (i) through (iv) of Section 6.18(a) of the First Lien Security Agreement.
(b) On or after the date hereof and so long as such Indebtedness is permitted to be incurred under the First Lien Documents and Second Lien Documents then in effect, the Borrower may from time to time designate Indebtedness to be secured on a second lien, subordinated basis to the First Lien Obligations as Additional Second Lien Obligations under this Agreement by satisfying the conditions set forth in clauses (i) through (iv) of this Section 8.10(b). In order for such Indebtedness (the “ New Second Lien Obligations ”) to be secured on a second lien, subordinated basis to the First Lien Obligations as Additional Second Lien Obligations under this Agreement:
(i) the Borrower shall have delivered to the First Lien Collateral Agent and the Designated Second Lien Authorized Representative (A) a certificate signed by a Responsible Officer of the Parent and the Borrower (1) identifying the New Second Lien Obligations and the initial aggregate principal amount or face amount thereof, (2) stating that the New Second Lien Obligations are designated as Additional Second Lien Obligations for purposes hereof, and (3) representing that the designation of the New Second Lien Obligations as Additional Second Lien Obligations complies with the provisions of the First Lien Documents and Second Lien Documents then in effect, and (B) true and complete copies of each of the operative agreements evidencing or governing such New Second Lien Obligations (the “ New Second Lien Documents ”), certified as being true and correct by a Responsible Officer of the Parent and the Borrower;
(ii) the representative (as determined by the First Lien Collateral Agent and the Designated Second Lien Authorized Representative) acting on behalf of the holders of the New Second Lien Obligations (the “ New Second Lien Authorized Representative ”), the First Lien Collateral Agent, the Designated Second Lien Authorized Representative and each Loan Party shall have executed and delivered a Second Lien Authorized Representative Joinder Agreement pursuant to which the New Second Lien Authorized Representative shall have become a Second Lien Authorized Representative under this Agreement, and the New Second Lien Obligations and the holders thereof (the “ New Second Lien Secured Parties ”) shall have become subject to, and bound by, this Agreement;
(iii) all filings, recordations and/or amendments or supplements to the Second Lien Security Documents necessary or desirable in the reasonable judgment of the Designated Second Lien Authorized Representative to confirm and perfect the Liens securing the New Second Lien Obligations shall have been made, executed and/or delivered (or, with respect to any such filings or recordations, acceptable provisions to perform such filings or recordings have been taken in the reasonable judgment of the Designated Second Lien Authorized Representative), and all fees and taxes in connection therewith shall have been paid (or acceptable provisions to make such payments have been taken in the reasonable judgment of the Designated Second Lien Authorized Representative); and
 
28

(iv) the New Second Lien Documents shall provide, in a manner reasonably satisfactory to the First Lien Collateral Agent and the Designated Second Lien Authorized Representative, that each New Second Lien Secured Party will be subject to and bound by the provisions of this Agreement in its capacity as a holder of the New Second Lien Obligations.
SECTION 8.11. Jurisdiction; Consent to Service of Process . The First Lien Collateral Agent and each Authorized Representative, on behalf of itself and the Secured Parties of the Series for whom it is acting, irrevocably and unconditionally:
(a) submits, for itself and its property, to the exclusive jurisdiction of any New York State court or federal court of the United States sitting in New York City, New York County, and any appellate court from any thereof, in any action or proceeding arising out of or relating to this Agreement, or for recognition or enforcement of any judgment, and agrees that all claims in respect of any such action or proceeding shall be heard and determined in such New York State Court or, to the extent permitted by law, in such federal court;
(b) consents to the service of process in any action or proceeding in such courts by the mailing thereof by any parties thereto by registered or certified mail, postage prepaid, to such Person (or its Authorized Representative) at the address specified in Section 8.16;
(c) agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law;
(d) waives, to the fullest extent it may legally and effectively do so, any objection which it may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to this Agreement in any New York State or federal court;
(e) waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of such action or proceeding in any such court; and
(f) waives, to the maximum extent not prohibited by law, any right it may have to claim or recover in any action or proceeding referred to in this Section 8.11 any special, exemplary, punitive or consequential damages.
SECTION 8.12. Notices . (a) Notices and other communications provided for herein shall be in writing and shall be delivered by hand or overnight courier service, mailed by certified or registered mail or sent by telecopy, as follows:
(i) if to the Parent, the Company or any other Grantor, to the Borrower at [•], Attention of [•] (Fax No.: [•]) (email: [•]);
 
29

(ii) if to the First Lien Collateral Agent or the Bond Facility Administrative Agent, to it at Bank of America, N.A., [•], Attention of [•] (Fax No.: [•]) (email: [•]);
(iii) if to the Credit Facilities Administrative Agent, to it at Morgan Stanley Senior Funding, Inc., [•], Attention of [•] (Fax No.: [•]) (email: [•]);
(iv) if to the Initial Second Lien Authorized Representative to it at [•], Attention of [•] (Fax No.: [•]) (email: [•]); and
(v) if to any other Authorized Representative, to it at the address set forth in the applicable First Lien Authorized Representative Joinder Agreement or Second Lien Authorized Representative Joinder Agreement.
(b) The First Lien Collateral Agent and any Authorized Representative may, in its discretion, agree to accept notices and other communications to it hereunder by electronic communications pursuant to procedures approved by it; and provided, further, that approval of such procedures may be limited to particular notices or communications.
(c) All notices and other communications given to any party hereto in accordance with the provisions of this Agreement shall be deemed to have been given on the date of receipt if delivered by hand or overnight courier service, sent by telecopy or (to the extent permitted by paragraph (b) above) electronic means or on the date five Business Days after dispatch by certified or registered mail if mailed, in each case delivered, sent or mailed (properly addressed) to such party as provided in this Section 8.12 or in accordance with the latest unrevoked direction from such party given in accordance with this Section 8.12.
(d) Any party hereto may change its address or telecopy number for notices and other communications hereunder by notice to the other parties hereto.
SECTION 8.13. Further Assurances . Each of the First Lien Collateral Agent, on behalf of itself and each First Lien Secured Party, and each Second Lien Authorized Representative, on behalf of itself and its Second Lien Secured Parties, agrees that it will take such further action and shall execute and deliver such additional documents and instruments (in recordable form, if requested) as the other parties hereto may reasonably request to effectuate the terms of, and the Lien priorities contemplated by, this Agreement.
SECTION 8.14. Governing Law . THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICTS OF LAW PROVISIONS THAT WOULD RESULT IN THE APPLICATION OF ANY OTHER LAW.
SECTION 8.15. WAIVER OF JURY TRIAL . EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT. EACH PARTY HERETO (i) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD
 
30

NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (ii) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 8.15 .
SECTION 8.16. Successors and Assigns . This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns, as well as the other Secured Parties, all of whom are intended to be bound by, and to be third party beneficiaries of, this Agreement.
SECTION 8.17. Headings . Article and Section headings used herein are for convenience of reference only, are not part of this Agreement and are not to affect the construction of, or to be taken into consideration in interpreting, this Agreement.
SECTION 8.18. Counterparts . This Agreement may be executed in two or more counterparts, each of which shall constitute an original but all of which, when taken together, shall constitute but one contract. Delivery of an executed counterpart to this Agreement by facsimile transmission or electric transmission in “.pdf’ or comparable format shall be as effective as delivery of a manually signed original.
SECTION 8.19. Authorization . By its signature, each Person executing this Agreement on behalf of a party hereto represents and warrants to the other parties hereto that it is duly authorized to execute this Agreement. The First Lien Collateral Agent represents and warrants that this Agreement is binding upon the First Lien Secured Parties. The Initial Second Lien Authorized Representative represents and warrants that this Agreement is binding upon the Initial Second Lien Secured Parties.
SECTION 8.20. First Lien Collateral Agent . It is understood and agreed that the First Lien Collateral Agent is entering into this Agreement in its capacity as First Lien Collateral Agent under the First Lien Intercreditor Agreement, and the provisions of Article VI of the First Lien Intercreditor Agreement applicable to it as collateral agent thereunder shall also apply to it as First Lien Collateral Agent hereunder.
SECTION 8.21. Provisions Solely to Define Relative Rights . (a) The provisions of this Agreement are and are intended solely for the purpose of defining the relative rights of the First Lien Secured Parties, on the one hand, and the Second Lien Secured Parties, on the other hand. None of the Parent, the Borrower, any other Loan Party or any other creditor thereof shall have any rights or obligations hereunder, except as expressly provided in this Agreement.
(b) Notwithstanding anything in this Agreement to the contrary (except to the extent contemplated by Section 5.01(a), 5.01(d) or 5.03(b)), nothing in this Agreement is intended to or will (i) amend, waive or otherwise modify the provisions of the Bond Facility Agreement, the Credit Facilities Agreement, any other First Lien Document or any Second Lien Document, or permit the Parent, the Borrower or any other Grantor to take any action, or fail to take any action, to the extent such action or failure would otherwise constitute a breach of, or default under, the Bond Facility Agreement, the Credit Facilities Agreement or any other First Lien Document or any Second Lien Document, (ii) change the relative priorities of the First Lien
 
31

Obligations or the Liens granted under the First Lien Security Documents on the Shared Collateral (or any other assets) as among the First Lien Secured Parties, (iii) otherwise change the relative rights of the First Lien Secured Parties in respect of the Shared Collateral as among such First Lien Secured Parties or (iv) obligate the Parent, the Borrower or any other Grantor to take any action, or fail to take any action, that would otherwise constitute a breach of, or default under, the Bond Facility Agreement, the Credit Facilities Agreement or any other First Lien Document or any Second Lien Document. Nothing in this Agreement is intended to or shall impair the obligations of any Loan Party, which are absolute and unconditional, to pay the First Lien Obligations and the Second Lien Obligations as and when the same shall become due and payable in accordance with their terms.
SECTION 8.22. Survival . All agreements, statements, representations and warranties made by any party hereto in this Agreement or in any certificate or other instrument delivered by any party hereto or on its behalf under this Agreement shall be considered to have been relied upon by the other parties hereto and shall survive the execution and delivery of this Agreement.
 
32

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their respective authorized officers as of the day and year first above written.

BANK OF AMERICA, N.A.,	
as First Lien Collateral Agent and Bond Facility	
Administrative Agent,	
			
	 	by	 	 	
	 		 	Name:	 		
	 		 	Title:	 		
	
MORGAN STANLEY SENIOR FUNDING, INC.,
as Credit Facilities Administrative Agent,	
			
	 	by	 	 	
	 		 	Name:	 		
	 		 	Title:	 		
	
BUFFALO GULF COAST TERMINALS LLC,
as the Parent	
			
	 	by	 	 	
	 		 	Name:	 		
	 		 	Title:	 		
	
HFOTCO LLC,
as the Borrower	
			
	 	by	 	 	
	 		 	Name:	 		
	 		 	Title:	 		
	
[OTHER GRANTORS],
as a Grantor	
			
	 	by	 	 	
	 		 	Name:	 		
	 		 	Title:	 		
				
[            ],	 		 		 		
as Initial Second Lien Authorized Representative	
			
	 	by	 	 	
	 		 	Name:	 		
	 		 	Title:	 		
 
33

ANNEX I
Grantors
Buffalo Gulf Coast Terminals LLC
HFOTCO LLC

EXHIBIT A
TO SECOND LIEN INTERCREDITOR AGREEMENT
SECOND LIEN AUTHORIZED REPRESENTATIVE JOINDER AGREEMENT
This SECOND LIEN AUTHORIZED REPRESENTATIVE JOINDER AGREEMENT, dated as of [], 20[ ] (this “ Joinder Agreement ”), is being delivered by [] (the “ New Second Lien Authorized Representative ”) pursuant to requirements of the Second Lien Intercreditor Agreement, dated as of [], 20[ ] (as amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “ Intercreditor Agreement ”), by and among BUFFALO GULF COAST TERMINALS LLC, HFOTCO LLC, the other Grantors party thereto, BANK OF AMERICA, N.A., as the First Lien Collateral Agent and as First Lien Authorized Representative for the Bond Facility Secured Parties, MORGAN STANLEY SENIOR FUNDING, INC., as First Lien Authorized Representative for the Credit Facilities Secured Parties, [], as Second Lien Authorized Representative for the Initial Second Lien Secured Parties, and each additional Authorized Representative that from time to time becomes a party thereto in accordance with Section 8.10 thereof. Capitalized terms used herein without definition shall have the meaning assigned thereto in the Intercreditor Agreement, as applicable.
RECITALS:
WHEREAS, the Borrower desires to designate the Indebtedness described in Schedule A (the “ New Second Lien Obligations ”) as Additional Second Lien Obligations under the Intercreditor Agreement, which New Second Lien Obligations will be secured on a second lien, subordinated basis to the First Lien Obligations.
WHEREAS, the Intercreditor Agreement require that the New Second Lien Authorized Representative deliver this Joinder Agreement to the First Lien Collateral Agent and the Designated Second Lien Authorized Representative; and
WHEREAS, the New Second Lien Authorized Representative has agreed to execute and deliver this Joinder Agreement in order for (a) the New Second Lien Authorized Representative to become a Second Lien Authorized Representative under the Intercreditor Agreement, (b) the New Second Lien Authorized Representative to become party to the Intercreditor Agreement and (c) the New Second Lien Obligations and the holders thereof (the “ New Second Lien Secured Parties ”) to become subject to, and bound by, the Intercreditor Agreement.
NOW, THEREFORE, it is agreed as follows:
1. In accordance with Section 8.10(b) of the Intercreditor Agreement, the New Second Lien Authorized Representative by its signature below becomes a Second Lien Authorized Representative under, and the related New Second Lien Obligations and New Second Lien Secured Parties become subject to and bound by, the Intercreditor Agreement with the same force and effect as if the New Second Lien Authorized Representative had originally been named therein as a Second Lien Authorized Representative, and the New Second Lien Authorized Representative, on behalf of itself and such New Second Lien Secured Parties, hereby agrees to all the terms and provisions of the Intercreditor Agreement applicable to it as a Second Lien Authorized Representative and to the New Second Lien Secured Parties that it represents as Additional Second Lien Secured Parties. From and after the date hereof, the New Second Lien Authorized Representative shall be a party to the Intercreditor Agreement as a Second Lien Authorized Representative thereunder as if originally a signatory thereto.

Each reference to a “ Second Lien Authorized Representative ” and an “ Authorized Representative ” in the Intercreditor Agreement shall be deemed to include the New Second Lien Authorized Representative.
2. The New Second Lien Authorized Representative represents and warrants to the First Lien Collateral Agent, the Designated Second Lien Authorized Representative and the other Secured Parties that (a) it has full power and authority to enter into this Joinder Agreement, in its capacity as [agent] [trustee], (b) this Joinder Agreement has been duly authorized, executed and delivered by it and constitutes its legal, valid and binding obligation, enforceable against it in accordance with the terms hereof and (c) the operative documents evidencing or governing the New Second Lien Obligations (the “ New Second Lien Documents ”) provide that, upon the New Second Lien Authorized Representative’s entry into this Joinder Agreement, the New Second Lien Secured Parties will be subject to and bound by the provisions of the Intercreditor Agreement as Additional Second Lien Secured Parties.
3. All communications and notices hereunder shall be in writing and given as provided in Section 8.12 of the Intercreditor Agreement. All communications and notices hereunder to the New Second Lien Authorized Representative shall be given to it at the address set forth below its signature hereto.
5. This Joinder Agreement may be executed in two or more counterparts, each of which shall constitute an original but all of which when taken together shall constitute one contract.
6. THIS JOINDER AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICTS OF LAW PROVISIONS THAT WOULD RESULT IN THE APPLICATION OF ANY OTHER LAW.
7. The provisions of Article VIII of the Intercreditor Agreement shall apply with like effect to this Joinder Agreement.
[ Signature Pages Follow ]
 
A – 2

IN WITNESS WHEREOF, each of the undersigned has caused this Joinder Agreement to be duly executed and delivered, and the certification and warranties contained herein to be made, as of the date first above written.

[NAME OF NEW SECOND LIEN AUTHORIZED	
REPRESENTATIVE], as [                 ] for the holders of	
[            ]	
		
By:	 	 	
Name:	
Title:	
	
Address for notices:	

		
	 	attention of:                                                                         	
	 	Telecopy:                                                                                	

Acknowledged and Agreed:	
	
BANK OF AMERICA, N.A.,
as First Lien Collateral Agent	
		
By:	 	 	
Name:	
Title:	
	
[            ],	
as Designated Second Lien Authorized Representative	
		
By:	 	 	
Name:	
Title:	
	
BUFFALO GULF COAST TERMINALS LLC,	
[Signature Page to Second Lien Authorized Representative Joinder Agreement]

			
By:	 	 	
Name:	
Title:	

HFOTCO LLC,	

By:	 	 	
Name:	
Title:	

[OTHER GRANTORS],	

By:	 	 	
Name:	
Title:	
[Signature Page to Second Lien Authorized Representative Joinder Agreement]

EXHIBIT B
TO SECOND LIEN INTERCREDITOR AGREEMENT
GRANTOR JOINDER AGREEMENT
This GRANTOR JOINDER AGREEMENT, dated as of [], 20[ ] (this “ Joinder Agreement ”), is being delivered by [], a [] (the “ New Grantor ”), pursuant to requirements of the Intercreditor Agreement, dated as of [], 2014 (as amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “ Intercreditor Agreement ”), by and among BUFFALO GULF COAST TERMINALS LLC, HFOTCO LLC, the other Grantors party thereto, BANK OF AMERICA, N.A., as the First Lien Collateral Agent and as First Lien Authorized Representative for the Bond Facility Secured Parties, MORGAN STANLEY SENIOR FUNDING, INC., as First Lien Authorized Representative for the Credit Facilities Secured Parties, [], as Second Lien Authorized Representative for the Initial Second Lien Secured Parties, and each additional Authorized Representative that from time to time becomes a party thereto in accordance with Section 8.10 thereof. Capitalized terms used herein without definition shall have the meaning assigned thereto in the Intercreditor Agreement.
RECITALS :
WHEREAS, Section 8.08 of the Intercreditor Agreement provides that Subsidiaries and direct or indirect parent companies of the Parent may become Grantors under the Intercreditor Agreement by execution and delivery of an instrument in the form of this Joinder Agreement; and
WHEREAS, the New Grantor is executing this Joinder Agreement in accordance with the requirements of the Intercreditor Agreement to become a Grantor under the Intercreditor Agreement in order to induce the Secured Parties to make additional loans and other extensions of credit and as consideration for loans and other extensions of credit previously made.
NOW, THEREFORE, it is agreed as follows:
1. In accordance with Section 8.08 of the Intercreditor Agreement, the New Grantor by its signature below becomes a Grantor under the Intercreditor Agreement with the same force and effect as if originally named therein as a Grantor and the New Grantor hereby (a) agrees to all the terms and provisions of the Intercreditor Agreement applicable to it as a Grantor thereunder and (b) represents and warrants that the representations and warranties made by it as a Grantor thereunder are true and correct on and as of the date hereof. Each reference to a “Grantor” in the Intercreditor Agreement shall be deemed to include the New Grantor. The Intercreditor Agreement is hereby incorporated herein by reference.
2. The New Grantor represents and warrants to the First Lien Collateral Agent and each Authorized Representative that this Joinder Agreement has been duly authorized, executed and delivered by it and constitutes its legal, valid and binding obligation, enforceable against it in accordance with its terms.

3. This Joinder Agreement may be executed in two or more counterparts, each of which shall constitute an original but all of which when taken together shall constitute one contract.
4. THIS JOINDER AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICTS OF LAW PROVISIONS THAT WOULD RESULT IN THE APPLICATION OF ANY OTHER LAW.
5. The provisions of Article VIII of the Intercreditor Agreement shall apply with like effect to this Joinder Agreement.
 
B – 2

IN WITNESS WHEREOF, each of the undersigned has caused this Joinder Agreement to be duly executed and delivered, and the certification and warranties contained herein to be made, as of the date first above written.

[NEW GRANTOR]	
		
By:	 	 	
Name:	
Title:	

Acknowledged and Agreed:	
BANK OF AMERICA, N.A.,
as First Lien Collateral Agent	

By:	 	 	
Name:	
Title:	
	
[        ],	
			
as Designated Second Lien Authorized Representative	

By:	 	 	
Name:	
Title:	
[Signature Page to Grantor Joinder Agreement]

EXHIBIT H-1
FORM OF U.S. TAX COMPLIANCE CERTIFICATE
(For Foreign Bondholders That Are Not Partnerships For U.S. Federal Income Tax Purposes)
Date:             , 20            
Bank of America, N.A.,
as Administrative Agent
Agency Management East
900 W Trade Street
NC1-026-06-03
Charlotte, NC 28255
Attention: Priscilla Baker
 
 	Re:	HFOTCO LLC – Certificate of Non-U.S. Bondholder	
Ladies and Gentlemen:
Reference is made to the Continuing Covenant Agreement, dated as of August 19, 2014 (as amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “ Continuing Covenant Agreement ”), by and among Buffalo Gulf Coast Terminals LLC, a Delaware limited liability company (the “ Parent ”), HFOTCO LLC, a Texas limited liability company (the “ Obligor ”) the Bondholders party thereto from time to time, and Bank of America, N.A., as Administrative Agent and Collateral Agent. Capitalized terms used but not otherwise defined in this certificate (this “ Certificate ”) shall have the meanings assigned to such terms in the Continuing Covenant Agreement.
Pursuant to the provisions of Section 2.13(e) of the Continuing Covenant Agreement, the undersigned hereby certifies that (i) it is the sole record and beneficial owner of the Bond(s) in respect of which it is providing this certificate, (ii) it is not a bank within the meaning of Section 881(c)(3)(A) of the Code, (iii) it is not a ten percent shareholder of the Obligor within the meaning of Section 871(h)(3)(B) of the Code and (iv) it is not a controlled foreign corporation related to the Obligor as described in Section 881(c)(3)(C) of the Code.
The undersigned has furnished the Administrative Agent and the Obligor with a certificate of its non-U.S. Person status on IRS Form W-8BEN or IRS Form W-8BEN-E. By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall promptly so inform the Obligor and the Administrative Agent, and (2) the undersigned shall have at all times furnished the Obligor and the Administrative Agent with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments.
Unless otherwise defined herein, terms defined in the Continuing Covenant Agreement and used herein shall have the meanings given to them in the Continuing Covenant Agreement.

*         *         *
IN WITNESS WHEREOF, the undersigned has duly executed and delivered this Certificate as of the date first above written.

[NAME OF BONDHOLDER]	
		
By:	 	 	
Name:	
Title:	

EXHIBIT H-2
FORM OF U.S. TAX COMPLIANCE CERTIFICATE
(For Foreign Participants That Are Not Partnerships For U.S. Federal Income Tax Purposes)
Date:             , 20            
Bank of America, N.A.,
as Administrative Agent
Agency Management East
900 W Trade Street
NC1-026-06-03
Charlotte, NC 28255
Attention: Priscilla Baker
 
 	Re:	HFOTCO LLC – Certificate of Non-U.S. Participant	
Ladies and Gentlemen:
Reference is made to the Continuing Covenant Agreement, dated as of August 19, 2014 (as amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “ Continuing Covenant Agreement ”), by and among Buffalo Gulf Coast Terminals LLC, a Delaware limited liability company (the “ Parent ”), HFOTCO LLC, a Texas limited liability company (the “ Obligor ”) the Bondholders party thereto from time to time, and Bank of America, N.A., as Administrative Agent and Collateral Agent. Capitalized terms used but not otherwise defined in this certificate (this “ Certificate ”) shall have the meanings assigned to such terms in the Continuing Covenant Agreement.
Pursuant to the provisions of Section 2.13(e) of the Continuing Covenant Agreement, the undersigned hereby certifies that (i) it is the sole record and beneficial owner of the participation in respect of which it is providing this certificate, (ii) it is not a bank within the meaning of Section 881(c)(3)(A) of the Code, (iii) it is not a ten percent shareholder of the Obligor within the meaning of Section 871(h)(3)(B) of the Code, and (iv) it is not a controlled foreign corporation related to the Obligor as described in Section 881(c)(3)(C) of the Code.
The undersigned has furnished its participating Bondholder with a certificate of its non-U.S. Person status on IRS Form W-8BEN or IRS Form W-8BEN-E. By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall promptly so inform such Bondholder in writing, and (2) the undersigned shall have at all times furnished such Bondholder with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments.
Unless otherwise defined herein, terms defined in the Continuing Covenant Agreement and used herein shall have the meanings given to them in the Continuing Covenant Agreement.

*         *         *
IN WITNESS WHEREOF, the undersigned has duly executed and delivered this Certificate as of the date first above written.

[NAME OF PARTICIPANT]	
		
By:	 	 	
Name:	
Title:	

EXHIBIT H-3
FORM OF U.S. TAX COMPLIANCE CERTIFICATE
(For Foreign Participants That Are Partnerships For U.S. Federal Income Tax Purposes)
Date:             , 20            
Bank of America, N.A.,
as Administrative Agent
Agency Management East
900 W Trade Street
NC1-026-06-03
Charlotte, NC 28255
Attention: Priscilla Baker
 
 	Re:	HFOTCO LLC – Certificate of Non-U.S. Participant	
Ladies and Gentlemen:
Reference is made to the Continuing Covenant Agreement, dated as of August 19, 2014 (as amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “ Continuing Covenant Agreement ”), by and among Buffalo Gulf Coast Terminals LLC, a Delaware limited liability company (the “ Parent ”), HFOTCO LLC, a Texas limited liability company (the “ Obligor ”) the Bondholders party thereto from time to time, and Bank of America, N.A., as Administrative Agent and Collateral Agent. Capitalized terms used but not otherwise defined in this certificate (this “ Certificate ”) shall have the meanings assigned to such terms in the Continuing Covenant Agreement.
Pursuant to the provisions of Section 2.13(e) of the Continuing Covenant Agreement, the undersigned hereby certifies that (i) it is the sole record owner of the participation in respect of which it is providing this certificate, (ii) its direct or indirect partners/members are the sole beneficial owners of such participation, (iii) with respect such participation, neither the undersigned nor any of its direct or indirect partners/members is a bank extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business within the meaning of Section 881(c)(3)(A) of the Code, (iv) none of its direct or indirect partners/members is a ten percent shareholder of the Obligor within the meaning of Section 871(h)(3)(B) of the Code and (v) none of its direct or indirect partners/members is a controlled foreign corporation related to the Obligor as described in Section 881(c)(3)(C) of the Code.
The undersigned has furnished its participating Bondholder with IRS Form W-8IMY accompanied by one of the following forms from each of its partners/members that is claiming the portfolio interest exemption: (i) an IRS Form W-8BEN, IRS Form W-8BEN-E or (ii) an IRS Form W-8IMY accompanied by an IRS Form W-8BEN from each of such partner’s/member’s beneficial owners that is claiming the portfolio interest exemption. By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall promptly so inform such Bondholder and (2) the undersigned shall have at all times furnished such Bondholder with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments.

Unless otherwise defined herein, terms defined in the Continuing Covenant Agreement and used herein shall have the meanings given to them in the Continuing Covenant Agreement.
*         *         *
IN WITNESS WHEREOF, the undersigned has duly executed and delivered this Certificate as of the date first above written.

[NAME OF PARTICIPANT]	
		
By:	 	 	
Name:	
Title:	

EXHIBIT H-4
FORM OF U.S. TAX COMPLIANCE CERTIFICATE
(For Foreign Bondholders That Are Partnerships For U.S. Federal Income Tax Purposes)
Date:             , 20            
Bank of America, N.A.,
as Administrative Agent
Agency Management East
900 W Trade Street
NC1-026-06-03
Charlotte, NC 28255
Attention: Priscilla Baker
 
 	Re:	HFOTCO LLC – Certificate of Non-U.S. Bondholder	
Ladies and Gentlemen:
Reference is made to the Continuing Covenant Agreement, dated as of August 19, 2014 (as amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “ Continuing Covenant Agreement ”), by and among Buffalo Gulf Coast Terminals LLC, a Delaware limited liability company (the “ Parent ”), HFOTCO LLC, a Texas limited liability company (the “ Obligor ”) the Bondholders party thereto from time to time, and Bank of America, N.A., as Administrative Agent and Collateral Agent. Capitalized terms used but not otherwise defined in this certificate (this “ Certificate ”) shall have the meanings assigned to such terms in the Continuing Covenant Agreement.
Pursuant to the provisions of Section 2.13(e) of the Continuing Covenant Agreement, the undersigned hereby certifies that (i) it is the sole record owner of the Bond(s) in respect of which it is providing this certificate, (ii) its direct or indirect partners/members are the sole beneficial owners of such Bond(s), (iii) with respect to the extension of credit pursuant to this Continuing Covenant Agreement or any other Bond Document, neither the undersigned nor any of its direct or indirect partners/members is a bank extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business within the meaning of Section 881(c)(3)(A) of the Code, (iv) none of its direct or indirect partners/members is a ten percent shareholder of the Obligor within the meaning of Section 871(h)(3)(B) of the Code and (v) none of its direct or indirect partners/members is a controlled foreign corporation related to the Obligor as described in Section 881(c)(3)(C) of the Code.
The undersigned has furnished the Administrative Agent and Obligor with IRS Form W-8IMY accompanied by one of the following forms from each of its partners/members that is claiming the portfolio interest exemption: (i) an IRS Form W-8BEN, IRS Form W-8BEN-E or (ii) an IRS Form W-8IMY accompanied by an IRS Form W-8BEN or W-8BEN-E from each of such partner’s/member’s beneficial owners that is claiming the portfolio interest exemption. By executing this certificate, the undersigned agrees that (1) if the information provided on this

certificate changes, the undersigned shall promptly so inform the Obligor and the Administrative Agent, and (2) the undersigned shall have at all times furnished the Obligor and the Administrative Agent with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments.
Unless otherwise defined herein, terms defined in the Continuing Covenant Agreement and used herein shall have the meanings given to them in the Continuing Covenant Agreement.
*         *         *
IN WITNESS WHEREOF, the undersigned has duly executed and delivered this Certificate as of the date first above written.

[NAME OF BONDHOLDER]	

By:	 	 	
Name:	
Title:	

Exhibit 4.5
Execution Version
CONSENT AND AMENDMENT
TO
CONTINUING COVENANT AGREEMENT
This CONSENT AND AMENDMENT dated as of June 5, 2017 (this “ Amendment ”) is by and among BUFFALO GULF COAST TERMINALS LLC (“ Parent ”), HFOTCO LLC (“ Obligor ”), BANK OF AMERICA, N.A., as administrative agent and collateral agent (the “ Administrative Agent ”), and the BONDHOLDERS signatory hereto and amends, and provides consent under, that certain Continuing Covenant Agreement dated as of August 19, 2014 (as amended, restated, extended, supplemented, modified and otherwise in effect from time to time, the “ Continuing Covenant Agreement ”) by and among Parent, Obligor, the Administrative Agent and certain persons as “Bondholders” (the “ Bondholders ”). Capitalized terms used herein without definition shall have the meanings assigned to such terms in the Continuing Covenant Agreement.
WHEREAS , the indirect owners of Parent have entered into to a Purchase and Sale Agreement, dated on or about the date hereof (as amended, modified or otherwise supplemented from time to time, the “ Purchase and Sale Agreement ”), by and among Buffalo Investor I, LP, Buffalo Investor II, LP, Alinda Infrastucture Fund II, L.P. (solely for the limited purposes specified therein), Alinda Infrastructure Parallel Fund II, L.P. (solely for the limited purposes specified therein), Beachhead I LLC (“ Buyer I ”), Beachhead II LLC (“ Buyer II ”, and together with Buyer I, the “ Buyers ”) and SemGroup Corporation;
WHEREAS , pursuant to the Purchase and Sale Agreement, the Buyers, either directly or through one or more wholly owned subsidiaries of the applicable Buyer, intend to acquire in the aggregate 100% of the membership interests of Buffalo Parent Gulf Coast Terminals LLC (the “ Acquisition ”), the immediate parent entity of Parent;
WHEREAS , the consummation of the transactions contemplated by the Purchase and Sale Agreement would constitute a Change of Control under clause (a)(i) of the definition thereof (the “ Specified Change of Control ”), and such occurrence would constitute an Event of Default under Section 7.01(l) of the Continuing Covenant Agreement;
WHEREAS , in connection with the Specified Change of Control, the Buyers have requested that the definition of “Change of Control” and certain other provisions be amended substantially contemporaneously with the Acquisition;
WHEREAS , the Bondholders party hereto, constituting the Required Bondholders, have agreed, on the terms and conditions set forth herein (i) to consent under the Continuing Covenant Agreement and related Bond Documents to the Specified Change of Control and (ii) to amend the definition of “Change of Control” and certain other provisions as noted below.
NOW THEREFORE , in consideration of the mutual agreements contained in the Continuing Covenant Agreement and herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows:
§1. Consent
§1.1. As of the Effective Date (as defined below), the Required Bondholders consent to the Specified Change of Control and agree that no Default or Event of Default shall arise under the Section 7.01(l) of the Continuing Covenant Agreement or otherwise under any Bond Document due to the Specified Change of Control.

§2. Amendments to the Continuing Covenant Agreement.
In reliance upon the representations, warranties and covenants set forth herein and effective as of the Effective Date, the Continuing Covenant Agreement shall be amended in the manner set forth in this Section 2 :
§2.1. Amendment to Section 1.01 . Section 1.01 of the Continuing Covenant Agreement shall be amended by adding the following definition, which shall read in its entirety as follows:
“ Buffalo Parent ” means Buffalo Parent Gulf Coast Terminals LLC, a Delaware limited liability company.
§2.2. Amendment to Section 1.01 . The definition of “Change of Control” appearing in Section 1.01 of the Continuing Covenant Agreement shall be amended by (i) deleting the reference to “Sponsor” therein and (ii) replacing it with “Permitted Holders” in lieu thereof.
§2.3. Amendment to Section 1.01 . Section 1.01 of the Continuing Covenant Agreement shall be amended by adding the following definition, which shall read in its entirety as follows:
“ Permitted Holders ” means (i) SemGroup Corporation or (ii) Sponsor.
§2.4. Amendment to Section 5.04(a). Section 5.04(a) shall be amended by (a) deleting each reference to “Parent” therein and replacing it with “Buffalo Parent” in lieu thereof, and (b) adding the following clause at the end thereof:
“; provided, that if, at any time, Buffalo Parent (I) ceases to directly and beneficially own 100% on a fully diluted basis of the economic and voting interests in the Equity Interests in the Parent, or (II) engages in any business or activity, or owns any assets, other than owning 100% of the economic and voting interests in the Equity Interests in the Parent and activities and assets incidental or related thereto, the financial statements required to be delivered pursuant to this Section 5.04(a) shall be the financial statements of the Parent and the Subsidiaries.”
§2.5. Amendment to Section 5.04(b). Section 5.04(b) shall be amended by (a) deleting each reference to “Parent” therein and replacing it with “Buffalo Parent” in lieu thereof, and (b) adding the following clause at the end thereof:
“; provided, that if, at any time, Buffalo Parent (I) ceases to directly and beneficially own 100% on a fully diluted basis of the economic and voting interests in the Equity Interests in the Parent, or (II) engages in any business or activity, or owns any assets, other than owning 100% of the economic and voting interests in the Equity Interests in the Parent and activities and assets incidental or related thereto, the financial statements required to be delivered pursuant to this Section 5.04(b) shall be the financial statements of the Parent and the Subsidiaries.”
 
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§2.6. Amendment to Section 5.08. Section 5.08 shall be amended by deleting the phrase “of the Parent” in the introductory clause thereof.
§2.7. Amendment to Section 5.13 . Section 5.13(a) of the Continuing Covenant Agreement shall be amended by adding the following sentence at the end thereof: “For the avoidance of doubt, the maintenance by a Permitted Holder or one or more Affiliates of a Permitted Holder of insurance policies on behalf of Parent, Obligor and the other Restricted Subsidiaries shall constitute compliance with this Section 5.13(a) if such policies otherwise satisfy the requirements specified in this Section 5.13(a).”
§2.8. Amendment to Section 6.08(g). Section 6.08(g) shall be amended by deleting the reference to “the Sponsor” therein and replacing it with “any Permitted Holder” in lieu thereof.
§2.9. Amendment to Schedule I . Schedule I of the Continuing Covenant Agreement shall be amended by restating the notices information for the Obligor and the Loan Parties in its entirety as follows:

	  	“The Obligor and the Loan	  	HFOTCO LLC	
	  	Parties:	  	1201 South Sheldon Road	
	  		  	Houston, TX 77015	
	  		  	Attention: Shaun Revere	
	  		  	Facsimile: 713-948-7553	
	  		  	Telephone: 713-948-7503	
	  		  	Email: srevere@hfotco.com	
	  		  		
	  		  	with a copy to:	
	  		  	SemGroup Corporation	
	  		  	Attention: General Counsel	
	  		  	6120 S. Yale Avenue	
	  		  	Suite 1500	
	  		  	Tulsa, OK 74136	
	  		  	Email: WGAULT@SEMGROUPCORP.COM”	
§3. Affirmation and Acknowledgment . Each of Parent and Obligor hereby ratifies and confirms all of its obligations to the Bondholders and the Administrative Agent under the Continuing Covenant Agreement and the other Bond Documents, as amended hereby, and acknowledges and agrees that the Continuing Covenant Agreement and the other Bond Documents, as amended hereby, shall remain in full force and effect in accordance with their respective terms. By signature hereto, the Parent confirms and agrees that (a) it has no defense to enforcement of the Guaranty Agreement, and that according to its terms, the Guaranty Agreement will continue in full force and effect to guaranty the Obligor’s obligations under the Bond Documents and the other amounts described in the Guaranty Agreement following execution of this Amendment and the occurrence of the Effective Date, and (b) all Liens now or hereafter held by the Collateral Agent for the benefit of the Secured Parties as security for payment of the Obligations remain in full force and effect.
§4. Representations and Warranties . Each of Parent and Obligor hereby represent and warrant to the Bondholders and the Administrative Agent as follows:
 
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(a) Prior to and after giving effect to this Amendment, the representations of the Parent and the Obligor contained in Article III of the Continuing Covenant Agreement and any other Bond Document are true and correct in all material respects on and as of the Effective Date (or, with respect to representations and warranties qualified by materiality, in all respects as of such date), except, in each case, to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct, or true and correct in all material respects, as the case may be, as of such earlier date (and except, for the avoidance of doubt, for any inaccuracy of such representations and warranties that would arise as a result of the Specified Change of Control prior to giving effect to this Amendment).
(b) The execution and delivery by Parent and Obligor of this Amendment and the performance by Parent and Obligor of its respective obligations and agreements under this Amendment, the Continuing Covenant Agreement and the other Bond Documents as amended hereby are within the organizational power and authority of Parent and Obligor, as applicable, and have been duly authorized by all necessary limited liability company or other organizational action of the Parent and the Obligor.
(c) This Amendment has been duly executed and delivered by Parent and Obligor. Each of this Amendment and the Continuing Covenant Agreement as amended hereby constitutes a legal, valid and binding obligation of the Parent and Obligor, enforceable against Parent and Obligor in accordance with their respective terms subject to applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors’ rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at law.
(d) Prior to and after giving effect to this Amendment, no Default or Event of Default exists (for the avoidance of doubt not including any Default or Event of Default that would arise as a result of the Specified Change of Control prior to giving effect to this Amendment).
§5. Conditions . The effectiveness of this Amendment is subject to the satisfaction of the following conditions precedent or concurrent (the date of satisfaction of such conditions, the “ Effective Date ”):
(a) The Administrative Agent shall have received counterparts of this Amendment duly executed and delivered by Parent, Obligor, the Administrative Agent and Bondholders constituting Required Bondholders.
(b) The Administrative Agent shall have received either (i) a fully executed copy of a consent and amendment to the HFOTCO Credit Agreement, permitting the Specified Change of Control and otherwise on terms permitted by the Bond Documents (a “ Credit Agreement Change of Control Amendment ”), or (ii) fully executed copies of the loan documents or other relevant documentation governing indebtedness that refinances the HFOTCO Credit Facilities and that, together with any related Liens, is permitted by the Bond Documents (the “ Refinancing Credit Documents ”) and permits the Specified Change of Control, in either case, certified by a Financial Officer as being complete and correct.
(c) The Administrative Agent shall have received evidence reasonably satisfactory to it of the consummation of the Acquisition prior to or substantially contemporaneously with the Effective Date.
 
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(d) The Administrative Agent shall have received favorable written opinions from Bond Counsel (i) in form and substance reasonably satisfactory to the Administrative Agent, (ii) dated the Effective Date, (iii) addressed to the Bondholder Parties and (iv) to the effect that the Acquisitions and the Specified Change of Control will not adversely affect the validity of the Bonds under state law or the exclusion from gross income of interest on the Bonds for federal income Tax purposes, and (v) covering such other customary matters as the Bondholder Parties may reasonably request.
(e) The Loan Parties have complied in all respects with Section 6 hereof (subject to the proviso to the penultimate sentence of Section 6 ).
(f) The representations and warranties set forth in Section 4 hereof shall be true and correct.
(g) All fees and expenses required to be paid on or before the date hereof in connection with this Amendment in accordance with Continuing Covenant Agreement and the fee letter dated as of the date hereof between the Parent, the Obligor and the Required Bondholders, shall have been paid.
For purposes of determining compliance with the conditions specified in this Section 5 , each Bondholder that has signed this Amendment shall be deemed to have consented to, approved, accepted or be satisfied with, each document or other matter required thereunder to be consented to, approved by or acceptable or satisfactory to a Bondholder unless the Administrative Agent shall have received written notice from such Bondholder prior to the proposed Effective Date, specifying its objection thereto. The Administrative Agent shall notify the Parent, the Obligor and the Bondholders of the Effective Date.
§6. Further actions in connection with HFOTCO Credit Documents . If (a) any of the representations, warranties, covenants or events of default (in each case, including any definitions used therein) contained in the HFOTCO Credit Documents that are substantially similar or conform to a provision in the Bond Documents are modified or amended as part of any Credit Agreement Change of Control Amendment or any other amendment to the HFOTCO Credit Documents otherwise in connection with the Acquisition on or prior to the Effective Date in a manner that is beneficial to the lenders under the HFOTCO Credit Document (or a corresponding provision is included in any Refinancing Credit Document as of the Effective Date), or any such provision that is beneficial to the lenders under the HFOTCO Credit Documents is added to the HFOTCO Credit Documents as part of any Credit Agreement Change of Control Amendment or any other amendment to the HFOTCO Credit Documents otherwise in connection with the Acquisition on or prior to the Effective Date (or a corresponding provision is included in any Refinancing Credit Document as of the Effective Date), in each case as reasonably determined by the Administrative Agent (each, an “ HFOTCO Credit Modification ”), or (b) the HFOTCO Credit Facilities are refinanced in connection with the Acquisition and any changes to the Bond Documents are required so that references to the HFOTCO Credit Documents refer to the Refinancing Credit Documents (each, a “ Reference Modification ”), (i) the Administrative Agent may request that a modification or amendment of the Bond Documents is made on substantially the same terms and conditions as such HFOTCO Credit Modification or to make such Reference Modification, as applicable, and (ii) each Loan Party shall execute any and all further documents, agreements and instruments, and take all such further actions, as are reasonably requested by the Administrative Agent to conform the corresponding provision of the Bond Documents to the HFOTCO Credit Modification or to make such Reference Modification; provided, that , the foregoing provisions as they relate to any HFOTCO Credit Modification shall not apply to any terms relating to pricing or fees or any terms or conditions that are administrative or ministerial in nature. The Obligor shall provide the Administrative Agent with draft principal documentation for
 
- 5 -

any HFOTCO Credit Modification on a timely basis and keep the Administrative Agent reasonably apprised of the status of such documentation and of the Acquisition in a manner that affords the Administrative Agent and the Bondholders a reasonable amount of time (taking into account the nature, scope and complexity of the HFOTCO Credit Modifications and the time at which each of the Obligor and the Administrative Agent first receive notice of such HFOTCO Credit Modifications) to request, negotiate and execute the applicable documentation in connection with any requested modification of the Bond Documents, and the Administrative Agent, the Bondholders and the Obligor shall cooperate to finalize any modifications to the Bond Documents required pursuant to this Section 6 in a timely manner and to execute and deliver such modifications on the Effective Date; provided that, so long as the Obligor shall have complied with its obligations under this sentence, it shall not be a condition precedent to the Effective Date that any such required modifications shall have been executed and delivered to the extent such required modifications shall not have been requested by the Administrative Agent reasonably in advance of the anticipated Effective Date; provided further that (a) any modification referred to in the preceding proviso requested on or prior to the Effective Date shall be made no later than 10 days after the Effective Date (or such later date as the Administrative Agent shall agree in its sole discretion) (the “ Compliance Date ”), and (b) failure to make any such required modification by the Compliance Date shall be deemed to be an Event of Default pursuant to Section 7.01(d) of the Continuing Covenant Agreement. In addition, the Administrative Agent and the Bondholders party hereto agree to reasonably cooperate with the Obligor at its request to enter into any Reference Modification reasonably requested by the Obligor.
§7. Miscellaneous Provisions.
§7.1. Except as otherwise expressly provided by this Amendment, all of the terms, conditions and provisions of the Continuing Covenant Agreement and the Bond Documents shall remain the same. It is declared and agreed by each of the parties hereto that the Continuing Covenant Agreement and the Bond Documents, as amended hereby, shall continue in full force and effect, and that this Amendment and the Continuing Covenant Agreement and the Bond Documents shall be read and construed as one instrument.
§7.2. THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES THEREOF (OTHER THAN SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW).
§7.3. EACH OF THE PARENT AND THE OBLIGOR IRREVOCABLY AND UNCONDITIONALLY AGREES THAT IT WILL NOT COMMENCE ANY ACTION, LITIGATION OR PROCEEDING OF ANY KIND OR DESCRIPTION, WHETHER IN LAW OR EQUITY, WHETHER IN CONTRACT OR IN TORT OR OTHERWISE, AGAINST THE BONDHOLDERS OR ANY RELATED PARTY OF THE BONDHOLDERS IN ANY WAY RELATING TO THIS AMENDMENT, THE TRANSACTIONS RELATING HERETO OR THERETO, IN ANY FORUM OTHER THAN THE COURTS OF THE STATE OF NEW YORK SITTING IN NEW YORK COUNTY AND OF THE UNITED STATES DISTRICT COURT OF THE SOUTHERN DISTRICT OF NEW YORK, AND ANY APPELLATE COURT FROM ANY THEREOF, AND EACH OF THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY SUBMITS TO THE JURISDICTION OF SUCH COURTS AND AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION, LITIGATION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH NEW YORK STATE COURT OR, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN SUCH FEDERAL COURT. EACH OF THE PARTIES HERETO AGREES THAT A FINAL
 
- 6 -

JUDGMENT IN ANY SUCH ACTION, LITIGATION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW. NOTHING IN THIS AMENDMENT OR IN ANY OTHER BOND DOCUMENT SHALL AFFECT ANY RIGHT THAT THE BONDHOLDERS MAY OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS AMENDMENT OR ANY OTHER BOND DOCUMENT AGAINST THE PARENT, THE OBLIGOR OR ITS RESPECTIVE PROPERTIES IN THE COURTS OF ANY JURISDICTION.
§7.4. This Amendment may be executed in any number of counterparts, but all such counterparts shall together constitute but one instrument. In making proof of this Amendment, it shall not be necessary to produce or account for more than one counterpart signed by each party hereto by and against which enforcement hereof is sought.
§7.5. Except as otherwise expressly provided for in this Amendment, nothing contained in this Amendment shall extend to or affect in any way any of the rights or obligations of Parent and/or Obligor, as applicable, or the Administrative Agent’s or a Bondholder’s obligations, rights and remedies.
§7.6. The provisions of this Amendment are solely for the benefit of the Parent, Obligor, the Administrative Agent and the Bondholders and no other Person shall have rights as a third party beneficiary of any of such provisions.
§7.7. This Amendment shall constitute a “Bond Document” for all purposes of the Continuing Covenant Agreement and the other Bond Documents.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY BLANK.]
 
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment as a document under seal as of the date first above written.

HFOTCO LLC	
		
By:	 	/s/ James Metcalfe	
Name:	 	James Metcalfe	
Title:	 	Authorized Representative	
	
BUFFALO GULF COAST TERMINALS LLC	
		
By:	 	/s/ James Metcalfe	
Name:	 	James Metcalfe	
Title:	 	Authorized Representative	
[Signature Page to Amendment to Continuing Covenant Agreement]

			
BANK OF AMERICA, N.A.,	
as Administrative Agent and Collateral Agent
for the Bondholders	
		
By:	 	/s/ Priscilla Baker	
Name:	 	Priscilla Baker	
Title:	 	AVP	
[Signature Page to Amendment to Continuing Covenant Agreement]

			
BANC OF AMERICA PREFERRED FUNDING CORP.,	
as Bondholder	
		
By:	 	/s/ David Stephens	
Name:	 	David Stephens	
Title:	 	Authorized Agent	
[Signature Page to Amendment to Continuing Covenant Agreement]

			
STI INSTITUTIONAL & GOVERNMENT,
INC. , as Bondholder	
		
By:	 	/s/ Yann Pirio	
Name:	 	Yann Pirio	
Title:	 	Managing Director	
[Signature Page to Amendment to Continuing Covenant Agreement]

			
COMPASS MORTGAGE CORPORATION,	
as Bondholder	

By:	 	/s/ Debbie Leal	
Name:	 	Debbie Leal	
Title:	 	SVP	
[Signature Page to Amendment to Continuing Covenant Agreement]

[BLANK PAGE RETAINED FOR FORMATTING]

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Exhibit 4.6

 
HARRIS COUNTY INDUSTRIAL DEVELOPMENT CORPORATION
and
HFOTCO LLC

LOAN AGREEMENT
Dated as of November 1, 2010

Related to
HARRIS COUNTY INDUSTRIAL DEVELOPMENT CORPORATION
MARINE TERMINAL REVENUE BONDS
(HFOTCO LLC PROJECT) SERIES 2010
NOTICE: All right, title, and interest of the Harris County Industrial Development Corporation in and to this Loan Agreement, including the Loan Payments (herein defined), the Note (herein defined) by which the rights to such Loan Payments are evidenced, and any and all security heretofore or hereafter granted or held for the payment thereof, but excluding the Indemnity Payments (herein defined), have been collaterally assigned to The Bank of New York Mellon Trust Company, National Association, as Trustee, to secure payment of the Bonds described herein.

 

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Table of Contents
 TABLE OF CONTENTS

 	 	 	  	Page	 	
PARTIES	 		  	 	1	 	
RECITALS	 		  	 	1	 	
GENERAL AGREEMENT	  	 	1	 	
	
ARTICLE I	 	
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION	 	
			
SECTION 1.01.	 	Definitions	  	 	2	 	
SECTION 1.02.	 	Action of Bondholders	  	 	7	 	
SECTION 1.03.	 	Notices, Etc.	  	 	8	 	
SECTION 1.04.	 	Form and Contents of Documents Delivered to Trustee	  	 	9	 	
SECTION 1.05.	 	Effect of Headings and Table of Contents	  	 	9	 	
SECTION 1.06.	 	Successors and Assigns	  	 	9	 	
SECTION 1.07.	 	Severability Clause	  	 	10	 	
SECTION 1.08.	 	Benefits of Loan Agreement; Assignment	  	 	10	 	
SECTION 1.09.	 	Remedies and Waivers	  	 	10	 	
SECTION 1.10.	 	Governing Law	  	 	11	 	
SECTION 1.11.	 	Term and Termination	  	 	11	 	
SECTION 1.12.	 	Amendment of Loan Agreement	  	 	11	 	
SECTION 1.13.	 	Credit Facility Provider Consents, Etc.	  	 	12	 	
	
ARTICLE II	 	
THE PROJECTS	 	
			
SECTION 2.01.	 	Borrower to Acquire, Construct, and Equip the Projects	  	 	13	 	
SECTION 2.02.	 	Borrower to Own, Operate, Possess, and Maintain the Projects	  	 	13	 	
	
ARTICLE III	 	
LOAN TO FINANCE AND REFINANCE PROJECTS	 	
			
SECTION 3.01.	 	Establishment of Project Fund	  	 	14	 	
SECTION 3.02.	 	No Security for Loan Payments	  	 	14	 	
SECTION 3.03.	 	Loan to Finance and Refinance Projects	  	 	14	 	
SECTION 3.04.	 	Terms and Payment of Loan and Note	  	 	14	 	
SECTION 3.05.	 	Purchase of Tendered Bonds By Borrower	  	 	17	 	
SECTION 3.06.	 	Borrower to Pay Certain Amounts Under Bond Indenture; Successor Agents	  	 	17	 	
SECTION 3.07.	 	Waiver of Set-Off, Recoupment, Counterclaim, and Abatement	  	 	18	 	
SECTION 3.08.	 	Recording	  	 	18	 	
	
ARTICLE IV	 	
THE BONDS	 	
			
SECTION 4.01.	 	Issuer to Issue Bonds	  	 	19	 	
SECTION 4.02.	 	Issuer to Redeem Bonds	  	 	19	 	
SECTION 4.03.	 	Conversion of Subseries, Interest Modes, and Interest Periods	  	 	19	 	
SECTION 4.04.	 	Investment Authority	  	 	19	 	
 
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TABLE OF CONTENTS
(cont’d)

 	 	 	  	Page	 	
ARTICLE V	 	
COVENANTS AND WARRANTIES	 	
			
SECTION 5.01.	 	Representations and Warranties of Issuer	  	 	20	 	
SECTION 5.02.	 	Representations and Warranties of Borrower	  	 	20	 	
SECTION 5.03.	 	Limitation on Obligations of Issuer; Reimbursement of Expenses, Charges, and Taxes	  	 	21	 	
SECTION 5.04.	 	Trustees, Directors, Officers, Employees, and Agents Exempt from Personal Liability	  	 	21	 	
SECTION 5.05.	 	Borrower to Indemnify Certain Persons	  	 	22	 	
SECTION 5.06.	 	Modification of Bonds and Bond Indentures; Limitation on Liens	  	 	23	 	
SECTION 5.07.	 	Maintenance of Tax-Exempt Status of Bonds	  	 	23	 	
SECTION 5.08.	 	To Exclude Ineligible Bonds from Tenders	  	 	26	 	
SECTION 5.09.	 	Limitations Affecting Tenders and Purchases of Bonds	  	 	26	 	
SECTION 5.10.	 	Consolidation and Merger	  	 	27	 	
SECTION 5.11.	 	Assignment	  	 	27	 	
	
ARTICLE VI	 	
CONTINUING DISCLOSURE UNDERTAKING	 	
			
SECTION 6.01.	 	Audited Financial Statements and Material Event Notices	  	 	28	 	
SECTION 6.02.	 	Filing Requirements	  	 	29	 	
SECTION 6.03.	 	Limitations, Disclaimers, and Amendments	  	 	29	 	
		
TESTIMONIUM	  	 	S-1	 	
SIGNATURES	  	 	S-1	 	
		
EXHIBIT A — DESCRIPTION OF PROJECTS	  	 	A-1	 	
EXHIBIT B — FORM OF NOTE	  	 	B-1	 	
 
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T HIS L OAN A GREEMENT , herein, as supplemented, modified, or amended in accordance with the applicable provisions hereof, referred to as this “ Loan Agreement ”) dated as of November 1, 2010, between the Harris County Industrial Development Corporation (herein referred to as the “ Issuer ”, which term includes any successor corporation under the Bond Indenture hereinafter referred to), a non-profit corporation organized with the approval of Harris County, Texas, and existing pursuant to the Development Corporation Act, Chapter 501, Texas Local Government Code, as amended, and HFOTCO LLC, a Texas limited liability company (herein referred to as the “ Borrower ”, which term includes any successors and assigns permitted hereunder),
W I T N E S S E T H :
W HEREAS , the Borrower desires that the Issuer issue its limited obligation revenue bonds and loan the proceeds thereof to the Borrower to finance or refinance costs of the Projects described herein in order that such costs may be financed at the low interest rates which prevail in the market for tax-exempt securities and, in order to induce the issuance and sale of such bonds, the Borrower agrees to the covenants herein described; and
W HEREAS , based on representations of the Borrower, the Issuer has found that the Projects are undertakings the costs of which are eligible to be paid from the proceeds of qualified Hurricane Ike disaster area bonds under Section 704, Heartland Disaster Tax Relief Act of 2008, that the financing or refinancing thereof by means of the issuance of such bonds and the loan described herein will be in furtherance of the corporate purposes of the Issuer; and
W HEREAS , the Projects are located in the Hurricane Ike disaster areas designated by the Internal Revenue Service in Notice 2008-109 and the Bonds have been designated by the Governor of Texas as “qualified Hurricane Ike disaster area bonds;” and
W HEREAS , all things have been done which are necessary to authorize the issuance of such bonds and to constitute this Loan Agreement a valid contract of the parties hereto in accordance with its terms;
N OW , T HEREFORE , for and in consideration of the premises and the mutual covenants hereinafter contained, and subject to the conditions herein set forth, the parties hereto covenant, agree, and bind themselves as follows:
*                    *                     *
 
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ARTICLE I
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 1.01. Definitions.
For all purposes of this Loan Agreement, except as otherwise expressly provided or unless the context otherwise requires:
A. The terms defined in this Article have the meanings assigned to them in this Article and include the plural as well as the singular.
B. All references in this instrument to designated “Articles”, “Sections”, “Exhibits”, and other subdivisions are to the designated Articles, Sections, Exhibits, and other subdivisions of this instrument as originally executed.
C. The words “herein”, “hereof”, and “hereunder” and other words of similar import refer to this Loan Agreement as a whole and not to any particular Article, Section, Exhibit, or other subdivision.
“Accountant” means a Person engaged in the practice of accounting who (except as otherwise expressly provided herein) may be employed by or affiliated with the Borrower.
“Act” means the Development Corporation Act, Chapter 501, Texas Local Government Code, as amended, as in force and effect on the Issue Date.
“Action” has the meaning stated in Section 1.02.
“Administration Expenses” shall mean the reasonable expenses incurred by the Issuer with respect to this Loan Agreement, the Bond Indenture and any transaction or event contemplated by this Loan Agreement or the Bond Indenture, including, without limitation, the fees and disbursements of counsel and out-of-pocket expenses of the Issuer incurred in connection with the authorization, issuance and sale of the Bonds.
“Affiliate” of any specified Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified Person. For purposes of this definition, “control” when used with respect to any specified Person means the power to direct the management and policies of such Person, directly or indirectly, whether by contract, through the ownership of voting securities or the power to appoint and remove directors or trustees, or otherwise; and the terms “controlling” and “controlled” have meanings correlative to the foregoing.
“Authorized Representative” has the meaning stated in the Bond Indenture.
“Available Money” has the meaning stated in Section 1.01 of the Bond Indenture.
“Bond Funds” means the Interest Fund, the Principal Fund, and the Redemption Fund (each as defined in Section 1.01 of the Bond Indenture).
“Bond Indenture” means that certain Bond Indenture, dated as of even date herewith, between the Issuer and The Bank of New York Mellon Trust Company, National Association, as trustee, as originally executed or as it may from time to time be supplemented, modified, or amended by one or more indentures or other instruments supplemental thereto entered into pursuant to the applicable provisions thereof.
 
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“Bondholder” has the meaning stated in Section 1.01 of the Bond Indenture.
“Bond Register” means the register maintained by the Trustee to record ownership and transfers of the Bonds.
“Bonds” has the meaning stated in Section 1.01 of the Bond Indenture.
“Borrower” means the Person named as the “Borrower” in the first paragraph of this Loan Agreement until a successor or assign shall have become such pursuant to the applicable provisions hereof, and thereafter “Borrower” shall mean such successor or assign.
“Borrower Consent”, “Borrower Order”, and “Borrower Request” mean, respectively, a written consent, direction, order, or request signed in the name of the Borrower by an Authorized Representative and delivered to the Trustee.
“Business Day” has the meaning stated in Section 1.01 of the Bond Indenture.
“Code” means the Internal Revenue Code of 1986, as amended and in force and effect on the Issue Date.
“Commercial Paper Mode” and “Commercial Paper Rate” have the respective meanings stated in Section 1.01 of the Bond Indenture.
“Computation Date” has the meaning stated in Section 1.148-1(b) of the Regulations and, until the Regulations are amended to provide otherwise, means (1) the last day of any bond year (as defined in Section 1.148-1(b) of the Regulations) preceding the fifth anniversary of the Issue Date selected by the Borrower before such fifth anniversary and, if no such date is selected by the Borrower, then the last day of such bond year on or immediately preceding such fifth anniversary, (2) each fifth anniversary of the Computation Date described in Clause (1)  or every anniversary of such Computation Date, as elected by the Borrower consistently throughout the term of the Bonds, and (3) the later of the final maturity of the Bonds or the date on which due provision for payment of all of the Bonds has been made.
“Cost” when used with respect to a Project means all costs incurred by the Issuer or the Borrower with respect to the acquisition, construction, reconstruction, improvement, and expansion, as the case may be, of such Project, whether paid or incurred prior to or after the date of this Loan Agreement, including the cost of the acquisition of all land, rights-of-way, property rights, easements, and interests; the cost of all machinery and equipment; financing charges; interest prior to and during construction and for one year after completion of construction whether or not capitalized; necessary reserve funds; the cost of estimates and of engineering and legal services, plans, specifications, surveys, and estimates of cost and of revenue; other expenses necessary or incident to determining the feasibility and practicability of acquiring, constructing, reconstructing, improving, and expanding such Project; administrative expense; the Issuer’s charges and expenses in connection with issuance of the Bonds; and such other expenses as may be necessary or incident to the acquisition, construction, reconstruction, improvement, and expansion of such Project, the placing of the same in operation, and the financing or refinancing of such Project, including the refunding of any outstanding obligations, mortgages, or advances issued, made, or given by any Person for any of the aforementioned costs.
 
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“Costs of Issuance Fund” means the fund of the Borrower so defined in Section 1.01 of the Bond Indenture.
“Credit Facility Provider” has the meaning stated in Section 1.01 of the Bond Indenture.
“Credit Facility” has the meaning stated in Section 1.01 of the Bond Indenture.
“Eligible Bonds” has the meaning stated in Section 1.01 of the Bond Indenture.
“Excluded Purchaser” has the meaning stated in Section 1.01 of the Bond Indenture.
“Governmental Obligations” has the meaning stated in Section 1.01 of the Bond Indenture.
“Gross Proceeds” means “gross proceeds” of the Bonds within the meaning of Section 1.148-1(b) of the Regulations, including:
(1) all amounts held for the credit of the Bond Funds, the Project Fund, and the Costs of Issuance Fund and allocable to the Bonds pursuant to section 148 of the Code, and
(2) all money and investments in Governmental Obligations deposited in escrow pursuant to Section 10.03 of the Bond Indenture to defease the lien of the Bond Indenture with respect to any such Bond, except money or investments so deposited which are “proceeds” of any “refunding issue” (as defined in Sections 1.148-1(b) and 1.150-1(d), respectively, of the Regulations).
“Holder” has the meaning stated in Section 1.01 of the Bond Indenture.
“Indemnity Payments” means those certain payments agreed to be made by the Borrower to the Issuer pursuant to Sections 5.03 and 5.05 .
“Interest Payment Date” for any Bond or portion thereof has the meaning stated in Section 1.01 of the Bond Indenture.
“Interest Period” has the meaning stated in Section 1.01 of the Bond Indenture.
“Investment Securities” has the meaning stated in Section 1.01 of the Bond Indenture.
“Issue Date” means the date of the authentication and delivery of the initial Bonds in exchange for the purchase price therefor.
“Issuer” means the Person named as the “Issuer” in the first paragraph of this Loan Agreement until a successor corporation shall have become such pursuant to the applicable provisions of the Bond Indenture, and thereafter “Issuer” shall mean such successor corporation.
“Issuer Consent,” “Issuer Order,” and “Issuer Request” mean, respectively, a written consent, order, or request signed in the name of the Issuer by the President or a Vice President and by the Treasurer, an Assistant Treasurer, the Secretary, or an Assistant Secretary of the Issuer and delivered to the Trustee.
“Liquidity Facility” has the meaning stated in Section 1.01 of the Bond Indenture.
 
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“Liquidity Facility Bonds” has the meaning stated in Section 1.01 of the Bond Indenture.
“Liquidity Facility Provider” has the meaning stated in Section 1.01 of the Bond indenture.
“Loan Agreement” means this instrument, as originally executed or as it from time to time may be supplemented, modified, or amended by one or more instruments supplemental hereto entered into in accordance with the applicable provisions hereof.
“Loan Payments” means those certain payments agreed to be made by the Borrower pursuant to Section 3.04 and pursuant to the Note evidencing such agreement.
“Maturity” when used with respect to any Bond means the date on which the principal of such Bond becomes due and payable as therein or in the Bond Indenture provided, whether at the Stated Maturity or by declaration of acceleration or call for redemption or otherwise, but does not include payment of the portion of the Purchase Price corresponding to principal of such Bond pursuant to Section 4.06, 4.07, 4.08, 4.09, or 4.10 of the Bond Indenture.
“Mode” has the meaning stated in Section 1.01 of the Bond Indenture.
“Mode Change Date” has the meaning specified in Section 1.01 of the Bond Indenture.
“MSRB” means the Municipal Securities Rulemaking Board.
“Note” means the promissory note made or to be made by the Borrower pursuant to Section 3.04 to evidence the obligation of the Borrower to make Loan Payments.
“Officers’ Certificate” of any Person means a certificate signed by the Chairman or Vice Chairman of the Board of Directors, the President, or a Vice President and by the Chief Financial Officer, the Treasurer, an Assistant Treasurer, the Controller, an Assistant Controller, the Secretary, or an Assistant Secretary of such Person and delivered to the Trustee.
“Opinion of Counsel” has the meaning stated in Section 1.01 of the Bond Indenture.
“Outstanding” has the meaning stated in Section 1.01 of the Bond Indenture.
“Person” has the meaning stated in Section 1.01 of the Bond Indenture.
“Project Fund” means the fund of the Borrower so defined in Section 1.01 of the Bond Indenture.
“Projects” means the projects described in Exhibit A.
“Purchase Date” has the meaning stated in Section 1.01 of the Bond Indenture.
“Purchase Fund” means the fund of the Tender Agent so defined in Section 1.01 of the Bond Indenture.
“Purchase Price” has the meaning stated in Section 1.01 of the Bond Indenture.
 
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“Rebate Amount” as of any Computation Date means the “rebate amount” with respect to the issue of which the Bonds are a part, determined in accordance with Section 1.148-3 of the Regulations.
“Rebate Calculation Date” means (1) the last Computation Date that occurs on or before the fifth anniversary of the Issue Date, (2) each subsequent Computation Date specified by Borrower Order that occurs on or before the fifth anniversary of the immediately preceding Rebate Calculation Date or, if no such Borrower Order is given, each such fifth anniversary, and (3) the final Computation Date.
“Rebate Fund” has the meaning stated in Section 1.01 of the Bond Indenture.
“Redemption Price” has the meaning stated in Section 1.01 of the Bond Indenture.
“Regulations” means the temporary or final Income Tax Regulations applicable to the Bonds issued pursuant to the Code. Any reference to a Section of the Regulations shall also refer to any successor provision to such Section hereafter promulgated by the Internal Revenue Service pursuant to the Code and applicable to the Bonds.
“Reimbursement Agreement” has the meaning stated in Section 1.01 of the Bond Indenture.
“Remarketing Agent” has the meaning stated in Section 1.01 of the Bond Indenture.
“Remarketing Agreement” has the meaning stated in Section 1.01 of the Bond Indenture.
“Securities Depository” has the meaning stated in Section 1.01 of the Bond Indenture.
“Stated Maturity” when used with respect to any Bond or any installment of interest thereon means the date specified in such Bond as the fixed date on which the principal of such Bond or the day on which such installment of interest is due and payable.
“Taxable Investment” means any Investment Security other than:
(1) Non-AMT Tax-Exempt Obligations: an obligation the interest on which is excluded from the gross income, as defined in section 61 of the Code, of the owners thereof for federal income tax purposes (or, when such obligation was issued, was purported by the evidence of such obligation to be so excluded) and which is not a preference item, as defined in section 57 of the Code, and
(2) Tax-Exempt Mutual Funds: an interest in a regulated investment company to the extent that at least 95% of the income to the holder of such interest is interest excludable from gross income under section 103(a) of the Code and is not an item of tax preference.
“Tender Agent” has the meaning stated in Section 1.01 of the Bond Indenture.
“Term Rate Mode” has the meaning stated in Section 1.01 of the Bond Indenture.
“Trustee” means the Person named as the “Trustee” in the first paragraph of the Bond Indenture until a successor Trustee shall have become such pursuant to the applicable provisions thereof, and thereafter “Trustee” shall mean such successor Trustee.
 
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“Vice President” when used with respect to any Person means any vice president thereof, whether or not designated by a number or a word added to the title.
SECTION 1.02. Action of Bondholders.
A. Bondholder Action. Any request, demand, authorization, direction, notice, consent, waiver, or other action provided by this Loan Agreement to be given or taken by the Bondholders may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by such Bondholders in person or by an agent duly appointed in writing, and, except as herein otherwise expressly provided, such action shall become effective when such instrument or instruments are delivered to the Trustee and, if hereby expressly required, to the Issuer, the Borrower, the Credit Facility Providers, the Liquidity Facility Providers, the Tender Agent, or the Remarketing Agent, as the case may be. Such instrument or instruments (and the action embodied therein and evidenced thereby) are herein sometimes referred to as the “Action” of the Bondholders signing such instrument or instruments. Proof of execution of any such instrument or of a writing appointing any such agent shall be sufficient for any purpose of this Loan Agreement and conclusive in favor of the Issuer, the Borrower, the Credit Facility Providers, the Liquidity Facility Providers, the Tender Agent, and the Remarketing Agent and (subject to Section 8.01 of the Bond Indenture) in favor of the Trustee, if made in the manner provided in this Section. So long as the Securities Depository is the Holder of all of the Bonds, no such Action of the Holder of any Bond shall be effective unless it is the Action of the Person in whose name such Bond is registered as of a record date established by the Trustee for that purpose.
B. Proof of Execution. The fact and date of the execution by any Person of any such instrument or writing may be proved by the affidavit of a witness of such execution or by the certificate of any notary public or other officer authorized by law to take acknowledgments of deeds, certifying that the individual signing such instrument or writing acknowledged to him the execution thereof. Whenever such execution is by an officer of a corporation or a limited liability company or a member of a partnership on behalf of such corporation, limited liability company or partnership, such certificate or affidavit shall also constitute sufficient proof of his authority. The fact and date of execution by any Person of any such instrument or writing shall be conclusively established for all purposes of this Loan Agreement if (1) the Trustee shall have mailed or delivered such instrument or writing to such Person (or any Bondholder for whom he purports to act as agent or proxy), at his address as shown on the Bond Register, (2) such instrument or writing shall have been returned to the Trustee bearing a signature purporting and reasonably appearing to be that of the Bondholder or a Person purporting to be his agent or proxy, and (3) the Person receiving such executed instrument or writing shall have no actual knowledge or notice of any irregularity, or of any fact or circumstance which, if substantiated, would impair the validity of such instrument or writing. The matters referred to in Clauses (1), (2), and (3)  of the preceding sentence may be evidenced by a certificate of the Trustee. The fact and date of execution of any such instrument or writing by any Person and the authority of such Person to execute the same may also be proved in any other manner which the Trustee deems sufficient. The Trustee may in any instance require further proof with respect to any of the matters referred to in this Section.
C. Proof of Ownership. The ownership of Bonds shall be proved by the Bond Register, and no beneficial or legal owner of Bonds whose ownership is not so registered shall have any right hereunder to give or take any Action with respect to the Bonds.
D. Binding Effect. Any request, demand, authorization, direction, notice, consent, waiver, or other action by a Holder of Bonds shall bind every future Holder of the same Bonds and the Holder of every obligation issued upon the transfer thereof or in exchange therefor or in lieu thereof, in respect of anything done or suffered to be done by the Trustee, the Issuer, the Borrower, any Credit Facility Provider, any Liquidity Facility Provider, the Tender Agent, and the Remarketing Agent in reliance thereon, whether or not notation of such action is made upon such Bond or obligation.
 
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SECTION 1.03. Notices, Etc.
Unless otherwise specifically provided herein, any request, demand, authorization, direction, notice, consent, waiver, Action of Bondholders, or other document by or from any Person provided or permitted by this Loan Agreement to be made upon, given or furnished to, or filed with,
A. Trustee: the Trustee shall be sufficient for every purpose hereunder if made, given, furnished, or filed in writing to or with the Trustee and received by it at its principal corporate trust office in the City of Houston, Texas, or if in writing and mailed, first-class postage prepaid, to the Trustee addressed to it at 601 Travis Street, Floor 16, Houston, Texas 77002, or, if given to the Trustee by telecopy to (713) 483-6979, in either case marked Attention: Public Finance, or at such other address or to such other number furnished in writing to such Person by the Trustee, or
B. Issuer: the Issuer shall be sufficient for every purpose hereunder if in writing and mailed, first-class postage prepaid, to the Issuer addressed to it in care of Fulbright & Jaworski L.L.P., 1301 McKinney, Suite 5100, Houston, Texas 77010-3095, Attention: President, or at any other address previously furnished in writing to the Trustee by the Issuer, or
C. Borrower: the Borrower shall be sufficient for every purpose hereunder if in writing and mailed, first-class postage prepaid, to the Borrower addressed to it at 1201 South Sheldon Road, Houston, Texas 77015, Attention: Michael Mangan, or at any other address previously furnished in writing to the Trustee by the Borrower, or
D. Credit Facility Provider: any Credit Facility Provider shall be sufficient for every purpose hereunder if provided to the address and in the manner specified in the Reimbursement Agreement to which it is a party or to such other address and in such other manner previously specified in writing to the Trustee by such Credit Facility Provider, or
E. Liquidity Facility Provider: any Liquidity Facility Provider shall be sufficient for every purpose hereunder if provided to the address and in the manner specified in the Reimbursement Agreement or Liquidity Facility to which such Liquidity Facility Provider is a party or to such other address and in such other manner previously specified in writing to the Trustee by such Liquidity Facility Provider, or
F. Tender Agent: the Tender Agent shall be sufficient for every purpose hereunder if in writing and mailed, first-class postage prepaid, to the Tender Agent addressed to it at the address and to the attention specified in Clause A of this Section or at any other address previously furnished in writing to the Trustee by the Tender Agent, or
G. Remarketing Agent: any Remarketing Agent shall be sufficient for every purpose hereunder if in writing and mailed, first-class postage prepaid, to it addressed to it at the address specified or referred to in the Bond Indenture or any other address and attention previously furnished in writing to the Trustee by such Remarketing Agent.
Where this Loan Agreement provides for notice to Bondholders of any event, such notice shall be sufficiently given (unless otherwise herein expressly provided) if in writing and mailed, first-class postage prepaid, to each Bondholder affected by such event, at the address of such Bondholder as it
 
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appears in the Bond Register, and the Credit Facility Providers not later than the latest date, and not earlier than the earliest date, prescribed for the giving of such notice. Neither the failure to mail such notice, nor any defect in any notice so mailed, to any particular Bondholder shall affect the sufficiency of such notice with respect to other Bondholders.
Where this Loan Agreement provides for notice in any manner, such notice may be waived in writing by the Person entitled to receive such notice, either before or after the event, and such waiver shall be the equivalent of such notice. Waivers of notice by Bondholders shall be filed with the Trustee, but such filing shall not be a condition precedent to the validity of any action taken in reliance upon such waiver.
SECTION 1.04. Form and Contents of Documents Delivered to Trustee.
Whenever several matters are required to be certified by, or covered by an opinion of, any specified Person, it is not necessary that all such matters be certified by, or covered by the opinion of, only one such Person, or that they be so certified or covered by only one document, but one such Person may certify or give an opinion with respect to some matters and one or more other such Persons as to other matters, and any such Person may certify or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of any Person may be based, insofar as it relates to legal matters, upon a certificate or opinion of, or representations by, counsel, unless such officer knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations with respect to the matters upon which his certificate or opinion is based are erroneous. Any Opinion of Counsel may be based, insofar as it relates to factual matters, upon a certificate or opinion of, or representations by, an officer or officers of any Person stating that the information with respect to such factual matters is in the possession of such Person unless such counsel knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations with respect to such matters are erroneous.
Whenever any Person is required to make, give, or execute two or more applications, requests, consents, certificates, statements, opinions, or other instruments under this Loan Agreement, they may, but need not, be consolidated and form one instrument.
Wherever in this Loan Agreement, in connection with any application or certificate or report to the Issuer or the Trustee, it is provided that any Person shall deliver any document as a condition of the granting of such application, or as evidence of compliance by such Person with any term hereof, it is intended that the truth and accuracy, at the time of the granting of such application or at the effective date of such certificate or report (as the case may be), of the facts and opinions stated in such document shall in such case be conditions precedent to the right of such Person to have such application granted or to the sufficiency of such certificate or report.
SECTION 1.05. Effect of Headings and Table of Contents.
The Article and Section headings herein and in the Table of Contents are for convenience only and shall not affect the construction hereof.
SECTION 1.06. Successors and Assigns.
All covenants and agreements in this Loan Agreement by the Issuer and the Borrower shall bind their respective successors and assigns, whether so expressed or not. The Borrower hereby requests that the Issuer enter into and perform its obligations under the Bond Indenture, and the Borrower hereby consents to the execution and delivery of the Bond indenture.
 
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SECTION 1.07. Severability Clause.
In case any provision in this Loan Agreement or any application hereof shall be invalid, illegal, or unenforceable, the validity, legality, and enforceability of the remaining provisions and applications shall not in any way be affected or impaired thereby.
SECTION 1.08. Benefits of Loan Agreement; Assignment.
Nothing in this Loan Agreement, expressed or implied, shall give any benefit or any legal or equitable right, remedy, or claim under this Loan Agreement to any Person, other than the parties hereto and their successors hereunder and, as third party beneficiaries, the Trustee, any separate trustee or co-trustee appointed under Section 8.06 of the Bond Indenture, the Credit Facility Providers, the Liquidity Facility Providers, the Tender Agent, the Remarketing Agents, and the Holders of the Outstanding Bonds.
The Issuer shall collaterally assign to the Trustee pursuant to the Bond Indenture all right, title, and interest of the Issuer in and to (1) this Loan Agreement, including the Loan Payments and the Note by which the rights to such Loan Payments are evidenced, (2) the rights and benefits of the Issuer under this Loan Agreement and as the registered owner of the Note, (3) any and all security heretofore or hereafter granted or held for the payment of amounts owing under this Loan Agreement or the Note, and (4) the present and continuing right to bring actions and proceedings under this Loan Agreement in respect thereof, or for the enforcement hereof, and to do any and all things which the Issuer is or may become entitled to do hereunder and thereunder, but excluding the Indemnity Payments. The Borrower hereby consents to such assignment.
SECTION 1.09. Remedies and Waivers.
A. Remedies. If a default occurs in the payment of the principal of or the interest or premium on the Bonds or the Note or in the performance of this Loan Agreement, the payment and performance may be enforced by mandamus or the appointment of a receiver in equity with power to charge and collect rents, purchase price payments, and Loan Payments and apply the revenue from the Projects in accordance with the Notes and this Loan Agreement.
No right or remedy herein conferred upon the Issuer or the Trustee or other assigns is intended to be exclusive of any other right or remedy, and every right and remedy shall, to the extent permitted by law, be cumulative and in addition to every other right and remedy given hereunder or hereafter existing at law or in equity or otherwise. Assertion or employment of any right or remedy hereunder or otherwise shall not prevent the concurrent assertion or employment of any other appropriate right or remedy.
B. No Waiver By Delay. No delay or omission by the Issuer or the Trustee or other assigns to exercise any right or remedy accruing upon a default herein shall impair any such right or remedy or constitute a waiver of any such default or an acquiescence therein. Every right and remedy given hereunder or by law to the Issuer or the Trustee or other assigns may be exercised from time to time, and as often as may be deemed expedient, by such Person.
 
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C. Waiver of Defaults. The Issuer and the Trustee or other assigns may, under the conditions and with the consent of the Holders of the specified percentage in principal amount of Outstanding Bonds described in Section 7.11 of the Bond Indenture for the waiver of past defaults thereunder, if therein required, and the consent of the Credit Facility Providers, and, except for the covenants in Sections 5.03 and 5.05, at the direction of the Credit Facility Providers shall, waive any past default hereunder and its consequences. Upon any such waiver, such default shall cease to exist and shall be deemed to have been cured for every purpose of this Loan Agreement; but no such waiver shall extend to any subsequent or other default or impair any right consequent thereon.
D. Waiver of Compliance. The Borrower may, with the written approval of the Issuer and the Credit Facility Providers, omit in any particular instance to comply with any covenant or condition set forth herein except in Sections 3.04A, 3.04D, 3.06, 3.07, and 5.07, if before or after the time for such compliance such Persons and, subject to Section 1.13, the Holders of at least a majority in principal amount of the Bonds then Outstanding which are affected by such waiver shall either waive such compliance in such instance or generally waive compliance with such covenant or condition, but no such waiver shall extend to or affect such covenant or condition except to the extent so expressly waived and, until such waiver shall become effective, the obligations of the Borrower in respect of any such covenant or condition shall remain in full force and effect.
SECTION 1.10. Governing Law.
This Loan Agreement shall be construed in accordance with and governed by the laws of the State of Texas.
SECTION 1.11 . Term and Termination.
A. Term. The term of this Loan Agreement shall commence on the Issue Date and shall terminate on the latest of (1) the last Maturity of Bonds, (2) the first date after the Issue Date on which there are no Outstanding Bonds, or (3) the date on which the Borrower has satisfied in full its obligations under or an exception to Section 5.07G, unless terminated sooner pursuant to the provisions hereof.
B. Termination. The Borrower may, at its option, terminate (1) all provisions of this Loan Agreement except the covenants contained in Sections 3.06, 5.03, 5.05, and 5.07 whenever the Bond Indenture may be released and discharged in accordance with its terms and (2) all remaining provisions hereof except Section 5.07G after the last Maturity of Bonds whenever no Bonds shall remain Outstanding.
C. Automatic Termination. This Loan Agreement shall automatically terminate and be discharged if no Bonds shall have been authenticated and delivered pursuant to the Bond Indenture within 90 days from the date hereof.
SECTION 1.12. Amendment of Loan Agreement.
The Issuer and the Borrower may from time to time enter into one or more amendments or supplements hereto for any of the purposes and on the conditions stated in Section 6.07 of the Bond Indenture, but not otherwise.
The Trustee may in its discretion determine whether or not any Bonds would be affected by any amendment or supplement and may rely on an Opinion of Counsel to such effect in doing so, and any such determination shall be conclusive upon every Holder of Bonds, whether theretofore or thereafter authenticated under the Bond Indenture. The Trustee shall not be liable for any such determination made in good faith.
 
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The Loan Agreement may not be amended or supplemented to change the rights of the Trustee, the Tender Agent, or the Remarketing Agents without the written consent of such Person.
SECTION 1.13. Credit Facility Provider Consents, Etc.
During any period of time in which no Credit Facility is in effect under the Bond Indenture and all obligations of the Borrower under the Reimbursement Agreements have been paid in full, the provisions of this Loan Agreement that relate to the Credit Facilities, the Reimbursement Agreements, and the Credit Facility Providers shall be of no force or effect.
Anything in this Loan Agreement to the contrary notwithstanding, any request, demand, authorization, direction, notice, consent, waiver, or other action provided in this Loan Agreement to be given or taken by the Holders of Bonds in any Mode to direct, consent to, or waive the exercise by the Issuer or the Trustee of any right or remedy hereunder (except in respect of Section 5.07) may be given or taken by, and only by, a written instrument signed by the Credit Facility Providers whenever a Credit Facility is in effect under the Bond Indenture that is not in default. Any such right granted hereunder to any Credit Facility Provider shall be effective only so long as it is not in default under its Credit Facility.
During any period of time in which no Liquidity Facility is in effect under the Bond Indenture and all amounts due under the Liquidity Facilities, the Reimbursement Agreements (if a Liquidity Facility Provider is a party thereto), and the Liquidity Facility Bonds shall have been paid in accordance with the terms thereof and the Bond Indenture, the provisions of this Loan Agreement that relate to the Liquidity Facilities, and the Liquidity Facility Providers shall be of no force and effect. Any rights granted hereunder to any Liquidity Facility Provider to consent to, approve, or otherwise control events, circumstances, rights, or remedies hereunder shall be of no force or effect during any period in which such Liquidity Facility Provider shall be in default its obligations under a Liquidity Facility to provide funds for the purchase of Bonds when required thereby; provided that the foregoing shall not affect any rights of the Liquidity Facility Providers as the owners of Liquidity Facility Bonds or other Bonds.
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ARTICLE II
THE PROJECTS
SECTION 2.01. Borrower to Acquire, Construct, and Equip the Projects.
Commencing with the effective date of this Loan Agreement and employing due diligence until completion of the Projects, the Borrower shall, with respect to the incomplete portions of the Projects which may be completed with proceeds of the Bonds:
A. Secure Permits: Use its best efforts to secure or extend all permits, certificates, licenses, and other approvals of governmental agencies with jurisdiction required for the acquisition, constructing, equipping, and operating of the Projects which shall not have been secured on or prior to such date or which shall thereafter expire;
B. Administer Contracts: Award and administer one or more contracts or purchase orders, and in general do any and all other things necessary, for the acquisition, constructing, equipping, and furnishing of the Projects in accordance with the Plans and Specifications therefor;
C. Acquire Land: Acquire any and all land, easements, and rights-of-way, temporary or permanent, required for construction of the Projects in accordance with the Plans and Specifications therefor or for the operation thereof; and
D. Certify Completion: Upon completion of the acquisition, constructing, equipping, and furnishing of the Projects in accordance with the Plans and Specifications therefor, certify such completion to the Issuer and the Trustee by an Officers’ Certificate of the Borrower,
The Borrower may draw upon the Project Fund and the Costs of Issuance Fund as provided in Sections 3.03 and 3.04 of the Bond Indenture to pay the Costs of the Projects and, to the extent the balance of the Project Fund is not sufficient to pay such costs in full, shall pay all costs of completing any Project for which proceeds of the Bonds have been expended from its own funds or shall arrange alternative financing therefor.
Neither the Issuer nor the Trustee shall have any responsibility for the acquisition, constructing, equipping, or furnishing of the Projects or, except as provided in Section 3.03 , any liability for any Cost of the Projects or any other cost or expense of compliance with the provisions of this Section.
SECTION 2.02. Borrower to Own, Operate, Possess, and Maintain the Projects.
Neither the Issuer nor the Trustee shall have any responsibility or liability for ownership, possession, operation, maintenance, or insurance of the Projects.
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ARTICLE III
LOAN TO FINANCE AND REFINANCE PROJECTS
SECTION 3.01. Establishment of Project Fund.
The Borrower shall establish and maintain with the Trustee under the Bond Indenture its special funds designated the “Harris County Industrial Development Corporation Marine Terminal Revenue Bonds (HFOTCO LLC Project) Series 2010 Project Fund” (herein sometimes referred to as the “ Project Fund ”) and the “Harris County Industrial Development Corporation Marine Terminal Revenue Bonds (HFOTCO LLC Project and the Harris County Industrial Development Corporation Marine Terminal Revenue Bonds (HFOTCO LLC Project) Series 2010 Costs of Issuance Fund” (herein sometimes referred to as the “ Costs of Issuance Fund ”) for the purpose of financing the Costs of the Projects. All amounts held for the credit of the Project Fund and the Costs of Issuance Fund shall be invested and disbursed solely as provided in the Bond Indenture.
SECTION 3.02. No Security for Loan Payments.
The obligation of the Borrower to make Loan Payments and pay the other amounts required to be paid by the Borrower pursuant to this Article shall be unsecured obligations and shall not be secured by any interest of the Borrower in or to the Project Fund, the Costs of Issuance Fund, or other funds held under the Bond Indenture.
SECTION 3.03. Loan to Finance and Refinance Projects.
The Issuer shall loan to the Borrower, for the purpose of financing and refinancing the Costs of the Projects, all amounts received from the sale of the Bonds pursuant to Section 4.01 immediately upon receipt. Such loan shall be made by depositing such amounts into the Project Fund and the Costs of Issuance Fund.
The principal amount of, the interest borne by, the rights and obligations of prepayment with respect to, and the other terms of such loan shall be as provided in Section 3.04.
SECTION 3.04. Terms and Payment of Loan and Note.
A. Loan Terms Generally. The loan made by the Issuer to the Borrower pursuant to Section 3.03 shall, subject to Subsections F and G of this Section,
(1) be in the same principal amount,
(2) mature on the same date or dates, in installments or otherwise, and in the same principal amounts,
(3) be subject to optional and mandatory prepayment in the same amounts, on or before the same dates, at the same prepayment premiums, if any, and under the same conditions, and
(4) bear interest for each day of accrual at the same average rate per annum payable on the same dates, including interest on overdue payments of principal (and premium, if any) and, to the extent that payment of such interest is legally enforceable, on overdue interest,
 
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in every case as the Bonds, and such loan shall not otherwise be subject to prepayment. The Loan Payments on such loan shall be payable directly to the Trustee for the account of the Issuer, at the principal corporate trust office of the Trustee, in immediately available funds, in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts. The Borrower shall repay such loan in accordance with its terms in immediately available funds by 1:00 p.m., New York, New York, time on each day on which payment is due.
B. Terms of Note. The obligation to repay the loan made pursuant to Section 3.03 shall be evidenced by a Note in the form attached hereto as Exhibit B , which shall, subject to Subdivisions F and G of this Section:
(1) be in the principal sum, bear interest at the rate or rates, and have such other terms as are described in Subsection A of this Section,
(2) be dated the Issue Date, and
(3) be payable to the Issuer, or registered assigns, and, upon authentication and delivery of the Bonds, be assigned by the Issuer to the Trustee as collateral security for payment of the Bonds.
Notwithstanding any provisions herein or in the Note to the contrary, the Issuer and its assigns agree that, on the date any Bonds are defeased pursuant to Section 10.02 of the Bond Indenture or acquired by the Borrower and delivered to the Trustee for cancellation, the principal amount owing on the Note and the loan evidenced thereby shall be reduced by the principal amount of the Bonds so defeased or acquired and canceled, less the amount payable by the Borrower to the Credit Facility Providers under the Reimbursement Agreements to reimburse draws or advances under the Credit Facilities to pay the principal of such Bonds, and the Trustee shall mark on the face of the Note the amount by which the principal of the Note has been so reduced. Failure to make such a notation by the Trustee shall not affect the Borrower’s obligations under the Note. The Issuer and its assigns further agree that the rights of the Borrower described in Subsections C and E of this Section shall supersede any contrary provisions in the Note.
C. Credit for Bond Fund Balance. Provided that no amounts are owing under the Reimbursement Agreements, the Borrower may, at its option, credit against any Loan Payment required to be made pursuant to this Section with respect to the Bonds, without duplication, any amounts held for the credit of the Bond Funds, except amounts segregated by the Trustee to pay the principal of (and premium, if any) and interest on any Outstanding Bonds with a Maturity, or the interest on any Outstanding Bonds with a Stated Maturity, at or prior to the date on which such Loan Payment is due, or held in the Redemption Fund for the redemption of Bonds, notwithstanding anything in the Note to the contrary, and to the extent of any Loan Payment in excess of the amount required by this Section to be paid giving effect to such credit, the Borrower shall, at its option and to the extent of the available balance of the Bond Funds, be entitled to reimbursement of such excess as an overpayment of such Loan Payment, but without any right to interest thereon, by causing the Trustee to pay such excess to the Credit Facility Providers (to the extent of obligations of the Borrower owing to such Persons under the Reimbursement Agreements) and (to the extent of any balance) to the Borrower.
D. Liability for Deficiency. In the event that, at 1:00 p.m., New York, New York, time, at the Maturity of any Bonds or any Interest Payment Date therefor, the available balance of the Bond Funds and the balance of the Credit Facility Fund are insufficient for any reason to pay in full the principal of (and premium, if any) and interest on the Bonds then due, the Borrower shall immediately pay to the Trustee, in immediately available funds, in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts, the amount required to cure such insufficiency.
 
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E. Credit for Credit Facility Advances. Any payment or provision for payment of principal or premium of or interest on the Bonds from proceeds of a claim made upon a Credit Facility which is a policy of municipal bond insurance shall not be deemed paid by the Borrower and shall not be credited against the obligation of the Borrower hereunder or under the Note, and no credit from any money held under the Bond Indenture from such proceeds shall reduce the amount due from the Borrower hereunder. For any other Credit Facility, the obligation of the Borrower pursuant to this Section and under the Note shall be deemed to be satisfied and discharged to the extent of any corresponding draw or claim by the Trustee under such Credit Facility applied to the payments of principal of (and premium, if any) or interest on Outstanding Bonds, except to the extent of any obligation then owing by the Borrower under the Reimbursement Agreement with the Credit Facility Provider obligated thereon.
F. No Usurious Interest. Notwithstanding any provision herein or in the Note to the contrary, in no event shall the rate of interest on the loan made pursuant to Section 3.03 or the Note exceed the maximum lawful non-usurious rate of interest, if any, which the Issuer is permitted to charge the Borrower from time to time under the laws of the State of Texas and the United States of America in effect on the Issue Date permitting the charging and collecting of the highest permissible lawful non-usurious interest rate on such loan (hereinafter referred to as “Applicable Law”), and in no event shall the aggregate of the interest on such loan and the Note, plus any other amounts paid in connection herewith which are deemed “interest” under Applicable Law in effect on the Issue Date, ever exceed the maximum amount of interest which could be lawfully charged on such loan and the Note under Applicable Law, and if any amount of interest taken or received by the Issuer or assigns shall be in excess of the maximum amount of interest which, under Applicable Law, could lawfully have been collected on such loan and the Note, then such excess shall be deemed to have been the result of a mathematical error by the Issuer, the Trustee, and the Borrower and shall be refunded promptly to the Borrower. All amounts paid or agreed to be paid in connection with the indebtedness evidenced by this Loan Agreement and the Note which under Applicable Law would be deemed “interest” shall, to the extent permitted by Applicable Law, be amortized, prorated, allocated, and spread throughout the full term of this Loan Agreement.
G. Payments Related to Insured Bonds. Notwithstanding Subsection A of this Section, if Bonds are insured by a policy of municipal bond insurance, the amounts due on the Note corresponding to payments of interest due on each Interest Payment Date and payments of principal thereof due at the Stated Maturity thereof and at each Maturity pursuant to mandatory sinking fund redemption shall be due by 10:00 a.m. New York, New York time on the Business Day immediately preceding the date such payments of principal of and interest on the Bonds are due, but without any diminution of the amount then due and payable on the Note.
H. Registration, Transfer, and Exchange of Note. The Borrower shall cause to be kept at the principal corporate trust office of the Trustee a register (herein referred to as the “Note Register”) in which, subject to such reasonable regulations as the Borrower and the Trustee may prescribe, the Borrower shall provide for the registration and transfer of the Note as herein provided. The Trustee is hereby appointed Note Registrar for the purpose of registering the Note and transfers of the Note as herein provided.
Upon surrender for transfer of the Note at the principal corporate trust office of the Trustee, the Borrower shall execute, and the Trustee shall authenticate, number (with a number not contemporaneously outstanding on the Note Register), and deliver, in the name of the designated transferee or transferees, a new Note with the same terms; provided, however , that so long as any Bond is Outstanding, the Note shall not be transferred to any Person other than a successor Trustee unless
 
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pursuant to exercise by the Trustee of a remedy provided in the Bond Indenture. The Trustee shall promptly cancel the Note surrendered upon any such transfer and thereafter shall maintain such evidence in accordance with the standard retention policies of the Trustee and thereafter shall dispose of such evidence on Borrower Order. Each Note issued upon any such transfer shall evidence a valid obligation of the Borrower and the same debt.
SECTION 3.05. Purchase of Tendered Bonds By Borrower.
A. To Purchase Generally. The Borrower shall purchase Eligible Bonds (or portions thereof equal to, and leaving untendered, any authorized denomination), as provided in Section 4.12 of the Bond Indenture, from any Person, at the Purchase Price therefor,
(1) Optional Tender: upon tender (or constructive tender pursuant to Section 4.12D of the Bond Indenture), for purchase of such Bonds or portions thereof at the option of such Person on any Business Day for such Bonds in accordance with Section 4.06 of the Bond Indenture, if notice of such tender shall have been given to the Tender Agent and the Remarketing Agent for such Bonds in strict compliance with the provisions of Section 4.06 of the Bond Indenture, and
(2) Mandatory Tender: upon tender (or constructive tender pursuant to Section 4.12D of the Bond Indenture) for purchase of such Bonds or portions thereof as required by Sections 4.07, 4.08, 4.09 (unless such Bonds or portions are in an R-FLOATs Mode), or 4.10 of the Bond Indenture on any day on which such Bonds or portions are so required to be tendered for purchase,
and in any case ( except upon constructive tender of such Bonds or portions thereof), upon delivery of any such Bond or portion thereof to be purchased to the Tender Agent on the Purchase Date therefor in accordance with Section 4.12D of the Bond Indenture, but only if the Purchase Price for such Bonds shall not have been paid by the time required by the Securities Depository to credit funds on the Purchase Date therefor from proceeds of the remarketing of Bonds pursuant to the Remarketing Agreement for such Bonds in accordance with the Bond Indenture or funds advanced by the Liquidity Facility Providers pursuant to the Liquidity Facilities for such Bonds.
B. Authority of Tender Agent. The Borrower hereby appoints the Tender Agent its agent with full authority, on behalf and in the stead of the Borrower, to pay the Purchase Price of Eligible Bonds or portions thereof to be purchased by the Borrower pursuant to this Section and delivered to the Tender Agent and to dispose of (and, to the extent required, endorse for transfer) such Bonds as provided in Sections 4.06 through 4.12 of the Bond Indenture and consents to acceptance and exercise by the Tender Agent of the other agencies therein provided.
SECTION 3.06. Borrower to Pay Certain Amounts Under Bond Indenture; Successor Agents.
The Borrower shall pay, or shall remit sufficient funds to the Issuer to pay, when due:
A. Fees and Expenses of Trustee and Agents: all fees, expenses, and other charges of the Trustee, any separate trustee or co-trustee appointed under Section 8.06 of the Bond Indenture, the Tender Agent, and the Remarketing Agents assessed in connection with the performance of the duties of such Persons under the Bond Indenture, and
 
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B. Other Bond Indenture Expenses: all other expenses or other amounts which the Issuer has agreed to pay or has agreed to cause the Borrower to pay under the Bond Indenture. The Borrower may contest the reasonableness or propriety of any such fee, expense, charge, or amount, in its own name or in the name of the Issuer. If such contest is brought in good faith, so long as the exercise by the Trustee of its lien on funds under the Bond Indenture securing such payment has been effectively stayed by agreement by the Trustee, judicial order, or otherwise, failure by the Borrower to pay the contested portion of any such fee, expense, charge, or amount shall not be considered a default hereunder during the pendency of such contest.
Whenever the Trustee, the Tender Agent, a Remarketing Agent, or the Securities Depository shall resign or be removed as such pursuant to the provisions of the Bond Indenture, the Borrower shall take all necessary action for the prompt appointment of a successor to such Person pursuant to the provisions of the Bond Indenture.
SECTION 3.07. Waiver of Set-Off, Recoupment, Counterclaim, and Abatement.
In order to induce Persons to purchase the Bonds, thereby providing funds to finance the loan described in Section 3.03 , the Borrower hereby waives, to the full extent that it may lawfully so agree, all rights of set-off, recoupment, counterclaim, and abatement against the Issuer, the Trustee, any separate trustee or co-trustee appointed under Section 8.06 of the Bond Indenture, the Tender Agent, and all Remarketing Agents with respect to the obligation of the Borrower to pay Loan Payments, the Purchase Price of Bonds pursuant to Section 3.05 , and (to the extent secured by a lien upon the funds held under the Bond Indenture and unless the exercise of such lien has been effectively stayed by agreement of the Trustee, judicial order, or otherwise) the fees, expenses, charges, and amounts described in Section 3.06 , in every case notwithstanding any breach by the Issuer of its obligations hereunder or by any other such Person of its obligations under the Bond Indenture. The Borrower may, however, except as otherwise provided in Section 3.06, exercise any other remedy it may have at law or otherwise for any such breach.
SECTION 3.08 . Recording.
The Borrower shall cause this Loan Agreement, the Bond Indenture, and all supplemental indentures and other instruments of further assurance, including all financing statements covering security interests in personal property, to be promptly recorded, registered, and filed, and to cause to be kept recorded, registered, and filed, and when necessary, to re-record, re-register, and re-file the same, all in such manner and in such places as may be required by law fully to preserve, perfect, and protect the rights of the Bondholders, the Trustee, and the Credit Facility Providers under the Bond Indenture to all property in which a security interest is granted hereunder or under the Bond Indenture.
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ARTICLE IV
THE BONDS
SECTION 4.01 . Issuer to Issue Bonds.
Upon request of the Borrower, the Issuer shall authorize and execute, and use its best efforts to sell and deliver, the Bonds under the Bond Indenture for the purpose of financing the loan described in Section 3.03 . The Bonds shall bear such terms as shall be required by the Bond Indenture; provided that no Bonds shall impose any pecuniary liability on the Issuer except to the extent of the proceeds of the Bonds, the Loan Payments (and draws under the Credit Facilities in satisfaction thereof), the balance of any funds or accounts of the Issuer established under the Bond Indenture, or such other revenues as may be provided by the Borrower.
SECTION 4.02. Issuer to Redeem Bonds.
The Issuer shall cause the Trustee to call for redemption:
A. Mandatory Redemption : such Bonds at such times as are required by the terms thereof or by the Bond Indenture to be redeemed prior to their Stated Maturity and
B. Optional Redemption : any Bonds upon Borrower Request, at the time specified in such Borrower Request, provided that such Bonds are subject to optional redemption prior to their Stated Maturity at such time pursuant to the terms thereof.
The Issuer shall cooperate fully with the Borrower in connection with the redemption of Bonds.
SECTION 4.03 . Conversion of Subseries, Interest Modes, and Interest Periods.
The Borrower may direct the redesignation of the subseries or the conversion of the Mode for the Bonds or any portion thereof or a change in the duration of Interest Periods for the Bonds or any portion thereof in a Term Rate Mode in accordance with the provisions of the Bond Indenture.
SECTION 4.04. Investment Authority.
The Issuer hereby authorizes the Borrower to direct the investment of money held under the Bond Indenture pursuant to and in accordance with Section 5.05 of the Bond Indenture.
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ARTICLE V
COVENANTS AND WARRANTIES
SECTION 5.01. Representations and Warranties of Issuer.
The Issuer represents and warrants that:
A. Due Existence : the Issuer has been duly created and validly exists pursuant to the provisions of the Act;
B. Due Authority : the Issuer has due corporate power and authority under the Act and its articles of incorporation to enter into this Loan Agreement and to observe or perform the covenants and obligations required to be observed or performed by the Issuer hereunder;
C. Binding Agreement : this Loan Agreement has been duly authorized, executed, and delivered by the Issuer and, assuming due authorization, execution, and delivery hereof by the Borrower, constitutes a legal, valid, and binding agreement of the Issuer enforceable against the Issuer in accordance with its terms;
D. No Conflict : the observance and performance by the Issuer of its obligations hereunder will not violate or conflict with its articles of incorporation or bylaws or any material provision of any material mortgage, deed of trust, indenture, or other agreement or judgment to which it is a party; and
E. S atisfaction of Act : this Loan Agreement is for the benefit of the Issuer, and the bond counsel and financial adviser participating in the issuance of the Bonds are acceptable to the Issuer.
SECTION 5.02. Representations and Warranties of Borrower.
The Borrower represents and warrants that:
A. Due Existence : the Borrower is a limited liability company duly organized and existing under the laws of the State of Texas;
B. Due Authority : the Borrower has due power and authority under its limited liability company agreement and applicable provisions of law to enter into this Loan Agreement and to observe or perform the covenants and obligations required to be observed or performed by the Borrower hereunder;
C. Binding Agreement : this Loan Agreement has been duly authorized, executed, and delivered by the Borrower and, assuming due authorization, execution, and delivery hereof by the Issuer, constitutes a legal, valid, and binding agreement of the Borrower enforceable against the Borrower in accordance with its terms;
D. No Conflict : the observance and performance by the Borrower of its obligations hereunder will not violate or conflict with the limited liability company agreement of the Borrower or any material provision of any material mortgage, deed of trust, indenture, or other agreement or judgment to which the Borrower is a party or by which the Borrower or its properties are bound;
E. Location of Projects : the Projects are and will be situated in their entirety within the territorial boundaries of Harris County, Texas; and
 
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F. Advisors Acceptable : the bond counsel and financial adviser participating in the issuance of the Bonds are acceptable to the Borrower.
SECTION 5.03. Limitation on Obligations of Issuer; Reimbursement of Expenses, Charges, and Taxes.
The Issuer shall be obligated hereunder and under the Bond Indenture solely to the extent of the proceeds of the Bonds, the Loan Payments (and draws under the Credit Facilities in satisfaction thereof), the balance of any funds or accounts of the Issuer established under the Bond Indenture, and such other revenues as may be provided by the Borrower for the purpose of paying for the costs of performance by the Issuer hereunder (including payments pursuant to Section 3.06 ), and the Issuer shall not otherwise be required to expend any funds in the observance or performance of its obligations hereunder or under the Bond Indenture. If, however, the Issuer otherwise pays or incurs any expense or charge, or is subject to any tax, as a result of the observance or performance of its obligations hereunder, or in connection with the enforcement of the obligations of the Borrower hereunder, the Borrower shall upon demand by the Issuer promptly reimburse to the Issuer all such fees, charges, and taxes in full. Without limiting the generality of the foregoing, the Borrower shall pay to or for the account of the Issuer out of money from the proceeds of the sale and delivery of the Bonds an amount equal to all of the out-of-pocket expenses and costs of the Issuer in connection with the issuance, sale, and delivery of the Bonds, including without limitation all financing, legal, financial advisory, printing, and other expenses and costs in issuing the Bonds, plus any compensation paid to any employees of the Issuer for the time such employees have spent on activities relating to the issuance, sale, and delivery of Bonds.
In addition to the foregoing, the Borrower shall pay, or cause to be paid, upon receiving a bill or statement therefor, all of the Administration Expenses of the Issuer and, on an annual basis, any of the Issuer’s actual costs reasonably and necessarily incurred in connection with the Bonds and the Projects during the previous fiscal year.
SECTION 5.04. Trustees, Directors, Officers, Employees, and Agents Exempt from Personal Liability.
This Loan Agreement is solely a corporate obligation of the Issuer and the Borrower, respectively, the Note is solely a company obligation of the Borrower, and no recourse under or upon any obligation, covenant, or agreement contained in this Loan Agreement or the Note, or for any claim based thereon or otherwise in respect thereof, shall be had against any incorporator or owner, or against any past, present, or future trustee, director, officer, or employee, as such, of the Issuer, the Borrower, or of any successor to either of them, either directly or through the Issuer or the Borrower, whether by virtue of any constitution or statute or rule of law, or by the enforcement of any assessment, judgment, or penalty, or otherwise; it being expressly understood that this Loan Agreement and the Note are solely corporate or company obligations, and that no such personal liability whatever shall attach to, or is or shall be incurred by, the incorporators, owners, trustees, directors, officers, or employees, as such, of the Issuer, the Borrower, or any successor, or any of them, because of the creation of indebtedness hereby authorized, or under or by reason of the obligations, covenants, or agreements contained in this Loan Agreement or the Note or implied therefrom, and that any and all such personal liability either at common law or equity or by constitution or statute, of, and any and all such rights and claims against, every such incorporator, owner, trustee, director, officer, or employee, as such, are hereby expressly waived and released as a condition of, and in consideration for, the execution of this Loan Agreement and the issue of the Note.
 
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SECTION 5.05. Borrower to Indemnify Certain Persons.
The Borrower shall indemnify each of the Trustee, the Tender Agent, each predecessor of either thereof, and each of their respective officers, directors, and employees for, and hold it harmless against, any loss, liability, or expense incurred without negligence, willful misconduct, or bad faith on its own part, arising out of or in connection with the acceptance, administration, or performance of its duties hereunder or under the Bond Indenture or any Liquidity Facility, including the costs and expenses of defending itself against any claim or liability in connection with the exercise or performance of any of its powers or duties hereunder or under the Bond Indenture or any Liquidity Facility.
THE BORROWER RELEASES AND SHALL DEFEND AND HOLD THE ISSUER, EACH OF THE DIRECTORS AND OFFICERS OF THE ISSUER, HARRIS COUNTY, TEXAS, AND EACH OF THE COUNTY COMMISSIONERS OF SUCH COUNTY HARMLESS FROM ANY TAX, PENALTY, FINE, COST, EXPENSE, LOSS, DAMAGE, OR OTHER LIABILITY OR CLAIM (INCLUDING ATTORNEYS’ FEES, LITIGATION AND COURT COSTS, AND OTHER EXPENSES OF THE DEFENSE THEREOF AND AMOUNTS PAID IN SETTLEMENT OR TO DISCHARGE JUDGMENTS, EXCEPT AS OTHERWISE PROVIDED IN THIS SECTION) INCURRED BY OR ASSERTED AGAINST ANY SUCH INDEMNIFIED PARTY AS A RESULT OF ANY ACTION OR OMISSION BY THE ISSUER OR SUCH INDEMNIFIED PARTY OR OTHER PERSON HEREUNDER OR UNDER THE BOND INDENTURE (OR ANY OTHER DOCUMENT EXECUTED BY SUCH PERSON IN CONNECTION WITH THE ISSUANCE OF BONDS), OR AS A RESULT OF ANY ACTION OR OMISSION OF THE BORROWER IN THE DESIGN, CONSTRUCTION, INSTALLATION, EQUIPPING, FURNISHING, OPERATION, USE, OCCUPANCY, INSURANCE, MAINTENANCE, OR OWNERSHIP OF ANY PROJECT OR THE OBSERVANCE OR PERFORMANCE OF THE OBLIGATIONS OF THE BORROWER HEREUNDER, OR IN CONNECTION WITH THE SALE, OFFERING FOR SALE, ISSUANCE, OR DELIVERY OF ANY BONDS, UNLESS ANY SUCH ACT OR OMISSION BY SUCH INDEMNIFIED PARTY BE DETERMINED BY A COURT OF COMPETENT JURISDICTION TO HAVE BEEN WILLFUL MISCONDUCT (AND WHETHER OR NOT ANY SUCH ACT OR OMISSION SHALL HAVE BEEN NEGLIGENT), IT BEING THE EXPRESS INTENT OF THE PARTIES THAT THE BORROWER SHALL SO INDEMNIFY SUCH INDEMNIFIED PARTIES EVEN AGAINST THEIR NEGLIGENT ACTS AND OMISSIONS.
The Borrower may, and if requested in writing by any indemnified party shall, undertake the defense of any claim, action, or proceeding for which such indemnified party is indemnified under this Section, and, thereafter, the Borrower shall not be liable to any such indemnified party for any legal or other expenses other than reasonable costs subsequently incurred by such indemnified party at the request of the Borrower in connection with the defense thereof, unless (1) the employment of such counsel has been specifically authorized by the Borrower, in writing, (2) the Borrower has failed after request to assume the defense and to employ counsel, or (3) the named parties to any such action (including any impleaded parties) include both an indemnified party and the Borrower, and the indemnified party shall have been advised by counsel that there may be one or more legal defenses available to it which are different from or additional to those available to the Borrower (in which case, if such indemnified party notifies the Borrower in writing that it elects to employ separate counsel at the expense of the Borrower, the Borrower shall not have the right to assume the defense of the action on behalf of such indemnified party); provided , however , that the Borrower shall not, in connection with any one action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general allegation or circumstances, be liable for the reasonable fees and expenses of more than one separate firm of attorneys for all indemnified parties, provided that any indemnified party which has been advised by counsel that there may be one or more legal defenses available to it which are different from or additional to those available to any other indemnified party shall have the right to employ separate counsel whose
 
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fees and expenses shall be paid by the Borrower. The Borrower shall be liable for no settlement of any such claim, action, or proceeding effected without its consent. Each indemnified party shall give prompt notice of any claim, action, or proceeding against it upon which such indemnified party may seek indemnity hereunder. Notwithstanding anything herein to the contrary, the indemnifications set forth herein shall survive the termination of this Loan Agreement and/or the resignation of the Trustee and the Tender Agent.
SECTION 5.06. Modification of Bonds and Bond Indentures; Limitation on Liens.
The Issuer shall not modify or supplement, or agree to the modification or supplementation of, the terms of the Bonds or the Bond Indenture except upon Borrower Consent.
SECTION 5.07. Maintenance of Tax-Exempt Status of Bonds.
A. General. The Borrower shall not take any action or omit to take any action which, if taken or omitted, respectively, would adversely affect the excludability of interest on any Bond from the gross income, as defined in section 61 of the Code, of the owner thereof for federal income tax purposes (except for any period of time during which such Bond is held by a “substantial user” of a Project or by a “related person” within the meaning of section 147(a) of the Code). The Borrower and the Issuer shall execute such amendments hereof and supplements hereto (and shall comply with the provisions thereof) as may, in the Opinion of Counsel, be necessary to preserve or perfect such exclusion. The Borrower shall comply with each specific covenant in this Section at all times prior to the last Maturity of the Bonds (and, in the case of Subsection G of this Section, until compliance therewith in full), unless and until there shall have been delivered to the Trustee and the Issuer an Opinion of Counsel to the effect that failure to comply with such covenant, either generally or to the extent stated therein, shall not adversely affect the excludability of interest on any Bond from the gross income, as defined in section 61 of the Code, of the owner thereof for federal income tax purposes (except for any period of time during which such Bond is held by a “substantial user” of a Project or by a “related person” within the meaning of section 147(a) of the Code), and thereafter such covenant shall no longer be binding upon the Borrower, generally or to such extent as the case may be, anything in any other Subsection of this Section to the contrary notwithstanding.
B. Representations.
(1) General. All representations, warranties, and certifications made by the Borrower in connection with the delivery of the Bonds on the Issue Date, including, but not limited to, those representations, warranties, and certifications contained in any Tax Letter of Representation executed by the Borrower, or in any requisition delivered to the Trustee requesting or directing the disbursement of money from the Project Fund or the Costs of Issuance Fund, are and shall be true, correct, and complete in all material respects.
(2) Maturity of Bonds. The weighted average maturity, calculated in accordance with section 147(b) of the Code, of the Bonds does not exceed 120 percent of the average reasonably expected economic life of the Projects to be financed with proceeds of the Bonds, calculated in accordance with section 147(b) of the Code.
(3) Storm Loss. The Borrower suffered a loss in a trade or business attributable to Hurricane Ike.
 
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C. Prohibition on Certain Uses. The Borrower shall not use or permit the use of any proceeds of the Bonds or any income from the investment thereof:
(1) Prohibited Facilities : to provide any movable fixture or equipment, airplane, skybox or other private luxury box, health club facility, private or commercial golf course, country club, massage parlor, hot tub facility, suntan facility, racetrack or other facility primarily used for gambling, or store the principal business of which is the sale of alcoholic beverages for consumption off premises, or
(2) Costs of Issuance : to pay or otherwise finance costs of issuance of the Bonds ( e.g. , underwriting compensation, trustee and rating agency fees, printing costs, Issuer fees, and fees and expenses of counsel) in an amount which exceeds 2% of the proceeds from the sale of the Bonds.
The Borrower shall not requisition funds from the Project Fund in a manner that would cause the representation made in Subsection B(2) of this Section to become untrue.
D. Not to Cause Classification as Arbitrage Bonds or Hedge Bonds. The Borrower shall not (and shall not direct or permit the Trustee to) invest, and shall not take any other action or omit to take any other action with respect to, the Gross Proceeds of the Bonds or any amounts expected to be used to pay the principal thereof or the interest thereon which, if directed, permitted, taken, or omitted, respectively, would cause any Bond to be classified as an “arbitrage bond” within the meaning of section 148 of the Code or a “hedge bond” within the meaning of section 149 of the Code.
E. No Federal Guarantees, Etc. Except to the extent permitted in section 149(b) of the Code and the Regulations and rulings thereunder, the Borrower shall not take or omit to take any action which would cause the Bonds to be federally guaranteed within the meaning of section 149(b) of the Code and the Regulations and rulings thereunder.
F. No Instruction to Divert Arbitrage Profits or Invest at Guaranteed Yield. The Borrower shall not direct, instruct, or permit the Trustee to invest any Gross Proceeds of the Bonds in any Taxable Investments;
(1) Off Market : for which there is not an established market (except obligations purchased from the United States Treasury) or otherwise enter into any transaction that reduces the amount required to be paid to the United States pursuant to Subsection G of this Section because such transaction results in a smaller profit or a larger loss than would have resulted had the yield on the Bonds or such investment not been relevant to either party, or
(2) Hedge : in an amount which exceeds 50% of such Gross Proceeds if such Taxable Investments assure a substantially guaranteed yield for four years or more.
G. To Rebate Arbitrage Profits.
(1) To Deliver Documents and Money on Computation Dates. The Borrower shall deliver to the Trustee, within 55 days after each Computation Date,
(a) Statement of Rebate Amount and Income : a statement, signed by an Accountant, stating (i) the Rebate Amount for the Bonds as of such Computation Date, and (ii) the minimum portion thereof which must be remitted to the United States Treasury in respect of such Computation Date to satisfy the requirements of Section 1.148-3(f) of the Regulations in respect of the Bonds,
 
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(b) Rebate Payment : either (i) an amount which, together with the amount then held for the credit of the Rebate Fund, is equal to the amount then elected by the Borrower to be paid by the Issuer in respect of such Computation Date pursuant to Section 5.06E of the Bond Indenture, which aggregate amount shall not be less than the minimum amount specified in such Accountant’s statement, or (ii) a Borrower Order to transfer from the Project Fund to the Rebate Fund an amount which does not exceed the balance of such fund and which, together with the amount then held for the credit of the Rebate Fund, is equal to the amount specified in the immediately preceding Clause (i) , and
(c) IRS Forms : an Internal Revenue Service Form 8038-T completed as of such Computation Date or such other form as may be required to be filed by the Regulations.
(2) To Correct Underpayments. If the Borrower shall discover or be notified as of any date that any payment made to the United States Treasury pursuant to Section 5.06E of the Bond Indenture shall have failed to satisfy any requirement of Section 1.148-3 of the Regulations (whether or not such failure shall be due to any default by the Borrower, the Issuer, or the Trustee), the Borrower shall (a) deliver to the Trustee a brief written explanation of such failure and any basis for concluding that such failure was not due to willful neglect and (b) pay to the Trustee (for deposit to the Rebate Fund) and cause the Trustee to pay to the United States Treasury from the Rebate Fund, within 180 days after such discovery or notice, the correct amount in respect thereof, interest thereon, and any penalty imposed under Section 1.148-3(h) of the Regulations.
(3) Preservation of Accounting Records. The Borrower shall retain all of its accounting records relating to the Bond Funds, the Project Fund, the Costs of Issuance Fund, and the Rebate Fund, and all calculations made in preparing the statements described in Subsection G(1) of this Subsection, for at least six years after the later of the final Maturity of the Bonds or the first date on which no Bonds are Outstanding.
(4) Elections. The Issuer hereby authorizes the Borrower to exercise, on behalf of the Issuer, any election in respect of the Bonds pursuant to the Regulations, including the election of Computation Dates, and the Issuer will cooperate with the Borrower and execute any form or statement required by such Regulations to perfect any such election. The Issuer shall maintain any such election which is provided to it as well as this Loan Agreement as part of the official transcript of proceedings relating to the issuance of the Bonds until six years after the final Computation Date.
(5) Exemption from Rebate. If the Borrower shall deliver to the Trustee, on or before the first Rebate Calculation Date, either (1) an Officers’ Certificate of the Borrower, signed by an Accountant, stating that all Gross Proceeds of the Bonds were expended within six months after the Issue Date, excluding Gross Proceeds credited to the Bond Fund, if any, or (2) both an Officers’ Certificate of the Borrower, signed by an Accountant, stating the purposes for which Gross Proceeds of the Bonds (other than Gross Proceeds in the Bond Fund) have been expended, the dates of such expenditures, and the amounts so expended and an Opinion of Counsel, given in reliance upon such Officers’ Certificate, stating that section 148(f)(2) of the Code does not apply to Gross Proceeds of the Bonds, then in either such case the provisions of this Subsection G shall be suspended until such time, if ever, as such provisions are reinstated in accordance with this Subsection G(5) . If, more than six months after the Issue Date or the date of either such Officers’ Certificate, Gross Proceeds of the Bonds (other than amounts credited to the Bond Funds) exist, the Borrower shall promptly deliver to the Trustee an Officers’ Certificate of the Borrower stating such fact, and the provisions of this Subsection G shall be reinstated, but only with respect to such Gross Proceeds.
 
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H. To Provide Information for Form 8038. The Borrower shall timely and accurately provide to the Issuer all information required by section 149 of the Code to be filed with respect to the Bonds.
I. Qualified Project Costs. At least 95% of the net proceeds of the Bonds shall be used for the acquisition, construction, reconstruction, and renovation of nonresidential real property located in a Hurricane Ike disaster area for which the person using the property suffered a loss in a trade or business attributable to Hurricane Ike or is a person designated by the Governor of Texas as a person carrying on a trade or business replacing a trade or business with respect to which another person suffered such a loss.
J. Limitation on Land Acquisition. No more than 25% of the net proceeds of the Bonds shall be used for the acquisition of land or an interest therein, other than as permitted under Section 147(c) of the Code and the regulations and rulings thereunder.
K. Limitation on Acquisition of Existing Property. Other than as permitted in Section 147(d) of the Code and the regulations and rulings thereunder, no portion of the net proceeds of the Bonds shall be used for the acquisition of any property or an interest therein unless the first use of such property is pursuant to such acquisition (within the meaning of Section 147(d) of the Code and the regulations and rulings thereunder).
L. Records. Until four years after the final Maturity of the Bonds, the Borrower shall preserve and maintain such records as may be required to establish the accuracy of all representations and warranties and compliance with all covenants in this Section throughout the full term of this Agreement.
SECTION 5.08. To Exclude Ineligible Bonds from Tenders.
The Borrower and the Issuer shall give all notices in the manner and by the time required by the Securities Depository or any of its direct or indirect participants to exclude Bonds legally or beneficially owned by such Persons from tenders of Bonds permitted or required by Section 4.06 , 4.07 , 4.08 , 4.09 , or 4.10 of the Bond Indenture.
SECTION 5.09. Limitations Affecting Tenders and Purchases of Bonds.
Neither the Issuer nor the Borrower will lend, contribute, or otherwise advance funds to any Person for the purchase of Bonds tendered for purchase in accordance with Section 4.06, 4.07, 4.08, 4.09, or 4.10 of the Bond Indenture, if such Person would be an Excluded Purchaser if all relevant facts were known to the Trustee and the Tender Agent, and the Issuer shall not purchase any such Bonds.
If, pursuant to any Credit Facility, Reimbursement Agreement, or Liquidity Facility, the Borrower is obligated to reimburse any Credit Facility Provider or Liquidity Facility Provider for amounts claimed or drawn under a Credit Facility or Liquidity Facility, respectively, to pay principal of (and premium, if any) or interest on Bonds or the Purchase Price of tendered Bonds, the Borrower shall make each such reimbursement only after such Credit Facility Provider or Liquidity Facility Provider has disbursed such amount with respect to which such reimbursement is made.
 
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The Borrower shall not purchase (and shall not permit any Affiliate of the Borrower or any nominee or other Person acting for the account of the Borrower or an Affiliate of the Borrower to purchase) any Bonds tendered for purchase in accordance with Section 4.06, 4.07, 4.08, 4.09, or 4.10 of the Bond Indenture, except in accordance with Section 3.05.
SECTION 5.10. Consolidation and Merger.
The Borrower covenants that during the term of this Loan Agreement it will maintain its existence and will not transfer all or substantially all of its assets to, and will not consolidate with or merge into, another Person; provided that the Borrower may consolidate with or merge into another entity (i.e., an entity organized and existing under the laws of one of the states of the United States or the District of Columbia), or transfer to another domestic entity all or substantially all of its assets, and may thereafter dissolve, if the surviving, resulting or transferee entity, as the case may be, is the Borrower or a domestic entity which (1) is qualified to do business in the State of Texas, (2) irrevocably and unconditionally assumes in writing (herein referred to as the “ Assumption Agreement ”) all of the obligations of the Borrower under this Loan Agreement, and (3) shall have, concurrently with such transaction, delivered to the Issuer and the Trustee an Opinion of Counsel to the effect that such entity has full power and authority to execute and deliver the Assumption Agreement, that the Assumption Agreement has been duly authorized, executed, and delivered by such entity and is the legal, valid, and binding obligation of such entity, enforceable against such entity in accordance with its terms (except as enforcement thereof may be limited by bankruptcy or insolvency or other laws affecting creditors’ rights generally), and that such consolidation, merger, sale, or other transfer complies with this Loan Agreement. If any consolidation, merger, sale, or other transfer is made as provided in this Section, the provisions of this Section shall continue in full force and effect, and no further consolidation, merger, sale, or other transfer shall be made except in compliance with the provisions of this Section.
SECTION 5.11. Assignment.
The Borrower may assign its interest in this Loan Agreement in whole or in part, provided, however, that no assignment shall relieve the Borrower from primary liability for any of its obligations hereunder, and without limiting the generality of the foregoing, in the event of any such assignment the Borrower shall continue to remain primarily liable for its payments specified herein and for performance and observance of the other covenants and agreements on its part herein provided. The Borrower may also assign its interest in this Loan Agreement in connection with a consolidation with or merger into another domestic entity, or the sale or transfer of all or substantially all of its assets as an entirety to another domestic entity, if such transaction complies with the requirements of Section 5.10 and the last sentence of this Section. Anything in this Loan Agreement notwithstanding, no assignment of the Borrower’s interest in this Loan Agreement shall be effective unless the Borrower shall, on or prior to the effective date of any such assignment, furnish or cause to be furnished to the Issuer and the Trustee notice of such assignment, together with an Opinion of Counsel to the effect that such assignment is permitted by the Act and the Bond Indenture and will not adversely affect any exclusion of the interest on any Bond from the gross income, as defined in section 61 of the Code, of the owner thereof for federal income tax purposes (except for any period of time during which such Bond is held by a “substantial user” of a Project or a “related person” within the meaning of section 147(a) of the Code).
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ARTICLE VI
CONTINUING DISCLOSURE UNDERTAKING
SECTION 6.01. Audited Financial Statements and Material Event Notices.
A. Annual Reports. The Borrower shall provide annually to the MSRB, within six months after the end of each fiscal year of the Borrower, audited financial statements of the Borrower for such fiscal year prepared in accordance with generally accepted accounting principles.
If the Borrower changes its fiscal year, the Borrower will notify the MSRB of the change (and of the date of the new fiscal year end) prior to the next date by which the Borrower otherwise would be required to provide financial information and operating data pursuant to this Section.
B. Material Events Notices. The Borrower shall provide notice of any of the following events with respect to the Bonds to the MSRB in a timely manner and not more than 10 business days after occurrence of the event:
(1) Principal and interest payment delinquencies;
(2) Non-payment related defaults, if material;
(3) Unscheduled draws on debt service reserves reflecting financial difficulties;
(4) Unscheduled draws on credit enhancements reflecting financial difficulties;
(5) Substitution of credit or liquidity providers, or their failure to perform;
(6) Adverse tax opinions, the issuance by the Internal Revenue Service of proposed or final determinations of taxability, Notices of Proposed Issue (IRS Form 5701-TEB), or other material notices or determinations with respect to the tax-exempt status of the Bonds, or other material events affecting the tax status of the Bonds;
(7) Modifications to rights of holders of the Bonds, if material;
(8) Bond calls, if material, and tender offers;
(9) Defeasances;
(10) Release, substitution, or sale of property securing repayment of the Bonds, if material;
(11) Rating changes;
(12) Bankruptcy, insolvency, receivership, or similar event of the Borrower, which shall occur as described below;
(13) The consummation of a merger, consolidation, or acquisition involving the Borrower or the sale of all or substantially all of its assets, other than in the ordinary course of business, the entry into of a definitive agreement to undertake such an action or the termination of a definitive agreement relating to any such actions, other than pursuant to its terms, if material; and
 
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(14) Appointment of a successor or additional trustee or the change of name of a trustee, if material.
For these purposes, any event described in the immediately preceding paragraph (12) is considered to occur when any of the following occur: the appointment of a receiver, fiscal agent, or similar officer for the Borrower in a proceeding under the United States Bankruptcy Code or in any other proceeding under state or federal law in which a court or governmental authority has assumed jurisdiction over substantially all of the assets or business of the Borrower, or if such jurisdiction has been assumed by leaving the existing governing body and officials or officers in possession but subject to the supervision and orders of a court or governmental authority, or the entry of an order confirming a plan of reorganization, arrangement, or liquidation by a court or governmental authority having supervision or jurisdiction over substantially all of the assets or business of the Borrower.
The Borrower shall notify the MSRB, in a timely manner, of any failure by the Borrower to provide financial information or operating data in accordance with this Section by the time required by this Section.
SECTION 6.02. Filing Requirements.
Each document provided to the MSRB in accordance with this Article shall be provided in the electronic format and with the identifying information prescribed by the MSRB.
SECTION 6.03. Limitations, Disclaimers, and Amendments.
The Borrower shall be obligated to observe and perform the covenants specified in this Article for so long as, but only for so long as, the Borrower remains an “obligated person” with respect to the Bonds within the meaning of the Rule, except that the Borrower in any event will provide notice to the MSRB of any defeasance that causes the Borrower to be no longer such an “obligated person.”
The provisions of this Article are for the sole benefit of the Holders and beneficial owners of the Bonds, and nothing in this Article, express or implied, shall give any benefit or any legal or equitable right, remedy, or claim hereunder to any other Person. The Borrower undertakes to provide only the financial statements and notices which it has expressly agreed to provide pursuant to this Article and does not hereby undertake to provide any other information that may be relevant or material to a complete presentation of the financial results, condition, or prospects of the Borrower or hereby undertake to update any information provided in accordance with this Article or otherwise, except as expressly provided herein. The Borrower does not make any representation or warranty concerning such information or its usefulness to a decision to invest in or sell Bonds at any future date.
UNDER NO CIRCUMSTANCES SHALL THE BORROWER BE LIABLE TO THE HOLDER OR BENEFICIAL OWNER OF ANY BOND OR ANY OTHER PERSON, IN CONTRACT OR TORT, FOR DAMAGES RESULTING IN WHOLE OR IN PART FROM ANY BREACH BY THE BORROWER, WHETHER NEGLIGENT OR WITHOUT FAULT ON ITS PART, OF ANY COVENANT SPECIFIED IN THIS ARTICLE, BUT EVERY RIGHT AND REMEDY OF ANY SUCH PERSON, IN CONTRACT OR TORT, FOR OR ON ACCOUNT OF ANY SUCH BREACH SHALL BE LIMITED TO AN ACTION FOR SPECIFIC PERFORMANCE.
No default by the Borrower in observing or performing its obligations under this Article to provide information to the MSRB shall constitute a breach of or default under this Loan Agreement for purposes of any other provision of this Loan Agreement or the Bond Indenture.
 
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Nothing in this Article is intended or shall act to disclaim, waive, or otherwise limit the duties of the Borrower under federal and state securities laws.
The provisions of this Article may be amended by the Borrower and the Issuer from time to time upon at least 30 days written notice provided to the Trustee, the Remarketing Agents, and the MSRB, and by the Trustee to the Bondholders. The Issuer shall execute any amendment to the provisions of this Article permitted by the terms of this Section upon Borrower Request.
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This instrument may be executed in any number of counterparts, each of which so executed shall be deemed to be an original, but all such counterparts shall together constitute but one and the same instrument.
I N W ITNESS W HEREOF , the parties hereto have caused this Loan Agreement to be duly executed as of the day and year first above written.

HARRIS COUNTY INDUSTRIAL DEVELOPMENT CORPORATION	
		
By:	 	/s/ Authorized Representative	
	 	President	
[ Other signature page follows ]
 
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HFOTCO LLC	
		
By:	 	/s/ Stephen A. Douglas	
Title:	 	Stephen A. Douglas
Chief Financial Officer	
 
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E XHIBIT A
TO
L OAN A GREEMENT
DESCRIPTION OF THE PROJECTS

The Projects to be refinanced with proceeds of the Bonds consist of improvements to real property (excluding moveable fixtures and equipment) used or to be used in the Borrower’s residual and crude oil terminal and dock facilities located at or near 16717 Jacintoport Boulevard in Houston, Texas, including, without limitation, a ship dock, tanks for residual and crude oil storage, an electrical substation, and related fixed equipment, structures, and facilities.
 
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E XHIBIT B
TO
L OAN A GREEMENT
FORM OF NOTE

This Note has not been registered under the Securities Act of 1933, as amended .

$75,000,000.00	  	No.             	
NOTE
(HFOTCO LLC Project Series 2010)
[ Closing Date ]
FOR VALUE RECEIVED, HFOTCO LLC, a Texas limited liability company (hereinafter referred to as the “ Borrower ”), promises to pay to the HARRIS COUNTY INDUSTRIAL DEVELOPMENT CORPORATION, a Texas non-profit corporation organized with the approval of Harris County, Texas, pursuant to the Development Corporation Act, Chapter 501, Texas Local Government Code, as amended (hereinafter referred to as the “ Issuer ”), or registered assigns, (a) the principal sum of Seventy-Five Million and no/100 Dollars ($75,000,000.00) on November 1, 2050 (b) interest on the unpaid portion thereof from and including the date hereof at a rate for each day of accrual equal to the arithmetic mean, weighted in proportion to the principal amounts thereof, of the rates of interest borne by the bonds of the Issuer designated its MARINE TERMINAL REVENUE BONDS (HFOTCO LLC PROJECT) SERIES 2010 (herein referred to as the “ Bonds ”) Outstanding (as defined in the Bond Indenture referred to herein) on such day, computed on the same basis and payable on the same dates and in the same amounts as such interest on the Bonds (or as provided in Sections 3.04G of the Loan Agreement referred to herein, if earlier), and (c) the obligations of the Borrower described in Sections 3.04D, 3.06, and 5.07G of the Loan Agreement referred to herein, provided that in no event shall the aggregate of the interest hereon, plus any other amounts paid in connection herewith which are deemed “interest” under the laws of the State of Texas or the United States of America permitting the charging and collecting of the highest permissible lawful non-usurious interest rate hereon in effect on the date hereof (hereinafter referred to as “ Applicable Law ”), ever exceed the maximum amount of interest which could be lawfully charged hereon under Applicable Law, anything herein or in the Loan Agreement hereinafter described to the contrary notwithstanding, and if any amount of interest taken or received by the holder hereof shall be in excess of the maximum amount of interest which, under Applicable Law, could lawfully have been collected hereon, then the excess shall be deemed to have been the result of a mathematical error by the Borrower and the holder hereof and shall be refunded promptly to the Borrower. All amounts paid or agreed to be paid in connection with the indebtedness evidenced hereby and by the Loan Agreement hereinafter described which under Applicable Law would be deemed “interest” shall, to the extent permitted by Applicable Law, be amortized, prorated, allocated, and spread throughout the full term hereof.
The principal hereof (and prepayment premium, if any) and interest hereon shall be payable at the principal corporate trust office of the corporation then acting as trustee (herein referred to as the “ Trustee ”) under that certain Bond Indenture, dated as of November 1, 2010, between the Issuer and The Bank of New York Mellon Trust Company, National Association, as trustee, which secures the Bonds (herein referred to as the “ Bond Indenture ”). All such payments shall be made, in immediately available funds, in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts.
 
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All sums due hereon shall be payable at the opening of business of the principal corporate trust office of the Trustee on the date such payments become due. All sums paid hereon shall be applied to the satisfaction of, first , the sums specified in Clause (c)  of the first paragraph hereof in respect of fees and expenses due the Trustee, second, accrued interest hereon, third, the unpaid principal (and prepayment premium, if any) hereof, and fourth, all other sums due hereunder.
This Note is a “Note” referred to in Section 3.04B of that certain Loan Agreement, dated as of November 1, 2010 (herein referred to as the ““ Loan Agreement ”), between the Issuer and the Borrower and is issued to evidence a loan by the Issuer to the Borrower, thereunder from proceeds of the Bonds issued under the Bond Indenture. This Note arises out of the Loan Agreement and the Bond Indenture.
The Borrower shall prepay the outstanding principal sum hereof, in whole or in part, in the same amounts, on the same dates, and with the same premium, if any, as Bonds called for redemption prior to their maturity in accordance with the provisions of the Bond Indenture. This Note is not otherwise prepayable at the option of the Borrower.
The outstanding principal hereof is subject to acceleration as permitted by the Loan Agreement.
The Borrower hereby expressly waives all notices (including notice of redemption, notice of intent to accelerate, and notice of acceleration), demands for payment, presentments for payment, and notations of payment.
As provided in the Loan Agreement, and subject to certain limitations therein set forth, this Note is transferrable on the Note Register established thereunder upon surrender of this Note for transfer at the principal corporate trust office of the Trustee duly endorsed, or accompanied by written instrument of transfer in from satisfactory to the Trustee duly executed, by the registered holder hereof or his attorney duly authorized in writing.
This Note is a contract made under and shall be construed in accordance with and governed by the laws of the State of Texas.
The Borrower may treat the Person in whose name this Note is registered as the owner hereof for the purpose of receiving payment as herein provided and for all other purposes, and the Borrower shall not be affected by notice to the contrary.
Unless the certificate of authentication hereon has been executed by the Trustee by manual signature, this Note shall not be entitled to any benefit under the Loan Agreement or be valid or obligatory for any purpose.

HFOTCO LLC, a Texas limited liability company	
		
By:	 	 	
	 	President	
 
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This Instrument is the Note referred to in the Loan Agreement described therein and is registered in the Note Register therefor as No...

Date of Authentication:	 		 	THE BANK OF NEW YORK MELLON TRUST COMPANY, NATIONAL ASSOCIATION	
					
	 	 	 		 	By:	 	 	
	 		 		 		 	Authorized Signature	
FOR VALUE RECEIVED, the undersigned hereby sells, assigns, and transfers unto The Bank of New York Mellon Trust Company, National Association, as trustee under the within described Bond Indenture, as pledgee, without recourse, the within instrument and all rights thereunder and hereby irrevocably constitutes and appoints the same attorney to transfer the within instrument on the books kept for registration thereof, with full power of substitution in the premises.
Dated this ..... day of November, 2010.

HARRIS COUNTY INDUSTRIAL DEVELOPMENT CORPORATION	
		
By:	 	 	
	 	President	
 
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Exhibit 4.7

 
HARRIS COUNTY INDUSTRIAL DEVELOPMENT CORPORATION
and
HFOTCO LLC

LOAN AGREEMENT
Dated as of December 1, 2011

Related to
HARRIS COUNTY INDUSTRIAL DEVELOPMENT CORPORATION
MARINE TERMINAL REVENUE BONDS
(HFOTCO LLC PROJECT) SERIES 2011
NOTICE: All right, title, and interest of the Harris County Industrial Development Corporation in and to this Loan Agreement, including the Loan Payments (herein defined), the Note (herein defined) by which the rights to such Loan Payments are evidenced, and any and all security heretofore or hereafter granted or held for the payment thereof, but excluding the Indemnity Payments (herein defined), have been collaterally assigned to The Bank of New York Mellon Trust Company, National Association, as Trustee, to secure payment of the Bonds described herein.

 

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 TABLE OF CONTENTS

 	  	Page	 	
PARTIES	  	 	1	 	
RECITALS	  	 	1	 	
GENERAL AGREEMENT	  	 	1	 	
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION

SECTION 1.01.	  	Definitions	  	 	2	 	
SECTION 1.02.	  	Action of Bondholders	  	 	6	 	
SECTION 1.03.	  	Notices, Etc.	  	 	7	 	
SECTION 1.04.	  	Form and Contents of Documents Delivered to Trustee	  	 	9	 	
SECTION 1.05.	  	Effect of Headings and Table of Contents	  	 	9	 	
SECTION 1.06.	  	Successors and Assigns	  	 	9	 	
SECTION 1.07.	  	Severability Clause	  	 	9	 	
SECTION 1.08.	  	Benefits of Loan Agreement; Assignment	  	 	10	 	
SECTION 1.09.	  	Remedies and Waivers	  	 	10	 	
SECTION 1.10.	  	Governing Law	  	 	11	 	
SECTION 1.11.	  	Term and Termination	  	 	11	 	
SECTION 1.12.	  	Amendment of Loan Agreement	  	 	11	 	
SECTION 1.13.	  	Credit Facility Provider Consents, Etc.	  	 	11	 	
ARTICLE II
THE PROJECTS

SECTION 2.01.	  	Borrower to Acquire, Construct, and Equip the Projects	  	 	13	 	
SECTION 2.02.	  	Borrower to Own, Operate, Possess, and Maintain the Projects	  	 	13	 	
ARTICLE III
LOAN TO FINANCE AND REFINANCE PROJECTS

SECTION 3.01.	  	Establishment of Project Fund	  	 	14	 	
SECTION 3.02.	  	No Security for Loan Payments	  	 	14	 	
SECTION 3.03.	  	Loan to Finance and Refinance Projects	  	 	14	 	
SECTION 3.04.	  	Terms and Payment of Loan and Note	  	 	14	 	
SECTION 3.05.	  	Purchase of Tendered Bonds By Borrower	  	 	17	 	
SECTION 3.06.	  	Borrower to Pay Certain Amounts Under Bond Indenture; Successor Agents	  	 	17	 	
SECTION 3.07.	  	Waiver of Set-Off, Recoupment, Counterclaim, and Abatement	  	 	18	 	
SECTION 3.08.	  	Recording	  	 	18	 	
ARTICLE IV
THE BONDS

SECTION 4.01.	  	Issuer to Issue Bonds	  	 	19	 	
SECTION 4.02.	  	Issuer to Redeem Bonds	  	 	19	 	
SECTION 4.03.	  	Conversion of Subseries, Interest Modes, and Interest Periods	  	 	19	 	
SECTION 4.04.	  	Investment Authority	  	 	19	 	
ARTICLE V
COVENANTS AND WARRANTIES

SECTION 5.01.	  	Representations and Warranties of Issuer	  	 	20	 	
SECTION 5.02.	  	Representations and Warranties of Borrower	  	 	20	 	
 
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(cont’d)

 	  	 	  	Page	 	
SECTION 5.03.	  	Limitation on Obligations of Issuer; Reimbursement of Expenses, Charges, and Taxes	  	 	21	 	
SECTION 5.04.	  	Trustees, Directors, Officers, Employees, and Agents Exempt from Personal Liability	  	 	21	 	
SECTION 5.05.	  	Borrower to Indemnify Certain Persons	  	 	21	 	
SECTION 5.06.	  	Modification of Bonds and Bond Indentures; Limitation on Liens	  	 	23	 	
SECTION 5.07.	  	Maintenance of Tax-Exempt Status of Bonds	  	 	23	 	
SECTION 5.08.	  	To Exclude Ineligible Bonds from Tenders	  	 	26	 	
SECTION 5.09.	  	Limitations Affecting Tenders and Purchases of Bonds	  	 	26	 	
SECTION 5.10.	  	Consolidation and Merger	  	 	27	 	
SECTION 5.11.	  	Assignment	  	 	27	 	
ARTICLE VI
CONTINUING DISCLOSURE UNDERTAKING

SECTION 6.01.	  	Audited Financial Statements and Material Event Notices	  	 	28	 	
SECTION 6.02.	  	Filing Requirements	  	 	29	 	
SECTION 6.03.	  	Limitations, Disclaimers, and Amendments	  	 	29	 	
		
TESTIMONIUM	  	 	S-1	 	
SIGNATURES	  	 	S-1	 	

EXHIBIT A — DESCRIPTION OF PROJECTS	  	 	A-1	 	
EXHIBIT B — FORM OF NOTE	  	 	B-1	 	
 
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T HIS L OAN A GREEMENT , herein, as supplemented, modified, or amended in accordance with the applicable provisions hereof, referred to as this “Loan Agreement”) dated as of December 1, 2011, between the Harris County Industrial Development Corporation (herein referred to as the “Issuer”, which term includes any successor corporation under the Bond Indenture hereinafter referred to), a non-profit corporation organized with the approval of Harris County, Texas, and existing pursuant to the Development Corporation Act, Chapter 501, Texas Local Government Code, as amended, and HFOTCO LLC, a Texas limited liability company (herein referred to as the “Borrower”, which term includes any successors and assigns permitted hereunder),
W I T N E S S E T H :
W HEREAS , the Borrower desires that the Issuer issue its limited obligation revenue bonds and loan the proceeds thereof to the Borrower to finance or refinance costs of the Projects described herein in order that such costs may be financed at the low interest rates which prevail in the market for tax-exempt securities and, in order to induce the issuance and sale of such bonds, the Borrower agrees to the covenants herein described; and
W HEREAS , based on representations of the Borrower, the Issuer has found that the Projects are undertakings the costs of which are eligible to be paid from the proceeds of qualified Hurricane Ike disaster area bonds under Section 704, Heartland Disaster Tax Relief Act of 2008, that the financing or refinancing thereof by means of the issuance of such bonds and the loan described herein will be in furtherance of the corporate purposes of the Issuer; and
W HEREAS , the Projects are located in the Hurricane Ike disaster areas designated by the Internal Revenue Service in Notice 2008-109 and the Bonds have been designated by the Governor of Texas as “qualified Hurricane Ike disaster area bonds;” and
W HEREAS , all things have been done which are necessary to authorize the issuance of such bonds and to constitute this Loan Agreement a valid contract of the parties hereto in accordance with its terms;
Now, T HEREFORE , for and in consideration of the premises and the mutual covenants hereinafter contained, and subject to the conditions herein set forth, the parties hereto covenant, agree, and bind themselves as follows:
*                    *                     *
 
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ARTICLE I
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
 SECTION 1.01. Definitions.
For all purposes of this Loan Agreement, except as otherwise expressly provided or unless the context otherwise requires:
A. The terms defined in this Article have the meanings assigned to them in this Article and include the plural as well as the singular.
B. All references in this instrument to designated “Articles”, “Sections”, “Exhibits”, and other subdivisions are to the designated Articles, Sections, Exhibits, and other subdivisions of this instrument as originally executed.
C. The words “herein”, “hereof”, and “hereunder” and other words of similar import refer to this Loan Agreement as a whole and not to any particular Article, Section, Exhibit, or other subdivision.
“Accountant” means a Person engaged in the practice of accounting who (except as otherwise expressly provided herein) may be employed by or affiliated with the Borrower.
“Act” means the Development Corporation Act, Chapter 501, Texas Local Government Code, as amended, as in force and effect on the Issue Date.
“Action” has the meaning stated in Section  1.02.
“Administration Expenses” shall mean the reasonable expenses incurred by the Issuer with respect to this Loan Agreement, the Bond Indenture and any transaction or event contemplated by this Loan Agreement or the Bond Indenture, including, without limitation, the fees and disbursements of counsel and out-of-pocket expenses of the Issuer incurred in connection with the authorization, issuance and sale of the Bonds.
“Affiliate” of any specified Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified Person. For purposes of this definition, “control” when used with respect to any specified Person means the power to direct the management and policies of such Person, directly or indirectly, whether by contract, through the ownership of voting securities or the power to appoint and remove directors or trustees, or otherwise; and the terms “controlling” and “controlled” have meanings correlative to the foregoing.
“Authorized Representative” has the meaning stated in the Bond Indenture.
“Available Money” has the meaning stated in Section  1.01 of the Bond Indenture.
“Bond Funds” means the Interest Fund, the Principal Fund, and the Redemption Fund (each as defined in Section  1.01 of the Bond Indenture).
“Bond Indenture” means that certain Bond Indenture, dated as of even date herewith, between the Issuer and The Bank of New York Mellon Trust Company, National Association, as trustee, as originally executed or as it may from time to time be supplemented, modified, or amended by one or more indentures or other instruments supplemental thereto entered into pursuant to the applicable provisions thereof.
 
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“Bondholder” has the meaning stated in Section  1.01 of the Bond Indenture.
“Bond Register” means the register maintained by the Trustee to record ownership and transfers of the Bonds.
“Bonds” has the meaning stated in Section  1.01 of the Bond Indenture.
“Borrower” means the Person named as the “Borrower” in the first paragraph of this Loan Agreement until a successor or assign shall have become such pursuant to the applicable provisions hereof, and thereafter “Borrower” shall mean such successor or assign.
“Borrower Consent”, “Borrower Order”, and “Borrower Request” mean, respectively, a written consent, direction, order, or request signed in the name of the Borrower by an Authorized Representative and delivered to the Trustee.
“Business Day” has the meaning stated in Section  1.01 of the Bond Indenture.
“Code” means the Internal Revenue Code of 1986, as amended and in force and effect on the Issue Date.
“Commercial Paper Mode” and “Commercial Paper Rate” have the respective meanings stated in Section  1.01 of the Bond Indenture.
“Computation Date” has the meaning stated in Section 1.148-1(b) of the Regulations and, until the Regulations are amended to provide otherwise, means (1) the last day of any bond year (as defined in Section 1.148-1(b) of the Regulations) preceding the fifth anniversary of the Issue Date selected by the Borrower before such fifth anniversary and, if no such date is selected by the Borrower, then the last day of such bond year on or immediately preceding such fifth anniversary, (2) each fifth anniversary of the Computation Date described in Clause (1) or every anniversary of such Computation Date, as elected by the Borrower consistently throughout the term of the Bonds, and (3) the later of the final maturity of the Bonds or the date on which due provision for payment of all of the Bonds has been made.
“Cost” when used with respect to a Project means all costs incurred by the Issuer or the Borrower with respect to the acquisition, construction, reconstruction, improvement, and expansion, as the case may be, of such Project, whether paid or incurred prior to or after the date of this Loan Agreement, including the cost of the acquisition of all land, rights-of-way, property rights, easements, and interests; the cost of all machinery and equipment; financing charges; interest prior to and during construction and for one year after completion of construction whether or not capitalized; necessary reserve funds; the cost of estimates and of engineering and legal services, plans, specifications, surveys, and estimates of cost and of revenue; other expenses necessary or incident to determining the feasibility and practicability of acquiring, constructing, reconstructing, improving, and expanding such Project; administrative expense; the Issuer’s charges and expenses in connection with issuance of the Bonds; and such other expenses as may be necessary or incident to the acquisition, construction, reconstruction, improvement, and expansion of such Project, the placing of the same in operation, and the financing or refinancing of such Project, including the refunding of any outstanding obligations, mortgages, or advances issued, made, or given by any Person for any of the aforementioned costs.
“Costs of Issuance Fund” means the fund of the Borrower so defined in Section  1.01 of the Bond Indenture.
“Credit Facility Provider” has the meaning stated in Section  1.01 of the Bond Indenture.
 
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“Credit Facility” has the meaning stated in Section 1.01 of the Bond Indenture.
“Eligible Bonds” has the meaning stated in Section  1.01 of the Bond Indenture.
“Excluded Purchaser” has the meaning stated in Section  1.01 of the Bond Indenture.
“Governmental Obligations” has the meaning stated in Section  1.01 of the Bond Indenture.
“Gross Proceeds” means “gross proceeds” of the Bonds within the meaning of Section 1.148-1 (b) of the Regulations, including:
(1) all amounts held for the credit of the Bond Funds, the Project Fund, and the Costs of Issuance Fund and allocable to the Bonds pursuant to section 148 of the Code, and
(2) all money and investments in Governmental Obligations deposited in escrow pursuant to Section  10.03 of the Bond Indenture to defease the lien of the Bond Indenture with respect to any such Bond, except money or investments so deposited which are “proceeds” of any “refunding issue” (as defined in Sections 1.148-I(b) and 1.150-l(d), respectively, of the Regulations).
“Holder” has the meaning stated in Section 1.01 of the Bond Indenture.
“Indemnity Payments” means those certain payments agreed to be made by the Borrower to the Issuer pursuant to Sections 5. 03 and 5.05.
“Interest Payment Date” for any Bond or portion thereof has the meaning stated in Section  1.01 of the Bond Indenture.
“Interest Period” has the meaning stated in Section  1.01 of the Bond Indenture.
“Investment Securities” has the meaning stated in Section  1.01 of the Bond Indenture.
‘‘Issue Date” means the date of the authentication and delivery of the initial Bonds in exchange for the purchase price therefor.
“Issuer” means the Person named as the “Issuer” in the first paragraph of this Loan Agreement until a successor corporation shall have become such pursuant to the applicable provisions of the Bond Indenture, and thereafter “Issuer” shall mean such successor corporation.
“Issuer Consent,” “Issuer Order,” and “Issuer Request” mean, respectively, a written consent, order, or request signed in the name of the Issuer by the President or a Vice President and by the Treasurer, an Assistant Treasurer, the Secretary, or an Assistant Secretary of the Issuer and delivered to the Trustee.
“Liquidity Facility” has the meaning stated in Section  1.01 of the Bond Indenture.
“Liquidity Facility Bonds” has the meaning stated in Section  1.01 of the Bond Indenture.
“Liquidity Facility Provider” has the meaning stated in Section  1.01 of the Bond Indenture.
 
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“Loan Agreement” means this instrument, as originally executed or as it from time to time may be supplemented, modified, or amended by one or more instruments supplemental hereto entered into in accordance with the applicable provisions hereof.
“Loan Payments” means those certain payments agreed to be made by the Borrower pursuant to Section  3.04 and pursuant to the Note evidencing such agreement.
“Maturity” when used with respect to any Bond means the date on which the principal of such Bond becomes due and payable as therein or in the Bond Indenture provided, whether at the Stated Maturity or by declaration of acceleration or call for redemption or otherwise, but does not include payment of the portion of the Purchase Price corresponding to principal of such Bond pursuant to Section  4.06, 4.07, 4.08, 4.09, or 4.10 of the Bond Indenture.
“Mode” has the meaning stated in Section 1.01 of the Bond Indenture.
“Mode Change Date” has the meaning specified in Section  1.01 of the Bond Indenture.
“MSRB” means the Municipal Securities Rulemaking Board.
“Note” means the promissory note made or to be made by the Borrower pursuant to Section  3.04 to evidence the obligation of the Borrower to make Loan Payments.
“Officers’ Certificate” of any Person means a certificate signed by the Chairman or Vice Chairman of the Board of Directors, the President, or a Vice President and by the Chief Financial Officer, the Treasurer, an Assistant Treasurer, the Controller, an Assistant Controller, the Secretary, or an Assistant Secretary of such Person and delivered to the Trustee.
“Opinion of Counsel” has the meaning stated in Section 1.01 of the Bond Indenture.
“Outstanding” has the meaning stated in Section 1.01 of the Bond Indenture.
“Person” has the meaning stated in Section  1.01 of the Bond Indenture.
“Project Fund” means the fund of the Borrower so defined in Section 1.01 of the Bond Indenture.
“Projects” means the projects described in Exhibit A.
“Purchase Date” has the meaning stated in Section  1.01 of the Bond Indenture.
“Purchase Fund” means the fund of the Tender Agent so defined in Section  1.01 of the Bond Indenture.
“Purchase Price” has the meaning stated in Section  1.01 of the Bond Indenture.
“Rebate Amount” as of any Computation Date means the “rebate amount” with respect to the issue of which the Bonds are a part, determined in accordance with Section 1.148-3 of the Regulations.
“Rebate Calculation Date” means (1) the last Computation Date that occurs on or before the fifth anniversary of the Issue Date, (2) each subsequent Computation Date specified by Borrower Order that occurs on or before the fifth anniversary of the immediately preceding Rebate Calculation Date or, if no such Borrower Order is given, each such fifth anniversary, and (3) the final Computation Date.
 
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“Rebate Fund” has the meaning stated in Section  1.01 of the Bond Indenture.
“Redemption Price” has the meaning stated in Section  1.01 of the Bond Indenture.
“Regulations” means the temporary or final Income Tax Regulations applicable to the Bonds issued pursuant to the Code. Any reference to a Section of the Regulations shall also refer to any successor provision to such Section hereafter promulgated by the Internal Revenue Service pursuant to the Code and applicable to the Bonds.
“Reimbursement Agreement” has the meaning stated in Section 1.01 of the Bond Indenture.
“Remarketing Agent” has the meaning stated in Section  1.01 of the Bond Indenture.
“Remarketing Agreement” has the meaning stated in Section  1.01 of the Bond Indenture.
“Securities Depository” has the meaning stated in Section  1.01 of the Bond Indenture.
“Stated Maturity” when used with respect to any Bond or any installment of interest thereon means the date specified in such Bond as the fixed date on which the principal of such Bond or the day on which such installment of interest is due and payable.
“Taxable Investment” means any Investment Security other than:
(1) Non-AMT Tax-Exempt Obligations: an obligation the interest on which is excluded from the gross income, as defined in section 61 of the Code, of the owners thereof for federal income tax purposes (or, when such obligation was issued, was purported by the evidence of such obligation to be so excluded) and which is not a preference item, as defined in section 57 of the Code, and
(2) Tax-Exempt Mutual Funds: an interest in a regulated investment company to the extent that at least 95% of the income to the holder of such interest is interest excludable from gross income under section 103(a) of the Code and is not an item of tax preference.
“Tender Agent” has the meaning stated in Section  1.01 of the Bond Indenture.
“Term Rate Mode” has the meaning stated in Section  1.01 of the Bond Indenture.
“Trustee” means the Person named as the “Trustee” in the first paragraph of the Bond Indenture until a successor Trustee shall have become such pursuant to the applicable provisions thereof, and thereafter “Trustee” shall mean such successor Trustee.
“Vice President” when used with respect to any Person means any vice president thereof, whether or not designated by a number or a word added to the title.
SECTION 1.02. Action of Bondholders.
A. Bondholder Action. Any request, demand, authorization, direction, notice, consent, waiver, or other action provided by this Loan Agreement to be given or taken by the Bondholders may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by such Bondholders in person or by an agent duly appointed in writing, and, except as herein otherwise expressly provided, such action shall become effective when such instrument or instruments are delivered to the Trustee and, if hereby expressly required, to the Issuer, the Borrower, the Credit Facility
 
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Providers, the Liquidity Facility Providers, the Tender Agent, or the Remarketing Agent, as the case may be. Such instrument or instruments (and the action embodied therein and evidenced thereby) are herein sometimes referred to as the “ Action ” of the Bondholders signing such instrument or instruments. Proof of execution of any such instrument or of a writing appointing any such agent shall be sufficient for any purpose of this Loan Agreement and conclusive in favor of the Issuer, the Borrower, the Credit Facility Providers, the Liquidity Facility Providers, the Tender Agent, and the Remarketing Agent and (subject to Section  8.01 of the Bond Indenture) in favor of the Trustee, if made in the manner provided in this Section. So long as the Securities Depository is the Holder of all of the Bonds, no such Action of the Holder of any Bond shall be effective unless it is the Action of the Person in whose name such Bond is registered as of a record date established by the Trustee for that purpose.
B. Proof of Execution. The fact and date of the execution by any Person of any such instrument or writing may be proved by the affidavit of a witness of such execution or by the certificate of any notary public or other officer authorized by law to take acknowledgments of deeds, certifying that the individual signing such instrument or writing acknowledged to him the execution thereof. Whenever such execution is by an officer of a corporation or a limited liability company or a member of a partnership on behalf of such corporation, limited liability company or partnership, such certificate or affidavit shall also constitute sufficient proof of his authority. The fact and date of execution by any Person of any such instrument or writing shall be conclusively established for all purposes of this Loan Agreement if (1) the Trustee shall have mailed or delivered such instrument or writing to such Person (or any Bondholder for whom he purports to act as agent or proxy), at his address as shown on the Bond Register, (2) such instrument or writing shall have been returned to the Trustee bearing a signature purporting and reasonably appearing to be that of the Bondholder or a Person purporting to be his agent or proxy, and (3) the Person receiving such executed instrument or writing shall have no actual knowledge or notice of any irregularity, or of any fact or circumstance which, if substantiated, would impair the validity of such instrument or writing. The matters referred to in Clauses (1), (2), and (3)  of the preceding sentence may be evidenced by a certificate of the Trustee. The fact and date of execution of any such instrument or writing by any Person and the authority of such Person to execute the same may also be proved in any other manner which the Trustee deems sufficient. The Trustee may in any instance require further proof with respect to any of the matters referred to in this Section.
C. Proof of Ownership. The ownership of Bonds shall be proved by the Bond Register, and no beneficial or legal owner of Bonds whose ownership is not so registered shall have any right hereunder to give or take any Action with respect to the Bonds.
D. Binding Effect. Any request, demand, authorization, direction, notice, consent, waiver, or other action by a Holder of Bonds shall bind every future Holder of the same Bonds and the Holder of every obligation issued upon the transfer thereof or in exchange therefor or in lieu thereof, in respect of anything done or suffered to be done by the Trustee, the Issuer, the Borrower, any Credit Facility Provider, any Liquidity Facility Provider, the Tender Agent, and the Remarketing Agent in reliance thereon, whether or not notation of such action is made upon such Bond or obligation.
 SECTION 1.03. Notices, Etc.
Unless otherwise specifically provided herein, any request, demand, authorization, direction, notice, consent, waiver, Action of Bondholders, or other document by or from any Person provided or permitted by this Loan Agreement to be made upon, given or furnished to, or filed with,
A. Trustee: the Trustee shall be sufficient for every purpose hereunder if made, given, furnished, or filed in writing to or with the Trustee and received by it at its principal corporate trust office in the City of Houston, Texas, or if in writing and mailed, first-class postage prepaid, to the Trustee addressed to it at 601 Travis Street, Floor 16, Houston, Texas 77002, or, if
 
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given to the Trustee by telecopy to (713) 483-6979, in either case marked Attention: Public Finance, or at such other address or to such other number furnished in writing to such Person by the Trustee, or
B. Issuer: the Issuer shall be sufficient for every purpose hereunder if in writing and mailed, first-class postage prepaid, to the Issuer addressed to it in care of Fulbright & Jaworski L.L.P., 1301 McKinney, Suite 5100, Houston, Texas 77010-3095, Attention: President, or at any other address previously furnished in writing to the Trustee by the Issuer, or
C. Borrower: the Borrower shall be sufficient for every purpose hereunder if in writing and mailed, first-class postage prepaid, to the Borrower addressed to it at 1201 South Sheldon Road, Houston, Texas 77015, Attention: Michael Mangan, or at any other address previously furnished in writing to the Trustee by the Borrower, or
D. Credit Facility Provider: any Credit Facility Provider shall be sufficient for every purpose hereunder if provided to the address and in the manner specified in the Reimbursement Agreement to which it is a party or to such other address and in such other manner previously specified in writing to the Trustee by such Credit Facility Provider, or
E. Liquidity Facility Provider: any Liquidity Facility Provider shall be sufficient for every purpose hereunder if provided to the address and in the manner specified in the Reimbursement Agreement or Liquidity Facility to which such Liquidity Facility Provider is a party or to such other address and in such other manner previously specified in writing to the Trustee by such Liquidity Facility Provider, or
F. Tender Agent: the Tender Agent shall be sufficient for every purpose hereunder if in writing and mailed, first-class postage prepaid, to the Tender Agent addressed to it at the address and to the attention specified in Clause A of this Section or at any other address previously furnished in writing to the Trustee by the Tender Agent, or
G. Remarketing Agent: any Remarketing Agent shall be sufficient for every purpose hereunder if in writing and mailed, first-class postage prepaid, to it addressed to it at the address specified or referred to in the Bond Indenture or any other address and attention previously furnished in writing to the Trustee by such Remarketing Agent.
Where this Loan Agreement provides for notice to Bondholders of any event, such notice shall be sufficiently given (unless otherwise herein expressly provided) if in writing and mailed, first-class postage prepaid, to each Bondholder affected by such event, at the address of such Bondholder as it appears in the Bond Register, and the Credit Facility Providers not later than the latest date, and not earlier than the earliest date, prescribed for the giving of such notice. Neither the failure to mail such notice, nor any defect in any notice so mailed, to any particular Bondholder shall affect the sufficiency of such notice with respect to other Bondholders.
Where this Loan Agreement provides for notice in any manner, such notice may be waived in writing by the Person entitled to receive such notice, either before or after the event, and such waiver shall be the equivalent of such notice. Waivers of notice by Bondholders shall be filed with the Trustee, but such filing shall not be a condition precedent to the validity of any action taken in reliance upon such waiver.
 
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 SECTION 1.04. Form and Contents of Documents Delivered to Trustee.
Whenever several matters are required to be certified by, or covered by an opinion of, any specified Person, it is not necessary that all such matters be certified by, or covered by the opinion of, only one such Person, or that they be so certified or covered by only one document, but one such Person may certify or give an opinion with respect to some matters and one or more other such Persons as to other matters, and any such Person may certify or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of any Person may be based, insofar as it relates to legal matters, upon a certificate or opinion of, or representations by, counsel, unless such officer knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations with respect to the matters upon which his certificate or opinion is based are erroneous. Any Opinion of Counsel may be based, insofar as it relates to factual matters, upon a certificate or opinion of, or representations by, an officer or officers of any Person stating that the information with respect to such factual matters is in the possession of such Person unless such counsel knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations with respect to such matters are erroneous.
Whenever any Person is required to make, give, or execute two or more applications, requests, consents, certificates, statements, opinions, or other instruments under this Loan Agreement, they may, but need not, be consolidated and form one instrument.
Wherever in this Loan Agreement, in connection with any application or certificate or report to the Issuer or the Trustee, it is provided that any Person shall deliver any document as a condition of the granting of such application, or as evidence of compliance by such Person with any term hereof, it is intended that the truth and accuracy, at the time of the granting of such application or at the effective date of such certificate or report (as the case may be), of the facts and opinions stated in such document shall in such case be conditions precedent to the right of such Person to have such application granted or to the sufficiency of such certificate or report.
 SECTION 1.05. Effect of Headings and Table of Contents.
The Article and Section headings herein and in the Table of Contents are for convenience only and shall not affect the construction hereof.
 SECTION 1.06. Successors and Assigns.
All covenants and agreements in this Loan Agreement by the Issuer and the Borrower shall bind their respective successors and assigns, whether so expressed or not. The Borrower hereby requests that the Issuer enter into and perform its obligations under the Bond Indenture, and the Borrower hereby consents to the execution and delivery of the Bond Indenture.
 SECTION 1.07. Severability Clause.
In case any provision in this Loan Agreement or any application hereof shall be invalid, illegal, or unenforceable, the validity, legality, and enforceability of the remaining provisions and applications shall not in any way be affected or impaired thereby.
 
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 SECTION 1.08. Benefits of Loan Agreement; Assignment
Nothing in this Loan Agreement, expressed or implied, shall give any benefit or any legal or equitable right, remedy, or claim under this Loan Agreement to any Person, other than the parties hereto and their successors hereunder and, as third party beneficiaries, the Trustee, any separate trustee or co-trustee appointed under Section  8.06 of the Bond Indenture, the Credit Facility Providers, the Liquidity Facility Providers, the Tender Agent, the Remarketing Agents, and the Holders of the Outstanding Bonds.
The Issuer shall collaterally assign to the Trustee pursuant to the Bond Indenture all right, title, and interest of the Issuer in and to (1) this Loan Agreement, including the Loan Payments and the Note by which the rights to such Loan Payments are evidenced, (2) the rights and benefits of the Issuer under this Loan Agreement and as the registered owner of the Note, (3) any and all security heretofore or hereafter granted or held for the payment of amounts owing under this Loan Agreement or the Note, and (4) the present and continuing right to bring actions and proceedings under this Loan Agreement in respect thereof, or for the enforcement hereof, and to do any and all things which the Issuer is or may become entitled to do hereunder and thereunder, but excluding the Indemnity Payments. The Borrower hereby consents to such assignment.
 SECTION 1.09. Remedies and Waivers.
A. Remedies. If a default occurs in the payment of the principal of or the interest or premium on the Bonds or the Note or in the performance of this Loan Agreement, the payment and performance may be enforced by mandamus or the appointment of a receiver in equity with power to charge and collect rents, purchase price payments, and Loan Payments and apply the revenue from the Projects in accordance with the Notes and this Loan Agreement.
No right or remedy herein conferred upon the Issuer or the Trustee or other assigns is intended to be exclusive of any other right or remedy, and every right and remedy shall, to the extent permitted by Law, be cumulative and in addition to every other right and remedy given hereunder or hereafter existing at law or in equity or otherwise. Assertion or employment of any right or remedy hereunder or otherwise shall not prevent the concurrent assertion or employment of any other appropriate right or remedy.
B. No Waiver By Delay. No delay or omission by the Issuer or the Trustee or other assigns to exercise any right or remedy accruing upon a default herein shall impair any such right or remedy or constitute a waiver of any such default or an acquiescence therein. Every right and remedy given hereunder or by law to the Issuer or the Trustee or other assigns may be exercised from time to time, and as often as may be deemed expedient, by such Person.
C. Waiver of Defaults. The Issuer and the Trustee or other assigns may, under the conditions and with the consent of the Holders of the specified percentage in principal amount of Outstanding Bonds described in Section  7.11 of the Bond Indenture for the waiver of past defaults thereunder, if therein required, and the consent of the Credit Facility Providers, and, except for the covenants in Sections 5.03 and 5.05, at the direction of the Credit Facility Providers shall, waive any past default hereunder and its consequences. Upon any such waiver, such default shall cease to exist and shall be deemed to have been cured for every purpose of this Loan Agreement; but no such waiver shall extend to any subsequent or other default or impair any right consequent thereon.
D. Waiver of Compliance. The Borrower may, with the written approval of the Issuer and the Credit Facility Providers, omit in any particular instance to comply with any covenant or condition set forth herein except in Sections 3.04A, 3.04D, 3.06, 3.07, and 5.07, if before or after the time for such compliance such Persons and, subject to Section  1.13, the Holders of at least a majority in
 
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principal amount of the Bonds then Outstanding which are affected by such waiver shall either waive such compliance in such instance or generally waive compliance with such covenant or condition, but no such waiver shall extend to or affect such covenant or condition except to the extent so expressly waived and, until such waiver shall become effective, the obligations of the Borrower in respect of any such covenant or condition shall remain in full force and effect.
 SECTION 1.10. Governing Law.
This Loan Agreement shall be construed in accordance with and governed by the laws of the State of Texas.
 SECTION 1.11. Term and Termination.
A. Term. The term of this Loan Agreement shall commence on the Issue Date and shall terminate on the latest of (1) the last Maturity of Bonds, (2) the first date after the Issue Date on which there are no Outstanding Bonds, or (3) the date on which the Borrower has satisfied in full its obligations under or an exception to Section  5.07G, unless terminated sooner pursuant to the provisions hereof.
B. Termination. The Borrower may, at its option, terminate (1) all provisions of this Loan Agreement except the covenants contained in Sections 3.06, 5.03, 5.05, and 5.07 whenever the Bond Indenture may be released and discharged in accordance with its terms and (2) all remaining provisions hereof except Section  5.07G after the last Maturity of Bonds whenever no Bonds shall remain Outstanding.
C. Automatic Termination. This Loan Agreement shall automatically terminate and be discharged if no Bonds shall have been authenticated and delivered pursuant to the Bond Indenture within 90 days from the date hereof.
 SECTION 1.12. Amendment of Loan Agreement.
The Issuer and the Borrower may from time to time enter into one or more amendments or supplements hereto for any of the purposes and on the conditions stated in Section  6.07 of the Bond Indenture, but not otherwise.
The Trustee may in its discretion determine whether or not any Bonds would be affected by any amendment or supplement and may rely on an Opinion of Counsel to such effect in doing so, and any such determination shall be conclusive upon every Holder of Bonds, whether theretofore or thereafter authenticated under the Bond Indenture. The Trustee shall not be liable for any such determination made in good faith.
The Loan Agreement may not be amended or supplemented to change the rights of the Trustee, the Tender Agent, or the Remarketing Agents without the written consent of such Person.
 SECTION 1.13. Credit Facility Provider Consents, Etc.
During any period of time in which no Credit Facility is in effect under the Bond Indenture and all obligations of the Borrower under the Reimbursement Agreements have been paid in full, the provisions of this Loan Agreement that relate to the Credit Facilities, the Reimbursement Agreements, and the Credit Facility Providers shall be of no force or effect.
Anything in this Loan Agreement to the contrary notwithstanding, any request, demand, authorization, direction, notice, consent, waiver, or other action provided in this Loan Agreement to be
 
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given or taken by the Holders of Bonds in any Mode to direct, consent to, or waive the exercise by the Issuer or the Trustee of any right or remedy hereunder (except in respect of Section  5. 07) may be given or taken by, and only by, a written instrument signed by the Credit Facility Providers whenever a Credit Facility is in effect under the Bond Indenture that is not in default. Any such right granted hereunder to any Credit Facility Provider shall be effective only so long as it is not in default under its Credit Facility.
During any period of time in which no Liquidity Facility is in effect under the Bond Indenture and all amounts due under the Liquidity Facilities, the Reimbursement Agreements (if a Liquidity Facility Provider is a party thereto), and the Liquidity Facility Bonds shall have been paid in accordance with the terms thereof and the Bond Indenture, the provisions of this Loan Agreement that relate to the Liquidity Facilities, and the Liquidity Facility Providers shall be of no force and effect. Any rights granted hereunder to any Liquidity Facility Provider to consent to, approve, or otherwise control events, circumstances, rights, or remedies hereunder shall be of no force or effect during any period in which such Liquidity Facility Provider shall be in default its obligations under a Liquidity Facility to provide funds for the purchase of Bonds when required thereby; provided that the foregoing shall not affect any rights of the Liquidity Facility Providers as the owners of Liquidity Facility Bonds or other Bonds.
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ARTICLE II
THE PROJECTS
 SECTION 2.01. Borrower to Acquire, Construct, and Equip the Projects.
Commencing with the effective date of this Loan Agreement and employing due diligence until completion of the Projects, the Borrower shall, with respect to the incomplete portions of the Projects which may be completed with proceeds of the Bonds:
A. Secure Permits: Use its best efforts to secure or extend all permits, certificates, licenses, and other approvals of governmental agencies with jurisdiction required for the acquisition, constructing, equipping, and operating of the Projects which shall not have been secured on or prior to such date or which shall thereafter expire;
B. Administer Contracts: Award and administer one or more contracts or purchase orders, and in general do any and all other things necessary, for the acquisition, constructing, equipping, and furnishing of the Projects in accordance with the Plans and Specifications therefor;
C. Acquire Land: Acquire any and all land, easements, and rights-of-way, temporary or permanent, required for construction of the Projects in accordance with the Plans and Specifications therefor or for the operation thereof; and
D. Certify Completion: Upon completion of the acquisition, constructing, equipping, and furnishing of the Projects in accordance with the Plans and Specifications therefor, certify such completion to the Issuer and the Trustee by an Officers’ Certificate of the Borrower.
The Borrower may draw upon the Project Fund and the Costs of Issuance Fund as provided in Sections 3.03 and 3.04 of the Bond Indenture to pay the Costs of the Projects and, to the extent the balance of the Project Fund is not sufficient to pay such costs in full, shall pay all costs of completing any Project for which proceeds of the Bonds have been expended from its own funds or shall arrange alternative financing therefor.
Neither the Issuer nor the Trustee shall have any responsibility for the acquisition, constructing, equipping, or furnishing of the Projects or, except as provided in Section  3.03, any liability for any Cost of the Projects or any other cost or expense of compliance with the provisions of this Section.
 SECTION 2.02. Borrower to Own, Operate, Possess, and Maintain the Projects.
Neither the Issuer nor the Trustee shall have any responsibility or liability for ownership, possession, operation, maintenance, or insurance of the Projects.
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ARTICLE III
LOAN TO FINANCE AND REFINANCE PROJECTS
 SECTION 3.01. Establishment of Project Fund.
The Borrower shall establish and maintain with the Trustee under the Bond Indenture its special funds designated the “Harris County Industrial Development Corporation Marine Terminal Revenue Bonds (HFOTCO LLC Project) Series 2011 Project Fund” (herein sometimes referred to as the “Project Fund”) and the “Harris County Industrial Development Corporation Marine Terminal Revenue Bonds (HFOTCO LLC Project and the Harris County Industrial Development Corporation Marine Terminal Revenue Bonds (HFOTCO LLC Project) Series 2011 Costs of Issuance Fund” (herein sometimes referred to as the “Costs of Issuance Fund”) for the purpose of financing the Costs of the Projects. All amounts held for the credit of the Project Fund and the Costs of Issuance Fund shall be invested and disbursed solely as provided in the Bond Indenture.
 SECTION 3.02. No Security for Loan Payments.
The obligation of the Borrower to make Loan Payments and pay the other amounts required to be paid by the Borrower pursuant to this Article shall be unsecured obligations and shall not be secured by any interest of the Borrower in or to the Project Fund, the Costs of Issuance Fund, or other funds held under the Bond Indenture.
 SECTION 3.03. Loan to Finance and Refinance Projects.
The Issuer shall loan to the Borrower, for the purpose of financing and refinancing the Costs of the Projects, all amounts received from the sale of the Bonds pursuant to Section  4.01 immediately upon receipt. Such loan shall be made by depositing such amounts into the Project Fund and the Costs of Issuance Fund.
The principal amount of, the interest borne by, the rights and obligations of prepayment with respect to, and the other terms of such loan shall be as provided in Section  3.04.
 SECTION 3.04. Terms and Payment of Loan and Note.
A. Loan Terms Generally. The loan made by the Issuer to the Borrower pursuant to Section  3.03 shall, subject to Subsections F and G of this Section,
(1) be in the same principal amount,
(2) mature on the same date or dates, in installments or otherwise, and in the same principal amounts,
(3) be subject to optional and mandatory prepayment in the same amounts, on or before the same dates, at the same prepayment premiums, if any, and under the same conditions, and
(4) bear interest for each day of accrual at the same average rate per annum payable on the same dates, including interest on overdue payments of principal (and premium, if any) and, to the extent that payment of such interest is legally enforceable, on overdue interest,
in every case as the Bonds, and such loan shall not otherwise be subject to prepayment. The Loan Payments on such loan shall be payable directly to the Trustee for the account of the Issuer, at the principal corporate trust office of the Trustee, in immediately available funds, in such coin or currency of
 
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the United States of America as at the time of payment is legal tender for payment of public and private debts. The Borrower shall repay such loan in accordance with its terms in immediately available funds by 1:00 p.m., New York, New York, time on each day on which payment is due.
B. Terms of Note. The obligation to repay the loan made pursuant to Section  3.03 shall be evidenced by a Note in the form attached hereto as Exhibit B, which shall, subject to Subdivisions F and G of this Section:
(1) be in the principal sum, bear interest at the rate or rates, and have such other terms as are described in Subsection A of this Section,
(2) be dated the Issue Date, and
(3) be payable to the Issuer, or registered assigns, and, upon authentication and delivery of the Bonds, be assigned by the Issuer to the Trustee as collateral security for payment of the Bonds.
Notwithstanding any provisions herein or in the Note to the contrary, the Issuer and its assigns agree that, on the date any Bonds are defeased pursuant to Section  10.02 of the Bond Indenture or acquired by the Borrower and delivered to the Trustee for cancellation, the principal amount owing on the Note and the loan evidenced thereby shall be reduced by the principal amount of the Bonds so defeased or acquired and canceled, less the amount payable by the Borrower to the Credit Facility Providers under the Reimbursement Agreements to reimburse draws or advances under the Credit Facilities to pay the principal of such Bonds, and the Trustee shall mark on the face of the Note the amount by which the principal of the Note has been so reduced. Failure to make such a notation by the Trustee shall not affect the Borrower’s obligations under the Note. The Issuer and its assigns further agree that the rights of the Borrower described in Subsections C and E of this Section shall supersede any contrary provisions in the Note.
C. Credit for Bond Fund Balance. Provided that no amounts are owing under the Reimbursement Agreements, the Borrower may, at its option, credit against any Loan Payment required to be made pursuant to this Section with respect to the Bonds, without duplication, any amounts held for the credit of the Bond Funds, except amounts segregated by the Trustee to pay the principal of (and premium, if any) and interest on any Outstanding Bonds with a Maturity, or the interest on any Outstanding Bonds with a Stated Maturity, at or prior to the date on which such Loan Payment is due, or held in the Redemption Fund for the redemption of Bonds, notwithstanding anything in the Note to the contrary, and to the extent of any Loan Payment in excess of the amount required by this Section to be paid giving effect to such credit, the Borrower shall, at its option and to the extent of the available balance of the Bond Funds, be entitled to reimbursement of such excess as an overpayment of such Loan Payment, but without any right to interest thereon, by causing the Trustee to pay such excess to the Credit Facility Providers (to the extent of obligations of the Borrower owing to such Persons under the Reimbursement Agreements) and (to the extent of any balance) to the Borrower.
D. Liability for Deficiency. In the event that, at 1:00 p.m., New York, New York, time, at the Maturity of any Bonds or any Interest Payment Date therefor, the available balance of the Bond Funds and the balance of the Credit Facility Fund are insufficient for any reason to pay in full the principal of (and premium, if any) and interest on the Bonds then due, the Borrower shall immediately pay to the Trustee, in immediately available funds, in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts, the amount required to cure such insufficiency.
 
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E. Credit for Credit Facility Advances. Any payment or provision for payment of principal or premium of or interest on the Bonds from proceeds of a claim made upon a Credit Facility which is a policy of municipal bond insurance shall not be deemed paid by the Borrower and shall not be credited against the obligation of the Borrower hereunder or under the Note, and no credit from any money held under the Bond Indenture from such proceeds shall reduce the amount due from the Borrower hereunder. For any other Credit Facility, the obligation of the Borrower pursuant to this Section and under the Note shall be deemed to be satisfied and discharged to the extent of any corresponding draw or claim by the Trustee under such Credit Facility applied to the payments of principal of (and premium, if any) or interest on Outstanding Bonds, except to the extent of any obligation then owing by the Borrower under the Reimbursement Agreement with the Credit Facility Provider obligated thereon.
F. No Usurious Interest. Notwithstanding any provision herein or in the Note to the contrary, in no event shall the rate of interest on the loan made pursuant to Section  3.03 or the Note exceed the maximum lawful non-usurious rate of interest, if any, which the Issuer is permitted to charge the Borrower from time to time under the laws of the State of Texas and the United States of America in effect on the Issue Date permitting the charging and collecting of the highest permissible lawful non-usurious interest rate on such loan (hereinafter referred to as “ Applicable Law ”), and in no event shall the aggregate of the interest on such loan and the Note, plus any other amounts paid in connection herewith which are deemed “interest” under Applicable Law in effect on the Issue Date, ever exceed the maximum amount of interest which could be lawfully charged on such loan and the Note under Applicable Law, and if any amount of interest taken or received by the Issuer or assigns shall be in excess of the maximum amount of interest which, under Applicable Law, could lawfully have been collected on such loan and the Note, then such excess shall be deemed to have been the result of a mathematical error by the Issuer, the Trustee, and the Borrower and shall be refunded promptly to the Borrower. All amounts paid or agreed to be paid in connection with the indebtedness evidenced by this Loan Agreement and the Note which under Applicable Law would be deemed “interest” shall, to the extent permitted by Applicable Law, be amortized, prorated, allocated, and spread throughout the full term of this Loan Agreement.
G. Payments Related to Insured Bonds. Notwithstanding Subsection A of this Section, if Bonds are insured by a policy of municipal bond insurance, the amounts due on the Note corresponding to payments of interest due on each Interest Payment Date and payments of principal thereof due at the Stated Maturity thereof and at each Maturity pursuant to mandatory sinking fund redemption shall be due by 10:00 a.m. New York, New York time on the Business Day immediately preceding the date such payments of principal of and interest on the Bonds are due, but without any diminution of the amount then due and payable on the Note.
H. Registration, Transfer, and Exchange of Note . The Borrower shall cause to be kept at the principal corporate trust office of the Trustee a register (herein referred to as the “Note Register” ) in which, subject to such reasonable regulations as the Borrower and the Trustee may prescribe, the Borrower shall provide for the registration and transfer of the Note as herein provided. The Trustee is hereby appointed Note Registrar for the purpose of registering the Note and transfers of the Note as herein provided.
Upon surrender for transfer of the Note at the principal corporate trust office of the Trustee, the Borrower shall execute, and the Trustee shall authenticate, number (with a number not contemporaneously outstanding on the Note Register), and deliver, in the name of the designated transferee or transferees, a new Note with the same terms; provided, however, that so long as any Bond is Outstanding, the Note shall not be transferred to any Person other than a successor Trustee unless pursuant to exercise by the Trustee of a remedy provided in the Bond Indenture. The Trustee shall promptly cancel the Note surrendered upon any such transfer and thereafter shall maintain such evidence in accordance with the standard retention policies of the Trustee and thereafter shall dispose of such evidence on Borrower Order. Each Note issued upon any such transfer shall evidence a valid obligation of the Borrower and the same debt.
 
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 SECTION 3.05. Purchase of Tendered Bonds By Borrower.
A. To Purchase Generally. The Borrower shall purchase Eligible Bonds (or portions thereof equal to, and leaving untendered, any authorized denomination), as provided in Section  4.12 of the Bond Indenture, from any Person, at the Purchase Price therefor,
(1) Optional Tender: upon tender (or constructive tender pursuant to Section  4.12D of the Bond Indenture), for purchase of such Bonds or portions thereof at the option of such Person on any Business Day for such Bonds in accordance with Section  4.06 of the Bond Indenture, if notice of such tender shall have been given to the Tender Agent and the Remarketing Agent for such Bonds in strict compliance with the provisions of Section  4.06 of the Bond Indenture, and
(2) Mandatory Tender: upon tender (or constructive tender pursuant to Section  4.12D of the Bond Indenture) for purchase of such Bonds or portions thereof as required by Sections 4.07, 4.08, 4.09 (unless such Bonds or portions are in an R-FLOATs Mode), or 4.10 of the Bond Indenture on any day on which such Bonds or portions are so required to be tendered for purchase,
and in any case (except upon constructive tender of such Bonds or portions thereof), upon delivery of any such Bond or portion thereof to be purchased to the Tender Agent on the Purchase Date therefor in accordance with Section  4.12D of the Bond Indenture, but only if the Purchase Price for such Bonds shall not have been paid by the time required by the Securities Depository to credit funds on the Purchase Date therefor from proceeds of the remarketing of Bonds pursuant to the Remarketing Agreement for such Bonds in accordance with the Bond Indenture or funds advanced by the Liquidity Facility Providers pursuant to the Liquidity Facilities for such Bonds.
B. Authority of Tender Agent. The Borrower hereby appoints the Tender Agent its agent with full authority, on behalf and in the stead of the Borrower, to pay the Purchase Price of Eligible Bonds or portions thereof to be purchased by the Borrower pursuant to this Section and delivered to the Tender Agent and to dispose of (and, to the extent required, endorse for transfer) such Bonds as provided in Sections 4.06 through 4.12 of the Bond Indenture and consents to acceptance and exercise by the Tender Agent of the other agencies therein provided.
 SECTION 3.06. Borrower to Pay Certain Amounts Under Bond Indenture; Successor Agents.
The Borrower shall pay, or shall remit sufficient funds to the Issuer to pay, when due:
A. Fees and Expenses of Trustee and Agents: all fees, expenses, and other charges of the Trustee, any separate trustee or co-trustee appointed under Section  8.06 of the Bond Indenture, the Tender Agent,. and the Remarketing Agents assessed in connection with the performance of the duties of such Persons under the Bond Indenture, and
B. Other Bond Indenture Expenses: all other expenses or other amounts which the Issuer has agreed to pay or has agreed to cause the Borrower to pay under the Bond Indenture.
The Borrower may contest the reasonableness or propriety of any such fee, expense, charge, or amount, in its own name or in the name of the Issuer. If such contest is brought in good faith, so long as the exercise by the Trustee of its lien on funds under the Bond Indenture securing such payment has been effectively
 
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stayed by agreement by the Trustee, judicial order, or otherwise, failure by the Borrower to pay the contested portion of any such fee, expense, charge, or amount shall not be considered a default hereunder during the pendency of such contest.
Whenever the Trustee, the Tender Agent, a Remarketing Agent, or the Securities Depository shall resign or be removed as such pursuant to the provisions of the Bond Indenture, the Borrower shall take all necessary action for the prompt appointment of a successor to such Person pursuant to the provisions of the Bond Indenture.
 SECTION 3.07. Waiver of Set-Off, Recoupment, Counterclaim, and Abatement.
In order to induce Persons to purchase the Bonds, thereby providing funds to finance the loan described in Section  3.03, the Borrower hereby waives, to the full extent that it may lawfully so agree, all rights of set-off, recoupment, counterclaim, and abatement against the Issuer, the Trustee, any separate trustee or co-trustee appointed under Section  8.06 of the Bond Indenture, the Tender Agent, and all Remarketing Agents with respect to the obligation of the Borrower to pay Loan Payments, the Purchase Price of Bonds pursuant to Section  3.05, and (to the extent secured by a lien upon the funds held under the Bond Indenture and unless the exercise of such lien has been effectively stayed by agreement of the Trustee, judicial order, or otherwise) the fees, expenses, charges, and amounts described in Section  3. 06, in every case notwithstanding any breach by the Issuer of its obligations hereunder or by any other such Person of its obligations under the Bond Indenture. The Borrower may, however, except as otherwise provided in Section  3.06, exercise any other remedy it may have at law or otherwise for any such breach.
 SECTION 3.08. Recording.
The Borrower shall cause this Loan Agreement, the Bond Indenture, and all supplemental indentures and other instruments of further assurance, including all financing statements covering security interests in personal property, to be promptly recorded, registered, and filed, and to cause to be kept recorded, registered, and filed, and when necessary, to re-record, re-register, and re-file the same, all in such manner and in such places as may be required by law fully to preserve, perfect, and protect the rights of the Bondholders, the Trustee, and the Credit Facility Providers under the Bond Indenture to all property in which a security interest is granted hereunder or under the Bond Indenture.
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ARTICLE IV
THE BONDS
 SECTION 4.01. Issuer to Issue Bonds.
Upon request of the Borrower, the Issuer shall authorize and execute, and use its best efforts to sell and deliver, the Bonds under the Bond Indenture for the purpose of financing the loan described in Section  3.03. The Bonds shall bear such terms as shall be required by the Bond Indenture; provided that no Bonds shall impose any pecuniary liability on the Issuer except to the extent of the proceeds of the Bonds, the Loan Payments (and draws under the Credit Facilities in satisfaction thereof), the balance of any funds or accounts of the Issuer established under the Bond Indenture, or such other revenues as may be provided by the Borrower.
 SECTION 4.02. Issuer to Redeem Bonds.
The Issuer shall cause the Trustee to call for redemption:
A. Mandatory Redemption : such Bonds at such times as are required by the terms thereof or by the Bond Indenture to be redeemed prior to their Stated Maturity and
B. Optional Redemption : any Bonds upon Borrower Request, at the time specified in such Borrower Request, provided that such Bonds are subject to optional redemption prior to their Stated Maturity at such time pursuant to the terms thereof.
The Issuer shall cooperate fully with the Borrower in connection with the redemption of Bonds.
 SECTION 4.03. Conversion of Subseries, Interest Modes, and Interest Periods.
The Borrower may direct the redesignation of the subseries or the conversion of the Mode for the Bonds or any portion thereof or a change in the duration of Interest Periods for the Bonds or any portion thereof in a Term Rate Mode in accordance with the provisions of the Bond Indenture.
 SECTION 4.04. Investment Authority.
The Issuer hereby authorizes the Borrower to direct the investment of money held under the Bond Indenture pursuant to and in accordance with Section  5.05 of the Bond Indenture.
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ARTICLE V
COVENANTS AND WARRANTIES
 SECTION 5.01. Representations and Warranties of Issuer.
The Issuer represents and warrants that:
A. Due Existence : the Issuer has been duly created and validly exists pursuant to the provisions of the Act;
B. Due Authority : the Issuer has due corporate power and authority under the Act and its articles of incorporation to enter into this Loan Agreement and to observe or perform the covenants and obligations required to be observed or performed by the Issuer hereunder;
C. Binding Agreement : this Loan Agreement has been duly authorized, executed, and delivered by the Issuer and, assuming due authorization, execution, and delivery hereof by the Borrower, constitutes a legal, valid, and binding agreement of the Issuer enforceable against the Issuer in accordance with its terms;
D. No Conflict : the observance and performance by the Issuer of its obligations hereunder will not violate or conflict with its articles of incorporation or bylaws or any material provision of any material mortgage, deed of trust, indenture, or other agreement or judgment to which it is a party; and
E. Satisfaction of Act : this Loan Agreement is for the benefit of the Issuer, and the bond counsel and financial adviser participating in the issuance of the Bonds are acceptable to the Issuer.
 SECTION 5.02. Representations and Warranties of Borrower.
The Borrower represents and warrants that:
A. Due Existence : the Borrower is a limited liability company duly organized and existing under the laws of the State of Texas;
B. Due Authority : the Borrower has due power and authority under its limited liability company agreement and applicable provisions of law to enter into this Loan Agreement and to observe or perform the covenants and obligations required to be observed or performed by the Borrower hereunder;
C. Binding Agreement : this Loan Agreement has been duly authorized, executed, and delivered by the Borrower and, assuming due authorization, execution, and delivery hereof by the Issuer, constitutes a legal, valid, and binding agreement of the Borrower enforceable against the Borrower in accordance with its terms;
D. No Conflict : the observance and performance by the Borrower of its obligations hereunder will not violate or conflict with the limited liability company agreement of the Borrower or any material provision of any material mortgage, deed of trust, indenture, or other agreement or judgment to which the Borrower is a party or by which the Borrower or its properties are bound;
E. Location of Projects : the Projects are and will be situated in their entirety within the territorial boundaries of Harris County, Texas; and
 
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F. Advisors Acceptable : the bond counsel and financial adviser participating in the issuance of the Bonds are acceptable to the Borrower.
 SECTION 5.03. Limitation on Obligations of Issuer; Reimbursement of Expenses, Charges, and Taxes.
The Issuer shall be obligated hereunder and under the Bond Indenture solely to the extent of the proceeds of the Bonds, the Loan Payments (and draws under the Credit Facilities in satisfaction thereof), the balance of any funds or accounts of the Issuer established under the Bond Indenture, and such other revenues as may be provided by the Borrower for the purpose of paying for the costs of performance by the Issuer hereunder (including payments pursuant to Section  3.06), and the Issuer shall not otherwise be required to expend any funds in the observance or performance of its obligations hereunder or under the Bond Indenture. If, however, the Issuer otherwise pays or incurs any expense or charge, or is subject to any tax, as a result of the observance or performance of its obligations hereunder, or in connection with the enforcement of the obligations of the Borrower hereunder, the Borrower shall upon demand by the Issuer promptly reimburse to the Issuer all such fees, charges, and taxes in full. Without limiting the generality of the foregoing, the Borrower shall pay to or for the account of the Issuer out of money from the proceeds of the sale and delivery of the Bonds an amount equal to all of the out-of pocket expenses and costs of the Issuer in connection with the issuance, sale, and delivery of the Bonds, including without limitation all financing, legal, financial advisory, printing, and other expenses and costs in issuing the Bonds, plus any compensation paid to any employees of the Issuer for the time such employees have spent on activities relating to the issuance, sale, and delivery of Bonds.
In addition to the foregoing, the Borrower shall pay, or cause to be paid, upon receiving a bill or statement therefor, all of the Administration Expenses of the Issuer and, on an annual basis, any of the Issuer’s actual costs reasonably and necessarily incurred in connection with the Bonds and the Projects during the previous fiscal year.
 SECTION 5.04. Trustees, Directors, Officers, Employees, and Agents Exempt from Personal Liability.
This Loan Agreement is solely a corporate obligation of the Issuer and the Borrower, respectively, the Note is solely a company obligation of the Borrower, and no recourse under or upon any obligation, covenant, or agreement contained in this Loan Agreement or the Note, or for any claim based thereon or otherwise in respect thereof, shall be had against any incorporator or owner, or against any past, present, or future trustee, director, officer, or employee, as such, of the Issuer, the Borrower, or of any successor to either of them, either directly or through the Issuer or the Borrower, whether by virtue of any constitution or statute or rule of law, or by the enforcement of any assessment, judgment, or penalty, or otherwise; it being expressly understood that this Loan Agreement and the Note are solely corporate or company obligations, and that no such personal liability whatever shall attach to, or is or shall be incurred by, the incorporators, owners, trustees, directors, officers, or employees, as such, of the Issuer, the Borrower, or any successor, or any of them, because of the creation of indebtedness hereby authorized, or under or by reason of the obligations, covenants, or agreements contained in this Loan Agreement or the Note or implied therefrom, and that any and all such personal liability either at common law or equity or by constitution or statute, of, and any and all such rights and claims against, every such incorporator, owner, trustee, director, officer, or employee, as such, are hereby expressly waived and released as a condition of, and in consideration for, the execution of this Loan Agreement and the issue of the Note.
 SECTION 5.05. Borrower to Indemnify Certain Persons.
The Borrower shall indemnify each of the Trustee, the Tender Agent, each predecessor of either thereof, and each of their respective officers, directors, and employees for, and hold it harmless
 
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against, any loss, liability, or expense incurred without negligence, willful misconduct, or bad faith on its own part, arising out of or in connection with the acceptance, administration, or performance of its duties hereunder or under the Bond Indenture or any Liquidity Facility, including the costs and expenses of defending itself against any claim or liability in connection with the exercise or performance of any of its powers or duties hereunder or under the Bond Indenture or any Liquidity Facility.
THE BORROWER RELEASES AND SHALL DEFEND AND HOLD THE ISSUER, EACH OF THE DIRECTORS AND OFFICERS OF THE ISSUER, HARRIS COUNTY, TEXAS, AND EACH OF THE COUNTY COMMISSIONERS OF SUCH COUNTY HARMLESS FROM ANY TAX, PENALTY, FINE, COST, EXPENSE, LOSS, DAMAGE, OR OTHER LIABILITY OR CLAIM (INCLUDING ATTORNEYS’ FEES, LITIGATION AND COURT COSTS, AND OTHER EXPENSES OF THE DEFENSE THEREOF AND AMOUNTS PAID IN SETTLEMENT OR TO DISCHARGE JUDGMENTS, EXCEPT AS OTHERWISE PROVIDED IN THIS SECTION) INCURRED BY OR ASSERTED AGAINST ANY SUCH INDEMNIFIED PARTY AS A RESULT OF ANY ACTION OR OMISSION BY THE ISSUER OR SUCH INDEMNIFIED PARTY OR OTHER PERSON HEREUNDER OR UNDER THE BOND INDENTURE (OR ANY OTHER DOCUMENT EXECUTED BY SUCH PERSON IN CONNECTION WITH THE ISSUANCE OF BONDS), OR AS A RESULT OF ANY ACTION OR OMISSION OF THE BORROWER IN THE DESIGN, CONSTRUCTION, INSTALLATION, EQUIPPING, FURNISHING, OPERATION, USE, OCCUPANCY, INSURANCE, MAINTENANCE, OR OWNERSHIP OF ANY PROJECT OR THE OBSERVANCE OR PERFORMANCE OF THE OBLIGATIONS OF THE BORROWER HEREUNDER, OR IN CONNECTION WITH THE SALE, OFFERING FOR SALE, ISSUANCE, OR DELIVERY OF ANY BONDS, UNLESS ANY SUCH ACT OR OMISSION BY SUCH INDEMNIFIED PARTY BE DETERMINED BY A COURT OF COMPETENT JURISDICTION TO HAVE BEEN WILLFUL MISCONDUCT (AND WHETHER OR NOT ANY SUCH ACT OR OMISSION SHALL HAVE BEEN NEGLIGENT), IT BEING THE EXPRESS INTENT OF THE PARTIES THAT THE BORROWER SHALL SO INDEMNIFY SUCH INDEMNIFlED PARTIES EVEN AGAINST THEIR NEGLIGENT ACTS AND OMISSIONS.
The Borrower may, and if requested in writing by any indemnified party shall, undertake the defense of any claim, action, or proceeding for which such indemnified party is indemnified under this Section, and, thereafter, the Borrower shall not be liable to any such indemnified party for any legal or other expenses other than reasonable costs subsequently incurred by such indemnified party at the request of the Borrower in connection with the defense thereof, unless (1) the employment of such counsel has been specifically authorized by the Borrower, in writing, (2) the Borrower has failed after request to assume the defense and to employ counsel, or (3) the named parties to any such action (including any impleaded parties) include both an indemnified party and the Borrower, and the indemnified party shall have been advised by counsel that there may be one or more legal defenses available to it which are different from or additional to those available to the Borrower (in which case, if such indemnified party notifies the Borrower in writing that it elects to employ separate counsel at the expense of the Borrower, the Borrower shall not have the right to assume the defense of the action on behalf of such indemnified party); provided, however, that the Borrower shall not, in connection with any one action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general allegation or circumstances, be liable for the reasonable fees and expenses of more than one separate firm of attorneys for all indemnified parties, provided that any indemnified party which has been advised by counsel that there may be one or more legal defenses available to it which are different from or additional to those available to any other indemnified party shall have the right to employ separate counsel whose fees and expenses shall be paid by the Borrower. The Borrower shall be liable for no settlement of any such claim, action, or proceeding effected without its consent. Each indemnified party shall give prompt notice of any claim, action, or proceeding against it upon which such indemnified party may seek indemnity hereunder. Notwithstanding anything herein to the contrary, the indemnifications set forth herein shall survive the termination of this Loan Agreement and/or the resignation of the Trustee and the Tender Agent.
 
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 SECTION 5.06. Modification of Bonds and Bond Indentures; Limitation on Liens.
The Issuer shall not modify or supplement, or agree to the modification or supplementation of, the terms of the Bonds or the Bond Indenture except upon Borrower Consent.
 SECTION 5.07. Maintenance of Tax-Exempt Status of Bonds.
A. General. The Borrower shall not take any action or omit to take any action which, if taken or omitted, respectively, would adversely affect the excludability of interest on any Bond from the gross income, as defined in section 61 of the Code, of the owner thereof for federal income tax purposes (except for any period of time during which such Bond is held by a “substantial user” of a Project or by a “related person” within the meaning of section 147(a) of the Code). The Borrower and the Issuer shall execute such amendments hereof and supplements hereto (and shall comply with the provisions thereof) as may, in the Opinion of Counsel, be necessary to preserve or perfect such exclusion. The Borrower shall comply with each specific covenant in this Section at all times prior to the last Maturity of the Bonds (and, in the case of Subsection G of this Section, until compliance therewith in full), unless and until there shall have been delivered to the Trustee and the Issuer an Opinion of Counsel to the effect that failure to comply with such covenant, either generally or to the extent stated therein, shall not adversely affect the excludability of interest on any Bond from the gross income, as defined in section 61 of the Code, of the owner thereof for federal income tax purposes (except for any period of time during which such Bond is held by a “substantial user” of a Project or by a “related person” within the meaning of section 147(a) of the Code), and thereafter such covenant shall no longer be binding upon the Borrower, generally or to such extent as the case may be, anything in any other Subsection of this Section to the contrary notwithstanding.
B. Representations.
(1) General. All representations, warranties, and certifications made by the Borrower in connection with the delivery of the Bonds on the Issue Date, including, but not limited to, those representations, warranties, and certifications contained in any Tax Letter of Representation executed by the Borrower, or in any requisition delivered to the Trustee requesting or directing the disbursement of money from the Project Fund or the Costs of Issuance Fund, are and shall be true, correct, and complete in all material respects.
(2) Maturity of Bonds. The weighted average maturity, calculated in accordance with section 147(b) of the Code, of the Bonds does not exceed 120 percent of the average reasonably expected economic life of the Projects to be financed with proceeds of the Bonds, calculated in accordance with section 147(b) of the Code.
(3) Storm Loss. The Borrower, and if the Borrower is a disregarded entity for federal income tax purposes, the most immediate direct or indirect owner of the Borrower that is a regarded entity for such purposes, suffered a loss in a trade or business attributable to Hurricane Ike or is a person designated by the Governor of the State of Texas as a person carrying on a trade or business replacing a trade or business with respect to which another person suffered such a loss.
C. Prohibition on Certain Uses. The Borrower shall not use or permit the use of any proceeds of the Bonds or any income from the investment thereof:
 
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(1) Prohibited Facilities : to provide any movable fixture or equipment, airplane, skybox or other private luxury box, health club facility, private or commercial golf course, country club, massage parlor, hot tub facility, suntan facility, racetrack or other facility primarily used for gambling, or store the principal business of which is the sale of alcoholic beverages for consumption off premises, or
(2) Costs of Issuance : to pay or otherwise finance costs of issuance of the Bonds ( e.g. , underwriting compensation, trustee and rating agency fees, printing costs, Issuer fees, and fees and expenses of counsel) in an amount which exceeds 2% of the proceeds from the sale of the Bonds.
The Borrower shall not requisition funds from the Project Fund in a manner that would cause the representation made in Subsection B(2) of this Section to become untrue.
D. Not to Cause Classification as Arbitrage Bonds or Hedge Bonds. The Borrower shall not (and shall not direct or permit the Trustee to) invest, and shall not take any other action or omit to take any other action with respect to, the Gross Proceeds of the Bonds or any amounts expected to be used to pay the principal thereof or the interest thereon which, if directed, permitted, taken, or omitted, respectively, would cause any Bond to be classified as an “arbitrage bond” within the meaning of section 148 of the Code or a “hedge bond” within the meaning of section 149 of the Code.
E. No Federal Guarantees, Etc. Except to the extent permitted in section 149(b) of the Code and the Regulations and rulings thereunder, the Borrower shall not take or omit to take any action which would cause the Bonds to be federally guaranteed within the meaning of section 149(b) of the Code and the Regulations and rulings thereunder.
F. No Instruction to Divert Arbitrage Profits or Invest at Guaranteed Yield. The Borrower shall not direct, instruct, or permit the Trustee to invest any Gross Proceeds of the Bonds in any Taxable Investments:
(1) Off Market : for which there is not an established market (except obligations purchased from the United States Treasury) or otherwise enter into any transaction that reduces the amount required to be paid to the United States pursuant to Subsection G of this Section because such transaction results in a smaller profit or a larger loss than would have resulted had the yield on the Bonds or such investment not been relevant to either party, or
(2) Hedge : in an amount which exceeds 50% of such Gross Proceeds if such Taxable Investments assure a substantially guaranteed yield for four years or more.
G. To Rebate Arbitrage Profits .
(1) To Deliver Documents and Money on Computation Dates. The Borrower shall deliver to the Trustee, within 55 days after each Computation Date,
(a) Statement of Rebate Amount and Income : a statement, signed by an Accountant, stating (i) the Rebate Amount for the Bonds as of such Computation Date, and (ii) the minimum portion thereof which must be remitted to the United States Treasury in respect of such Computation Date to satisfy the requirements of Section 1.148-3(f) of the Regulations in respect of the Bonds,
 
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(b) Rebate Payment : either (i) an amount which, together with the amount then held for the credit of the Rebate Fund, is equal to the amount then elected by the Borrower to be paid by the Issuer in respect of such Computation Date pursuant to Section 5.06E of the Bond Indenture, which aggregate amount shall not be less than the minimum amount specified in such Accountant’s statement, or (ii) a Borrower Order to transfer from the Project Fund to the Rebate Fund an amount which does not exceed the balance of such fund and which, together with the amount then held for the credit of the Rebate Fund, is equal to the amount specified in the immediately preceding Clause (i) , and
(c) IRS Forms : an Internal Revenue Service Form 8038-T completed as of such Computation Date or such other form as may be required to be filed by the Regulations.
(2) To Correct Underpayments. If the Borrower shall discover or be notified as of any date that any payment made to the United States Treasury pursuant to Section 5.06E of the Bond Indenture shall have failed to satisfy any requirement of Section 1.148-3 of the Regulations (whether or not such failure shall be due to any default by the Borrower, the Issuer, or the Trustee), the Borrower shall (a) deliver to the Trustee a brief written explanation of such failure and any basis for concluding that such failure was not due to willful neglect and (b) pay to the Trustee (for deposit to the Rebate Fund) and cause the Trustee to pay to the United States Treasury from the Rebate Fund, within 180 days after such discovery or notice, the correct amount in respect thereof, interest thereon, and any penalty imposed under Section 1.148-3(h) of the Regulations.
(3) Preservation of Accounting Records. The Borrower shall retain all of its accounting records relating to the Bond Funds, the Project Fund, the Costs of Issuance Fund, and the Rebate Fund, and all calculations made in preparing the statements described in Subsection G(1) of this Subsection, for at least six years after the later of the final Maturity of the Bonds or the first date on which no Bonds are Outstanding.
(4) Elections. The Issuer hereby authorizes the Borrower to exercise, on behalf of the Issuer, any election in respect of the Bonds pursuant to the Regulations, including the election of Computation Dates, and the Issuer will cooperate with the Borrower and execute any form or statement required by such Regulations to perfect any such election. The Issuer shall maintain any such election which is provided to it as well as this Loan Agreement as part of the official transcript of proceedings relating to the issuance of the Bonds until six years after the final Computation Date.
(5) Exemption from Rebate. If the Borrower shall deliver to the Trustee, on or before the first Rebate Calculation Date, either (1) an Officers’ Certificate of the Borrower, signed by an Accountant, stating that all Gross Proceeds of the Bonds were expended within six months after the Issue Date, excluding Gross Proceeds credited to the Bond Fund, if any, or (2) both an Officers’ Certificate of the Borrower, signed by an Accountant, stating the purposes for which Gross Proceeds of the Bonds (other than Gross Proceeds in the Bond Fund) have been expended, the dates of such expenditures, and the amounts so expended and an Opinion of Counsel, given in reliance upon such Officers’ Certificate, stating that section 148(f)(2) of the Code does not apply to Gross Proceeds of the Bonds, then in either such case the provisions of this Subsection G shall be suspended until such time, if ever, as such provisions are reinstated in accordance with this Subsection G(5). If, more than six months after the Issue Date or the date of either such Officers’ Certificate, Gross Proceeds of the Bonds (other than amounts credited to the Bond Funds) exist, the Borrower shall promptly deliver to the Trustee an Officers’ Certificate of the Borrower stating such fact, and the provisions of this Subsection G shall be reinstated, but only with respect to such Gross Proceeds.
 
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H. To Provide Information for Form 8038. The Borrower shall timely and accurately provide to the Issuer all information required by section 149 of the Code to be filed with respect to the Bonds.
I. Qualified Project Costs. At least 95% of the net proceeds of the Bonds shall be used for the acquisition, construction, reconstruction, and renovation of nonresidential real property located in a Hurricane Ike disaster area for which the person using the property suffered a loss in a trade or business attributable to Hurricane Ike or is a person designated by the Governor of Texas as a person carrying on a trade or business replacing a trade or business with respect to which another person suffered such a loss.
J. Limitation on Land Acquisition. No more than 25% of the net proceeds of the Bonds shall be used for the acquisition of land or an interest therein, other than as permitted under Section 147(c) of the Code and the regulations and rulings thereunder.
K. Limitation on Acquisition of Existing Property. Other than as permitted in Section 147(d) of the Code and the regulations and rulings thereunder, no portion of the net proceeds of the Bonds shall be used for the acquisition of any property or an interest therein unless the first use of such property is pursuant to such acquisition (within the meaning of Section 147(d) of the Code and the regulations and rulings thereunder).
L. Records. Until four years after the final Maturity of the Bonds, the Borrower shall preserve and maintain such records as may be required to establish the accuracy of all representations and warranties and compliance with all covenants in this Section throughout the full term of this Agreement.
SECTION 5.08. To Exclude Ineligible Bonds from Tenders.
The Borrower and the Issuer shall give all notices in the manner and by the time required by the Securities Depository or any of its direct or indirect participants to exclude Bonds legally or beneficially owned by such Persons from tenders of Bonds permitted or required by Section 4.06, 4.07, 4.08, 4.09, or 4.10 of the Bond Indenture.
SECTION 5.09. Limitations Affecting Tenders and Purchases of Bonds.
Neither the Issuer nor the Borrower will lend, contribute, or otherwise advance funds to any Person for the purchase of Bonds tendered for purchase in accordance with Section 4.06, 4.07, 4.08, 4.09, or 4.10 of the Bond Indenture, if such Person would be an Excluded Purchaser if all relevant facts were known to the Trustee and the Tender Agent, and the Issuer shall not purchase any such Bonds.
If, pursuant to any Credit Facility, Reimbursement Agreement, or Liquidity Facility, the Borrower is obligated to reimburse any Credit Facility Provider or Liquidity Facility Provider for amounts claimed or drawn under a Credit Facility or Liquidity Facility, respectively, to pay principal of (and premium, if any) or interest on Bonds or the Purchase Price of tendered Bonds, the Borrower shall make each such reimbursement only after such Credit Facility Provider or Liquidity Facility Provider has disbursed such amount with respect to which such reimbursement is made.
The Borrower shall not purchase (and shall not permit any Affiliate of the Borrower or any nominee or other Person acting for the account of the Borrower or an Affiliate of the Borrower to purchase) any Bonds tendered for purchase in accordance with Section 4.06, 4.07, 4.08, 4.09, or 4.10 of the Bond Indenture, except in accordance with Section 3.05.
 
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SECTION 5.10. Consolidation and Merger.
The Borrower covenants that during the term of this Loan Agreement it will maintain its existence and will not transfer all or substantially all of its assets to, and will not consolidate with or merge into, another Person; provided that the Borrower may consolidate with or merge into another entity (i.e., an entity organized and existing under the laws of one of the states of the United States or the District of Columbia), or transfer to another domestic entity all or substantially all of its assets, and may thereafter dissolve, if the surviving, resulting or transferee entity, as the case may be, is the Borrower or a domestic entity which (1) is qualified to do business in the State of Texas, (2) irrevocably and unconditionally assumes in writing (herein referred to as the “ Assumption Agreement ”) all of the obligations of the Borrower under this Loan Agreement, and (3) shall have, concurrently with such transaction, delivered to the Issuer and the Trustee an Opinion of Counsel to the effect that such entity has full power and authority to execute and deliver the Assumption Agreement, that the Assumption Agreement has been duly authorized, executed, and delivered by such entity and is the legal, valid, and binding obligation of such entity, enforceable against such entity in accordance with its terms (except as enforcement thereof may be limited by bankruptcy or insolvency or other laws affecting creditors’ rights generally), and that such consolidation, merger, sale, or other transfer complies with this Loan Agreement. If any consolidation, merger, sale, or other transfer is made as provided in this Section, the provisions of this Section shall continue in full force and effect, and no further consolidation, merger, sale, or other transfer shall be made except in compliance with the provisions of this Section.
 SECTION 5.11. Assignment.
The Borrower may assign its interest in this Loan Agreement in whole or in part, provided, however, that no assignment shall relieve the Borrower from primary liability for any of its obligations hereunder, and without limiting the generality of the foregoing, in the event of any such assignment the Borrower shall continue to remain primarily liable for its payments specified herein and for performance and observance of the other covenants and agreements on its part herein provided. The Borrower may also assign its interest in this Loan Agreement in connection with a consolidation with or merger into another domestic entity, or the sale or transfer of all or substantially all of its assets as an entirety to another domestic entity, if such transaction complies with the requirements of Section 5.10 and the last sentence of this Section. Anything in this Loan Agreement notwithstanding, no assignment of the Borrower’s interest in this Loan Agreement shall be effective unless the Borrower shall, on or prior to the effective date of any such assignment, furnish or cause to be furnished to the Issuer and the Trustee notice of such assignment, together with an Opinion of Counsel to the effect that such assignment is permitted by the Act and the Bond Indenture and will not adversely affect any exclusion of the interest on any Bond from the gross income, as defined in section 61 of the Code, of the owner thereof for federal income tax purposes (except for any period of time during which such Bond is held by a “substantial user” of a Project or a “related person” within the meaning of section 147(a) of the Code).
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ARTICLE VI
CONTINUING DISCLOSURE UNDERTAKING
 SECTION 6.01. Audited Financial Statements and Material Event Notices.
A. Annual Reports. The Borrower shall provide annually to the MSRB, within six months after the end of each fiscal year of the Borrower, annual financial information and operating data of the Borrower of the general type included in the Official Statement together with audited financial statements of the Borrower for such fiscal year prepared in accordance with generally accepted accounting principles.
If the Borrower changes its fiscal year, the Borrower will notify the MSRB of the change (and of the date of the new fiscal year end) prior to the next date by which the Borrower otherwise would be required to provide financial information and operating data pursuant to this Section.
B. Material Events Notices. The Borrower shall provide notice of any of the following events with respect to the Bonds to the MSRB in a timely manner and not more than 10 business days after occurrence of the event:
(I) Principal and interest payment delinquencies;
(2) Non-payment related defaults, if material;
(3) Unscheduled draws on debt service reserves reflecting financial difficulties;
(4) Unscheduled draws on credit enhancements reflecting financial difficulties;
(5) Substitution of credit or liquidity providers, or their failure to perform;
(6) Adverse tax opinions, the issuance by the Internal Revenue Service of proposed or final determinations of taxability, Notices of Proposed Issue (IRS Form 5701-TEB), or other material notices or determinations with respect to the tax status of the Bonds, or other material events affecting the tax status of the Bonds;
(7) Modifications to rights of holders of the Bonds, if material;
(8) Bond calls, if material, and tender offers;
(9) Defeasances;
(10) Release, substitution, or sale of property securing repayment of the Bonds, if material;
(11) Rating changes;
(12) Bankruptcy, insolvency, receivership, or similar event of the Borrower, which shall occur as described below;
(13) The consummation of a merger, consolidation, or acquisition involving the Borrower or the sale of all or substantially all of its assets, other than in the ordinary course of business, the entry into of a definitive agreement to undertake such an action or the termination of a definitive agreement relating to any such actions, other than pursuant to its terms, if material; and
 
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(14) Appointment of a successor or additional trustee or the change of name of a trustee, if material.
For these purposes, any event described in the immediately preceding paragraph (12) is considered to occur when any of the following occur: the appointment of a receiver, fiscal agent, or similar officer for the Borrower in a proceeding under the United States Bankruptcy Code or in any other proceeding under state or federal law in which a court or governmental authority has assumed jurisdiction over substantially all of the assets or business of the Borrower, or if such jurisdiction has been assumed by leaving the existing governing body and officials or officers in possession but subject to the supervision and orders of a court or governmental authority, or the entry of an order confirming a plan of reorganization, arrangement, or liquidation by a court or governmental authority having supervision or jurisdiction over substantially all of the assets or business of the Borrower.
The Borrower shall notify the MSRB, in a timely manner, of any failure by the Borrower to provide audited financial statements, annual financial information or operating data in accordance with this Section by the time required by this Section.
 SECTION 6.02. Filing Requirements.
Each document provided to the MSRB in accordance with this Article shall be provided in the electronic format and with the identifying information prescribed by the MSRB.
 SECTION 6.03. Limitations, Disclaimers, and Amendments.
The Borrower shall be obligated to observe and perform the covenants specified in this Article for so long as, but only for so long as, the Borrower remains an “obligated person” with respect to the Bonds within the meaning of the Rule, except that the Borrower in any event will provide notice to the MSRB of any defeasance that causes the Borrower to be no longer such an “obligated person.”
The provisions of this Article are for the sole benefit of the Holders and beneficial owners of the Bonds, and nothing in this Article, express or implied, shall give any benefit or any legal or equitable right, remedy, or claim hereunder to any other Person. The Borrower undertakes to provide only the financial statements, financial information and operating data, and notices which it has expressly agreed to provide pursuant to this Article and does not hereby undertake to provide any other information that may be relevant or material to a complete presentation of the financial results, condition, or prospects of the Borrower or hereby undertake to update any information provided in accordance with this Article or otherwise, except as expressly provided herein. The Borrower does not make any representation or warranty concerning such information or its usefulness to a decision to invest in or sell Bonds at any future date.
UNDER NO CIRCUMSTANCES SHALL THE BORROWER BE LIABLE TO THE HOLDER OR BENEFICIAL OWNER OF ANY BOND OR ANY OTHER PERSON, IN CONTRACT OR TORT, FOR DAMAGES RESULTING IN WHOLE OR IN PART FROM ANY BREACH BY THE BORROWER, WHETHER NEGLIGENT OR WITHOUT FAULT ON ITS PART, OF ANY COVENANT SPECIFIED IN THIS ARTICLE, BUT EVERY RIGHT AND REMEDY OF ANY SUCH PERSON, IN CONTRACT OR TORT, FOR OR ON ACCOUNT OF ANY SUCH BREACH SHALL BE LIMITED TO AN ACTION FOR SPECIFIC PERFORMANCE.
No default by the Borrower in observing or performing its obligations under this Article to provide information to the MSRB shall constitute a breach of or default under this Loan Agreement for purposes of any other provision of this Loan Agreement or the Bond Indenture.
 
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Nothing in this Article is intended or shall act to disclaim, waive, or otherwise limit the duties of the Borrower under federal and state securities Jaws.
The provisions of this Article may be amended by the Borrower and the Issuer from time to time upon at least 30 days written notice provided to the Trustee, the Remarketing Agents, and the MSRB, and by the Trustee to the Bondholders, but only if (1) the purpose of such amendment is to adapt to changed circumstances that arise from a change in legal requirements, a change in law, or a change in the identity, nature, status, or type of operations or businesses of the Borrower and both (a) the provisions of this Article, as so amended, would have permitted an underwriter to purchase or sell Bonds in compliance with the Rule in the most recent primary offering of the Bonds, taking into account any interpretations of the Rule by the U.S. Securities and Exchange Commission to the date of such amendment, as well as such changed circumstances, and (b) either (i) the Holders of a majority in aggregate principal amount of the Outstanding Bonds consent to such amendment or (ii) a Person that is unaffiliated with the Borrower (such as nationally recognized bond counsel) determines that such amendment will not materially impair the interests of the Holders and beneficial owners of the Bonds or (2) such amendment is conditioned on a primary offering or placement following mandatory tender and purchase of the Bonds. If the Borrower and the Issuer so amend the provisions of this Article, the Borrower shall include with any financial statements next provided in accordance with Section  6.01 an explanation, in narrative form, of the reasons for the amendment and of the impact of any change in the type of financial information or operating data so provided. The Issuer shall execute any amendment to the provisions of this Article permitted by the terms of this Section upon Borrower Request.
*                    *                      *
 
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This instrument may be executed in any number of counterparts, each of which so executed shall be deemed to be an original, but all such counterparts shall together constitute but one and the same instrument.
I N W ITNESS W HEREOF , the parties hereto have caused this Loan Agreement to be duly executed as of the day and year first above written.

HARRIS COUNTY INDUSTRIAL DEVELOPMENT CORPORATION	
		
By:	 	/s/ Authorized Representative	
	 	President	
[ Other signature page follows ]
 
S-1

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S-2

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HFOTCO LLC	
		
By:	 	/s/ Authorized Representative	
		
Title:	 	    CFO	
 
S-3

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S-4

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E XHIBIT A
TO
L OAN A GREEMENT
DESCRIPTION OF THE PROJECTS

The Projects to be refinanced with proceeds of the Bonds consist of improvements to real property (excluding moveable fixtures and equipment) used or to be used in the Borrower’s residual and crude oil terminal and dock facilities located at or near 16717 Jacintoport Boulevard in Houston, Texas, including, without limitation, a ship dock, tanks for residual and crude oil storage, an electrical substation, and related fixed equipment, structures, and facilities.
 
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A-2

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E XHIBIT B
TO
L OAN A GREEMENT
FORM OF NOTE

This Note has not been registered under the Securities Act of l933, as amended.

$50,000,000.00	  	No.         	
NOTE
(HFOTCO LLC Project Series 2011)
[ Closing Date ]
FOR VALUE RECEIVED, HFOTCO LLC, a Texas limited liability company (hereinafter referred to as the “ Borrower ”), promises to pay to the HARRIS COUNTY INDUSTRIAL DEVELOPMENT CORPORATION, a Texas non-profit corporation organized with the approval of Harris County, Texas, pursuant to the Development Corporation Act, Chapter 501, Texas Local Government Code, as amended (hereinafter referred to as the “ Issuer ”), or registered assigns, (a) the principal sum of Fifty Million and no/100 Dollars ($50,000,000.00) on November 1, 2050, (b) interest on the unpaid portion thereof from and including the date hereof at a rate for each day of accrual equal to the arithmetic mean, weighted in proportion to the principal amounts thereof, of the rates of interest borne by the bonds of the Issuer designated its MARINE TERMINAL REVENUE BONDS (HFOTCO LLC PROJECT) SERIES 2011 (herein referred to as the “ Bonds ”) Outstanding (as defined in the Bond Indenture referred to herein) on such day, computed on the same basis and payable on the same dates and in the same amounts as such interest on the Bonds (or as provided in Sections 3.04G of the Loan Agreement referred to herein, if earlier), and (c) the obligations of the Borrower described in Sections 3.04D, 3.06, and 5.07G of the Loan Agreement referred to herein, provided that in no event shall the aggregate of the interest hereon, plus any other amounts paid in connection herewith which are deemed “interest” under the laws of the State of Texas or the United States of America permitting the charging and collecting of the highest permissible lawful non-usurious interest rate hereon in effect on the date hereof (hereinafter referred to as “ Applicable Law ”), ever exceed the maximum amount of interest which could be lawfully charged hereon under Applicable Law, anything herein or in the Loan Agreement hereinafter described to the contrary notwithstanding, and if any amount of interest taken or received by the holder hereof shall be in excess of the maximum amount of interest which, under Applicable Law, could lawfully have been collected hereon, then the excess shall be deemed to have been the result of a mathematical error by the Borrower and the holder hereof and shall be refunded promptly to the Borrower. All amounts paid or agreed to be paid in connection with the indebtedness evidenced hereby and by the Loan Agreement hereinafter described which under Applicable Law would be deemed “interest” shall, to the extent permitted by Applicable Law, be amortized, prorated, allocated, and spread throughout the full term hereof.
The principal hereof (and prepayment premium, if any) and interest hereon shall be payable at the principal corporate trust office of the corporation then acting as trustee (herein referred to as the “ Trustee ”) under that certain Bond Indenture, dated as of December 1, 2011, between the Issuer and The Bank of New York Mellon Trust Company, National Association, as trustee, which secures the Bonds (herein referred to as the “ Bond Indenture ”). All such payments shall be made, in immediately available funds, in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts.
 
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All sums due hereon shall be payable at the opening of business of the principal corporate trust office of the Trustee on the date such payments become due. All sums paid hereon shall be applied to the satisfaction of, first, the sums specified in Clause (c)  of the first paragraph hereof in respect of fees and expenses due the Trustee, second, accrued interest hereon, third, the unpaid principal (and prepayment premium, if any) hereof, and fourth, all other sums due hereunder.
This Note is a “Note” referred to in Section  3.04B of that certain Loan Agreement, dated as of December 1, 2011 (herein referred to as the “ Loan Agreement ”), between the Issuer and the Borrower and is issued to evidence a loan by the Issuer to the Borrower, thereunder from proceeds of the Bonds issued under the Bond Indenture. This Note arises out of the Loan Agreement and the Bond Indenture.
The Borrower shall prepay the outstanding principal sum hereof, in whole or in part, in the same amounts, on the same dates, and with the same premium, if any, as Bonds called for redemption prior to their maturity in accordance with the provisions of the Bond Indenture. This Note is not otherwise prepayable at the option of the Borrower.
The outstanding principal hereof is subject to acceleration as permitted by the Loan Agreement.
The Borrower hereby expressly waives all notices (including notice of redemption, notice of intent to accelerate, and notice of acceleration), demands for payment, presentments for payment, and notations of payment.
As provided in the Loan Agreement, and subject to certain limitations therein set forth, this Note is transferrable on the Note Register established thereunder upon surrender of this Note for transfer at the principal corporate trust office of the Trustee duly endorsed, or accompanied by written instrument of transfer in from satisfactory to the Trustee duly executed, by the registered holder hereof or his attorney duly authorized in writing.
This Note is a contract made under and shall be construed in accordance with and governed by the laws of the State of Texas.
The Borrower may treat the Person in whose name this Note is registered as the owner hereof for the purpose of receiving payment as herein provided and for all other purposes, and the Borrower shall not be affected by notice to the contrary.
Unless the certificate of authentication hereon has been executed by the Trustee by manual signature, this Note shall not be entitled to any benefit under the Loan Agreement or be valid or obligatory for any purpose.

HFOTCO LLC, a Texas limited liability company	
		
By:	 	 
 	
	 	President	
 
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This Instrument is the Note referred to in the Loan Agreement described therein and is registered in the Note Register therefor as No...

Date of Authentication:
 
                                                                                      	 		 	THE BANK OF NEW YORK MELLON TRUST COMPANY, NATIONAL ASSOCIATION	
				
	 		 	By:	 	 	
	 		 		 	Authorized Signature	
FOR VALUE RECEIVED, the undersigned hereby sells, assigns, and transfers unto The Bank of New York Mellon Trust Company, National Association, as trustee under the within described Bond Indenture, as pledgee, without recourse, the within instrument and all rights thereunder and hereby irrevocably constitutes and appoints the same attorney to transfer the within instrument on the books kept for registration thereof, with full power of substitution in the premises.
Dated this ....... day of December, 2011.

HARRIS COUNTY INDUSTRIAL DEVELOPMENT CORPORATION	
		
By:	 	 
 	
	 	President	
 
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B-4

Exhibit 4.8

 
HARRIS COUNTY INDUSTRIAL DEVELOPMENT CORPORATION
and
HFOTCO LLC

LOAN AGREEMENT
Dated as of October 1, 2012

Related to
HARRIS COUNTY INDUSTRIAL DEVELOPMENT CORPORATION
MARINE TERMINAL REVENUE BONDS
(HFOTCO LLC PROJECT) SERIES 2012
NOTICE: All right, title, and interest of the Harris County Industrial Development Corporation in and to this Loan Agreement, including the Loan Payments (herein defined), the Note (herein defined) by which the rights to such Loan Payments are evidenced, and any and all security heretofore or hereafter granted or held for the payment thereof, but excluding the Indemnity Payments (herein defined), have been collaterally assigned to The Bank of New York Mellon Trust Company, National Association, as Trustee, to secure payment of the Bonds described herein.

 

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TABLE OF CONTENTS

 	  	Page	 	
PARTIES	 		  	 	1	 	
RECITALS	  	 	1	 	
GENERAL AGREEMENT	  	 	1	 	
	
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION	 

SECTION 1.01 .	 	Definitions	  	 	2	 	
SECTION 1.02.	 	Action of Bondholders	  	 	6	 	
SECTION 1.03.	 	Notices, Etc.	  	 	7	 	
SECTION 1.04.	 	Form and Contents of Documents Delivered to Trustee	  	 	9	 	
SECTION 1.05.	 	Effect of Headings and Table of Contents	  	 	9	 	
SECTION 1.06.	 	Successors and Assigns	  	 	9	 	
SECTION 1.07.	 	Severability Clause	  	 	9	 	
SECTION 1.08.	 	Benefits of Loan Agreement; Assignment	  	 	10	 	
SECTION 1.09.	 	Remedies and Waivers	  	 	10	 	
SECTION 1.10.	 	Governing Law	  	 	11	 	
SECTION 1.11.	 	Term and Termination	  	 	11	 	
SECTION 1.12.	 	Amendment of Loan Agreement	  	 	11	 	
SECTION 1.13.	 	Credit Facility Provider Consents, Etc.	  	 	11	 	
	
ARTICLE II
THE PROJECTS	 

SECTION 2.01.	 	Borrower to Acquire, Construct, and Equip the Projects	  	 	13	 	
SECTION 2.02.	 	Borrower to Own, Operate, Possess, and Maintain the Projects	  	 	13	 	
	
ARTICLE III
LOAN TO FINANCE AND REFINANCE PROJECTS	 

SECTION 3.01.	 	Establishment of Project Fund	  	 	14	 	
SECTION 3.02.	 	No Security for Loan Payments	  	 	14	 	
SECTION 3.03.	 	Loan to Finance and Refinance Projects	  	 	14	 	
SECTION 3.04.	 	Terms and Payment of Loan and Note	  	 	14	 	
SECTION 3.05.	 	Purchase of Tendered Bonds By Borrower	  	 	17	 	
SECTION 3.06.	 	Borrower to Pay Certain Amounts Under Bond Indenture; Successor Agents	  	 	17	 	
SECTION 3.07.	 	Waiver of Set-Off, Recoupment, Counterclaim, and Abatement	  	 	18	 	
SECTION 3.08.	 	Recording	  	 	18	 	
	
ARTICLE IV
THE BONDS	 

SECTION 4.01.	 	Issuer to Issue Bonds	  	 	19	 	
SECTION 4.02.	 	Issuer to Redeem Bonds	  	 	19	 	
SECTION 4.03.	 	Conversion of Subseries, Interest Modes, and Interest Periods	  	 	19	 	
SECTION 4.04.	 	Investment Authority	  	 	19	 	
 
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 	 	 	  	Page	 	
	
ARTICLE V	 	
COVENANTS AND WARRANTIES	 	
			
SECTION 5.01.	 	Representations and Warranties of Issuer	  	 	20	 	
SECTION 5.02.	 	Representations and Warranties of Borrower	  	 	20	 	
SECTION 5.03.	 	Limitation on Obligations of Issuer; Reimbursement of Expenses, Charges, and Taxes	  	 	21	 	
SECTION 5.04.	 	Trustees, Directors, Officers, Employees, and Agents Exempt from Personal Liability	  	 	21	 	
SECTION 5.05.	 	Borrower to Indemnify Certain Persons	  	 	22	 	
SECTION 5.06.	 	Modification of Bonds and Bond Indentures; Limitation on Liens	  	 	23	 	
SECTION 5.07.	 	Maintenance of Tax-Exempt Status of Bonds	  	 	23	 	
SECTION 5.08.	 	To Exclude Ineligible Bonds from Tenders	  	 	26	 	
SECTION 5.09.	 	Limitations Affecting Tenders and Purchases of Bonds	  	 	26	 	
SECTION 5.10.	 	Consolidation and Merger	  	 	27	 	
SECTION 5.11.	 	Assignment	  	 	27	 	
	
ARTICLE VI	 	
CONTINUING DISCLOSURE UNDERTAKING	 	
			
SECTION 6.01.	 	Audited Financial Statements and Material Event Notices	  	 	28	 	
SECTION 6.02.	 	Filing Requirements	  	 	29	 	
SECTION 6.03.	 	Limitations, Disclaimers, and Amendments	  	 	29	 	
			
TESTIMONIUM	 		  	 	S-1	 	
SIGNATURES	 		  	 	S-1	 	
		
EXHIBIT A — DESCRIPTION OF PROJECTS	  	 	A-1	 	
EXHIBIT B — FORM OF NOTE	  	 	B-1	 	
 
ii

T HIS L OAN A GREEMENT , herein, as supplemented, modified, or amended in accordance with the applicable provisions hereof, referred to as this “Loan Agreement” ) dated as of October 1, 2012, between the Harris County Industrial Development Corporation (herein referred to as the “Issuer”, which term includes any successor corporation under the Bond Indenture hereinafter referred to), a non-profit corporation organized with the approval of Harris County, Texas, and existing pursuant to the Development Corporation Act, Chapter 501, Texas Local Government Code, as amended, and HFOTCO LLC, a Texas limited liability company (herein referred to as the “Borrower”, which term includes any successors and assigns permitted hereunder),
W I T N E S S E T H :
W HEREAS , the Borrower desires that the Issuer issue its limited obligation revenue bonds and loan the proceeds thereof to the Borrower to finance or refinance costs of the Projects described herein in order that such costs may be financed at the low interest rates which prevail in the market for tax-exempt securities and, in order to induce the issuance and sale of such bonds, the Borrower agrees to the covenants herein described; and
W HEREAS , based on representations of the Borrower, the Issuer has found that the Projects are undertakings the costs of which are eligible to be paid from the proceeds of qualified Hurricane Ike disaster area bonds under Section 704, Heartland Disaster Tax Relief Act of 2008, that the financing or refinancing thereof by means of the issuance of such bonds and the loan described herein will be in furtherance of the corporate purposes of the Issuer; and
W HEREAS , the Projects are located in the Hurricane Ike disaster areas designated by the Internal Revenue Service in Notice 2008-109 and the Bonds have been designated by the Governor of Texas as “qualified Hurricane Ike disaster area bonds;” and
W HEREAS , all things have been done which are necessary to authorize the issuance of such bonds and to constitute this Loan Agreement a valid contract of the parties hereto in accordance with its terms;
N OW , T HEREFORE , for and in consideration of the premises and the mutual covenants hereinafter contained, and subject to the conditions herein set forth, the parties hereto covenant, agree, and bind themselves as follows:
*                    *                     *
 
1

ARTICLE I
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
 SECTION 1.01. Definitions.
For all purposes of this Loan Agreement, except as otherwise expressly provided or unless the context otherwise requires:
A. The terms defined in this Article have the meanings assigned to them in this Article and include the plural as well as the singular.
B. All references in this instrument to designated “Articles”, “Sections” , “Exhibits” , and other subdivisions are to the designated Articles, Sections, Exhibits, and other subdivisions of this instrument as originally executed.
C. The words “herein”, “hereof”, and “hereunder” and other words of similar import refer to this Loan Agreement as a whole and not to any particular Article, Section, Exhibit, or other subdivision.
“ Accountant” means a Person engaged in the practice of accounting who ( except as otherwise expressly provided herein) may be employed by or affiliated with the Borrower.
“Act” means the Development Corporation Act, Chapter 501, Texas Local Government Code, as amended, as in force and effect on the Issue Date.
“Action” has the meaning stated in Section 1.02.
“Administration Expenses” shall mean the reasonable expenses incurred by the Issuer with respect to this Loan Agreement, the Bond Indenture and any transaction or event contemplated by this Loan Agreement or the Bond Indenture, including, without limitation, the fees and disbursements of counsel and out-of-pocket expenses of the Issuer incurred in connection with the authorization, issuance and sale of the Bonds.
“Affiliate” of any specified Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified Person. For purposes of this definition, “control” when used with respect to any specified Person means the power to direct the management and policies of such Person, directly or indirectly, whether by contract, through the ownership of voting securities or the power to appoint and remove directors or trustees, or otherwise; and the terms “controlling” and “controlled” have meanings correlative to the foregoing.
“Authorized Representative” has the meaning stated in the Bond Indenture.
“Available Money” has the meaning stated in Section 1.01 of the Bond Indenture.
“Bond Funds” means the Interest Fund, the Principal Fund, and the Redemption Fund (each as defined in Section 1.01 of the Bond Indenture).
“Bond Indenture” means that certain Bond Indenture, dated as of even date herewith, between the Issuer and The Bank of New York Mellon Trust Company, National Association, as trustee, as originally executed or as it may from time to time be supplemented, modified, or amended by one or more indentures or other instruments supplemental thereto entered into pursuant to the applicable provisions thereof.
 
2

“Bondholder” has the meaning stated in Section 1.01 of the Bond Indenture.
“Bond Register” means the register maintained by the Trustee to record ownership and transfers of the Bonds.
“Bonds” has the meaning stated in Section 1.01 of the Bond Indenture.
“Borrower” means the Person named as the “ Borrower” in the first paragraph of this Loan Agreement until a successor or assign shall have become such pursuant to the applicable provisions hereof, and thereafter “Borrower” shall mean such successor or assign.
“Borrower Consent”, “Borrower Order” , and “Borrower Request” mean, respectively, a written consent, direction, order, or request signed in the name of the Borrower by an Authorized Representative and delivered to the Trustee.
“Business Day” has the meaning stated in Section 1.01 of the Bond Indenture.
“Code” means the Internal Revenue Code of 1986, as amended and in force and effect on the Issue Date.
“Commercial Paper Mode” and “Commercial Paper Rate” have the respective meanings stated in Section 1.01 of the Bond Indenture.
“Computation Date” has the meaning stated in Section 1.148-1(b) of the Regulations and, until the Regulations are amended to provide otherwise, means (1) the last day of any bond year (as defined in Section 1.148-1(b) of the Regulations) preceding the fifth anniversary of the Issue Date selected by the Borrower before such fifth anniversary and, if no such date is selected by the Borrower, then the last day of such bond year on or immediately preceding such fifth anniversary, (2) each fifth anniversary of the Computation Date described in Clause (1)  or every anniversary of such Computation Date, as elected by the Borrower consistently throughout the term of the Bonds, and (3) the later of the final Maturity of the Bonds or the date on which due provision for payment of all of the Bonds has been made.
“Cost” when used with respect to a Project means all costs incurred by the Issuer or the Borrower with respect to the acquisition, construction, reconstruction, improvement, and expansion, as the case may be, of such Project, whether paid or incurred prior to or after the date of this Loan Agreement, including the cost of the acquisition of all land, rights-of-way, property rights, easements, and interests; the cost of all machinery and equipment; financing charges; interest prior to and during construction and for one year after completion of construction whether or not capitalized; necessary reserve funds; the cost of estimates and of engineering and legal services, plans, specifications, surveys, and estimates of cost and of revenue; other expenses necessary or incident to determining the feasibility and practicability of acquiring, constructing, reconstructing, improving, and expanding such Project; administrative expense; the Issuer’s charges and expenses in connection with issuance of the Bonds; and such other expenses as may be necessary or incident to the acquisition, construction, reconstruction, improvement, and expansion of such Project, the placing of the same in operation, and the financing or refinancing of such Project, including the refunding of any outstanding obligations, mortgages, or advances issued, made, or given by any Person for any of the aforementioned costs.
“Costs of Issuance Fund” means the fund of the Borrower so defined in Section 1.01 of the Bond Indenture.
“Credit Facility Provider” has the meaning stated in Section 1.01 of the Bond Indenture.
 
3

“Credit Facility” has the meaning stated in Section 1.01 of the Bond Indenture.
“Eligible Bonds” has the meaning stated in Section 1.01 of the Bond Indenture.
“Excluded Purchaser” has the meaning stated in Section 1.01 of the Bond Indenture.
“Governmental Obligations” has the meaning stated in Section 1.01 of the Bond Indenture.
“Gross Proceeds” means “ gross proceeds” of the Bonds within the meaning of Section 1.148-1(b) of the Regulations, including:
(1) all amounts held for the credit of the Bond Funds, the Project Fund, and the Costs of Issuance Fund and allocable to the Bonds pursuant to section 148 of the Code, and
(2) all money and investments in Governmental Obligations deposited in escrow pursuant to Section 10.03 of the Bond Indenture to defease the lien of the Bond Indenture with respect to any such Bond, except money or investments so deposited which are “ proceeds” of any “refunding issue” (as defined in Sections 1.148-l(b) and 1.150-1(d), respectively, of the Regulations).
“Holder” has the meaning stated in Section 1.01 of the Bond Indenture.
“Indemnity Payments” means those certain payments agreed to be made by the Borrower to the Issuer pursuant to Sections 5.03 and 5.05.
“Interest Payment Date” for any Bond or portion thereof has the meaning stated in Section 1.01 of the Bond Indenture.
“Interest Period” has the meaning stated in Section 1.01 of the Bond Indenture.
“Investment Securities” has the meaning stated in Section 1.01 of the Bond Indenture.
“Issue Date” means the date of the authentication and delivery of the initial Bonds in exchange for the purchase price therefor.
“Issuer” means the Person named as the “ Issuer ” in the first paragraph of this Loan Agreement until a successor corporation shall have become such pursuant to the applicable provisions of the Bond Indenture, and thereafter “Issuer” shall mean such successor corporation.
“Issuer Consent,” “Issuer Order,” and “Issuer Request” mean, respectively, a written consent, order, or request signed in the name of the Issuer by the President or a Vice President and by the Treasurer, an Assistant Treasurer, the Secretary, or an Assistant Secretary of the Issuer and delivered to the Trustee.
“Liquidity Facility” has the meaning stated in Section 1.01 of the Bond Indenture.
“ Liquidity Facility Bonds” has the meaning stated in Section 1.01 of the Bond Indenture.
“Liquidity Facility Provider” has the meaning stated in Section 1.01 of the Bond Indenture.
 
4

“Loan Agreement” means this instrument, as originally executed or as it from time to time may be supplemented, modified, or amended by one or more instruments supplemental hereto entered into in accordance with the applicable provisions hereof.
“Loan Payments” means those certain payments agreed to be made by the Borrower pursuant to Section 3.04 and pursuant to the Note evidencing such agreement.
“Maturity” when used with respect to any Bond means the date on which the principal of such Bond becomes due and payable as therein or in the Bond Indenture provided, whether at the Stated Maturity or by declaration of acceleration or call for redemption or otherwise, but does not include payment of the portion of the Purchase Price corresponding to principal of such Bond pursuant to Section 4.06, 4.07, 4.08, 4.09, or 4.10 of the Bond Indenture.
“Mode” has the meaning stated in Section 1.01 of the Bond Indenture.
“Mode Change Date” has the meaning specified in Section 1.01 of the Bond Indenture.
“MSRB” means the Municipal Securities Rulemaking Board.
“Note” means the promissory note made or to be made by the Borrower pursuant to Section 3.04 to evidence the obligation of the Borrower to make Loan Payments.
“Officers’ Certificate” of any Person means a certificate signed by the Chairman or Vice Chairman of the Board of Directors, the President, or a Vice President and by the Chief Financial Officer, the Treasurer, an Assistant Treasurer, the Controller, an Assistant Controller, the Secretary, or an Assistant Secretary of such Person and delivered to the Trustee.
“Opinion of Counsel” has the meaning stated in Section 1.01 of the Bond Indenture.
“Outstanding” has the meaning stated in Section 1.01 of the Bond Indenture.
“Person” has the meaning stated in Section 1.01 of the Bond Indenture.
“Project Fund” means the fund of the Borrower so defined in Section 1.01 of the Bond Indenture.
“Projects” means the projects described in Exhibit A.
“Purchase Date” has the meaning stated in Section 1.01 of the Bond Indenture.
“Purchase Fund” means the fund of the Tender Agent so defined in Section 1.01 of the Bond Indenture.
“Purchase Price” has the meaning stated in Section 1.01 of the Bond Indenture.
“Rebate Amount” as of any Computation Date means the “ rebate amount” with respect to the issue of which the Bonds are a part, determined in accordance with Section 1.148-3 of the Regulations.
“Rebate Calculation Date” means (1) the last Computation Date that occurs on or before the fifth anniversary of the Issue Date, (2) each subsequent Computation Date specified by Borrower Order that occurs on or before the fifth anniversary of the immediately preceding Rebate Calculation Date or, if no such Borrower Order is given, each such fifth anniversary, and (3) the final Computation Date.
 
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“Rebate Fund” has the meaning stated in Section 1.01 of the Bond Indenture.
“Redemption Price” has the meaning stated in Section 1.01 of the Bond Indenture.
“ Regulations” means the temporary or final Income Tax Regulations applicable to the Bonds issued pursuant to the Code. Any reference to a Section of the Regulations shall also refer to any successor provision to such Section hereafter promulgated by the Internal Revenue Service pursuant to the Code and applicable to the Bonds.
“Reimbursement Agreement” has the meaning stated in Section 1.01 of the Bond Indenture.
“Remarketing Agent” has the meaning stated in Section 1.01 of the Bond Indenture.
“Remarketing Agreement” has the meaning stated in Section 1.01 of the Bond Indenture.
“Securities Depository” has the meaning stated in Section 1.01 of the Bond Indenture.
“Stated Maturity” when used with respect to any Bond or any installment of interest thereon means the date specified in such Bond as the fixed date on which the principal of such Bond or the day on which such installment of interest is due and payable.
“Taxable Investment” means any Investment Security other than:
(1) Non-AMT Tax-Exempt Obligations: an obligation the interest on which is excluded from the gross income, as defined in section 61 of the Code, of the owners thereof for federal income tax purposes (or, when such obligation was issued, was purported by the evidence of such obligation to be so excluded) and which is not a preference item, as defined in section 57 of the Code, and
(2) Tax-Exempt Mutual Funds : an interest in a regulated investment company to the extent that at least 95% of the income to the holder of such interest is interest excludable from gross income under section 103(a) of the Code and is not an item of tax preference.
“Tender Agent” has the meaning stated in Section 1.01 of the Bond Indenture.
“Term Rate Mode” has the meaning stated in Section 1.01 of the Bond Indenture.
“ Trustee” means the Person named as the “ Trustee” in the first paragraph of the Bond Indenture until a successor Trustee shall have become such pursuant to the applicable provisions thereof, and thereafter “ Trustee ” shall mean such successor Trustee.
“ Vice President” when used with respect to any Person means any vice president thereof, whether or not designated by a number or a word added to the title.
SECTION 1.02 . Action of Bondholders .
A . Bondholder Action . Any request, demand, authorization, direction, notice, consent, waiver, or other action provided by this Loan Agreement to be given or taken by the Bondholders may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by such Bondholders in person or by an agent duly appointed in writing, and, except as herein otherwise expressly provided, such action shall become effective when such instrument or instruments are delivered to the Trustee and, if  hereby expressly required, to the Issuer, the Borrower, the Credit Facility
 
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Providers, the Liquidity Facility Providers, the Tender Agent, or the Remarketing Agent, as the case may be. Such instrument or instruments (and the action embodied therein and evidenced thereby) are herein sometimes referred to as the “Action” of the Bondholders signing such instrument or instruments. Proof of execution of any such instrument or of a writing appointing any such agent shall be sufficient for any purpose of this Loan Agreement and conclusive in favor of the Issuer, the Borrower, the Credit Facility Providers, the Liquidity Facility Providers, the Tender Agent, and the Remarketing Agent and ( subject to Section 8.01 of the Bond Indenture) in favor of the Trustee, if made in the manner provided in this Section. So long as the Securities Depository is the Holder of all of the Bonds, no such Action of the Holder of any Bond shall be effective unless it is the Action of the Person in whose name such Bond is registered as of a record date established by the Trustee for that purpose.
B. Proof of Execution. The fact and date of the execution by any Person of any such instrument or writing may be proved by the affidavit of a witness of such execution or by the certificate of any notary public or other officer authorized by law to take acknowledgments of deeds, certifying that the individual signing such instrument or writing acknowledged to him the execution thereof. Whenever such execution is by an officer of a corporation or a limited liability company or a member of a partnership on behalf of such corporation, limited liability company or partnership, such certificate or affidavit shall also constitute sufficient proof of his authority. The fact and date of execution by any Person of any such instrument or writing shall be conclusively established for all purposes of this Loan Agreement if (1) the Trustee shall have mailed or delivered such instrument or writing to such Person (or any Bondholder for whom he purports to act as agent or proxy), at his address as shown on the Bond Register, (2) such instrument or writing shall have been returned to the Trustee bearing a signature purporting and reasonably appearing to be that of the Bondholder or a Person purporting to be his agent or proxy, and (3) the Person receiving such executed instrument or writing shall have no actual knowledge or notice of any irregularity, or of any fact or circumstance which, if substantiated, would impair the validity of such instrument or writing. The matters referred to in Clauses (1), (2), and (3)  of the preceding sentence may be evidenced by a certificate of the Trustee. The fact and date of execution of any such instrument or writing by any Person and the authority of such Person to execute the same may also be proved in any other manner which the Trustee deems sufficient. The Trustee may in any instance require further proof with respect to any of the matters referred to in this Section.
C. Proof of Ownership. The ownership of Bonds shall be proved by the Bond Register, and no beneficial or legal owner of Bonds whose ownership is not so registered shall have any right hereunder to give or take any Action with respect to the Bonds.
D. Binding Effect. Any request, demand, authorization, direction, notice, consent, waiver, or other action by a Holder of Bonds shall bind every future Holder of the same Bonds and the Holder of every obligation issued upon the transfer thereof or in exchange therefor or in lieu thereof, in respect of anything done or suffered to be done by the Trustee, the Issuer, the Borrower, any Credit Facility Provider, any Liquidity Facility Provider, the Tender Agent, and the Remarketing Agent in reliance thereon, whether or not notation of such action is made upon such Bond or obligation.
SECTION 1.03 . Notices, Etc .
Unless otherwise specifically provided herein, any request, demand, authorization, direction, notice, consent, waiver, Action of Bondholders, or other document by or from any Person provided or permitted by this Loan Agreement to be made upon, given or furnished to, or filed with,
A. Trustee : the Trustee shall be sufficient for every purpose hereunder if made, given, furnished, or filed in writing to or with the Trustee and received by it at its principal corporate trust office in the City of Houston, Texas, or if  in writing and mailed, first-class postage prepaid, to the Trustee addressed to it at 601 Travis Street, Floor 16, Houston, Texas 77002, or, if given to the Trustee by telecopy to (713) 483-6979, in either case marked Attention: Public Finance, or at such other address or to such other number furnished in writing to such Person by the Trustee, or
 
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B . Issuer: the Issuer shall be sufficient for every purpose hereunder if in writing and mailed, first-class postage prepaid, to the Issuer addressed to it in care of Fulbright & Jaworski L.L.P., 1301 McKinney, Suite 5100, Houston, Texas 77010-3095, Attention: President, or at any other address previously furnished in writing to the Trustee by the Issuer, or
C . Borrower: the Borrower shall be sufficient for every purpose hereunder if in writing and mailed, first-class postage prepaid, to the Borrower addressed to it at 1201 South Sheldon Road, Houston, Texas 77015, Attention: Michael Mangan, or at any other address previously furnished in writing to the Trustee by the Borrower, or
D . Credit Facility Provider: any Credit Facility Provider shall be sufficient for every purpose hereunder if provided to the address and in the manner specified in the Reimbursement Agreement to which it is a party or to such other address and in such other manner previously specified in writing to the Trustee by such Credit Facility Provider, or
E. Liquidity Facility Provider: any Liquidity Facility Provider shall be sufficient for every purpose hereunder if provided to the address and in the manner specified in the Reimbursement Agreement or Liquidity Facility to which such Liquidity Facility Provider is a party or to such other address and in such other manner previously specified in writing to the Trustee by such Liquidity Facility Provider, or
F. Tender Agent: the Tender Agent shall be sufficient for every purpose hereunder if in writing and mailed, first-class postage prepaid, to the Tender Agent addressed to it at the address and to the attention specified in Clause A of this Section or at any other address previously furnished in writing to the Trustee by the Tender Agent, or
G. Re marketing Agent : any Remarketing Agent shall be sufficient for every purpose hereunder if in writing and mailed, first-class postage prepaid, to it addressed to it at the address specified or referred to in the Bond Indenture or any other address and attention previously furnished in writing to the Trustee by such Remarketing Agent.
Where this Loan Agreement provides for notice to Bondholders of any event, such notice shall be sufficiently given (unless otherwise herein expressly provided) if  in writing and mailed, first-class postage prepaid, to each Bondholder affected by such event, at the address of such Bondholder as it appears in the Bond Register, and the Credit Facility Providers not later than the latest date, and not earlier than the earliest date, prescribed for the giving of such notice. Neither the failure to mail such notice, nor any defect in any notice so mailed, to any particular Bondholder shall affect the sufficiency of such notice with respect to other Bondholders.
Where this Loan Agreement provides for notice in any manner, such notice may be waived in writing by the Person entitled to receive such notice, either before or after the event, and such waiver shall be the equivalent of such notice. Waivers of notice by Bondholders shall be filed with the Trustee, but such filing shall not be a condition precedent to the validity of any action taken in reliance upon such waiver.
 
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SECTION 1.04. Form and Contents of Documents Delivered to Trustee.
Whenever several matters are required to be certified by, or covered by an opinion of, any specified Person, it is not necessary that all such matters be certified by, or covered by the opinion of, only one such Person, or that they be so certified or covered by only one document, but one such Person may certify or give an opinion with respect to some matters and one or more other such Persons as to other matters, and any such Person may certify or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of any Person may be based, insofar as it relates to legal matters, upon a certificate or opinion of, or representations by, counsel, unless such officer knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations with respect to the matters upon which his certificate or opinion is based are erroneous. Any Opinion of Counsel may be based, insofar as it relates to factual matters, upon a certificate or opinion of, or representations by, an officer or officers of any Person stating that the information with respect to such factual matters is in the possession of such Person unless such counsel knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations with respect to such matters are erroneous.
Whenever any Person is required to make, give, or execute two or more applications, requests, consents, certificates, statements, opinions, or other instruments under this Loan Agreement, they may, but need not, be consolidated and form one instrument.
Wherever in this Loan Agreement, in connection with any application or certificate or report to the Issuer or the Trustee, it is provided that any Person shall deliver any document as a condition of the granting of such application, or as evidence of compliance by such Person with any term hereof, it is intended that the truth and accuracy, at the time of the granting of such application or at the effective date of such certificate or report (as the case may be), of the facts and opinions stated in such document shall in such case be conditions precedent to the right of such Person to have such application granted or to the sufficiency of such certificate or report.
SECTION 1.05 . Effect of Headings and Table of Contents.
The Article and Section headings herein and in the Table of Contents are for convenience only and shall not affect the construction hereof.
SECTION 1.06. Successors and Assigns.
All covenants and agreements in this Loan Agreement by the Issuer and the Borrower shall bind their respective successors and assigns, whether so expressed or not. The Borrower hereby requests that the Issuer enter into and perform its obligations under the Bond Indenture, and the Borrower hereby consents to the execution and delivery of the Bond Indenture.
SECTION 1.07. Severability Clause.
In case any provision in this Loan Agreement or any application hereof shall be invalid, illegal, or unenforceable, the validity, legality, and enforceability of the remaining provisions and applications shall not in any way be affected or impaired thereby.
 
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SECTION 1.08. Benefits of Loan Agreement; Assignment.
Nothing in this Loan Agreement, expressed or implied, shall give any benefit or any legal or equitable right, remedy, or claim under this Loan Agreement to any Person, other than the parties hereto and their successors hereunder and, as third party beneficiaries, the Trustee, any separate trustee or co-trustee appointed under Section 8.06 of the Bond Indenture, the Credit Facility Providers, the Liquidity Facility Providers, the Tender Agent, the Remarketing Agents, and the Holders of the Outstanding Bonds.
The Issuer shall collaterally assign to the Trustee pursuant to the Bond Indenture all right, title, and interest of the Issuer in and to (1) this Loan Agreement, including the Loan Payments and the Note by which the rights to such Loan Payments are evidenced, (2) the rights and benefits of the Issuer under this Loan Agreement and as the registered owner of the Note, (3) any and all security heretofore or hereafter granted or held for the payment of amounts owing under this Loan Agreement or the Note, and (4) the present and continuing right to bring actions and proceedings under this Loan Agreement in respect thereof, or for the enforcement hereof, and to do any and all things which the Issuer is or may become entitled to do hereunder and thereunder, but excluding the Indemnity Payments. The Borrower hereby consents to such assignment.
SECTION 1.09 . Remedies and Waivers.
A. Remedies . If a default occurs in the payment of the principal of or the interest or premium on the Bonds or the Note or in the performance of this Loan Agreement, the payment and performance may be enforced by mandamus or the appointment of a receiver in equity with power to charge and collect rents, purchase price payments, and Loan Payments and apply the revenue from the Projects in accordance with the Notes and this Loan Agreement.
No right or remedy herein conferred upon the Issuer or the Trustee or other assigns is intended to be exclusive of any other right or remedy, and every right and remedy shall, to the extent permitted by law, be cumulative and in addition to every other right and remedy given hereunder or hereafter existing at law or in equity or otherwise. Assertion or employment of any right or remedy hereunder or otherwise shall not prevent the concurrent assertion or employment of any other appropriate right or remedy.
B. No Waiver By Delay . No delay or omission by the Issuer or the Trustee or other assigns to exercise any right or remedy accruing upon a default herein shall impair any such right or remedy or constitute a waiver of any such default or an acquiescence therein. Every right and remedy given hereunder or by law to the Issuer or the Trustee or other assigns may be exercised from time to time, and as often as may be deemed expedient, by such Person.
C. Waiver of Defaults . The Issuer and the Trustee or other assigns may, under the conditions and with the consent of the Holders of the specified percentage in principal amount of Outstanding Bonds described in Section 7.11 of the Bond Indenture for the waiver of past defaults thereunder, if therein required, and the consent of the Credit Facility Providers, and, except for the covenants in Sections 5.03 and 5.05, at the direction of the Credit Facility Providers shall, waive any past default hereunder and its consequences. Upon any such waiver, such default shall cease to exist and shall be deemed to have been cured for every purpose of this Loan Agreement; but no such waiver shall extend to any subsequent or other default or impair any right consequent thereon.
D. Waiver of Compliance . The Borrower may, with the written approval of the Issuer and the Credit Facility Providers, omit in any particular instance to comply with any covenant or condition set forth herein except in Sections 3.04A, 3.04D, 3.06, 3.07, and 5.07, if  before or after the time for such compliance such Persons and, subject to Section 1.13, the Holders of at least a majority in
 
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principal amount of the Bonds then Outstanding which are affected by such waiver shall either waive such compliance in such instance or generally waive compliance with such covenant or condition, but no such waiver shall extend to or affect such covenant or condition except to the extent so expressly waived and, until such waiver shall become effective, the obligations of the Borrower in respect of any such covenant or condition shall remain in full force and effect.
SECTION 1.10 . Governing Law.
This Loan Agreement shall be construed in accordance with and governed by the laws of the State of Texas.
SECTION 1.11 . Term and Termination.
A . Term. The term of this Loan Agreement shall commence on the Issue Date and shall terminate on the latest of (l) the last Maturity of Bonds, (2) the first date after the Issue Date on which there are no Outstanding Bonds, or (3) the date on which the Borrower has satisfied in full its obligations under or an exception to Section 5.07G, unless terminated sooner pursuant to the provisions hereof.
B . Termination . The Borrower may, at its option, terminate (1) all provisions of this Loan Agreement except the covenants contained in Sections 3.06, 5.03, 5.05, and 5.07 whenever the Bond Indenture may be released and discharged in accordance with its terms and (2) all remaining provisions hereof except Section 5.07G after the last Maturity of Bonds whenever no Bonds shall remain Outstanding.
C . Automatic Termination . This Loan Agreement shall automatically terminate and be discharged if no Bonds shall have been authenticated and delivered pursuant to the Bond Indenture within 90 days from the date hereof.
SECTION 1.12 . Amendment of Loan Agreement.
The Issuer and the Borrower may from time to time enter into one or more amendments or supplements hereto for any of the purposes and on the conditions stated in Section 6.07 of the Bond Indenture, but not otherwise.
The Trustee may in its discretion determine whether or not any Bonds would be affected by any amendment or supplement and may rely on an Opinion of Counsel to such effect in doing so, and any such determination shall be conclusive upon every Holder of Bonds, whether theretofore or thereafter authenticated under the Bond Indenture. The Trustee shall not be liable for any such determination made in good faith.
The Loan Agreement may not be amended or supplemented to change the rights of the Trustee, the Tender Agent, or the Remarketing Agents without the written consent of such Person.
SECTION 1.13. Credit Facility Provider Consents, Etc.
During any period of time in which no Credit Facility is in effect under the Bond Indenture and all obligations of the Borrower under the Reimbursement Agreements have been paid in full, the provisions of this Loan Agreement that relate to the Credit Facilities, the Reimbursement Agreements, and the Credit Facility Providers shall be of no force or effect.
 
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Anything in this Loan Agreement to the contrary notwithstanding, any request, demand, authorization, direction, notice, consent, waiver, or other action provided in this Loan Agreement to be given or taken by the Holders of Bonds in any Mode to direct, consent to, or waive the exercise by the Issuer or the Trustee of any right or remedy hereunder (except in respect of Section 5.07) may be given or taken by, and only by, a written instrument signed by the Credit Facility Providers whenever a Credit Facility is in effect under the Bond Indenture that is not in default. Any such right granted hereunder to any Credit Facility Provider shall be effective only so long as it is not in default under its Credit Facility.
During any period of time in which no Liquidity Facility is in effect under the Bond Indenture and all amounts due under the Liquidity Facilities, the Reimbursement Agreements (if a Liquidity Facility Provider is a party thereto), and the Liquidity Facility Bonds shall have been paid in accordance with the terms thereof and the Bond Indenture, the provisions of this Loan Agreement that relate to the Liquidity Facilities, and the Liquidity Facility Providers shall be of no force and effect. Any rights granted hereunder to any Liquidity Facility Provider to consent to, approve, or otherwise control events, circumstances, rights, or remedies hereunder shall be of no force or effect during any period in which such Liquidity Facility Provider shall be in default its obligations under a Liquidity Facility to provide funds for the purchase of Bonds when required thereby; provided that the foregoing shall not affect any rights of the Liquidity Facility Providers as the owners of Liquidity Facility Bonds or other Bonds.
*                    *                     *
 
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ARTICLE II
THE PROJECTS
 SECTION 2.01. Borrower to Acquire, Construct, and Equip the Projects.
Commencing with the effective date of this Loan Agreement and employing due diligence until completion of the Projects, the Borrower shall, with respect to the incomplete portions of the Projects which may be completed with proceeds of the Bonds:
A . Secure Permits: Use its best efforts to secure or extend all permits, certificates, licenses, and other approvals of governmental agencies with jurisdiction required for the acquisition, constructing, equipping, and operating of the Projects which shall not have been secured on or prior to such date or which shall thereafter expire;
B . Administer Contracts : Award and administer one or more contracts or purchase orders, and in general do any and all other things necessary, for the acquisition, constructing, equipping, and furnishing of the Projects in accordance with the Plans and Specifications therefor;
C . Acquire Land: Acquire any and all land, easements, and rights-of-way, temporary or permanent, required for construction of the Projects in accordance with the Plans and Specifications therefor or for the operation thereof; and
D . Certify Completion: Upon completion of the acquisition, constructing, equipping, and furnishing of the Projects in accordance with the Plans and Specifications therefor, certify such completion to the Issuer and the Trustee by an Officers’ Certificate of the Borrower.
The Borrower may draw upon the Project Fund and the Costs of Issuance Fund as provided in Sections 3.03 and 3.04 of the Bond Indenture to pay the Costs of the Projects and, to the extent the balance of the Project Fund is not sufficient to pay such costs in full, shall pay all costs of completing any Project for which proceeds of the Bonds have been expended from its own funds or shall arrange alternative financing therefor.
Neither the Issuer nor the Trustee shall have any responsibility for the acquisition, constructing, equipping, or furnishing of the Projects or, except as provided in Section 3.03, any liability for any Cost of the Projects or any other cost or expense of compliance with the provisions of this Section.
 SECTION 2.02. Borrower to Own, Operate, Possess, and Maintain the Projects.
Neither the Issuer nor the Trustee shall have any responsibility or liability for ownership, possession, operation, maintenance, or insurance of the Projects.
*                    *                     *
 
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ARTICLE III
LOAN TO FINANCE AND REFINANCE PROJECTS
 SECTION 3.01. Establishment of Project Fund.
The Borrower shall establish and maintain with the Trustee under the Bond Indenture its special funds designated the “Harris County Industrial Development Corporation Marine Terminal Revenue Bonds (HFOTCO LLC Project) Series 2012 Project Fund” (herein sometimes referred to as the “Project Fund” ) and the “Harris County Industrial Development Corporation Marine Terminal Revenue Bonds (HFOTCO LLC Project and the Harris County Industrial Development Corporation Marine Terminal Revenue Bonds (HFOTCO LLC Project) Series 2012 Costs of Issuance Fund” (herein sometimes referred to as the “Costs of Issuance Fund” ) for the purpose of financing the Costs of the Projects. All amounts held for the credit of the Project Fund and the Costs of Issuance Fund shall be invested and disbursed solely as provided in the Bond Indenture.
 SECTION 3.02. No Security for Loan Payments.
The obligation of the Borrower to make Loan Payments and pay the other amounts required to be paid by the Borrower pursuant to this Article shall be unsecured obligations and shall not be secured by any interest of the Borrower in or to the Project Fund, the Costs of Issuance Fund, or other funds held under the Bond Indenture.
 SECTION 3.03. Loan to Finance and Refinance Projects.
The Issuer shall loan to the Borrower, for the purpose of financing and refinancing the Costs of the Projects, all amounts received from the sale of the Bonds pursuant to Section 4.01 immediately upon receipt. Such loan shall be made by depositing such amounts into the Project Fund and the Costs of Issuance Fund.
The principal amount of, the interest borne by, the rights and obligations of prepayment with respect to, and the other terms of such loan shall be as provided in Section 3.04.
 SECTION 3.04. Terms and Payment of Loan and Note.
A . Loan Terms Generally . The loan made by the Issuer to the Borrower pursuant to Section 3.03 shall, subject to Subsections F and G of this Section,
(1) be in the same principal amount,
(2) mature on the same date or dates, in installments or otherwise, and in the same principal amounts,
(3) be subject to optional and mandatory prepayment in the same amounts, on or before the same dates, at the same prepayment premiums, if any, and under the same conditions, and
(4) bear interest for each day of accrual at the same average rate per annum payable on the same dates, including interest on overdue payments of principal (and premium, if any) and, to the extent that payment of such interest is legally enforceable, on overdue interest,
in every case as the Bonds, and such loan shall not otherwise be subject to prepayment. The Loan Payments on such loan shall be payable directly to the Trustee for the account of the Issuer, at the principal corporate trust office of the Trustee, in immediately available funds, in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts. The Borrower shall repay such loan in accordance with its terms in immediately available funds by 1:00 p.m., New York, New York, time on each day on which payment is due.
 
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B . Terms of Note . The obligation to repay the loan made pursuant to Section 3.03 shall be evidenced by a Note in the form attached hereto as Exhibit B, which shall, subject to Subdivisions F and G of this Section:
(1) be in the principal sum, bear interest at the rate or rates, and have such other terms as are described in Subsection A of this Section,
(2) be dated the Issue Date, and
(3) be payable to the Issuer, or registered assigns, and, upon authentication and delivery of the Bonds, be assigned by the Issuer to the Trustee as collateral security for payment of the Bonds.
Notwithstanding any provisions herein or in the Note to the contrary, the Issuer and its assigns agree that, on the date any Bonds are defeased pursuant to Section 10.02 of the Bond Indenture or acquired by the Borrower and delivered to the Trustee for cancellation, the principal amount owing on the Note and the loan evidenced thereby shall be reduced by the principal amount of the Bonds so defeased or acquired and canceled, less the amount payable by the Borrower to the Credit Facility Providers under the Reimbursement Agreements to reimburse draws or advances under the Credit Facilities to pay the principal of such Bonds, and the Trustee shall mark on the face of the Note the amount by which the principal of the Note has been so reduced. Failure to make such a notation by the Trustee shall not affect the Borrower’s obligations under the Note. The Issuer and its assigns further agree that the rights of the Borrower described in Subsections C and E of this Section shall supersede any contrary provisions in the Note.
C . Credit for Bond Fund Balance . Provided that no amounts are owing under the Reimbursement Agreements, the Borrower may, at its option, credit against any Loan Payment required to be made pursuant to this Section with respect to the Bonds, without duplication, any amounts held for the credit of the Bond Funds, except amounts segregated by the Trustee to pay the principal of (and premium, if any) and interest on any Outstanding Bonds with a Maturity, or the interest on any Outstanding Bonds with a Stated Maturity, at or prior to the date on which such Loan Payment is due, or held in the Redemption Fund for the redemption of Bonds, notwithstanding anything in the Note to the contrary, and to the extent of any Loan Payment in excess of the amount required by this Section to be paid giving effect to such credit, the Borrower shall, at its option and to the extent of the available balance of the Bond Funds, be entitled to reimbursement of such excess as an overpayment of such Loan Payment, but without any right to interest thereon, by causing the Trustee to pay such excess to the Credit Facility Providers (to the extent of obligations of the Borrower owing to such Persons under the Reimbursement Agreements) and (to the extent of any balance) to the Borrower.
D . Liability for Deficiency . In the event that, at 1:00 p.m., New York, New York, time, at the Maturity of any Bonds or any Interest Payment Date therefor, the available balance of the Bond Funds and the balance of the Credit Facility Fund are insufficient for any reason to pay in full the principal of (and premium, if any) and interest on the Bonds then due, the Borrower shall immediately pay to the Trustee, in immediately available funds, in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts, the amount required to cure such insufficiency.
 
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E . Credit for Credit Facility Advances . Any payment or provision for payment of principal or premium of or interest on the Bonds from proceeds of a claim made upon a Credit Facility which is a policy of municipal bond insurance shall not be deemed paid by the Borrower and shall not be credited against the obligation of the Borrower hereunder or under the Note, and no credit from any money held under the Bond Indenture from such proceeds shall reduce the amount due from the Borrower hereunder. For any other Credit Facility, the obligation of the Borrower pursuant to this Section and under the Note shall be deemed to be satisfied and discharged to the extent of any corresponding draw or claim by the Trustee under such Credit Facility applied to the payments of principal of (and premium, if any) or interest on Outstanding Bonds, except to the extent of any obligation then owing by the Borrower under the Reimbursement Agreement with the Credit Facility Provider obligated thereon.
F . No Usurious Interest . Notwithstanding any provision herein or in the Note to the contrary, in no event shall the rate of interest on the loan made pursuant to Section 3.03 or the Note exceed the maximum lawful non-usurious rate of interest, if any, which the Issuer is permitted to charge the Borrower from time to time under the laws of the State of Texas and the United States of America in effect on the Issue Date permitting the charging and collecting of the highest permissible lawful non-usurious interest rate on such loan (hereinafter referred to as “Applicable Law” ), and in no event shall the aggregate of the interest on such loan and the Note, plus any other amounts paid in connection herewith which are deemed “interest” under Applicable Law in effect on the Issue Date, ever exceed the maximum amount of interest which could be lawfully charged on such loan and the Note under Applicable Law, and if any amount of interest taken or received by the Issuer or assigns shall be in excess of the maximum amount of interest which, under Applicable Law, could lawfully have been collected on such loan and the Note, then such excess shall be deemed to have been the result of a mathematical error by the Issuer, the Trustee, and the Borrower and shall be refunded promptly to the Borrower. All amounts paid or agreed to be paid in connection with the indebtedness evidenced by this Loan Agreement and the Note which under Applicable Law would be deemed “ interest” shall, to the extent permitted by Applicable Law, be amortized, prorated, allocated, and spread throughout the full term of this Loan Agreement.
G . Payments Related to Insured Bonds. Notwithstanding Subsection A of this Section, if Bonds are insured by a policy of municipal bond insurance, the amounts due on the Note corresponding to payments of interest due on each Interest Payment Date and payments of principal thereof due at the Stated Maturity thereof and at each Maturity pursuant to mandatory sinking fund redemption shall be due by 10:00 a.m. New York, New York time on the Business Day immediately preceding the date such payments of principal of and interest on the Bonds are due, but without any diminution of the amount then due and payable on the Note.
H . Registration, Transfer, and Exchange of Note . The Borrower shall cause to be kept at the principal corporate trust office of the Trustee a register (herein referred to as the “Note Register” ) in which, subject to such reasonable regulations as the Borrower and the Trustee may prescribe, the Borrower shall provide for the registration and transfer of the Note as herein provided. The Trustee is hereby appointed Note Registrar for the purpose of registering the Note and transfers of the Note as herein provided.
Upon surrender for transfer of the Note at the principal corporate trust office of the Trustee, the Borrower shall execute, and the Trustee shall authenticate, number (with a number not contemporaneously outstanding on the Note Register), and deliver, in the name of the designated transferee or transferees, a new Note with the same terms; provided, however , that so long as any Bond is Outstanding, the Note shall not be transferred to any Person other than a successor Trustee unless pursuant to exercise by the Trustee of a remedy provided in the Bond Indenture. The Trustee shall promptly cancel the Note surrendered upon any such transfer and thereafter shall maintain such evidence in accordance with the standard retention policies of the Trustee and thereafter shall dispose of such evidence on Borrower Order. Each Note issued upon any such transfer shall evidence a valid obligation of the Borrower and the same debt.
 
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 SECTION 3.05. Purchase of Tendered Bonds By Borrower.
A . To Purchase Generally . The Borrower shall purchase Eligible Bonds (or portions thereof equal to, and leaving untendered, any authorized denomination), as provided in Section 4.12 of the Bond Indenture, from any Person, at the Purchase Price therefor,
(1) Optional Tender: upon tender (or constructive tender pursuant to Section 4.12D of the Bond Indenture), for purchase of such Bonds or portions thereof at the option of such Person on any Business Day for such Bonds in accordance with Section 4.06 of the Bond Indenture, if notice of such tender shall have been given to the Tender Agent and the Remarketing Agent for such Bonds in strict compliance with the provisions of Section 4.06 of the Bond Indenture, and
(2) Mandatory Tender : upon tender (or constructive tender pursuant to Section 4.12D of the Bond Indenture) for purchase of such Bonds or portions thereof as required by Sections 4.07, 4.08, 4.09 (unless such Bonds or portions are in an R-FLOATs Mode), or 4.10 of the Bond Indenture on any day on which such Bonds or portions are so required to be tendered for purchase,
and in any case ( except upon constructive tender of such Bonds or portions thereof), upon delivery of any such Bond or portion thereof to be purchased to the Tender Agent on the Purchase Date therefor in accordance with Section 4.12D of the Bond Indenture, but only if the Purchase Price for such Bonds shall not have been paid by the time required by the Securities Depository to credit funds on the Purchase Date therefor from proceeds of the remarketing of Bonds pursuant to the Remarketing Agreement for such Bonds in accordance with the Bond Indenture or funds advanced by the Liquidity Facility Providers pursuant to the Liquidity Facilities for such Bonds.
B . Authority of Tender Agent. The Borrower hereby appoints the Tender Agent its agent with full authority, on behalf and in the stead of the Borrower, to pay the Purchase Price of Eligible Bonds or portions thereof to be purchased by the Borrower pursuant to this Section and delivered to the Tender Agent and to dispose of (and, to the extent required, endorse for transfer) such Bonds as provided in Sections 4.06 through 4.12 of the Bond Indenture and consents to acceptance and exercise by the Tender Agent of the other agencies therein provided.
 SECTION 3.06. Borrower to Pay Certain Amounts Under Bond Indenture; Successor Agents.
The Borrower shall pay, or shall remit sufficient funds to the Issuer to pay, when due:
A . Fees and Expenses of Trustee and Agents : all fees, expenses, and other charges of the Trustee, any separate trustee or co-trustee appointed under Section 8.06 of the Bond Indenture, the Tender Agent, and the Remarketing Agents assessed in connection with the performance of the duties of such Persons under the Bond Indenture, and
B . Other Bond Indenture Expenses : all other expenses or other amounts which the Issuer has agreed to pay or has agreed to cause the Borrower to pay under the Bond Indenture.
The Borrower may contest the reasonableness or propriety of any such fee, expense, charge, or amount, in its own name or in the name of the Issuer. If such contest is brought in good faith, so long as the exercise by the Trustee of its lien on funds under the Bond Indenture securing such payment has been effectively stayed by agreement by the Trustee, judicial order, or otherwise, failure by the Borrower to pay the contested portion of any such fee, expense, charge, or amount shall not be considered a default hereunder during the pendency of such contest.
 
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Whenever the Trustee, the Tender Agent, a Remarketing Agent, or the Securities Depository shall resign or be removed as such pursuant to the provisions of the Bond Indenture, the Borrower shall take all necessary action for the prompt appointment of a successor to such Person pursuant to the provisions of the Bond Indenture.
 SECTION 3.07. Waiver of Set-Off, Recoupment, Counterclaim, and Abatement.
In order to induce Persons to purchase the Bonds, thereby providing funds to finance the loan described in Section 3.03, the Borrower hereby waives, to the full extent that it may lawfully so agree, all rights of set-off, recoupment, counterclaim, and abatement against the Issuer, the Trustee, any separate trustee or co-trustee appointed under Section 8.06 of the Bond Indenture, the Tender Agent, and all Remarketing Agents with respect to the obligation of the Borrower to pay Loan Payments, the Purchase Price of Bonds pursuant to Section 3.05, and (to the extent secured by a lien upon the funds held under the Bond Indenture and unless the exercise of such lien has been effectively stayed by agreement of the Trustee, judicial order, or otherwise) the fees, expenses, charges, and amounts described in Section 3.06, in every case notwithstanding any breach by the Issuer of its obligations hereunder or by any other such Person of its obligations under the Bond Indenture. The Borrower may, however, except as otherwise provided in Section 3.06, exercise any other remedy it may have at law or otherwise for any such breach.
 SECTION 3.08. Recording.
The Borrower shall cause this Loan Agreement, the Bond Indenture, and all supplemental indentures and other instruments of further assurance, including all financing statements covering security interests in personal property, to be promptly recorded, registered, and filed, and to cause to be kept recorded, registered, and filed, and when necessary, to re-record, re-register, and re-file the same, all in such manner and in such places as may be required by law fully to preserve, perfect, and protect the rights of the Bondholders, the Trustee, and the Credit Facility Providers under the Bond Indenture to all property in which a security interest is granted hereunder or under the Bond Indenture.
*                    *                     *
 
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ARTICLE IV
THE BONDS
 SECTION 4.01. Issuer to Issue Bonds.
Upon request of the Borrower, the Issuer shall authorize and execute, and use its best efforts to sell and deliver, the Bonds under the Bond Indenture for the purpose of financing the loan described in Section 3.03. The Bonds shall bear such terms as shall be required by the Bond Indenture; provided that no Bonds shall impose any pecuniary liability on the Issuer except to the extent of the proceeds of the Bonds, the Loan Payments (and draws under the Credit Facilities in satisfaction thereof), the balance of any funds or accounts of the Issuer established under the Bond Indenture, or such other revenues as may be provided by the Borrower.
 SECTION 4.02. Issuer to Redeem Bonds.
The Issuer shall cause the Trustee to call for redemption:
A . Mandatory Redemption : such Bonds at such times as are required by the terms thereof or by the Bond Indenture to be redeemed prior to their Stated Maturity and
B . Optional Redemption : any Bonds upon Borrower Request, at the time specified in such Borrower Request, provided that such Bonds are subject to optional redemption prior to their Stated Maturity at such time pursuant to the terms thereof.
The Issuer shall cooperate fully with the Borrower in connection with the redemption of Bonds.
 SECTION 4.03. Conversion of Subseries, Interest Modes, and Interest Periods.
The Borrower may direct the redesignation of the subseries or the conversion of the Mode for the Bonds or any portion thereof or a change in the duration of Interest Periods for the Bonds or any portion thereof in a Term Rate Mode in accordance with the provisions of the Bond Indenture.
 SECTION 4.04. Investment Authority.
The Issuer hereby authorizes the Borrower to direct the investment of money held under the Bond Indenture pursuant to and in accordance with Section 5.05 of the Bond Indenture.
*                    *                     *
 
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ARTICLE V
COVENANTS AND WARRANTIES
 SECTION 5.01. Representations and Warranties of Issuer.
The Issuer represents and warrants that:
A. Due Existence : the Issuer has been duly created and validly exists pursuant to the provisions of the Act;
B. Due Authority: the Issuer has due corporate power and authority under the Act and its articles of incorporation to enter into this Loan Agreement and to observe or perform the covenants and obligations required to be observed or performed by the Issuer hereunder;
C. Binding Agreement: this Loan Agreement has been duly authorized, executed, and delivered by the Issuer and, assuming due authorization, execution, and delivery hereof by the Borrower, constitutes a legal, valid, and binding agreement of the Issuer enforceable against the Issuer in accordance with its terms;
D. No Conflict: the observance and performance by the Issuer of its obligations hereunder will not violate or conflict with its articles of incorporation or bylaws or any material provision of any material mortgage, deed of trust, indenture, or other agreement or judgment to which it is a party; and
E. Satisfaction of Act: this Loan Agreement is for the benefit of the Issuer, and the bond counsel and financial adviser participating in the issuance of the Bonds are acceptable to the Issuer.
 SECTION 5.02. Representations and Warranties of Borrower.
The Borrower represents and warrants that:
A. Due Existence: the Borrower is a limited liability company duly organized and existing under the laws of the State of Texas;
B. Due Authority: the Borrower has due power and authority under its limited liability company agreement and applicable provisions of law to enter into this Loan Agreement and to observe or perform the covenants and obligations required to be observed or performed by the Borrower hereunder;
C. Binding Agreement: this Loan Agreement has been duly authorized, executed, and delivered by the Borrower and, assuming due authorization, execution, and delivery hereof by the Issuer, constitutes a legal, valid, and binding agreement of the Borrower enforceable against the Borrower in accordance with its terms;
D. No Conflict: the observance and performance by the Borrower of its obligations hereunder will not violate or conflict with the limited liability company agreement of the Borrower or any material provision of any material mortgage, deed of trust, indenture, or other agreement or judgment to which the Borrower is a party or by which the Borrower or its properties are bound;
E. Location of Projects: the Projects are and will be situated in their entirety within the territorial boundaries of Harris County, Texas; and
 
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F. Advisors Acceptable: the bond counsel and financial adviser participating in the issuance of the Bonds are acceptable to the Borrower.
SECTION 5.03. Limitation on Obligations of Issuer; Reimbursement of Expenses, Charges, and Taxes.
The Issuer shall be obligated hereunder and under the Bond Indenture solely to the extent of the proceeds of the Bonds, the Loan Payments (and draws under the Credit Facilities in satisfaction thereof), the balance of any funds or accounts of the Issuer established under the Bond Indenture, and such other revenues as may be provided by the Borrower for the purpose of paying for the costs of performance by the Issuer hereunder (including payments pursuant to Section 3.06), and the Issuer shall not otherwise be required to expend any funds in the observance or performance of its obligations hereunder or under the Bond Indenture. If, however, the Issuer otherwise pays or incurs any expense or charge, or is subject to any tax, as a result of the observance or performance of its obligations hereunder, or in connection with the enforcement of the obligations of the Borrower hereunder, the Borrower shall upon demand by the Issuer promptly reimburse to the Issuer all such fees, charges, and taxes in full. Without limiting the generality of the foregoing, the Borrower shall pay to or for the account of the Issuer out of money from the proceeds of the sale and delivery of the Bonds an amount equal to all of the out-of-pocket expenses and costs of the Issuer in connection with the issuance, sale, and delivery of the Bonds, including without limitation all financing, legal, financial advisory, printing, and other expenses and costs in issuing the Bonds, plus any compensation paid to any employees of the Issuer for the time such employees have spent on activities relating to the issuance, sale, and delivery of Bonds.
In addition to the foregoing, the Borrower shall pay, or cause to be paid, upon receiving a bill or statement therefor, all of the Administration Expenses of the Issuer and, on an annual basis, any of the Issuer’s actual costs reasonably and necessarily incurred in connection with the Bonds and the Projects during the previous fiscal year.
 SECTION 5.04. Trustees, Directors, Officers, Employees, and Agents Exempt from Personal Liability.
This Loan Agreement is solely a corporate obligation of the Issuer and the Borrower, respectively, the Note is solely a company obligation of the Borrower, and no recourse under or upon any obligation, covenant, or agreement contained in this Loan Agreement or the Note, or for any claim based thereon or otherwise in respect thereof, shall be had against any incorporator or owner, or against any past, present, or future trustee, director, officer, or employee, as such, of the Issuer, the Borrower, or of any successor to either of them, either directly or through the Issuer or the Borrower, whether by virtue of any constitution or statute or rule of law, or by the enforcement of any assessment, judgment, or penalty, or otherwise; it being expressly understood that this Loan Agreement and the Note are solely corporate or company obligations, and that no such personal liability whatever shall attach to, or is or shall be incurred by, the incorporators, owners, trustees, directors, officers, or employees, as such, of the Issuer, the Borrower, or any successor, or any of them, because of the creation of indebtedness hereby authorized, or under or by reason of the obligations, covenants, or agreements contained in this Loan Agreement or the Note or implied therefrom, and that any and all such personal liability either at common law or equity or by constitution or statute, of, and any and all such rights and claims against, every such incorporator, owner, trustee, director, officer, or employee, as such, are hereby expressly waived and released as a condition of, and in consideration for, the execution of this Loan Agreement and the issue of the Note.
 
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SECTION 5.05. Borrower to Indemnify Certain Persons.
The Borrower shall indemnify each of the Trustee, the Tender Agent, each predecessor of either thereof, and each of their respective officers, directors, and employees for, and hold it harmless against, any loss, liability, or expense incurred without negligence, willful misconduct, or bad faith on its own part, arising out of or in connection with the acceptance, administration, or performance of its duties hereunder or under the Bond Indenture or any Liquidity Facility, including the costs and expenses of defending itself against any claim or liability in connection with the exercise or performance of any of its powers or duties hereunder or under the Bond Indenture or any Liquidity Facility.
THE BORROWER RELEASES AND SHALL DEFEND AND HOLD THE ISSUER, EACH OF THE DIRECTORS AND OFFICERS OF THE ISSUER, HARRIS COUNTY, TEXAS, AND EACH OF THE COUNTY COMMISSIONERS OF SUCH COUNTY HARMLESS FROM ANY TAX, PENALTY, FINE, COST, EXPENSE, LOSS, DAMAGE, OR OTHER LIABILITY OR CLAIM (INCLUDING ATTORNEYS’ FEES, LITIGATION AND COURT COSTS, AND OTHER EXPENSES OF THE DEFENSE THEREOF AND AMOUNTS PAID IN SETTLEMENT OR TO DISCHARGE JUDGMENTS, EXCEPT AS OTHERWISE PROVIDED IN THIS SECTION) INCURRED BY OR ASSERTED AGAINST ANY SUCH INDEMNIFIED PARTY AS A RESULT OF ANY ACTION OR OMISSION BY THE ISSUER OR SUCH INDEMNIFIED PARTY OR OTHER PERSON HEREUNDER OR UNDER THE BOND INDENTURE (OR ANY OTHER DOCUMENT EXECUTED BY SUCH PERSON IN CONNECTION WITH THE ISSUANCE OF BONDS), OR AS A RESULT OF ANY ACTION OR OMISSION OF THE BORROWER IN THE DESIGN, CONSTRUCTION, INSTALLATION, EQUIPPING, FURNISHING, OPERATION, USE, OCCUPANCY, INSURANCE, MAINTENANCE, OR OWNERSHIP OF ANY PROJECT OR THE OBSERVANCE OR PERFORMANCE OF THE OBLIGATIONS OF THE BORROWER HEREUNDER, OR IN CONNECTION WITH THE SALE, OFFERING FOR SALE, ISSUANCE, OR DELIVERY OF ANY BONDS, UNLESS ANY SUCH ACT OR OMISSION BY SUCH INDEMNIFIED PARTY BE DETERMINED BY A COURT OF COMPETENT JURISDICTION TO HAVE BEEN WILLFUL MIS-CONDUCT (AND WHETHER OR NOT ANY SUCH ACT OR OMISSION SHALL HAVE BEEN NEGLIGENT), IT BEING THE EXPRESS INTENT OF THE PARTIES THAT THE BORROWER SHALL SO INDEMNIFY SUCH INDEMNIFIED PARTIES EVEN AGAINST THEIR NEGLIGENT ACTS AND OMISSIONS.
The Borrower may, and if requested in writing by any indemnified party shall, undertake the defense of any claim, action, or proceeding for which such indemnified party is indemnified under this Section, and, thereafter, the Borrower shall not be liable to any such indemnified party for any legal or other expenses other than reasonable costs subsequently incurred by such indemnified party at the request of the Borrower in connection with the defense thereof, unless (1) the employment of such counsel has been specifically authorized by the Borrower, in writing, (2) the Borrower has failed after request to assume the defense and to employ counsel, or (3) the named parties to any such action (including any impleaded parties) include both an indemnified party and the Borrower, and the indemnified party shall have been advised by counsel that there may be one or more legal defenses available to it which are different from or additional to those available to the Borrower (in which case, if such indemnified party notifies the Borrower in writing that it elects to employ separate counsel at the expense of the Borrower, the Borrower shall not have the right to assume the defense of the action on behalf of such indemnified party); provided, however, that the Borrower shall not, in connection with any one action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general allegation or circumstances, be liable for the reasonable fees and expenses of more than one separate firm of attorneys for all indemnified parties, provided that any indemnified party which has been advised by counsel that there may be one or more legal defenses available to it which are different from or additional to those available to any other indemnified party shall have the right to employ separate counsel whose fees and expenses shall be paid by the Borrower. The Borrower shall be liable for no settlement of any such claim, action, or proceeding effected without its consent. Each indemnified party shall give prompt notice of any claim, action, or proceeding against it upon which such indemnified party may seek indemnity hereunder. Notwithstanding anything herein to the contrary, the indemnifications set forth herein shall survive the termination of this Loan Agreement and/or the resignation of the Trustee and the Tender Agent.
 
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SECTION 5.06. Modification of Bonds and Bond Indentures; Limitation on Liens.
The Issuer shall not modify or supplement, or agree to the modification or supplementation of, the terms of the Bonds or the Bond Indenture except upon Borrower Consent.
SECTION 5.07. Maintenance of Tax-Exempt Status of Bonds.
A. General . The Borrower shall not take any action or omit to take any action which, if taken or omitted, respectively, would adversely affect the excludability of interest on any Bond from the gross income, as defined in section 61 of the Code, of the owner thereof for federal income tax purposes (except for any period of time during which such Bond is held by a “substantial user” of a Project or by a “related person” within the meaning of section 147(a) of the Code). The Borrower and the Issuer shall execute such amendments hereof and supplements hereto (and shall comply with the provisions thereof) as may, in the Opinion of Counsel, be necessary to preserve or perfect such exclusion. The Borrower shall comply with each specific covenant in this Section at all times prior to the last Maturity of the Bonds (and, in the case of Subsection G of this Section, until compliance therewith in full), unless and until there shall have been delivered to the Trustee and the Issuer an Opinion of Counsel to the effect that failure to comply with such covenant, either generally or to the extent stated therein, shall not adversely affect the excludability of interest on any Bond from the gross income, as defined in section 61 of the Code, of the owner thereof for federal income tax purposes (except for any period of time during which such Bond is held by a “substantial user” of a Project or by a “related person” within the meaning of section 147(a) of the Code), and thereafter such covenant shall no longer be binding upon the Borrower, generally or to such extent as the case may be, anything in any other Subsection of this Section to the contrary notwithstanding.
B. Representations .
(1) General . All representations, warranties, and certifications made by the Borrower in connection with the delivery of the Bonds on the Issue Date, including, but not limited to, those representations, warranties, and certifications contained in any Tax Letter of Representation executed by the Borrower, or in any requisition delivered to the Trustee requesting or directing the disbursement of money from the Project Fund or the Costs of Issuance Fund, are and shall be true, correct, and complete in all material respects.
(2) Maturity of Bonds. The weighted average maturity, calculated in accordance with section 147(b) of the Code, of the Bonds does not exceed 120 percent of the average reasonably expected economic life of the Projects to be financed with proceeds of the Bonds, calculated in accordance with section 147(b) of the Code.
(3) Storm Loss. The Borrower, and if the Borrower is a disregarded entity for federal income tax purposes, the most immediate direct or indirect owner of the Borrower that is a regarded entity for such purposes, suffered a loss in a trade or business attributable to Hurricane Ike or is a person designated by the Governor of the State of Texas as a person carrying on a trade or business replacing a trade or business with respect to which another person suffered such a loss.
 
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C. Prohibition on Certain Uses. The Borrower shall not use or permit the use of any proceeds of the Bonds or any income from the investment thereof:
(1) Prohibited Facilities: to provide any movable fixture or equipment, airplane, skybox or other private luxury box, health club facility, private or commercial golf course, country club, massage parlor, hot tub facility, suntan facility, racetrack or other facility primarily used for gambling, or store the principal business of which is the sale of alcoholic beverages for consumption off premises, or
(2) Costs of Issuance: to pay or otherwise finance costs of issuance of the Bonds ( e.g., underwriting compensation, trustee and rating agency fees, printing costs, Issuer fees, and fees and expenses of counsel) in an amount which exceeds 2% of the proceeds from the sale of the Bonds.
The Borrower shall not requisition funds from the Project Fund in a manner that would cause the representation made in Subsection B(2) of this Section to become untrue.
D. Not to Cause Classification as Arbitrage Bonds or Hedge Bonds . The Borrower shall not (and shall not direct or permit the Trustee to) invest, and shall not take any other action or omit to take any other action with respect to, the Gross Proceeds of the Bonds or any amounts expected to be used to pay the principal thereof or the interest thereon which, if directed, permitted, taken, or omitted, respectively, would cause any Bond to be classified as an “arbitrage bond” within the meaning of section 148 of the Code or a “hedge bond” within the meaning of section 149 of the Code.
E. No Federal Guarantees , Etc . Except to the extent permitted in section 149(b) of the Code and the Regulations and rulings thereunder, the Borrower shall not take or omit to take any action which would cause the Bonds to be federally guaranteed within the meaning of section 149(b) of the Code and the Regulations and rulings thereunder.
F. No Instruction to Divert Arbitrage Profits or Invest at Guaranteed Yield . The Borrower shall not direct, instruct, or permit the Trustee to invest any Gross Proceeds of the Bonds in any Taxable Investments:
(1) Off Market: for which there is not an established market (except obligations purchased from the United States Treasury) or otherwise enter into any transaction that reduces the amount required to be paid to the United States pursuant to Subsection G of this Section because such transaction results in a smaller profit or a larger loss than would have resulted had the yield on the Bonds or such investment not been relevant to either party, or
(2) Hedge: in an amount which exceeds 50% of such Gross Proceeds if such Taxable Investments assure a substantially guaranteed yield for four years or more.
G. To Rebate Arbitrage Profits.
(1) To Deliver Documents and Money on Computation Dates . The Borrower shall deliver to the Trustee, within 55 days after each Computation Date,
(a) Statement of Rebate Amount and Income: a statement, signed by an Accountant, stating (i) the Rebate Amount for the Bonds as of such Computation Date, and (ii) the minimum portion thereof which must be remitted to the United States Treasury in respect of such Computation Date to satisfy the requirements of Section 1.148-3(f) of the Regulations in respect of the Bonds,
 
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(b) Rebate Payment: either (i) an amount which, together with the amount then held for the credit of the Rebate Fund, is equal to the amount then elected by the Borrower to be paid by the Issuer in respect of such Computation Date pursuant to Section 5.06E of the Bond Indenture, which aggregate amount shall not be less than the minimum amount specified in such Accountant’s statement, or (ii) a Borrower Order to transfer from the Project Fund to the Rebate Fund an amount which does not exceed the balance of such fund and which, together with the amount then held for the credit of the Rebate Fund, is equal to the amount specified in the immediately preceding Clause (i), and
(c) IRS Forms: an Internal Revenue Service Form 8038-T completed as of such Computation Date or such other form as may be required to be filed by the Regulations.
(2) To Correct Underpayments . If the Borrower shall discover or be notified as of any date that any payment made to the United States Treasury pursuant to Section 5.06E of the Bond Indenture shall have failed to satisfy any requirement of Section 1.148-3 of the Regulations (whether or not such failure shall be due to any default by the Borrower, the Issuer, or the Trustee), the Borrower shall (a) deliver to the Trustee a brief written explanation of such failure and any basis for concluding that such failure was not due to willful neglect and (b) pay to the Trustee (for deposit to the Rebate Fund) and cause the Trustee to pay to the United States Treasury from the Rebate Fund, within 180 days after such discovery or notice, the correct amount in respect thereof, interest thereon, and any penalty imposed under Section 1.148-3(h) of the Regulations.
(3) Preservation of Accounting Records. The Borrower shall retain all of its accounting records relating to the Bond Funds, the Project Fund, the Costs of Issuance Fund, and the Rebate Fund, and all calculations made in preparing the statements described in Subsection G(l) of this Subsection, for at least six years after the later of the final Maturity of the Bonds or the first date on which no Bonds are Outstanding.
(4) Elections . The Issuer hereby authorizes the Borrower to exercise, on behalf of the Issuer, any election in respect of the Bonds pursuant to the Regulations, including the election of Computation Dates, and the Issuer will cooperate with the Borrower and execute any form or statement required by such Regulations to perfect any such election. The Issuer shall maintain any such election which is provided to it as well as this Loan Agreement as part of the official transcript of proceedings relating to the issuance of the Bonds until six years after the final Computation Date.
(5) Exemption from Rebate. If the Borrower shall deliver to the Trustee, on or before the first Rebate Calculation Date, either (1) an Officers’ Certificate of the Borrower, signed by an Accountant, stating that all Gross Proceeds of the Bonds were expended within six months after the Issue Date, excluding Gross Proceeds credited to the Bond Fund, if any, or (2) both an Officers’ Certificate of the Borrower, signed by an Accountant, stating the purposes for which Gross Proceeds of the Bonds (other than Gross Proceeds in the Bond Fund) have been expended, the dates of such expenditures, and the amounts so expended and an Opinion of Counsel, given in reliance upon such Officers’ Certificate, stating that section 148(f)(2) of the Code does not apply to Gross Proceeds of the Bonds, then in either such case the provisions of this Subsection G shall be suspended until such time, if ever, as such provisions are reinstated in accordance with this Subsection G(5). If, more than six months after the Issue Date or the date of either such Officers’ Certificate, Gross Proceeds of the Bonds (other than amounts credited to the Bond Funds) exist, the Borrower shall promptly deliver to the Trustee an Officers’ Certificate of the Borrower stating such fact, and the provisions of this Subsection G shall be reinstated, but only with respect to such Gross Proceeds.
 
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H. To Provide Information for Form 8038. The Borrower shall timely and accurately provide to the Issuer all information required by section 149 of the Code to be filed with respect to the Bonds.
I. Qualified Project Costs. At least 95% of the net proceeds of the Bonds shall be used for the acquisition, construction, reconstruction, and renovation of nonresidential real property located in a Hurricane Ike disaster area for which the person using the property suffered a loss in a trade or business attributable to Hurricane Ike or is a person designated by the Governor of Texas as a person carrying on a trade or business replacing a trade or business with respect to which another person suffered such a loss.
J. Limitation on Land Acquisition . No more than 25% of the net proceeds of the Bonds shall be used for the acquisition of land or an interest therein, other than as permitted under Section 147(c) of the Code and the regulations and rulings thereunder.
K. Limitation on Acquisition of Existing Property . Other than as permitted in Section 147(d) of the Code and the regulations and rulings thereunder, no portion of the net proceeds of the Bonds shall be used for the acquisition of any property or an interest therein unless the first use of such property is pursuant to such acquisition (within the meaning of Section 147(d) of the Code and the regulations and rulings thereunder).
L. Records . Until four years after the final Maturity of the Bonds, the Borrower shall preserve and maintain such records as may be required to establish the accuracy of all representations and warranties and compliance with all covenants in this Section throughout the full term of this Agreement.
SECTION 5.08. To Exclude Ineligible Bonds from Tenders.
The Borrower and the Issuer shall give all notices in the manner and by the time required by the Securities Depository or any of its direct or indirect participants to exclude Bonds legally or beneficially owned by such Persons from tenders of Bonds permitted or required by Section 4.06, 4.07, 4.08, 4.09, or 4.10 of the Bond Indenture.
SECTION 5.09. Limitations Affecting Tenders and Purchases of Bonds.
Neither the Issuer nor the Borrower will lend, contribute, or otherwise advance funds to any Person for the purchase of Bonds tendered for purchase in accordance with Section 4.06, 4.07, 4.08, 4.09, or 4.10 of the Bond Indenture, if such Person would be an Excluded Purchaser if all relevant facts were known to the Trustee and the Tender Agent, and the Issuer shall not purchase any such Bonds.
If, pursuant to any Credit Facility, Reimbursement Agreement, or Liquidity Facility, the Borrower is obligated to reimburse any Credit Facility Provider or Liquidity Facility Provider for amounts claimed or drawn under a Credit Facility or Liquidity Facility, respectively, to pay principal of (and premium, if any) or interest on Bonds or the Purchase Price of tendered Bonds, the Borrower shall make each such reimbursement only after such Credit Facility Provider or Liquidity Facility Provider has disbursed such amount with respect to which such reimbursement is made.
The Borrower shall not purchase (and shall not permit any Affiliate of the Borrower or any nominee or other Person acting for the account of the Borrower or an Affiliate of the Borrower to purchase) any Bonds tendered for purchase in accordance with Section 4.06, 4.07, 4.08, 4.09, or 4.10 of the Bond Indenture, except in accordance with Section 3.05.
 
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SECTION 5.10. Consolidation and Merger.
The Borrower covenants that during the term of this Loan Agreement it will maintain its existence and will not transfer all or substantially all of its assets to, and will not consolidate with or merge into, another Person; provided that the Borrower may consolidate with or merge into another entity ( i.e., an entity organized and existing under the laws of one of the states of the United States or the District of Columbia), or transfer to another domestic entity all or substantially all of its assets, and may thereafter dissolve, if the surviving, resulting or transferee entity, as the case may be, is the Borrower or a domestic entity which (1) is qualified to do business in the State of Texas, (2) irrevocably and unconditionally assumes in writing (herein referred to as the “ Assumption Agreement ”) all of the obligations of the Borrower under this Loan Agreement, and (3) shall have, concurrently with such transaction, delivered to the Issuer and the Trustee an Opinion of Counsel to the effect that such entity has full power and authority to execute and deliver the Assumption Agreement, that the Assumption Agreement has been duly authorized, executed, and delivered by such entity and is the legal, valid, and binding obligation of such entity, enforceable against such entity in accordance with its terms (except as enforcement thereof may be limited by bankruptcy or insolvency or other laws affecting creditors’ rights generally), and that such consolidation, merger, sale, or other transfer complies with this Loan Agreement. If any consolidation, merger, sale, or other transfer is made as provided in this Section, the provisions of this Section shall continue in full force and effect, and no further consolidation, merger, sale, or other transfer shall be made except in compliance with the provisions of this Section.
SECTION 5.11. Assignment.
The Borrower may assign its interest in this Loan Agreement in whole or in part, provided, however , that no assignment shall relieve the Borrower from primary liability for any of its obligations hereunder, and without limiting the generality of the foregoing, in the event of any such assignment the Borrower shall continue to remain primarily liable for its payments specified herein and for performance and observance of the other covenants and agreements on its part herein provided. The Borrower may also assign its interest in this Loan Agreement in connection with a consolidation with or merger into another domestic entity, or the sale or transfer of all or substantially all of its assets as an entirety to another domestic entity, if such transaction complies with the requirements of Section 5.10 and the last sentence of this Section. Anything in this Loan Agreement notwithstanding, no assignment of the Borrower’s interest in this Loan Agreement shall be effective unless the Borrower shall, on or prior to the effective date of any such assignment, furnish or cause to be furnished to the Issuer and the Trustee notice of such assignment, together with an Opinion of Counsel to the effect that such assignment is permitted by the Act and the Bond Indenture and will not adversely affect any exclusion of the interest on any Bond from the gross income, as defined in section 61 of the Code, of the owner thereof for federal income tax purposes (except for any period of time during which such Bond is held by a “substantial user” of a Project or a “related person” within the meaning of section 147(a) of the Code).
*                    *                     *
 
27

ARTICLE VI
CONTINUING DISCLOSURE UNDERTAKING
 SECTION 6.01. Audited Financial Statements and Material Event Notices.
A. Annual Reports . The Borrower shall provide annually to the MSRB, within six months after the end of each fiscal year of the Borrower, annual financial information and operating data of the Borrower of the general type included in the Official Statement together with audited financial statements of the Borrower for such fiscal year prepared in accordance with generally accepted accounting principles.
If the Borrower changes its fiscal year, the Borrower will notify the MSRB of the change (and of the date of the new fiscal year end) prior to the next date by which the Borrower otherwise would be required to provide financial information and operating data pursuant to this Section.
B. Material Events Notices . The Borrower shall provide notice of any of the following events with respect to the Bonds to the MSRB in a timely manner and not more than 10 business days after occurrence of the event:
(1) Principal and interest payment delinquencies;
(2) Non-payment related defaults, if material;
(3) Unscheduled draws on debt service reserves reflecting financial difficulties;
(4) Unscheduled draws on credit enhancements reflecting financial difficulties;
(5) Substitution of credit or liquidity providers, or their failure to perform;
(6) Adverse tax opinions, the issuance by the Internal Revenue Service of proposed or final determinations of taxability, Notices of Proposed Issue (IRS Form 5701-TEB), or other material notices or determinations with respect to the tax status of the Bonds, or other material events affecting the tax status of the Bonds;
(7) Modifications to rights of holders of the Bonds, if material;
(8) Bond calls, if material, and tender offers;
(9) Defeasances;
(10) Release, substitution, or sale of property securing repayment of the Bonds, if material;
(11) Rating changes;
(12) Bankruptcy, insolvency, receivership, or similar event of the Borrower, which shall occur as described below;
(13) The consummation of a merger, consolidation, or acquisition involving the Borrower or the sale of all or substantially all of its assets, other than in the ordinary course of business, the entry into of a definitive agreement to undertake such an action or the termination of a definitive agreement relating to any such actions, other than pursuant to its terms, if material; and
 
28

(14) Appointment of a successor or additional trustee or the change of name of a trustee, if material.
For these purposes, any event described in the immediately preceding paragraph (12) is considered to occur when any of the following occur: the appointment of a receiver, fiscal agent, or similar officer for the Borrower in a proceeding under the United States Bankruptcy Code or in any other proceeding under state or federal law in which a court or governmental authority has assumed jurisdiction over substantially all of the assets or business of the Borrower, or if such jurisdiction has been assumed by leaving the existing governing body and officials or officers in possession but subject to the supervision and orders of a court or governmental authority, or the entry of an order confirming a plan of reorganization, arrangement, or liquidation by a court or governmental authority having supervision or jurisdiction over substantially all of the assets or business of the Borrower.
The Borrower shall notify the MSRB, in a timely manner, of any failure by the Borrower to provide audited financial statements, annual financial information or operating data in accordance with this Section by the time required by this Section.
 SECTION 6.02. Filing Requirements.
Each document provided to the MSRB in accordance with this Article shall be provided in the electronic format and with the identifying information prescribed by the MSRB.
 SECTION 6.03. Limitations, Disclaimers, and Amendments.
The Borrower shall be obligated to observe and perform the covenants specified in this Article for so long as, but only for so long as, the Borrower remains an “obligated person” with respect to the Bonds within the meaning of the Rule, except that the Borrower in any event will provide notice to the MSRB of any defeasance that causes the Borrower to be no longer such an “obligated person.”
The provisions of this Article are for the sole benefit of the Holders and beneficial owners of the Bonds, and nothing in this Article, express or implied, shall give any benefit or any legal or equitable right, remedy, or claim hereunder to any other Person. The Borrower undertakes to provide only the financial statements, financial information and operating data, and notices which it has expressly agreed to provide pursuant to this Article and does not hereby undertake to provide any other information that may be relevant or material to a complete presentation of the financial results, condition, or prospects of the Borrower or hereby undertake to update any information provided in accordance with this Article or otherwise, except as expressly provided herein. The Borrower does not make any representation or warranty concerning such information or its usefulness to a decision to invest in or sell Bonds at any future date.
UNDER NO CIRCUMSTANCES SHALL THE BORROWER BE LIABLE TO THE HOLDER OR BENEFICIAL OWNER OF ANY BOND OR ANY OTHER PERSON, IN CONTRACT OR TORT, FOR DAMAGES RESULTING IN WHOLE OR IN PART FROM ANY BREACH BY THE BORROWER, WHETHER NEGLIGENT OR WITHOUT FAULT ON ITS PART, OF ANY COVENANT SPECIFIED IN THIS ARTICLE, BUT EVERY RIGHT AND REMEDY OF ANY SUCH PERSON, IN CONTRACT OR TORT, FOR OR ON ACCOUNT OF ANY SUCH BREACH SHALL BE LIMITED TO AN ACTION FOR SPECIFIC PERFORMANCE.
No default by the Borrower in observing or performing its obligations under this Article to provide information to the MSRB shall constitute a breach of or default under this Loan Agreement for purposes of any other provision of this Loan Agreement or the Bond Indenture.
 
29

Nothing in this Article is intended or shall act to disclaim, waive, or otherwise limit the duties of the Borrower under federal and state securities laws.
The provisions of this Article may be amended by the Borrower and the Issuer from time to time upon at least 30 days written notice provided to the Trustee, the Remarketing Agents, and the MSRB, and by the Trustee to the Bondholders, but only if (1) the purpose of such amendment is to adapt to changed circumstances that arise from a change in legal requirements, a change in law, or a change in the identity, nature, status, or type of operations or businesses of the Borrower and both (a) the provisions of this Article, as so amended, would have permitted an underwriter to purchase or sell Bonds in compliance with the Rule in the most recent primary offering of the Bonds, taking into account any interpretations of the Rule by the U.S. Securities and Exchange Commission to the date of such amendment, as well as such changed circumstances, and (b) either (i) the Holders of a majority in aggregate principal amount of the Outstanding Bonds consent to such amendment or (ii) a Person that is unaffiliated with the Borrower (such as nationally recognized bond counsel) determines that such amendment will not materially impair the interests of the Holders and beneficial owners of the Bonds or (2) such amendment is conditioned on a primary offering or placement following mandatory tender and purchase of the Bonds. If the Borrower and the Issuer so amend the provisions of this Article, the Borrower shall include with any financial statements next provided in accordance with Section 6.01 an explanation, in narrative form, of the reasons for the amendment and of the impact of any change in the type of financial information or operating data so provided. The Issuer shall execute any amendment to the provisions of this Article permitted by the terms of this Section upon Borrower Request.
*                    *                     *
 
30

This instrument may be executed in any number of counterparts, each of which so executed shall be deemed to be an original, but all such counterparts shall together constitute but one and the same instrument.
I N W ITNESS W HEREOF , the parties hereto have caused this Loan Agreement to be duly executed as of the day and year first above written.

HARRIS COUNTY INDUSTRIAL DEVELOPMENT CORPORATION	
		
By:	 	/s/ Authorized Representative	
	 	President	
[ Other signature page follows ]
S-1

[ This page is intentionally left blank ]
 
S-2

			
HFOTCO LLC	
		
By:	 	/s/ Authorized Representative	
Title:	 	Vice President of Finance	
 
S-3

[ This page is intentionally left blank. ]
 
S-4

E XHIBIT A
TO
L OAN A GREEMENT
DESCRIPTION OF THE PROJECTS

The Projects to be financed with proceeds of the Bonds consist of improvements to real property (excluding moveable fixtures and equipment) used or to be used in the Borrower’s residual fuel oil and crude oil terminal and dock facilities located at or near 1201 S. Sheldon Road in Houston, Texas, including, without limitation, tanks for residual and crude oil storage, major rail, dock and infrastructure upgrades, and related fixed equipment, structures, and facilities.
 
A-1

[ This page is intentionally left blank. ]
 
A-2

E XHIBIT B
TO
L OAN A GREEMENT
FORM OF NOTE

This Note has not been registered under the Securities Act of 1933, as amended.

$100,000,000.00	  	No.                 	
NOTE
(HFOTCO LLC Project Series 2012)
[ Closing Date ]
FOR VALUE RECEIVED, HFOTCO LLC, a Texas limited liability company (hereinafter referred to as the “ Borrower ”), promises to pay to the HARRIS COUNTY INDUSTRIAL DEVELOPMENT CORPORATION, a Texas non-profit corporation organized with the approval of Harris County, Texas, pursuant to the Development Corporation Act, Chapter 501, Texas Local Government Code, as amended (hereinafter referred to as the “ Issuer ”), or registered assigns, (a) the principal sum of One Hundred Million and no/100 Dollars ($100,000,000.00) on November 1, 2050, (b) interest on the unpaid portion thereof from and including the date hereof at a rate for each day of accrual equal to the arithmetic mean, weighted in proportion to the principal amounts thereof, of the rates of interest borne by the bonds of the Issuer designated its MARINE TERMINAL REVENUE BONDS (HFOTCO LLC PROJECT) SERIES 2012 (herein referred to as the “ Bonds ”) Outstanding (as defined in the Bond Indenture referred to herein) on such day, computed on the same basis and payable on the same dates and in the same amounts as such interest on the Bonds (or as provided in Sections 3.04G of the Loan Agreement referred to herein, if earlier), and (c) the obligations of the Borrower described in Sections 3.04D, 3.06, and 5.07G of the Loan Agreement referred to herein , provided that in no event shall the aggregate of the interest hereon, plus any other amounts paid in connection herewith which are deemed “interest” under the laws of the State of Texas or the United States of America permitting the charging and collecting of the highest permissible lawful non-usurious interest rate hereon in effect on the date hereof (hereinafter referred to as “ Applicable Law ”), ever exceed the maximum amount of interest which could be lawfully charged hereon under Applicable Law, anything herein or in the Loan Agreement hereinafter described to the contrary notwithstanding, and if any amount of interest taken or received by the holder hereof shall be in excess of the maximum amount of interest which, under Applicable Law, could lawfully have been collected hereon, then the excess shall be deemed to have been the result of a mathematical error by the Borrower and the holder hereof and shall be refunded promptly to the Borrower. All amounts paid or agreed to be paid in connection with the indebtedness evidenced hereby and by the Loan Agreement hereinafter described which under Applicable Law would be deemed “interest” shall, to the extent permitted by Applicable Law, be amortized, prorated, allocated, and spread throughout the full term hereof.
The principal hereof (and prepayment premium, if any) and interest hereon shall be payable at the principal corporate trust office of the corporation then acting as trustee (herein referred to as the “Trustee” ) under that certain Bond Indenture, dated as of October 1, 2012, between the Issuer and The Bank of New York Mellon Trust Company, National Association, as trustee, which secures the Bonds (herein referred to as the “ Bond Indenture ”). All such payments shall be made, in immediately available funds, in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts.
 
B-1

All sums due hereon shall be payable at the opening of business of the principal corporate trust office of the Trustee on the date such payments become due. All sums paid hereon shall be applied to the satisfaction of, first, the sums specified in Clause (c)  of the first paragraph hereof in respect of fees and expenses due the Trustee, second , accrued interest hereon, third, the unpaid principal (and prepayment premium, if any) hereof, and fourth, all other sums due hereunder.
This Note is a “Note” referred to in Section 3.04B of that certain Loan Agreement, dated as of October 1, 2012 (herein referred to as the “Loan Agreement” ), between the Issuer and the Borrower and is issued to evidence a loan by the Issuer to the Borrower, thereunder from proceeds of the Bonds issued under the Bond Indenture. This Note arises out of the Loan Agreement and the Bond Indenture.
The Borrower shall prepay the outstanding principal sum hereof, in whole or in part, in the same amounts, on the same dates, and with the same premium, if any, as Bonds called for redemption prior to their maturity in accordance with the provisions of the Bond Indenture. This Note is not otherwise prepayable at the option of the Borrower.
The outstanding principal hereof is subject to acceleration as permitted by the Loan Agreement.
The Borrower hereby expressly waives all notices (including notice of redemption, notice of intent to accelerate, and notice of acceleration), demands for payment, presentments for payment, and notations of payment.
As provided in the Loan Agreement, and subject to certain limitations therein set forth, this Note is transferrable on the Note Register established thereunder upon surrender of this Note for transfer at the principal corporate trust office of the Trustee duly endorsed, or accompanied by written instrument of transfer in from satisfactory to the Trustee duly executed, by the registered holder hereof or his attorney duly authorized in writing.
This Note is a contract made under and shall be construed in accordance with and governed by the laws of the State of Texas.
The Borrower may treat the Person in whose name this Note is registered as the owner hereof for the purpose of receiving payment as herein provided and for all other purposes, and the Borrower shall not be affected by notice to the contrary.
Unless the certificate of authentication hereon has been executed by the Trustee by manual signature, this Note shall not be entitled to any benefit under the Loan Agreement or be valid or obligatory for any purpose.

HFOTCO LLC, a Texas limited liability company	
		
By:	 	 	
	 	President	
 
B-2

This Instrument is the Note referred to in the Loan Agreement described therein and is registered in the Note Register therefor as No...

Date of Authentication:	 		 	THE BANK OF NEW YORK MELLON	
	 		 	TRUST COMPANY, NATIONAL	
 	 		 	ASSOCIATION	
				
	 		 	By:	 	 	
	 		 		 	Authorized Signature	
FOR VALUE RECEIVED, the undersigned hereby sells, assigns, and transfers unto The Bank of New York Mellon Trust Company, National Association, as trustee under the within described Bond Indenture, as pledgee, without recourse, the within instrument and all rights thereunder and hereby irrevocably constitutes and appoints the same attorney to transfer the within instrument on the books kept for registration thereof, with full power of substitution in the premises.
Dated this ........ day of October, 2012.

HARRIS COUNTY INDUSTRIAL DEVELOPMENT CORPORATION	
		
By:	 	 	
	 	President	
 
B-3

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B-4

Exhibit 4.9
FIRST AMENDMENT TO LOAN AGREEMENT
(Series 2010)
THIS FIRST AMENDMENT TO LOAN AGREEMENT, dated as of August 19, 2014 (the “ Amendment ”), between the Harris County Industrial Development Corporation, a Texas public non-profit corporation (the “ Issuer ”), and HFOTCO LLC, a Texas limited liability company (the “ Borrower ”),
W I T N E S S E T H:
WHEREAS, the Issuer and the Borrower have entered into that certain Loan Agreement, dated as of November 1, 2010 (the “ Loan Agreement ”); and
WHEREAS, the Issuer and the Borrower desire to amend the Loan Agreement in order to support the remarketing of the Bonds therein described pursuant to and upon the effective date of the Amended and Restated Bond Indenture, dated as of even date herewith (the “ Restated Bond Indenture ”), between the Issuer and The Bank of New York Mellon Trust Company, N.A., relating to such Bonds;
NOW, THEREFORE, in consideration of the premises and of the purchase of the Bonds on the first Mandatory Tender Date described in the Bond Indenture, the Issuer and the Borrower agree to amend the Loan Agreement as follows:
1. Definitions. Capitalized terms used and not defined in this Amendment shall have the meanings ascribed to such terms in the Loan Agreement or, if not there defined, the Restated Bond Indenture. All references in the Loan Agreement to designated “ Articles ,” “ Sections, ” and other subdivisions shall refer to the designated Articles, Sections, and other subdivisions thereof as amended by this Amendment.
The term “Loan Payments” in Section 1.01 of the Loan Agreement is hereby amended and restated to read as follows:
“” Loan Payments ” means those certain payments agreed to be made by the Borrower pursuant to Section 3.04 and pursuant to the Note evidencing such agreement, including payments pursuant to any guaranty thereof and realization on any security therefor.”
2. Consent. The Borrower acknowledges receipt of and consents to the execution and delivery of the Restated Bond Indenture and acknowledges that references to the Bond Indenture in the Loan Agreement are to such Bond Indenture as amended and restated by the Restated Bond Indenture.
3. Action by or Affecting Bondholder Representative. Anything in the Loan Agreement to the contrary notwithstanding, any request, demand, authorization, direction, notice, consent, waiver, or other action provided in the Loan Agreement to be given or taken by the Holders of Bonds in any Mode to direct, consent to, or waive the exercise by the Issuer or the Trustee of any right or remedy hereunder may be given or taken by, and only by, a written instrument signed by the Bondholder Representative whenever such Bonds are in a Term Indexed Mode and a Bondholder Agreement therefor is in effect. The Loan Agreement may not be amended or supplemented to change the rights of the Bondholder Representative without the written consent of such Person.
 
- 1 -

4. Notices to and from Bondholder Representative. Where the Loan Agreement provides for notice to Bondholders of any event, a copy of such notice shall be given in writing and mailed, first-class postage prepaid, to the Bondholder Representative, at the address of the Bondholder Representative specified in the Bondholder Agreement, not later than the latest date, and not earlier than the earliest date, prescribed for the giving of such notice to Bondholders, whenever such Bonds are in a Term Indexed Mode and a Bondholder Agreement therefor is in effect. Any notice to or from the Bondholder Representative pursuant to the Loan Agreement may be given by Electronic Means with the same effect as if given under the Restated Bond Indenture.
5. Security for Loan Payments . The heading and text of Section 3.02 are hereby amended and restated in their entirety to read as follows: “[Reserved].”
6. Tax Covenants . From and after the effective date of this Amendment, Section 5.07 of the Loan Agreement (including the defined terms used therein) shall be construed, and observed and performed by the Borrower, as if each reference therein to “ the Bonds ” were to the Common Issue Bonds, “ any Bond ” were to any Common Issue Bond, “ Issue Date ” were to the effective date of this Amendment, and “ Tax Letter of Representation ” were to the letter of that name executed by the Borrower as of such effective date, and as if the representations therein were repeated as of such effective date. The Borrower represents to the Issuer and the Trustee for purposes of Section 5.07G(5) of the Loan Agreement that all Gross Proceeds of the Common Issue Bonds have been expended.
7. Restrictions on Transfers . Neither the Borrower nor Buffalo Gulf Coast Terminals LLC nor Buffalo Parent Gulf Coast Terminals LLC shall take any action or allow any action to be taken that would cause the Common Issue Bonds to be treated for federal income tax purposes as assumed by an unrelated party in connection with an asset acquisition (within the meaning of Section 1.150-1(d)(2)(v) of the Regulations) within six months of the effective date of this Amendment, including a sale of any interest in either the Borrower or Buffalo Gulf Coast Terminals LLC to an unrelated party, or any action that would cause either the Borrower or Buffalo Gulf Coast Terminals LLC to be treated as other than a disregarded entity for federal income tax purposes.
8. Discontinuation of Continuing Disclosure. Upon the effective date of the Restated Bond Indenture, Article Six of the Loan Agreement shall be deleted, and the Borrower shall no longer be obligated to perform any of its obligations thereunder.
9. Exchange of Notes. Upon the effective date of the Restated Indenture, in exchange for the Note heretofore issued by the Borrower to the Issuer and collaterally assigned by the Issuer to the Trustee as security for the Bonds under the Bond Indenture, the Borrower shall issue a new Note in the same amount, with the same terms, and in the same form of such previously issued Note, except that the second paragraph of such new Note shall be revised by adding, immediately after the phrase “October 1, 2012,” the phrase “as supplemented, amended, and restated from time to time in accordance with its terms,”.
10. Effective Date; Ratification. This Amendment shall become effective on the effective date of the Restated Bond Indenture and, until such date, shall have no force or effect. The Loan Agreement is hereby ratified and, except as expressly amended hereby, shall remain in full force and effect.
This instrument may be executed in any number of counterparts, each of which so executed shall be deemed to be an original, but all such counterparts shall together constitute but one and the same instrument.
[ Signature pages follow ]
 
- 2 -

IN WITNESS WHE REO F, the parties have executed and de livered this Amendment as of the date first above written.

HARRIS COUNTY INDUSTRIAL DEVELOPMENT CORPORATION	
		
By:	 	/s/ Authorized Representative	
	 	President	
		
By:	 	/s/ Authorized Representative	
	 	Secretary	
	
HFOTCO LLC	
		
By:	 	/s/ Authorized Representative	
	 	Vice President of Finance	
The undersigned agree to observe the restrictions on transfers and other action on their part stated in paragraph 7 of the foregoing Amendment.

BUFFALO PARENT GULF COAST TERMINALS LLC
 	 		 	BUFFALO GULF COAST TERMINALS LLC
 	
By:	 	/s/ Chris Beale	 		 	By:	 	/s/ Chris Beale	
Name:	 	Chris Beale	 		 	Name:	 	Chris Beale	
Title:	 	President	 		 	Title:	 	President	
[ Signture page to First Amendment to Loan Agreement Series 2010 ]

Exhibit 4.10
FIRST AMENDMENT TO LOAN AGREEMENT
(Series 2011)
THIS FIRST AMENDMENT TO LOAN AGREEMENT, dated as of August 19, 2014 (the “ Amendment ”), between the Harris County Industrial Development Corporation, a Texas public non-profit corporation (the “ Issuer ”), and HFOTCO LLC, a Texas limited liability company (the “ Borrower ”),
W I T N E S S E T H:
WHEREAS, the Issuer and the Borrower have entered into that certain Loan Agreement, dated as of December 1, 2011 (the “ Loan Agreement ”); and
WHEREAS, the Issuer and the Borrower desire to amend the Loan Agreement in order to support the remarketing of the Bonds therein described pursuant to and upon the effective date of the Amended and Restated Bond Indenture, dated as of even date herewith (the “ Restated Bond Indenture ”), between the Issuer and The Bank of New York Mellon Trust Company, N.A., relating to such Bonds;
NOW, THEREFORE, in consideration of the premises and of the purchase of the Bonds on the first Mandatory Tender Date described in the Bond Indenture, the Issuer and the Borrower agree to amend the Loan Agreement as follows:
1. Definitions. Capitalized terms used and not defined in this Amendment shall have the meanings ascribed to such terms in the Loan Agreement or, if not there defined, the Restated Bond Indenture. All references in the Loan Agreement to designated “ Articles ,” “ Sections, ” and other subdivisions shall refer to the designated Articles, Sections, and other subdivisions thereof as amended by this Amendment.
The term “Loan Payments” in Section 1.01 of the Loan Agreement is hereby amended and restated to read as follows:
““ Loan Payments ” means those certain payments agreed to be made by the Borrower pursuant to Section 3.04 and pursuant to the Note evidencing such agreement, including payments pursuant to any guaranty thereof and realization on any security therefor.”
2. Consent. The Borrower acknowledges receipt of and consents to the execution and delivery of the Restated Bond Indenture and acknowledges that references to the Bond Indenture in the Loan Agreement are to such Bond Indenture as amended and restated by the Restated Bond Indenture.
3. Action by or Affecting Bondholder Representative. Anything in the Loan Agreement to the contrary notwithstanding, any request, demand, authorization, direction, notice, consent, waiver, or other action provided in the Loan Agreement to be given or taken by the Holders of Bonds in any Mode to direct, consent to, or waive the exercise by the Issuer or the Trustee of any right or remedy hereunder may be given or taken by, and only by, a written instrument signed by the Bondholder Representative whenever such Bonds are in a Term Indexed Mode and a Bondholder Agreement therefor is in effect. The Loan Agreement may not be amended or supplemented to change the rights of the Bondholder Representative without the written consent of such Person.
 
-1-

4. Notices to and from Bondholder Representative. Where the Loan Agreement provides for notice to Bondholders of any event, a copy of such notice shall be given in writing and mailed, first-class postage prepaid, to the Bondholder Representative, at the address of the Bondholder Representative specified in the Bondholder Agreement, not later than the latest date, and not earlier than the earliest date, prescribed for the giving of such notice to Bondholders, whenever such Bonds are in a Term Indexed Mode and a Bondholder Agreement therefor is in effect. Any notice to or from the Bondholder Representative pursuant to the Loan Agreement may be given by Electronic Means with the same effect as if given under the Restated Bond Indenture.
5. Security for Loan Payments . The heading and text of Section 3.02 are hereby amended and restated in their entirety to read as follows: “[Reserved].”
6. Tax Covenants . From and after the effective date of this Amendment, Section 5.07 of the Loan Agreement (including the defined terms used therein) shall be construed, and observed and performed by the Borrower, as if each reference therein to “ the Bonds ” were to the Common Issue Bonds, “ any Bond ” were to any Common Issue Bond, “ Issue Date ” were to the effective date of this Amendment, and “ Tax Letter of Representation ” were to the letter of that name executed by the Borrower as of such effective date, and as if the representations therein were repeated as of such effective date. The Borrower represents to the Issuer and the Trustee for purposes of Section 5.07G(5) of the Loan Agreement that all Gross Proceeds of the Common Issue Bonds have been expended.
7. Restrictions on Transfers . Neither the Borrower nor Buffalo Gulf Coast Terminals LLC nor Buffalo Parent Gulf Coast Terminals LLC shall take any action or allow any action to be taken that would cause the Common Issue Bonds to be treated for federal income tax purposes as assumed by an unrelated party in connection with an asset acquisition (within the meaning of Section 1.150-1(d)(2)(v) of the Regulations) within six months of the effective date of this Amendment, including a sale of any interest in either the Borrower or Buffalo Gulf Coast Terminals LLC to an unrelated party, or any action that would cause either the Borrower or Buffalo Gulf Coast Terminals LLC to be treated as other than a disregarded entity for federal income tax purposes.
8. Discontinuation of Continuing Disclosure. Upon the effective date of the Restated Bond Indenture, Article Six of the Loan Agreement shall be deleted, and the Borrower shall no longer be obligated to perform any of its obligations thereunder.
9. Exchange of Notes. Upon the effective date of the Restated Indenture, in exchange for the Note heretofore issued by the Borrower to the Issuer and collaterally assigned by the Issuer to the Trustee as security for the Bonds under the Bond Indenture, the Borrower shall issue a new Note in the same amount, with the same terms, and in the same form of such previously issued Note, except that the second paragraph of such new Note shall be revised by adding, immediately after the phrase “October 1, 2012,” the phrase “as supplemented, amended, and restated from time to time in accordance with its terms,”.
10. Effective Date; Ratification. This Amendment shall become effective on the effective date of the Restated Bond Indenture and, until such date, shall have no force or effect. The Loan Agreement is hereby ratified and, except as expressly amended hereby, shall remain in full force and effect.
This instrument may be executed in any number of counterparts, each of which so executed shall be deemed to be an original, but all such counterparts shall together constitute but one and the same instrument.
[ Signature pages follow ]
 
-2-

IN WITNESS WHE REO F, the parties have executed and de livered this Amendment as of the date first above written.

HARRIS COUNTY INDUSTRIAL DEVELOPMENT CORPORATION	
		
By:	 	/s/ Authorized Representative	
	 	President	
		
By:	 	/s/ Authorized Representative	
	 	Secretary	
	
HFOTCO LLC	
		
By:	 	/s/ Authorized Representative	
	 	Vice President of Finance	
The undersigned agree to observe the restrictions on transfers and other action on their part stated in paragraph 7 of the foregoing Amendment.

BUFFALO PARENT GULF COAST TERMINALS LLC
 	 		 	BUFFALO GULF COAST TERMINALS LLC
 	
By:	 	/s/ Chris Beale	 		 	By:	 	/s/ Chris Beale	
Name:	 	Chris Beale	 		 	Name:	 	Chris Beale	
Title:	 	President	 		 	Title:	 	President	
[ Signture page to First Amendment to Loan Agreement Series 2011 ]
 
-3-

Exhibit 4.11
FIRST AMENDMENT TO LOAN AGREEMENT
(Series 2012)
THIS FIRST AMENDMENT TO LOAN AGREEMENT, dated as of August 19, 2014 (the “ Amendment ”), between the Harris County Industrial Development Corporation, a Texas public non-profit corporation (the “ Issuer ”), and HFOTCO LLC, a Texas limited liability company (the “ Borrower ”),
W I T N E S S E T H:
WHEREAS, the Issuer and the Borrower have entered into that certain Loan Agreement, dated as of October 1, 2012 (the “ Loan Agreement ”); and
WHEREAS, the Issuer and the Borrower desire to amend the Loan Agreement in order to support the remarketing of the Bonds therein described pursuant to and upon the effective date of the Amended and Restated Bond Indenture, dated as of even date herewith (the “ Restated Bond Indenture ”), between the Issuer and The Bank of New York Mellon Trust Company, N.A., relating to such Bonds;
NOW, THEREFORE, in consideration of the premises and of the purchase of the Bonds on the first Mandatory Tender Date described in the Bond Indenture, the Issuer and the Borrower agree to amend the Loan Agreement as follows:
1. Definitions. Capitalized terms used and not defined in this Amendment shall have the meanings ascribed to such terms in the Loan Agreement or, if not there defined, the Restated Bond Indenture. All references in the Loan Agreement to designated “ Articles ,” “ Sections, ” and other subdivisions shall refer to the designated Articles, Sections, and other subdivisions thereof as amended by this Amendment.
The term “Loan Payments” in Section 1.01 of the Loan Agreement is hereby amended and restated to read as follows:
““ Loan Payments ” means those certain payments agreed to be made by the Borrower pursuant to Section 3.04 and pursuant to the Note evidencing such agreement, including payments pursuant to any guaranty thereof and realization on any security therefor.”
2. Consent. The Borrower acknowledges receipt of and consents to the execution and delivery of the Restated Bond Indenture and acknowledges that references to the Bond Indenture in the Loan Agreement are to such Bond Indenture as amended and restated by the Restated Bond Indenture.
3. Action by or Affecting Bondholder Representative. Anything in the Loan Agreement to the contrary notwithstanding, any request, demand, authorization, direction, notice, consent, waiver, or other action provided in the Loan Agreement to be given or taken by the Holders of Bonds in any Mode to direct, consent to, or waive the exercise by the Issuer or the Trustee of any right or remedy hereunder may be given or taken by, and only by, a written instrument signed by the Bondholder Representative whenever such Bonds are in a Term Indexed Mode and a Bondholder Agreement therefor is in effect. The Loan Agreement may not be amended or supplemented to change the rights of the Bondholder Representative without the written consent of such Person.
 
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4. Notices to and from Bondholder Representative. Where the Loan Agreement provides for notice to Bondholders of any event, a copy of such notice shall be given in writing and mailed, first-class postage prepaid, to the Bondholder Representative, at the address of the Bondholder Representative specified in the Bondholder Agreement, not later than the latest date, and not earlier than the earliest date, prescribed for the giving of such notice to Bondholders, whenever such Bonds are in a Term Indexed Mode and a Bondholder Agreement therefor is in effect. Any notice to or from the Bondholder Representative pursuant to the Loan Agreement may be given by Electronic Means with the same effect as if given under the Restated Bond Indenture.
5. Security for Loan Payments . The heading and text of Section 3.02 are hereby amended and restated in their entirety to read as follows: “[Reserved].”
6. Tax Covenants . From and after the effective date of this Amendment, Section 5.07 of the Loan Agreement (including the defined terms used therein) shall be construed, and observed and performed by the Borrower, as if each reference therein to “ the Bonds ” were to the Common Issue Bonds, “ any Bond ” were to any Common Issue Bond, “ Issue Date ” were to the effective date of this Amendment, and “ Tax Letter of Representation ” were to the letter of that name executed by the Borrower as of such effective date, and as if the representations therein were repeated as of such effective date. The Borrower represents to the Issuer and the Trustee for purposes of Section 5.07G(5) of the Loan Agreement that all Gross Proceeds of the Common Issue Bonds have been expended.
7. Restrictions on Transfers . Neither the Borrower nor Buffalo Gulf Coast Terminals LLC nor Buffalo Parent Gulf Coast Terminals LLC shall take any action or allow any action to be taken that would cause the Common Issue Bonds to be treated for federal income tax purposes as assumed by an unrelated party in connection with an asset acquisition (within the meaning of Section 1.150-1(d)(2)(v) of the Regulations) within six months of the effective date of this Amendment, including a sale of any interest in either the Borrower or Buffalo Gulf Coast Terminals LLC to an unrelated party, or any action that would cause either the Borrower or Buffalo Gulf Coast Terminals LLC to be treated as other than a disregarded entity for federal income tax purposes.
8. Discontinuation of Continuing Disclosure. Upon the effective date of the Restated Bond Indenture, Article Six of the Loan Agreement shall be deleted, and the Borrower shall no longer be obligated to perform any of its obligations thereunder.
9. Exchange of Notes. Upon the effective date of the Restated Indenture, in exchange for the Note heretofore issued by the Borrower to the Issuer and collaterally assigned by the Issuer to the Trustee as security for the Bonds under the Bond Indenture, the Borrower shall issue a new Note in the same amount, with the same terms, and in the same form of such previously issued Note, except that the second paragraph of such new Note shall be revised by adding, immediately after the phrase “October 1, 2012,” the phrase “as supplemented, amended, and restated from time to time in accordance with its terms,”.
10. Effective Date; Ratification. This Amendment shall become effective on the effective date of the Restated Bond Indenture and, until such date, shall have no force or effect. The Loan Agreement is hereby ratified and, except as expressly amended hereby, shall remain in full force and effect.
This instrument may be executed in any number of counterparts, each of which so executed shall be deemed to be an original, but all such counterparts shall together constitute but one and the same instrument.
[ Signature pages follow ]
 
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IN WITNESS WHE REO F, the parties have executed and de livered this Amendment as of the date first above written.

HARRIS COUNTY INDUSTRIAL DEVELOPMENT CORPORATION	
		
By:	 	/s/ Authorized Representative	
	 	President	
		
By:	 	/s/ Authorized Representative	
	 	Secretary	
	
HFOTCO LLC	
		
By:	 	/s/ Authorized Representative	
	 	Vice President of Finance	
The undersigned agree to observe the restrictions on transfers and other action on their part stated in paragraph 7 of the foregoing Amendment.

BUFFALO PARENT GULF COAST TERMINALS LLC
 	 		 	BUFFALO GULF COAST TERMINALS LLC
 	
By:	 	/s/ Chris Beale	 		 	By:	 	/s/ Chris Beale	
Name:	 	Chris Beale	 		 	Name:	 	Chris Beale	
Title:	 	President	 		 	Title:	 	President	
[ Signture page to First Amendment 10 Loan Agreement Series 2012 ]
 
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Exhibit 10.1
REGISTRATION RIGHTS AGREEMENT
BY AND BETWEEN
BUFFALO INVESTOR I, LP,
BUFFALO INVESTOR II, LP
AND
SEMGROUP CORPORATION
dated as of July 17, 2017

TABLE OF CONTENTS

 	  	 	  	Page	 	
ARTICLE I DEFINITIONS	  	 	1	 	
1.1.	  	Definitions	  	 	1	 	
		
ARTICLE II REGISTRATION RIGHTS	  	 	5	 	
2.1.	  	Registration	  	 	5	 	
2.2.	  	Piggyback Rights	  	 	7	 	
2.3.	  	Registration Procedure	  	 	9	 	
2.4.	  	Conditions to Offerings	  	 	13	 	
2.5.	  	Suspension Period	  	 	14	 	
2.6.	  	Registration Expenses	  	 	14	 	
2.7.	  	Indemnification; Contribution	  	 	15	 	
2.8.	  	Rule 144	  	 	17	 	
		
ARTICLE III TRANSFER RESTRICTIONS; VOTING	  	 	18	 	
3.1.	  	Transfers	  	 	18	 	
3.2.	  	Restrictions on Public Sales	  	 	18	 	
3.3.	  	Agreement to Vote Registrable Securities	  	 	19	 	
3.4.	  	Restrictions on Hedging	  	 	19	 	
		
ARTICLE IV GENERAL PROVISIONS	  	 	19	 	
4.1.	  	Notices	  	 	19	 	
4.2.	  	Expenses	  	 	20	 	
4.3.	  	Amendments; Waivers	  	 	20	 	
4.4.	  	Interpretation	  	 	20	 	
4.5.	  	Severability	  	 	21	 	
4.6.	  	Facsimiles; Counterparts	  	 	21	 	
4.7.	  	Entire Understanding; No Third-Party Beneficiaries	  	 	21	 	
4.8.	  	Governing Law	  	 	22	 	
4.9.	  	Assignment	  	 	22	 	
4.10.	  	Specific Performance	  	 	23	 	
4.11.	  	Termination	  	 	23	 	
Exhibits
Exhibit A – Form of Joinder
 
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REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT (this “ Agreement ”), dated as of July 17, 2017 (the “ Effective Date ”), is made and entered into by and among Buffalo Investor I, LP, a Delaware limited partnership (“ Buffalo I ”), Buffalo Investor II, LP, a Delaware limited partnership (“ Buffalo II ”, and together with Buffalo I, the “ Sellers ”) and SemGroup Corporation, a Delaware corporation (the “ Company ”).
Each party to this Agreement (including any party made a party to this Agreement through the execution of a joinder to this Agreement) is sometimes referred to individually in this Agreement as a “ Party ” and all of the parties to this Agreement are sometimes collectively referred to in this Agreement as the “ Parties .”
R E C I T A L S
WHEREAS, the Sellers and the Company are parties to that certain Purchase and Sale Agreement, dated as of June 5, 2017, by and among the Sellers, the Company, Beachhead I LLC, a Delaware limited liability company, and Beachhead II LLC, a Delaware limited liability company, (the “ Purchase Agreement ”);
WHEREAS, the execution and delivery of this Agreement is a condition to the obligations of the parties thereto to consummate the transactions contemplated by the Purchase Agreement; and
WHEREAS, the Company has agreed to provide the registration and other rights set forth in this Agreement for the benefit of the Sellers pursuant to the Purchase Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
ARTICLE I
DEFINITIONS
1.1. Definitions . As used in and for purposes of this Agreement, the following terms have the following meanings:
“ Affiliate ” means a Person that directly or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, a specified Person. A Person shall be deemed to control another Person if such first Person possesses, directly or indirectly, the power to direct, or cause the direction of, the management and policies of such other Person, whether through the ownership of voting securities, by contract or otherwise. Without limiting the foregoing, for the purposes of this Agreement, any managed investment funds or other investment vehicles shall be considered Affiliates.
“ Agreed Securities Exchange ” means the New York Stock Exchange.
 
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“ Agreement ” means this Agreement, as amended from time to time.
“ beneficial owner ” and words of similar import have the meaning assigned to such terms in Rule 13d-3 promulgated under the Exchange Act as in effect on the Effective Date.
“ Block Trade ” means any sales in privately negotiated transactions to one or more purchasers, in a block trade in which a broker-dealer may seek to sell securities as an agent but may position and sell a portion of the block as principal, in purchases by a broker-dealer as principal and resale by the broker-dealer for its account, in transactions in which the broker solicits purchasers, or directly to one or more purchasers or through agents.
“ Buffalo I ” has the meaning set forth in the preamble to this Agreement.
“ Buffalo II ” has the meaning set forth in the preamble to this Agreement.
“ Business Day ” means any day on which the principal offices of the SEC in Washington, D.C. are open to accept filings, or, in the case of determining a date when any payment is due, any day on which banks are not required or authorized to close in the City of Houston in the United States of America.
“ Closing Date ” shall have the meaning set forth in the Purchase Agreement.
“ Company ” has the meaning set forth in the preamble to this Agreement.
“ Effective Date ” has the meaning set forth in the preamble to this Agreement.
“ Effectiveness Period ” has the meaning set forth in Section 2.1(a) .
“ Equity Interests ” means any type of equity ownership in the Company, or right to acquire any equity ownership in the Company, including SemGroup Common Shares or other shares or a similar security, or any other interest entitling the holder thereof to participate in dividends or otherwise granting any other economic, voting or other rights, obligations, benefits or interests in, or attaching to, such interests.
“ Exchange Act ” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
“ Floor ” has the meaning set forth in Section 2.1(b) .
“ Governmental Entity ” means any (i) nation, region, state, province, county, city, town, village, district or other jurisdiction, (ii) federal, state, local, municipal, foreign or other government, (iii) governmental or quasi-governmental body of any nature (including any governmental agency, branch, department, court or tribunal, or other entities), (iv) multinational organization or body or (v) body entitled to exercise any administrative, executive, judicial, legislative, police, regulatory or taxing authority or power of any nature.
“ Included Registrable Securities ” has the meaning set forth in Section 2.2 .
 
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“ Indemnifying Party ” has the meaning set forth in Section 2.8(c) .
“ Inspectors ” has the meaning set forth in Section 2.3(n) .
“ Law ” means any law, statute, code, ordinance, order, rule, rule of common law, regulation, judgment, decree or injunction, of any Governmental Entity.
“ Losses ” means any and all losses, claims, damages, liabilities, obligations, costs and expenses (including as a result of any notices, actions, suits, proceedings, claims, demands, assessments, judgments, awards, costs, penalties, taxes and reasonable out-of-pocket expenses, including reasonable attorneys’ fees).
“ Marketed Offering ” has the meaning set forth in Section 2.1(b) .
“ Offering Expenses ” has the meaning set forth in Section 2.6 .
“ Opt-Out Notice ” has the meaning set forth in Section 2.2 .
“ Participating Shareholders ” has the meaning set forth in Section 2.1(b) .
“ Participating Shareholder Indemnified Persons ” has the meaning set forth in Section 2.8(a) .
“ Party ” has the meaning set forth in the preamble to this Agreement.
“ Person ” means any natural person, group (including a “ group ” under Section 13(d) of the Exchange Act), corporation, limited partnership, general partnership, limited liability company, joint stock company, joint venture, association, company, estate, trust, bank trust company, land trust, business trust, or other organization, whether or not a legal entity, custodian, trustee-executor, administrator, nominee or entity in a representative capacity and any Governmental Entity.
“ Prospectus ” means the prospectus (including any preliminary prospectus and any final prospectus) included in any Registration Statement, as amended or supplemented by any free writing prospectus, whether or not required to be filed with the SEC, prospectus supplement with respect to the terms of the offering of any portion of the Registrable Securities covered by the Registration Statement and by all other amendments and supplements to the prospectus, and all material incorporated by reference in such prospectus.
“ Purchase Agreement ” has the meaning set forth in the recitals to this Agreement.
“ Qualified Offering ” means a transaction (including an offering pursuant to an effective Registration Statement) in which Registrable Securities are sold to an underwriter for reoffering and resale to the public, an offering that is a “bought deal” with one or more investment banks, a Block Trade or other sale of shares to one or more purchasers in a limited offering or sales process.
“ Qualified Offering Request ” has the meaning set forth in Section 2.1(b) .

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“ Records ” has the meaning set forth in Section 2.3(n) .
“ Registrable Securities ” means all SemGroup Common Shares received by the Sellers pursuant to the Purchase Agreement, that are beneficially owned by Shareholders, and any Equity Interests issued as a dividend or other distribution with respect to, or in exchange for, or in replacement of, such SemGroup Common Shares; provided , however , that a Registrable Security shall cease to be a Registrable Security when (a) such Registrable Security has been sold pursuant to an effective Registration Statement under the Securities Act, (b) such Registrable Security has been sold pursuant to Rule 144 (or any similar provision then in force under the Securities Act) and the transferee thereof does not receive “restricted securities” as defined in Rule 144, (c) such Registrable Security shall have ceased to be outstanding; (d) such Registrable Security has been sold in a private transaction in which the transferor’s rights under this Agreement are not assigned to the transferee of the securities or (e) when a Shareholder (other than Sellers or any of their respective Affiliates) is able to dispose of such Registrable Security held by it pursuant to Rule 144 under the Securities Act without any limitation.
“ Registration Statement ” means any registration statement of the Company that covers Registrable Securities pursuant to the provisions of this Agreement, including the prospectus, amendments and supplements to such registration statement, including pre- and post-effective amendments, and all exhibits and all material incorporated by reference in such registration statement.
“ Representative ” means, with respect to any Person, such Person’s, or such Person’s Subsidiaries’, directors, officers, employees, accountants, investment bankers, commercial bank lenders, attorneys and other advisors or representatives (including the employees or attorneys of such accountants, investment bankers or attorneys).
“ Rule 144 ” means Rule 144 promulgated under the Securities Act or any similar rule or regulation hereafter adopted by the SEC having substantially the same effect as such rule.
“ SEC ” means the U.S. Securities and Exchange Commission.
“ Securities Act ” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.
“ Sellers ” has the meaning set forth in the preamble to this Agreement.
“ Selling Expenses ” has the meaning set forth in Section 2.8(b) .
“ SemGroup Common Shares ” means shares of Class A Common Stock, par value $0.01 per share, of the Company.
“ Shareholders ” means the Sellers and transferees to whom a Shareholder transfers shares and related rights under this Agreement in accordance with Article III of this Agreement.
“ Shelf Registration ” has the meaning set forth in Section 2.1(a) .

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“ Special Approval Item ” means solely the proposal submitted for approval at the Company’s 2018 annual meeting of stockholders with respect to an increase in the authorized capital stock of the Company, which proposal will not include approval of any shareholder rights plan, “poison pill” or any similar takeover defense proposal.
“ Suspension Period ” has the meaning set forth in Section 2.5(a) .
“ Violation ” has the meaning set forth in Section 2.8(a) .
ARTICLE II
REGISTRATION RIGHTS
2.1. Registration .
(a) With respect to all of the Registrable Securities held by the Shareholders, the Company shall (A) prepare and file a Registration Statement on Form S-3 (or, in the event Form S-3 is unavailable to the Company, then on Form S-1) (the “ Shelf Registration ”) as permitted by Rule 415 of the Securities Act (or such other similar rule as is then applicable) for the public resale of the Registrable Securities then outstanding on a delayed or continuous basis, and (B) use reasonable best efforts to cause such Registration Statement to be declared effective by the SEC not later than ninety (90) days after the Closing Date and in any event as soon as practicable after such filing. The Company shall use reasonable best efforts to cause each Registration Statement filed pursuant to this Section 2.1(a) to be effective, supplemented, amended or replaced to the extent necessary to ensure that it is available for the resale of all Registrable Securities by the Shareholders until the earliest of the date that (i) all Registrable Securities covered by the Registration Statement have been distributed in the manner set forth and as contemplated in such Registration Statement and (ii) there are no longer any Registrable Securities outstanding (the “ Effectiveness Period ”). The Company shall keep the Shareholders reasonably informed regarding filings made pursuant to this Section 2.1(a) , including by, to the extent reasonably practicable, providing the Shareholders an opportunity to review such filings in advance of their submission to the SEC.
(b) In the event that a Shareholder elects to dispose of Registrable Securities pursuant to a Qualified Offering of Registrable Securities (the “ Participating Shareholders ”), the Company shall, at the request of the Participating Shareholders (a “ Qualified Offering Request ”), file a prospectus supplement, as soon as reasonably practicable, that shall be deemed to be part of a Registration Statement filed pursuant to Section 2.1(a) that is useable for a resale of Registrable Securities by the Participating Shareholders conducted pursuant to such Qualified Offering. The Qualified Offering Request will specify the aggregate value of the Registrable Securities proposed by the Participating Shareholders to be included in such Qualified Offering (calculated based on the volume-weighted average trading price of the SemGroup Common Shares for the 20 Business Days prior to the date of the Qualified Offering Request), which aggregate value may not be less than $50 million (the “ Floor ”). Subject to the Floor, Participating Shareholders may change the number of Registrable Securities proposed to be offered in any Qualified Offering at any time prior to commencement thereof. Participating Shareholders will be permitted to rescind a Qualified Offering Request at any time prior to the public announcement of the Qualified Offering; provided, that (i) the Participating Shareholders reimburse the
 
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Company for all reasonable, out-of-pocket expenses incurred by the Company in connection with such Qualified Offering and (ii) the Shareholders will not be entitled to submit a Qualified Offering Request during the sixty (60) day period following the date of the rescission. In connection with each Qualified Offering pursuant to this Section 2.1(b) , the Participating Shareholders delivering the Qualified Offering Request will determine (A) the plan of distribution, (B) such other matters affecting the structure and marketing of the Qualified Offering, and (C) the lead underwriter or underwriters and lead book runner(s), if any, provided that such underwriter(s) and lead book runner(s) are lenders under the Company’s Amended and Restated Credit Agreement, dated as of September 30, 2016, by and among the Company, as borrower, the guarantors named therein, the lenders named therein, and Wells Fargo Bank, National Association, as administrative agent. The Company and all Participating Shareholders proposing to distribute their Registrable Securities through such Qualified Offering shall enter into an underwriting agreement in reasonable and customary form, and such other reasonable and customary agreements, including, but not limited to, custody agreements and lock-up agreements, reasonably requested by the lead underwriter(s), so long as all Participating Shareholders participating in such Qualified Offering are required to enter into substantially similar custody agreements or lock-up agreements, as the case may be. Participating Shareholders may require the Company to effect up to four (4) Qualified Offerings where the plan of distribution includes a customary “road show” or other substantial marketing effort by the Company and the underwriter(s) or requires customary cooperation of the Company for one or more underwriters to establish a due diligence defense (a “ Marketed Offering ”) in any 365-day period (it being acknowledged and agreed by the Parties that Participating Shareholders may otherwise make an unlimited number of requests for Qualified Offerings not involving a Marketed Offering, such as a Block Trade).
(c) The Company further agrees to use reasonable best efforts to supplement or make amendments to each Registration Statement filed pursuant to Section 2.1(a) as may be necessary to keep such Registration Statement effective for the Effectiveness Period, including (i) to respond to the comments of the SEC, if any, (ii) as may be required by the registration form utilized by the Company for such Registration Statement or by the instructions to such registration form, (iii) as may be required by the Securities Act or (iv) as may be reasonably requested in writing by the Participating Shareholders or any underwriter, which may include amendments to reflect any specific plan of distribution or sale, sales in the over-the-counter market or any national securities exchange, or a distribution or sale to be made pursuant to a Block Trade. The Company agrees to furnish to the Participating Shareholders copies of any such supplement or amendment reasonably promptly after it is first being used or filed with the SEC. The Company agrees that any Registration Statement (including any prospectus contained therein) and any post-effective amendment thereto (including, in each case, the documents incorporated therein by reference), when it becomes or is declared effective or is filed with the SEC, will comply as to form in all material respects with all applicable requirements of the Securities Act and the Exchange Act and will not, as of each effective date of such Registration Statement or post-effective amendment and as of each filing date, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading (and, in the case of any prospectus contained in such Registration Statement, in the light of the circumstances under which a statement is made). As soon as practicable following the effective date of a Registration Statement, but in any event
 
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within one (1) Business Day of such date, the Company shall notify the Shareholders of the effectiveness of such Registration Statement. If, at any time, a Shelf Registration ceases to be effective, the Company shall use its best efforts to file and use its reasonable best efforts to cause to become effective a new “evergreen” shelf Registration Statement providing for an offering to be made on a continuous basis of the Registrable Securities. Such shelf Registration Statement shall be filed on Form S-3 or, if Form S-3 is unavailable to the Company, on Form S-1.
(d) Subject to the following sentence, the Company may include solely in any Marketed Offering any securities of the Company for its own account or for the account of any holders of SemGroup Common Shares. Any sale of such securities in any underwritten offering for the Company’s account or the account of any such holders shall be on the same terms as the sale of securities by the Participating Shareholders in such offering. Notwithstanding anything to the contrary contained herein, if the lead underwriter or underwriters of a Marketed Offering advise the Participating Shareholders that, in their reasonable opinion the number of Equity Interests (including any Registrable Securities) that the Company, the Participating Shareholders and any other Persons intend to include in any Marketed Offering is such that the success of any such offering would be adversely affected, including with respect to the price at which the securities can be sold, then the number of SemGroup Common Shares or other Equity Interests to be included in the Marketed Offering for the account of the Company, the Participating Shareholders and any other Persons will be reduced to the extent necessary to reduce the total number of securities to be included in any such Marketed Offering to the number recommended by such lead underwriter(s); provided , however , that such reduction shall be made: (i)  first , to remove or reduce any SemGroup Common Shares or other Equity Interests proposed to be offered by the Company for its own account, (ii)  second , to remove or reduce pro rata among any holders of SemGroup Common Shares or other Equity Interests other than the Participating Shareholders any SemGroup Common Shares or other Equity Interests requested to be registered or disposed of by them, as applicable, and (iii)  third , to remove or reduce pro rata among the Participating Shareholders, on the basis of the number of SemGroup Common Shares or other Equity Interests requested to be registered or disposed of by them, as applicable, so that the total number of Equity Interests to be included in any such offering for the account of all such Persons will not exceed the number recommended by such lead underwriter(s).
2.2. Piggyback Rights . So long as a Shareholder has Registrable Securities, if at any time the Company proposes to sell or dispose of SemGroup Common Shares for its own account and/or for another Person in an underwritten offering (which, for the avoidance of doubt, shall not include an at-the-market offering or distribution), other than (a) a registration relating solely to employee benefit plans, (b) a registration relating solely to a Rule 145 transaction or (c) a registration statement on any registration form which does not permit secondary sales, then as soon as reasonably practicable following the engagement of counsel by the Company to prepare the documents to be used in connection with the underwritten offering, the Company shall give notice (which may be limited to notification by electronic mail and shall state the intended method of distribution) of such proposed underwritten offering to each Shareholder holding (individually or in the aggregate with its Affiliates who are also Shareholders) at least $10 million of the then-outstanding Registrable Securities (calculated based on the volume-weighted average trading price of the SemGroup Common Shares for the twenty (20) Business Days prior to the date of such notice) and such notice shall offer such Shareholders the opportunity to
 
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include in such underwritten offering such number of Registrable Securities (the “ Included Registrable Securities ”) as each such Shareholder may request in writing; provided, however , that if the Company has been advised by the lead underwriter or underwriters for such underwritten offering that, in their reasonable opinion, the inclusion of the Included Registrable Securities in the underwritten offering will have an adverse effect on the price at which the securities can be sold in the underwritten offering, then (1) if no Registrable Securities can be included in the underwritten offering in the written opinion of the lead underwriter or underwriters, the Company shall not be required to offer such opportunity to the Shareholders (but, for the avoidance of doubt, shall nevertheless be required to notify the Shareholders of such offering in accordance with the foregoing) or (2) if any Registrable Securities can be included in the underwritten offering in the opinion of the lead underwriter or underwriters, then the number of SemGroup Common Shares or other Equity Interests to be included in the underwritten offering for the account of the Company, the Participating Shareholders and any other Persons participating in such offering will be reduced to the extent necessary to reduce the total number of securities to be included in any such underwritten offering to the number recommended by such lead underwriter(s); provided , however , that such reduction shall be made: (i)  first , to remove or reduce pro rata among the Participating Shareholders and any Person participating in such offering, on the basis of the number of SemGroup Common Shares or other Equity Interests requested to be registered or disposed of, as applicable and (ii)  second , to remove or reduce any SemGroup Common Shares or other Equity Interests proposed to be offered by the Company for its own account, so that the total number of Equity Interests to be included in any such offering for the account of all such Persons will not exceed the number recommended by such lead underwriter(s). Any sale of such securities in any offering for the account of any Participating Shareholder or the account of such other Persons shall be on the same terms as the sale of securities by the Company in such offering. Any notice required to be provided in this Section 2.2 to Shareholders shall be provided on a Business Day pursuant to Section 4.1 hereof and receipt of such notice shall be confirmed in writing by the Shareholder. Each such Shareholder shall then have four (4) Business Days (or one (1) Business Day in connection with any overnight, single day marketed or bought underwritten offering) after notice has been delivered to request in writing the inclusion of Registrable Securities in the underwritten offering, which request shall include the amount of Registrable Securities to be included. If no written request for inclusion from a Shareholder is received within the specified time, each such Shareholder shall have no further right to participate in such underwritten offering (but, for the avoidance of doubt, shall nevertheless continue to have the right to include Registrable Securities in any subsequent Registration Statement as may be filed by the Company, upon the terms and conditions set forth in this Agreement). If, at any time after giving written notice of its intention to undertake a underwritten offering and prior to the closing of such underwritten offering, the Company shall determine for any reason not to undertake or to delay such underwritten offering, the Company shall give written notice of such determination to the Shareholders and, (x) in the case of a determination not to undertake such underwritten offering, shall be relieved of its obligation to sell any Included Registrable Securities in connection with such terminated underwritten offering, and (y) in the case of a determination to delay such underwritten offering, shall be permitted to delay offering any Included Registrable Securities for the same period as the delay in the underwritten offering; provided that in the event such delay exceeds two (2) months after notice is delivered by a Participating Shareholder to request the inclusion of Registrable Securities in the underwritten offering, the Company shall be required to provide
 
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notice again to the Shareholders no later than five (5) Business Days (or two (2) Business Days in connection with any overnight or bought underwritten offering) prior to the commencement of the underwritten offering. Any Shareholder shall have the right to withdraw such Shareholder’s request for inclusion of such Shareholder’s Registrable Securities in such underwritten offering by giving written notice to the Company of such withdrawal at or prior to the time of pricing of such underwritten offering. Any Shareholder may deliver written notice (an “ Opt-Out Notice ”) to the Company requesting that such Shareholder not receive notice from the Company of any proposed underwritten offering; provided, however , that such Shareholder may later revoke any such Opt-Out Notice in writing. Following receipt of an Opt-Out Notice from a Shareholder (but only for so long as such notice is not subsequently revoked), the Company shall not be required to deliver any notice to such Shareholder pursuant to this Section 2.2 and such Shareholder shall not be entitled to participate in underwritten offerings by the Company pursuant to this Section 2.2 . Any Shareholder participating in a underwritten offering pursuant to this Section 2.2 shall be a “Participating Shareholder” for the purposes of this Agreement.
2.3. Registration Procedure . Subject to the provisions of Section 2.1 and 2.2 , if and whenever the Company is required by the provisions of this Agreement to effect or cause a registration of Registrable Securities, the Company shall use its reasonable best efforts to effect, as soon as practicable (or, to the extent a specific time period is provided herein, in accordance with such time period), in accordance with the intended method(s) of distribution, the registration of such Registrable Securities. Without limiting the generality of the foregoing, in connection with the registration of the sale of Registrable Securities pursuant to this Agreement, the Company will as promptly as reasonably practicable:
(a) prepare and file with the SEC, (i) a Registration Statement, and use its reasonable best efforts to cause such Registration Statement to become effective within the time periods specified herein and to remain effective under the Securities Act and as required by the terms of this Agreement; provided , however , that the Company may discontinue any registration of its securities which are not Registrable Securities at any time prior to the effective date of the Registration Statement relating thereto and (ii) such amendments and supplements to such Registration Statement and the prospectus used in connection with such Registration Statement as may be necessary to comply with the provisions of the Securities Act with respect to the distribution of all securities covered by such Registration Statement;
(b) furnish to each Participating Shareholder participating in an underwritten offering without charge, within a reasonable time prior to the filing of a Registration Statement, copies of such Registration Statement as it is proposed to be filed, and thereafter such number of copies of such Registration Statement, each amendment and supplement thereto (in each case including all exhibits thereto, including each preliminary prospectus), copies of any and all transmittal letters or other correspondence with the SEC relating to such Registration Statement and such other documents in such quantities as such Participating Shareholder may reasonably request from time to time in order to facilitate the disposition of such Registrable Securities, and give each Participating Shareholder and its Representatives a reasonable opportunity to review and comment on the same prior to filing any such documents;
 
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(c) (i) cause the Company’s Representatives to supply all information reasonably requested by a Participating Shareholder, any underwriter, or its Representatives in connection with the Registration Statement and (ii) provide each Participating Shareholder, any underwriter and its Representatives with the opportunity to participate in the preparation of such Registration Statement and the related Prospectus;
(d) if applicable, use reasonable best efforts to register or qualify such Registrable Securities under such other securities or “blue sky” laws of such jurisdictions as a Participating Shareholder and the underwriters of the securities being registered, if applicable, reasonably request and do any and all other acts and things as may be reasonably necessary or advisable to enable a Participating Shareholder to consummate the disposition of such Registrable Securities in such jurisdictions; provided , however , that the Company shall in no event be required to (i) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this paragraph (d), (ii) subject itself to taxation in any jurisdiction where it is not otherwise then so subject, or (iii) consent to general service of process in any jurisdiction where it is not then so subject;
(e) use all reasonable efforts to cause each Registration Statement (including the prospectus included therein) and any post-effective amendments thereto, as of the effective date of such Registration Statement or post-effective amendment and as of the date of the prospectus and during the distribution of the related Registrable Securities, (x) to comply in all material respects with the requirements of the Securities Act and the rules and regulations of the SEC and (y) not to contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading;
(f) notify each Participating Shareholder at any time when a prospectus relating to Registrable Securities is required to be delivered under the Securities Act, of the happening of any event as a result of which the Prospectus included in a Registration Statement or the Registration Statement or amendment or supplement relating to such Registrable Securities contains an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and the Company will promptly prepare and file with the SEC a supplement or amendment to such prospectus and Registration Statement (and comply fully with the applicable provisions of Rules 424, 430A and 430B under the Securities Act in a timely manner) so that, as thereafter delivered to the purchasers of the Registrable Securities, such prospectus and Registration Statement will not contain an untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading;
(g) use all reasonable efforts to prevent the issuance of any stop order, injunction or other order or requirement suspending the effectiveness of the Registration Statement under the Securities Act or of the suspension by any state securities commission of the qualification of the Registrable Securities for offering or sale in any jurisdiction, or the initiation of any proceeding for any of the preceding purposes and advise any underwriters and each Participating Shareholder promptly, and if requested by such Participating Shareholder, confirm such advice
 
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in writing, of any such stop order, injunction or other order or requirement, suspension or proceeding. If at any time the SEC shall issue any stop order, injunction or other order or requirement suspending the effectiveness of the Registration Statement, or any state securities commission or other regulatory authority shall issue an order, injunction or other order or requirement suspending the qualification or exemption from qualification of the Registrable Securities under state securities or “blue sky” laws or any proceedings are initiated for any of the preceding purposes, the Company shall use reasonable best efforts to obtain the withdrawal or lifting of such order or termination of such proceedings as promptly as practicable;
(h) use reasonable best efforts to cause such Registrable Securities to be registered with or approved by such other Governmental Entities as may be necessary by virtue of the business and operations of the Company to enable each Participating Shareholder to consummate the disposition of such Registrable Securities; provided , however , that the Company shall in no event be required to (i) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this paragraph (h), (ii) subject itself to taxation in any jurisdiction where it is not otherwise then so subject, or (iii) consent to general service of process in any jurisdiction where it is not then so subject;
(i) enter into customary agreements and use reasonable best efforts to take such other actions as are reasonably requested by each Participating Shareholder and are consistent with the other obligations of the Company hereunder in order to expedite or facilitate any underwritten offering;
(j) if requested by a Participating Shareholder, promptly include in any Registration Statement or Prospectus, pursuant to a supplement or post-effective amendment if necessary, and subject to the provisions of this Agreement, such information as such Participating Shareholder may reasonably request to have included therein, including any terms of the underwritten offering and related plan of distribution as specified by the Participating Shareholders, and make all required filings of such prospectus supplement or post-effective amendment as soon as practicable after the Company is notified of the matters to be included in such prospectus supplement or post-effective amendment;
(k) otherwise use reasonable best efforts to comply with all applicable rules and regulations of the SEC and make generally available to its security holders, within the required time period, an earnings statement covering a period of twelve (12) months, beginning with the first fiscal quarter after the effective date of the Registration Statement relating to such Registrable Securities (as the term “effective date” is defined in Rule 158(c) under the Securities Act), which earnings statement will satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder or any successor provisions thereto;
(l) use reasonable best efforts to provide and cause to be maintained a transfer agent and registrar for all Registrable Securities covered by such Registration Statement not later than the effective date of such Registration Statement;
 
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(m) cooperate with any Participating Shareholder and any underwriter to facilitate the timely preparation and delivery of certificates representing the Registrable Securities to be sold under the Registration Statement in a form eligible for deposit with The Depository Trust Company not bearing any restrictive legends and not subject to any stop transfer order with any transfer agent, and cause such Registrable Securities to be issued in such denominations and registered in such names as the lead Shareholder may request in writing in connection with the closing of any sale of Registrable Securities;
(n) use reasonable best efforts to cause such Registrable Securities to be listed or quoted on the Agreed Securities Exchange or, if SemGroup Common Shares are not then listed on the Agreed Securities Exchange, then on such other securities exchange or national quotation system on which the SemGroup Common Shares are then listed or quoted; and
(o) make available for inspection by any Participating Shareholder, any underwriter participating in any disposition pursuant to such underwritten offering and any attorney, accountant or other professional retained by any such Participating Shareholder or underwriter (collectively, the “ Inspectors ”), during normal business hours, all financial and other records, pertinent corporate documents and properties of the Company (collectively, the “ Records ”) as shall be reasonably requested, and cause the Company’s officers, directors and employees to supply all information reasonably requested by any such Inspector in connection with establishing a defense under Section 11 of the Securities Act with respect to a Registration Statement pursuant to such underwritten offering (subject to, if requested by the Company, the Participating Shareholders and such underwriters entering into customary confidentiality agreements in form and substance reasonably acceptable to the Company); provided, however, that the foregoing inspecting and information gathering on behalf of the Participating Shareholders shall be conducted by one counsel designated by Sellers; and provided further that each such Inspector shall be required to maintain in confidence and not to disclose to any other person (other than each Participating Shareholder and its counsel) any information or records reasonably designated by the Company as being confidential, except as required by Law or to establish a due diligence defense;
(p) the Company will cooperate with each Participating Shareholder and each underwriter in effecting any underwritten offering as promptly as reasonably practicable following receipt of a Qualified Offering Request. In connection with any underwritten offering initiated by the Company and not made pursuant to Section 2.1(b) , the Company shall be entitled to select the lead underwriter or underwriters. In furtherance of an underwritten offering, the Company will use reasonable best efforts to obtain and deliver to each underwriter and Participating Shareholder a comfort letter (and bring-down comfort letter) from the independent registered public accounting firm for the Company (and additional comfort letters (and bring-down comfort letters) from the independent registered public accounting firm for any company acquired by the Company whose financial statements are included or incorporated by reference in the Registration Statement) in customary form and covering such matters as are customarily covered by comfort letters as such underwriter and Participating Shareholder may reasonably request. The Company will use reasonable best efforts to obtain and deliver to each underwriter and Shareholder a Rule 10b-5 statement and legal opinion from the Company’s counsel in customary form and covering such matters as are customarily covered by Rule 10b-5 statements and legal opinions delivered to underwriters in underwritten offerings as such underwriter and/or Participating Shareholder may reasonably request. The Company and all Participating Shareholders proposing to distribute their Registrable Securities through an underwritten offering
 
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initiated by the Company shall enter into an underwriting agreement in customary form, and such other agreements, including, but not limited to, custody agreements and lock-up agreements, requested by the lead underwriter(s), so long as all Participating Shareholders participating in such underwritten offering are required to enter into substantially similar custody agreements or lock-up agreements, as the case may be; provided that no Participating Shareholder shall be required to make any representations or warranties or give any indemnities other than those related to title and ownership of, and power and authority to transfer, shares and as to the accuracy and completeness of statements made in a registration statement, prospectus or other document in reliance upon, and in conformity with, written information prepared and furnished to the Company or the lead underwriter(s) by such Participating Shareholder pertaining exclusively to such Participating Shareholder and expressly for inclusion in such registration statement, prospectus or other document; and
(q) to the extent the lead underwriter(s) of an underwritten offering shall request, have appropriate officers of the Company prepare and make presentations as part of a customary “road show”, which may be videotaped or otherwise electronically delivered, and other information meetings reasonably organized by the underwriters, in each case upon reasonable advance notice and at mutually agreed times and otherwise use its reasonable best efforts to cooperate as reasonably requested by the Participating Shareholders and the underwriters in the offering, marketing or selling of the Registrable Securities, provided, however, that the Company shall only be required, following a written request from the Participating Shareholders, to participate in any “road show” twice in any 365-day period.
2.4. Conditions to Offerings .
(a) The obligations of the Company to take the actions contemplated by Section 2.1 and Section 2.2 with respect to an offering of Registrable Securities will be subject to the following conditions:
(i) the Company may require any Participating Shareholder to furnish to the Company such information regarding each Participating Shareholder, the Registrable Securities or the distribution of such Registrable Securities as the Company may from time to time reasonably request in writing, in each case to the extent reasonably required by the Securities Act and the rules and regulations promulgated thereunder, or under state securities or “blue sky” laws; and
(ii) in the event of an underwritten offering, each Participating Shareholder, together with the Company and any other holders of the Company’s securities proposing to include securities in such underwritten offering, will enter into a customary underwriting agreement with the underwriter or underwriters selected for such underwriting, as well as such other documents customary in similar offerings including lock-up agreements.
 
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(b) Each Participating Shareholder agrees that, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 2.3(e) or 2.3(g) or a condition described in Section 2.5 , such Participating Shareholder will forthwith discontinue disposition of such Registrable Securities pursuant to the Registration Statement covering the sale of such Registrable Securities until such Participating Shareholder’s receipt of the copies of the supplemented or amended Prospectus contemplated by Section 2.3(e) or notice from the Company of the termination of the stop order or Suspension Period.
2.5. Suspension Period .
(a) Notwithstanding anything to the contrary contained in this Agreement, if the Company determines in good faith (because of the existence of, or in anticipation of, any material acquisition, debt or equity financing or other material transaction involving the Company that is required to be disclosed in the Registration Statement or the prospectus contained therein and the disclosure of which would be materially adverse to the Company, or the inability to prepare any required financial statements without undue burden on the Company) that effecting an underwritten offering would be materially detrimental to the Company or the holders of SemGroup Common Shares, then the Company shall be entitled to postpone any such underwritten offering for the shortest reasonable period of time, in any event not to exceed sixty (60) consecutive days (a “ Suspension Period ”); provided , however , that no more than two Suspension Periods (of not more than ninety (90) days in the aggregate) may occur in any 365-day period. In the event of any such suspension pursuant to this Section 2.5(a) , the Company shall as promptly as practicable furnish to each Participating Shareholder a written notice setting forth the estimated length of the anticipated delay. The Company will notify each Participating Shareholder promptly upon the termination of the Suspension Period.
(b) After the expiration of any Suspension Period and without any further request from a holder of Equity Interests, the Company shall as promptly as reasonably practicable prepare a Registration Statement or post-effective amendment or supplement to the applicable shelf Registration Statement or Prospectus, or any document incorporated therein by reference, or file any other required document so that, as thereafter delivered to purchasers of the Registrable Securities included therein, the Prospectus will not include a material misstatement or omission or be not effective and useable for resale of Registrable Securities.
2.6. Registration Expenses . All underwriting discounts, underwriting fees and selling commissions, and fees and expenses of legal counsel to each Shareholder will be borne by the Participating Shareholders; provided, however, that the Company will pay the reasonable fees and expenses of one counsel to the Shareholders as a group (which counsel shall be selected by the holders of a majority of the Registrable Securities included in a registration or Qualified Offering, as applicable) as provided in the subsequent sentence. All other reasonable fees and expenses incident to an underwritten offering, including all fees and expenses incurred by the Company in complying with securities or “blue sky” laws, printing expenses, messenger and delivery expenses, any registration or filing fees payable to the SEC or payable under any federal or state securities or “blue sky” laws, the fees and expenses incurred in connection with any listing or quoting of the securities to be registered on any national securities exchange or automated quotation system, fees and expenses in connection with any filing and review by the Financial Industry Regulatory Authority, reasonable fees and disbursements of counsel for the Company and one counsel to the Shareholders, the Company’s independent registered certified public accounting firm and any other public accountants who are required to deliver comfort letters (including the expenses required by or incident to such performance), transfer taxes, fees
 
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and expenses of transfer agents and registrars or any other agent or trustee appointed in connection with the underwritten offering, fees and expenses relating to any analyst or investor presentations or any “road shows” undertaken in connection with the underwritten offering, and the fees and out of pocket expenses of other Persons, including special experts, retained by the Company (collectively, the “ Offering Expenses ”) will be borne by the Company.
2.7. Indemnification; Contribution .
(a) By the Company . In the event of a registration of any Registrable Securities under the Securities Act pursuant to this Agreement, to the fullest extent permitted by applicable Law, the Company will indemnify and hold harmless each Participating Shareholder thereunder, its directors, officers, managers, employees and agents and each Person, if any, who controls such Participating Shareholder within the meaning of the Securities Act and the Exchange Act, and its directors, officers, employees or agents (collectively, the “ Participating Shareholder Indemnified Persons ”), against any Losses, joint or several, to which such Participating Shareholder Indemnified Person may become subject under the Securities Act, the Exchange Act or otherwise, insofar as such Losses (or actions or proceedings, whether commenced or threatened, in respect thereof) arise out of or are based upon any of the following (each, a “ Violation ”): (i) any untrue statement or alleged untrue statement of any material fact (in the case of any prospectus, in light of the circumstances under which such statement is made) contained in the Registration Statement or any other registration statement contemplated by this Agreement, any preliminary prospectus, prospectus supplement, free writing prospectus or final prospectus contained therein, or any amendment or supplement thereto or any other document incorporated by reference therein or prepared by the Company incident to such registration, (ii) the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of a prospectus, in light of the circumstances under which they were made) not misleading, or (iii) any violation or alleged violation by the Company of the Securities Act, the Exchange Act, any state securities law or any rule or regulation promulgated under the Securities Act, the Exchange Act or any state securities law; and will reimburse each such Participating Shareholder Indemnified Person for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such Loss or actions or proceedings; provided, however , that the Company will not be liable in any such case if and to the extent that any such Loss arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission so made in conformity with information furnished by such Participating Shareholder Indemnified Person in writing specifically for use in the Registration Statement or such other registration statement, or prospectus supplement, as applicable. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of such Participating Shareholder Indemnified Person, and shall survive the transfer of such securities by such Participating Shareholder or termination of this Agreement.
 
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(b) By Each Participating Shareholder . To the fullest extent permitted by applicable Law, Each Participating Shareholder agrees severally and not jointly to indemnify and hold harmless the Company, its directors, officers, employees and agents and each Person, if any, who controls the Company within the meaning of the Securities Act or of the Exchange Act and its directors, officers, employees and agents, arising (collectively, the “ Company Indemnified Persons ”), against any Losses, joint or several, to which such Company Indemnified Person may become subject under the Securities Act, the Exchange Act or otherwise, insofar as such Losses (or actions or proceedings, whether commenced or threatened, in respect thereof) arise out of or based upon any Violation, in each case to the extent (and only to the extent) that such Violation occurs in reliance upon and in conformity with information furnished in writing by such Participating Shareholder, with respect to such Participating Shareholder, expressly for inclusion in the Registration Statement or any other registration statement contemplated by this Agreement, any preliminary prospectus, prospectus supplement, free writing prospectus or final prospectus contained therein, or any amendment or supplement thereto; provided, however , that the liability of each Participating Shareholder shall not be greater in amount than the dollar amount of the proceeds (net of any underwriting discounts and selling commissions or other costs and expenses paid by the Participating Shareholder or allocable to the sale of the Registrable Securities (“ Selling Expenses ”)) received by such Participating Shareholder from the sale of the Registrable Securities giving rise to such indemnification.
(c) Notice . Promptly after receipt by a Party hereunder of notice of the commencement of any action (such Party, an “ Indemnified Party ”), such Indemnified Party shall, if a claim in respect thereof is to be made against the indemnifying party hereunder, notify the indemnifying party in writing thereof, but the omission so to notify the indemnifying party shall not relieve it from any liability that it may have to any Indemnified Party other than under this Section 2.7 except to the extent that the indemnifying party is materially prejudiced by such failure. In any action brought against any Indemnified Party, it shall notify the indemnifying party of the commencement thereof. The indemnifying party shall be entitled to participate in and, to the extent it shall wish, to assume and undertake the defense thereof with counsel reasonably satisfactory to such Indemnified Party and, after notice from the indemnifying party to such Indemnified Party of its election so to assume and undertake the defense thereof, the indemnifying party shall not be liable to such Indemnified Party under this Section 2.7 for any legal expenses subsequently incurred by such Indemnified Party in connection with the defense thereof other than reasonable costs of investigation, legal expenses of any local counsel that is required to effectively defend against any such proceeding and of liaison with counsels so selected; provided, however , that, (i) if the indemnifying party has failed to assume the defense or employ counsel reasonably acceptable to the Indemnified Party or (ii) if the defendants in any such action include both the Indemnified Party and the indemnifying party and counsel to the Indemnified Party shall have concluded that there may be reasonable defenses available to the Indemnified Party that are different from or additional to those available to the indemnifying party, or if the interests of the Indemnified Party reasonably may be deemed to conflict with the interests of the indemnifying party, then the Indemnified Party shall have the right to select a separate counsel and to assume such legal defense and otherwise to participate in the defense of such action, with the reasonable expenses and fees of such separate counsel and other reasonable expenses related to such participation to be reimbursed by the indemnifying party as incurred. Notwithstanding any other provision of this Agreement, no indemnifying party shall settle any action brought against any Indemnified Party with respect to which such Indemnified Party is entitled to indemnification hereunder without the consent of the Indemnified Party, unless the settlement thereof imposes no liability or obligation on, and includes a complete and unconditional release from all liability of, and does not contain an admission of wrongdoing by, the Indemnified Party.
 
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(d) Contribution . If the indemnification provided for in this Section 2.7 is held by a court or government agency of competent jurisdiction to be unavailable to any Indemnified Party or is insufficient to hold them harmless in respect of any Losses, then each such indemnifying party, in lieu of indemnifying such Indemnified Party, shall contribute, to the fullest extent permitted by applicable Law, to the amount paid or payable by such Indemnified Party as a result of such Loss in such proportion as is appropriate to reflect the relative fault of the indemnifying party on the one hand and of such Indemnified Party on the other in connection with the statements or omissions that resulted in such Losses, as well as any other relevant equitable considerations; provided, however , that in no event shall such Participating Shareholder be required to contribute an aggregate amount in excess of the dollar amount of proceeds (net of Selling Expenses) received by such Participating Shareholder from the sale of Registrable Securities giving rise to such indemnification. The relative fault of the indemnifying party on the one hand and the Indemnified Party on the other shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact has been made by, or relates to, information supplied by such party, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The parties hereto agree that it would not be just and equitable if contributions pursuant to this paragraph were to be determined by pro rata allocation or by any other method of allocation that does not take account of the equitable considerations referred to herein. The amount paid by an Indemnified Party as a result of the Losses referred to in the first sentence of this paragraph shall be deemed to include any legal and other expenses reasonably incurred by such Indemnified Party in connection with investigating or defending any Loss that is the subject of this paragraph. No Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who is not guilty of such fraudulent misrepresentation.
2.8. Rule 144 . The Company agrees that it will use reasonable best efforts to file the reports required to be filed by it under the Securities Act and the Exchange Act and take such further action as a Shareholder may reasonably request to enable such Shareholder to sell Registrable Securities pursuant to the exemptions provided by Rule 144, including providing such Shareholder with the following: a written statement by the Company as to its compliance with the reporting requirements of Rule 144 under the Securities Act, and of the Exchange Act; a copy of the most recent annual or quarterly report of the Company (which obligation the Company shall be deemed to have complied with if such report is available on EDGAR); such other Securities Act or Exchange Act reports as such Shareholder may reasonably request (which obligation the Company shall be deemed to have complied with if such reports are available on EDGAR); and any other information as may be required in order to enable such Shareholder to make sales within the limitation of the exemptions provided by Rule 144.
 
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ARTICLE III
TRANSFER RESTRICTIONS; VOTING
3.1. Transfers . Without the prior written consent of the Company, no Shareholder may transfer to any other Person (other than to an Affiliate of such Shareholder who agrees to be bound by the provisions of this Article III ) any SemGroup Common Shares received by any Seller pursuant to the Purchase Agreement for a period of ninety (90) days after the Closing Date, except (i) in connection with any tenders, sales, transfers or other disposition in response to a bona fide third-party takeover bid or such other acquisition transaction, in each case, that is made to all holders of SemGroup Common Shares and (ii) the Shareholders may enter into a written plan meeting the requirements of Rule 10b5-1 under the Exchange Act for the transfer of SemGroup Common Shares that does not provide for the transfer of SemGroup Common Shares during the 90-day period referred to above. From and after the date ninety (90) days immediately following the Closing Date, any Shareholder may transfer to any other Person any such SemGroup Common Shares. The rights to cause the Company to register Registrable Securities granted to the Shareholders by the Company under Article II may be transferred or assigned by a Shareholder to one or more transferee(s) or assignee(s) of such Registrable Securities who (a) are Affiliates of such Shareholder or (b) hold, collectively with its or their Affiliates, after giving effect to such transfer or assignment, at least $25 million of Registrable Securities (calculating such value using the volume-weighted average closing price of such Registrable Securities on the principal exchange on which such Registrable Securities are then trading for the twenty (20) trading days immediately preceding such transfer or assignment); provided , however , that if the Shareholder desires to assign its rights hereunder to such transferee, the Company shall be given written notice prior to any said transfer or assignment, stating the name and address of each such transferee and identifying the securities with respect to which such registration rights are being transferred or assigned, and the proposed transferee of such SemGroup Common Shares shall have executed and delivered to the Company a joinder to this Agreement, substantially in the form attached hereto as Exhibit A , which shall provide that such proposed transferee shall be a “Shareholder” for purposes of this Agreement. Any such transfer of registration rights will be effective upon valid receipt by the Company of the documents described in the preceding sentence.
3.2. Restrictions on Public Sales . Each Shareholder agrees to enter into a customary letter agreement with underwriters of any underwritten offering of the Company’s securities (whether primary or secondary, and regardless of whether any Shareholders participate in such underwritten offering), to the extent requested by the lead underwriter(s) in writing, providing such Shareholder will not effect any public sale or distribution of Registrable Securities during the 60 calendar day period beginning on the date of a prospectus or prospectus supplement filed with the SEC with respect to the pricing of such underwritten offering; provided , however , that (a) no Shareholder shall be subject to such restrictions unless the Company and the officers or the directors thereof are subject to the same restrictions, (b) the duration of the foregoing restrictions shall be no longer than the duration of the shortest restriction generally imposed by the underwriters on the Company or the officers, directors or any other Shareholder of the Company on whom a restriction is imposed , (c) the restrictions set forth in this Section 3.2 shall not apply to any Registrable Securities that are sold in connection with an underwritten offering pursuant to this Agreement and (d) any Shareholder that (together with its Affiliates) beneficially owns less than 5% of the SemGroup Common Shares shall not be required to enter into such letter agreement.
 
18

3.3. Agreement to Vote Registrable Securities . For so long as any Shareholder continues to hold any Registrable Securities, at each annual or special meeting of stockholders of the Company that is called and at which action is to be taken with respect to any matter, and at every adjournment or postponement thereof, and on every action or approval by written consent of stockholders of the Company, such Shareholder shall, or shall cause the holder of record on any applicable record date to, (a) if applicable, appear at each such meeting or otherwise cause its Registrable Securities to be counted as present thereat for purposes of calculating a quorum and (b) vote all of such Shareholder’s Registrable Securities in a manner consistent with the recommendation of the Board of Directors of the Company with respect to the Special Approval Item.
3.4. Restrictions on Hedging . For 90 days after the Closing Date, without the prior written consent of the Company, such Shareholder shall not, and shall cause its Affiliates not to, directly or indirectly engage in any short sales or other derivative or hedging transactions with respect to the SemGroup Common Shares or Equity Interests that are designed to, or that might reasonably be expected to, result in the transfer to another, in whole or in part, any of the economic consequences of ownership of any SemGroup Common Shares or other Equity Interests.
ARTICLE IV
GENERAL PROVISIONS
4.1. Notices . Any notice or other communication required or permitted under, or otherwise in connection with, this Agreement shall be in writing and shall be deemed to have been given (a) when delivered in person; (b) upon confirmation of receipt when transmitted by an facsimile; (c) when sent by electronic mail if sent prior to the close of business on a Business Day of the recipient; if not, then on the next business day or (d) on the next Business Day if transmitted by national overnight courier, in each addressed as follows::
If to the Company, to:
SemGroup Corporation
Two Warren Place
6120 S. Yale Avenue, Suite 1500
Tulsa, OK 74136-7700
Telephone: (918) 524-8100
Facsimile: (918) 524-8687
Attention: General Counsel
And a copy to (which shall not constitute notice):
Vinson & Elkins LLP
1001 Fannin, Suite 2500
Houston, Texas 77007
Telephone: (713) 758-3708
Facsimile: (713) 615-5861
Attention: David P. Oelman and Lande A. Spottswood
 
19

If to the Sellers, to:
Buffalo Investor I LP
Buffalo Investor II LP
c/o Alinda Capital Partners
100 West Putnam Avenue
Greenwich, CT 06830
Attention: General Counsel
Fax: (203) 930-3880
And a copy to (which shall not constitute notice):
Simpson Thacher & Bartlett LLP
425 Lexington Avenue
New York, New York 10017
Attention: David Lieberman
Facsimile: (212) 455-2502
4.2. Expenses . Except as otherwise provided in this Agreement, all costs and expenses incurred in connection with this Agreement shall be paid by the Party incurring such cost or expense.
4.3. Amendments; Waivers . Any provision of this Agreement may be amended or waived if, and only if, such amendment or waiver is in writing and signed, in the case of an amendment, by each of the Parties hereto or, in the case of a waiver, by the Party against whom the waiver is to be effective. No failure or delay by any Party in exercising any right, power or privilege under this Agreement shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege.
4.4. Interpretation . In this Agreement, except as context may otherwise require, references:
(a) to the Preamble, Recitals, Sections, or Exhibits are to the Preamble to, a Recital or Section of, or Exhibit to, this Agreement;
(b) to this Agreement are to this Agreement and the Exhibits to it, taken as a whole;
(c) to any agreement (including this Agreement), contract, statute or regulation are to the agreement, contract, statute or regulation as amended, modified, supplemented, restated or replaced from time to time (in the case of an agreement or contract, to the extent permitted by the terms thereof); and to any section of any statute or regulation include any successor to the section;
(d) to any Governmental Entity includes any successor to that Governmental Entity;
(e) to a Person are also to its permitted successors and assigns;
(f) to the words “hereby,” “herein,” “hereof,” “hereunder,” and similar terms are to be deemed to refer to this Agreement as a whole and not to any specific Section;

20

(g) to the words “include,” “includes,” or “including,” are to be deemed followed by the words “without limitation.” Any singular term in this Agreement will be deemed to include the plural, and any plural term the singular. All pronouns and variations of pronouns will be deemed to refer to the feminine, masculine or neuter, singular or plural, as the identity of the Person referred to may require;
(h) the table of contents and article and section headings are for reference purposes only and do not limit or otherwise affect any of the substance of this Agreement; and
(i) this Agreement is the product of negotiation by the Parties, having the assistance of counsel and other advisers. The Parties intend that this Agreement not be construed more strictly with regard to one Party than with regard to the other Party.
4.5. Severability . If any term or other provision of this Agreement is invalid, illegal or incapable of being enforced by any rule of Law or public policy, all other conditions and provisions of this Agreement shall nevertheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated by this Agreement is not affected in any manner materially adverse to any Party. Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the Parties shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in an acceptable manner to the end that the transactions contemplated by this Agreement be consummated as originally contemplated to the fullest extent possible.
4.6. Facsimiles; Counterparts. Delivery of an executed signature page of this Agreement by facsimile or other customary means of electronic transmission (e.g., .pdf) shall be deemed binding for all purposes hereof, without delivery of an original signature page being thereafter required. This Agreement may be executed in one or more counterparts, each of which, when executed, shall be deemed to be an original and all of which together shall constitute one and the same document.
4.7. Entire Understanding; No Third-Party Beneficiaries . This Agreement and the Exhibit hereto constitute the entire agreement of the Parties and supersede all prior agreements and undertakings, both written and oral, between the Parties, or any of them, with respect to the subject matter of this Agreement. This Agreement shall be binding upon and inure solely to the benefit of each Party and their respective successors and assigns, and nothing in this Agreement, express or implied, is intended to or shall confer upon any other Person any right, benefit or remedy of any nature whatsoever under or by reason of this Agreement; provided, however, that each Party agrees that any Participating Shareholder Indemnified Party shall be entitled to assert rights and remedies hereunder as a third-party beneficiary hereto with respect to those provisions of this Agreement affording a right, benefit or privilege to such Participating Shareholder Indemnified Party. Only the parties that are signatories to this Agreement or a joinder to this Agreement (and their permitted successors and assigns) shall have any obligation or liability under, in connection with, arising out of, resulting from or in any way related to this Agreement or any other matter contemplated hereby or the process leading up to the execution and delivery of this Agreement and the transactions contemplated hereby, subject to delivery of this Agreement and such transactions and other provisions of this Agreement.
 
21

4.8. Governing Law .
(a) THIS AGREEMENT SHALL BE DEEMED TO BE MADE IN DELAWARE, AND IN ALL RESPECTS SHALL BE INTERPRETED, CONSTRUED AND GOVERNED BY AND IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT REGARD TO ANY CONFLICTS OF LAW PRINCIPLES TO THE EXTENT THAT SUCH PRINCIPLES WOULD CAUSE THE APPLICATION OF THE LAWS OF ANY OTHER JURISDICTION.
(b) The Parties irrevocably submit to the exclusive personal jurisdiction of the courts of the State of Delaware and the Federal courts of the United States of America located in the State of Delaware in respect of the interpretation and enforcement of the provisions of this Agreement and of the documents referred to in this Agreement, and in respect of the transactions contemplated hereby, and hereby waive, and agree not to assert, as a defense in any action, suit or proceeding for the interpretation or enforcement of this Agreement or of any such document, that it is not subject thereto or that such action, suit or proceeding may not be brought or is not maintainable in said courts or that the venue thereof may not be appropriate or that this Agreement or any such document may not be enforced in or by such courts, and the Parties irrevocably agree that all claims relating to such action, proceeding or transactions shall be heard and determined in such a Delaware state or Federal court. The Parties consent to and grant any such court jurisdiction over the person of such Parties and, to the extent permitted by Law, over the subject matter of such dispute and agree that mailing of process or other papers in connection with any such action or proceeding in the manner provided in Section 4.1 or in such other manner as may be permitted by Law shall be valid and sufficient service thereof.
(c) EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY THAT MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE EACH SUCH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT, OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (I) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (II) IT UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (III) IT MAKES THIS WAIVER VOLUNTARILY AND (IV) IT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 4.8(c) .
4.9. Assignment. This Agreement shall inure the benefit of and be binding upon the successors and assigns of the Parties, including subsequent holders of Registrable Securities to the extent permitted herein.
 
22

4.10. Specific Performance. The Parties acknowledge and agree that each would be irreparably damaged in the event that any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached and that any non-performance or breach of this Agreement by any Party could not be adequately compensated by money damages alone and that the Parties would not have any adequate remedy at law. In the event of any breach or threatened breach by any Party of any provisions contained in this Agreement, the non-breaching Party shall be entitled (in addition to any other remedy that may be available to it whether in law or equity, including monetary damages) to seek and obtain (a) a decree or order of specific performance to enforce the observance and performance of such provisions, and (b) an injunction restraining such breach or threatened breach. No Party nor any other Person shall be required to obtain, furnish or post any bond or similar instrument in connection with or as a condition to obtaining any remedy referred to in this Section 4.10 , and each Party irrevocably waives any right it may have to require the obtaining, furnishing or posting of any such bond or similar instrument. The Parties further agree that they shall not object to the granting of an injunctive relief on the basis that there exist adequate remedy at law may exist.
4.11. Termination . This Agreement (other than Section 2.7 ) shall terminate with respect to a Shareholder upon the first date on which such Shareholder and any other Shareholders that are an Affiliate of such Shareholder cease to hold any Registrable Securities. Nothing in this Agreement shall be deemed to release any Party from any liability for any willful and material breach of this Agreement occurring prior to any termination hereof or to impair the right of any Party to compel specific performance by any other Party of its obligations under this Agreement.
[ Signature page follows. ]
 
23

IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written.

BUFFALO INVESTOR I, L.P.	
By:	 	Buffalo Investor I GP LLC, its general partner	
		
By:	 	/s/ Chris Beale	
Name:	 	Chris Beale	
Title:	 	President	
	
BUFFALO INVESTOR II, L.P.	
By:	 	Buffalo Investor II GP LLC, its general partner	
		
By:	 	/s/ Chris Beale	
Name:	 	Chris Beale	
Title:	 	President	
	
SEMGROUP CORPORATION	
		
By:	 	/s/ Carlin G. Conner	
Name:	 	Carlin G. Conner	
Title:	 	President and Chief Executive Officer	
S IGNATURE P AGE TO
R EGISTRATION R IGHTS A GREEMENT

Exhibit A
Form of Joinder
The undersigned is executing and delivering this Joinder Agreement (this “ Joinder Agreement ”) pursuant to the Registration Rights Agreement, dated as of July 17, 2017 (the “ Registration Rights Agreement ”), by and between Buffalo Investor I, LP, Buffalo Investor II, LP and SemGroup Corporation. Capitalized terms used but not otherwise defined herein shall have the meanings ascribed to them in the Registration Rights Agreement.
By executing and delivering this Joinder Agreement to the Registration Rights Agreement, the undersigned hereby agrees to become a party to, be bound by, and comply with the provisions of, and shall have the full rights and obligations under, the Registration Rights Agreement as a “Shareholder” thereunder.
Accordingly, in consideration of the mutual covenants and agreements set forth in the Registration Rights Agreement and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the undersigned has executed and delivered this Joinder Agreement as of the             day of             , 20    .

[SHAREHOLDER]	

By:	 	 	
Name:	 		
Title:	 		

Exhibit 10.2
EXECUTION VERSION

 
CREDIT AGREEMENT
Dated as of August 19, 2014
among
BUFFALO GULF COAST TERMINALS LLC,
as the Parent,
HFOTCO LLC,
as the Borrower,
THE LENDERS PARTY HERETO FROM TIME TO TIME,
MORGAN STANLEY SENIOR FUNDING, INC.,
as Administrative Agent,
and
BANK OF AMERICA, N.A.,
as Collateral Agent

Joint Lead Arrangers and Joint Bookrunners :
MORGAN STANLEY SENIOR FUNDING, INC.
DEUTSCHE BANK SECURITIES INC.
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED

$550,000,000 Senior Secured Tranche B Term Loan Facility
$75,000,000 Senior Secured Revolving Credit Facility

 

TABLE OF CONTENTS

 	  	 	  	Page	 	
ARTICLE I.	 	
DEFINITIONS	 	
			
Section 1.01	  	Defined Terms	  	 	1	 	
Section 1.02	  	Terms Generally	  	 	48	 	
Section 1.03	  	Classification of Loans and Borrowings	  	 	50	 	
	
ARTICLE II.	 	
THE CREDITS	 	
			
Section 2.01	  	Commitments	  	 	50	 	
Section 2.02	  	Loans and Borrowings Generally	  	 	50	 	
Section 2.03	  	Requests for Borrowings	  	 	51	 	
Section 2.04	  	Swingline Loans	  	 	51	 	
Section 2.05	  	Letters of Credit	  	 	53	 	
Section 2.06	  	Funding of Borrowings	  	 	59	 	
Section 2.07	  	Interest Elections.	  	 	59	 	
Section 2.08	  	Termination and Reduction of Commitments	  	 	61	 	
Section 2.09	  	Repayment of Loans Generally; Evidence of Debt	  	 	61	 	
Section 2.10	  	Repayment of Loans; Application of Prepayments	  	 	62	 	
Section 2.11	  	Prepayment of Loans	  	 	63	 	
Section 2.12	  	Fees	  	 	66	 	
Section 2.13	  	Interest	  	 	67	 	
Section 2.14	  	Alternate Rate of Interest	  	 	68	 	
Section 2.15	  	Increased Costs	  	 	68	 	
Section 2.16	  	Break Funding Payments	  	 	70	 	
Section 2.17	  	Taxes	  	 	70	 	
Section 2.18	  	Payments Generally; Pro Rata Treatment; Sharing of Set-offs	  	 	74	 	
Section 2.19	  	Mitigation Obligations; Replacement of Lenders	  	 	76	 	
Section 2.20	  	Illegality	  	 	78	 	
Section 2.21	  	Defaulting Lenders	  	 	78	 	
Section 2.22	  	Incremental Facilities	  	 	81	 	
Section 2.23	  	Loan Modification Offers	  	 	83	 	
Section 2.24	  	Refinancing Facilities	  	 	84	 	
	
ARTICLE III.	 	
REPRESENTATIONS AND WARRANTIES	 	
			
Section 3.01	  	Organization; Power and Authority	  	 	86	 	
Section 3.02	  	Ownership of Equity Interests; Subsidiaries	  	 	87	 	
Section 3.03	  	Authorization; No Conflict	  	 	87	 	
Section 3.04	  	Enforceability	  	 	87	 	
Section 3.05	  	Governmental Approvals	  	 	88	 	
 
i

							
Section 3.06	  	Financial Statements	  	 	88	 	
Section 3.07	  	No Material Adverse Effect	  	 	88	 	
Section 3.08	  	Title to Properties; Possession Under Leases	  	 	88	 	
Section 3.09	  	Litigation; Compliance with Laws	  	 	89	 	
Section 3.10	  	Federal Reserve Regulations	  	 	90	 	
Section 3.11	  	Investment Company Act	  	 	91	 	
Section 3.12	  	Taxes	  	 	91	 	
Section 3.13	  	Disclosure and Projections	  	 	91	 	
Section 3.14	  	Employee Matters	  	 	92	 	
Section 3.15	  	Environmental Matters; Hazardous Materials	  	 	93	 	
Section 3.16	  	Solvency	  	 	94	 	
Section 3.17	  	Licenses; Permits	  	 	94	 	
Section 3.18	  	No Default	  	 	94	 	
Section 3.19	  	Collateral Matters	  	 	94	 	
Section 3.20	  	Insurance	  	 	95	 	
Section 3.21	  	Pari Passu Obligations	  	 	95	 	
Section 3.22	  	Use of Proceeds	  	 	95	 	
	
ARTICLE IV.	 	
CONDITIONS TO FUNDING	 	
			
Section 4.01	  	Closing Date	  	 	96	 	
Section 4.02	  	Each Credit Event	  	 	99	 	
	
ARTICLE V.	 	
AFFIRMATIVE COVENANTS	 	
			
Section 5.01	  	Use of Proceeds and Letters of Credit	  	 	99	 	
Section 5.02	  	Maintenance of Properties	  	 	100	 	
Section 5.03	  	Notices	  	 	100	 	
Section 5.04	  	Financial Statements and Other Information	  	 	102	 	
Section 5.05	  	Maintenance of Existence	  	 	103	 	
Section 5.06	  	Maintenance of Records; Access to Properties and Inspections	  	 	103	 	
Section 5.07	  	Compliance with Laws; Permits	  	 	104	 	
Section 5.08	  	Financial Covenant Calculations	  	 	104	 	
Section 5.09	  	Operation and Maintenance of Terminal Storage Facility; Leases of Real Property	  	 	105	 	
Section 5.10	  	Additional Subsidiaries	  	 	106	 	
Section 5.11	  	Information Regarding Collateral; Deposit and Securities Accounts	  	 	106	 	
Section 5.12	  	Further Assurances	  	 	107	 	
Section 5.13	  	Maintenance of Insurance	  	 	107	 	
Section 5.14	  	Taxes, Assessments and Utility Charges	  	 	108	 	
Section 5.15	  	Interest Rate Protection	  	 	108	 	
Section 5.16	  	Maintenance of Ratings	  	 	109	 	
Section 5.17	  	Designation of Subsidiaries	  	 	109	 	
Section 5.18	  	Certain Post-Closing Collateral Obligations	  	 	110	 	
 
ii

							
ARTICLE VI.	 	
NEGATIVE COVENANTS	 	
			
Section 6.01	  	Liens	  	 	110	 	
Section 6.02	  	Indebtedness	  	 	110	 	
Section 6.03	  	Restricted Payments; Certain Payments of Indebtedness	  	 	110	 	
Section 6.04	  	Sale of Assets	  	 	112	 	
Section 6.05	  	Business Activities	  	 	113	 	
Section 6.06	  	No Liquidation, Merger or Consolidation	  	 	114	 	
Section 6.07	  	Investments	  	 	114	 	
Section 6.08	  	Transactions with Affiliates	  	 	116	 	
Section 6.09	  	Amendments to Material Agreements	  	 	116	 	
Section 6.10	  	Fiscal Year	  	 	117	 	
Section 6.11	  	Hazardous Materials	  	 	117	 	
Section 6.12	  	Hedge Agreements	  	 	117	 	
Section 6.13	  	Restrictive Agreements	  	 	117	 	
Section 6.14	  	Total Adjusted Net Leverage Ratio	  	 	119	 	
Section 6.15	  	Sanctions Regulations	  	 	119	 	
	
ARTICLE VII.	 	
EVENTS OF DEFAULT	 	
			
Section 7.01	  	Events of Default	  	 	119	 	
Section 7.02	  	Remedies	  	 	122	 	
Section 7.03	  	Remedies Waterfall	  	 	123	 	
Section 7.04	  	Specified Equity Contributions	  	 	123	 	
	
ARTICLE VIII.	 	
THE ADMINISTRATIVE AGENT	 	
			
Section 8.01	  	Appointment	  	 	124	 	
Section 8.02	  	Nature of Duties	  	 	126	 	
Section 8.03	  	Resignation by or Removal of the Administrative Agent	  	 	126	 	
Section 8.04	  	Administrative Agent in its Individual Capacity	  	 	127	 	
Section 8.05	  	Indemnification	  	 	127	 	
Section 8.06	  	Lack of Reliance on Administrative Agent	  	 	127	 	
Section 8.07	  	Intercreditor Agreements	  	 	128	 	
Section 8.08	  	Administrative Agent	  	 	128	 	
	
ARTICLE IX.	 	
MISCELLANEOUS	 	
			
Section 9.01	  	Notices	  	 	129	 	
Section 9.02	  	Survival of Agreement	  	 	129	 	
Section 9.03	  	Binding Effect	  	 	130	 	
Section 9.04	  	Successors and Assigns	  	 	130	 	
Section 9.05	  	Expenses; Indemnity	  	 	135	 	
 
iii

							
Section 9.06	  	Right of Set-off	  	 	137	 	
Section 9.07	  	APPLICABLE LAW	  	 	138	 	
Section 9.08	  	Waivers; Amendment	  	 	138	 	
Section 9.09	  	Interest Rate Limitation	  	 	142	 	
Section 9.10	  	Entire Agreement	  	 	142	 	
Section 9.11	  	Waiver of Jury Trial	  	 	142	 	
Section 9.12	  	Severability	  	 	142	 	
Section 9.13	  	Counterparts	  	 	143	 	
Section 9.14	  	Headings	  	 	143	 	
Section 9.15	  	Jurisdiction; Consent to Service of Process	  	 	143	 	
Section 9.16	  	Communications	  	 	144	 	
Section 9.17	  	Release of Liens	  	 	145	 	
Section 9.18	  	Confidentiality	  	 	146	 	
Section 9.19	  	U.S.A. Patriot Act	  	 	147	 	
Section 9.20	  	No Fiduciary Duty	  	 	147	 	
 
iv

			
Exhibits and Schedules	
		
Exhibit A	  	Form of Administrative Questionnaire	
Exhibit B	  	Form of Assignment and Assumption	
Exhibit C	  	Form of Borrowing Request	
Exhibit D	  	Form of Interest Election Request	
Exhibit E	  	Form of Note	
Exhibit F	  	Form of Compliance Certificate	
Exhibit G-1	  	Form of U.S. Tax Compliance Certificate	
Exhibit G-2	  	Form of U.S. Tax Compliance Certificate	
Exhibit G-3	  	Form of U.S. Tax Compliance Certificate	
Exhibit G-4	  	Form of U.S. Tax Compliance Certificate	
Exhibit H-1	  	Form of Closing Date Certificate	
Exhibit H-2	  	Form of Solvency Certificate	
Exhibit I	  	Form of Insurance Broker’s Certificate	
Exhibit J	  	Form of Prepayment Notice	
Exhibit K	  	Form of Second Lien Intercreditor Agreement	
		
Schedule 1.01	  	Storage Contracts	
Schedule 2.01	  	Commitments	
Schedule 3.02	  	Corporate Structure	
Schedule 3.05	  	Governmental Consents	
Schedule 3.08(b)	  	Owned Real Property	
Schedule 3.08(c)	  	Leased Real Property	
Schedule 3.14	  	ERISA Matters	
Schedule 6.01	  	Liens	
Schedule 6.02	  	Indebtedness	
Schedule 6.07	  	Investments	
Schedule 6.13	  	Restrictive Agreements	
Schedule 9.01	  	Notice Addresses	
 
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This CREDIT AGREEMENT, dated as of August 19, 2014 (this “ Agreement ”), is by and among BUFFALO GULF COAST TERMINALS LLC, a Delaware limited liability company (the “ Parent ”), HFOTCO LLC, a Texas limited liability company (the “ Borrower ”), THE LENDERS FROM TIME TO TIME PARTY HERETO, MORGAN STANLEY SENIOR FUNDING, INC. (“ Morgan Stanley ”), as administrative agent for the Lenders (in such capacity, together with its successors and permitted assigns in such capacity, the “ Administrative Agent ”), and BANK OF AMERICA, N.A., as collateral agent for the Secured Parties (in such capacity, together with its successors and permitted assigns in such capacity, the “ Collateral Agent ”).
W I T N E S S E T H :
WHEREAS, capitalized terms used but not defined in the preamble above and in these recitals have the meaning assigned thereto in Article I;
WHEREAS, the Parent is the direct owner of 100% of the Equity Interests in the Borrower;
WHEREAS, the Borrower is the direct 100% owner of an oil terminal storage facility located on the Houston Ship Channel near Houston, Texas, with an aggregate capacity as of the Closing Date of approximately 16.1 million barrels of residual and crude oil storage capacity (the “ Terminal Storage Facility ”);
WHEREAS, the Borrower has requested the extension of (a) a senior secured term loan facility to the Borrower in an aggregate principal amount of $550,000,000, the proceeds of which shall be applied (i) to refinance all Indebtedness under the Existing Notes Facility, (ii) to refinance a portion of the extensions of credit under the Existing Revolving Credit Agreement,
(iii) to refinance all Indebtedness under the Existing Parent Term Credit Agreement, (iv) to pay fees and expenses in connection with the Transactions and (v) for general corporate purposes of the Borrower and its Subsidiaries, and (b) a senior secured revolving credit facility to the Borrower in an aggregate amount of $75,000,000, the proceeds of which shall be used to provide for the ongoing working capital requirements and general corporate purposes of the Borrower and its Subsidiaries;
NOW, THEREFORE, the Lenders and the Issuing Banks are willing to extend the credit described above to the Borrower on the terms and subject to the conditions set forth herein.
Accordingly, the parties hereto agree as follows:
A G R E E M E N T :
ARTICLE I.
DEFINITIONS
Section 1.01 Defined Terms . As used in this Agreement, the following terms shall have the meanings specified below:
“ ABR ” shall mean, when used in reference to any Loan or Borrowing, whether such Loan or Loans, or the Loans comprising such Borrowing, are bearing interest at a rate determined by reference to the Alternate Base Rate in accordance with the provisions of Article II.

“ Accepting Lenders ” shall have the meaning assigned to such term in Section 2.23(a).
“ Acquisition ” shall mean the purchase or other acquisition (in one transaction or a series of transactions, including pursuant to any merger or consolidation) of all or substantially all the issued and outstanding Equity Interests in, or all or substantially all the assets of (or all or substantially all the assets constituting a business unit, division, product line or line of business of), any Person.
“ Adjusted EBITDA ” shall mean, for any period, EBITDA for such period, plus (i) the Crude Topping Unit EBITDA Adjustment, less (ii) the Interest Expense for such period in respect of the Bonds.
“ Adjusted LIBO Rate ” shall mean, with respect to any Eurodollar Borrowing for any Interest Period, an interest rate per annum (rounded upwards, if necessary, to the next 1/100 of 1%) equal to the product of (a) the LIBO Rate in effect for such Interest Period and (b) Statutory Reserves applicable to such Eurodollar Borrowing, if any. Notwithstanding the foregoing, in the case of Tranche B Term Loans, the Adjusted LIBO Rate shall at no time be less than 1.00%.
“ Administrative Agent ” shall have the meaning assigned to such term in the preamble.
“ Administrative Agent Fee Letter ” shall mean the Administrative Agent Fee Letter, dated as of the Closing Date, among Morgan Stanley, the Parent and the Borrower.
“ Administrative Questionnaire ” shall mean an Administrative Questionnaire in the form of Exhibit A .
“ Affected Class ” shall have the meaning assigned to such term in Section 2.23(a).
“ Affiliate ” shall mean, when used with respect to a specified Person, another Person that directly, or indirectly through one or more intermediaries, Controls or is Controlled by or is under common Control with the Person specified.
“ Affiliated Lender ” shall mean any Person that is an Affiliate of the Parent or any Subsidiary, but that is not (a) the Parent, the Borrower or any other Subsidiary, (b) an Affiliate of the Parent that is Controlled by the Parent or (c) a natural person.
“ Affiliated Lender Limitation ” shall mean the requirement that the aggregate amount of the Term Commitments or Term Loans held or beneficially owned by all the Affiliated Lenders shall not at any time exceed 20.0% of the aggregate amount of the Term Commitments or Term Loans of all the Lenders at such time.
“ Agent Fees ” shall have the meaning assigned to such term in Section 2.12(c).
“ Agent Parties ” shall have the meaning assigned to such term in Section 9.16(b)(ii).
 
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“ Agents ” shall mean the Administrative Agent and the Collateral Agent.
“ Aggregate Cap ” shall mean, with respect to any period of four consecutive Fiscal Quarters of the Parent, an amount equal to 20% of the EBITDA for such period, calculated prior to giving effect to any Specified EBITDA Adjustment for such period. For the avoidance of doubt, the Aggregate Cap acts to limit the inclusion of all Specified EBITDA Adjustments in any period of four consecutive Fiscal Quarters of the Parent, in the aggregate.
“ Aggregate Revolving Commitment ” shall mean the sum of the Revolving Commitments of all the Revolving Lenders.
“ Aggregate Revolving Exposure ” shall mean the sum of the Revolving Exposures of all the Revolving Lenders.
“ Agreement ” shall have the meaning assigned to such term in the preamble.
“ Alternate Base Rate ” shall mean, for any day, a rate per annum equal to the greatest of (a) the Base Rate in effect on such day, (b) the Federal Funds Effective Rate in effect on such day plus 1/2 of 1% and (c) the Adjusted LIBO Rate in effect on such day (assuming a one-month Interest Period) plus 1.00%. If for any reason the Administrative Agent shall have determined in good faith that it is unable to ascertain the Federal Funds Effective Rate, including the failure of the Federal Reserve Bank of New York to publish rates or the inability of the Administrative Agent to obtain quotations in accordance with the terms thereof, the Alternate Base Rate shall be determined without regard to clause (b) of the preceding sentence until the circumstances giving rise to such inability no longer exist. Any change in the Alternate Base Rate due to a change in the Base Rate or the Federal Funds Effective Rate shall be effective on the effective date of such change in the Base Rate or the Federal Funds Effective Rate, respectively. Notwithstanding the foregoing, in the case of Tranche B Term Loans, the Alternate Base Rate shall at no time be less than 2.00% per annum .
“ Anti-Money Laundering Laws ” shall have the meaning assigned to such term in Section 3.09(b).
“ Applicable Margin ” shall mean (a) in the case of Tranche B Term Loans, (i) with respect to ABR Loans, a rate per annum equal to 2.25%, and (ii) with respect to Eurodollar Loans, a rate per annum equal to 3.25%, (b) in the case of any Incremental Term Loans of any Series, the rate per annum specified in the Incremental Facility Agreement establishing the Incremental Term Commitments of such Series, and (c) in the case of Revolving Loans (i) with respect to ABR Loans, a rate per annum equal to 2.25%, and (ii) with respect to Eurodollar Loans, a rate per annum equal to 3.25%.
“ Applicable Percentage ” shall mean, at any time, with respect to any Revolving Lender, the percentage of the Aggregate Revolving Commitment represented by such Lender’s Revolving Commitment at such time; provided that if any Defaulting Lender exists at such time, then, for purposes of Section 2.21, the Applicable Percentages shall be calculated disregarding such Defaulting Lender’s Revolving Commitment. If the Revolving Commitments have terminated or expired, the Applicable Percentages shall be determined based upon the Revolving Commitments most recently in effect, giving effect to any assignments.
 
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“ Approved Fund ” shall mean, with respect to any Lender, any Person (other than a natural person) that is engaged in making, purchasing, holding or investing in bank loans and similar extensions of credit in the ordinary course and that is administered or managed by such Lender, an Affiliate of such Lender or an entity or an Affiliate of an entity that administers or manages such Lender.
“ Arrangers ” shall mean Morgan Stanley, Deutsche Bank Securities, Inc. and Merrill Lynch, Pierce, Fenner & Smith Incorporated, in their capacities as joint lead arrangers and joint bookrunners.
“ Asset Sale ” shall mean any Disposition of property or series of related Dispositions of property made in reliance on clause (n) of Section 6.04.
“ Assignment and Assumption ” shall mean an assignment and assumption entered into by a Lender and an assignee, and accepted by the Administrative Agent, substantially in the form of Exhibit B .
“ Auction ” shall have the meaning assigned to such term in Section 9.04(f)(i).
“ Auction Manager ” shall mean (a) the Administrative Agent or (b) any other financial institution agreed to by the Borrower and the Administrative Agent (whether or not an Affiliate of the Administrative Agent) to act as an arranger in connection with any repurchases of Term Loans pursuant to Section 9.04(f).
“ Authorized Representative ” shall mean, with respect to any Indebtedness, the administrative agent, collateral agent, trustee and/or any similar representative (in each case, as determined by the Collateral Agent and the Administrative Agent) acting on behalf of the holders of such Indebtedness.
“ Available Amount ” shall mean, at any time, an amount equal to (a) the sum of (i) $75,000,000 and (ii) an amount equal to (A) the Available Equity Amount, minus (B) the aggregate amount of Investments made pursuant to Section 6.07(m) subsequent to the Closing Date as of such time, minus (b) the aggregate amount of all Available Amount Expenditures subsequent to the Closing Date as of such time.
“ Available Amount Expenditures ” shall mean (a) Restricted Payments made pursuant to Section 6.03(a)(iii), (b) payments of or in respect of Indebtedness pursuant to Section 6.03(b)(v) and (c) Investments made pursuant to Section 6.07(n).
“ Available Equity Amount ” shall mean, at any time, the aggregate amount received by the Parent and contributed to the Borrower subsequent to the Closing Date constituting either (a) cash equity contributions (in the form of common equity) made to the Parent by any Person other than the Borrower or any other Restricted Subsidiary or (b) the Net Issuance Proceeds from any sale or issuance of common Equity Interests in the Parent (in the case of each of clauses (a) and (b), other than Specified Equity Contributions).
 
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“ Bankruptcy Event ” shall mean, with respect to any Person, that such Person has become the subject of a bankruptcy or insolvency proceeding, or has had a receiver, conservator, trustee, administrator, custodian, assignee for the benefit of creditors or similar Person charged with the reorganization or liquidation of its business appointed for it, or, in the good faith determination of the Administrative Agent, has taken any action in furtherance of, or indicating its consent to, approval of or acquiescence in, any such proceeding or appointment; provided that a Bankruptcy Event shall not result solely by virtue of any ownership interest, or the acquisition of any ownership interest, in such Person by a Governmental Authority; provided , however , that such ownership interest does not result in or provide such Person with immunity from the jurisdiction of courts within the United States of America or from the enforcement of judgments or writs of attachment on its assets or permit such Person (or such Governmental Authority) to reject, repudiate, disavow or disaffirm any agreements made by such Person.
“ Base Case Projections ” shall mean the projections of the Parent’s and the Borrower’s operating results (over a period ending no sooner than December 31, 2018) delivered to the Administrative Agent on the Closing Date pursuant to Section 4.01(k).
“ Base Rate ” shall mean the rate of interest per annum publicly announced from time to time by the Person acting as the Administrative Agent as its “prime rate” in effect at its principal office in New York City. The Base Rate is a reference rate and does not necessarily represent the lowest or best rate actually charged to any customer. The Administrative Agent or any Lender may make commercial loans or other loans at rates of interest at, above or below the Base Rate. Any change in the Base Rate shall take effect at the opening of business on the day specified in the public announcement of such change.
“ Board ” shall mean the Board of Governors of the Federal Reserve System of the United States.
“ Bond Documents ” shall mean the Bond Indentures, the Bond Loan Agreements, the Bond Facility Agreement and all other instruments, agreements and other documents evidencing or governing the Bonds or providing for any Guarantee or other right in respect thereof.
“ Bond Facility Administrative Agent ” shall mean Bank of America, N.A., as administrative agent under the Bond Facility Agreement, together with its successors and permitted assigns in such capacity.
“ Bond Facility Agreement ” shall mean the Continuing Covenant Agreement, dated as of the Closing Date, among the Parent, the Borrower, the holders of the Bonds from time to time, the Bond Facility Administrative Agent and the Collateral Agent.
“ Bond Indentures ” shall mean, collectively, (a) the Bond Indenture, dated as of November 10, 2010, between the Bond Issuer and the Bond Trustee relating to the Bonds Series 2010, (b) the Bond Indenture, dated as of December 1, 2011, between the Bond Issuer and the Bond Trustee relating to the Bonds Series 2011 and (c) the Bond Indenture, dated as of October 1, 2012, between the Bond Issuer and the Bond Trustee relating to the Bonds Series 2012.
“ Bond Issuer ” shall mean the Harris County Industrial Development Corporation, a non-profit corporation organized with the approval of Harris County, Texas, and existing pursuant to the Development Corporation Act, Chapter 501, Texas Local Government Code.
 
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“ Bond Loan Agreements ” shall mean, collectively, (a) the Loan Agreement, dated as of November 10, 2010, between the Bond Issuer and the Borrower relating to the $75,000,000 loan made by the Bond Issuer to the Borrower of the proceeds of $75,000,000 related to Bonds Series 2010, (b) the Loan Agreement, dated as of December 1, 2011, between the Bond Issuer and the Borrower relating to the $50,000,000 loan made by the Bond Issuer to the Borrower of the proceeds of $ 50,000,000 related to the Bonds Series 2011, and (c) the Loan Agreement, dated as of October 1, 2012, between the Bond Issuer and the Borrower relating to the $100,000,000 loan made by the Bond Issuer to the Borrower of the proceeds of $100,000,000 related to the Bonds Series 2012.
“ Bond Purchasers ” shall mean the Persons that shall purchase the Bonds on the Closing Date, as provided in the Bond Facility Agreement.
“ Bonds ” shall mean, collectively, the Bonds Series 2010, the Bonds Series 2011 and the Bonds Series 2012.
“ Bonds Series 2010 ” shall mean the Bond Issuer’s Marine Terminal Revenue Bonds (HFOTCO LLC Project) Series 2010, issued by the Bond Issuer on November 1, 2010, and the Indebtedness represented thereby.
“ Bonds Series 2011 ” shall mean the Bond Issuer’s Marine Terminal Revenue Bonds (HFOTCO LLC Project) Series 2011, issued by the Bond Issuer on December 1, 2011, and the Indebtedness represented thereby.
“ Bonds Series 2012 ” shall mean the Bond Issuer’s Marine Terminal Revenue Bonds (HFOTCO LLC Project) Series 2012, issued by the Bond Issuer on October 1, 2012, and the Indebtedness represented thereby.
“ Bond Trustee ” shall mean The Bank of New York Mellon Trust Company, National Association, as trustee under the Bond Indentures, together with its successors and assigns in such capacity.
“ Borrower ” shall have the meaning assigned to such term in the preamble.
“ Borrowing ” shall mean (a) a group of Loans of a single Class and Type and made on a single date and, in the case of Eurodollar Loans, as to which a single Interest Period is in effect, or (b) a Swingline Loan.
“ Borrowing Request ” shall mean a request by the Borrower for a Borrowing in accordance with the terms of Section 2.03 or 2.04, as applicable, and substantially in the form of Exhibit C .
“ Business Day ” shall mean any day that is not a Saturday, Sunday or other day on which commercial banks in New York City are authorized or required by law to remain closed; provided that when used in connection with a Eurodollar Loan, the term “Business Day” shall also exclude any day on which banks are not open for dealings in deposits in the applicable currency in the London interbank market.
 
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“ Capital Lease Obligations ” of any Person shall mean the obligations of such Person to pay rent or other amounts under any lease of (or other arrangement conveying the right to use) real or personal property, or a combination thereof, which obligations are required to be classified and accounted for as capital leases on a balance sheet of such Person under GAAP and, for purposes hereof, the amount of such obligations at any time shall be the capitalized amount thereof at such time determined in accordance with GAAP. For the avoidance of doubt, obligations of any Group Member under any lease of Real Property from the Port of Houston shall not be treated as Capital Lease Obligations (regardless of any change after the Closing Date in the treatment of leases under GAAP).
“ CFC ” shall mean (a) each Person that is a “controlled foreign corporation” for purposes of the Code, (b) each Subsidiary of any Person described in clause (a) and (c) each Person substantially all of the assets of which consist of Equity Interests in and, if applicable, Indebtedness of one or more Persons described in clause (a).
“ Change in Law ” shall mean (a) the adoption of any law, rule, treaty or regulation after the Closing Date, (b) any change in law, rule, treaty or regulation or in the interpretation or application thereof by any Governmental Authority after the Closing Date or (c) compliance by any Lender (or by any lending office of such Lender or by such Lender’s holding company, if any) with any written request, guideline or directive (whether or not having the force of law but if not having the force of law, then being one with which the relevant party would customarily comply) of any Governmental Authority made or issued after the Closing Date which compliance, if not having the force of law, shall have been undertaken by such Lender across its lending business, without discriminating in its application to any Loan; provided that, notwithstanding anything herein to the contrary, (i) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (ii) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a “Change in Law”, regardless of the date enacted, adopted or issued.
“ Change of Control ” shall mean (a) any sale, assignment, transfer or other Disposition as a result of which (i) the Sponsor ceases to, directly or indirectly, beneficially own more than 50% on a fully diluted basis of the voting Equity Interests in the Parent or (ii) the Parent ceases to directly and beneficially own 100% on a fully diluted basis of the economic and voting interests in the Equity Interests in the Borrower or (c) the occurrence of a “Change in Control” as defined in the Bond Documents or any “change in control” (or similar event, however denominated) with respect to the Parent or the Borrower under and as defined in any indenture or other agreement or instrument evidencing, governing the rights of the holders of or otherwise relating to any Material Indebtedness of the Parent, the Borrower or any other Subsidiary.
“ Charges ” shall have the meaning assigned to such term in Section 9.09.
“ Class ”, when used in reference to (a) any Loan or Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing, are Tranche B Term Loans, Incremental Term Loans of any Series, Revolving Loans or Swingline Loans, (b) any Commitment, refers to
 
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whether such Commitment is a Tranche B Term Commitment, Incremental Term Commitment of any Series or a Revolving Commitment and (c) any Lender, refers to whether such Lender has a Loan or Commitment of a particular Class. Additional Classes of Loans, Borrowings, Commitment and Lenders may be established pursuant to Section 2.22, 2.23 or 2.24.
“ Closing Date ” shall mean the date on which each of the conditions set forth in Section 4.01 shall have been satisfied or waived in accordance with the terms hereof, which date is August 19, 2014.
“ Code ” shall mean the Internal Revenue Code of 1986, as amended from time to time.
“ Collateral ” shall mean all property which is subject or is intended to become subject to the security interests or Liens granted pursuant to any of the Security Documents. For the avoidance of doubt, the Excluded Property shall not constitute Collateral.
“ Collateral Agent ” shall have the meaning assigned to such term in the preamble.
“ Collateral and Guarantee Requirement ” shall mean, at any time, the requirement that:
(a) the Collateral Agent shall have received from the Parent, the Borrower and each other Designated Subsidiary either (i) counterparts of the Guaranty Agreement and the Security Agreement duly executed and delivered on behalf of such Person or (ii) in the case of any Person that becomes a Designated Subsidiary after the Closing Date, supplements to the Guaranty Agreement and the Security Agreement, in the forms specified therein, duly executed and delivered on behalf of such Person, together with documents and opinions of the type referred to in Sections 4.01(a) and 4.01(d) with respect to such Designated Subsidiary;
(b) all Equity Interests in any Restricted Subsidiary owned by or on behalf of any Loan Party shall have been pledged pursuant to the Security Agreement and, in the case of Equity Interests in any Foreign Subsidiary that is a Restricted Subsidiary and a Material Subsidiary, a Foreign Pledge Agreement ( provided that the Loan Parties shall not be required to pledge (i) more than 65% of the outstanding voting Equity Interests in any CFC owned directly by a Loan Party or (ii) any Equity Interests in a CFC that are not owned directly by any Loan Party), and the Collateral Agent shall, to the extent required by the Security Agreement, have received certificates or other instruments representing all such Equity Interests, together with undated stock powers or other instruments of transfer with respect thereto endorsed in blank;
(c) (i) all Indebtedness of the Parent, the Borrower and each other Subsidiary and (ii) all Indebtedness of any other Person in a principal amount of $1,000,000 or more that, in each case, is owing to any Loan Party shall be evidenced by a promissory note and shall have been pledged pursuant to the Security Agreement, and the Collateral Agent shall have received all such promissory notes, together with undated instruments of transfer with respect thereto endorsed in blank;
 
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(d) all documents and instruments, including Uniform Commercial Code financing statements, required by applicable law or reasonably requested by the Administrative Agent to be filed, registered or recorded to create the Liens intended to be created by the Security Documents and perfect such Liens to the extent required by, and with the priority required by, the Security Documents, shall have been filed, registered or recorded or delivered to the Collateral Agent for filing, registration or recording;
(e) the Collateral Agent shall have received (i) counterparts of a Mortgage with respect to each Mortgaged Property duly executed and delivered by the record owner or lessee of such Mortgaged Property, (ii) a policy or policies of title insurance in an amount as shall be reasonably specified by the Collateral Agent issued by a nationally recognized title insurance company insuring the Lien of each such Mortgage as a valid and enforceable first Lien on the Mortgaged Property described therein, free of any other Liens except as permitted under Section 6.01, together with such endorsements, coinsurance and reinsurance as the Collateral Agent may reasonably request, consistent with applicable Governmental Rules, (iii) if any owned (but not leased) Mortgaged Property is located in an area determined by the Federal Emergency Management Agency to have special flood hazards, evidence of such flood insurance as may be required under applicable law, including Regulation H of the Board (“ Regulation H ”), and (iv) such surveys, abstracts, appraisals, legal opinions, consents, estoppels, subordination, non-disturbance and attornment agreements and other documents as the Collateral Agent may reasonably request with respect to any such Mortgage or Mortgaged Property (it being understood that (A) any survey described in clause (iv) above may take the form of an orthophotographic aerial map or a similar map of the related Mortgaged Property (provided that such map is in a form sufficient to permit a nationally recognized title insurance company to issue a policy or policies of title insurance with respect to the Lien on such Mortgaged Property in compliance with the requirements of clause (ii) above), (B) to the extent that any consent, estoppel, subordination, non-disturbance and attornment agreement or other document reasonably requested by the Collateral Agent pursuant to clause (iv) above requires the consent or approval of any Person that is not an Affiliate of the Parent or any Subsidiary and that is not contractually obligated to execute, deliver or otherwise provide the same, then the requirement of such clause (iv) to obtain such consent, estoppel, subordination, non-disturbance and attornment agreement or other document shall be deemed to have been satisfied so long as the Loan Parties shall have used commercially reasonable efforts to obtain the same from such Person);
(f) the Collateral Agent shall have received a counterpart, duly executed and delivered by the applicable Loan Party and the applicable depositary bank or securities intermediary, as the case may be, of a Control Agreement with respect to (i) each deposit account maintained by any Loan Party with any depositary bank (other than any Excluded Deposit Account) and (ii) each securities account maintained by any Loan Party with any securities intermediary (other than any Excluded Securities Account); and
(g) each Loan Party shall have obtained all landlord, warehouseman, agent, bailee and processor acknowledgments required to be obtained by it pursuant to the Security Agreement and all other consents and approvals required to be obtained by it in connection with the execution and delivery of all Security Documents to which it is a party, the performance of its obligations thereunder and the granting by it of the Liens thereunder.
 
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Notwithstanding the foregoing, the foregoing definition shall not require the creation or perfection of pledges of or security interests in, or the obtaining of title insurance, legal opinions or other deliverables with respect to, any Excluded Property. In addition, the foregoing definition shall not require the creation or perfection of pledges of or security interests in, or the obtaining of title insurance, legal opinions or other deliverables with respect to particular assets of the Loan Parties, or the provision of Guarantees by any Subsidiary, if, and for so long as the Collateral Agent and the Administrative Agent, in consultation with the Parent and the Borrower, determine that the cost of creating or perfecting such pledges or security interests in such assets, or obtaining such title insurance, legal opinions or other deliverables in respect of such assets, or providing such Guarantees (taking into account any adverse tax consequences to the Borrower and its Affiliates (including the imposition of withholding or other material taxes)), shall be excessive in view of the benefits to be obtained by the Lenders therefrom. The Collateral Agent and the Administrative Agent may, without the consent of any Lender, grant extensions of time for the creation and perfection of security interests in or the obtaining of title insurance, legal opinions or other deliverables with respect to particular assets or the provision of any Guarantee by any Subsidiary (including extensions beyond the Closing Date or in connection with assets acquired, or Subsidiaries formed or acquired, after the Closing Date) where the Collateral Agent and the Administrative Agent determine that such action cannot be accomplished without undue effort or expense by the time or times at which it would otherwise be required to be accomplished by this Agreement or the Security Documents.
“ Commitment ” shall mean a Tranche B Term Commitment, an Incremental Term Commitment of any Series, a Revolving Commitment or any combination thereof (as the context requires).
“ Communications ” shall have the meaning assigned to such term in Section 9.16(a)(i).
“ Compliance Certificate ” shall mean a certificate of the Parent and the Borrower executed and delivered by a Responsible Officer of the Parent and the Borrower, substantially in the form of Exhibit F .
“ Connection Income Taxes ” means Other Connection Taxes that are imposed on or measured by net income (however denominated) or that are franchise Taxes or branch profits Taxes.
“ Control ” shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ownership of voting securities, by contract or otherwise, and “ Controlling ” and “ Controlled ” shall have meanings correlative thereto.
“ Control Agreement ” shall mean, with respect to any deposit account or securities account maintained by any Loan Party, a control agreement in customary form and substance and otherwise reasonably satisfactory to the Collateral Agent, duly executed and delivered by such Loan Party and the depositary bank or the securities intermediary, as the case may be, with which such account is maintained.
 
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“ Crude Topping Unit ” shall mean the 25,000 barrels a day crude topping unit being constructed by a customer of the Borrower on land leased from the Borrower, and the related infrastructure being constructed by the Borrower.
“ Crude Topping Unit Completion Date ” shall mean the date on which the Crude Topping Unit is placed in service (as determined in good faith by the Parent and the Borrower).
“ Crude Topping Unit EBITDA Adjustment ” shall mean, for any period of four consecutive Fiscal Quarters of the Parent, $12,800,000; provided that, for each period of four consecutive Fiscal Quarters of the Parent ending on or after the last day of the first full Fiscal Quarter following the Crude Topping Unit Completion Date, the Crude Topping Unit EBITDA Adjustment shall be equal to (a) the Crude Topping Unit EBITDA Adjustment for the immediately preceding period of four consecutive Fiscal Quarters of the Parent, less (b) $3,200,000; provided , further , that the Crude Topping Unit EBITDA Adjustment shall at no time be less than $0. Solely by way of example, (i) for the period of four consecutive Fiscal Quarters of the Parent ending on the last day of the first full Fiscal Quarter following the Crude Topping Unit Completion Date, the Crude Topping Unit EBITDA Adjustment shall be $9,600,000, and (ii) for the period of four consecutive Fiscal Quarters of the Parent ending on the last day of the second full Fiscal Quarter following the Crude Topping Unit Completion Date, the Crude Topping Unit EBITDA Adjustment shall be $6,400,000.
“ Currency Hedge Agreement ” shall mean any foreign exchange contract, currency swap agreement, futures contract, option contract, synthetic cap or other similar agreement or arrangement.
“ Debtor Relief Law ” shall have the meaning assigned to such term in the Security Agreement.
“ Default ” shall mean any event or condition that upon notice, lapse of time or both would constitute an Event of Default.
“ Defaulting Lender ” shall mean any Revolving Lender that (a) has failed, within two Business Days of the date required to be funded or paid, (i) to fund any portion of its Revolving Loans, (ii) to fund any portion of its participations in Letters of Credit or Swingline Loans or (iii) to pay to any Lender Party any other amount required to be paid by it hereunder, unless, in the case of clause (i) above, such Revolving Lender notifies the Administrative Agent in writing that such failure is the result of such Revolving Lender’s good faith determination that a condition precedent to funding (specifically identified in such writing, including, if applicable, by reference to a specific Default or Event of Default) has not been satisfied, (b) has notified the Parent, the Borrower or any Lender Party in writing, or has made a public statement, to the effect that it does not intend or expect to comply with one or more of its funding obligations under this Agreement (unless such writing or public statement indicates that such position is based on such Lender’s good-faith determination that a condition precedent (specifically identified in such writing, including, if applicable, by reference to a specific Default or Event of Default) to funding a Loan cannot be satisfied) or generally under other agreements in which it commits to extend credit, (c) has failed, within three Business Days after request by a Lender Party made in good faith to provide a certification in writing from an authorized officer of such Revolving
 
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Lender that it will comply with its obligations (and is financially able to meet such obligations) to fund prospective Revolving Loans and participations in then outstanding Letters of Credit and Swingline Loans, provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon such Lender Party’s receipt of such certification in form and substance satisfactory to it and the Administrative Agent, or (d) has, or has a direct or indirect parent company that has, become the subject of a Bankruptcy Event. Any determination by the Administrative Agent that a Lender is a Defaulting Lender under any of clauses (a) through (d) above, and the effective date of such status, shall be conclusive and binding absent manifest error, and such Lender shall be deemed to be a Defaulting Lender (subject to such Defaulting Lender ceasing to be a Defaulting Lender pursuant to the terms hereof) as of the date established therefor by the Administrative Agent in a written notice of such determination, which shall be delivered by the Administrative Agent to the Borrower, each other Lender and each Issuing Bank promptly following such determination.
“ Designated Subsidiary ” shall mean (a) the Borrower and (b) each other wholly-owned Restricted Subsidiary other than, in the case of this clause (b), (i) any Restricted Subsidiary that is a CFC and (ii) any Restricted Subsidiary that is not a Material Subsidiary. The term “Designated Subsidiary” shall also include any Restricted Subsidiary designated as such pursuant to Section 5.10(b).
“ Discharge Date ” shall mean the date on which (a) this Agreement shall have terminated (other than those provisions which shall survive such termination under Section 9.02), (b) the Commitments shall have expired or been terminated, (c) the principal of and interest on each Loan and all fees and all other expenses or amounts payable under any Loan Document (other than unasserted contingent payment obligations that by their nature survive termination of the Loan Documents) shall have been paid in full in cash, (d) all Letters of Credit shall have expired, been terminated or been cash collateralized to the satisfaction of the applicable Issuing Bank and (e) all LC Disbursements shall have been reimbursed.
“ Disposition ” shall mean, with respect to any property, any sale, lease, sale and leaseback, conveyance, transfer or other disposition thereof; and the terms “ Dispose ” and “ Disposed of ” shall have correlative meanings.
“ Disqualified Lender ” shall mean (a) any Person specified by the Borrower in writing to Morgan Stanley on July 17, 2014 as a “Disqualified Lender” (and its Affiliates reasonably identifiable by name) and (b) any Person that is a competitor or customer of the Parent or the Subsidiaries and that was specified by the Borrower in writing to Morgan Stanley on July 17, 2014 as a “Disqualified Lender” (and its Affiliates reasonably identifiable by name) (in the case of this clause (b), excluding any such Affiliate that is a bona fide diversified debt fund (unless such Person was otherwise specified as a “Disqualified Lender” pursuant to clause (a))). Upon reasonable notice to the Administrative Agent, the Borrower may supplement in writing the list of Disqualified Lenders to include any Person that becomes a competitor or customer of the Parent and the Subsidiaries after the Closing Date, which supplement shall become effective two days after delivery to the Administrative Agent, but which shall not apply retroactively to disqualify any Lender that has previously acquired any rights and obligations under this Agreement.
 
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“ Divestiture ” shall mean the Disposition (in one transaction or a series of transactions) of
(a) all or substantially all the issued and outstanding Equity Interests in any Person that are owned by the Parent, the Borrower or any other Restricted Subsidiary or (b) all or substantially all the assets of (or all or substantially all the assets constituting a business unit, division, product line or line of business of) any Person.
“ Dock 5 ” shall mean the approximately 31.05 acres of land (consisting of 9.1 upland acres and 21.95 submerged acres) located in Harris County, Texas leased to Borrower pursuant to the Dock 5 Lease for the construction, maintenance, repair, replacement and operation of a single T-Head dock and related improvements, and certain pipelines and all related appurtenances thereto.
“ Dock 5 Lease ” shall mean the leasehold interest in the Dock 5 held by the Borrower pursuant to that certain Lease Agreement dated September 30, 2013 between the Port of Houston and the Borrower.
“ Dollars ” or “ $ ” shall mean lawful money of the United States.
“ Domestic Subsidiary ” shall mean any Subsidiary incorporated or organized under the laws of the United States of America, any State thereof or the District of Columbia.
“ EBITDA ” shall mean, for any period, Net Income for such period, plus :
(a) without duplication and to the extent deducted in the determination of Net Income for such period:
(i) all federal, state and other income taxes (including state franchise taxes based upon income) of the Parent and the Restricted Subsidiaries paid or accrued according to GAAP during such period,
(ii) Interest Expense for such period,
(iii) depreciation and amortization of the Parent and the Restricted Subsidiaries for such period determined in accordance with GAAP,
(iv) any non-cash charges for such period (excluding write-downs of current assets),
(v) any unusual, extraordinary or non-recurring expenses or losses for such period,
(vi) any fees, costs and expenses incurred during such period in connection with the Transactions,
 
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(vii) any fees, costs and expenses incurred during such period in connection with the structuring, negotiation, documentation and consummation of Permitted Acquisitions, permitted issuances of Equity Interests, permitted Investments, permitted Restricted Payments and permitted incurrences of Indebtedness, in each case, whether or not consummated,
(viii) any fees, costs, or expenses incurred during such period in connection with the redemption or retirement of any Indebtedness (including prepayment premiums and make whole amounts, but excluding the payment of accrued interest and fees thereon),
(ix) charges, losses and expenses for such period to the extent (A) paid for or reimbursed by any Person (other than an Affiliate of the Parent or any Subsidiary) during such period or (B) reasonably expected to be paid for or reimbursed by any such Person during the period of four consecutive Fiscal Quarters of the Parent immediately following such period, and
(x) subject to the Aggregate Cap, restructuring charges incurred during such period, minus
(b) without duplication,
(i) all cash payments made during such period on account of non-cash charges added back in computing EBITDA pursuant to clause (a)(iv) for a previous period, and
(ii) to the extent included in the determination of Net Income for such period, any unusual, extraordinary or non-recurring gains and all non-cash items of income (including non-cash gains) for such period.
If any charges, losses or expenses are added back in computing EBITDA pursuant to clause (a)(ix)(B) for any period and such charges, losses or expenses are not paid for or reimbursed by any Person (other than an Affiliate of the Parent or any Subsidiary) during the period of four consecutive Fiscal Quarters of the Parent immediately following such period, then such charges, losses or expenses shall be subtracted in computing EBITDA for the Fiscal Quarter of the Parent immediately following such period of four consecutive Fiscal Quarters of the Parent. For purposes of calculating EBITDA for any period to determine the Total Adjusted Net Leverage Ratio, if during such period the Parent, the Borrower or any other Restricted Subsidiary shall have consummated a Specified Transaction, EBITDA for such period shall be calculated after giving pro forma effect thereto in accordance with Section 1.02(j).
“ Eligible Assignee ” shall mean (a) any Person that is a Lender, an Affiliate of a Lender or an Approved Fund, and (b) any other Person other than (i) any Disqualified Lender, (ii) any natural Person, and (iii) the Parent or any Affiliate thereof (other than an Affiliated Lender and other than the Borrower as contemplated in Section 9.04(f)).
“ Engagement Letter ” shall mean the Engagement Letter, dated as of July 17, 2014, among the Arrangers, the Parent and the Borrower.
 
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“ Environment ” shall mean ambient and indoor air, surface water and groundwater (including potable water, navigable water and wetlands), the land surface or subsurface strata or sediment and natural resources such as flora and fauna.
“ Environmental Claim ” shall mean any and all suits, demands, demand letters, claims, Liens, notices of non-compliance or violation, notices of liability or potential liability, investigations, adversarial proceedings, consent orders, consent decrees or consent agreements arising out of or pursuant to any Environmental Law, the presence or Release of, or human exposure to, any Hazardous Material or natural resource damages.
“ Environmental Law ” shall mean, collectively, all applicable federal, state, local or foreign laws, including common law, ordinances, regulations, rules, legal codes, orders, judgments or other Governmental Rules that relate to (a) the prevention, abatement or elimination of pollution, or the protection or preservation of the Environment, wildlife or natural resources, (b) the use, generation, handling, treatment, storage, Release, transportation or regulation of, or exposure to, Hazardous Materials and (c) the protection of employee health and workplace safety, including the Comprehensive Environmental Response Compensation and Liability Act, 42 U.S.C. §§ 9601 et seq., the Endangered Species Act, 16 U.S.C. §§ 1531 et seq., the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act, 42 U.S.C. §§ 6901 et seq., the Clean Air Act, 42 U.S.C. §§ 7401 et seq., the Clean Water Act, 33 U.S.C. §§ 1251 et seq., the Toxic Substances Control Act, 15 U.S.C. §§ 2601 et seq., the Emergency Planning and Community Right to Know Act, 42 U.S.C. §§ 11001 et seq., and the Oil Pollution Act of 1990, 33 U.S.C. §§ 2701 et seq., each as amended, and their applicable foreign, state or local counterparts or equivalents.
“ Equity Interests ” in or of any Person shall mean any and all shares, interests, rights to purchase, warrants, options, participation or other equivalents of or interests in (however designated) equity of such Person, including any Preferred Stock, any limited or general partnership interest and any limited liability company interest.
“ ERISA ” shall mean 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.
“ ERISA Affiliate ” shall mean any corporation, trade or business (whether or not incorporated) that, together with any of the Group Members, is treated as a single employer under Section 414(b) or (c) of the Code, or, solely for purposes of Section 302 or 303 of ERISA and Section 412 or 430 of the Code, is treated as a single employer under Section 414(b), (c), (m) or (o) of the Code.
“ Eurodollar ” shall, when used in reference to any Loan or Borrowing, refer to whether such Loan, or any Loan comprising such Borrowing, is bearing interest at a rate determined by reference to the Adjusted LIBO Rate in accordance with the provisions of Article II.
“ Event of Default ” shall have the meaning assigned to such term in Section 7.01.
“ Excluded Deposit Account ” shall have the meaning assigned to such term in the Security Agreement.
 
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“ Excluded Property ” shall mean (a) the Excluded Real Property and (b) the “Excluded Property” under and as defined in the Security Agreement.
“ Excluded Real Property ” shall mean the Dock 5 Lease, the Moore Road Property and any easement, right-of-way or similar such interest or estate in Real Property with respect to the Pipelines.
“ Excluded Securities Account ” shall have the meaning assigned to such term in the Security Agreement.
“ Excluded Taxes ” shall mean any of the following Taxes imposed on or with respect to a Recipient or required to be withheld or deducted from a payment to a Recipient, (a) Taxes imposed on or measured by net income (however denominated), franchise Taxes, and branch profits Taxes, in each case, (i) imposed as a result of such Recipient being organized under the laws of, or having its principal office or, in the case of any Lender, its applicable lending office located in, the jurisdiction imposing such Tax (or any political subdivision thereof) or (ii) that are Other Connection Taxes, (b) in the case of a Lender, U.S. federal withholding Taxes imposed on amounts payable to or for the account of such Lender with respect to an applicable interest in a Loan or Commitment pursuant to a law in effect on the date on which (i) such Lender acquires such interest in the Loan or Commitment (other than pursuant to an assignment request by the Borrower under Section 2.19(b)) or (ii) such Lender changes its lending office, except in each case to the extent that, pursuant to Section 2.17, amounts with respect to such Taxes were payable either to such Lender’s assignor immediately before such Lender acquires the interest in the Loan or Commitment or to such Lender immediately before it changed its lending office,
(c) Taxes attributable to such Recipient’s failure to comply with Section 2.17(e) and (d) any U.S. federal withholding Taxes imposed under FATCA.
“ Existing Bonds Letters of Credit ” shall mean the direct-pay letters of credit issued by Bank of America, N.A. prior to the Closing Date under the Existing Revolving Credit Agreement as credit and liquidity support for the Bonds.
“ Existing Indebtedness ” shall mean all principal, premium, if any, interest, fees and other amounts due or outstanding under the Existing Parent Term Credit Agreement, the Existing Revolving Credit Agreement and the Existing Notes Facility.
“ Existing Notes Facility ” shall mean the Note Purchase and Private Shelf Agreement, dated as of January 8, 2007, among the Borrower, the purchasers listed on Schedule A thereto, Prudential Investment Management, Inc., and each other Prudential Affiliate (as defined therein) party thereto, as amended by Letter Amendment No. 1 to Note Purchase and Private Shelf Agreement, dated as of June 30, 2007, Letter Amendment No. 2 to Note Purchase and Private Shelf Agreement, dated as of January 10, 2008, and Letter Amendment No. 3 to Note Purchase and Private Shelf Agreement, dated as of January 8, 2009.
“ Existing Parent Term Credit Agreement ” shall mean the Credit Agreement, dated as of October 31, 2011, among the Parent, the lenders party hereto, Barclays Bank PLC, as administrative agent, and Union Bank, N.A., as collateral agent, as amended by the Waiver and Amendment, dated as of November 23, 2011, the Second Amendment to Credit Agreement, dated as of February 23, 2012, and the Third Amendment to Credit Agreement and Lien Reaffirmation Agreement, dated as of November 1, 2012.
 
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“ Existing Revolving Credit Agreement ” shall mean the Amended and Restated Credit Agreement, dated as of November 12, 2010, as amended by Amendment No. 1 and Joinder to Amended and Restated Credit Agreement, dated as of July 26, 2011, Amendment No. 2 to Amended and Restated Credit Agreement and Waiver, dated as of October 19, 2011, Amendment No. 3 and Joinder to Amended and Restated Credit Agreement, dated as of January 31, 2012, and Amendment No. 4 to Amended and Restated Credit Agreement, dated as of September 21, 2012, among the Borrower, the lenders party thereto, Bank of America, N.A., as administrative agent, and Compass Bank, as syndication agent.
“ Facility ” shall mean the Tranche B Term Facility, an Incremental Facility or the Revolving Facility, as the context requires.
“ Fair Market Value ” shall mean, at any time with respect to any property of any kind or character, the sale value of such property that would be realized in an arm’s length sale at such time between an informed and willing buyer and an informed and willing seller, under no compulsion to buy or sell, respectively.
“ FATCA ” shall mean Sections 1471 through 1474 of the Code, as of the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof and any agreements entered into pursuant to Section 1471(b)(1) of the Code, any intergovernmental agreement entered into in connection with the implementation of such Sections of the Code and any fiscal or regulatory legislation, rules or practices adopted pursuant to such intergovernmental agreement.
“ Federal Funds Effective Rate ” shall mean, for any day, the weighted average (rounded upward, if necessary, to the next 1/100 of 1%) of the rates on overnight Federal funds transactions with members of the Federal Reserve System arranged by Federal funds brokers, as published on the next succeeding Business Day by the Federal Reserve Bank of New York, or, if such rate is not so published for any day which is a Business Day, the average (rounded upward, if necessary, to the next 1/100 of 1%) of the quotations for the day of such transactions received by the Administrative Agent from three Federal funds brokers of recognized standing selected by it.
“ Financial Covenant Event of Default ” shall have the meaning assigned to such term in Section 7.01(d).
“ Financial Officer ” of any Person shall mean a Responsible Officer of such Person who is a senior financial officer of such Person.
“ Fiscal Quarter ” shall mean any fiscal quarter of a Fiscal Year.
“ Fiscal Year ” shall mean a fiscal year of a Group Member; references to a Fiscal Year with a number corresponding to any calendar year ( e.g. , “Fiscal Year 2014”) refer to the Fiscal Year ending on or about December 31 of such calendar year.
 
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“ Foreign Pledge Agreement ” shall mean a pledge or charge agreement granting a Lien on Equity Interests in a Foreign Subsidiary to secure the Secured Obligations, governed by the law of the jurisdiction of organization of such Foreign Subsidiary and in form and substance reasonably satisfactory to the Collateral Agent.
“ Foreign Subsidiary ” shall mean any Subsidiary that is not a Domestic Subsidiary.
“ Fronting Exposure ” shall mean, at any time there is a Defaulting Lender, with respect to any Issuing Bank, such Defaulting Lender’s Applicable Percentage of the outstanding LC Exposure with respect to Letters of Credit issued by such Issuing Bank other than LC Exposure as to which such Defaulting Lender’s participation obligation has been reallocated to other Revolving Lenders or cash collateralized in accordance with the terms hereof.
“ Funds Flow Memorandum ” shall mean the memorandum, dated the Closing Date, delivered by the Borrower to the Administrative Agent with respect to the disbursement of funds on the Closing Date.
“ GAAP ” shall mean generally accepted accounting principles in effect from time to time in the United States, applied on a consistent basis, subject to the provisions of Section 1.02.
“ Governmental Authority ” shall mean any federal, state, local or foreign court or governmental agency, authority, instrumentality or regulatory, judicial or legislative body.
“ Governmental Rule ” shall mean, with respect to any Person, any law, rule, regulation, ordinance, order, code, treaty, judgment, decree, directive, guideline, policy or similar form of decision of any Governmental Authority binding on such Person.
“ Group Members ” shall mean the Parent, the Borrower and each of the other Restricted Subsidiaries.
“ Guarantee ” of or by any Person (the “guarantor”) shall mean any obligation, contingent or otherwise, of the guarantor guaranteeing or having the economic effect of guaranteeing any Indebtedness or other obligation of any other Person (the “primary obligor”) in any manner, whether directly or indirectly, and including any obligation of the guarantor, direct or indirect, (a) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or other obligation or to purchase (or to advance or supply funds for the purchase of) any security for the payment thereof, (b) to purchase or lease property, securities or services for the purpose of assuring the owner of such Indebtedness or other obligation of the payment thereof, (c) to maintain working capital, equity capital or any other financial statement condition or liquidity of the primary obligor so as to enable the primary obligor to pay such Indebtedness or other obligation or (d) as an account party in respect of any letter of credit or letter of guaranty issued to support such Indebtedness or other obligation; provided that the term “Guarantee” shall not include endorsements for collection or deposit in the ordinary course of business. The amount, as of any date of determination, of any Guarantee shall be the principal amount outstanding on such date of Indebtedness or other obligation guaranteed thereby (or, in the case of (i) any Guarantee the terms of which limit the monetary exposure of the guarantor or (ii) any Guarantee of an obligation that does not have a principal amount, the maximum monetary exposure as of such date of the guarantor under such Guarantee (as determined, in the case of clause (i), pursuant to such terms or, in the case of clause (ii), reasonably and in good faith by the chief financial officer of the Parent)).
 
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“ Guaranteed Obligations ” shall have the meaning assigned to such term in the Guaranty Agreement.
“ Guaranteed Party ” shall have the meaning assigned to such term in the Guaranty Agreement.
“ Guaranty Agreement ” shall mean the Guaranty Agreement, dated as of the Closing Date, among the Parent, the Subsidiary Loan Parties (other than the Borrower) and the Administrative Agent.
“ Hazardous Materials ” shall mean all pollutants, contaminants, wastes, chemicals, materials, substances and constituents, including explosive or radioactive substances or petroleum or petroleum distillates, asbestos or asbestos containing materials, polychlorinated biphenyls or radon gas, of any nature, in each case subject to regulation or which can give rise to liability under any Environmental Law.
“ Hedge Agreements ” shall mean any Interest Rate Hedge Agreement, Currency Hedge Agreement or any other agreement with respect to any swap, forward, future or derivative transaction or option or similar agreement involving, or settled by reference to, one or more rates, currencies, commodities, equity or debt instruments or securities, or economic, financial or pricing indices or measures of economic, financial or pricing risk or value or any similar transaction or any combination of these transactions.
“ HFOTCO Company Agreement ” shall mean the limited liability company agreement of the Borrower (entitled “Company Agreement”), effective as of January 8, 2008.
“ Incremental Commitment ” shall mean an Incremental Revolving Commitment or an Incremental Term Commitment.
“ Incremental Facility ” shall mean, with respect to Incremental Term Commitments of any Series and the Incremental Term Loans made thereunder, such Incremental Term Commitments and Incremental Term Loans.
“ Incremental Facility Agreement ” shall mean an Incremental Facility Agreement, in form and substance reasonably satisfactory to the Administrative Agent, among the Parent, the Borrower, the Administrative Agent and one or more Incremental Lenders, establishing Incremental Term Commitments of any Series or Incremental Revolving Commitments and effecting such other amendments hereto and to the other Loan Documents as are contemplated by Section 2.22.
“ Incremental Lender ” shall mean an Incremental Revolving Lender or an Incremental Term Lender.
 
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“ Incremental Revolving Commitment ” shall mean, with respect to any Lender, the commitment, if any, of such Lender, established pursuant to an Incremental Facility Agreement and Section 2.22, to make Revolving Loans and to acquire participations in Letters of Credit and Swingline Loans, expressed as an amount representing the maximum aggregate permitted amount of such Lender’s Revolving Exposure under such Incremental Facility Agreement.
“ Incremental Revolving Lender ” shall mean a Lender with an Incremental Revolving Commitment.
“ Incremental Term Commitment ” shall mean, with respect to any Lender, the commitment, if any, of such Lender, established pursuant an Incremental Facility Agreement and Section 2.22, to make Incremental Term Loans of any Series hereunder, expressed as an amount representing the maximum principal amount of the Incremental Term Loans of such Series to be made by such Lender.
“ Incremental Term Lender ” shall mean a Lender with an Incremental Term Commitment or an outstanding Incremental Term Loan.
“ Incremental Term Loan ” shall mean a Loan made by an Incremental Term Lender to the Borrower pursuant to Section 2.22.
“ Incremental Term Maturity Date ” shall mean, with respect to Incremental Term Loans of any Series, the scheduled date on which such Incremental Term Loans shall become due and payable in full hereunder, as specified in the applicable Incremental Facility Agreement.
“ Indebtedness ” of any Person shall mean, without duplication, (a) all obligations of such Person for borrowed money (including loans) and all redemption obligations of such Person in respect of mandatorily redeemable Preferred Stock, (b) all obligations of such Person evidenced by bonds, debentures, notes or similar instruments, (c) all obligations of such Person under conditional sale or other title retention agreements relating to property or assets purchased by such Person, (d) all obligations of such Person issued or assumed as the deferred purchase price of property or services (other than accrued liabilities and trade liabilities incurred in the ordinary course of business and maturing within 90 days after the incurrence thereof), (e) all Guarantees by such Person of Indebtedness of others, (f) all Capital Lease Obligations of such Person, (g) the principal component of all obligations, contingent or otherwise, of such Person (i) as an account party in respect of letters of credit and (ii) in respect of bankers’ acceptances, (h) the maximum aggregate amount (giving effect to any netting agreements) that such Person would be required to pay under Hedge Agreements if such Hedge Agreements were terminated at the time of determination and (i) all obligations of others secured by (or for which the holder of such obligation has an existing right, contingent or otherwise, to be secured by) any Lien on property owned or acquired by such Person, whether or not the obligations secured thereby have been assumed. The Indebtedness of any Person shall include the Indebtedness of any partnership in which such Person is a general partner, other than to the extent that the instrument or agreement evidencing such Indebtedness expressly limits the liability of such Person in respect thereof.
“ Indemnified Taxes ” shall mean (a) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any obligation of the Borrower under any Loan Document and (b) to the extent not otherwise described in (a), Other Taxes.
“ Indemnitee ” shall have the meaning assigned to such term in Section 9.05(b).
 
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“ Intercreditor Agreement ” shall mean the Intercreditor Agreement, dated as of the Closing Date, among the Loan Parties, the Collateral Agent, the Administrative Agent, the Bond Facility Administrative Agent and each Authorized Representative with respect to any Permitted First Lien Refinancing Debt.
“ Interest Election Request ” shall mean a request by the Borrower to convert or continue a Borrowing in accordance with Section 2.07, which shall be in the form of Exhibit D .
“ Interest Expense ” shall mean, for any period, the sum (without duplication) of (i) all interest, prepayment charges and fees incurred (whether paid or accrued) in respect of any Indebtedness of the Parent and the Restricted Subsidiaries (including imputed interest in respect of Capital Lease Obligations of the Parent and the Restricted Subsidiaries, net payments received or made under interest rate hedge agreements of the Parent and the Restricted Subsidiaries and all fees, commissions and discounts owed by the Parent and the Restricted Subsidiaries with respect to letters of credit and bankers’ acceptance financing) deducted in determining Net Income for such period, together with all interest capitalized or deferred of the Parent and the Restricted Subsidiaries for such period and not deducted in determining Net Income for such period, (ii) all debt discount and expense amortized or required to be amortized in the determination of Net Income for such period and (iii) dividends in respect of Preferred Stock of the Parent and the Restricted Subsidiaries paid during such period.
“ Interest Hedge Lender ” shall mean (a) any Secured Hedge Lender and (b) any counterparty to any Interest Rate Hedge Agreement that, at the time such Interest Rate Hedge Agreement is entered into, (i) has (A) a credit rating of at least BBB+ by S&P and at least A3 by Moody’s and (B) a capital and surplus of at least $1,000,000,000 or (ii) is otherwise reasonably satisfactory to the Administrative Agent.
“ Interest Payment Date ” means (a) with respect to any ABR Loan (other than a Swingline Loan), each Quarterly Date, (b) with respect to any Eurodollar Loan, the last day of each Interest Period therefor and, in the case of any Interest Period for a Eurodollar Loan of more than three months’ duration, each day prior to the last day of such Interest Period that occurs at three month intervals after the first day of such Interest Period and (c) with respect to any Swingline Loan, the day that such Loan is required to be repaid.
“ Interest Period ” shall mean, as to any Eurodollar Borrowing, the period commencing on the date of such Borrowing or on the last day of the immediately preceding Interest Period applicable to such Borrowing, as applicable, and ending on the date that is one, two, three or six months thereafter, or the date any Eurodollar Borrowing is converted to an ABR Borrowing in accordance with Section 2.07 or repaid or prepaid in accordance with Section 2.09, 2.10 or 2.11; provided , however , that, if any Interest Period would end on a day other than a Business Day, such Interest Period shall be extended to the next succeeding Business Day unless such next succeeding Business Day would fall in the next calendar month, in which case such Interest Period shall end on the next preceding Business Day. Interest shall accrue from and including the first day of an Interest Period to but excluding the last day of such Interest Period.
 
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“ Interest Rate Hedge Agreement ” shall mean any interest rate swap, cap, collar or other interest rate hedge agreement entered into between an Interest Hedge Lender and the Borrower for the purpose of hedging the Facilities.
“ Investment ” shall mean, with respect to any Person, (a) any Equity Interests, evidences of Indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of any other Person that are held by such Person, (b) any deposit with, advance, loan or capital contribution to, assumption of Indebtedness of or other extension of credit to, any other Person that are made by such Person (excluding any such advance, loan or extension of credit having a term not exceeding 90 days representing the purchase price of inventory or supplies sold by such Person), or (c) Guarantees of any Indebtedness or other obligations of any other Person that are made by such Person.
“ Issuing Bank ” shall mean (a) Morgan Stanley Bank, N.A. and Deutsche Bank AG New York Branch and (b) each Revolving Lender that shall have become an Issuing Bank hereunder as provided in Section 2.05(j) (other than any Person that shall have ceased to be an Issuing Bank as provided in Section 2.05(k)), each in its capacity as an issuer of Letters of Credit hereunder. Each Issuing Bank may, in its discretion, arrange for one or more Letters of Credit to be issued by Affiliates of such Issuing Bank ( provided that any such Affiliate shall have a credit rating of at least A- by S&P and at least A3 by Moody’s). In such case, the term “Issuing Bank” shall include any such Affiliate with respect to Letters of Credit issued by such Affiliate (it being agreed that such Issuing Bank shall, or shall cause such Affiliate to, comply with the requirements of Section 2.05 with respect to such Letters of Credit).
“ Junior Indebtedness ” shall mean Indebtedness of any Group Member that is (a) secured by Liens that are contractually subordinated to any Lien securing the Secured Obligations, (b) unsecured or (c) Subordinated Indebtedness.
“ knowledge ” shall mean, with respect to any Person, the actual knowledge of a Responsible Officer of such Person.
“ LC Disbursement ” shall mean a payment made by an Issuing Bank pursuant to a Letter of Credit.
“ LC Exposure ” shall mean, at any time, the sum of (a) the aggregate amount of all Letters of Credit that remains available for drawing at such time and (b) the aggregate amount of all LC Disbursements that have not yet been reimbursed by or on behalf of the Borrower at such time. The LC Exposure of any Revolving Lender at any time shall be its Applicable Percentage of the total LC Exposure at such time.
“ Legal Requirements ” shall mean, as to any Person, any requirement under a Permit and any Governmental Rules, in each case applicable to or binding upon such Person or any of its properties or to which such Person or any of its properties is subject.
 
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“ Lender ” shall mean the Persons listed on Schedule 2.01 and any other Person that shall have become a party hereto as a Lender pursuant to an Assignment and Assumption or an Incremental Facility Agreement, other than any such Person that shall have ceased to be a party hereto as a Lender pursuant to an Assignment and Assumption. Unless the context otherwise requires, the term “Lenders” includes the Swingline Lender.
“ Lender Parties ” shall mean the Lenders, the Swingline Lender, the Issuing Banks, the Agents and the Arrangers.
“ Letter of Credit ” shall mean any standby letter of credit issued pursuant to this Agreement, other than any such letter of credit that shall have ceased to be a “Letter of Credit” outstanding hereunder pursuant to Section 9.02.
“ LIBO Rate ” shall mean in relation to any Eurodollar Borrowing:
(a) the applicable Screen Rate; or
(b) (if no Screen Rate is available for the Interest Period of such Eurodollar Borrowing) the interest rate per annum determined by the Administrative Agent to be the average of the rates per annum at which deposits in Dollars are offered for such Interest Period to major banks in the London interbank market in London, England by the Administrative Agent at approximately 11:00 a.m. (London time) on the Quotation Day for such Interest Period.
“ Lien ” shall mean, with respect to any asset, (a) any mortgage, deed of trust, lien, hypothecation, pledge, encumbrance, charge or security interest in or on such asset, (b) the interest of a vendor or a lessor under any conditional sale agreement, capital lease or title retention agreement (or any financing lease having substantially the same economic effect as any of the foregoing) relating to such asset, (c) any shared facilities arrangement and (d) in the case of securities, any purchase option, call or similar right of a third party with respect to such securities.
“ Loan Documents ” shall mean this Agreement, the Incremental Facility Agreements, the Loan Modification Agreements, the Refinancing Facility Agreements, the Guaranty Agreement, the Security Documents, any agreement designating an additional Issuing Bank as contemplated by Section 2.05(j), any promissory note issued under Section 2.09(e), and any other loan or security agreements or letter agreement or similar document, entered into by a Lender Party or any Secured Party, on the one hand, and the Borrower or one or more Loan Parties, on the other hand, in connection with the transactions expressly contemplated by this Agreement. Notwithstanding the foregoing, the Hedge Agreements, the Engagement Letter and the agreements for Treasury Services shall not be Loan Documents.
“ Loan Modification Agreement ” shall mean a Loan Modification Agreement, in form and substance reasonably satisfactory to the Administrative Agent, among the Parent, the Borrower, the Administrative Agent and one or more Accepting Lenders, effecting one or more Permitted Amendments and such other amendments hereto and to the other Loan Documents as are contemplated by Section 2.23.
“ Loan Modification Offer ” shall have the meaning assigned to such term in Section 2.23(a).
 
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“ Loan Parties ” shall mean the Parent, the Borrower and each other Subsidiary Loan
Party.
“ Loans ” shall mean the term loans made by the Lenders to the Borrower pursuant to Section 2.01.
“ Majority in Interest ”, when used in reference to Lenders of any Class, shall mean, at any time, (a) in the case of the Revolving Lenders, Lenders having Revolving Exposures and unused Revolving Commitments representing more than 50% of the sum of the Aggregate Revolving Exposures and the unused Aggregate Revolving Commitment at such time and (b) in the case of the Term Lenders of any Class, Lenders holding outstanding Term Loans of such Class representing more than 50% of all Term Loans of such Class outstanding at such time.
“ Margin Stock ” shall have the meaning assigned to such term in Regulations U and X.
“ Material Adverse Effect ” shall mean a material adverse effect on (i) the assets, liabilities, or condition (financial or otherwise), business or results of operations of the Parent and the Subsidiaries, taken as a whole, (ii) the enforceability or validity of any Loan Document or the enforceability, validity or priority of the Liens created under the Security Documents, or (iii) the rights and remedies of any Agent under the Loan Documents.
“ Material Indebtedness ” shall mean Indebtedness (other than the Loans, Letters of Credit and Guarantees under the Loan Documents) of any one or more of the Group Members in an aggregate principal amount of $10,000,000 or more.
“ Material Subsidiary ” shall mean the Borrower and each other Subsidiary (a) the consolidated total assets of which equal 5.0% or more of the consolidated total assets of the Parent and the Restricted Subsidiaries or (b) the consolidated revenues of which equal 5.0% or more of the consolidated revenues of the Parent and the Restricted Subsidiaries, in each case as of the end of or for the most recent period of four consecutive Fiscal Quarters of the Parent for which financial statements have been delivered pursuant to Section 5.04(a) or 5.04(b) (or, prior to the first delivery of any such financial statements, as of the end of or for the period of four consecutive Fiscal Quarters of the Parent most recently ended prior to the date of this Agreement); provided that if at the end of or for any such most recent period of four consecutive Fiscal Quarters the combined consolidated total assets or combined consolidated revenues of all Subsidiaries that under clauses (a) and (b) above would not constitute Material Subsidiaries shall have exceeded 15.0% of the consolidated total assets of the Parent and the Restricted Subsidiaries or 15.0% of the consolidated revenues of the Parent and the Restricted Subsidiaries, then one or more of such excluded Subsidiaries shall for all purposes of this Agreement be deemed to be Material Subsidiaries in descending order based on the amounts of their consolidated total assets or consolidated revenues, as the case may be, until such excess shall have been eliminated.
“ Maturity Date ” shall mean the Tranche B Term Maturity Date, the Incremental Term Maturity Date with respect to Incremental Term Loans of any Series or the Revolving Maturity Date, as the context requires.
“ Maximum Rate ” shall have the meaning assigned to such term in Section 9.09.
 
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“ Moody ’ s ” shall mean Moody’s Investors Service, Inc.
“ Moore Road Property ” shall mean the 12.0813 acre tract of unimproved Real Property owned by the Borrower and located on Moore Road in Harris County, Texas.
“ Morgan Stanley ” shall have the meaning assigned to such term in the preamble.
“ Mortgage ” shall mean a mortgage, deed of trust, assignment of leases and rents, leasehold mortgage or other security document granting a Lien on any Mortgaged Property to secure the Secured Obligations. Each Mortgage shall be in form and substance reasonably satisfactory to the Collateral Agent.
“ Mortgaged Property ” shall mean (a) each parcel of Real Property owned in fee by a Loan Party, and the improvements thereto, that (together with such improvements) (i) is (A) contiguous to the Sites and (B) material to the business or operations of the Parent and the Restricted Subsidiaries, taken as a whole, or (ii) has a book or fair value (when including such improvements) of $2,000,000 or more and (b) each leasehold interest in Real Property held by a Loan Party to the extent that (i) the terms of the lease agreement or other document creating or evidencing such leasehold interest do not prohibit the granting of a Lien therein or a Loan Party has obtained the requisite consent for the granting of a Lien therein (it being understood that the Loan Parties shall use commercially reasonable efforts to obtain the requisite consent for the granting of a Lien in any leasehold interest of the type referred to in clause (ii) below) and (ii) such leasehold interest is material to the business or operations of the Parent and the Subsidiaries, taken as a whole, and could not readily be replaced with a comparable leasehold interest on terms not materially less favorable to the lessee; provided that the Excluded Real Property shall not constitute Mortgaged Property. For the avoidance of doubt each portion of the Sites owned in fee by a Loan Party and each leasehold interest in the Sites held by a Loan Party shall constitute Mortgaged Properties (other than any portion of the Sites owned in fee by a Loan Party or any leasehold interest in any portion of the Sites held by a Loan Party that, in each case, is expressly included in the definition of “Excluded Property”).
“ Multiemployer Plan ” shall mean a multiemployer plan as defined in Section 4001(a)(3) of ERISA subject to the provisions of Title IV of ERISA and in respect of which any Group Member or any ERISA Affiliate is an “employer” as defined in Section 3(5) of ERISA.
“ Net Income ” shall mean, for any period, cumulative net income earned by the Parent and the Restricted Subsidiaries on a consolidated basis during such period as determined in accordance with GAAP; provided that there shall be excluded (a) the income of any Person (other than the Parent) that is not a consolidated Restricted Subsidiary except to the extent of the amount of cash dividends or similar cash distributions actually paid by such Person to the Parent, the Borrower or, subject to clauses (b) and (c) below, any other consolidated Restricted Subsidiary during such period, (b) the income of, and any amounts referred to in clause (a) above paid to, any consolidated Restricted Subsidiary (other than the Borrower or any other Subsidiary Loan Party) to the extent that, on the date of determination, the declaration or payment of cash dividends or similar cash distributions by such Restricted Subsidiary is not permitted without any prior approval of any Governmental Authority that has not been obtained or is not permitted by the operation of the terms of the Organizational Documents of such Restricted Subsidiary, any
 
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agreement or other instrument binding upon the Parent or any Restricted Subsidiary or any law applicable to the Parent or any Restricted Subsidiary, unless such restrictions with respect to the payment of cash dividends and other similar cash distributions has been legally and effectively waived, and (c) the income or loss of, and any amounts referred to in clause (a) above paid to, any consolidated Restricted Subsidiary that is not wholly- owned by the Parent to the extent such income or loss or such amounts are attributable to the noncontrolling interest in such consolidated Restricted Subsidiary.
“ Net Issuance Proceeds ” shall mean, an amount equal to (a) with respect to any incurrence of any Indebtedness of the Parent, the Borrower or any other Restricted Subsidiary, the cash payments received by the Parent or any of the Restricted Subsidiaries from such incurrence of Indebtedness and (b) with respect to any sale or issuance of Equity Interests in the Parent, the cash payments received by the Parent from such sale or issuance of Equity Interests, in each case, net of underwriting discounts and commissions and other reasonable costs and expenses associated therewith, including reasonable legal fees and expenses.
“ Net Recovery Proceeds ” shall mean, with respect to any Recovery Event, an amount equal to the cash payments received by the Parent or any of the Restricted Subsidiaries from such Recovery Event, net of (i) reasonable costs and expenses associated therewith, including fees and expenses of attorneys, accountants, insurance adjusters, appraisers, environmental consultants, engineers, architects and other professionals and consultants, (ii) any tax liability arising therefrom, and (iii) amounts applied to the repayment of Permitted Debt (other than the Secured Obligations) secured by a Lien permitted under Section 6.01 on the property subject to such Recovery Event.
“ Net Sale Proceeds ” shall mean, with respect to any Asset Sale, an amount equal to the cash payments received by the Parent or any of the Restricted Subsidiaries from such Asset Sale, net of (i) reasonable costs and expenses associated therewith, including fees and expenses of investment bankers, brokers, attorneys, accountants, engineers, environmental consultants and other professionals and consultants, (ii) any tax liability arising therefrom, (iii) any escrow established pursuant to the documents evidencing such Asset Sale to secure any indemnification obligations or adjustments to the purchase price associated with such Asset Sale ( provided that, upon release of such escrow, the amount released shall constitute Net Sale Proceeds) and (iv) amounts applied to the repayment of Permitted Debt (other than the Secured Obligations) secured by a Lien permitted under Section 6.01 on the property Disposed of.
“ Non-Consenting Lender ” shall have the meaning assigned to such term in Section 2.19(c).
“ Non-Defaulting Lender ” shall mean, at any time, any Revolving Lender that is not a Defaulting Lender at such time.
“ Non-U.S. Lender ” shall have the meaning assigned to such term in Section 2.17(e).
 
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“ Obligations ” shall mean all obligations (monetary or otherwise, whether absolute or contingent, matured or unmatured) of any of the Loan Parties arising under or in connection with a Loan Document, including the principal of and premium, if any, and interest (including interest accruing during the pendency of any proceeding under any Debtor Relief Law, whether or not allowed in such proceeding) on the Loans and the LC Disbursements and reimbursement obligations, fees, indemnities, costs, expenses (including all fees, charges and disbursements of counsel to the Administrative Agent, the Collateral Agent, the Arrangers or to any Lender or Issuing Bank that are required to be paid by any of the Loan Parties pursuant hereto) or otherwise with respect to the Loans and the LC Disbursements.
“ Organizational Documents ” shall mean, with respect to any Person, as applicable, its certificate or articles of incorporation or organization, by laws, certificate of partnership, partnership agreement, certificate of formation, articles of organization, limited liability company agreement and/or operating agreement, and all shareholder agreements, voting trusts and similar arrangements applicable to any of such Person’s partnership interests, limited liability company interests or authorized shares of Equity Interests, in each case as amended.
“ Other Connection Taxes ” shall mean, with respect to any Recipient, Taxes imposed as a result of a present or former connection between such Recipient and the jurisdiction imposing such Tax (other than connections arising from such Recipient having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced any Loan Document, or sold or assigned an interest in any Loan or Loan Document).
“ Other Taxes ” shall mean all present or future stamp, court or documentary, intangible, recording, filing or similar Taxes that arise from any payment made under, from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with respect to, any Loan Document, except any such Taxes that are Other Connection Taxes imposed with respect to an assignment (other than an assignment made pursuant to Section 2.19(b)).
“ Parent ” shall have the meaning assigned to such term in the preamble.
“ Participant ” shall have the meaning assigned to such term in Section 9.04(c)(i).
“ Participant Register ” shall have the meaning assigned to such term in Section 9.04(d).
“ PBGC ” shall mean the Pension Benefit Guaranty Corporation referred to and defined in ERISA.
“ Perfection Certificate ” shall have the meaning assigned to such term in the Security Agreement.
“ Perfection Certificate Supplement ” shall have the meaning assigned to such term in the Security Agreement.
“ Permits ” shall mean any and all franchises, licenses, leases, permits, approvals, notifications, certifications, registrations, authorizations, exemptions, qualifications, and other rights, privileges and approvals required under or issued pursuant to any Governmental Rule.
 
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“ Permitted Acquisition ” shall mean any Acquisition by the Borrower or any other Restricted Subsidiary; provided that:
(a) (i) in the case of any purchase or other acquisition of Equity Interests in a Person, such Person (including each subsidiary of such Person) is organized under the laws of the United States of America, any State thereof or the District of Columbia and, upon the consummation of such acquisition, will be a wholly-owned Restricted Subsidiary that is a Domestic Subsidiary (including as a result of a merger or consolidation between any Restricted Subsidiary and such Person) or (ii) in the case of any purchase or other acquisition of other assets, such assets will be owned by the Borrower or a Subsidiary Loan Party;
(b) such Acquisition was not preceded by, or consummated pursuant to, an unsolicited tender offer or proxy contest initiated by or on behalf of the Parent, the Borrower or any other Subsidiary;
(c) all transactions related thereto are consummated in accordance with applicable law;
(d) the business of such Person, or such assets, as the case may be, constitute a business permitted under Section 6.05(b);
(e) with respect to each Acquisition, the Parent, the Borrower and the Restricted Subsidiaries shall take all actions required in order to cause the Collateral and Guarantee Requirement to be satisfied within the time period specified in Section 5.10(a) with respect to each newly created or acquired Subsidiary or assets;
(f) not less than five (5) Business Days prior to the consummation of any Acquisition for which the aggregate consideration paid shall exceed $10,000,000, the Administrative Agent shall have received (i) a description of the material terms of such Acquisition, and (ii) if requested, such financial statements, financial information, material documentation and other material information regarding such Acquisition as the Administrative Agent may reasonably require, in each case, to the extent such documentation and information are available to any Group Member and may be disclosed by any Group Member in a manner that would not violate any confidentiality agreement of such Group Member or applicable Legal Requirements;
(g) the aggregate consideration paid therefor (including, in each case, Indebtedness assumed in connection therewith, all obligations in respect of deferred purchase price (including obligations under any purchase price adjustment but excluding earnout payments) and all other consideration payable in connection therewith (including payment obligations in respect of noncompetition agreements or other arrangements representing acquisition consideration)) shall not exceed 25% of the consolidated total assets of the Parent and the Restricted Subsidiaries immediately prior to giving effect thereto; and
 
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(h) at the time of and immediately after giving effect to any such Acquisition, (i) no Specified Default or Event of Default shall have occurred and be continuing, (ii) the Total Adjusted Net Leverage Ratio shall not exceed the Total Adjusted Net Leverage Ratio set forth in Section 6.14 with respect to the Fiscal Quarter of the Parent most recently ended as of the time of such Acquisition on a pro forma basis, and (iii) the Parent and the Borrower shall have delivered to the Administrative Agent a certificate of a Financial Officer of each of the Parent and the Borrower, in form and substance reasonably satisfactory to the Administrative Agent, certifying that all the requirements set forth in this definition have been satisfied with respect to such purchase or other acquisition, together with reasonably detailed calculations demonstrating satisfaction of the requirements set forth in clauses (g) and (h)(ii) above.
“ Permitted Amendment ” shall mean an amendment to this Agreement and the other Loan Documents, effected in connection with a Loan Modification Offer pursuant to Section 2.23, providing for a modification of the Maturity Date applicable to the Loans and/or Commitments of the Accepting Lenders and, in connection therewith, (a) a modification of the Applicable Margin with respect to the Loans and/or Commitments of the Accepting Lenders and/or (b) a modification of the fees payable to, or the inclusion of new fees to be payable to, the Accepting Lenders.
“ Permitted Credit Agreement Refinancing Debt ” shall mean any Indebtedness of the Borrower, and Guarantees thereof by the Parent and/or any Subsidiary Loan Party; provided that (i) such Indebtedness is in the form of notes, (ii) the stated final maturity of such Indebtedness shall not be earlier than the date that is 180 days after the latest Maturity Date in effect at the time such Indebtedness is incurred, and such stated final maturity shall not be subject to any conditions that could result in such stated final maturity occurring on a date that precedes the date that is 180 days after the latest Maturity Date in effect at the time such Indebtedness is incurred, (iii) such Indebtedness shall not be required to be repaid, prepaid, redeemed, repurchased or defeased, whether on one or more fixed dates, upon the occurrence of one or more events or at the option of any holder thereof (other than customary offers to repurchase upon a change of control, asset sale or event of loss and customary acceleration rights after an event of default) prior to the date 180 days after the latest Maturity Date in effect at the time such Indebtedness is incurred; (iv) such Indebtedness shall not constitute an obligation (including pursuant to a Guarantee) of any Person other than the Loan Parties; and (v) (A) substantially concurrently with the incurrence of such Indebtedness, the Borrower shall repay or prepay then outstanding Term Borrowings of any Class in an aggregate principal amount equal to the aggregate amount of such Indebtedness (less the aggregate amount of accrued and unpaid interest with respect to such outstanding Term Borrowings and any reasonable fees, premium and expenses relating to such refinancing) and (B) any such prepayment of Term Borrowings of any Class shall be applied to reduce the subsequent scheduled repayments of Term Borrowings of such Class to be made pursuant to Section 2.10(a) in the inverse order of maturity and, in the case of a prepayment of Eurodollar Term Borrowings, shall be subject to Section 2.16.
“ Permitted Debt ” shall mean:
(a) Indebtedness incurred under the Loan Documents;
(b) Either:
 
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(i) Indebtedness of the Borrower under the Bond Facility Agreement and the Bond Loan Agreements; provided that (A) such Indebtedness shall not be secured by any Lien on any asset of the Parent or any Subsidiary other than the Collateral and (B) the aggregate principal amount of such Indebtedness at any time shall not exceed the lesser of (1) $225,000,000 and (2) the aggregate outstanding principal amount of the Bonds at such time; or
(ii) if the Indebtedness of the Borrower under the Bond Facility Agreement has been paid in full, and all Guarantees and Liens guaranteeing or securing such Indebtedness and guaranteeing or securing the Indebtedness of the Borrower under the Bond Loan Agreements have been discharged and released, (A) Indebtedness of the Borrower under any reimbursement agreement in respect of letters of credit issued thereunder to support payments of principal of and interest on the Bonds and (B) Indebtedness of the Borrower under the Bond Loan Agreements; provided that (1)(x) the Indebtedness described under clause (A) shall not be secured by any Lien on any asset of the Parent or any Subsidiary other than the Collateral and (y) the Indebtedness described under clause (B) shall not be secured by any Lien on any asset of the Parent or any Subsidiary other than Liens permitted pursuant to clause (h)(xi) of the definition of “Permitted Liens” and (2) the aggregate principal amount of each such Indebtedness at any time shall not exceed the lesser of (x) $225,000,000 and (y) the aggregate outstanding principal amount of the Bonds at such time, in each case, plus six months of accrued interest on the Bonds outstanding at such time;
(c) Indebtedness existing on the date hereof and set forth on Schedule 6.02 and Refinancing Indebtedness in respect thereof;
(d) (i)(A) Permitted First Lien Refinancing Debt and (B) Permitted Second Lien Refinancing Debt, provided that at the time such Indebtedness is incurred, no Default or Event of Default shall have occurred and be continuing or would result therefrom, and (ii) Refinancing Indebtedness in respect thereof;
(e) Indebtedness of any Restricted Subsidiary to the Parent, the Borrower or any other Restricted Subsidiary; provided that (A) such Indebtedness shall not have been transferred to any Person other than the Parent, the Borrower or any other Restricted Subsidiary, (B) any such Indebtedness owing by any Loan Party shall be unsecured and subordinated in right of payment to the Obligations on terms customary for intercompany subordinated Indebtedness, as reasonably determined by the Administrative Agent, (C) any such Indebtedness owing to any Loan Party shall be evidenced by a promissory note that shall have been pledged pursuant to the Security Agreement and (D) any such Indebtedness owing by any Restricted Subsidiary that is not a Loan Party to any Loan Party shall be incurred in compliance with Section 6.07;
(f) Guarantees incurred in compliance with Section 6.07(e);
(g) Indebtedness incurred under Hedge Agreements not otherwise prohibited by Section 6.12;
 
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(h) Indebtedness of the Borrower or any other Restricted Subsidiary (A) incurred to finance the acquisition, construction or improvement of any fixed or capital assets, including Capital Lease Obligations, provided that such Indebtedness is incurred prior to or within 90 days after such acquisition or the completion of such construction or improvement and the principal amount of such Indebtedness does not exceed the cost of acquiring, constructing or improving such fixed or capital assets or (B) assumed in connection with the acquisition of any fixed or capital assets, and any Refinancing Indebtedness in respect of any of the foregoing; provided that the aggregate principal amount of Indebtedness permitted by this clause (h) shall not exceed $20,000,000 at any time outstanding;
(i) Indebtedness of any Person that becomes a Subsidiary (or of any Person not previously a Subsidiary that is merged or consolidated with or into a Subsidiary in a transaction permitted hereunder) after the date hereof, or Indebtedness of any Person that is assumed by any Subsidiary in connection with an acquisition of assets by such Subsidiary in a Permitted Acquisition, provided that (A) such Indebtedness exists at the time such Person becomes a Subsidiary (or is so merged or consolidated) or such assets are acquired and is not created in contemplation of or in connection with such Person becoming a Subsidiary (or such merger or consolidation) or such assets being acquired and (B) neither the Parent nor any Restricted Subsidiary (other than such Person or the Subsidiary with which such Person is merged or consolidated or the Person that so assumes such Person’s Indebtedness) shall Guarantee or otherwise become liable for the payment of such Indebtedness, and Refinancing Indebtedness in respect of any of the foregoing; provided that the aggregate principal amount of Indebtedness permitted by this clause (i) shall not exceed $35,000,000 at any time outstanding;
(j) Indebtedness incurred in the ordinary course of business and owed in respect of any overdrafts and related liabilities arising from treasury, depository and cash management services or in connection with any automated clearing-house transfers of funds;
(k) Indebtedness relating to premium financing arrangements for property and casualty insurance plans and health and welfare benefit plans (including health and workers compensation insurance, employment practices liability insurance and directors and officers insurance), in each case incurred in the ordinary course of business;
(l) Indebtedness in respect of letters of credit, bankers acceptances, completion guarantees and similar instruments issued for the account of the Borrower or any other Restricted Subsidiary in the ordinary course of business supporting obligations under (i) workers’ compensation, unemployment insurance and other social security laws and (ii) bids, trade contracts, leases, statutory obligations, surety and appeal bonds, performance bonds and obligations of a like nature and, in each case, not in connection with the borrowing of money or obtaining of advances;
(m) Indebtedness consisting of advances or deposits received by the Borrower or any other Restricted Subsidiary from customers in the ordinary course of business;
 
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(n) Indebtedness of the Borrower or any other Restricted Subsidiary in the form of purchase price adjustments (including in respect of working capital), earnouts, deferred compensation, indemnification or other arrangements representing acquisition consideration or deferred payments of a similar nature incurred in connection with any Permitted Acquisition or other Investment permitted under Section 6.07 or any Disposition permitted under Section 6.04;
(o) (i)(A) Subordinated Third Party Indebtedness in an aggregate principal amount not exceeding $25,000,000 at any time outstanding and (B) Subordinated Affiliate Indebtedness of the Borrower or any other Restricted Subsidiary, provided that, in the case of this clause (i), at the time such Indebtedness is incurred, no Default or Event of Default shall have occurred and be continuing or would result therefrom, and (ii) Refinancing Indebtedness in respect of Subordinated Third Party Indebtedness; and
(p) other Indebtedness of the Borrower or any Restricted Subsidiary in an aggregate principal amount not exceeding $25,000,000 at any time outstanding.
“ Permitted First Lien Refinancing Debt ” shall mean Permitted Credit Agreement Refinancing Debt that is secured by Liens on the Collateral on a pari passu basis (but without regard to the control of remedies and subject to Section 2.01 of the Intercreditor Agreement) with the Secured Obligations; provided that (a) such Indebtedness is not secured by any Lien on any asset of the Parent or any Subsidiary other than the Collateral, (b) the Liens securing such Indebtedness are created under and evidenced by the Security Agreement and the other Security Documents and (c) the Authorized Representative with respect to such Indebtedness shall have become party to the Intercreditor Agreement.
“ Permitted Incremental Amount ” shall mean, at any time, (a)(i) in the case of Incremental Revolving Commitments, the Permitted Incremental Revolving Amount and (ii) in the case of Incremental Term Commitments, the Permitted Incremental Term Amount, plus (b) the maximum amount of Total Adjusted Net Indebtedness that could be incurred at such time without causing the Total Adjusted Net Leverage Ratio to exceed 5.00 to 1.00 on a pro forma basis (as if any Incremental Revolving Commitments were fully drawn).
“ Permitted Incremental Revolving Amount ” shall mean, at any time, $25,000,000, less the aggregate amount of Incremental Revolving Commitments established prior to such time based on usage of the Permitted Incremental Revolving Amount.
“ Permitted Incremental Term Amount ” shall mean, at any time, $100,000,000, less the aggregate amount of Incremental Term Commitments established prior to such time based on usage of the Permitted Incremental Term Amount.
“ Permitted Investments ” shall mean:
(a) obligations backed by the full faith and credit of the United States Government (whether issued by the United States Government or an agency thereof), and obligations guaranteed by the United States Government;
 
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(b) bonds, debentures, notes or similar debt instruments issued by a state or municipality given an “A” rating or better by S&P or an equivalent rating by another nationally recognized credit rating agency and maturing not more than one year from the date acquired;
(c) certificates of deposit issued by a bank given an “A” rating or better by S&P or an equivalent rating by another nationally recognized credit rating agency and maturing not more than one year from the date acquired;
(d) readily marketable commercial paper rated at the time of acquisition as A-1 or better by S&P or Prime l or better by Moody’s and maturing not more than 270 days from the date of creation thereof;
(e) bankers’ acceptances which mature within 180 days; and
(f) money market mutual funds that (i) are denominated in U.S. Dollars, (ii) have average asset maturities not in excess of 365 days, (iii) have total invested assets in excess of $1,000,000,000 and (iv) invest exclusively in Permitted Investments described in clauses (a) through (e) above.
“ Permitted Liens ” shall mean:
(a) as of the Closing Date only, the Terminated Liens;
(b) the Liens of the Secured Parties as provided in the Security Documents;
(c) Liens on the Collateral securing Indebtedness permitted pursuant to clause (d) of the definition of “Permitted Debt”;
(d) any Lien on any asset of the Parent, the Borrower or any other Restricted Subsidiary existing on the date hereof and set forth on Schedule 6.01 ; provided that (i) such Lien shall not apply to any other asset of the Parent, the Borrower or any other Restricted Subsidiary and (ii) such Lien shall secure only those obligations that it secures on the date hereof and any extensions, renewals and refinancings thereof that (A) do not increase the outstanding principal amount thereof and (B) in the case of any such obligations constituting Indebtedness, that are permitted under Section 6.02 as Refinancing Indebtedness in respect thereof;
(e) Liens for taxes, assessments or other governmental levies or charges which are not yet due or which are being contested in good faith by the Parent, the Borrower or any other Restricted Subsidiary, as the case may be, and for which adequate reserves have been taken in accordance with GAAP;
(f) any attachment or judgment Lien in respect of judgments that do not constitute an Event of Default under Section 7.01(i);
 
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(g) banker’s liens, rights of setoff or similar rights and remedies as to deposit accounts or other funds maintained with depository institutions; provided that such deposit accounts or funds are not established or deposited for the purpose of providing collateral for any Indebtedness and are not subject to restrictions on access by the Parent or any Restricted Subsidiary in excess of those required by applicable banking regulations;
(h) solely with respect to the assets of the Borrower or any other Restricted Subsidiary:
(i) any Lien existing on any asset prior to the acquisition thereof by the Borrower or any other Restricted Subsidiary or existing on any asset of any Person that becomes a Restricted Subsidiary (or of any Person not previously a Restricted Subsidiary that is merged or consolidated with or into a Restricted Subsidiary in a transaction permitted hereunder) after the date hereof prior to the time such Person becomes a Restricted Subsidiary (or is so merged or consolidated); provided that (A) such Lien is not created in contemplation of or in connection with such acquisition or such Person becoming a Restricted Subsidiary (or such merger or consolidation), (B) such Lien shall not apply to any other asset of the Parent, the Borrower or any other Restricted Subsidiary (other than, in the case of any such merger or consolidation, the assets of any Restricted Subsidiary that is a party thereto) and (C) such Lien shall secure only those obligations that it secures on the date of such acquisition or the date such Person becomes a Restricted Subsidiary (or is so merged or consolidated), and any extensions, renewals and refinancings thereof that (1) do not increase the outstanding principal amount thereof and (2) in the case of any such obligations constituting Indebtedness, that are permitted under Section 6.02 as Refinancing Indebtedness in respect thereof;
(ii) Liens on fixed or capital assets acquired, constructed or improved by the Borrower or any other Restricted Subsidiary; provided that (A) such Liens secure only Indebtedness permitted by clause (h) of the definition of “Permitted Debt” and obligations relating thereto not constituting Indebtedness and (B) such Liens shall not apply to any other asset of the Parent, the Borrower or any other Restricted Subsidiary (other than the proceeds and products thereof); provided further that in the event purchase money obligations are owed to any Person with respect to financing of more than one purchase of any fixed or capital assets, such Liens may secure all such purchase money obligations and may apply to all such fixed or capital assets financed by such Person;
(iii) statutory Liens of landlords and Liens of carriers, contractors, warehousemen, mechanics and materialmen and other like Liens incurred in the ordinary course of business which are not overdue for a period of 30 days or are being contested in good faith by the Borrower or any of its Restricted Subsidiaries and for which adequate reserves have been taken in accordance with GAAP;
 
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(iv) Liens (other than any Lien imposed by ERISA) incurred, or deposits made, in the ordinary course of business (A) in connection with workers’ compensation, unemployment insurance, old age benefit and other types of social security, (B) to secure (or to obtain letters of credit that secure) the performance of tenders, statutory obligations, surety bonds, appeal bonds, bids, leases (other than Capital Lease Obligations), performance bonds, purchase, construction or sales contracts and other similar obligations or (C) otherwise to satisfy statutory or legal obligations; provided that, in each case, such Liens (1) were not incurred or made in connection with the incurrence or maintenance of Indebtedness, the borrowing of money or the obtaining of advance or credit and (2) do not, in the aggregate, materially detract from the value of the property or assets so encumbered or materially impair the use thereof in the operation of the business of the Borrower or its Restricted Subsidiaries;
(v) leases or subleases granted to others, easements, rights-of-way, licenses, reservations, servitudes, permits, conditions, covenants, rights of others, restrictions, oil, gas and other mineral interests, royalty interests and leases, minor defects, exceptions or irregularities in title, encroachments, protrusions and other similar encumbrances or exceptions to title which do not interfere in any material respect with the ordinary course of business of the Borrower and the other Restricted Subsidiaries, taken as a whole;
(vi) with respect to any leasehold Real Property of the Borrower or any other Restricted Subsidiary, the terms and provisions of any lease or other instrument creating or evidencing such leasehold ( provided that such terms and provisions are customary for leases and instruments of such type);
(vii) with respect to any Real Property of the Borrower or any other Restricted Subsidiaries held in the form of an easement, right-of-way or similar such interest or estate, the terms and provisions of any easement, right of way grant, or other instrument creating or evidencing such easement, right-of-way or similar such interest or estate ( provided that such terms and provisions are customary for agreements and instruments of such type);
(viii) zoning, building codes, and other land use ordinances, variances, conditional use permits, entitlements and similar regulations, permits, approvals and conditions applicable to any Real Property;
(ix) Liens not created by the Borrower or any other Restricted Subsidiaries that affect the underlying fee interest of any Real Property leased by the Borrower or any Restricted Subsidiary, including master leases or ground leases and subordination or similar agreements;
(x) matters disclosed in any policy of title insurance insuring the Lien of any Mortgage (whether issued as of the Closing Date or issued with respect to any Real Property that is acquired or otherwise becomes a Mortgaged Property after the Closing Date) delivered to and accepted by the Collateral Agent and the Administrative Agent in accordance with the Collateral and Guarantee Requirement, but excluding any standard or pre-printed title exceptions in any promulgated form of such policy of title insurance pursuant to applicable Governmental Rules, and further excluding any so-called “blanket” or similar exceptions included in any such policy of title insurance pursuant to applicable Governmental Rules;
 
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(xi) Liens on project funds and project accounts as described in, and to secure, the Borrower’s obligations under any Bond Loan Agreement;
(xii) in connection with the Disposition of any Equity Interests or other assets in a transaction permitted by Section 6.04, customary rights and restrictions contained in merger agreements, stock or asset purchase agreements and similar agreements in respect of such Disposition pending the completion thereof;
(xiii) Liens solely on any cash earnest money deposits, escrow arrangements or similar arrangements made in connection with any letter of intent or purchase agreement for a Permitted Acquisition or other transaction permitted hereunder;
(xiv) in the case of (A) any Restricted Subsidiary that is not a wholly-owned Restricted Subsidiary or (B) the Equity Interests in any Person that is not a Restricted Subsidiary, any encumbrance or restriction, including any options, put and call arrangements, rights of first refusal and similar rights, set forth in the Organizational Documents of such Restricted Subsidiary or such other Person or any related joint venture, shareholders’ or similar agreement;
(xv) Liens arising by virtue of any precautionary Uniform Commercial Code financing statement filings in respect of leases entered into in the ordinary course of business;
(xvi) Liens on Equity Interests of any Unrestricted Subsidiary or any Equity Interests owned by a Loan Party in any Person that is not a Subsidiary;
(xvii) Liens on cash and Permitted Investments securing obligations under Hedge Agreements permitted under Section 6.12 in an aggregate amount not to exceed $15,000,000 at any time outstanding; and
(xviii) other Liens securing Indebtedness or other obligations in an aggregate principal amount not to exceed $7,500,000 at any time outstanding.
“ Permitted Second Lien Refinancing Debt ” shall mean Permitted Credit Agreement Refinancing Debt that is secured by Liens on the Collateral on a second lien, subordinated basis to the Secured Obligations; provided that (a) such Indebtedness is not secured by any Lien on any asset of the Parent or any Subsidiary other than the Collateral, (b) the security agreements relating to such Indebtedness are substantially the same as the Security Documents (with such differences as are reasonably satisfactory to the Collateral Agent and the Administrative Agent) and (c) the Authorized Representative with respect to such Indebtedness shall have become party to the Second Lien Intercreditor Agreement.
 
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“ Person ” shall mean any natural person, corporation, business trust, joint venture, association, company, partnership, limited liability company or government, individual or family trusts, or any agency or political subdivision thereof.
“ Pipelines ” shall mean the approximately 10-mile pipeline which travels south-westerly from the Terminal Storage Facility and connects the Terminal Storage Facility to Magellan Speed Junction.
“ Plan ” shall mean any employee pension benefit plan subject to the provisions of Title IV of ERISA or Section 412 or 430 of the Code or Section 302 or 303 of ERISA and in respect of which the Borrower or any ERISA Affiliate is (or if such plan were terminated would under Section 4069 of ERISA be deemed to be) an “employer” as defined in Section 3(5) of ERISA.
“ Platform ” shall have the meaning assigned to such term in Section 9.16(b)(i).
“ Port of Houston ” shall mean the Port of Houston Authority of Harris County, Texas.
“ Preferred Stock ” shall mean any class of capital stock of a Person that is preferred over any other class of capital stock (or similar equity interests) of such Person as to the payment of dividends or the payment of any amount upon liquidation or dissolution of such Person.
“ Private Side Information ” shall mean any information with respect to the Parent, the Borrower, any other Subsidiary or any of the securities of any of the foregoing that is not Public Side Information.
“ Private Side Lender Representatives ” shall mean, with respect to any Lender, representatives of such Lender that are not Public Side Lender Representatives.
“ Public Side Information ” shall mean information with respect to the Parent, the Borrower, any other Subsidiary or any of the securities of any of the foregoing that (a) is publicly available, (b) is not material with respect to the Parent, the Borrower, any other Subsidiary or any of the securities of any of the foregoing for purposes of United States federal and state securities laws or (c) constitutes information of a type that would be publicly available if the Parent or the Borrower was a public reporting company (as reasonably determined by the Parent and the Borrower).
“ Public Side Lender Representatives ” shall mean, with respect to any Lender, representatives of such Lender that do not wish to receive Private Side Information.
“ Quarterly Date ” shall mean the last Business Day of each March, June, September and December.
“ Quotation Day ” shall mean, in relation to any period for which an interest rate is to be determined, two Business Days before the first day of such period.
“ Real Property ” of any Person shall mean all right, title and interest of such Person in and to any and all parcels of real property owned, leased, licensed or operated by such Person together with all improvements and appurtenant fixtures, equipment, personal property, easements and other property and rights incidental to the ownership, lease or operation thereof, including, with respect to the Borrower, the Sites.
 
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“ Recipient ” shall mean (a) the Administrative Agent, (b) any Lender and (c) any Issuing Bank, as applicable.
“ Recovery Event ” shall mean any settlement of or payment in respect of any property or casualty insurance claim or any condemnation proceeding relating to any asset of any of the Group Members, but excluding all identifiable amounts constituting compensation for lost earnings or revenues.
“ Refinancing Commitment ” shall mean a Refinancing Revolving Commitment or a Refinancing Term Commitment.
“ Refinancing Facility Agreement ” shall mean a Refinancing Facility Agreement, in form and substance reasonably satisfactory to the Administrative Agent, among the Parent, the Borrower, the Administrative Agent and one or more Refinancing Lenders, establishing Refinancing Commitments and effecting such other amendments hereto and to the other Loan Documents as are contemplated by Section 2.24.
“ Refinancing Indebtedness ” shall mean, in respect of any Indebtedness (the “ Original Indebtedness ”), any Indebtedness that extends, renews or refinances such Original Indebtedness (or any Refinancing Indebtedness in respect thereof); provided that (a) the principal amount of such Refinancing Indebtedness shall not exceed the principal amount of such Original Indebtedness except by an amount no greater than accrued and unpaid interest with respect to such Original Indebtedness and any reasonable fees, premium and expenses relating to such extension, renewal or refinancing; (b) the stated final maturity of such Refinancing Indebtedness shall not be earlier than that of such Original Indebtedness, and such stated final maturity shall not be subject to any conditions that could result in such stated final maturity occurring on a date that precedes the stated final maturity of such Original Indebtedness; (c) such Refinancing Indebtedness shall not be required to be repaid, prepaid, redeemed, repurchased or defeased, whether on one or more fixed dates, upon the occurrence of one or more events or at the option of any holder thereof (except, in each case, upon the occurrence of an event of default or a change in control or as and to the extent such repayment, prepayment, redemption, repurchase or defeasance would have been required pursuant to the terms of such Original Indebtedness) prior to the earlier of (i) the maturity of such Original Indebtedness and (ii) the date that is 180 days after the latest Maturity Date in effect on the date of such extension, renewal or refinancing, provided that, notwithstanding the foregoing, scheduled amortization payments (however denominated) of such Refinancing Indebtedness shall be permitted so long as the weighted average life to maturity of such Refinancing Indebtedness shall be longer than the shorter of (x) the weighted average life to maturity of such Original Indebtedness remaining as of the date of such extension, renewal or refinancing and (y) the weighted average life to maturity of each Class of the Term Loans remaining as of the date of such extension, renewal or refinancing; (d) such Refinancing Indebtedness shall not constitute an obligation (including pursuant to a Guarantee) of any Subsidiary that shall not have been (or, in the case of after-acquired Subsidiaries, shall not have been required to become) an obligor in respect of such Original Indebtedness, and shall not constitute an obligation of the Parent if the Parent shall not have been
 
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an obligor in respect of such Original Indebtedness, and, in each case, shall constitute an obligation of such Subsidiary or of the Parent only to the extent of their obligations in respect of such Original Indebtedness; (e) if such Original Indebtedness shall have been subordinated to the Obligations, such Refinancing Indebtedness shall also be subordinated to the Obligations on terms not less favorable in any material respect to the Lenders; (f) such Refinancing Indebtedness shall not be secured by any Lien on any asset other than the assets that secured such Original Indebtedness (or would have been required to secure such Original Indebtedness pursuant to the terms thereof) or, in the event Liens securing such Original Indebtedness shall have been contractually subordinated to any Lien securing the Secured Obligations, by any Lien that shall not have been contractually subordinated to at least the same extent and (g) in the event that the Authorized Representative with respect to such Original Indebtedness shall have been party to the Intercreditor Agreement or the Second Lien Intercreditor Agreement, then the Authorized Representative with respect to such Refinancing Indebtedness shall have become party to the Intercreditor Agreement or the Second Lien Intercreditor Agreement, as the case may be.
“ Refinancing Lenders ” shall mean the Refinancing Revolving Lenders and the Refinancing Term Lenders.
“ Refinancing Loans ” shall mean the Refinancing Revolving Loans and the Refinancing Term Loans.
“ Refinancing Revolving Commitments ” shall have the meaning assigned to such term in Section 2.24(a).
“ Refinancing Revolving Lender ” shall have the meaning assigned to such term in Section 2.24(a).
“ Refinancing Revolving Loans ” shall have the meaning assigned to such term in Section 2.24(a).
“ Refinancing Term Commitments ” shall have the meaning assigned to such term in Section 2.24(a).
“ Refinancing Term Lender ” shall have the meaning assigned to such term in Section 2.24(a).
“ Refinancing Term Loans ” shall have the meaning assigned to such term in Section 2.24(a).
“ Register ” shall have the meaning assigned to such term in Section 2.09(c).
“ Regulation H ” shall have the meaning assigned to such term in the definition of “Collateral and Guarantee Requirement.”
“ Regulation U ” shall mean Regulation U of the Board as from time to time in effect and all official rulings and interpretations thereunder or thereof.
 
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“ Regulation X ” shall mean Regulation X of the Board as from time to time in effect and all official rulings and interpretations thereunder or thereof.
“ Related Parties ” shall mean, with respect to any specified Person, such Person’s Affiliates and the respective directors, trustees, officers, employees, agents and advisors of such Person and such Person’s Affiliates.
“ Release ” shall mean any placing, spilling, leaking, seepage, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, disposing or depositing or migrating in, onto or through the Environment.
“ Reportable Event ” shall mean 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.
“ Repricing Transaction ” shall have the meaning assigned to such term in Section 2.11(c).
“ Required Lenders ” shall mean, at any time, Lenders having Term Loans, Revolving Exposures and unused Commitments representing more than 50% of the sum of the outstanding Term Loans, Aggregate Revolving Exposure and unused Commitments at such time. For purposes of this definition, (a) the Loans and unused Commitments of any Defaulting Lender shall be disregarded in determining the Required Lenders at any time and (b) the Term Loans and unused Term Commitments of any Affiliated Lender shall be disregarded in determining the Required Lenders at any time.
“ Responsible Officer ” of any Person shall mean any duly appointed and authorized chief executive, president, vice president, treasurer or secretary of such Person and any other officer or similar official thereof responsible for the administration of the obligations of such Person in respect of this Agreement, in each case, whose signatures and incumbency shall have been certified to the Administrative Agent and the Lenders pursuant to Section 4.01(a)(iii) or pursuant to a certificate delivered to the Administrative Agent after the Closing Date in form and substance satisfactory to the Administrative Agent.
“ Restricted ” shall means, when used in reference to cash or Permitted Investments of any Person, that such cash or Permitted Investments (a) appear (or would be required to appear) as “restricted” on a consolidated balance sheet of such Person prepared in accordance with GAAP (unless such classification results from any Lien referred to in the parenthetical set forth in clause (b) below), (b) are controlled by or subject to any Lien or other preferential arrangement in favor of any creditor (including any counterparty under a Hedge Agreement) (other than (i) Liens created under the Security Documents and (ii) Liens permitted pursuant to clause (c) or (g) of the definition of “Permitted Liens”) or (c) are not otherwise generally available for use by such Person due to contractual requirements or Legal Requirements.
“ Restricted Payment ” shall mean any dividend or other distribution (whether in cash, securities or other property) on any Equity Interests in the Parent, the Borrower or any other Restricted Subsidiary, or any payment (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, defeasance, retirement, acquisition, cancellation, repayment or termination of, or any other return of capital with respect to, any Equity Interests in the Parent, the Borrower or any other Restricted Subsidiary or any option, warrant or other right to acquire any such Equity Interest in the Parent, the Borrower or any other Restricted Subsidiary.
 
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“ Restricted Subsidiaries ” shall mean (a) the Borrower and (b) the other Subsidiaries other than the Unrestricted Subsidiaries; provided that upon any Unrestricted Subsidiary ceasing to be an Unrestricted Subsidiary, such Subsidiary shall be a “Restricted Subsidiary”.
“ Revolving Availability Period ” shall mean the period from and including the Closing Date to but excluding the earlier of (a) the Revolving Maturity Date, (b) the date of termination of the Revolving Commitments and (c) for purposes of Section 2.05(a), the date that is seven days prior to the Revolving Maturity Date.
“ Revolving Commitment ” shall mean, with respect to each Lender, the commitment, if any, of such Lender to make Revolving Loans and to acquire participations in Letters of Credit and Swingline Loans hereunder, expressed as an amount representing the maximum aggregate permitted amount of the outstanding principal amount of such Lender’s Revolving Loans, as such commitment may be (a) reduced from time to time pursuant to Section 2.08, (b) increased from time to time pursuant to Section 2.22 and (c) reduced or increased from time to time pursuant to assignments by or to such Lender pursuant to Section 9.04. The initial amount of each Lender’s Revolving Commitment is set forth on Schedule 2.01 , or in the Assignment and Assumption or Incremental Facility Agreement pursuant to which such Lender shall have assumed its Revolving Commitment, as applicable. The initial aggregate amount of the Lenders’ Revolving Commitments is $75,000,000.
“ Revolving Exposure ” shall mean, with respect to any Lender at any time, the sum of the outstanding principal amount of such Lender’s Revolving Loans and such Lender’s LC Exposure and Swingline Exposure at such time.
“ Revolving Facility ” shall mean the Revolving Commitments and the Revolving Loans made hereunder.
“ Revolving Lender ” shall mean a Lender with a Revolving Commitment or Revolving Exposure.
“ Revolving Loans ” shall mean a Loan made pursuant to clause (b) of Section 2.01.
“ Revolving Maturity Date ” shall mean the fifth anniversary of the Closing Date.
“ S&P ” shall mean Standard & Poor’s Ratings Group, Inc.
“ Sanctions ” shall have the meaning assigned to such term in Section 3.09(d)(i).
“ Screen Rate ” shall mean, in relation to the LIBO Rate, the rate per annum determined by the Administrative Agent at approximately 11:00 a.m., London time, on the Quotation Day for the relevant Interest Period by reference to the Reuters Screen LIBOR01 for deposits in Dollars (or such other comparable page as may, in the opinion of the Administrative Agent, replace such page for the purpose of displaying such rates) for a period equal to such Interest Period.
 
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“ Second Lien Intercreditor Agreement ” shall mean an intercreditor agreement among the Loan Parties, the Collateral Agent and each Authorized Representative with respect to any Permitted Second Lien Refinancing Debt, in the form of Exhibit K .
“ Secured Hedge Agreement ” shall mean any Hedge Agreement entered into between a Secured Hedge Lender and any Loan Party.
“ Secured Hedge Lender ” shall mean any counterparty to any Hedge Agreement, if and to the extent that (a) such party was (i) an Arranger, an Agent or an Affiliate of any of the foregoing under this Agreement as of the Closing Date or at the time such Hedge Agreement was entered into or (ii) a Lender or an Affiliate of a Lender at the time such Hedge Agreement was entered into and (b) such counterparty executes a Secured Hedge/Treasury Lender Joinder Agreement and thereby becomes a Secured Party under this Agreement, the Security Documents (including the Intercreditor Agreement) and the Guaranty Agreement, provided , however that such Secured Hedge Lender need execute only one Secured Hedge/Treasury Lender Joinder Agreement for any ISDA or other master agreement governing one or more Hedge Agreements.
“ Secured Hedge/Treasury Lender Joinder Agreement ” shall have the meaning assigned to such term in the Security Agreement.
“ Secured Obligations ” shall have the meaning assigned to such term in the Security Agreement.
“ Secured Parties ” shall have the meaning assigned to such term in the Security Agreement.
“ Secured Treasury Lender ” shall mean any provider of any Treasury Services, if and to the extent that (a) such provider was (i) an Arranger, an Agent or an Affiliate of any of the foregoing under this Agreement as of the Closing Date or at the time such Treasury Services were provided or (ii) a Lender or an Affiliate of a Lender at the time such Treasury Services were provided into and (b) such provider executes a Secured Hedge/Treasury Lender Joinder Agreement and thereby becomes a Secured Party under this Agreement, the Security Documents (including the Intercreditor Agreement) and the Guaranty Agreement.
“ Securities Act ” shall mean the Securities Act of 1933, as amended.
“ Security Agreement ” shall mean the Pledge and Security Agreement, dated as of the Closing Date, among the Loan Parties and the Collateral Agent.
“ Security Documents ” shall mean the Security Agreement, the Mortgages, the Control Agreements, the Intercreditor Agreement and all other instruments and documents executed and delivered pursuant to any of the foregoing or pursuant to Section 5.10, 5.11 or 5.12.
“ Series ” shall have the meaning assigned to such term in Section 2.22(b).
“ Sites ” shall mean each parcel of land on which any portion of the Terminal Storage Facility is located.
 
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“ Specified Default ” shall mean any event or condition that upon notice, lapse of time or both would constitute an Event of Default under clause (b), (c), (g) or (h) of Section 7.01.
“ Specified EBITDA Adjustment ” shall mean, for any period of four consecutive Fiscal Quarters of the Parent, (a) the item described in clause (a)(x) of the definition of “EBITDA” and included in the calculation of EBITDA for such period and (b) any cost savings and synergies referred to in clause (ii) of Section 1.02(j) included in the calculation of EBITDA for such period.
“ Specified Equity Contribution ” shall have the meaning assigned to such term in Section 7.04.
“ Specified Redemption Amount ” shall mean, with respect to any Net Recovery Proceeds or Net Sale Proceeds, the product of (a) the amount of such Net Recovery Proceeds or Net Sale Proceeds, as applicable, multiplied by (b) a fraction, (i) the numerator of which is the aggregate outstanding principal amount of the Permitted First Lien Refinancing Debt and (ii) the denominator of which is the sum of (A) the aggregate outstanding principal amount of the Permitted First Lien Refinancing Debt and (B) the aggregate outstanding principal amount of the Term Loans.
“ Specified Total Adjusted Net Leverage Ratio ” shall mean 5.00 to 1.00.
“ Specified Transaction ” shall mean (a) an Acquisition, (b) a Divestiture or (c) the designation of any Subsidiary as an Unrestricted Subsidiary pursuant to Section 5.17.
“ Sponsor ” shall mean Alinda Capital Partners Ltd.; provided that, solely for purposes of its use in the definition of “Change of Control”, “ Sponsor ” shall mean, collectively, Alinda Capital Partners Ltd., the Sponsor Funds, Alinda Infrastructure Fund I, L.P., Alinda Infrastructure Parallel Fund I, L.P., Alinda Infrastructure Parallel Fund I-A, L.P. and each other fund formed after the Closing Date that is Controlled and managed by Alinda Capital Partners Ltd. or managed by an Affiliate of Alinda Capital Partners Ltd. that is principally engaged in the business of managing private investment funds.
“ Sponsor Funds ” shall mean, collectively, Alinda Infrastructure Fund II, L.P., a Delaware limited partnership, and Alinda Infrastructure Parallel Fund II, L.P., a Cayman Islands exempted limited partnership.
“ Statutory Reserves ” shall mean a fraction (expressed as a decimal), the numerator of which is the number one and the denominator of which is the number one minus the aggregate of the maximum reserve percentages (including any marginal, special, emergency or supplemental reserves) expressed as a decimal established by the Board and any other banking authority, domestic or foreign, to which the Administrative Agent or any Lender (including any branch, Affiliate or other fronting office making or holding a Loan) is subject for eurocurrency funding (currently referred to as “Eurocurrency Liabilities” in Regulation D of the Board). Eurodollar Loans shall be deemed to constitute eurocurrency funding and to be subject to such reserve requirements without benefit of or credit for proration, exemptions or offsets that may be available from time to time to any Lender under such Regulation D or any comparable regulation. Statutory Reserves shall be adjusted automatically on and as of the effective date of any change in any reserve percentage.
 
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“ Storage Contracts ” shall mean each of the agreements listed on Schedule 1.01 and each other fuel oil storage contract or agreement for the provision by the Borrower or any other Restricted Subsidiary of fuel oil storage capacity at the Terminal Storage Facility, entered into by, or assigned to, the Borrower or any other Restricted Subsidiary.
“ Subordinated Affiliate Indebtedness ” shall mean any Indebtedness of the Borrower or any Restricted Subsidiary thereof that (a) is owed to any Person that is an Affiliate of the Borrower or any Restricted Subsidiary thereof and (b) satisfies the Subordinated Indebtedness Requirement.
“ Subordinated Indebtedness ” of any Person shall mean any Indebtedness of such Person that is subordinated in right of payment to any other Indebtedness of such Person (including, for the avoidance of doubt, Subordinated Affiliate Indebtedness and Subordinated Third Party Indebtedness).
“ Subordinated Indebtedness Requirement ” shall mean, with respect to any Indebtedness, the requirement that (a) such Indebtedness is subordinated in right of payment to the Obligations on terms and conditions reasonably satisfactory to the Administrative Agent, (b) such Indebtedness is unsecured, (c) the stated final maturity of such Indebtedness is not earlier than the date that is 180 days after the latest Maturity Date in effect at the time such Indebtedness is incurred, and such stated final maturity is not subject to any conditions that could result in such stated final maturity occurring on a date that precedes the date that is 180 days after the latest Maturity Date in effect at the time such Indebtedness is incurred, (d) such Indebtedness is not required to be amortized, repaid, prepaid, redeemed, repurchased or defeased, whether on one or more fixed dates, upon the occurrence of one or more events or at the option of any holder thereof (other than customary offers to repurchase upon a change of control, asset sale or event of loss and customary acceleration rights after an event of default) prior to the date 180 days after the latest Maturity Date in effect at the time such Indebtedness is incurred, (e) such Indebtedness does not constitute an obligation (including pursuant to a Guarantee) of any Person other than the Loan Parties and (f) such Indebtedness contains terms and conditions (excluding pricing, premiums and optional prepayment or optional redemption provisions) that are market terms on the date of incurrence thereof (as determined in good faith by the board of directors (or other governing body) of the Parent) or are not materially more restrictive than the covenants and events of default contained in this Agreement ( provided that a certificate of a Responsible Officer of the Parent and the Borrower delivered to the Administrative Agent at least five Business Days prior to the incurrence of such Indebtedness, together with a reasonably detailed description of the material terms and conditions of such Indebtedness or drafts of the documentation relating thereto, stating that the Parent and the Borrower have determined in good faith that such terms and conditions satisfy the requirement of this clause (f) shall be conclusive evidence that such terms and conditions satisfy such requirement unless the Administrative Agent notifies the Parent and the Borrower within such five Business Day period that it disagrees with such determination (including a reasonable description of the basis upon which it disagrees)).
 
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“ Subordinated Third Party Indebtedness ” shall mean any Indebtedness of the Borrower or any Restricted Subsidiary thereof that (a) is owed to any Person that is not an Affiliate of the Parent or any Subsidiary and (b) satisfies the Subordinated Indebtedness Requirement (except for clause (d) of the definition thereof, to the extent that such clause would prohibit the amortization or the making of scheduled repayments of such Indebtedness).
“ Subsidiary ” shall mean, with respect to any Person, any corporation, partnership, limited liability company, association or other business entity of which securities or other ownership interests representing more than 50% of the equity or more than 50% of the ordinary voting power or more than 50% of the general partnership interests are, at the time any determination is being made, directly or indirectly, owned, Controlled or held by such Person. Unless the context requires otherwise, references herein to a “Subsidiary” shall refer to a Subsidiary of the Parent.
“ Subsidiary Loan Party ” shall mean each Subsidiary that is a party to the Guaranty Agreement and the Security Agreement. Unless the context requires otherwise, the term “Subsidiary Loan Party” shall include the Borrower.
“ Swingline Exposure ” shall mean, at any time, the aggregate principal amount of all Swingline Loans outstanding at such time. The Swingline Exposure of any Revolving Lender at any time shall be its Applicable Percentage of the total Swingline Exposure at such time.
“ Swingline Lender ” shall mean Morgan Stanley Bank, N.A., in its capacity as lender of Swingline Loans hereunder.
“ Swingline Loan ” shall mean a Loan made pursuant to Section 2.04.
“ Taxes ” shall mean any and all present or future taxes, levies, imposts, duties, deductions, charges or withholdings (including backup withholding), assessments, fees or other charges imposed, levied, withheld, collected or assessed by any Governmental Authority, including any interest, penalties, additions to tax or fines applicable thereto.
“ Term Commitment ” shall mean a Tranche B Term Commitment or an Incremental Term Commitment of any Series.
“ Term Lender ” shall mean a Lender with a Term Commitment or Term Loans.
“ Term Loan ” shall mean a Tranche B Term Loan or an Incremental Term Loan of any Series.
“ Terminal Storage Facility ” shall have the meaning assigned to such term in the recitals.
“ Terminated Liens ” shall mean the Liens securing the Existing Indebtedness.
“ Total Adjusted Net Indebtedness ” shall mean, as of any date of determination, an amount equal to (a) Total Indebtedness as of such date, less (b) all or a portion (as determined by the Parent and the Borrower) (but, for any date on or prior to December 31, 2015, not in excess of $25,000,000) of the aggregate amount of Unrestricted cash and Permitted Investments of the Loan Parties as of such date that is subject to a Control Agreement.
 
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“ Total Adjusted Net Leverage Ratio ” shall mean, as of any date of calculation, the ratio of (a) Total Adjusted Net Indebtedness as of such date to (b) Adjusted EBITDA for the period of four consecutive Fiscal Quarters of the Parent most recently ended on or prior to such date. For purposes of calculating the Total Adjusted Net Leverage Ratio pursuant to the definition of “Permitted Incremental Amount” or Section 2.22, the amount deducted pursuant to clause (b) of the definition of “Total Adjusted Net Indebtedness” in the calculation of Total Adjusted Net Indebtedness shall not include any proceeds of any Indebtedness incurred in reliance thereon and in respect of which such calculation is being made.
“ Total Indebtedness ” shall mean, as of any date of determination, the total consolidated Indebtedness of the Parent and the Restricted Subsidiaries determined in accordance with GAAP as of such date, without giving effect to (a) any election to value any Indebtedness at “fair value”, as described in Section 1.02(f), (b) Indebtedness of the type referred to in clause (h) of the definition of “Indebtedness” or (c) Indebtedness incurred in reliance on clause (b) of the definition of “Permitted Debt”.
“ Total Loss ” shall mean (a) the complete destruction of all or substantially all of the Terminal Storage Facility, (b) the destruction of all or substantially all of the Terminal Storage Facility irretrievably beyond repair or (c) the destruction of all or substantially all of the Terminal Storage Facility such that the insured may claim the whole amount of any insurance policy covering the Terminal Storage Facility upon abandoning the Terminal Storage Facility to the insurance underwriters therefor.
“ Tranche B Term Commitment ” shall mean, with respect to each Lender, the commitment, if any, of such Lender to make a Tranche B Term Loan on the Closing Date, expressed as an amount representing the maximum principal amount of the Tranche B Term Loan to be made by such Lender, as such commitment may be (a) reduced from time to time pursuant to Section 2.08 and (b) reduced or increased from time to time pursuant to assignments by or to such Lender pursuant to Section 9.04. The initial amount of each Lender’s Tranche B Term Commitment is set forth on Schedule 2.01 , or in the Assignment and Assumption pursuant to which such Lender shall have assumed its Tranche B Term Commitment, as applicable. The initial aggregate amount of the Lenders’ Tranche B Term Commitments is $550,000,000.
“ Tranche B Term Facility ” shall mean the Tranche B Term Commitments and the Tranche B Term Loans made hereunder.
“ Tranche B Term Loan ” shall mean a Loan made pursuant to clause (a) of Section 2.01.
“ Tranche B Term Maturity Date ” shall mean the seventh anniversary of the Closing Date.
“ Transactions ” shall mean (a) the execution, delivery and performance by each Loan Party of the Loan Documents to which it is to be a party, the borrowing of Loans, the use of the proceeds thereof and the issuance (or deemed issuance) of Letters of Credit, (b) the execution, delivery and performance by each Loan Party of the Bond Documents to which it is to be a party and the sale and purchase of the Bonds contemplated thereunder, (c) the granting of the Liens contemplated hereby and by the Security Documents and (d) the other transactions contemplated by this Agreement, the other Loan Documents and the Bond Documents.
 
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“ Treasury Services ” shall have the meaning assigned to such term in the Security Agreement.
“ Type ,” when used in respect of any Loan or Borrowing, shall refer to the Rate by reference to which interest on such Loan or on the Loans comprising such Borrowing is determined. For purposes hereof, the term “ Rate ” shall include the Adjusted LIBO Rate and the Alternate Base Rate.
“ UCC ” shall mean the Uniform Commercial Code as in effect from time to time in the state of New York; provided that if, with respect to any financing statement or by reason of any provisions of law, the perfection or the effect of perfection or non-perfection of the security interests granted to the Collateral Agent pursuant to the applicable Loan Document is governed by the Uniform Commercial Code as in effect in a jurisdiction of the United States other than New York, UCC shall mean the Uniform Commercial Code as in effect from time to time in such other jurisdiction for purposes of the provisions of each Loan Document and any financing statement relating to such perfection or effect of perfection or non-perfection.
“ United States ” and “ U.S. ” shall each mean the United States of America.
“ Unrestricted ” shall mean, when used in reference to cash or Permitted Investments of any Person, that such cash or Permitted Investments is not Restricted
“ Unrestricted Subsidiary ” shall mean any Subsidiary (other than the Borrower) designated by the board of directors (or similar governing body) of the Parent as an Unrestricted Subsidiary pursuant to Section 5.17 subsequent to the Closing Date. The Parent may designate any Subsidiary (other than the Borrower) to be an Unrestricted Subsidiary unless such Subsidiary or any of its Subsidiaries owns any Equity Interests or Indebtedness of, or owns or holds any Lien on any property of, the Parent, the Borrower or any other Restricted Subsidiary (other than any Subsidiary of the Subsidiary to be so designated).
“ U.S. Bankruptcy Code ” shall mean Title 11 of the United States Code, as amended, or any similar federal or state law for the relief of debtors.
“ U.S. Tax Compliance Certificate ” shall have the meaning assigned to such term in Section 2.17(e)(ii)(B)iii.
“ U.S.A. Patriot Act ” shall mean the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, Public Law 107-56 (signed into law on October 26, 2001).
“ Weighted Average Yield ” shall mean, with respect to any Loan, the weighted average yield to stated maturity of such Loan based on the interest rate or rates applicable thereto and giving effect to all upfront or similar fees or original issue discount payable to the Lenders advancing such Loan with respect thereto and to any interest rate “floor”. Determinations of the Weighted Average Yield of any Indebtedness for purposes of Section 2.11(c) or any Loans for purposes of Section 2.22 shall be made by the Administrative Agent in a manner determined by it to be consistent with accepted financial practice, and any such determination shall be conclusive, absent manifest error.
 
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“ wholly-owned ”, when used in reference to a Subsidiary of any Person, shall mean that all the Equity Interests in such Subsidiary (other than directors’ qualifying shares and other nominal amounts of Equity Interests that are required to be held by other Persons under applicable law) are owned, beneficially and of record, by such Person, another wholly-owned Subsidiary of such Person or any combination thereof.
Section 1.02 Terms Generally . Except as otherwise expressly provided, the following rules of interpretation shall apply to this Agreement and the other Loan Documents:
(a) the definitions set forth or referred to in Section 1.01 shall apply equally to both the singular and plural forms of the terms defined;
(b) whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms;
(c) the words “include,” “includes” and “including” shall be deemed to be followed by the phrase “without limitation”;
(d) all references herein to Articles, Sections, Exhibits, Schedules, recitals and the preamble shall be deemed references to Articles and Sections of, and Exhibits, Schedules, recitals and the preamble to, this Agreement unless the context shall otherwise require;
(e) the term “or” is not exclusive;
(f) except as otherwise expressly provided herein, all terms of an accounting or financial nature shall be construed in accordance with GAAP, as in effect from time to time; provided that (i) if the Borrower notifies the Administrative Agent that the Borrower requests an amendment to any provision hereof to eliminate the effect of any change occurring after the Closing Date in GAAP or in the application thereof on the operation of such provision (or if the Administrative Agent notifies the Borrower that the Required Lenders request an amendment to any provision hereof for such purpose), regardless of whether any such notice is given before or after such change in GAAP or in the application thereof, then such provision shall be interpreted on the basis of GAAP as in effect and applied immediately before such change shall have become effective until such notice shall have been withdrawn or such provision amended in accordance herewith and (ii) notwithstanding any other provision contained herein, all terms of an accounting or financial nature used herein shall be construed, and all computations of amounts and ratios referred to herein shall be made, without giving effect to any election under Accounting Standards Codification 825-10-25, or any successor thereto, to value any Indebtedness of the Parent or any Subsidiary at “fair value”, as defined therein;
(g) the words “asset” and “property” shall be construed to have the same meaning and effect and to refer to any and all tangible and intangible assets and properties (whether real or personal), including cash, Equity Interests, securities, revenues, accounts, leasehold interests and contract rights;
 
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(h) references to agreements or other contractual obligations shall, unless otherwise specified, be deemed to refer to such agreements or contractual obligations as amended, supplemented, restated or otherwise modified from time to time (subject to any applicable restrictions in the Loan Documents);
(i) unless otherwise indicated, all references to the time of a day in a Loan Document shall refer to New York, New York time; and
(j) all pro forma computations required to be made hereunder giving effect to any Specified Transaction, Permitted Acquisition or other transaction (i) shall be calculated after giving pro forma effect thereto (and, in the case of any pro forma computations made hereunder to determine whether such Specified Transaction, Permitted Acquisition or other transaction is permitted to be consummated hereunder, to any other such transaction consummated since the first day of the period covered by any component of such pro forma computation and on or prior to the date of such computation) as if such transaction had occurred on the first day of the period of four consecutive Fiscal Quarters ending with the most recent Fiscal Quarter for which financial statements shall have been delivered pursuant to Section 5.04(a) or 5.04(b) (or, prior to the delivery of any such financial statements, ending with the last Fiscal Quarter included in the unaudited financial statements referred to in Section 3.06(b)), and, to the extent applicable, to the historical earnings and cash flows associated with the assets acquired or disposed of and any related incurrence or reduction of Indebtedness, all in accordance with Article 11 of Regulation S-X under the Securities Act, and (ii) in the case of any Acquisition, may reflect pro forma adjustments for cost savings and synergies (net of continuing associated expenses) to the extent such cost savings or synergies, as the case may be, have been realized or are reasonably expected to be realized within 365 days following such Acquisition, provided that (A) the Parent and the Borrower shall have delivered to the Administrative Agent a certificate of the chief financial officer of the Parent and the Borrower, in form and substance reasonably satisfactory to the Administrative Agent, certifying that such cost savings or synergies meet the requirements set forth in this clause (ii), together with reasonably detailed evidence in support thereof, (B) any adjustment to EBITDA for any period of four consecutive Fiscal Quarters of the Parent as a result of such cost savings or synergies shall be subject to the Aggregate Cap and (C) if any cost savings or synergies included in any pro forma calculations based on the expectation that such cost savings or synergies will be realized within 365 days following such acquisition shall at any time cease to be reasonably expected to be so realized within such period, then on and after such time pro forma calculations required to be made hereunder shall not reflect such cost savings or synergies. If any Indebtedness bears a floating rate of interest and is being given pro forma effect, the interest on such Indebtedness shall be calculated as if the rate in effect on the date of determination had been the applicable rate for the entire period (taking into account any Hedge Agreement applicable to such Indebtedness if such Hedge Agreement has a remaining term in excess of 12 months).
 
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Section 1.03 Classification of Loans and Borrowings . For purposes of this Agreement, Loans and Borrowings may be classified and referred to by Class (e.g., a “Revolving Loan” or “Revolving Borrowing”) or by Type (e.g., a “Eurodollar Loan” or “Eurodollar Borrowing”) or by Class and Type (e.g., a “Eurodollar Revolving Loan” or “Eurodollar Revolving Borrowing”).
ARTICLE II.
THE CREDITS
Section 2.01 Commitments.
(a) Subject to the terms and conditions set forth herein, each Lender severally agrees to make Tranche B Term Loans in Dollars to the Borrower, in each case on the Closing Date, in an aggregate principal amount that will not result in (i) such Lender’s Tranche B Term Loans exceeding such Lender’s Tranche B Term Commitment or (ii) the aggregate principal amount of all Tranche B Term Loans exceeding the aggregate Tranche B Term Commitments of all Lenders. Amounts repaid or prepaid in respect of Tranche B Term Loans may not be re-borrowed.
(b) Subject to the terms and conditions set forth herein, each Lender agrees to make Revolving Loans to the Borrower, in each case from time to time during the Revolving Availability Period, in Dollars in an aggregate principal amount that will not result in (i) such Lender’s Revolving Exposure exceeding such Lender’s Revolving Commitment or (ii) the Aggregate Revolving Exposure exceeding the Aggregate Revolving Commitment. Within the foregoing limits and subject to the terms and conditions set forth herein, the Borrower may borrow, prepay and reborrow Revolving Loans.
Section 2.02 Loans and Borrowings Generally .
(a) Each Loan (other than a Swingline Loan) shall be made as part of a Borrowing consisting of Loans of the same Class and Type made by the Lenders ratably in accordance with their respective Commitments of the applicable Class. The failure of any Lender to make any Loan required to be made by it shall not relieve any other Lender of its obligations hereunder; provided that the Commitments of the Lenders are several and no Lender shall be responsible for any other Lender’s failure to make Loans as required.
(b) Subject to Section 2.14, each Borrowing shall be comprised entirely of ABR Loans or Eurodollar Loans as the Borrower may request in accordance herewith. Each Swingline Loan shall be an ABR Loan.
(c) Each Eurodollar Borrowing shall be in an aggregate amount that is an integral multiple of $500,000 and not less than $1,000,000. Each ABR Borrowing shall be in an aggregate amount that is an integral multiple of $500,000 and not less than $1,000,000; provided that an ABR Revolving Borrowing may be in an aggregate amount that is equal to the entire unused balance of the Aggregate Revolving Commitment or that is required to finance the reimbursement of an LC Disbursement as contemplated by Section 2.05(f). Each Swingline Loan shall be in an aggregate amount that is an integral multiple of $250,000 and not less than $500,000; provided that a Swingline Loan may be in an aggregate amount that is required to finance the reimbursement of an LC Disbursement as contemplated by Section 2.05(f). Borrowings of more than one Class and Type may be outstanding at the same time; provided that there shall not at any time be more than a total of six (6) Eurodollar Borrowings outstanding.
 
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(d) Notwithstanding any other provision of this Agreement, the Borrower shall not be entitled to request, or to elect to convert or continue, any Eurodollar Borrowing if the Interest Period requested therefor would end after the Maturity Date applicable thereto.
Section 2.03 Requests for Borrowings . To request a Borrowing, the Borrower shall notify the Administrative Agent of such request by delivering by hand or telecopy to the Administrative Agent, a written Borrowing Request signed by the Borrower (a) in the case of a Eurodollar Borrowing, not later than 11:00 a.m., New York City time, three Business Days before the date of the proposed Borrowing or (b) in the case of an ABR Borrowing, not later than 11:00 a.m., New York City time, one Business Day before the date of the proposed Borrowing. Each such Borrowing Request shall be irrevocable and delivery thereof shall be confirmed promptly by telephone to the Administrative Agent. The written (including by email) and telephonic Borrowing Request shall specify the following information in compliance with Section 2.02:
(a) whether the requested Borrowing is to be a Tranche B Term Borrowing, an Incremental Term Borrowing of a particular Series, a Revolving Borrowing or a Swingline Borrowing;
(b) the aggregate amount of the requested Borrowing;
(c) the date of such Borrowing, which shall be a Business Day;
(d) whether such Borrowing is to be an ABR Borrowing or a Eurodollar Borrowing;
(e) in the case of a Eurodollar Borrowing, the initial Interest Period to be applicable thereto; and
(f) the account to which the proceeds of such Borrowing are to be disbursed (if applicable) or other applicable account information.
If no election as to the Type of Borrowing is specified, then the requested Borrowing shall be an ABR Borrowing. If no Interest Period is specified with respect to any requested Eurodollar Borrowing, then the Borrower shall be deemed to have selected an Interest Period of one month’s duration. Promptly following receipt of the Borrowing Request in accordance with this Section 2.03, the Administrative Agent shall advise each Lender of the details thereof and of the amount of such Lender’s Loan to be made as part of the requested Borrowing.
Section 2.04 Swingline Loans . (a) Subject to the terms and conditions set forth herein, the Swingline Lender agrees to make Swingline Loans to the Borrower from time to time during the Revolving Availability Period in an aggregate principal amount at any time outstanding that will not result in (i) the aggregate principal amount of the outstanding Swingline Loans exceeding $10,000,000 or (ii) the Aggregate Revolving Exposure exceeding the Aggregate Revolving Commitment; provided that the Swingline Lender shall not be required to make a Swingline Loan to refinance an outstanding Swingline Loan. Within the foregoing limits and subject to the terms and conditions set forth herein, the Borrower may borrow, prepay and reborrow Swingline Loans.
 
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(b) To request a Swingline Loan, the Borrower shall notify the Administrative Agent of such request by delivering by hand or telecopy to the Administrative Agent, a written Borrowing Request signed by the Borrower not later than 12:00 noon, New York City time, on the day of the proposed Swingline Loan. Each such Borrowing Request shall be irrevocable and delivery thereof shall be confirmed promptly by telephone to the Administrative Agent. The written (including by email) and telephonic Borrowing Request shall specify the aggregate amount of the requested Swingline Loan, the requested date of the requested Swingline Loan (which shall be a Business Day) and the account to which the proceeds of the requested Swingline Loan are to be disbursed or other applicable account information. Promptly following the receipt of a Borrowing Request in accordance with this Section, the Administrative Agent shall advise the Swingline Lender of the details thereof. The Swingline Lender shall make each Swingline Loan available to the Borrower by promptly crediting the amount of such Swingline Loan to the account or accounts of the Borrower designated by the Borrower in the applicable Borrowing Request by 3:00 p.m., New York City time, on the requested date of such Swingline Loan; provided that Swingline Loans made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(f) shall be remitted by the Swingline Lender to the respective Issuing Bank.
(c) The Swingline Lender may by written notice given to the Administrative Agent not later than 10:00 a.m., New York City time, on any Business Day require the Revolving Lenders to acquire participations on such Business Day in all or a portion of the Swingline Loans outstanding. Such notice shall specify the aggregate amount of the Swingline Loans in which Revolving Lenders will be required to participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each Revolving Lender, specifying in such notice such Lender’s Applicable Percentage of such Swingline Loan or Loans. Each Revolving Lender hereby absolutely and unconditionally agrees to pay, upon receipt of notice as provided above, to the Administrative Agent, for the account of the Swingline Lender, such Lender’s Applicable Percentage of such Swingline Loan or Loans. Each Revolving Lender acknowledges and agrees that, in making any Swingline Loan, the Swingline Lender shall be entitled to rely, and shall not incur any liability for relying, upon the representation and warranty of the Parent and the Borrower deemed made pursuant to Section 4.02, unless, at least one Business Day prior to the time such Swingline Loan was made, the Majority in Interest of the Revolving Lenders shall have notified the Swingline Lender (with a copy to the Administrative Agent) in writing that, as a result of one or more events or circumstances described in such notice, one or more of the conditions precedent set forth in Section 4.02(a) or 4.02(b) would not be satisfied if such Swingline Loan were then made (it being understood and agreed that, in the event the Swingline Lender shall have received any such notice, it shall have no obligation to make any Swingline Loan until and unless it shall be satisfied that the events and circumstances described in such notice shall have been cured or otherwise shall have ceased to exist). Each Revolving Lender further acknowledges and agrees that its obligation to acquire participations in Swingline Loans pursuant to this paragraph is absolute and unconditional and shall not be affected by any circumstance whatsoever, including the occurrence and continuance of a Default or an Event of Default or any reduction or termination of the Revolving Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever. Each Revolving Lender shall comply with its obligation under this paragraph by wire transfer of immediately available funds, in the same manner as provided in Section 2.06 with respect to Loans made by such Lender (and Section 2.06 shall apply, mutatis mutandis, to
 
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the payment obligations of the Revolving Lenders pursuant to this paragraph), and the Administrative Agent shall promptly remit to the Swingline Lender the amounts so received by it from the Revolving Lenders. The Administrative Agent shall notify the Borrower of any participations in any Swingline Loan acquired pursuant to this paragraph, and thereafter payments in respect of such Swingline Loan shall be made to the Administrative Agent and not to the Swingline Lender. Any amounts received by the Swingline Lender from the Borrower (or other Person on behalf of the Borrower) in respect of a Swingline Loan after receipt by the Swingline Lender of the proceeds of a sale of participations therein shall be promptly remitted to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the Revolving Lenders that shall have made their payments pursuant to this paragraph and to the Swingline Lender, as their interests may appear; provided that any such payment so remitted shall be repaid to the Swingline Lender or to the Administrative Agent, as applicable, if and to the extent such payment is required to be refunded to the Borrower for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not constitute a Loan and shall not relieve the Borrower of its obligation to repay such Swingline Loan.
Section 2.05 Letters of Credit . (a)  General . Subject to the terms and conditions set forth herein, the Borrower may request the issuance of Letters of Credit for its own account or, so long as the Borrower is a joint and several co-applicant with respect thereto, the account of any Subsidiary, denominated in Dollars and in a form reasonably acceptable to the Administrative Agent and the applicable Issuing Bank, at any time and from time to time during the Revolving Availability Period. The Borrower unconditionally and irrevocably agrees that, in connection with any Letter of Credit issued for the account of any Subsidiary as provided in the first sentence of this paragraph, it will be fully responsible for the reimbursement of LC Disbursements, the payment of interest thereon and the payment of fees due under Section 2.12(b) to the same extent as if it were the sole account party in respect of such Letter of Credit. Notwithstanding anything contained in any letter of credit application furnished to any Issuing Bank in connection with the issuance of any Letter of Credit, (i) all provisions of such letter of credit application purporting to grant liens in favor of the Issuing Bank to secure obligations in respect of such Letter of Credit shall be disregarded, it being agreed that such obligations shall be secured to the extent provided in this Agreement and in the Security Documents, and (ii) in the event of any inconsistency between the terms and conditions of such letter of credit application and the terms and conditions of this Agreement, the terms and conditions of this Agreement shall control.
(b) Notice of Issuance, Amendment, Renewal, Extension; Certain Conditions . To request the issuance of a Letter of Credit or the amendment, renewal or extension of an outstanding Letter of Credit (other than an automatic renewal permitted pursuant to paragraph (c) of this Section), the Borrower shall hand deliver or fax (or transmit by electronic communication, if arrangements for doing so have been approved by the recipient) to the applicable Issuing Bank and the Administrative Agent, reasonably in advance of (but in no event later than the date that is 5 Business Days prior to) the requested date of issuance, amendment, renewal or extension, a notice requesting the issuance of a Letter of Credit, or identifying the Letter of Credit to be amended, renewed or extended, and specifying the requested date of issuance, amendment, renewal or extension (which shall be a Business Day), the date on which such Letter of Credit is to expire (which shall comply with paragraph (c) of this Section), the amount of such Letter of
 
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Credit, the name and address of the beneficiary thereof and such other information as shall be necessary to enable the applicable Issuing Bank to prepare, amend, renew or extend such Letter of Credit. If requested by the applicable Issuing Bank, the Borrower also shall submit a letter of credit application on such Issuing Bank’s standard form in connection with any such request. A Letter of Credit shall be issued, amended, renewed or extended only if (and upon each issuance, amendment, renewal or extension of any Letter of Credit the Borrower shall be deemed to represent and warrant that), after giving effect to such issuance, amendment, renewal or extension, (i) the LC Exposure will not exceed $10,000,000 and (ii) the Aggregate Revolving Exposure will not exceed the Aggregate Revolving Commitment. Each Issuing Bank agrees that it shall not permit any issuance, amendment, renewal or extension of a Letter of Credit to occur unless it shall have given to the Administrative Agent written notice thereof required under paragraph (l) of this Section.
(c) Expiration Date . Each Letter of Credit shall expire at or prior to the close of business on the earlier of (i) the date one year after the date of the issuance of such Letter of Credit (or, in the case of any renewal or extension thereof, one year after such renewal or extension) and (ii) the date that is seven days prior to the Revolving Maturity Date; provided that any Letter of Credit may contain customary automatic renewal provisions agreed upon by the Borrower and the applicable Issuing Bank pursuant to which the expiration date of such Letter of Credit shall automatically be extended for a period of up to 12 months (but not to a date later than the date set forth in clause (ii) above), subject to a right on the part of such Issuing Bank to prevent any such renewal from occurring by giving notice to the beneficiary (with a copy to the Borrower) at least 60 days in advance of any such renewal (or such lesser number of days in advance of such renewal as shall be specified in the applicable Letter of Credit and approved by the Borrower at the time such Letter of Credit was issued).
(d) Participations . By the issuance of a Letter of Credit (or an amendment to a Letter of Credit increasing the amount thereof) and without any further action on the part of the applicable Issuing Bank or any Revolving Lender, the Issuing Bank that is the issuer thereof hereby grants to each Revolving Lender, and each Revolving Lender hereby acquires from such Issuing Bank, a participation in such Letter of Credit equal to such Revolving Lender’s Applicable Percentage of the aggregate amount available to be drawn under such Letter of Credit. In consideration and in furtherance of the foregoing, each Revolving Lender hereby absolutely and unconditionally agrees to pay to the Administrative Agent, for the account of such Issuing Bank, such Revolving Lender’s Applicable Percentage of each LC Disbursement made by such Issuing Bank under such Letter of Credit and not reimbursed by the Borrower on the date due as provided in paragraph (f) of this Section, or of any reimbursement payment required to be refunded to the Borrower for any reason. Each Revolving Lender acknowledges and agrees that its obligation to acquire participations pursuant to this paragraph in respect of Letters of Credit is absolute and unconditional and shall not be affected by any circumstance whatsoever, including any amendment, renewal or extension of any Letter of Credit or the occurrence and continuance of a Default or Event of Default or any reduction or termination of the Revolving Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever. Each Revolving Lender further acknowledges and agrees that, in issuing, amending, renewing or extending any Letter of Credit, the applicable Issuing Bank shall be entitled to rely, and shall not incur any liability for relying, upon the representation and warranty of the Parent and the Borrower deemed made pursuant to Section 4.02, unless, at
 
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least one Business Day prior to the time such Letter of Credit is issued, amended, renewed or extended (or, in the case of an automatic extension permitted pursuant to paragraph (c) of this Section, at least one Business Day prior to the time by which the election not to extend must be made by the applicable Issuing Bank), a Majority in Interest of the Revolving Lenders shall have notified the applicable Issuing Bank (with a copy to the Administrative Agent) in writing that, as a result of one or more events or circumstances described in such notice, one or more of the conditions precedent set forth in Section 4.02(a) or 4.02(b) would not be satisfied if such Letter of Credit were then issued, amended, renewed or extended (it being understood and agreed that, in the event any Issuing Bank shall have received any such notice, it shall have no obligation to issue, amend, renew or extend any Letter of Credit until and unless it shall be satisfied that the events and circumstances described in such notice shall have been cured or otherwise shall have ceased to exist).
(e) Disbursements . Each Issuing Bank shall, promptly following its receipt thereof, examine all documents purporting to represent a demand for payment under a Letter of Credit issued by it and shall promptly notify the Administrative Agent and the Borrower by telephone (confirmed by hand delivery, facsimile or email) of such demand for payment and whether such Issuing Bank has made or will make an LC Disbursement thereunder; provided that any failure to give or delay in giving such notice shall not relieve the Borrower of its obligation to reimburse such LC Disbursement.
(f) Reimbursements . If an Issuing Bank shall make an LC Disbursement in respect of a Letter of Credit, the Borrower shall reimburse such LC Disbursement by paying to the Administrative Agent an amount equal to such LC Disbursement not later than 12:00 noon, New York City time, on the Business Day immediately following the day that the Borrower receives notice of such LC Disbursement; provided that the Borrower may, subject to the conditions to borrowing set forth herein, request in accordance with Section 2.03 or 2.04 that such payment be financed with an ABR Revolving Borrowing or a Swingline Loan and, to the extent so financed, the Borrower’s obligation to make such payment shall be discharged and replaced by the resulting ABR Revolving Borrowing (which ABR Revolving Borrowing, for the avoidance of doubt, subsequently may be converted to a Eurodollar Revolving Borrowing in accordance with Section 2.07) or Swingline Loan. If the Borrower fails to reimburse any LC Disbursement by the time specified above, the Administrative Agent shall notify each Revolving Lender of such failure, the payment then due from the Borrower in respect of the applicable LC Disbursement and such Revolving Lender’s Applicable Percentage thereof. Promptly following receipt of such notice, each Revolving Lender shall pay to the Administrative Agent its Applicable Percentage of the amount then due from the Borrower, in the same manner as provided in Section 2.06 with respect to Loans made by such Lender (and Section 2.06 shall apply, mutatis mutandis, to the payment obligations of the Revolving Lenders pursuant to this paragraph), and the Administrative Agent shall promptly remit to the applicable Issuing Bank the amounts so received by it from the Revolving Lenders. Promptly following receipt by the Administrative Agent of any payment from the Borrower pursuant to this paragraph, the Administrative Agent shall distribute such payment to the applicable Issuing Bank or, to the extent that Revolving Lenders have made payments pursuant to this paragraph to reimburse such Issuing Bank, then to such Revolving Lenders and such Issuing Bank as their interests may appear. Any payment made by a Revolving Lender pursuant to this paragraph to reimburse an Issuing Bank for an LC Disbursement (other than the funding of an ABR Revolving Borrowing or a Swingline Loan as contemplated above) shall not constitute a Loan and shall not relieve the Borrower of its obligation to reimburse such LC Disbursement.
 
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(g) Obligations Absolute . The Borrower’s obligation to reimburse LC Disbursements as provided in paragraph (f) of this Section is absolute, unconditional and irrevocable and shall be performed strictly in accordance with the terms of this Agreement under any and all circumstances whatsoever and irrespective of (i) any lack of validity or enforceability of any Letter of Credit or this Agreement, or any term or provision thereof or hereof, (ii) any draft or other document presented under a Letter of Credit proving to be forged, fraudulent or invalid in any respect or any statement therein being untrue or inaccurate in any respect, (iii) payment by an Issuing Bank under a Letter of Credit against presentation of a draft or other document that does not comply with the terms of such Letter of Credit or (iv) any other event or circumstance whatsoever, whether or not similar to any of the foregoing, that might, but for the provisions of this paragraph, constitute a legal or equitable discharge of, or provide a right of setoff against, the Borrower’s obligations hereunder. None of the Administrative Agent, the Lenders, the Issuing Banks or any of their Related Parties shall have any liability or responsibility by reason of or in connection with the issuance or transfer of any Letter of Credit, any payment or failure to make any payment thereunder (irrespective of any of the circumstances referred to in the preceding sentence), any error, omission, interruption, loss or delay in transmission or delivery of any draft, notice or other communication under or relating to any Letter of Credit (including any document required to make a drawing thereunder), any error in interpretation of technical terms or any other act, failure to act or other event or circumstance; provided that the foregoing shall not be construed to excuse any Issuing Bank from liability to the Borrower to the extent of any direct damages (as opposed to special, indirect, consequential or punitive damages, claims in respect of which are hereby waived by the Borrower to the extent permitted by applicable law) suffered by the Borrower that are caused by such Issuing Bank’s failure to exercise care when determining whether drafts and other documents presented under a Letter of Credit comply with the terms thereof. The parties hereto expressly agree that, in the absence of gross negligence or wilful misconduct on the part of an Issuing Bank (as determined by a court of competent jurisdiction in a final and nonappealable judgment), such Issuing Bank shall be deemed to have exercised care in each such determination. In furtherance of the foregoing and without limiting the generality thereof, the parties agree that, with respect to documents presented that appear on their face to be in substantial compliance with the terms of a Letter of Credit, an Issuing Bank may, in its sole discretion, either accept and make payment upon such documents without responsibility for further investigation, regardless of any notice or information to the contrary, or refuse to accept and make payment upon such documents if such documents are not in strict compliance with the terms of such Letter of Credit.
(h) Interim Interest . If an Issuing Bank shall make any LC Disbursement, then, unless the Borrower shall reimburse such LC Disbursement in full on the date such LC Disbursement is made, the unpaid amount thereof shall bear interest, for each day from and including the date such LC Disbursement is made to but excluding the date that the Borrower reimburses such LC Disbursement in full, at the rate per annum then applicable to ABR Revolving Loans; provided that if the Borrower fails to reimburse such LC Disbursement when due pursuant to paragraph (f) of this Section, Section 2.13(c) shall apply. Interest accrued pursuant to this paragraph shall be paid to the Administrative Agent, for the account of the applicable Issuing Bank, except that interest accrued on and after the date of payment by any
 
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Revolving Lender pursuant to paragraph (f) of this Section to reimburse such Issuing Bank shall be for the account of such Lender to the extent of such payment, and shall be payable on demand or, if no demand has been made, on the date on which the Borrower reimburses the applicable LC Disbursement in full.
(i) Cash Collateralization . If any Event of Default shall occur and be continuing, on the Business Day that the Borrower receives notice from the Administrative Agent (acting at the direction of the Required Lenders or, if the maturity of the Loans has been accelerated, a Majority in Interest of the Revolving Lenders) or the Required Lenders (or, if the maturity of the Loans has been accelerated, a Majority in Interest of the Revolving Lenders) demanding the deposit of cash collateral pursuant to this paragraph, the Borrower shall deposit in an account with the Administrative Agent, in the name of the Administrative Agent and for the benefit of the Lenders, an amount in cash equal to the LC Exposure as of such date plus any accrued and unpaid interest thereon; provided that the obligation to deposit such cash collateral shall become effective immediately, and such deposit shall become immediately due and payable, without demand or other notice of any kind, upon the occurrence of any Event of Default with respect to the Borrower described in clause (g) or (h) of Section 7.01. The Borrower also shall deposit cash collateral in accordance with this paragraph as and to the extent required by Section 2.11(b)(i) or 2.21. Each such deposit shall be held by the Administrative Agent as collateral for the payment and performance of the Obligations. The Administrative Agent shall have exclusive dominion and control, including the exclusive right of withdrawal, over such account. Other than any interest earned on the investment of such deposits, which investments shall be made at the option and sole discretion of the Administrative Agent and at the Borrower’s risk and expense, such deposits shall not bear interest. Interest or profits, if any, on such investments shall accumulate in such account. Moneys in such account shall be applied by the Administrative Agent to reimburse the Issuing Banks for LC Disbursements for which they have not been reimbursed and, to the extent not so applied, shall be held for the satisfaction of the reimbursement obligations of the Borrower for the LC Exposure at such time or, if the maturity of the Loans has been accelerated (but subject to (i) the consent of a Majority in Interest of the Revolving Lenders and (ii) in the case of any such application at a time when any Revolving Lender is a Defaulting Lender (but only if, after giving effect thereto, the remaining cash collateral shall be less than the aggregate LC Exposure of all the Defaulting Lenders), the consent of each Issuing Bank), be applied to satisfy other obligations of the Borrower under this Agreement. If the Borrower is required to provide an amount of cash collateral hereunder as a result of the occurrence of an Event of Default, such amount (to the extent not applied as aforesaid) shall be returned to the Borrower within three Business Days after all Events of Default have been cured or waived. If the Borrower is required to provide an amount of cash collateral hereunder pursuant to Section 2.11(b)(i), such amount (to the extent not applied as aforesaid) shall be returned to the Borrower to the extent that, after giving effect to such return, the Aggregate Revolving Exposure would not exceed the Aggregate Revolving Commitment and no Default or Event of Default shall have occurred and be continuing. If the Borrower is required to provide an amount of cash collateral hereunder pursuant to Section 2.21, such amount (to the extent not applied as aforesaid) shall be returned to the Borrower, upon request of the Borrower, to the extent that, after giving effect to such return, no Issuing Bank shall have any exposure in respect of any outstanding Letter of Credit that is not fully covered by the Revolving Commitments of the Non-Defaulting Lenders and/or the remaining cash collateral and no Default or Event of Default shall have occurred and be continuing.
 
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(j) Designation of Additional Issuing Banks . The Borrower may, at any time and from time to time, with the consent of the Administrative Agent (which consent shall not be unreasonably withheld), designate as additional Issuing Banks one or more Revolving Lenders that agree to serve in such capacity as provided below. The acceptance by a Revolving Lender of an appointment as an Issuing Bank hereunder shall be evidenced by an agreement, which shall be in form and substance reasonably satisfactory to the Administrative Agent, executed by the Borrower, the Administrative Agent and such designated Revolving Lender and, from and after the effective date of such agreement, (i) such Revolving Lender shall have all the rights and obligations of an Issuing Bank under this Agreement and (ii) references herein to the term “Issuing Bank” shall be deemed to include such Revolving Lender in its capacity as an issuer of Letters of Credit hereunder.
(k) Termination of an Issuing Bank . The Borrower may terminate the appointment of any Issuing Bank as an “Issuing Bank” hereunder by providing a written notice thereof to such Issuing Bank, with a copy to the Administrative Agent. Any such termination shall become effective upon the earlier of (i) such Issuing Bank acknowledging receipt of such notice and (ii) the 10th Business Day following the date of the delivery thereof; provided that no such termination shall become effective until and unless the LC Exposure attributable to Letters of Credit issued by such Issuing Bank (or its Affiliates) shall have been reduced to zero. At the time any such termination shall become effective, the Borrower shall pay all unpaid fees accrued for the account of the terminated Issuing Bank pursuant to Section 2.12(b). Notwithstanding the effectiveness of any such termination, the terminated Issuing Bank shall remain a party hereto and shall continue to have all the rights of an Issuing Bank under this Agreement with respect to Letters of Credit issued by it prior to such termination, but shall not issue any additional Letters of Credit.
(l) Issuing Bank Reports to the Administrative Agent . Unless otherwise agreed by the Administrative Agent, each Issuing Bank shall, in addition to its notification obligations set forth elsewhere in this Section, report in writing to the Administrative Agent (i) periodic activity (for such period or recurrent periods as shall be requested by the Administrative Agent) in respect of Letters of Credit issued by such Issuing Bank, including all issuances, extensions, amendments and renewals, all expirations and cancelations and all disbursements and reimbursements, (ii) reasonably prior to the time that such Issuing Bank issues, amends, renews or extends any Letter of Credit, the date of such issuance, amendment, renewal or extension, and the stated amount of the Letters of Credit issued, amended, renewed or extended by it and outstanding after giving effect to such issuance, amendment, renewal or extension (and whether the amounts thereof shall have changed), (iii) on each Business Day on which such Issuing Bank makes any LC Disbursement, the date and amount of such LC Disbursement, (iv) on any Business Day on which the Borrower fails to reimburse an LC Disbursement required to be reimbursed to such Issuing Bank on such day, the date of such failure and the amount of such LC Disbursement and (v) on any other Business Day, such other information as the Administrative Agent shall reasonably request as to the Letters of Credit issued by such Issuing Bank.
 
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(m) LC Exposure Determination . For all purposes of this Agreement, the amount of a Letter of Credit that, by its terms or the terms of any document related thereto, provides for one or more automatic increases in the stated amount thereof shall be deemed to be the maximum stated amount of such Letter of Credit after giving effect to all such increases, whether or not such maximum stated amount is in effect at the time of determination.
Section 2.06 Funding of Borrowings.
(a) Each Lender shall make each Loan to be made by it hereunder on the proposed date thereof by wire transfer of immediately available funds, in Dollars, by 12:00 noon, New York City time, to the account of the Administrative Agent designated by it for such purpose by notice to the Lenders; provided that Swingline Loans shall be made as provided in Section 2.04. The Administrative Agent will make such Loans available to the Borrower by promptly crediting the amounts so received, in like funds, to the account or accounts of the Borrower designated by the Borrower in the applicable Borrowing Request; provided that ABR Revolving Borrowings made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(f) shall be remitted by the Administrative Agent to the respective Issuing Bank.
(b) Unless the Administrative Agent shall have received notice from a Lender prior to the proposed date of any Borrowing that such Lender will not make available to the Administrative Agent such Lender’s share of such Borrowing, the Administrative Agent may assume that such Lender has made such share available on such date in accordance with paragraph (a) of this Section 2.06 and may, in reliance upon such assumption, make available to the Borrower a corresponding amount. In such event, if a Lender has not in fact made its share of the applicable Borrowing available to the Administrative Agent, then the applicable Lender and the Borrower severally agree to pay to the Administrative Agent forthwith on demand such corresponding amount with interest thereon, for each day from and including the date such amount is made available to the Borrower to but excluding the date of payment to the Administrative Agent, at (i) in the case of a payment to be made by such Lender, the greater of (x) the Federal Funds Effective Rate and (y) a rate reasonably determined by the Administrative Agent in accordance with banking industry rules on interbank compensation and (ii) in the case of a payment to be made by the Borrower, the interest rate applicable to ABR Loans. If the Borrower and such Lender shall pay such interest to the Administrative Agent for the same or an overlapping period, the Administrative Agent shall promptly remit to the Borrower the amount of such interest paid by the Borrower for such period. If such Lender pays its share of the applicable Borrowing to the Administrative Agent, then the amount so paid shall constitute such Lender’s Loan included in such Borrowing. Any payment by the Borrower shall be without prejudice to any claim the Borrower may have against a Lender that shall have failed to make such payment to the Administrative Agent.
Section 2.07 Interest Elections.
(a) The Loans comprising each Borrowing initially shall be of the Type specified in the applicable Borrowing Request and, in the case of a Eurodollar Borrowing, shall have an initial Interest Period as specified in such Borrowing Request. Thereafter, the Borrower may elect to convert such Borrowing to a Borrowing of a different Type or to continue such Borrowing as a Borrowing of the same Type and, in the case of a Eurodollar Borrowing, may elect the Interest Period therefor, all as provided in this Section 2.07. The Borrower may elect different options with respect to different portions of the affected Borrowing, in which case each such portion shall be allocated ratably among the Lenders holding the Loans comprising such Borrowing, and the Loans comprising each such portion shall be considered a separate Borrowing. This Section shall not apply to Swingline Borrowings, which may not be converted or continued.
 
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(b) To make an election pursuant to this Section 2.07, the Borrower shall notify the Administrative Agent of such election by delivering a written Interest Election Request by hand, telecopy or email by the time that the Borrowing Request would be required under Section 2.03 if the Borrower were requesting a Borrowing of the Type resulting from such election to be made on the effective date of such election. Each such Interest Election Request shall be irrevocable and shall be confirmed promptly by telephone.
(c) Each telephonic and written (including by email) Interest Election Request shall specify the following information in compliance with Section 2.02:
(i) each Borrowing to which such Interest Election Request applies and, if different options are being elected with respect to different portions thereof, the portions thereof to be allocated to each resulting Borrowing (in which case the information to be specified pursuant to clauses (iii) and (iv) below shall be specified for each resulting Borrowing);
(ii) the effective date of the election made pursuant to such Interest Election Request, which shall be a Business Day;
(iii) whether the resulting Borrowing is to be an ABR Borrowing or a Eurodollar Borrowing; and
(iv) if the resulting Borrowing is a Eurodollar Borrowing, the Interest Period to be applicable thereto after giving effect to such election.
If any such Interest Election Request made by the Borrower requests a Eurodollar Borrowing but does not specify an Interest Period, then the Borrower shall be deemed to have selected an Interest Period of one month’s duration.
(d) Promptly following receipt of an Interest Election Request, the Administrative Agent shall advise each Lender to which such Interest Election Request relates of the details thereof and of such Lender’s portion of each resulting Borrowing.
(e) If the Borrower fails to deliver a timely Interest Election Request with respect to a Eurodollar Borrowing prior to the end of the Interest Period applicable thereto, then, unless such Borrowing is repaid as provided herein, at the end of such Interest Period, (i) in the case of a Term Borrowing, the Borrower shall be deemed to have continued such Borrowing as a Eurodollar Borrowing having a one-month Interest Period or (ii) in the case of a Revolving Borrowing, the Borrower shall be deemed to have converted such Borrowing to an ABR Borrowing. Notwithstanding any contrary provision hereof, if an Event of Default under clause (g) or (h) of Section 7.01 has occurred and is continuing with respect to the Parent or the Borrower, or if any other Event of Default has occurred and is continuing and the Administrative Agent, at the written request (including a request through electronic means) of a Majority in Interest of Lenders of any Class, so notifies the Borrower, then, so long as such Event of Default
 
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is continuing, (A) no outstanding Borrowing of such Class may be converted to or continued as a Eurodollar Borrowing and (B) unless repaid, each Eurodollar Borrowing of such Class shall automatically be converted to an ABR Borrowing at the end of the Interest Period applicable thereto.
Section 2.08 Termination and Reduction of Commitments .
(a) Unless previously terminated, (i) the Tranche B Term Commitments shall automatically terminate at 5:00 p.m., New York City time, on the Closing Date and (ii) the Revolving Commitments shall automatically terminate on the Revolving Maturity Date.
(b) The Borrower may at any time terminate, or from time to time permanently reduce, the Commitments of any Class; provided that (i) each reduction of the Commitments of any Class shall be in an amount that is an integral multiple of $1,000,000 and not less than $1,000,000 and (ii) the Borrower shall not terminate or reduce the Revolving Commitments if, after giving effect to any concurrent prepayment of the Revolving Loans or Swingline Loans in accordance with Section 2.11, the Aggregate Revolving Exposure would exceed the Aggregate Revolving Commitment.
(c) The Borrower shall notify the Administrative Agent of any election to terminate or reduce the Commitments under paragraph (b) of this Section at least three Business Days prior to the effective date of such termination or reduction, specifying the effective date thereof. Promptly following receipt of any such notice, the Administrative Agent shall advise the Lenders of the applicable Class of the contents thereof. Each notice delivered by the Borrower pursuant to this Section shall be irrevocable; provided that a notice of termination or reduction of the Revolving Commitments under paragraph (b) of this Section may state that such notice is conditioned upon the occurrence of one or more events specified therein, in which case such notice may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified effective date) if such condition is not satisfied. Any termination or reduction of the Commitments of any Class shall be permanent. Each reduction of the Commitments of any Class shall be made ratably among the Lenders in accordance with their respective Commitments of such Class.
Section 2.09 Repayment of Loans Generally; Evidence of Debt .
(a) The Borrower hereby unconditionally promises to pay (i) to the Administrative Agent for the account of each Lender, the then unpaid principal amount of each Term Loan on such dates and in such amounts as provided in Section 2.10, (ii) to the Administrative Agent for the account of each Lender, the then unpaid principal amount of each Revolving Loan of such Lender on the Revolving Maturity Date and (iii) to the Swingline Lender the then unpaid principal amount of each Swingline Loan on the earlier of the Revolving Maturity Date and the first date after such Swingline Loan is made that is the 15th or last day of a calendar month and is at least two Business Days after such Swingline Loan is made; provided that on each date that a Revolving Borrowing is made, the Borrower shall repay all Swingline Loans that were outstanding on the date such Borrowing was requested.
 
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(b) Each Lender shall maintain in accordance with its usual practice records evidencing the indebtedness of the Borrower to such Lender resulting from each Loan made by such Lender, including the amounts of principal and interest payable and paid to such Lender from time to time hereunder.
(c) The Administrative Agent, on behalf of the Borrower, shall maintain a register (the “ Register ”) in which it shall record (i) the names and addresses of the Lenders and the Commitments of each Lender, (ii) the amount of each Loan made hereunder, the Class and Type thereof and each Interest Period applicable thereto, (iii) the amount of any principal or interest due and payable or to become due and payable from the Borrower to each Lender hereunder and (iv) any amount received by the Administrative Agent hereunder for the account of the Lenders and each Lender’s share thereof.
(d) The entries made in the records maintained pursuant to paragraph (b) or (c) of this Section 2.09 shall be prima facie evidence of the existence and amounts of the obligations recorded therein, and shall be conclusive absent manifest error; provided that the failure of any Lender or the Administrative Agent to maintain such accounts or any error therein shall not in any manner affect the obligation of the Borrower to repay the Loans in accordance with the terms of this Agreement. The Borrower and the Lender Parties shall treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be available for inspection by the Borrower and any Lender Party at any reasonable time and from time to time upon reasonable prior notice.
(e) Any Lender may request that Loans of any Class made by it to the Borrower be evidenced by a promissory note substantially in the form of Exhibit E . In such event, the Borrower shall prepare, execute and deliver to such Lender a promissory note payable to the Lender (or, if requested by such Lender, to such Lender and its registered assigns) and in the applicable form. Thereafter, the Loans evidenced by such promissory note and interest thereon shall at all times (including after assignment pursuant to Section 9.04) be represented by one or more promissory notes in such form payable to the payee named therein (or to such payee and its registered assigns).
Section 2.10 Repayment of Loans; Application of Prepayments .
(a) Subject to adjustment pursuant to paragraph (c) or (d) of this Section 2.10, the Borrower shall repay outstanding Tranche B Term Loans in consecutive quarterly installments on each Quarterly Date (commencing on December 31, 2014) in a principal amount equal to (i) $550,000,000 multiplied by (ii) 0.25%, with the remainder payable on the Tranche B Term Maturity Date. The Borrower shall repay Incremental Term Loans of any Series in such amounts and on such date or dates as shall be specified therefor in the Incremental Facility Agreement establishing the Incremental Term Commitments of such Series (as such amounts may be adjusted pursuant to paragraph (c) of this Section or pursuant to such Incremental Facility Agreement).
 
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(b) To the extent not previously paid, (i) all Tranche B Term Loans shall be due and payable on the Tranche B Term Maturity Date and (ii) all Incremental Term Loans of any Series shall be due and payable on the Incremental Term Maturity Date applicable thereto.
(c) Voluntary prepayments of the Term Loans made pursuant to Section 2.11(a) shall be applied as directed by the Borrower to the remaining amortization payments. Mandatory prepayments of the Term Loans made pursuant to Section 2.11(b) or otherwise shall be applied pro rata to the remaining amortization payments. Voluntary and mandatory prepayments of Term Loans may not be re-borrowed.
(d) Prior to any voluntary repayment of any Borrowing of any Class hereunder, the Borrower shall select the Borrowing or Borrowings of the applicable Class to be prepaid in the notice of such prepayment delivered pursuant to clause (e) of this Section.
(e) The Borrower shall notify the Administrative Agent (and, in the case of prepayment of a Swingline Loan, the Swingline Lender) in writing of any prepayment hereunder by delivering to the Administrative Agent a notice in the form of Exhibit J not later than 12:00 noon, New York City time, (i) in the case of an ABR Borrowing, one Business Day before the date of such repayment, (ii) in the case of a Eurodollar Borrowing, three Business Days before the date of such repayment and (iii) in the case of a Swingline Loan, on the date of such prepayment. Each such notice shall be irrevocable and shall specify the prepayment date, the principal amount of each Borrowing or portion thereof to be prepaid and, in the case of a mandatory prepayment, a reasonably detailed calculation of the amount of such prepayment; provided that (A) if a notice of voluntary prepayment is given in connection with a conditional notice of termination of the Revolving Commitments as contemplated by Section 2.08, then such notice of prepayment may be revoked if such notice of termination is revoked in accordance with Section 2.08 and (B) a notice of prepayment of Term Borrowings pursuant to paragraph (a) of this Section may state that such notice is conditioned upon the occurrence of one or more events specified therein, in which case such notice may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified date of prepayment) if such condition is not satisfied. Promptly following receipt of any such notice (other than a notice relating solely to Swingline Loans), the Administrative Agent shall advise the Lenders of the applicable Class of the contents thereof. Each partial prepayment of any Borrowing shall be in an amount that would be permitted in the case of an advance of a Borrowing of the same Type as provided in Section 2.02, except as necessary to apply fully the required amount of a mandatory prepayment. Each prepayment of a Borrowing shall be applied ratably to the Loans included in the prepaid Borrowing. Voluntary and mandatory repayments of Borrowings shall be accompanied by accrued interest on the amount repaid and, in the case of prepayments of Eurodollar Borrowings, any amounts payable pursuant to Section 2.16.
Section 2.11 Prepayment of Loans .
(a) Voluntary Prepayments . The Borrower shall have the right at any time and from time to time to prepay any Borrowing in whole or in part, without premium or penalty (but subject to clause (c) below and Section 2.16), in an aggregate principal amount that is (i) in the case of an ABR Borrowing, an integral multiple of $100,000 and not less than $1,000,000 or, if less, the amount outstanding or (ii) in the case of a Eurodollar Borrowing, an integral multiple of $500,000 and not less than $3,000,000 or, if less, the amount outstanding, in each case subject to prior notice in accordance with Section 2.10(e).
 
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(b) Mandatory Prepayments . The Borrower shall make the following mandatory prepayments:
(i) In the event and on each occasion that the Aggregate Revolving Exposure exceeds the Aggregate Revolving Commitment, the Borrower shall prepay Revolving Borrowings or Swingline Borrowings (or, if no such Borrowings are outstanding, deposit cash collateral in an account with the Administrative Agent in accordance with Section 2.05(i)) in an aggregate amount equal to such excess.
(ii) No later than the fifth Business Day following the date of receipt by the Parent or any Restricted Subsidiary of any Net Recovery Proceeds exceeding $1,000,000, the Borrower shall apply all such Net Recovery Proceeds (A)  first , to the redemption or repurchase of the outstanding Bonds and (B)  second , to the prepayment of Term Loans in accordance with Section 2.10(c) ( provided that the Borrower may apply a portion of the Net Recovery Proceeds to be applied in accordance with this clause (B) to redeem or repurchase Permitted First Lien Refinancing Debt in an amount not to exceed the Specified Redemption Amount); provided , that, in the case of any Recovery Event (other than any Recovery Event in respect of a Total Loss), if the Borrower shall, prior to the date of the required prepayment, deliver to the Administrative Agent a certificate of a Financial Officer of the Borrower to the effect that the Borrower intends to cause the Net Recovery Proceeds with respect to such Recovery Event (or a portion of such Net Recovery Proceeds specified in such certificate) to be applied within 365 days after receipt of such Net Recovery Proceeds to acquire real property, equipment or other tangible long-term assets to be used in the business of the Borrower or the other Restricted Subsidiaries or to demolish, repair or restore the real property or equipment damaged as a result of a casualty, then no prepayment shall be required pursuant to this paragraph in respect of such Net Recovery Proceeds (or the portion of such Net Recovery Proceeds specified in such certificate, if applicable) except to the extent of any such Net Recovery Proceeds that have not been so applied by the end of such 365 day period (or within a period of 545 days after receipt of such Net Recovery Proceeds if by the end of such initial 365 day period the Borrower or one or more other Restricted Subsidiaries shall have entered into an agreement with a third party to acquire such real property, equipment or other tangible long-term assets with such Net Recovery Proceeds), at which time a prepayment shall be required in an amount equal to such Net Recovery Proceeds that have not been so applied.
(iii) No later than the fifth Business Day following the date of receipt by the Parent or any Restricted Subsidiary of any Net Sale Proceeds exceeding $1,000,000, the Borrower shall apply all such Net Sale Proceeds (A)  first , to the redemption or repurchase of the outstanding Bonds and (B)  second , to the prepayment of the Term Loans in accordance with Section 2.10(c) ( provided that the Borrower may apply a portion of the Net Sale Proceeds to be applied in accordance with this clause (B) to redeem or repurchase Permitted First Lien Refinancing Debt in an amount not to exceed the Specified Redemption Amount); provided that, in the case of any Asset Sale,
 
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if the Borrower shall, prior to the date of the required prepayment, deliver to the Administrative Agent a certificate of a Financial Officer of the Borrower to the effect that the Borrower intends to cause the Net Sale Proceeds with respect to such Asset Sale (or a portion of such Net Sale Proceeds specified in such certificate) to be applied within 365 days after receipt of such Net Sale Proceeds to acquire real property, equipment or other tangible long-term assets to be used in the business of the Borrower or the other Restricted Subsidiaries, or to consummate any Permitted Acquisition permitted hereunder, then no prepayment shall be required pursuant to this paragraph in respect of such Net Sale Proceeds (or the portion of such Net Sale Proceeds specified in such certificate, if applicable) except to the extent of any such Net Sale Proceeds that have not been so applied by the end of such 365 day period (or within a period of 545 days after receipt of such Net Sale Proceeds if by the end of such initial 365 day period the Borrower or one or more other Restricted Subsidiaries shall have entered into an agreement with a third party to acquire such real property, equipment or other tangible long-term assets, or to consummate such Permitted Acquisition, with such Net Sale Proceeds), at which time a prepayment shall be required in an amount equal to such Net Sale Proceeds that have not been so applied.
(iv) No later than the first Business Day following the date of receipt by the Parent or any Restricted Subsidiary of any Net Issuance Proceeds from the incurrence of any Indebtedness of the Parent, the Borrower or any other Restricted Subsidiary (other than with respect to any Indebtedness permitted to be incurred by Section 6.02), the Borrower shall apply such Net Issuance Proceeds to the redemption, repurchase or prepayment, as applicable, on a pro rata basis, of (A) the outstanding Bonds and (B) Term Loans in accordance with Section 2.10(c).
(c) Call Protection . In the event that all or any portion of the Tranche B Term Loans are (i) prepaid through any voluntary prepayments, (ii) prepaid pursuant to Section 2.11(b)(iv) or (iii) repriced (including pursuant to any amendment, waiver or consent with respect to this Agreement) (in each case, in connection with (A) any amendment, waiver or consent with respect to this Agreement directed at, or the result of which would be, the lowering of the effective interest cost or the Weighted Average Yield of the Tranche B Term Loans (or portion thereof) or (B) the incurrence of any Indebtedness having an effective interest cost or Weighted Average Yield that is less than the effective interest cost or Weighted Average Yield of the Tranche B Term Loans (or portion thereof) so prepaid or repriced (a “ Repricing Transaction ”)) occurring on or prior to the date that is one year after the Closing Date, such prepayment or repricing will be made at 101.0% of the principal amount so prepaid or repriced. If all or any portion of the Tranche B Term Loans held by any Lender are effectively prepaid, refinanced or replaced pursuant to Section 2.19 as a result of, or in connection with, such Lender not agreeing or otherwise consenting to any amendment, waiver, or consent referred to in clause (iii) above (or otherwise in connection with a Repricing Transaction) occurring on or prior to the date that is one year after the Closing Date, such effective prepayment, refinancing or replacement of the Tranche B Term Loans of such Lender will be made at 101.0% of the principal amount of such Tranche B Term Loans so prepaid, refinanced or replaced.
 
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Section 2.12 Fees.
(a) The Borrower agrees to pay to the Administrative Agent for the account of each Revolving Lender a commitment fee, which shall accrue at 0.50% per annum on the daily unused amount of the Revolving Commitment of such Lender during the Revolving Availability Period. Accrued commitment fees shall be payable in arrears on the third Business Day following each Quarterly Date and on the date on which the Revolving Commitments terminate, commencing on the first such date to occur after the date hereof. All commitment fees shall be computed on the basis of a year of 360 days and shall be payable for the actual number of days elapsed (including the first day but excluding the last day). For purposes of computing commitment fees, a Revolving Commitment of a Lender shall be deemed to be used to the extent of the outstanding Revolving Loans and LC Exposure of such Lender (and the Swingline Exposure of such Lender shall be disregarded for such purpose). Each payment of commitment fees shall be made for account of the Revolving Lenders pro rata according to the amounts of their respective Revolving Commitments.
(b) The Borrower agrees to pay (i) to the Administrative Agent for the account of each Revolving Lender a participation fee with respect to its participations in Letters of Credit, which shall accrue at the Applicable Margin used to determine the interest rate applicable to Eurodollar Revolving Loans on the daily amount of such Lender’s LC Exposure (excluding any portion thereof attributable to unreimbursed LC Disbursements) during the period from and including the Closing Date to but excluding the later of the date on which such Lender’s Revolving Commitment terminates and the date on which such Lender ceases to have any LC Exposure, and (ii) to each Issuing Bank a fronting fee, which shall accrue at the rate or rates per annum separately agreed upon between the Borrower and such Issuing Bank on the average daily amount of the LC Exposure attributable to Letters of Credit issued by such Issuing Bank (excluding any portion thereof attributable to unreimbursed LC Disbursements) during the period from and including the Closing Date to but excluding the later of the date of termination of the Revolving Commitments and the date on which there ceases to be any such LC Exposure, as well as such Issuing Bank’s standard fees with respect to the issuance, amendment, renewal or extension of any Letter of Credit or processing of drawings thereunder. Participation fees and fronting fees accrued through and including each Quarterly Date shall be payable on the third Business Day following such Quarterly Date, commencing on the first Quarterly Date to occur after the Closing Date; provided that all such fees shall be payable on the date on which the Revolving Commitments terminate and any such fees accruing after the date on which the Revolving Commitments terminate shall be payable on demand. Any other fees payable to an Issuing Bank pursuant to this paragraph shall be payable within 10 days after demand. All participation fees and fronting fees shall be computed on the basis of a year of 360 days and shall be payable for the actual number of days elapsed (including the first day but excluding the last day). Each payment of participation fees shall be made for account of the Revolving Lenders pro rata according to the amounts of their respective Revolving Commitments.
(c) The Borrower agrees to pay to (i) the Administrative Agent, for its own account, its fees payable in the amounts and at the times set forth in the Administrative Agent Fee Letter and (ii) the Collateral Agent, for its own account, its fees payable in the amounts and at the times separately agreed upon among the Parent, the Borrower and the Collateral Agent (such fees, the “ Agent Fees ”).
 
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(d) All fees payable hereunder shall be paid on the dates due, in immediately available funds, to (i) in the case of Agent Fees, to the Administrative Agent or the Collateral Agent, as applicable, and (ii) the Administrative Agent (or to an Issuing Bank, in the case of fees payable to it) for distribution, in the case of commitment fees and participation fees, to the Revolving Lenders entitled thereto. Fees paid shall not be refundable under any circumstances.
Section 2.13 Interest .
(a) The Borrower shall pay interest on the unpaid principal amount of each ABR Loan (including each Swingline Loan) made to the Borrower at a rate per annum equal to the Alternate Base Rate plus the Applicable Margin.
(b) The Borrower shall pay interest on the unpaid principal amount of each Eurodollar Loan made to the Borrower at a rate per annum equal to the Adjusted LIBO Rate for the Interest Period in effect for such Eurodollar Loan plus the Applicable Margin.
(c) Notwithstanding the foregoing, upon the occurrence and during the continuance of any Event of Default, all overdue principal, overdue interest, overdue fees and other overdue amounts (including unreimbursed LC Disbursements) shall thereafter bear interest (including post-petition interest in any proceeding under the U.S. Bankruptcy Code or other applicable bankruptcy laws) payable on demand at a rate per annum equal to (i) in the case of overdue principal of any Loan, 2.00% plus the rate otherwise applicable to such Loan as provided in the preceding paragraphs of this Section 2.13 or (ii) in the case of any other amount, 2.00% plus the rate applicable to ABR Loans as provided in paragraph (a) of this Section 2.13; provided that, in the case of overdue Eurodollar Loans of any Class, upon the expiration of the Interest Period in effect at the time any such increase in interest rate is effective, if the Administrative Agent, at the written request (including a request through electronic means) of a Majority in Interest of Lenders of such Class, shall have so notified the Borrower, then such Eurodollar Loans shall thereupon become ABR Loans and shall thereafter bear interest payable upon demand at a rate which is 2.00% per annum in excess of the interest rate otherwise payable hereunder for ABR Loans. Payment or acceptance of the increased rates of interest provided for in this clause (c) is not a permitted alternative to timely payment and shall not constitute a waiver of any Event of Default or otherwise prejudice or limit any rights or remedies of the Administrative Agent or any Lender.
(d) Accrued interest on each Loan shall be payable by the Borrower in arrears (i) on each Interest Payment Date for such Loan and (ii) on the Maturity Date applicable thereto, provided that (A) interest accrued pursuant to paragraph (c) of this Section 2.13 shall be payable on demand, (B) in the event of any repayment or prepayment of any Loan, accrued interest on the principal amount repaid or prepaid shall be payable on the date of such repayment or prepayment and (C) in the event of any conversion of any Eurodollar Loan prior to the end of the current Interest Period therefor, accrued interest on such Loan shall be payable on the effective date of such conversion.
 
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(e) All interest hereunder shall be computed on the basis of a year of 360 days, except that interest computed by reference to the Alternate Base Rate at times when the Alternate Base Rate is based on the Base Rate shall be computed on the basis of a year
of 365 days (or 366 days in a leap year), and in each case shall be payable for the actual number of days elapsed (including the first day but excluding the last day). The applicable Alternate Base Rate, Adjusted LIBO Rate or LIBO Rate shall be determined by the Administrative Agent, and such determination shall be conclusive absent manifest error.
(f) Each payment of interest on Loans of any Class by the Borrower shall be made for account of the relevant Lenders pro rata in accordance with the amounts of interest on Loans of such Class then due and payable to the respective Lenders.
Section 2.14 Alternate Rate of Interest . If prior to the commencement of any Interest Period for a Eurodollar Borrowing of any Class:
(a) the Administrative Agent determines (which determination shall be conclusive absent manifest error) that adequate and reasonable means do not exist for ascertaining the Adjusted LIBO Rate for such Interest Period; or
(b) the Administrative Agent is advised by a Majority in Interest of Lenders of the applicable Class of Loans that the Adjusted LIBO Rate for such Interest Period will not adequately and fairly reflect the cost to such Lenders of making or maintaining their Loans included in such Borrowing for such Interest Period, then the Administrative Agent shall give written notice thereof to the Borrower and the Lenders of such Class as promptly as practicable thereafter and, until the Administrative Agent notifies the Borrower and such Lenders in writing that the circumstances giving rise to such notice no longer exist, (i) any Interest Election Request that requests the conversion of any Borrowing of such Class to, or the continuation of any Borrowing of such Class as, a Eurodollar Borrowing shall be ineffective and such Borrowing shall be converted to an ABR Borrowing on the last day of the Interest Period applicable thereto, and (ii) if the Borrowing Request requests a Eurodollar Borrowing, such Borrowing shall be made as an ABR Borrowing or shall be made as a Borrowing bearing interest at such rate as the Required Lenders shall agree adequately reflects the costs to the applicable Lenders of making the Loans comprising such Borrowing.
Section 2.15 Increased Costs .
(a) If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special deposit, compulsory loan, insurance charge or similar requirement against assets of, deposits with or for the account of, or credit extended or participated in by, any Lender (except any such reserve requirement reflected in the Adjusted LIBO Rate) or any Issuing Bank;
(ii) subject any Recipient to any Taxes (other than (A) Indemnified Taxes, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (C) Connection Income Taxes) on its loans, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto; or
 
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(iii) impose on any Lender or Issuing Bank or the London interbank market any other condition affecting this Agreement or Eurodollar Loans made by such Lender or any Letter of Credit or participation therein;
and the result of any of the foregoing shall be to increase the cost to such Lender of making or maintaining, continuing or converting to any Eurodollar Loan (or of maintaining its obligation to make any such Loan), to increase the cost to such Lender or Issuing Bank of participating in, issuing or maintaining any Letter of Credit (or of maintaining its obligation to participate in or issue any Letter of Credit) or to reduce the amount of any sum received or receivable by such Lender or Issuing Bank hereunder (whether of principal, interest or otherwise), in each case by an amount reasonably determined by such Lender to be material, then the Borrower will pay to such Lender or Issuing Bank, as the case may be, such additional amount or amounts as will compensate such Lender or Issuing Bank, as the case may be, for such additional costs incurred or reduction suffered.
(b) If any Lender or Issuing Bank determines in good faith and in its reasonable discretion that any Change in Law regarding capital or liquidity requirements, funding costs or otherwise has or would have the effect of reducing the rate of return on such Lender’s or Issuing Bank’s capital or on the capital of such Lender’s or Issuing Bank’s holding company, if any, as a consequence of this Agreement, the Commitments of such Lender or the Loans made by, or participations in Letters of Credit or Swingline Loans held by, such Lender, or the Letters of Credit issued by such Issuing Bank, to a level below that which such Lender or Issuing Bank or such Lender’s or Issuing Bank’s holding company could have achieved but for such Change in Law (taking into consideration such Lender’s or Issuing Bank’s policies and the policies of such Lender’s or Issuing Bank’s holding company with respect to capital adequacy), in each case by an amount reasonably determined by such Lender or Issuing Bank to be material, then from time to time the Borrower shall pay to such Lender or Issuing Bank such additional amount or amounts as will compensate such Lender or Issuing Bank or such Lender’s or Issuing Bank’s holding company for any such reduction suffered.
(c) A certificate of a Lender or Issuing Bank setting forth in reasonable detail the amount or amounts necessary to compensate such Lender or Issuing Bank or its holding company, as applicable, as specified in paragraph (a) or (b) of this Section 2.15 shall be delivered to the Borrower and shall be conclusive absent manifest error. The Borrower shall pay such Lender or Issuing Bank, as the case may be, the amount shown as due on any such certificate within 10 Business Days after receipt thereof.
(d) Promptly after any Lender or Issuing Bank has determined that it will make a request for increased compensation pursuant to this Section 2.15, such Lender or Issuing Bank, as the case may be, shall notify the Borrower thereof. Failure or delay on the part of any Lender or Issuing Bank to demand compensation pursuant to this Section 2.15 shall not constitute a waiver of such Lender’s or Issuing Bank’s right to demand such compensation; provided that the Borrower shall not be required to compensate a Lender or Issuing Bank pursuant to this Section 2.15 for any increased costs or reductions incurred more than 180 days prior to the date that such Lender or Issuing Bank, as the case may be, notifies the Borrower of the Change in Law giving rise to such increased costs or reductions and of such Lender’s or Issuing Bank’s intention to claim compensation therefor; and provided , further , that if the Change in Law giving rise to such increased costs or reductions is retroactive, then the 180-day period referred to above shall be extended to include the period of retroactive effect thereof.
 
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Section 2.16 Break Funding Payments . In the event of (a) the payment of any principal of any Eurodollar Loan other than on the last day of an Interest Period applicable thereto (including as a result of an Event of Default), (b) the conversion of any Eurodollar Loan other than on the last day of the Interest Period applicable thereto, (c) the failure to borrow, convert, continue or prepay any Eurodollar Loan on the date specified in any notice delivered pursuant hereto (regardless of whether such notice is permitted to be revocable under Section 2.10(e) and is revoked in accordance herewith) or (d) the assignment of any Eurodollar Loan other than on the last day of the Interest Period applicable thereto as a result of a request by the Borrower pursuant to Section 2.19 (other than the assignment of the Eurodollar Loan of a Defaulting Lender pursuant to Section 2.19(b)(iv)), then, in any such event, the Borrower shall compensate each Lender for the loss, cost and expense attributable to such event; provided that such Lender notifies the Borrower of such loss, cost or expense within 180 days of the incurrence thereof. Such loss, cost or expense to any Lender shall be deemed to be the amount determined by such Lender to be the excess, if any, of (i) the amount of interest which would have accrued on the principal amount of such Loan had such event not occurred, at the Adjusted LIBO Rate that would have been applicable to such Loan, for the period from the date of such event to the last day of the then current Interest Period therefor (or, in the case of a failure to borrow, convert or continue a Eurodollar Loan, for the period that would have been the Interest Period for such Loan), over (ii) the amount of interest which would accrue on such principal amount for such period at the interest rate which such Lender would bid were it to bid, at the commencement of such period, for deposits in Dollars of a comparable amount and period from other banks in the Eurodollar market. A certificate of any Lender setting forth any amount or amounts that such Lender is entitled to receive pursuant to this Section 2.16, together with a calculation of such amount or amounts (the form of which is reasonably acceptable to the Administrative Agent), shall be delivered to the Borrower and shall be conclusive absent manifest error. The Borrower shall pay such Lender the amount shown as due on any such certificate within 10 days after receipt thereof.
Section 2.17 Taxes .
(a) Except as otherwise required by Governmental Rule, any and all payments by or on account of any Obligation shall be made free and clear of and without deduction or withholding for or on account of any Taxes; provided that, if by Governmental Rule any Taxes are required to be deducted or withheld from any such payments, then (i) the applicable Loan Party shall make such deductions or withholdings, (ii) the applicable Loan Party shall timely pay or cause to be paid the full amount deducted or withheld to the relevant Governmental Authority in accordance with applicable Governmental Rule and (iii) to the extent that such Taxes consist of Indemnified Taxes, the sum payable by or on behalf of the Borrower shall be increased as necessary so that after such deduction or withholding has been made (including such deductions and withholdings of Indemnified Taxes applicable to additional sums payable under this Section 2.17(a)) the applicable Recipient receives an amount equal to the sum it would have received had no such deduction or withholding been made.
 
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(b) In addition, the Borrower shall timely pay or cause to be paid any Other Taxes to the relevant Governmental Authority in accordance with applicable Governmental Rule.
(c) The Borrower shall indemnify or cause to be indemnified each Lender Party, within 10 days after written demand therefor, for the full amount of any Indemnified Taxes payable or paid by such Lender Party (other than any penalties and interest resulting from gross negligence or willful misconduct, as determined by a final non-appealable judgment of the highest court of competent jurisdiction, of such Lender Party and without duplication of any amounts indemnified under Section 2.17(a)) including Indemnified Taxes imposed or asserted on or attributable to amounts payable under this Section 2.17(c)) and any reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability and setting forth in reasonable detail the calculation for such payment or liability delivered to the Borrower by a Lender Party, or by the Administrative Agent on its own behalf or on behalf of a Lender Party, shall be conclusive absent manifest error of such Lender Party or the Administrative Agent; provided that the Borrower shall not be required to compensate a Lender Party pursuant to this Section 2.17 for any Indemnified Taxes unless such Lender Party requests compensation from the Borrower not later than 365 days after the earlier of (i) the date on which the relevant Governmental Authority makes written demand upon such Lender Party for payment of such Indemnified Taxes, and (ii) the date on which such Lender Party has made payment of such Indemnified Taxes.
(d) As soon as practicable after any payment of Indemnified Taxes or Other Taxes by or on behalf of the Borrower to a Governmental Authority, the Borrower shall deliver to the Administrative Agent the original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment, a copy of the return reporting such payment or other evidence of such payment reasonably satisfactory to the Administrative Agent.
(e) (i) Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document shall deliver to the Borrower and the Administrative Agent, at the time or times reasonably requested by the Borrower or the Administrative Agent, such properly completed and executed documentation reasonably requested by the Borrower or the Administrative Agent as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Lender, if reasonably requested by the Borrower or the Administrative Agent, shall deliver such other documentation prescribed by applicable law or reasonably requested by the Borrower or the Administrative Agent as will enable the Borrower or the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in Section 2.17(e)(ii)(A), (ii)(B) and (ii)(D) below) shall not be required if in the Lender’s reasonable judgment such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender.
(ii) Without limiting the generality of the foregoing,
 
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(A) any Lender that is a U.S. Person shall deliver to the Borrower and the Administrative Agent on or prior to the date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), executed originals of IRS Form W-9 certifying that such Lender is exempt from U.S. federal backup withholding Tax;
(B) any Non-U.S. Lender shall, to the extent it is legally entitled to do so, deliver to the Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Non-U.S. Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), whichever of the following is applicable:
i. in the case of a Non-U.S. Lender claiming the benefits of an income tax treaty to which the United States is a party (x) with respect to payments of interest under any Loan Document, executed originals of IRS Form W-8BEN or IRS Form W-8BEN-E establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty and (y) with respect to any other applicable payments under any Loan Document, IRS Form W-8BEN or IRS W-8BEN-E establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty;
ii. executed originals of IRS Form W-8ECI;
iii. in the case of a Non-U.S. Lender claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, (x) a certificate substantially in the form of Exhibit G-1 to the effect that such Non-U.S. Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, a “10 percent shareholder” of the Borrower within the meaning of Section 881(c)(3)(B) of the Code, or a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code (a “ U.S. Tax Compliance Certificate ”) and (y) executed originals of IRS Form W-8BEN or IRS Form W-8BEN-E; or
iv. to the extent a Non-U.S. Lender is not the beneficial owner, executed originals of IRS Form W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN or IRS Form W-8BEN-E, a U.S. Tax Compliance Certificate substantially in the form of Exhibit G-2 or Exhibit G-3 , IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that if the Non-U.S. Lender is a partnership and one or more direct or indirect partners of such Non-U.S. Lender are claiming the portfolio interest exemption, such Non-U.S. Lender may provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit G-4 on behalf of each such direct and indirect partner;
 
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(C) any Non-U.S. Lender shall, to the extent it is legally entitled to do so, deliver to the Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Non-U.S. Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), executed originals of any other form prescribed by applicable law as a basis for claiming exemption from or a reduction in U.S. federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by applicable law to permit the Borrower or the Administrative Agent to determine the withholding or deduction required to be made; and
(D) if a payment made to a Recipient under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Recipient were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Recipient shall deliver to the Borrower and the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by the Borrower or the Administrative Agent such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrower or the Administrative Agent as may be necessary for the Borrower and the Administrative Agent to comply with their obligations under FATCA and to determine that such Recipient has complied with such Recipient’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this clause (D), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.
Each Recipient agrees that if any form or certification it previously delivered expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the Borrower and the Administrative Agent in writing of its legal inability to do so.
(f) Each Lender shall severally indemnify the Administrative Agent, within 10 days after demand therefor, for (i) any Indemnified Taxes attributable to such Lender (but only to the extent that the Borrower has not already indemnified the Administrative Agent for such Indemnified Taxes and without limiting the obligation of the Borrower to do so), (ii) any Taxes attributable to such Lender’s failure to comply with the provisions of Section 9.04(d) relating to the maintenance of a Participant Register and (iii) any Excluded Taxes attributable to such Lender, in each case, that are payable or paid by the Administrative Agent in connection with any Loan Document, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to any Lender by the Administrative Agent shall be conclusive absent manifest error. Each Lender hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Lender under any Loan Document or otherwise payable by the Administrative Agent to the Lender from any other source against any amount due to the Administrative Agent under this paragraph (f).
 
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(g) If any party determines, in its sole discretion exercised in good faith, that it has received a refund of any Taxes as to which it has been indemnified pursuant to this Section 2.17 (including by the payment of additional amounts pursuant to this Section 2.17), it shall pay to the indemnifying party an amount equal to such refund (but only to the extent of indemnity payments made under this Section 2.17 with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses (including Taxes) of such indemnified party and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund). Such indemnifying party, upon the request of such indemnified party, shall repay to such indemnified party the amount paid over pursuant to this paragraph (g) (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) in the event that such indemnified party is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary in this paragraph (g), in no event will the indemnified party be required to pay any amount to an indemnifying party pursuant to this paragraph (g) the payment of which would place the indemnified party in a less favorable net after-Tax position than the indemnified party would have been in if the Tax subject to indemnification and giving rise to such refund had not been deducted, withheld or otherwise imposed and the indemnification payments or additional amounts with respect to such Tax had never been paid. This paragraph shall not be construed to require any indemnified party to make available its Tax returns (or any other information relating to its Taxes that it deems confidential) to the indemnifying party or any other Person.
(h) For purposes of this Section 2.17, the term “Lender” includes any Issuing Bank and the term “Governmental Rule” includes FATCA.
Section 2.18 Payments Generally; Pro Rata Treatment; Sharing of Set-offs.
(a) Unless otherwise specified, the Borrower shall make each payment required to be made by it hereunder (whether of principal, interest, fees or reimbursement of LC Disbursements, or of amounts payable under Section 2.15, 2.16 or 2.17, or otherwise) prior to 2:00 p.m., New York City time, on the date when due, in immediately available funds, without condition or deduction for any defense, recoupment, set-off or counterclaim. Any amounts received after such time on any date may, in the discretion of the Administrative Agent, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon. All such payments shall be made to the Administrative Agent to the applicable account designated to the Borrower by the Administrative Agent, except that payments required to be made directly to any Issuing Bank or the Swingline Lender shall be so made and payments pursuant to Sections 2.15, 2.16, 2.17 and 9.05 shall be made directly to the Persons entitled thereto. The Administrative Agent shall distribute any such payments received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof, and any such payments not so distributed by the Administrative Agent within one Business Day of receipt thereof shall bear interest at a rate equal to the greater of (i) the Federal Funds Effective Rate and (ii) a rate reasonably determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, which shall be payable by the Administrative Agent. If any payment hereunder shall be due on a day that is not a Business Day, the date for
 
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payment shall be extended to the next succeeding Business Day, and, in the case of any payment accruing interest, interest thereon shall be payable for the period of such extension. All payments hereunder of (A) principal or interest in respect of any Loan or (B) any other amount due hereunder or under any other Loan Document shall be made in Dollars. Any payment required to be made by the Administrative Agent hereunder shall be deemed to have been made by the time required if the Administrative Agent shall, at or before such time, have taken the necessary steps to make such payment in accordance with the regulations or operating procedures of the clearing or settlement system used by the Administrative Agent to make such payment.
(b) If at any time insufficient funds are received by and available to the Administrative Agent from the Borrower to pay fully all amounts of principal, call premium, unreimbursed LC Disbursements, interest and fees then due from the Borrower hereunder, such funds shall be applied (i) first, towards payment of interest and fees then due from the Borrower hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, and (ii) second, towards payment of principal, call premium and unreimbursed LC Disbursements then due from the Borrower hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal, call premium and unreimbursed LC Disbursements then due to such parties.
(c) Except to the extent otherwise provided herein: (i) each Borrowing of a particular Class shall be made from the relevant Lenders, each payment of commitment fee under Section 2.12 shall be made for account of the relevant Lenders, and each termination or reduction of the amount of the Commitments of a particular Class under Section 2.08 shall be applied to the respective Commitments of such Class of the relevant Lenders, pro rata according to the amounts of their respective Commitments of such Class; (ii) each Borrowing of any Class shall be allocated pro rata among the relevant Lenders according to the amounts of their respective Commitments of such Class (in the case of the making of Loans) or their respective Loans of such Class that are to be included in such Borrowing (in the case of conversions and continuations of Loans); (iii) each payment or prepayment of principal of Revolving Loans, Tranche B Term Loans and Incremental Term Loans of any Series by the Borrower shall be made for the account of the relevant Lenders pro rata in accordance with the respective unpaid principal amounts of the Loans of such Class held by them; and (iv) each payment of interest on Revolving Loans, Tranche B Term Loans and Incremental Term Loans of any Series by the Borrower shall be made for the account of the relevant Lenders pro rata in accordance with the amounts of interest on such Loans then due and payable to the respective Lenders.
(d) If any Lender shall, by exercising any right of set-off or counterclaim, through the application of any proceeds of Collateral or otherwise, obtain payment in respect of any principal of or interest on any of its Loans or participations in LC Disbursements or Swingline Loans resulting in such Lender receiving payment of a proportion of the aggregate amount of its Loans and participations in LC Disbursements and Swingline Loans and accrued interest thereon greater than its pro rata share thereof as provided herein, then the Lender receiving such greater proportion shall (i) notify the Administrative Agent of such fact, and
(ii) purchase (for cash at face value) participations in the Loans and participations in LC Disbursements and Swingline Loans of the other Lenders, or make such other adjustments as shall be equitable, so that the benefit of all such payments shall be shared by the Lenders ratably
 
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in accordance with the aggregate amount of principal of and accrued interest on their Loans and participations in LC Disbursements and Swingline Loans; provided that (A) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (B) the provisions of this paragraph (d) shall not be construed to apply to any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement or any payment obtained by a Lender as consideration for the assignment of, or sale of a participation in, any of its Loans or participations in LC Disbursements or Swingline Loans to any assignee or participant, other than to the Borrower (as to which the provisions of this paragraph (d) shall apply (other than in the case of any payment made by the Borrower for the purchase of Term Loans pursuant to Section 9.04(f)). The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participation.
(e) Unless the Administrative Agent shall have received notice from the Borrower prior to the date on which any payment is due to the Administrative Agent for the account of the Lenders or Issuing Banks hereunder that the Borrower will not make such payment, the Administrative Agent may assume that the Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders or Issuing Banks, as the case may be, the amount due. In such event, if the Borrower has not in fact made such payment, then each of the Lenders or Issuing Banks, as the case may be, severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender or Issuing Bank with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the greater of (i) the Federal Funds Effective Rate and (ii) a rate reasonably determined by the Administrative Agent in accordance with banking industry rules on interbank compensation.
(f) If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.04(c), 2.05(d), 2.05(e), 2.06(b) or 2.18(e), then the Administrative Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the Administrative Agent for the account of such Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paid.
Section 2.19 Mitigation Obligations; Replacement of Lenders .
(a) If (i) any Lender requests compensation under Section 2.15, (ii) the Borrower is required to pay any additional amount to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 2.17, or (iii) any Lender exercises its rights under Section 2.20, then such Lender shall use reasonable efforts to designate a different lending office for funding or booking its Loans hereunder or to assign its rights and obligations hereunder to another of its offices, branches or Affiliates, if, in the reasonable judgment of such Lender, such designation or assignment (i) would eliminate or reduce amounts payable pursuant to Section 2.15 or 2.17 or eliminate such Lender’s need to exercise rights under Section 2.20, as
 
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applicable, in the future and (ii) would not subject such Lender to any material unreimbursed cost or expense and would not otherwise be disadvantageous to such Lender in any material respect. The Borrower hereby agrees to pay all reasonable costs and expenses incurred by any such Lender in connection with the process of making any such designation or assignment.
(b) If (i) any Lender requests compensation under Section 2.15, (ii) the Borrower is required to pay any additional amount to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 2.17, (iii) any Lender exercises its rights under Section 2.20, or (iv) any Lender is a Defaulting Lender, then the Borrower may, at its sole expense and effort, upon notice to such Lender and the Administrative Agent, require such Lender to assign and delegate, without recourse (in accordance with and subject to the restrictions contained in, and consents required by, Section 9.04), all of its interests, rights and obligations under this Agreement and the other Loan Documents to an assignee that shall assume such obligations (which assignee may be another Lender, if a Lender accepts such assignment); provided that (A) the Borrower shall have paid to the Administrative Agent the assignment fee specified in Section 9.04, (B) such Lender shall have received payment of an amount equal to the outstanding principal of its Loans and, if applicable, participations in LC Disbursements and Swingline Loans, accrued interest thereon, accrued fees and all other amounts payable to it hereunder and under the other Loan Documents, from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Borrower (in the case of all other amounts), (C) in the case of any such assignment resulting from a claim for compensation under Section 2.15 or payments required to be made pursuant to Section 2.17, such assignment will result in a reduction in such compensation or payments and (D) such assignment does not conflict with applicable law. A Lender shall not be required to make any such assignment or delegation if, prior thereto, as a result of a waiver by such Lender or otherwise, the circumstances entitling the Borrower to require such assignment and delegation cease to apply. Nothing in this Section 2.19 shall be deemed to prejudice any rights that the Borrower may have against any Lender that is a Defaulting Lender.
(c) If (i) any Lender has failed to consent to a proposed amendment, waiver, discharge or termination which pursuant to the terms of Section 9.08 requires the consent of all of the Lenders affected and with respect to which the Required Lenders shall have granted their consent or (ii) any Lender has failed to consent to one or more Permitted Amendments set forth in any Loan Modification Offer (each such Lender, a “ Non-Consenting Lender ”), then the Borrower shall have the right (unless such Non-Consenting Lender grants such consent) to replace such Non-Consenting Lender by requiring such Non-Consenting Lender to assign its Loans and Commitments to one or more assignees; provided that (a) any such Non-Consenting Lender must be replaced with a Lender that grants the applicable consent, (b) all Obligations of the Borrower owing to such Non-Consenting Lender being replaced shall be paid in full to such Non-Consenting Lender concurrently with such assignment and (c) the replacement Lender shall purchase the foregoing by paying to such Non-Consenting Lender a price equal to the principal amount thereof plus accrued and unpaid interest thereon. In connection with any such assignment, the Borrower, the Administrative Agent, such Non-Consenting Lender and the replacement Lender shall otherwise comply with Section 9.04.
 
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(d) Each Lender agrees that, if the Borrower shall have replaced such Lender in accordance with this Section 2.19, then such Lender shall execute and deliver to the Administrative Agent an Assignment and Assumption to evidence the assignment of all of its interests, rights and obligations under this Agreement and deliver to the Administrative Agent any promissory note(s) evidencing the Loans assigned pursuant to such Assignment and Assumption; provided that the failure of any Lender replaced pursuant to this Section 2.19 to execute an Assignment and Assumption or deliver such promissory notes shall not render the related assignment invalid and such assignment shall be recorded in the Register and such promissory notes shall be deemed cancelled. Each Lender hereby irrevocably appoints the Administrative Agent (such appointment being coupled with an interest) as such Lender’s attorney-in-fact, with full authority in the place and stead of such Lender and in the name of such Lender, from time to time in the Administrative Agent’s discretion, with prior written notice to such Lender, to take any action and to execute any such Assignment and Assumption or other instrument that the Administrative Agent may deem reasonably necessary to carry out the provisions of this clause (d).
Section 2.20 Illegality . If any Lender reasonably determines that any Change in Law has made it unlawful, or that any Governmental Authority has asserted after the Closing Date that it is unlawful, for any Lender or its applicable lending office to make or maintain any Eurodollar Loans, then, on notice thereof by such Lender to the Borrower through the Administrative Agent, any obligations of such Lender to make or continue Eurodollar Loans or to convert ABR Borrowings to Eurodollar Borrowings, as the case may be, shall be suspended until such Lender notifies the Administrative Agent and the Borrower that the circumstances giving rise to such determination no longer exist. Upon receipt of such notice, the Borrower shall, upon demand from such Lender (with a copy to the Administrative Agent), convert all such Eurodollar Borrowings of such Lender to ABR Borrowings, on the last day of the Interest Period therefor, if such Lender may lawfully continue to maintain such Eurodollar Borrowings to such day, or immediately, if such Lender may not lawfully continue to maintain such Loans. Upon any such conversion, the Borrower shall pay accrued interest on the amount so converted.
Section 2.21 Defaulting Lenders . Notwithstanding any provision of this Agreement to the contrary, if any Revolving Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Revolving Lender is a Defaulting Lender:
(a) commitment fees shall cease to accrue on the unused amount of the Revolving Commitment of such Defaulting Lender pursuant to Section 2.12(a);
(b) the Revolving Commitment and Revolving Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders or any other requisite Lenders have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment, waiver or other modification pursuant to Section 9.08); provided that any amendment, waiver or other modification requiring the consent of all Lenders or all Lenders affected thereby shall, except as otherwise provided in Section 9.08, require the consent of such Defaulting Lender in accordance with the terms hereof;
(c) if any Swingline Exposure or LC Exposure exists at the time such Revolving Lender becomes a Defaulting Lender then:
 
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(i) the Swingline Exposure and LC Exposure of such Defaulting Lender shall be reallocated among the Non-Defaulting Lenders in accordance with their respective Applicable Percentages but only to the extent that the sum of all Non-Defaulting Lenders’ Revolving Exposures plus such Defaulting Lender’s Swingline Exposure and LC Exposure does not exceed the sum of all Non-Defaulting Lenders’ Revolving Commitments;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall within two Business Days following notice by the Administrative Agent (A) first, prepay the portion of such Defaulting Lender’s Swingline Exposure that has not been reallocated and (B) second, cash collateralize for the benefit of the Issuing Banks the portion of such Defaulting Lender’s LC Exposure that has not been reallocated pursuant to clause (i) above in accordance with the procedures set forth in Section 2.05(i) for so long as such LC Exposure is outstanding;
(iii) if the Borrower cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, the Borrower shall not be required to pay participation fees to such Defaulting Lender pursuant to Section 2.12(b) with respect to such portion of such Defaulting Lender’s LC Exposure for so long as such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if any portion of the LC Exposure of such Defaulting Lender is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.12(a) and 2.12(b) shall be adjusted to give effect to such reallocation; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any Issuing Bank or any other Revolver Lender hereunder, all participation fees payable under Section 2.12(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the Issuing Banks (and allocated among them ratably based on each Issuing Bank’s Fronting Exposure with respect to such Defaulting Lender) until and to the extent that such LC Exposure is reallocated and/or cash collateralized; and
(d) any payment of principal, interest, fees or other amounts received by the Administrative Agent for the account of such Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to Article VII or otherwise) or received by the Administrative Agent from a Defaulting Lender pursuant to Section 9.06 shall be applied at such time or times as may be determined by the Administrative Agent as follows: first , to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder; second , to the payment on a pro rata basis of any amounts owing by such Defaulting Lender to any Issuing Bank or the Swingline Lender hereunder; third , to cash collateralize the Issuing Banks’ Fronting Exposure with respect to such Defaulting Lender in accordance with Section 2.05(i); fourth , as the Borrower may request (so long as no Default or Event of Default exists), to the funding of any Revolving Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent; fifth , if so determined by the Administrative Agent and the Borrower, to be held in a deposit account and
 
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released pro rata in order to (x) satisfy such Defaulting Lender’s potential future funding obligations with respect to Revolving Loans under this Agreement and (y) cash collateralize the Issuing Banks’ future Fronting Exposure with respect to such Defaulting Lender with respect to future Letters of Credit issued under this Agreement, in accordance with Section 2.05(i); sixth , to the payment of any amounts owing to the Lenders, the Issuing Banks or the Swingline Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender, the Issuing Banks or the Swingline Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; seventh , so long as no Default or Event of Default exists, to the payment of any amounts owing to the Borrower as a result of any judgment of a court of competent jurisdiction obtained by the Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; and eighth , to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is a payment of the principal amount of any Revolving Loans or LC Disbursements in respect of which such Defaulting Lender has not fully funded its appropriate share, and (y) such Revolving Loans were made or the related Letters of Credit were issued at a time when the conditions set forth in Section 4.02 were satisfied or waived, such payment shall be applied solely to pay the Revolving Loans of, and LC Disbursements owed to, all Non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of any Revolving Loans of, or LC Disbursements owed to, such Defaulting Lender until such time as all Revolving Loans and funded and unfunded participations in LC Disbursements and Swingline Loans are held by the Revolving Lenders pro rata in accordance with their Applicable Percentages without giving effect to Section 2.21(c). Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to post cash collateral pursuant to this Section 2.21(d) shall be deemed paid to and redirected by such Defaulting Lender, and each Revolving Lender irrevocably consents hereto.
(e) so long as such Revolving Lender is a Defaulting Lender, the Swingline Lender shall not be required to fund any Swingline Loan and no Issuing Bank shall be required to issue, amend, renew or extend any Letter of Credit, unless in each case it is satisfied that the related exposure and the Defaulting Lender’s then outstanding Swingline Exposure or LC Exposure, as applicable, will be fully covered by the Revolving Commitments of the Non-Defaulting Lenders and/or cash collateral provided by the Borrower in accordance with Section 2.21(c), and participating interests in any such funded Swingline Loan or in any such issued, amended, renewed or extended Letter of Credit will be allocated among the Non-Defaulting Lenders in a manner consistent with Section 2.21(c)(i) (and such Defaulting Lender shall not participate therein).
In the event that (x) a Bankruptcy Event with respect to a Revolving Lender shall have occurred following the date hereof and for so long as such Bankruptcy Event shall continue or (y) the Swingline Lender or any Issuing Bank has a good faith belief that any Revolving Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, the Swingline Lender shall not be required to fund any Swingline Loan, and no Issuing Bank shall be required to issue, amend, renew or extend any Letter of Credit, unless the Swingline Lender or such Issuing Bank, as the case may be, shall have entered into arrangements with the Parent and the Borrower or the applicable Revolving Lender satisfactory to the Swingline Lender or such Issuing Bank, as the case may be, to defease any risk to it in respect of such Lender hereunder.
 
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In the event that the Administrative Agent, the Parent, the Borrower, the Swingline Lender and each Issuing Bank each agree that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Swingline Exposure and LC Exposure of the Revolving Lenders shall be readjusted to reflect the inclusion of such Lender’s Revolving Commitment and on such date such Lender shall purchase at par such of the Revolving Loans of the other Revolving Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Revolving Lender to hold such Loans in accordance with its Applicable Percentage.
Section 2.22 Incremental Facilities . (a) The Borrower may on one or more occasions, by written notice to the Administrative Agent, request (i) during the Revolving Availability Period, the establishment of Incremental Revolving Commitments and/or (ii) the establishment of Incremental Term Commitments, provided that the aggregate amount of all the Incremental Commitments established at any time shall not exceed the Permitted Incremental Amount at such time. Each such notice shall specify (A) the date on which the Borrower proposes that the Incremental Revolving Commitments or the Incremental Term Commitments, as applicable, shall be effective, which shall be a date not less than 10 Business Days (or such shorter period as may be agreed to by the Administrative Agent) after the date on which such notice is delivered to the Administrative Agent and (B) the amount of the Incremental Revolving Commitments or Incremental Term Commitments, as applicable, being requested (it being agreed that (x) any Lender approached to provide any Incremental Revolving Commitment or Incremental Term Commitment may elect or decline, in its sole discretion, to provide such Incremental Revolving Commitment or Incremental Term Commitment (and any such Lender that fails to respond to such approach shall be deemed to have declined to provide such Incremental Revolving Commitment or Incremental Term Commitment, as the case may be) and (y) any Person that the Borrower proposes to become an Incremental Lender, if such Person is not then a Lender, an Affiliate of a Lender or an Approved Fund must be an Eligible Assignee and must be reasonably acceptable to the Administrative Agent and, in the case of any proposed Incremental Revolving Lender, each Issuing Bank and the Swingline Lender).The terms and conditions of any Incremental Revolving Commitment and Loans and other extensions of credit to be made thereunder shall be identical to those of the Revolving Commitments and Loans and other extensions of credit made thereunder, and shall be treated as a single Class with such Revolving Commitments and Loans. The terms and conditions of any Incremental Term Commitments and the Incremental Term Loans to be made thereunder shall be, except as otherwise set forth herein or in the applicable Incremental Facility Agreement, identical to those of the Tranche B Term Commitments and the Tranche B Term Loans; provided that (i) if the Weighted Average Yield applicable to any Incremental Term Loans exceeds by more than 0.50% per annum the applicable Weighted Average Yield payable pursuant to the terms of this Agreement, as amended through the date of such calculation, with respect to Tranche B Term Loans, then the Applicable Margin then in effect for Tranche B Term Loans shall automatically be increased to a level such that the Weighted Average Yield with respect to the Tranche B Term Loans is 0.50% per annum below the Weighted Average Yield with respect to such Incremental Term Loans, (ii) the weighted average life to maturity of any Incremental Term Loans shall be no shorter than the remaining weighted average life to maturity of the Tranche B Term Loans and (iii) no
 
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Incremental Term Loan Maturity Date shall be earlier than the Tranche B Term Maturity Date. Any Incremental Term Commitments established pursuant to an Incremental Facility Agreement that have identical terms and conditions, and any Incremental Term Loans made thereunder, shall be designated as a separate series (each a “ Series ”) of Incremental Term Commitments and Incremental Term Loans for all purposes of this Agreement.
(c) The Incremental Commitments shall be effected pursuant to one or more Incremental Facility Agreements executed and delivered by the Parent, the Borrower, each Incremental Lender providing such Incremental Commitments and the Administrative Agent; provided that no Incremental Commitments shall become effective unless (i) no Default or Event of Default shall have occurred and be continuing on the date of effectiveness thereof, both immediately prior to and immediately after giving effect to such Incremental Commitments and the making of Loans and issuance of Letters of Credit thereunder to be made on such date, (ii) on the date of effectiveness thereof, the representations and warranties set forth in Article III hereof and in the other Loan Documents shall be true and correct (A) in the case of the representations and warranties qualified as to materiality, in all respects, and (B) otherwise, in all material respects, in each case on and as of such date, except in the case of any such representation and warranty that expressly relates to a prior date, in which case such representation and warranty shall be so true and correct on and as of such prior date, (iii) after giving effect to such Incremental Commitments and the making of Loans and other extensions of credit thereunder to be made on the date of effectiveness thereof, the Total Adjusted Net Leverage Ratio shall not exceed the Total Adjusted Net Leverage Ratio set forth in Section 6.14 with respect to the Fiscal Quarter of the Parent most recently ended as of the date of effectiveness of such Incremental Commitments on a pro forma basis (as if any Incremental Revolving Commitments were fully drawn), (iv) the Borrower shall make any payments required to be made pursuant to Section 2.16 in connection with such Incremental Commitments and the related transactions under this Section and (v) the Parent and the Borrower shall have delivered to the Administrative Agent such legal opinions, board resolutions, secretary’s certificates, officer’s certificates and other documents as shall reasonably be requested by the Administrative Agent in connection with any such transaction. Each Incremental Facility Agreement may, without the consent of any Lender, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to give effect to the provisions of this Section.
(d) Upon the effectiveness of an Incremental Commitment of any Incremental Lender, (i) such Incremental Lender shall be deemed to be a “Lender” (and a Lender in respect of Commitments and Loans of the applicable Class) hereunder, and henceforth shall be entitled to all the rights of, and benefits accruing to, Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and shall be bound by all agreements, acknowledgements and other obligations of Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and under the other Loan Documents, and (ii) in the case of any Incremental Revolving Commitment, (A) such Incremental Revolving Commitment shall constitute (or, in the event such Incremental Lender already has a Revolving Commitment, shall increase) the Revolving Commitment of such Incremental Lender and (B) the Aggregate Revolving Commitment shall be increased by the amount of such Incremental Revolving Commitment, in each case, subject to further increase or reduction from time to time as set forth in the definition of the term “Revolving Commitment”. For the avoidance of doubt, upon the effectiveness of any Incremental Revolving Commitment, the Revolving Exposure of the Incremental Revolving Lender holding such Commitment, and the Applicable Percentage of all the Revolving Lenders, shall automatically be adjusted to give effect thereto.
 
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(e) On the date of effectiveness of any Incremental Revolving Commitments, each Revolving Lender shall assign to each Incremental Revolving Lender holding such Incremental Revolving Commitment, and each such Incremental Revolving Lender shall purchase from each Revolving Lender, at the principal amount thereof (together with accrued interest), such interests in the Revolving Loans and participations in Letters of Credit and Swingline Loans outstanding on such date as shall be necessary in order that, after giving effect to all such assignments and purchases, all Borrowings of such Revolving Loans and participations in Letters of Credit and Swingline Loans will be held by all the Revolving Lenders (including such Incremental Revolving Lenders) ratably in accordance with their Applicable Percentages after giving effect to the effectiveness of such Incremental Revolving Commitment.
(f) Subject to the terms and conditions set forth herein and in the applicable Incremental Facility Agreement, each Lender holding an Incremental Term Commitment of any Series shall make a loan to the Borrower in an amount equal to such Incremental Term Commitment on the date specified in such Incremental Facility Agreement.
(g) The Administrative Agent shall notify the Lenders promptly upon receipt by the Administrative Agent of any notice from the Borrower referred to in Section 2.22(a) and of the effectiveness of any Incremental Commitments, in each case advising the Lenders of the details thereof and, in the case of effectiveness of any Incremental Revolving Commitments, of the Applicable Percentages of the Revolving Lenders after giving effect thereto and of the assignments required to be made pursuant to Section 2.22(e).
Section 2.23 Loan Modification Offers . (a) The Borrower may on one or more occasions, by written notice to the Administrative Agent, make one or more offers (each, a “ Loan Modification Offer ”) to all the Lenders of one or more Classes (each Class subject to such a Loan Modification Offer, an “ Affected Class ”) to make one or more Permitted Amendments pursuant to procedures reasonably specified by the Administrative Agent and reasonably acceptable to the Borrower. Such notice shall set forth (i) the terms and conditions of the requested Permitted Amendment and (ii) the date on which such Permitted Amendment is requested to become effective (which shall not be less than 10 Business Days nor more than 30 Business Days after the date of such notice, unless otherwise agreed to by the Administrative Agent). Permitted Amendments shall become effective only with respect to the Loans and Commitments of the Lenders of the Affected Class that accept the applicable Loan Modification Offer (such Lenders, the “ Accepting Lenders ”) and, in the case of any Accepting Lender, only with respect to such Lender’s Loans and Commitments of such Affected Class as to which such Lender’s acceptance has been made. A Permitted Amendment shall be effected pursuant to a Loan Modification Agreement executed and delivered by the Parent, the Borrower, each applicable Accepting Lender and the Administrative Agent; provided that no Permitted Amendment shall become effective unless the Parent and the Borrower shall have delivered to the Administrative Agent such legal opinions, board resolutions, secretary’s certificates, officer’s certificates and other documents as shall reasonably be requested by the Administrative Agent in connection therewith. The Administrative Agent shall promptly notify each Lender as to the
 
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effectiveness of each Loan Modification Agreement. Each Loan Modification Agreement may, without the consent of any Lender other than the applicable Accepting Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to give effect to the provisions of this Section, including any amendments necessary to treat the applicable Loans and/or Commitments of the Accepting Lenders as a new “Class” of loans and/or commitments hereunder; provided that, in the case of any Loan Modification Offer relating to Revolving Commitments or Revolving Loans, except as otherwise agreed to by each Issuing Bank and the Swingline Lender, (i) the allocation of the participation exposure with respect to any then-existing or subsequently issued or made Letter of Credit or Swingline Loan as between the commitments of such new “Class” and the remaining Revolving Commitments shall be made on a ratable basis as between the commitments of such new “Class” and the remaining Revolving Commitments and (ii) the Revolving Availability Period and the Revolving Maturity Date, as such terms are used in reference to Letters of Credit or Swingline Loans, may not be extended without the prior written consent of each Issuing Bank and the Swingline Lender, as applicable.
Section 2.24 Refinancing Facilities . (a) The Borrower may, on one or more occasions, by written notice to the Administrative Agent, request the establishment hereunder of (i) one or more additional Classes of revolving commitments (the “ Refinancing Revolving Commitments ”) pursuant to which each Person providing such a commitment (a “ Refinancing Revolving Lender ”) will make revolving loans to the Borrower (“ Refinancing Revolving Loans ”) and, if applicable under such Class, acquire participations in the Letters of Credit and Swingline Loans or (ii) one or more additional Classes of term loan commitments (the “ Refinancing Term Commitments ”) pursuant to which each Person providing such a commitment (a “ Refinancing Term Lender ”) will make term loans to the Borrower (the “ Refinancing Term Loans ”). Each such notice shall specify (A) the date on which the Borrower proposes that the Refinancing Revolving Commitments or the Refinancing Term Commitments, as applicable, shall be effective, which shall be a date not less than 10 Business Days (or such shorter period as may be agreed to by the Administrative Agent) after the date on which such notice is delivered to the Administrative Agent and (B) the amount of the Refinancing Revolving Commitments or Refinancing Term Commitments, as applicable, being requested (it being agreed that (x) any Lender approached to provide any Refinancing Revolving Commitment or Refinancing Term Commitment may elect or decline, in its sole discretion, to provide such Refinancing Revolving Commitment or Refinancing Term Commitment (and any such Lender that fails to respond to such approach shall be deemed to have declined to provide such Refinancing Revolving Commitment or Refinancing Term Commitment, as the case may be), (y) any Person that the Borrower proposes to become a Refinancing Revolving Lender or a Refinancing Term Lender, if such Person is not then a Lender, an Affiliate of a Lender or an Approved Fund must be an Eligible Assignee and must be reasonably acceptable to the Administrative Agent and (z) any Person that the Borrower proposes to become a Refinancing Revolving Lender under a Class of Revolving Commitments that acquires participations in Letters of Credit and/or Swingline Loans, if such Person is not then a Revolving Lender, an Affiliate of a Revolving Lender or an Approved Fund with respect to a Revolving Lender must be reasonably acceptable to, as applicable, each Issuing Bank and/or the Swingline Lender.
 
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(b) The Refinancing Commitments shall be effected pursuant to one or more Refinancing Facility Agreements executed and delivered by the Parent, the Borrower, each Refinancing Lender providing such Refinancing Commitments, the Administrative Agent and, in the case of Refinancing Revolving Commitments under a Class that acquires participations in Letters of Credit or Swingline Loans, as applicable, each Issuing Bank and/or the Swingline Lender; provided that no Refinancing Commitments shall become effective unless (i) on the date of effectiveness thereof, no Default or Event of Default shall have occurred and be continuing or would result therefrom, (ii) on the date of effectiveness thereof, the representations and warranties set forth in Article III hereof and in the other Loan Documents shall be true and correct (A) in the case of the representations and warranties qualified or modified as to materiality in the text thereof, in all respects and (B) otherwise, in all material respects, in each case on and as of such date, except in the case of any such representation and warranty that expressly relates to an earlier date, in which case such representation and warranty shall be so true and correct on and as of such earlier date, (iii) the Parent and the Borrower shall have delivered to the Administrative Agent such legal opinions, board resolutions, secretary’s certificates, officer’s certificates and other documents as shall reasonably be requested by the Administrative Agent in connection therewith, (iv) in the case of any Refinancing Revolving Commitments, substantially concurrently with the effectiveness thereof, Revolving Commitments then in effect shall be terminated in an aggregate amount not less than the aggregate amount of such Refinancing Revolving Commitments and the Borrower shall make any prepayment or deposit required to be made under Section 2.11(b)(i) as a result thereof and shall pay all interest on the amounts prepaid and all fees accrued on the Revolving Commitments terminated (it being understood, however, that any Letters of Credit may continue to be outstanding under the Refinancing Revolving Commitments or under the pre-existing Revolving Commitments, in each case on terms agreed by each applicable Issuing Bank and specified in the applicable Refinancing Facility Agreement) and (v) in the case of any Refinancing Term Commitments, (A) substantially concurrently with the effectiveness thereof, the Borrower shall obtain Refinancing Term Loans thereunder and shall repay or prepay then outstanding Term Borrowings of any Class in an aggregate principal amount equal to the aggregate amount of such Refinancing Term Commitments (less the aggregate amount of accrued and unpaid interest with respect to such outstanding Term Borrowings and any reasonable fees, premium and expenses relating to such refinancing) and (B) any such prepayment of Term Borrowings of any Class shall be applied to reduce the subsequent scheduled repayments of Term Borrowings of such Class to be made pursuant to Section 2.10(a) in inverse order of maturity and, in the case of a prepayment of Eurodollar Term Borrowings, shall be subject to Section 2.16.
(c) The Refinancing Facility Agreement shall set forth, with respect to the Refinancing Commitments established thereby and the Refinancing Loans and other extensions of credit to be made thereunder, to the extent applicable, the following terms thereof: (i) the designation of such Refinancing Commitments and Refinancing Loans as a new “Class” for all purposes hereof, (ii) the stated termination and maturity dates applicable to the Refinancing Commitments or Refinancing Loans of such Class, provided that such stated termination and maturity dates shall not be earlier than the latest Revolving Maturity Date (in the case of Refinancing Revolving Commitments and Refinancing Revolving Loans) or the latest Maturity Date applicable to Term Loans (in the case of Refinancing Term Commitments and Refinancing Term Loans), (iii) in the case of any Refinancing Term Loans, any amortization applicable thereto and the effect thereon of any prepayment of such Refinancing Term Loans, provided that the weighted average life to maturity of any Refinancing Term Loans shall be no shorter than the remaining weighted average life to maturity of the Class of Term Loans then having the longest
 
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weighted average life, (iv) the interest rate or rates applicable to the Refinancing Loans of such Class, (v) the fees applicable to the Refinancing Commitments or Refinancing Loans of such Class, (vi) in the case of any Refinancing Term Loans, any closing fees or original issue discount applicable thereto, (vii) the initial Interest Period or Interest Periods applicable to the Refinancing Loans of such Class, (viii) any voluntary or mandatory commitment reduction or prepayment requirements applicable to the Refinancing Commitments or Refinancing Loans of such Class (which prepayment requirements, in the case of any Refinancing Term Loans, may provide that such Refinancing Term Loans may participate in any mandatory prepayment on a pro rata basis with other Term Loans, but may not provide for prepayment requirements that are more favorable to the Lenders holding such Refinancing Term Loans than to the Lenders holding any other Term Loans) and any restrictions on the voluntary or mandatory reductions or prepayments of Refinancing Commitments or Refinancing Loans of such Class, (ix) in the case of any Refinancing Revolving Commitments, whether such Commitments include an obligation to acquire participations in Letters of Credit and Swingline Loans and (x) any financial covenant with which the Parent and the Borrower shall be required to comply ( provided that any such financial covenant for the benefit of any Class of Refinancing Term Loans shall also be for the benefit of all other Classes of Loans and any such financial covenant for the benefit of any Class of Refinancing Revolving Loans shall also be for the benefit of all other Classes of Revolving Loans). Except as contemplated by the preceding sentence, the terms of the Refinancing Revolving Commitments and Refinancing Revolving Loans and other extensions of credit thereunder shall be substantially the same as the Revolving Commitments and Revolving Loans and other extensions of credit thereunder, and the terms of the Refinancing Term Commitments and Refinancing Term Loans shall be substantially the same as the terms of the Tranche B Term Commitments and the Tranche B Term Loans. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Refinancing Facility Agreement. Each Refinancing Facility Agreement may, without the consent of any Lender other than the applicable Refinancing Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to give effect to the provisions of this Section, including any amendments necessary to treat the applicable Refinancing Commitments and Refinancing Loans as a new “Class” of loans and/or commitments hereunder.
ARTICLE III.
REPRESENTATIONS AND WARRANTIES
Each of the Parent and the Borrower represents and warrants to each Lender Party that:
Section 3.01 Organization; Power and Authority . Each Group Member (a) is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, (b) has all requisite organizational power and authority to own its property and assets and to carry on its business as now conducted, (c) is qualified to do business and is in good standing in each jurisdiction where such qualification is required, except, in the case of the Borrower and the other Restricted Subsidiaries, where the failure to so qualify or be in good standing could not reasonably be expected to have a Material Adverse Effect, and (d) has the organizational power and authority to enter into the Transactions to be entered into by such Group Member.
 
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Section 3.02 Ownership of Equity Interests; Subsidiaries .
(a) The Equity Interests in the Parent and each Restricted Subsidiary have been duly authorized and validly issued and are fully paid and non-assessable. 100% of the Equity Interests in the Borrower are owned, beneficially and of record, directly by the Parent, free and clear of any Lien other than the Terminated Liens (which shall be released on or prior to the Closing Date), the Liens contemplated by the Security Documents and non-consensual Liens permitted under Section 6.01 arising by operation of law. There is no existing option, warrant, call, right, commitment or other agreement to which any Group Member is a party requiring, and there is no Equity Interest in the Parent or any Restricted Subsidiary outstanding which upon conversion or exchange would require, the issuance of any additional Equity Interests in the Parent or any Restricted Subsidiary or other securities convertible into, exchangeable for or evidencing the right to subscribe for or purchase an Equity Interest in the Parent or any Restricted Subsidiary. As of the Closing Date, the corporate and organizational structure of the direct owners of the Group Members is set forth on Schedule 3.02 . The Borrower has delivered to the Administrative Agent and the Lenders a true and complete copy of the HFOTCO Company Agreement (including each amendment, modification or supplement thereto) as in effect on the Closing Date. As of the Closing Date, the Parent is not a party to, or otherwise subject to, any legal, regulatory, contractual or other restriction (other than the Loan Documents, the HFOTCO Company Agreement and the limited liability company agreement of the Parent) that limits or restricts in any manner the right of the Parent to exercise the incidents of ownership of the Equity Interests in the Borrower owned by the Parent, including the right to vote, transfer or encumber such Equity Interests and the rights to exercise any rights or remedies under the HFOTCO Company Agreement relating to such Equity Interests.
(b) As of the Closing Date, (i) the Parent does not have any Subsidiaries (other than the Borrower) and (ii) the Borrower does not have any Subsidiaries.
Section 3.03 Authorization; No Conflict . The Transactions to be entered into by each Loan Party (a) have been duly authorized by all limited liability company, corporate or other organizational action, as applicable, required to be taken or obtained by such Loan Party and (b) will not (i) violate in any material respect (A) any provision of any Legal Requirement, (B) any provision of the HFOTCO Company Agreement or the limited liability agreement or other constitutive documents of such Loan Party, as applicable, or (C) any provision of any indenture, mortgage, deed of trust, loan, purchase or credit agreement, lease, Organizational Document or any other agreement or instrument to which such Loan Party is a party or by which it or any of its property is or may be bound, (ii) be in conflict in any material respect with, result in a material breach of or constitute (alone or with notice or lapse of time or both) a default under, or give rise to a right of or result in any cancellation or acceleration of any right or obligation (including any payment) or to a loss of a material benefit under, any such indenture, lease, agreement or other instrument, or (iii) result in the creation or imposition of any Lien upon or with respect to any property or assets now owned or hereafter acquired by such Loan Party, other than Liens permitted under Section 6.01.
Section 3.04 Enforceability . This Agreement and each other Loan Document to which any Loan Party is a party have been duly executed and delivered by such Loan Party and constitutes a legal, valid and binding obligation of such Loan Party, enforceable against the such Loan Party in accordance with its terms, subject to (a) the effects of bankruptcy, insolvency, moratorium, reorganization or other similar laws affecting creditors’ rights generally and (b) general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law).
 
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Section 3.05 Governmental Approvals . No action, consent or approval of, registration, filing or declaration with, Permit from, notice to, or any other action by, any Governmental Authority is or will be required in connection with (a) the due execution, delivery and performance by any Loan Party of the Loan Documents to which it is a party, (b) the consummation of the Transactions or (c) the grant by any Loan Party of the Liens granted or purported to be granted under the Security Documents to which it is a party or the validity, perfection and enforceability thereof or for the exercise by the Collateral Agent of its rights and remedies thereunder, except (i) such as are set forth on Schedule 3.05 , (ii) filings necessary to perfect Liens created under the Loan Documents, (iii) such as have been made or obtained and are in full force and effect, (iv) such as may be required under applicable securities laws in connection with any disposition of the Equity Interests included in the Collateral, (v) such as are not required to consummate the Transactions occurring on the Closing Date but are required to be obtained or made after the Closing Date to enable any Loan Party to comply with requirements of any applicable Legal Requirement including those required to maintain the existence and good standing of such Loan Party and (vi) such as those the failure to obtain which could not reasonably be expected to have a Material Adverse Effect.
Section 3.06 Financial Statements . The Borrower has furnished to the Administrative Agent and the Lenders (a) the audited consolidated balance sheet and related statements of income, stockholders’ equity and cash flows of the Parent and the Subsidiaries for the 2011, 2012 and 2013 Fiscal Years and (b) the unaudited consolidated balance sheet and related statements of income, stockholders’ equity and cash flows of the Parent and the Subsidiaries for the Fiscal Quarter ended March 31, 2014. Such financial statements fairly present in all material respects the financial position of the Parent and the Subsidiaries as of the respective dates thereof and the results of its operations and cash flows for the respective periods then ended and have been prepared in accordance with GAAP 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). As of the Closing Date, neither the Parent nor any Subsidiary has any material liabilities that are required to be disclosed in such financial statements of the Parent and the Subsidiaries for the Fiscal Quarter ended March 31, 2014, in accordance with GAAP, that are not reflected in such unaudited balance sheet (subject, in the case of any interim financial statements, to normal year-end adjustments).
Section 3.07 No Material Adverse Effect . Since December 31, 2013, there has been no change, event or loss affecting any Group Member that has resulted in or would reasonably be expected to result in, individually or in the aggregate, any Material Adverse Effect.
Section 3.08 Title to Properties; Possession Under Leases.
(a) Each Loan Party has good and indefeasible fee simple or valid leasehold title to all of the material properties and owned or leased by it, as the case may be (including all material owned or leased Real Property), in each case free and clear of Liens other than Liens permitted under Section 6.01. All material leases (including all material leases of Real Property) of each Loan Party as tenant are valid and subsisting and are in full force and effect in all material respects.
 
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(b) As of the Closing Date, Schedule 3.08(b) sets forth a complete and accurate list of all Real Property owned in fee simple by the Parent, the Borrower or any other Restricted Subsidiary, showing the street address, county or other relevant jurisdiction, state and record owner thereof.
(c) As of the Closing Date, Schedule 3.08(c) sets forth a complete and accurate list of all leases of Real Property under which the Parent, the Borrower or any other Restricted Subsidiary is the lessee, showing the street address, county or other relevant jurisdiction, state, lessor, lessee, and expiration date thereof.
(d) As of the Closing Date, none of the Parent, the Borrower or any other Restricted Subsidiary (i) has received written notice, or has knowledge, of any pending or contemplated condemnation proceeding affecting any Mortgaged Property or any sale or disposition thereof in lieu of condemnation or (ii) is or could be obligated under any right of first refusal, option or other contractual right to sell, transfer or otherwise dispose of any Mortgaged Property or any interest therein.
Section 3.09 Litigation; Compliance with Laws.
(a) There are no actions, suits, investigations or proceedings at law or in equity or by or on behalf of any Governmental Authority or in arbitration now pending against, or, to the knowledge of the Parent or the Borrower, threatened in writing against or affecting, any of the Group Members or any business, property or rights of any of the Group Members which, individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect.
(b) The operations of the Parent, the Borrower and the other Subsidiaries are and have been conducted at all times in material compliance with all applicable financial recordkeeping and reporting requirements, including those of the Bank Secrecy Act, as amended by the U.S.A. Patriot Act, and the applicable anti-money laundering statutes of jurisdictions where the Parent, the Borrower and each other Subsidiary conduct business, the rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered or enforced by any governmental agency (collectively, the “ Anti-Money Laundering Laws ”), and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Parent, the Borrower or any other Subsidiary with respect to the Anti-Money Laundering Laws is pending or, to the best knowledge of the Parent or the Borrower, threatened. The Loan Parties shall, promptly following a request by the Administrative Agent or any Lender, provide all such other documentation and information that the Administrative Agent or such Lender requests in order to comply with its ongoing obligations under applicable Anti-Money Laundering Laws.
 
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(c) None of the Parent, the Borrower or any other Subsidiary, or any director or officer, or, to the knowledge of the Parent or the Borrower, any employee, agent or representative of Parent, the Borrower or any other Subsidiary, has taken or will take any action by or on behalf of the Parent, the Borrower or any other Subsidiary in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment or giving of money, property, gifts of anything else of value, directly or indirectly, to any “government official” (including any officer or employee of a government or government-owned or controlled entity or of a public international organization, or any person acting in an official capacity for or on behalf of any of the foregoing, or any political party or party official or candidate for political office) to influence official action or secure an improper advantage for the Parent, the Borrower or any other Subsidiary; and each of the Parent, the Borrower and the other Subsidiaries have conducted their businesses in compliance with applicable anti-corruption laws and have instituted and maintain and will continue to maintain policies and procedures designed to promote and achieve compliance with such laws and with the representation and warranty contained herein.
(d) None of the Parent, the Borrower or any other Subsidiary or any director or officer thereof, or, to the knowledge of the Parent or the Borrower, any employee, agent, affiliate or representative of the Parent, the Borrower or any other Subsidiary, is a Person that is, or is owned or controlled by any Person that is:
(i) the subject or target of any sanctions administered or enforced by the United States Government (including the U.S. Department of Treasury’s Office of Foreign Assets Control) (collectively, “ Sanctions ”); or
(ii) located, organized or resident in a country or territory that is the subject of Sanctions (including, without limitation, Cuba, Iran, North Korea, Sudan and Syria).
(e) As of the Closing Date, there are no material judgments against any Group Member or any property of such Group Member.
(f) None of the Group Members nor any of the Group Members’ properties or assets are in violation of any currently applicable Legal Requirements (including any zoning, building, or Environmental Law, ordinance, code or approval or any building permit), or is in default with respect to any judgment, writ, injunction or decree of any Governmental Authority, where such violation or default could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
Section 3.10 Federal Reserve Regulations .
(a) No Group Member is engaged principally, or as one of its important activities, in the business of extending credit for the purpose of purchasing or carrying Margin Stock.
(b) No part of the proceeds of any Loan will be used, whether directly or indirectly, and whether immediately, incidentally or ultimately, (i) to purchase or carry Margin Stock or to extend credit to others for the purpose of purchasing or carrying Margin Stock or to refund indebtedness originally incurred for such purpose, or (ii) for any purpose that entails a violation of, or that is inconsistent with, the provisions of the Regulations of the Board, including Regulation U or Regulation X.
 
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Section 3.11 Investment Company Act . No Group Member is an “investment company” as defined in, or subject to regulation under, the Investment Company Act of 1940, as amended.
Section 3.12 Taxes .
(a) The Parent is properly classified (i) as a partnership or (ii) as a disregarded entity for federal income Tax purposes under Treasury Regulations Sections 301.7701-2 and -3 and any comparable provision of applicable state or local Tax law that permits such treatment, and no election under Treasury Regulations Section 301.7701-3(c) has been made with respect to the Borrower to be classified as an association taxable as a corporation for federal income tax purposes.
(b) The Borrower is properly classified (i) as a partnership or (ii) as a disregarded entity for federal income Tax purposes under Treasury Regulations Sections 301.7701-2 and -3 and any comparable provision of applicable state or local Tax law that permits such treatment.
(c) Each Group Member has filed or caused to be filed all U.S. federal income tax returns and all material state, local and other Tax returns that are required to have been filed by it in any jurisdiction and has paid all Taxes due and payable with respect to such Tax returns, and all other Taxes levied upon its properties, assets, income or franchises, to the extent such Taxes have become due and payable and before they have become delinquent except for any Taxes (i) the amount, applicability or validity of which is currently being contested in good faith by appropriate proceedings in accordance with Section 5.14 and with respect to which the relevant Group Member has established adequate reserves in accordance with GAAP or (ii) the failure of which to pay could not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
Section 3.13 Disclosure and Projections .
(a) All written information (other than the Base Case Projections and estimates, projections and information of a general economic or industry nature) concerning the Group Members and their respective businesses, including the Terminal Storage Facility, or otherwise prepared by, or as directed by, any Group Member or any representative of any Group Member, and made available to any Lender Party in connection with the Transactions, when taken as a whole and after giving effect to supplements made thereto by the applicable Group Member, is complete and correct in all material respects as of the Closing Date and does not, when taken as a whole, contain any untrue statement of a material fact as of the Closing Date or omit to state any material fact necessary in order to make the statements contained therein not materially misleading in light of the circumstances under which such statements were made.
(b) The Base Case Projections and estimates, projections and information of a general economic or industry nature prepared by or on behalf of, or as directed by, the Group Members or any Affiliate or representative thereof that have been made available to any Lender Party on or prior to the Closing Date have been prepared in good faith based upon assumptions stated therein which the Borrower believes as of the Closing Date to be reasonable (it being
 
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understood that estimates, projections and information of a general economic or industry nature by their nature are inherently uncertain and no assurances are being given that the results reflected in such estimates, projections or information of a general economic or industry nature will be achieved).
Section 3.14 Employee Matters .
(a) No Group Member is engaged in any unfair labor practice that could reasonably be expected to have a Material Adverse Effect. There is (i) no unfair labor practice complaint pending against any Group Member, or to the Parent’s or the Borrower’s knowledge, threatened against any Group Member before the National Labor Relations Board and no grievance or arbitration proceeding arising out of or under any collective bargaining agreement that is so pending against any Group Member or to the Parent’s or the Borrower’s knowledge, threatened against any Group Member or (ii) no strike or work stoppage in existence or threatened involving any of the Group Members or the Terminal Storage Facility, except those (with respect to any matter specified in clause (i) or (ii) above, either individually or in the aggregate) that could not reasonably be expected to have a Material Adverse Effect.
(b) The Parent does not sponsor, maintain or contribute to, or have any liability (except as a member of a controlled group) with respect to, any Plan. The Parent has no employees.
(c) The Borrower and each ERISA Affiliate has 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, either individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect. Except as could not reasonably be expected to result in a Material Adverse Effect, neither the Borrower nor any ERISA Affiliate has incurred any material liability pursuant to Title I or IV of ERISA (other than to make contributions on a timely basis to satisfy the minimum funding standards of ERISA or to pay required premiums on a timely basis to the PBGC, both of which have been timely paid) or the penalty or excise tax provisions of the Code relating to employee benefit plans (as defined in Section 3 of ERISA), no Plan has failed, or is reasonably expected to, 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 or 430 of the Code or Section 302 or 303 of ERISA, no Reportable Event has occurred or is reasonably expected to occur, and no event, transaction or condition has occurred or exists that could reasonably be expected, either individually or in the aggregate, to result in the incurrence of any such material liability by any Group Member or any ERISA Affiliate, or in the imposition of any material Lien on any of the rights, properties or assets of any Group Member or any ERISA Affiliate, in either case pursuant to Title I or IV of ERISA or to such penalty or excise tax provisions or to Section 436(f), 412 or 430 of the Code or Section 4068 of ERISA.
(d) Except as set forth on Schedule 3.14 , 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
 
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in an amount that could reasonably be expected, either individually or in the aggregate, to result in a Material Adverse Effect. Except as could not reasonably be expected to result in a Material Adverse Effect, no Plan is, or is reasonably expected to be in “at-risk” status (as defined in Section 303(i)(4) of ERISA or Section 430(i)(4) of the Code). The term “benefit liabilities” has the meaning specified in Section 4001 of ERISA and the terms “current value” and “present value” have the meaning specified in Section 3 of ERISA.
(e) The Borrower and the ERISA Affiliates have not incurred withdrawal liabilities (and are not subject to material contingent withdrawal liabilities) under Section 4201 or 4204 of ERISA in respect of Multiemployer Plans that could reasonably be expected, either individually or in the aggregate, to result in a Material Adverse Effect. The Borrower and the ERISA Affiliates do not participate in, contribute to, or are otherwise required to contribute to, any Multiemployer Plan that is, or is reasonably expected to be in “critical” or “endangered” status as defined in Section 432 of the Code or Section 305 of ERISA that could reasonably be expected, either individually or in the aggregate, to result in a Material Adverse Effect.
(f) The present value of all postretirement benefit obligations vested under each Plan (based on the assumptions used to fund such Plan, without regard to liabilities attributable to continuation coverage mandated by section 4980B of the Code) did not, as of the last annual valuation date applicable thereto, exceed the value of the assets of such Plan allocable to such vested benefits in an amount that could reasonably be expected to result in a Material Adverse Effect.
(g) The Transactions will not involve any non-exempt prohibited transaction under Section 406(a)(1)(A-D) of ERISA or in connection with which a tax could be imposed pursuant to Section 4975(c)(1)(A)-(D) of the Code.
Section 3.15 Environmental Matters; Hazardous Materials .
(a) There is no pending or, to the Parent’s or the Borrower’s knowledge, threatened, and, in the past two years, there has not been, any Environmental Claim against any Group Member or otherwise with respect to the Terminal Storage Facility or any other real properties or other assets now or formerly owned, leased or operated by any Group Member, and no Group Member has received any notice of any such Environmental Claim, and no proceeding has been instituted raising any such Environmental Claim, except, in the case of the Borrower and the other Restricted Subsidiaries, such as could not reasonably be expected to result in a Material Adverse Effect.
(b) The Group Members have obtained all material Permits required pursuant to any Environmental Law for the operation of the Terminal Storage Facility and all such material Permits are in full force and effect.
(c) Neither the Parent nor the Borrower has any knowledge of any facts which would reasonably be expected to give rise to any Environmental Claim, public or private, including any violation of Environmental Laws, any Release of Hazardous Materials or any damage to the Environment emanating from, occurring on or in any way related to the Terminal Storage Facility or any other real properties or other assets now or formerly owned, leased or operated by any Group Member, except, in the case of the Borrower and the other Restricted Subsidiaries and their respective real properties and assets, such as could not reasonably be expected to result in a Material Adverse Effect.
 
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(d) No Hazardous Materials have been used, generated, manufactured, stored, Released, transported or treated any Hazardous Materials either by any Group Member or on, at, under or from the Terminal Storage Facility or any other real properties or other assets now or formerly owned, leased or operated by any Group Member, except, in the case of any of the foregoing, in the ordinary course of business and in material compliance with Environmental Laws and, in the case of the Borrower and the other Restricted Subsidiaries, in a manner that could not reasonably be expected to result in a Material Adverse Effect.
Section 3.16 Solvency . Immediately after giving effect to the Transactions to occur on the Closing Date, (a) the fair value of the aggregate assets of the Loan Parties, at a fair valuation, will exceed the debts and liabilities, direct, subordinated, contingent or otherwise, of the Loan Parties, (b) the present fair value of the property of the Loan Parties will be greater than the amount that will be required to pay the probable liability of the Loan Parties on their debts and other liabilities, direct, subordinated, contingent or otherwise, as such debts and other liabilities become absolute and matured, (c) the Loan Parties will be able to pay their debts and other liabilities, direct, subordinated, contingent or otherwise, as such debts and other liabilities become absolute and matured (after giving effect to any guarantees and credit support), and (d) the Loan Parties will not have unreasonably small capital with which to conduct the business in which they are engaged as such business is now conducted and is proposed to be conducted following the Closing Date (after giving effect to any guarantees and credit support).
Section 3.17 Licenses; Permits . The Group Members own or have the right to use all Permits, patents, copyrights, proprietary software, service marks, trademarks and trade names, or licenses thereof material to the operation of their business, without, to the Parent’s and the Borrower’s knowledge, conflict with the rights of others.
Section 3.18 No Default . As of the Closing Date, no Group Member is in default under any agreement or instrument to which it is a party or by which it is bound, which default, individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect.
Section 3.19 Collateral Matters . (a) The Security Agreement, upon execution and delivery thereof by the parties thereto, will create in favor of the Collateral Agent, for the benefit of the Secured Parties, a valid and enforceable security interest in the Collateral and (i) when the Collateral constituting certificated securities (as defined in the UCC) is delivered to the Collateral Agent, together with instruments of transfer duly endorsed in blank, the security interest created under the Security Agreement will constitute a fully perfected security interest in all right, title and interest of the pledgors thereunder in such Collateral, prior and superior in right to any other Person, (ii) when Control Agreements with respect to Collateral constituting deposit accounts and securities accounts maintained by the Loan Parties are executed and delivered by the parties thereto, the security interest created under the Security Agreement will constitute a fully perfected security interest in all right, title and interest of the Loan Parties in such Collateral, prior and superior in right to any other Person, and (iii) when financing statements in appropriate form are filed in the applicable filing offices, the security interest created under the
 
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Security Agreement will constitute a fully perfected security interest in all right, title and interest of the Loan Parties in the remaining Collateral to the extent perfection can be obtained by filing UCC financing statements, prior and superior to the rights of any other Person, except for rights secured by Liens permitted under Section 6.01.
(b) Each Mortgage, upon execution and delivery thereof by the parties thereto, will create in favor of the Collateral Agent, for the benefit of the Secured Parties, a legal, valid and enforceable security interest in all the applicable mortgagor’s right, title and interest in and to the Mortgaged Properties subject thereto and the proceeds thereof, and when the Mortgages have been filed in the jurisdictions specified therein, the Mortgages will constitute a fully perfected security interest in all right, title and interest of the mortgagors in the Mortgaged Properties and the proceeds thereof, prior and superior in right to any other Person, but subject to Liens permitted under Section 6.01.
(c) Upon the recordation of intellectual property security agreements with the United States Patent and Trademark Office or the United States Copyright Office, as applicable, and the filing of the financing statements referred to in paragraph (a) of this Section, the security interest created under the Security Agreement will constitute a fully perfected security interest in all right, title and interest of the Loan Parties in patents, trademarks, copyrights and exclusive copyright licenses in which a security interest may be perfected by filing in the United States of America, in each case prior and superior in right to any other Person, but subject to Liens permitted under Section 6.01 (it being understood that subsequent recordings in the United States Patent and Trademark Office or the United States Copyright Office may be necessary to perfect a security interest in patents, trademarks, copyrights and exclusive copyright licenses acquired by the Loan Parties after the Closing Date).
(d) Each Security Document, other than the Intercreditor Agreement and any Security Document referred to in the preceding paragraphs of this Section, upon execution and delivery thereof by the parties thereto and the making of the filings and taking of the other actions provided for therein, will be effective under applicable law to create in favor of the Collateral Agent, for the benefit of the Secured Parties, a valid and enforceable security interest in the Collateral subject thereto, and will constitute a fully perfected security interest in all right, title and interest of the Loan Parties in the Collateral subject thereto, prior and superior to the rights of any other Person, except for rights secured by Liens permitted under Section 6.01.
Section 3.20 Insurance . The insurance required by Section 5.13 is in full force and effect and all premiums due and payable in respect of such insurance have been paid.
Section 3.21 Pari Passu Obligations . The Obligations of the Loan Parties rank at least pari passu in priority of payment with all other unsecured and secured Indebtedness for borrowed money of the Loan Parties (subject to Section 2.01 of the Intercreditor Agreement).
Section 3.22 Use of Proceeds . The proceeds of the Borrowings on the Closing Date have been applied in accordance with Section 5.01.
 
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ARTICLE IV.
CONDITIONS TO FUNDING
Section 4.01 Closing Date . The obligation of each Lender to make any Loan and of each Issuing Bank to issue any Letter of Credit on the Closing Date is subject to the fulfillment, to such Lender’s and such Issuing Bank’s satisfaction (acting reasonably), of each of the following conditions:
(a) Governing Documents . The Administrative Agent shall have received:
(i) a copy of the certificate of formation, including all amendments thereto, of each of the Loan Parties, each certified as of a recent date by the Secretary of State of the state of such Loan Party’s organization, and a certificate as to the good standing of such Person as of a recent date from such Secretary of State;
(ii) a certificate of a Responsible Officer of each of the Loan Parties, dated the Closing Date and certifying (A) that attached thereto is a true and complete copy of the limited liability company operating agreement of such Person, as in effect on the Closing Date and at all times since a date prior to the date of the resolutions described in clause (B) below, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the appropriate governing entity or body of such Person, authorizing the Transactions, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate of formation or other formation documents of such Person have not been amended since the date of the last amendment thereto shown on the certificate of good standing (or its equivalent in the applicable jurisdiction) furnished pursuant to clause (i) above, (D) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of such Person and (E) as to the absence of any pending proceeding for the dissolution or liquidation of such Person or, to the knowledge of such Responsible Officer, threatening the existence of such Person;
(iii) a certificate of another officer as to the incumbency and specimen signature of the Responsible Officer executing the certificate pursuant to clause (i) above; and
(iv) such other documents with respect to any Group Member, as the Administrative Agent or the Collateral Agent may reasonably request.
(b) Closing Certificates . The Administrative Agent shall have received (i) a certificate substantially in the form of Exhibit H-1 , dated the Closing Date and duly executed and delivered by a Responsible Officer of the Parent and the Borrower, confirming compliance with the conditions precedent set forth in clauses (a) and (b) of Section 4.02, and (ii) a solvency certificate substantially in the form of Exhibit H-2 , dated the Closing Date and duly executed and delivered by a Responsible Officer of the Parent and the Borrower.
(c) Loan Documents . The Administrative Agent and the Collateral Agent shall have received duly authorized and executed originals of this Agreement and each other Loan Document then required to be in effect, and, if requested by any Lender pursuant to Section 2.09(e), each such Lender shall have received a duly authorized and executed original of a promissory note or notes conforming to the requirements of such Section.
 
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(d) Legal Opinions . The Administrative Agent shall have received, on behalf of itself and the other Lender Parties and with copies to the Collateral Agent, favorable written opinions from Vinson & Elkins LLP, counsel for the Loan Parties, (i) in form and substance reasonably satisfactory to the Agents, (ii) dated the Closing Date, (iii) addressed to the Lender Parties and (iv) covering such matters relating to the Loan Documents as the Agents shall reasonably request and which are customary for transactions of the type contemplated by the Loan Documents, and the Borrower hereby requests such counsel to deliver such opinions.
(e) Organizational Actions . All limited liability company and other proceedings in connection with the Transactions, and all documents and instruments incident to the Transactions, shall be satisfactory to the Administrative Agent and its counsel, and the Administrative Agent and its counsel shall have received all such counterpart originals or certified or other copies of such documents as the Administrative Agent or such counsel may reasonably request. The Loan Parties shall have obtained all consents and approvals of Governmental Authorities, if any, and other Persons necessary to be obtained by the Closing Date in connection with the transactions contemplated by this Agreement and the other Loan Documents and each of the foregoing shall be in full force and effect, and the Administrative Agent shall have received evidence of such consents and approvals (if any).
(f) Collateral and Guarantee Requirement; Perfection Certificate . The Collateral and Guarantee Requirement shall have been satisfied. The Collateral Agent shall have received a completed Perfection Certificate, dated the Closing Date and signed by an executive officer or a Financial Officer of each of the Parent and the Borrower, together with all attachments contemplated thereby, including the results of UCC filing, tax lien, judgment and bankruptcy searches made with respect to the Loan Parties and evidence reasonably satisfactory to the Collateral Agent and the Administrative Agent that the Liens indicated by the results of such searches are permitted under Section 6.01 or have been, or substantially contemporaneously with the initial funding of Loans on the Closing Date will be, released.
(g) Bond Documents . Prior to or substantially contemporaneously with the initial funding of Loans on the Closing Date, (a) the Bond Purchasers shall have purchased the Bonds in accordance with the provisions of the Bond Documents, (b) the Bond Indentures shall have been amended and restated, the Bond Loan Agreements shall have been amended and the other Bond Documents shall have been executed, (c) the Administrative Agent shall have received fully executed copies of the Bond Indentures, as so amended and restated, the Bond Loan Agreements, as so amended, and the other Bond Documents, certified by a Financial Officer as being complete and correct, and (d) the provisions of the Bond Indentures, as so amended and restated, the Bond Loan Agreements, as so amended, and the other Bond Documents shall be reasonably satisfactory to the Administrative Agent.
(h) Insurance . Insurance complying with Section 5.13 shall be in full force and effect, and the Administrative Agent shall have received evidence that the insurance required by Section 5.13 is in effect, together with endorsements naming the Collateral Agent, for the benefit of the Secured Parties, as additional insured and loss payee thereunder to the extent required under Section 5.13.
 
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(i) Repayment of Existing Indebtedness and Release of Terminated Liens . Prior to or substantially contemporaneously with the initial funding of Loans on the Closing Date, (i) the Existing Indebtedness shall have been or shall be paid in full, (ii) the commitments under the Existing Parent Term Credit Agreement, Existing Revolving Credit Agreement and the Existing Notes Facility shall have been or shall be terminated, (iii) all guarantees and Liens existing in connection with the Existing Parent Term Credit Agreement, the Existing Revolving Credit Agreement and the Existing Notes Facility shall have been or shall be discharged and released and (iv) the Existing Bonds Letters of Credit shall have been or shall be cancelled and all obligations of the Parent or any Restricted Subsidiary in respect thereof shall have been or shall be paid in full, and the Administrative Agent shall have received reasonably satisfactory evidence thereof.
(j) Financial Statements . The Administrative Agent shall have received correct and complete copies of the financial statements described in Section 3.06.
(k) Base Case Projections . The Administrative Agent shall have received the Base Case Projections.
(l) Fees and Expenses . The Borrower shall have paid or otherwise made arrangements reasonably satisfactory to the Administrative Agent to pay, out of the proceeds of the Tranche B Term Facility, to the Lender Parties the fees payable on the Closing Date referred to in Section 2.12(c). Each Lender Party and each Arranger and, to the extent invoiced at least two Business Days prior to the Closing Date, their counsel and consultants shall have received for their respective accounts all fees, costs and expenses due and payable pursuant to the Engagement Letter and the Administrative Agent Fee Letter and, to the extent invoiced at least two Business Days prior to the Closing Date, Section 9.05.
(m) U.S.A. Patriot Act . To the extent requested by it, each Agent shall have received at least five Business Days prior to the Closing Date all documentation and other information required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the U.S.A. Patriot Act.
(n) Environmental Report . The Administrative Agent shall have received a Phase I Environmental Site Assessment report with respect to the Sites and such Real Property, in form and substance reasonably satisfactory to it.
Notwithstanding the foregoing, if the Parent and the Borrower shall have used commercially reasonable efforts to procure and deliver, but shall nevertheless be unable to deliver, any policy or policies of title insurance or any survey, abstract, consent, estoppel or subordination, non-disturbance and attornment agreement with respect to any Mortgage or Mortgaged Property that is required to be delivered in order to satisfy the requirements of the Collateral and Guarantee Requirement, such delivery shall not be a condition precedent to the obligations of the Lenders and the Issuing Banks hereunder on the Closing Date, but shall be required to be accomplished as provided in Section 5.18.
 
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The Administrative Agent shall notify the Parent, the Borrower and the Lenders of the Closing Date, and such notice shall be conclusive and binding. Notwithstanding the foregoing, the obligations of the Lenders to make Loans and of the Issuing Bank to issue Letters of Credit hereunder shall not become effective unless each of the foregoing conditions shall have been satisfied (or waived in accordance with Section 9.08) at or prior to 5:00 p.m., New York City time, on August 19, 2014 (and, in the event such conditions shall not have been so satisfied or waived, the Commitments shall terminate at such time).
Section 4.02 Each Credit Event . The obligation of each Lender to make any Loan on the occasion of any Borrowing and of each Issuing Bank to issue, amend, renew or extend any Letter of Credit is subject to receipt of the request therefor in accordance herewith and to the fulfillment, to such Lender’s and such Issuing Bank’s satisfaction (acting reasonably), of each of the following conditions:
(a) Representations and Warranties . The representations and warranties set forth in Article III hereof and in the other Loan Documents shall be true and correct (i) in the case of the representations and warranties qualified or modified as to materiality in the text thereof, in all respects and (ii) otherwise, in all material respects, in each case on and as of the date of such Borrowing or the date of issuance, amendment, renewal or extension of such Letter of Credit, as applicable, except in the case of any such representation and warranty that expressly relates to an earlier date, in which case such representation and warranty shall be so true and correct on and as of such earlier date.
(b) No Default or Event of Default . At the time of and immediately after the making of such Borrowing or the issuance, amendment, renewal or extension of such Letter of Credit, as applicable, no Default or Event of Default shall have occurred and be continuing.
On the date of any Borrowing or the issuance, amendment, renewal or extension of any Letter of Credit, the Parent and the Borrower shall be deemed to have represented and warranted that the conditions specified in paragraphs (a) and (b) of this Section have been satisfied and that, after giving effect to such Borrowing, or such issuance, amendment, renewal or extension of a Letter of Credit, the Aggregate Revolving Exposure (or any component thereof) shall not exceed the maximum amount thereof (or the maximum amount of any such component) specified in Section 2.01(b), 2.04(a) or 2.05(b).
ARTICLE V.
AFFIRMATIVE COVENANTS
Each of the Parent and the Borrower covenants and agrees with each Lender Party that, until the Discharge Date, each of the Parent and the Borrower shall, and shall cause the other Restricted Subsidiaries to, abide by the following affirmative covenants.
Section 5.01 Use of Proceeds and Letters of Credit . The Borrower shall, on the Closing Date, apply the proceeds of the Tranche B Term Loans in accordance with the Funds Flow Memorandum, as follows: (a) to refinance all Indebtedness under the Existing Notes Facility, (b) to refinance all Indebtedness under the Existing Revolving Credit Agreement, (c) to refinance all Indebtedness under the Existing Parent Term Credit Agreement, (d) to pay fees and expenses in connection with the Transactions and (e) for general corporate purposes of the Borrower and its Subsidiaries. The Borrower shall, on and after the Closing Date, use the proceeds of the Revolving Loans and Swingline Loans to provide for the ongoing working capital requirements and general corporate purposes of the Borrower and its Subsidiaries. Letters of Credit shall be issued to support obligations of the Borrower and its Subsidiaries incurred in the ordinary course of business.
 
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Section 5.02 Maintenance of Properties . Each of the Parent and the Borrower shall, and shall cause each of the other Restricted Subsidiaries to, maintain and keep, or cause to be maintained and kept, their respective properties, including the Terminal Storage Facility, in good repair, working order and condition (other than ordinary wear and tear) and to make or cause to be made all repairs (structural and non-structural, extraordinary or ordinary (ordinary wear and tear excepted)) necessary to keep such properties (including the Terminal Storage Facility) in such condition, in each case, as would allow for the ordinary conduct of business of the Borrower and the other Restricted Subsidiaries; provided that this Section 5.02 shall not prevent the Borrower or any other Restricted Subsidiary from (a) entering into any transaction permitted by Section 6.04, Section 6.06, or Section 6.07 or (b) from discontinuing the operation and the maintenance of any of its properties (i) as a result of any casualty or condemnation affecting such properties (but only to the extent and for the duration of such casualty or condemnation) or (ii) if such discontinuance is desirable in the conduct of its business and the Borrower or the applicable Restricted Subsidiary has concluded that such discontinuance could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
Section 5.03 Notices . Each of the Parent and the Borrower shall deliver to the Administrative Agent:
(a) promptly, and in any event within five days, after a Responsible Officer of the Parent or the Borrower becomes aware of the existence of any Default or Event of Default, a written notice specifying the nature and period of existence thereof and what action the Parent or the Borrower is taking or proposes to take with respect thereto;
(b) promptly, and in any event within ten Business Days, after a Responsible Officer of the Parent or the Borrower becomes aware of any of the following, a written notice setting forth the nature thereof and the action, if any, that the applicable Group Member or ERISA Affiliate (or, with respect to a Multiemployer Plan, the plan sponsor or administrator) proposes to take with respect thereto:
(i) the occurrence of a Reportable Event;
(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 any Group Member 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;
(iii) any event, transaction or condition that could result in the incurrence of any liability by any Group Member or any ERISA Affiliate pursuant to Title I or IV of ERISA (other than liability to make contributions on a timely basis to satisfy the minimum funding standards of ERISA or to pay required premiums on a
 
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timely basis to the PBGC) 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 any Group Member 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
(iv) (A) any Plan is in “at-risk” status (as defined in Section 303(i)(4) of ERISA or Section 430(i)(4) of the Code) or (B) any Multiemployer Plan is in “critical” or “endangered” status (as defined in Section 432 of the Code or Section 305 of ERISA);
(c) promptly, and in any event within 30 days of receipt thereof, copies of any notice to the Parent or the Borrower from any federal or state Governmental Authority relating to any order, ruling, statute or other law or regulation if the actions or conditions referred to in such notice could reasonably be expected to have a Material Adverse Effect;
(d) promptly, and in any event within five Business Days, after a Responsible Officer of the Parent or the Borrower becomes aware thereof, notice of any other event or condition which could reasonably be expected to have a Material Adverse Effect;
(e) promptly, and in any event within five Business Days, after a Responsible Officer of the Parent or the Borrower becomes aware thereof, notice of (i) the commencement of, or material development in, any material litigation or proceeding affecting any of the Group Members or any of their assets or properties (including the Terminal Storage Facility) or any material federal, state or local Tax affecting any of the Group Members or any of their assets or properties (including the Terminal Storage Facility) or (ii) the incurrence or imposition of any material claim, judgment, Lien or other encumbrance affecting any property of any of the Group Members, including the Terminal Storage Facility, which in the cases of the events or conditions referred to in clauses (i) and (ii) above could reasonably be expected to have a Material Adverse Effect;
(f) together with the financial statements required under Section 5.04(a), a summary of the current storage contracts of the Borrower and the other Restricted Subsidiaries by product, storage volume, maturity date and rates (to the extent such information may be provided in a manner that would not violate customer confidentiality requirements);
(g) promptly (i) if the Parent, the Borrower or any other Subsidiary or any director or officer thereof, or, to the knowledge of the Parent or the Borrower, any employee, agent, affiliate or representative of the Parent, the Borrower or any other Subsidiary, is a Person that is, or is owned or controlled by any Person that is (A) the subject or target of any Sanctions or (ii) located, organized or resident in a country or territory that is the subject of Sanctions (including, without limitation, Cuba, Iran, North Korea, Sudan and Syria), each of the Parent and the Borrower shall notify the Administrative Agent and (ii) upon the request of any Lender Party, each of the Parent and the Borrower shall provide any information such Lender Party believes is reasonably necessary to be delivered to comply with its obligations under Sanctions laws; and
 
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(h) with reasonable promptness, such other data and information relating to the business, operations, affairs, financial condition, assets or properties of any of the Group Members or relating to the ability of any Loan Party to perform its obligations under any Loan Document to which it is a party as from time to time may be reasonably requested by the Administrative Agent or any Lender (which request shall be made through the Administrative Agent).
Section 5.04 Financial Statements and Other Information . Each of the Parent and the Borrower shall deliver or cause to be delivered to the Administrative Agent:
(a) within 120 days after end of the Fiscal Year of the Parent, (i) a consolidated balance sheet of the Parent and the Subsidiaries as of the end of such Fiscal Year and (ii) consolidated statements of income, changes in members’ equity and cash flows of the Parent and the Subsidiaries for such Fiscal Year, setting forth in each case in comparative form the figures for the previous Fiscal Year, all in reasonable detail, prepared in accordance with GAAP, and accompanied by an opinion thereon of independent public accountants of recognized national standing (without a “going concern” or like qualification or exception and without any qualification or exception as to the scope of such audit (other than any qualification or exception attributable solely to the occurrence of the stated maturity of any Loan within 12 months after the date of such opinion)), which opinion shall state that such financial statements present fairly, in all material respects, the financial position of the companies being reported upon and their results of operations and cash flows and have been prepared in conformity with GAAP, 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;
(b) within 60 days after the end of each Fiscal Quarter of each Fiscal Year of the Parent, (i) a consolidated balance sheet of the Parent and the Subsidiaries as of the end of such Fiscal Quarter and (ii) consolidated statements of income, changes in shareholders’ equity and cash flows of the Parent and the Subsidiaries, for such Fiscal Quarter and (in the case of the second, third and fourth Fiscal Quarters) for the portion of the Fiscal Year ending with such Fiscal Quarter, setting forth in each case in comparative form the figures for the corresponding periods in the previous Fiscal Year, all in reasonable detail, prepared in accordance with GAAP applicable to quarterly financial statements generally, and certified by a Responsible Officer of the Parent as fairly presenting, in all material respects, the financial position of the companies being reported on and their results of operations and cash flows, subject to changes resulting from year-end adjustments;
(c) concurrently with each delivery of the financial statements described in clauses (a) and (b) above, a report in form and method of analysis similar to a “Management’s Discussion and Analysis” in form and substance reasonably satisfactory to the Administrative Agent (covering such topics as the Parent and the Subsidiaries’ financial condition and results of operations and the Parent and the Subsidiaries’ businesses);
(d) concurrently with each delivery of the financial statements described in clauses (a) and (b) above, if there are any Unrestricted Subsidiaries during the period covered by such financial statements, the related consolidating financial statements reflecting the adjustments necessary to eliminate the accounts of the Unrestricted Subsidiaries (which may be in footnote form only) from such consolidated financial statements;
 
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(e) concurrently with each delivery of the financial statements described in clause (a) above, a Perfection Certificate Supplement in accordance with Section 4.01(b) of the Security Agreement;
(f) promptly upon receipt thereof by the Borrower or any Affiliate of the Borrower in connection with (i) any Bond Document or (ii) any indenture or other agreement or instrument evidencing Material Indebtedness, one copy of each notice of any default or event of default thereunder; and
(g) promptly, and in any event no later than 30 days after the beginning of each Fiscal Year of the Parent, a consolidated budget and business plan for the Parent and the Subsidiaries for such Fiscal Year and updated Base Case Projections for such Fiscal Year, in each case, in form reasonably satisfactory to the Administrative Agent.
Section 5.05 Maintenance of Existence . Except as otherwise expressly permitted under this Agreement, each of the Parent and the Borrower shall, and shall cause the other Restricted Subsidiaries to, (a) at all times preserve and keep in full force and effect its corporate or limited liability company existence, as applicable, (b) preserve and keep in full force and effect all rights and franchises of the Group Members unless, in the good faith judgment of the applicable Group Member, 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.
Section 5.06 Maintenance of Records; Access to Properties and Inspections . Each of the Parent and the Borrower shall, and shall cause the other Restricted Subsidiaries to, maintain all financial records to be able to prepare financial statements in accordance with GAAP and permit any Persons designated by the Administrative Agent or, upon the occurrence and during the continuation of an Event of Default, any Lender to visit and inspect the financial records and the other properties of the Group Members, including the Terminal Storage Facility, in any case, at reasonable times, upon reasonable prior notice to the Parent and the Borrower, and as often as reasonably requested (but no more than two such visits in any Fiscal Year, other than while an Event of Default is continuing) and to make extracts from and copies of such financial records, and permit any Persons designated by the Administrative Agent or, upon the occurrence and during the continuation of an Event of Default, any Lender upon reasonable prior notice to the Parent and the Borrower to discuss the affairs, finances and condition of the Group Members with the officers thereof and independent accountants therefor (subject to reasonable requirements of safety and confidentiality, including requirements imposed by law or by contract). Notwithstanding the foregoing, no Group Member shall be required to permit the inspection of any information (a) that constitutes trade secrets or proprietary information with respect to any Group Member, (b) in respect of which disclosure to the Administrative Agent, any Lender or any of their respective representatives would violate (i) any confidentiality agreement of such Group Member or (ii) applicable Legal Requirements or (c) that is subject to attorney client or similar privilege or constitutes attorney work product; provided that each Group Member shall use commercially reasonable efforts to obtain the agreement of any Person
 
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necessary in order to disclose information that the Group Members would otherwise not be required to permit the inspection of pursuant to clause (b)(i) or (c) above; provided , further that if the Administrative Agent or any Lender requests the inspection of any information described in the foregoing clauses (a) through (c) in accordance with this Section 5.06, and any Group Member does not provide such information to the Administrative Agent or such Lender, then the Parent and the Borrower shall so notify the Administrative Agent.
Section 5.07 Compliance with Laws; Permits .
(a) Each of the Parent and the Borrower shall comply, and shall cause each of the other Restricted Subsidiaries to comply, and the Borrower shall cause the Terminal Storage Facility to be operated and maintained in compliance, with all Legal Requirements, including Legal Requirements relating to equal employment opportunity, employee benefit plans and employee safety and Environmental Laws, and exercise diligent good faith efforts to make such alterations to the Terminal Storage Facility as may be required for such compliance, except such non-compliance as would not, in the aggregate, reasonably be expected to have a Material Adverse Effect.
(b) Each of the Parent and the Borrower shall, and shall cause each of the other Restricted Subsidiaries to, obtain, maintain in full force and effect and comply with all Permits necessary to the ownership of their respective properties or to the conduct of their respective businesses, including the operation of the Terminal Storage Facility, except to the extent that a failure to do so could not reasonably be expected to have a Material Adverse Effect.
(c) Each of the Parent and the Borrower shall, and shall cause each of the other Restricted Subsidiaries to, comply in a timely manner with, or operate, including the operation of the Terminal Storage Facility, pursuant to valid waivers of the provisions of, all Environmental Laws including those relating to the Release of Hazardous Materials, together with any other applicable legal requirements for conducting, on a timely basis, periodic tests, monitoring and remediation of contamination of the Environment, and diligently comply with the regulations (except to the extent such regulations are waived by appropriate Governmental Authorities) of the United States Environmental Protection Agency and other applicable federal, state or local Governmental Authorities, except where the failure to do so would not reasonably be expected to have a Material Adverse Effect. Neither the Parent nor the Borrower shall be deemed to have breached or violated this Section 5.07(c) if the Parent, the Borrower or the applicable Restricted Subsidiary is challenging in good faith by appropriate proceedings diligently pursued the application or enforcement of such Environmental Laws for which adequate reserves have been established in accordance with GAAP.
Section 5.08 Financial Covenant Calculations . Each set of financial statements of the Parent required to be delivered to the Administrative Agent pursuant to Section 5.04(a) or (b) shall be accompanied by a Compliance Certificate setting forth, among other things:
(a) the information (including detailed calculations) required in order to establish whether the Borrower was in compliance with the financial covenant set forth in Section 6.14 during the Fiscal Quarter or Fiscal Year covered by the statements then being furnished (including with respect to each such Section, where applicable, the 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);
 
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(b) a certification of the Total Adjusted Net Leverage Ratio for the four consecutive Fiscal Quarters ending with the Fiscal Quarter or the last Fiscal Quarter of the Fiscal Year, as the case may be, to which such financial statements relate;
(c) certification of the Available Amount as of the last day of such Fiscal Quarter or Fiscal Year, including details of any Available Amount Expenditures during such Fiscal Quarter or Fiscal Year; and
(d) a statement that the applicable Responsible 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 Parent and the Subsidiaries from the beginning of the Fiscal Quarter or Fiscal Year covered by the statements then being furnished to the date of such Compliance 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, specifying the nature and period of existence thereof and what action the Parent or the Borrower shall have taken or proposes to take with respect thereto.
Section 5.09 Operation and Maintenance of Terminal Storage Facility; Leases of Real Property . (a) The Borrower shall, and shall cause the other Restricted Subsidiaries to, (i) operate and maintain the Terminal Storage Facility in a manner consistent with all applicable Legal Requirements, all Permits necessary to operate, manage and maintain the Terminal Storage Facility, this Agreement and the provisions of the Storage Contracts and prevailing industry standards for similar facilities, unless a failure to so operate and maintain the Terminal Storage Facility could not reasonably be expected to have a Material Adverse Effect, (ii) operate and maintain, and if the Borrower or any other Restricted Subsidiary decides to do so, construct and expand the Terminal Storage Facility, or cause the same to be constructed, expanded, operated and maintained, in accordance with applicable Legal Requirements and in a manner consistent with the Storage Contracts and with prevailing industry standards for similar facilities, unless a failure to so construct, expand, operate and maintain the Terminal Storage Facility could not reasonably be expected to have a Material Adverse Effect, and (iii) obtain and maintain all Permits, patents, copyrights, proprietary software, service marks, trademark, trade names and domain names or rights thereto necessary to manage and operate the Terminal Storage Facility, unless a failure to do so could not reasonably be expected to have a Material Adverse Effect.
(b) The Borrower shall, and shall cause the other Restricted Subsidiaries to, (i) make all payments and otherwise perform all obligations in respect of all leases of Real Property to which the Borrower or any other Restricted Subsidiary is a party, (ii) keep such leases in full force and effect and not allow such leases to lapse or be terminated or any rights to renew such leases to be forfeited or cancelled, (iii) notify the Administrative Agent and the Collateral Agent of any default by any party with respect to such leases of which it has knowledge and cooperate with the Administrative Agent and the Collateral Agent in all respects to cure any such default, except, in the case of clauses (i), (ii) and (iii), where the failure to do so, either individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect.
 
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Section 5.10 Additional Subsidiaries . (a) If any Subsidiary is formed or acquired, or any Unrestricted Subsidiary is converted into a Restricted Subsidiary, after the Closing Date, the Parent and the Borrower will, if such Subsidiary is a Designated Subsidiary, as promptly as practicable, and in any event within 30 days (or with respect to the requirements set forth in clauses (e) and (g) of the definition of “Collateral and Guarantee Requirement”, if applicable, 60 days) (or, in each case, such longer period as the Collateral Agent and the Administrative Agent may agree to in writing), notify the Collateral Agent and the Administrative Agent thereof and cause the Collateral and Guarantee Requirement to be satisfied with respect to such Subsidiary and with respect to any Equity Interests in or Indebtedness of such Subsidiary owned by any Loan Party.
(b) The Parent may designate a Domestic Subsidiary meeting the criteria set forth in clause (b)(ii) of the definition of the term “Designated Subsidiary” as a Designated Subsidiary; provided that the Parent and the Borrower shall have caused the Collateral and Guarantee Requirement to be satisfied with respect to such Subsidiary.
Section 5.11 Information Regarding Collateral; Deposit and Securities Accounts . (a) Each of the Parent and the Borrower shall furnish to the Collateral Agent and the Administrative Agent prompt written notice of any change in (i) the legal name of any Loan Party, as set forth in its Organizational Documents, (ii) the jurisdiction of organization or the form of organization of any Loan Party (including as a result of any merger or consolidation), (iii) the location of the chief executive office of any Loan Party or (iv) with respect to any Loan Party organized under the laws of a jurisdiction that requires such information to be set forth on the face of a UCC financing statement, the organizational identification number, if any, or the Federal Taxpayer Identification Number of such Loan Party. Each of the Parent and the Borrower agrees not to effect or permit any change referred to in the preceding sentence unless all filings have been made under the UCC or otherwise that are required in order for the Collateral Agent to continue at all times following such change to have a valid, legal and perfected security interest in all the Collateral.
(b) Each of the Parent and the Borrower shall furnish to the Collateral Agent and the Administrative Agent prompt written notice of (i) the acquisition by any Loan Party of, or any real property or leasehold interest otherwise becoming, a Mortgaged Property after the Closing Date and (ii) the acquisition by any Loan Party of any other material assets after the Closing Date, other than any assets constituting Collateral under the Security Documents in which the Collateral Agent shall have a valid, legal and perfected security interest (with the priority contemplated by the applicable Security Document) upon the acquisition thereof.
(c) Each of the Parent and the Borrower shall cause all cash owned by any Group Member at any time, other than (i) cash used in the operation of Foreign Subsidiaries, (ii) cash in an aggregate amount not greater than $1,000,000 at any time held in payroll and other local operating accounts and (iii) cash held by the Parent or any Subsidiary in trust for any director, officer or employee of the Parent or any Subsidiary or any employee benefit plan maintained by the Parent or any Subsidiary, to be held in deposit accounts maintained in the name of one or more Loan Parties.
 
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(d) Each of the Parent and the Borrower shall, in each case as promptly as practicable, notify the Collateral Agent and the Administrative Agent of the existence of any deposit account or securities account maintained by a Loan Party in respect of which a Control Agreement is required to be in effect pursuant to clause (f) of the definition of “Collateral and Guarantee Requirement” but is not yet in effect.
Section 5.12 Further Assurances . Each Loan Party shall execute any and all further documents, financing statements, agreements and instruments, and take all such further actions (including the filing and recording of financing statements, fixture filings, mortgages, deeds of trust and other documents), that may be required under any applicable law, or that the Collateral Agent or the Administrative Agent may reasonably request, to cause the Collateral and Guarantee Requirement to be and remain satisfied at all times or otherwise to effectuate the provisions of the Loan Documents, all at the expense of the Loan Parties. Each of the Parent and the Borrower shall provide to the Collateral Agent and the Administrative Agent, from time to time upon request, evidence reasonably satisfactory to the Administrative Agent as to the perfection and priority of the Liens created or intended to be created by the Security Documents.
Section 5.13 Maintenance of Insurance .
(a) The Parent, the Borrower and each other Restricted Subsidiary shall maintain, with financially sound and reputable insurance companies, insurance in such amounts (with no greater risk retention) and against such risks as are customarily maintained by companies of established repute engaged in the same or similar businesses operating in the same or similar locations. Each such policy of liability or casualty insurance maintained by or on behalf of Loan Parties shall (i) in the case of each liability insurance policy, name the Collateral Agent, on behalf of the Secured Parties, as an additional insured thereunder, (ii) in the case of each casualty insurance policy, contain a loss payable clause or endorsement that names the Collateral Agent, on behalf of the Secured Parties, as the loss payee thereunder and (iii) provide for at least 30 days’ (or such shorter number of days as may be agreed to by the Collateral Agent) prior written notice to the Collateral Agent of any cancellation of such policy. With respect to each Mortgaged Property that is located in an area determined by the Federal Emergency Management Agency to have special flood hazards, the applicable Loan Party has obtained, and will maintain, with financially sound and reputable insurance companies, such flood insurance as is required under applicable law, including Regulation H.
(b) Each of the Parent and the Borrower shall, within 30 days after each annual policy renewal date, deliver to the Administrative Agent and the Collateral Agent evidence (which, in the case of clause (i) below, shall be in the form of one or more certificates of insurance) that (i) the insurance requirements of this Section 5.13 have been implemented and are being complied with in all material respects, and (ii) the applicable Group Member has paid all insurance premiums then due and payable.
(c) Within 30 days following the Closing Date, each of the Parent and the Borrower shall deliver, or cause to be delivered, to the Administrative Agent a certificate from the Borrower’s insurance broker substantially in the form of Exhibit I , confirming the Borrower’s compliance with the insurance requirements set forth in this Section 5.13.
 
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Section 5.14 Taxes, Assessments and Utility Charges . The Parent shall at all times maintain a classification of the Parent as a partnership or entity disregarded as separate from its sole owner for federal income Tax purposes under Treasury Regulations Sections 301.7701-2 and -3 and any comparable provision of applicable state or local Tax law that permits such treatment and will not make an election under Treasury Regulations Section 301.7701-3(c) to be classified as an association taxable as a corporation for federal income Tax purposes. The Borrower shall at all times maintain its status as a partnership or entity disregarded as separate from its sole owner for federal income Tax purposes under Treasury Regulations Sections 301.7701-2 and -3. Each of the Parent and the Borrower shall, and shall cause each of the other Restricted Subsidiaries to, (a) timely file all material Tax returns required to be filed in any jurisdiction and to pay and discharge all material Taxes due and payable and all other material Taxes 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 could reasonably be expected to become a Lien on properties or assets of any of the Group Members, and (b) pay, or cause to be paid, as and when due and prior to delinquency, all material utility and other material charges incurred in the operation, maintenance, use, occupancy and upkeep of the Terminal Storage Facility; provided that, in each case, none of the Group Members shall be required to pay any such Tax or charge to the extent the amount, applicability or validity thereof is contested by such Group Member on a timely basis in good faith and in appropriate proceedings, and such Group Member has established adequate reserves therefor in accordance with GAAP on the books of such Group Member.
Section 5.15 Interest Rate Protection .
(a) Interest Rate Hedge Agreements . The Borrower shall, within 60 days after the Closing Date, enter into and thereafter maintain for a period of not less than three years following the Closing Date interest rate protection through Interest Rate Hedge Agreements in form and substance reasonably satisfactory to the Administrative Agent against increases in the interest rates with respect to an aggregate notional amount at least equivalent to 50% of the aggregate principal amount of the Term Loans anticipated to be outstanding (after giving effect to required amortization and expected mandatory prepayments hereunder) as of each Quarterly Date during such period of not less than three years; provided , however , that in no event shall the aggregate notional amount of all interest rate swaps, caps, collars and other interest rate hedge agreements entered into by the Group Members at any time exceed the aggregate principal amount of the Loans, the Bonds and any other Indebtedness of the Group Members bearing a floating rate of interest outstanding at such time.
(b) Security . Each Interest Rate Hedge Agreement provided by a Secured Hedge Lender (including all reasonable costs, fees and expenses incurred by the Borrower in connection with any unwinding, breach or termination of any transactions thereunder) shall be secured by the Security Documents, pari passu with the Loans and other Secured Obligations (subject to Section 2.01 of the Intercreditor Agreement).
 
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Section 5.16 Maintenance of Ratings . The Borrower shall use commercially reasonable efforts to maintain any ratings of the Tranche B Term Facility by Moody’s and S&P, including by making available information requested by, and otherwise cooperating with requests made by, Moody’s and S&P.
Section 5.17 Designation of Subsidiaries . The board of directors (or similar governing body) of the Parent may at any time designate any Subsidiary as an Unrestricted Subsidiary or any Subsidiary as a Restricted Subsidiary; provided that (a) immediately before and after such designation, no Default or Event of Default shall have occurred and be continuing, (b) immediately after giving effect to such designation, the Total Adjusted Net Leverage Ratio shall not exceed the Total Adjusted Net Leverage Ratio set forth in Section 6.14 with respect to the Fiscal Quarter of the Parent most recently ended as of the time of such designation on a pro forma basis, (c) no Subsidiary may be designated as an Unrestricted Subsidiary if it is a “Restricted Subsidiary” for the purpose of the Bond Documents or any other Indebtedness, (d) no Restricted Subsidiary may be designated as an Unrestricted Subsidiary if it was previously designated an Unrestricted Subsidiary, (e) the Borrower may not be designated as an Unrestricted Subsidiary, (f) no Subsidiary may be designated as an Unrestricted Subsidiary if such Subsidiary, or any of its Subsidiaries, has incurred, created, assumed or become liable for any Indebtedness pursuant to which any holder thereof has recourse to any of the assets of the Parent or any Restricted Subsidiary, and no Unrestricted Subsidiary may, at any time, incur, create, assume or be liable for any Indebtedness pursuant to which any holder thereof has recourse to any of the assets of the Parent or any Restricted Subsidiary, (g) the Parent and the Borrower shall deliver to Administrative Agent at least five Business Days prior to such designation a certificate of a Responsible Officer of the Borrower, together with all relevant financial information reasonably requested by Administrative Agent, demonstrating compliance with the foregoing clauses (a) through (f) of this Section 5.17 and, if applicable, certifying that such Subsidiary meets the requirements of an “Unrestricted Subsidiary” and (h) at least five Business Days prior to the designation of any Unrestricted Subsidiary as a Restricted Subsidiary, the Lenders shall have received all documentation and other information required by bank regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including the U.S.A. Patriot Act, with respect to such Subsidiary. The designation of any Subsidiary as an Unrestricted Subsidiary shall constitute an Investment by the Parent therein at the date of designation in an amount equal to the fair market value of the Parent’s Investment therein; provided that upon a redesignation of such Subsidiary as a Restricted Subsidiary, the Parent shall be deemed to continue to have a permanent Investment in an Unrestricted Subsidiary in an amount (if positive) equal to (i) the lesser of (A) the fair market value of Investments of the Parent and the Restricted Subsidiaries in such Unrestricted Subsidiary at the time of such redesignation, combination or transfer (or of the assets transferred or conveyed, as applicable) and (B) the fair market value of Investments of the Parent and the Restricted Subsidiaries made in connection with the designation of such Subsidiary as an Unrestricted Subsidiary minus (ii) the portion (proportionate to the Parent’s and the Restricted Subsidiaries’ Equity Interest in such Subsidiary) of the fair market value of the net assets of such Subsidiary at the time of such redesignation. The designation of any Subsidiary as a Restricted Subsidiary shall constitute the incurrence at the time of designation of any Indebtedness or Liens of such Subsidiary existing at such time.
 
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Section 5.18 Certain Post- Closing Collateral Obligations . (a) As promptly as practicable, and in any event within 60 days (or such later date as the Collateral Agent and the Administrative Agent may agree), after the Closing Date, the Parent, the Borrower and each other Loan Party will deliver all policies of title insurance and surveys, abstracts, consents, estoppels and subordination, non-disturbance and attornment agreements with respect to any Mortgage or Mortgaged Property that would have been required to be delivered on the Closing Date but for the penultimate paragraph of Section 4.01, in each case except to the extent otherwise agreed by the Collateral Agent and the Administrative Agent pursuant to its authority as set forth in the definition of “Collateral and Guarantee Requirement”. In conjunction with the delivery of such policies of title insurance and surveys, abstracts, consents, estoppels and subordination, non-disturbance and attornment agreements, the Parent, the Borrower and each other Loan Party will enter into such agreement or agreements in writing to amend or otherwise modify the Mortgages executed and delivered on the Closing Date as may be necessary to correct any errors in the legal descriptions of the related Mortgaged Properties.
(b) If the Loan Parties expend more than $5,000,000 in the aggregate to develop the Dock 5, then the Loan Parties will (i) use commercially reasonable efforts to obtain the consent of the Port of Houston to create in favor of the Collateral Agent, for the benefit of the Secured Parties, a Lien in the Dock 5 Lease and (ii) upon obtaining such consent, cause the requirements set forth in clause (e) of the definition of “Collateral and Guarantee Requirement” to be satisfied with respect to the Dock 5 Lease.
ARTICLE VI.
NEGATIVE COVENANTS
Each of the Parent and the Borrower covenants and agrees with each Lender Party that, until the Discharge Date, each of the Parent and the Borrower shall, and shall cause the other Restricted Subsidiaries to, abide by the following negative covenants.
Section 6.01 Liens . None of the Parent, the Borrower or any other Restricted Subsidiary shall create, assume or suffer to exist (a) any Lien on its assets, except Permitted Liens, or (b) any Lien on the Excluded Real Property, except Liens permitted by clause (e), (f), (h)(iii), (h)(v), (h)(vi), (h)(vii), (h)(viii) or (h)(ix) of the definition of “Permitted Liens”.
Section 6.02 Indebtedness . None of the Parent, the Borrower or any other Restricted Subsidiary shall incur, create, assume or be liable for any Indebtedness, except Permitted Debt.
Section 6.03 Restricted Payments; Certain Payments of Indebtedness . (a) None of the Parent, the Borrower or any other Restricted Subsidiary shall make payments which are Restricted Payments, other than:
(i) Restricted Payments made by any Restricted Subsidiary of the Borrower in respect of its Equity Interests ratably to the holders of such Equity Interests;
(ii) dividends paid by the Parent with respect to its Equity Interests payable solely in additional Equity Interests (other than Preferred Stock);
(iii) other Restricted Payments; provided that (A) no Specified Default or Event of Default shall have occurred and be continuing or would result therefrom and (B) at the time each such Restricted Payment is made, the aggregate amount of such Restricted Payment shall not exceed the Available Amount at such time (in each case, as certified by a Responsible Officer of the Borrower); and
 
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(iv) other Restricted Payments; provided that (A) no Specified Default or Event of Default shall have occurred and be continuing or would result therefrom and (B) at the time of and immediately after giving effect to any such Restricted Payment, the Total Adjusted Net Leverage Ratio shall not exceed the Specified Total Adjusted Net Leverage Ratio on a pro forma basis (in each case, as certified by a Responsible Officer of the Borrower).
(b) None of the Parent, the Borrower or any other Restricted Subsidiary will make or agree to pay or make, directly or indirectly, any payment or other distribution (whether in cash, securities or other property) of or in respect of principal of or interest on any Junior Indebtedness, or any payment or other distribution (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, defeasance, cancelation or termination of any Junior Indebtedness, except:
(i) regularly scheduled interest and principal payments as and when due in respect of any Junior Indebtedness other than (A) such payments in respect of Subordinated Affiliate Indebtedness and (B) such payments in respect of Subordinated Indebtedness that are prohibited by the subordination provisions thereof;
(ii) refinancings of Junior Indebtedness with the proceeds of other Indebtedness permitted under Section 6.02;
(iii) payments of secured Junior Indebtedness that becomes due as a result of the voluntary sale or transfer of the assets securing such Indebtedness in transactions permitted hereunder;
(iv) payments of or in respect of Junior Indebtedness made solely with Equity Interests in the Parent (other than Preferred Stock); and
(v) other payments of or in respect of Junior Indebtedness; provided that (A) no Specified Default or Event of Default shall have occurred and be continuing or would result therefrom and (B) at the time each such payment is made, the aggregate amount of such payment shall not exceed the Available Amount at such time (in each case, as certified by a Responsible Officer of the Borrower); and
(vi) other payments of or in respect of Junior Indebtedness; provided that (A) no Specified Default or Event of Default shall have occurred and be continuing or would result therefrom and (B) at the time of and immediately after giving effect to any such payment, the Total Adjusted Net Leverage Ratio shall not exceed the Specified Total Adjusted Net Leverage Ratio on a pro forma basis (in each case, as certified by a Responsible Officer of the Borrower).
 
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Section 6.04 Sale of Assets . None of the Parent, the Borrower or any other Restricted Subsidiary shall sell, lease, transfer or otherwise Dispose of any of its assets (including Equity Interests in its Subsidiaries), except:
(a) sales by the Borrower or any other Restricted Subsidiary of inventory in the ordinary course of business and sales by the Borrower or any other Restricted Subsidiary as contemplated by the Storage Contracts;
(b) Dispositions of property of the Borrower or any other Restricted Subsidiary that is obsolete, damaged, worn out, surplus or not used or useful in the ordinary course of business of the Borrower or such Restricted Subsidiary;
(c) Dispositions resulting from any casualty or other insured damage to, or any taking under power of eminent domain or by condemnation or similar proceeding of, any asset of any of Group Member;
(d) the liquidation or use of Permitted Investments;
(e) Dispositions to the Parent, the Borrower or any other Restricted Subsidiary; provided that any such sales, transfers, leases or other dispositions involving a Restricted Subsidiary that is not a Loan Party shall be made in compliance with Sections 6.07 and 6.08;
(f) Liens permitted under Section 6.01 and, to the extent constituting Dispositions of cash, Restricted Payments permitted under Section 6.03 and Investments permitted under Section 6.07;
(g) leases or subleases of real or personal property, exchanges of real or personal property or the granting of easements, rights-of-way, permits, licenses, restrictions or the like, in each case, which do not interfere in any material respect with the ordinary course of business of the Borrower and the other Restricted Subsidiaries, provided that with respect to leases or subleases of Real Property or exchanges of Real Property, such Real Property is unimproved at the time of the lease, sublease or exchange;
(h) any Disposition of any Real Property (other than any Mortgaged Property) that is not material to the business or operations of the Borrower and the other Restricted Subsidiaries;
(i) any Disposition of the Moore Road Property; provided that, at the time of such Disposition, the Moore Road Property does not constitute a Mortgaged Property;
(j) the unwinding of any Hedge Agreements permitted under Section 6.12;
(k) Dispositions of accounts receivable in connection with the compromise, settlement or collection thereof in the ordinary course of business consistent with past practice and not as part of any accounts receivables financing transaction;
 
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(l) Dispositions of Investments in joint ventures to the extent required by the Organizational Documents of such joint venture or any related joint venture, shareholders’ or similar agreement;
(m) the surrender, modification, release or waiver of contract rights (including under leases, subleases and licenses of Real Property) or the settlement, release, modification, waiver or surrender of contract, tort or other claims of any kind, in each case, that do not interfere in any material respect with the ordinary course of business of the Borrower and the other Restricted Subsidiaries; and
(n) other Dispositions of the property of the Borrower or any other Restricted Subsidiary so long as (i) both before and after the occurrence of such Disposition, no Default or Event of Default shall exist or result therefrom and (ii) the value of such assets (valued at the time of such Disposition at the greater of net book value and Fair Market Value) does not, together with the aggregate value of all other assets of the Borrower and the other Restricted Subsidiaries disposed of on or after the Closing Date in reliance on this clause (n) (each asset valued at the respective purchase price of such asset), exceed $75,000,000.
Section 6.05 Business Activities .
(a) The Parent shall not engage in any business or activity except the holding of the Equity Interests in the Borrower, the performance of its obligations under, and, subject to any limitations in this Agreement or the other Loan Documents, the exercise of its rights under this Agreement, the other Loan Documents, the Bond Documents, the instruments, agreements and other documents evidencing or governing Permitted First Lien Refinancing Debt or Permitted Second Lien Refinancing Debt and the HFOTCO Company Agreement, and activities incidental thereto. Except as permitted under this Agreement or the other Loan Documents, the Parent shall not become a party to any contract or instrument other than this Agreement, the other Loan Documents, the Bond Documents, the instruments, agreements and other documents evidencing or governing Permitted First Lien Refinancing Debt or Permitted Second Lien Refinancing Debt and the HFOTCO Company Agreement and will not incur any liabilities, contingent or otherwise, except under this Agreement, the other Loan Documents, the Bond Documents, the instruments, agreements and other documents evidencing or governing Permitted First Lien Refinancing Debt or Permitted Second Lien Refinancing Debt and the HFOTCO Company Agreement, or incidental to the foregoing activities.
(b) None of the Borrower or any of the other Restricted Subsidiaries shall engage in activities other than (i) the ownership, development, expansion, operation, maintenance and financing of the Terminal Storage Facility and (ii) such other businesses if, as a result thereof, the general nature of the business in which the Borrower and the other Restricted Subsidiaries, taken as a whole, would then be engaged would be substantially changed from the general nature of the business in which the Borrower and the other Restricted Subsidiaries, taken as a whole, are engaged on the Closing Date. None of the Borrower or any of the other Restricted Subsidiaries shall use the Dock 5 in any way that would materially and adversely affect the ability of the Borrower and the Restricted Subsidiaries to use the Terminal Storage Facility in the way in which it is used as of the Closing Date.
 
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Section 6.06 No Liquidation, Merger or Consolidation . None of the Parent, the Borrower or any other Restricted Subsidiary shall liquidate, wind-up or dissolve, or sell, lease or otherwise transfer or Dispose of all or substantially all of its property, assets or business or combine, merge into or consolidate with any other Person, or permit any other Person to combine, merge into or consolidate with it, except that, if at the time thereof and immediately after giving effect thereto no Default or Event of Default shall have occurred and be continuing, (a) any Person may merge into the Borrower in a transaction in which the Borrower is the surviving entity, (b) any Person (other than the Borrower) may merge or consolidate with any Restricted Subsidiary (other than the Borrower) in a transaction in which the surviving entity is a Restricted Subsidiary (and, if any party to such merger or consolidation is a Subsidiary Loan Party, is a Subsidiary Loan Party), (c) any Restricted Subsidiary (other than the Borrower) may merge into or consolidate with any Person (other than the Parent or the Borrower) in a transaction permitted under Section 6.04 in which, after giving effect to such transaction, the surviving entity is not a Subsidiary and (d) any Restricted Subsidiary (other than the Borrower) may liquidate or dissolve if the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower and is not materially disadvantageous to the Lenders; provided that any such merger or consolidation involving a Person that is not a wholly-owned Restricted Subsidiary immediately prior thereto shall not be permitted unless it is also permitted under Section 6.07.
Section 6.07 Investments . None of the Parent, the Borrower or any other Restricted Subsidiary shall purchase or acquire (including pursuant to any merger or consolidation with any Person that was not a wholly-owned Restricted Subsidiary prior thereto), hold, make or otherwise suffer to exist any Investment in any other Person, or make any Acquisition, other than:
(a) Permitted Investments;
(b) Investments existing on the Closing Date in Subsidiaries, and other Investments existing on the Closing Date and set forth on Schedule 6.07 (but not any additions thereto (including any capital contributions) made after the Closing Date);
(c) investments by the Parent, the Borrower and the other Restricted Subsidiaries in Equity Interests in their Restricted Subsidiaries (including as capital contributions to such Restricted Subsidiaries); provided that (i) such Restricted Subsidiaries are Restricted Subsidiaries of the Parent prior to such investments, (ii) any such Equity Interests held by a Loan Party shall be pledged to the extent required by the definition of the term “Collateral and Guarantee Requirement” and (iii) the aggregate amount of such investments by the Loan Parties in, and loans and advances by the Loan Parties to, and Guarantees by the Loan Parties of Indebtedness and other obligations of, Restricted Subsidiaries that are not Loan Parties (excluding all such investments, loans, advances and Guarantees existing on the date hereof and permitted by clause (b) above) shall not exceed $15,000,000 at any time outstanding;
(d) loans or advances made by the Parent, the Borrower or any other Restricted Subsidiary to any Restricted Subsidiary; provided that (i) the Indebtedness resulting therefrom is permitted by clause (e) of the definition of “Permitted Debt” and (ii) the amount of such loans and advances made by the Loan Parties to Restricted Subsidiaries that are not Loan Parties shall be subject to the limitation set forth in clause (c)(iii) above;
 
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(e) Guarantees by the Parent, the Borrower or any other Restricted Subsidiary of Indebtedness or other obligations of the Parent, the Borrower or any other Restricted Subsidiary (including any such Guarantees arising as a result of any such Person being a joint and several co-applicant with respect to any Letter of Credit or any other letter of credit or letter of guaranty); provided that (i) a Restricted Subsidiary shall not Guarantee any Material Indebtedness unless such Restricted Subsidiary has Guaranteed the Obligations pursuant to the Guaranty Agreement, (ii) a Restricted Subsidiary that has not Guaranteed the Obligations pursuant to the Guaranty Agreement shall not Guarantee any Indebtedness or other obligations of any Loan Party, (iii) the Parent shall not Guarantee any Indebtedness or other obligation of any Restricted Subsidiary except for any such Guarantees under the Loan Documents or of Indebtedness permitted by clause (b) or (d) of the definition of the term “Permitted Debt”, and (iv) the aggregate amount of Indebtedness and other obligations of Restricted Subsidiaries that are not Loan Parties that is Guaranteed by any Loan Party shall be subject to the limitation set forth in clause (c)(iii) above;
(f) Investments in the form of Hedge Agreements permitted under Section 6.12;
(g) Permitted Acquisitions;
(h) Any payroll, travel, entertainment, relocation and similar advances to directors, officers and employees of any Group Member that are expected at the time of such advances to be treated as expenses of such Group Member for accounting purposes and that are made in the ordinary course of business;
(i) Investments received in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts and disputes with, customers and suppliers, or in connection with the satisfaction or enforcement of claims due or owing to any Group Member, in each case in the ordinary course of business;
(j) Investments held by any Restricted Subsidiary the Equity Interests in which are acquired after the Closing Date in compliance with this Section 6.07 or held by any Person merged into or consolidated with any Group Member after the Closing Date in compliance with Section 6.06 and this Section 6.07, in each case, so long as such Investments were not made in contemplation of or in connection with such acquisition, merger or consolidation and were in existence on the date of such acquisition, merger or consolidation;
(k) Investments made as a result of the receipt of noncash consideration from any Disposition of any asset in compliance with Section 6.04;
(l) Investments consisting of (i) extensions of trade credit, (ii) deposits made in connection with the purchase of goods or services or the performance of leases, licenses or contracts, in each case, in the ordinary course of business, and (iii) notes receivable of, or prepaid royalties and other extensions of credit to, customers and suppliers that are not Affiliates of any Group Member and that are made in the ordinary course of business;
 
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(m) other Investments and other acquisitions; provided that, at the time each such Investment or acquisition is purchased, made or otherwise acquired, the aggregate amount of such Investment or the aggregate amount of all consideration paid in connection with such acquisition (determined as set forth in clause (g) of the definition of “Permitted Acquisition”) shall not exceed an amount equal to (i) the Available Equity Amount at such time, minus (ii) the sum of (A) the aggregate amount of Investments made pursuant to this clause (m) subsequent to the Closing Date as of such time and (B) the aggregate amount of all Available Amount Expenditures based on usage of the Available Equity Amount subsequent to the Closing Date as of such time;
(n) other Investments and other acquisitions; provided that (A) no Specified Default or Event of Default shall have occurred and be continuing or would result therefrom and (B) at the time each such Investment or acquisition is purchased, made or otherwise acquired, the aggregate amount of such Investment or the aggregate amount of all consideration paid in connection with such acquisition (determined as set forth in clause (g) of the definition of “Permitted Acquisition”) shall not exceed the Available Amount at such time (in each case, as certified by a Responsible Officer of the Borrower); and
(o) other Investments and other acquisitions; provided that (A) no Specified Default or Event of Default shall have occurred and be continuing or would result therefrom and (B) at the time of and immediately after giving effect to any such Investment or acquisition, the Total Adjusted Net Leverage Ratio shall not exceed the Specified Total Adjusted Net Leverage Ratio on a pro forma basis (in each case, as certified by a Responsible Officer of the Borrower).
Section 6.08 Transactions with Affiliates . None of the Parent, the Borrower or any other Restricted Subsidiary shall directly or indirectly enter into any transaction or series of related transactions with or for the benefit of any of its Affiliates, except for (a) transactions in the ordinary course of business on fair and reasonable terms that, taken as a whole, are no less favorable to the Parent, the Borrower or such Restricted Subsidiary than those which would be included in an arm’s-length transaction with a non- Affiliate, (b) transactions between or among the Loan Parties not involving any other Affiliate, (c) the payment of fees and indemnities to directors, officers, consultants and employees of any of the Loan Parties in the ordinary course of business, (d) issuances of Equity Interests in any Group Member permitted under this Agreement or any other Loan Document, (e) the making of Restricted Payments permitted under Section 6.04, (f) Investments permitted under Section 6.07(h), and (g) incurrences by the Borrower or any Restricted Subsidiary of Subordinated Affiliate Indebtedness owed to the Sponsor or any Affiliate thereof (other than the Parent or any Subsidiary).
Section 6.09 Amendments to Material Agreements . None of the Parent, the Borrower or any other Restricted Subsidiary will amend, modify or waive any of its rights under (a) any Bond Document to the extent such amendment, modification or waiver is not permitted by the provisions of the Intercreditor Agreement or (b) (i) any agreement or instrument governing or evidencing any Junior Indebtedness or (ii) its certificate of incorporation, bylaws or other Organizational Documents, including the HFOTCO Company Agreement, in the case of this clause (b) to the extent such amendment, modification or waiver could reasonably be expected to be adverse in any material respect to the Lenders.
 
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Section 6.10 Fiscal Year . None of the Parent, the Borrower or any other Subsidiary shall change its Fiscal Year.
Section 6.11 Hazardous Materials . None of the Parent, the Borrower or any other Restricted Subsidiary shall use, generate, manufacture, store, Release, transport or treat any Hazardous Materials in violation of any Environmental Laws, any other Legal Requirements or any Permits necessary to the ownership of their respective properties or to the conduct of their respective businesses, which violation could reasonably be expected to (a) subject the Secured Parties to material liability or (b) result in a Material Adverse Effect.
Section 6.12 Hedge Agreements . None of the Parent, the Borrower or any other Restricted Subsidiary shall engage in any transaction involving interest rate hedging, currency hedging, commodity hedging, swaps, options, futures contracts, derivative transactions, or any similar transactions, or enter into any Hedge Agreement other than (a) Interest Rate Hedge Agreements entered into in accordance with Section 5.15, (b) Hedge Agreements entered into in accordance with Section 5.15 of the Bond Facility Agreement, (c) Hedge Agreements entered into to hedge or mitigate risks to which the Parent, the Borrower or any other Restricted Subsidiary has actual exposure (other than in respect of Equity Interests or Indebtedness of the Parent, the Borrower or any other Restricted Subsidiary) and (d) Hedge Agreements entered into in order to effectively cap, collar or exchange interest rates (from fixed to floating rates, from one floating rate to another floating rate or otherwise) with respect to any interest-bearing liability or investment of the Parent, the Borrower or any other Restricted Subsidiary.
Section 6.13 Restrictive Agreements . None of the Parent, the Borrower or any other Restricted Subsidiary shall become subject to any contractual restrictions upon (a) the ability of the Parent, the Borrower or any other Restricted Subsidiary to create, incur or permit to exist any Lien upon any of its assets to secure any Secured Obligations or (b) the ability of any Restricted Subsidiary to pay dividends or other distributions with respect to its Equity Interests or to make or repay loans or advances to the Parent, the Borrower or any other Restricted Subsidiary or to Guarantee Indebtedness of the Parent, the Borrower or any other Restricted Subsidiary; provided that:
(i) the foregoing shall not apply to:
(A) restrictions in the HFOTCO Company Agreement as in effect on the Closing Date;
(B) restrictions in the Loan Documents;
(C) restrictions and conditions imposed by the Bond Facility Agreement as in effect on the Closing Date, or any agreement or document governing or evidencing Indebtedness, or Refinancing Indebtedness in respect thereof, in each case permitted under clause (b) of the definition of the term “Permitted Debt”, provided that the restrictions and conditions contained in any such agreement or document, taken as a whole, are not less favorable to the Lenders than the restrictions and conditions imposed by the Bond Facility Agreement as in effect on the Closing Date;
 
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(D) restrictions and conditions existing on the Closing Date identified on Schedule 6.13 (but shall apply to any extension, renewal, amendment or modification expanding the scope of any such restriction or condition);
(E) in the case of any Restricted Subsidiary that is not a wholly-owned Restricted Subsidiary, restrictions and conditions imposed by its Organizational Documents or any related joint venture or similar agreement, provided that such restrictions and conditions apply only to such Restricted Subsidiary and to any Equity Interests in such Restricted Subsidiary; or
(F) restrictions and conditions imposed by any agreement or instrument evidencing any Indebtedness permitted to be incurred under Section 6.02 subsequent to the Closing Date, provided that the restrictions and conditions contained in any such agreement or instrument, taken as a whole, are not less favorable to the Lenders than the restrictions and conditions imposed by the Bond Facility Agreement as in effect on the Closing Date;
(ii) clause (a) of the foregoing shall not apply to:
(A) restrictions and conditions imposed by any agreement relating to secured Indebtedness permitted by clause (h) or (i) of the definition of “Permitted Debt” if such restrictions or conditions apply only to the assets securing such Indebtedness;
(B) customary provisions in leases and other agreements restricting the assignment thereof; or
(C) restrictions and conditions imposed by any agreement or instrument of or with respect to any Restricted Subsidiary or the property or assets of any Person at the time the Equity Interests in such Restricted Subsidiary or such property or assets are acquired by the Parent or any Restricted Subsidiary, in each case, so long as such agreement or instrument was not entered into, or such restrictions and conditions were not imposed, in contemplation of or in connection with such acquisition and were in existence on the date of such acquisition; and
(iii) clause (b) of the foregoing shall not apply to:
(A) customary restrictions and conditions contained in agreements relating to the sale of a Restricted Subsidiary, or a business unit, division, product line or line of business, that are applicable solely pending such sale, provided that such restrictions and conditions apply only to the Restricted Subsidiary, or the business unit, division, product line or line of business, that is to be sold and such sale is permitted hereunder; or
 
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(B) restrictions and conditions imposed by agreements relating to Indebtedness of any Restricted Subsidiary in existence at the time such Restricted Subsidiary became a Subsidiary and otherwise permitted by clause (i) of the definition of “Permitted Debt” (but shall apply to any extension, renewal, amendment or modification expanding the scope of any such restriction or condition), provided that such restrictions and conditions apply only to such Restricted Subsidiary.
Nothing in this paragraph shall be deemed to modify the requirements set forth in the definition of the term “Collateral and Guarantee Requirement” or the obligations of the Loan Parties under Sections 5.10, 5.11 or 5.12 or under the Security Documents.
Section 6.14 Total Adjusted Net Leverage Ratio . If as of the last day of any Fiscal Quarter ending on or after September 30, 2014, the Aggregate Revolving Exposure exceeds 25% of the Aggregate Revolving Commitment, then the Parent and the Borrower shall not permit the Total Adjusted Net Leverage Ratio as of the last day of such Fiscal Quarter to exceed:
(a) with respect to any such Fiscal Quarter ending on or prior to September 30, 2016, 8.50 to 1.00; and
(b) with respect to any such Fiscal Quarter ending on or after December 31, 2016, 7.50 to 1.00.
The provisions of this Section 6.14 are solely for the benefit of Revolving Lenders.
Section 6.15 Sanctions Regulations . None of the Parent, the Borrower or any other Subsidiary shall, directly or indirectly, use the proceeds of the Loans, or lend, contribute or otherwise make available such proceeds to any Person (a) to fund or facilitate any activities of or with any Person in any country or territory that, at the time of such funding or facilitation, is the subject of Sanctions or (b) in any other manner that will result in a violation of Sanctions by any Person (including any Person participating in this Agreement).
ARTICLE VII.
EVENTS OF DEFAULT
Section 7.01 Events of Default . The occurrence of any of the following events shall constitute an event of default hereunder (each, an “ Event of Default ”):
(a) Misrepresentations . Any representation, warranty or certification made or deemed made by any Loan Party in any Loan Document, or any representation, warranty or certification made by any Loan Party and contained in any certificate or other document required to be delivery by such Loan Party in connection with or pursuant to any Loan Document, shall prove to have been false or misleading in any material respect when so made, deemed made or furnished by the applicable Loan Party.
(b) Principal Payment Default . Default shall be made in the payment of any principal of any Loan or any reimbursement obligation in respect of any LC Disbursement when and as the same shall become due and payable, whether at the due date thereof or at a date fixed for prepayment thereof or by acceleration thereof or otherwise.
 
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(c) Interest Payment Default . Default shall be made (i) in the payment of any interest on any Loan or in the payment of any Agent Fee or any other scheduled fee due under any Loan Document when and as the same shall become due and payable, and such default shall continue unremedied for a period of three Business Days or (ii) in the payment of any other amounts (other than an amount referred to in paragraph (b) above or the foregoing clause (i)) due under any Loan Document (including, without limitation, any increased costs, breakage costs, tax gross-up or indemnity payments) when and as the same shall become due and payable, and such default shall continue unremedied for a period of five Business Days.
(d) Immediate Covenant Default . Default shall be made in the due observance or performance by the Parent or the Borrower of any covenant, condition or agreement contained in Section 5.01, 5.03(a), 5.05(a) (with respect to the Parent and the Borrower), 5.10(a), 5.11, 5.13, 5.15(a) or 5.18(a) or in Article VI; provided , that in the case of any default made in the due observance or performance by the Parent or the Borrower of the financial covenant set forth in Section 6.14 (a “ Financial Covenant Event of Default ”), such Financial Covenant Event of Default shall not constitute an Event of Default with respect to the Term Loans unless and until the Administrative Agent, at the request of a Majority in Interest of the Revolving Lenders, has taken the actions described in clause (ii) of the proviso to Section 7.02.
(e) Covenant Defaults with Cure . A Loan Party shall default in the due performance or observance of any other agreement contained in any Loan Document to which such Loan Party is party, and such default shall continue unremedied for a period of 30 days after the earlier to occur of (i) written notice thereof having been given to the Borrower by the Administrative Agent or any Lender or Issuing Bank or (ii) the date on which a Responsible Officer of the applicable Loan Party first obtains actual knowledge of such default.
(f) Cross Default . Any event or condition occurs that results in any Material Indebtedness becoming due prior to its scheduled maturity or that enables or permits (with or without the giving of notice, the lapse of time or both) the holder or holders of any Material Indebtedness or any trustee or agent on its or their behalf, or, in the case of any Hedge Agreement, the applicable counterparty, to cause such Material Indebtedness to become due, or to require the prepayment, repurchase, redemption or defeasance thereof, prior to its scheduled maturity or, in the case of any Hedge Agreement, to cause the termination thereof; provided that this clause (f) shall not apply to (i) any secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the assets securing such Indebtedness or (ii) any Indebtedness that becomes due as a result of a refinancing thereof permitted under Section 6.02.
(g) Involuntary Bankruptcy . An involuntary proceeding shall be commenced or an involuntary petition shall be filed in a court of competent jurisdiction seeking (i) relief in respect of any Group Member or of a substantial part of the property or assets of any Group Member under the U.S. Bankruptcy Code, as now constituted or hereafter amended, or any other federal, state or foreign bankruptcy, insolvency, receivership or similar law, (ii) the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for any Group Member or for a substantial part of the property or assets of any Group Member or (iii) the winding-up or liquidation of any Group Member, and in each case such proceeding or petition shall continue undismissed for 60 days or an order or decree approving or ordering any of the foregoing shall be entered.
 
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(h) Voluntary Bankruptcy . Any Group Member shall (i) voluntarily commence any proceeding or file any petition seeking relief under the U.S. Bankruptcy Code, as now constituted or hereafter amended, or any other federal, state or foreign bankruptcy, insolvency, receivership or similar law, (ii) consent to the institution of, or fail to contest in a timely and appropriate manner, any proceeding or the filing of any petition described in paragraph (g) above, (iii) apply for, request or consent to the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for any Group Member or for a substantial part of the property or assets of any Group Member, (iv) file an answer admitting the material allegations of a petition filed against it in any such proceeding, (v) make a general assignment for the benefit of creditors or (vi) become unable, admit in writing its inability or fail generally to pay its debts as they become due.
(i) Judgments . One or more judgments or orders for the payment of money in excess of $10,000,000 in the aggregate (taking into account any insurance proceeds payable under a policy where the insurer has accepted coverage without reservation) shall be rendered against any of the Group Members and such judgment or order is not, within 60 days after entry thereof, bonded, discharged or stayed pending appeal, or is not discharged within 60 days after the expiration of such stay.
(j) ERISA . One or more of the following events shall have occurred that, when taken together with all other such events that have occurred, could reasonably be expected to have a Material Adverse Effect: (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 or 430 of the Code or Section 302 or 303 of ERISA, (ii) the termination of any Plan occurs or 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 Section 4042 of ERISA to terminate or appoint a trustee to administer any Plan or the PBGC shall have notified any Group Member or any ERISA Affiliate that a Plan may become a subject of any such proceedings, (iii) there is any 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, (iv) any Group Member or any ERISA Affiliate shall have incurred or is reasonably expected to incur any liability pursuant to Title I or IV of ERISA (other than to make contributions on a timely basis to satisfy the minimum funding standards of ERISA or to pay required premiums on a timely basis to the PBGC) or the penalty or excise tax provisions of the Code relating to employee benefit plans, (v) any Group Member or any ERISA Affiliate fails to make required contributions to or withdraws from any Multiemployer Plan or receives notice that a Multiemployer Plan is, or is expected to be, in “critical” or “endangered” status within the meaning of Section 432 of the Code or Section 305 of ERISA, (vi) any Group Member establishes or amends any employee welfare benefit plan that provides post employment welfare benefits in a manner that would increase the liability of any Group Member thereunder, (vii) any Plan is in “at-risk” status (as defined in Section 303(i)(4) of ERISA or Section 430(i)(4) of the Code), (viii) any Reportable Event has occurred or (ix) the imposition of a Lien pursuant to Section 430(k) of the Code or Section 303(k) of ERISA or a violation of Section 436 of the Code with respect to any Plan occurs.
 
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(k) Loan Documentation . (i) The Guaranty Agreement or any Security Document (or any material provision of any other Loan Document) shall cease to be in full force and effect or shall be declared void by a Governmental Authority, or any party thereto (other than a Lender Party) shall claim such unenforceability or invalidity, (ii) any Guarantee purported to be created under the Guaranty Agreement shall cease to be, or shall be asserted by any Loan Party not to be, in full force and effect or (iii) any security interest in the Collateral purported to be created by any Security Document shall cease to be, or shall be asserted in writing by any Loan Party not to be, a valid and perfected security interest (having the priority required by this Agreement or the relevant Security Document) in the securities, assets or properties covered thereby.
(l) Change of Control . A Change of Control shall have occurred.
Section 7.02 Remedies . Upon the occurrence and during the continuation of an Event of Default (other than an Event of Default with respect to any Loan Party described in paragraph (g) or (h) of Section 7.01), and at any time thereafter during the continuation of such Event of Default, the Administrative Agent, at the request of the Required Lenders, shall, by notice to the Borrower, take any or all of the following actions, at the same or different times: (a) terminate the Commitments and thereupon the Commitments shall terminate immediately, (b) declare the Loans then outstanding to be forthwith due and payable in whole or in part, whereupon the principal of the Loans so declared to be due and payable, together with accrued interest thereon and any unpaid accrued fees (including Agent Fees) and all other liabilities of the Loan Parties accrued hereunder and under any other Loan Document, shall become forthwith due and payable, (c) require the deposit of cash collateral in respect of LC Exposure as provided in Section 2.05(i), in each case, without presentment, demand, protest or any other notice of any kind, all of which are hereby expressly waived by each of the Loan Parties, anything contained herein or in any other Loan Document to the contrary notwithstanding, and (d) subject to the provisions of the Intercreditor Agreement, direct the Collateral Agent to exercise the rights and remedies under the Security Documents (or at law or pursuant to the UCC), and in the case of any event with respect to any Loan Party described in paragraph (g) or (h) of Section 7.01, the Commitments shall automatically terminate, the principal of the Loans then outstanding, together with accrued interest thereon and any unpaid accrued fees (including Agent Fees) and all other liabilities of the Loan Parties accrued hereunder and under any other Loan Document, shall automatically become due and payable, and the deposit of such cash collateral in respect of LC Exposure shall immediately and automatically become due, in each case, without presentment, demand, protest or any other notice of any kind, all of which are hereby expressly waived by each of the Loan Parties, anything contained herein or in any other Loan Document to the contrary notwithstanding; provided , however , that upon the occurrence and during the continuance of a Financial Covenant Event of Default, and at any time thereafter during the continuation of such Financial Covenant Event of Default, the Administrative Agent, at the request of a Majority in Interest of the Revolving Lenders, shall, by notice to the Borrower, take any or all of the following actions, at the same or different times: (i) terminate the Revolving Commitments and thereupon the Revolving Commitments shall terminate immediately, (ii) declare the Revolving Loans then outstanding to be forthwith due and payable in whole or in
 
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part, whereupon the principal of the Revolving Loans so declared to be due and payable, together with accrued interest thereon and any unpaid accrued fees and all other liabilities of the Loan Parties accrued hereunder and under any other Loan Document to the Revolving Lenders, shall become forthwith due and payable, and (iii) require the deposit of cash collateral in respect of LC Exposure as provided in Section 2.05(i), in each case, without presentment, demand, protest or any other notice of any kind, all of which are hereby expressly waived by each of the Loan Parties, anything contained herein or in any other Loan Document to the contrary notwithstanding.
Section 7.03 Remedies Waterfall . Upon the occurrence and during the continuance of an Event of Default, subject to Section 2.02 of the Intercreditor Agreement, all Proceeds (as defined in the Intercreditor Agreement) received by any Guaranteed Party under this Agreement or any other Loan Document shall be applied as follows:
(a) FIRST, to the payment of all costs and expenses incurred by the Administrative Agent in connection with this Agreement, any other Loan Document or any of the Guaranteed Obligations, including all court costs and the fees and expenses of its agents and legal counsel, the repayment of all advances made by the Administrative Agent hereunder or under any other Loan Document on behalf of any Loan Party and any other costs or expenses incurred in connection with the exercise of any right or remedy hereunder or under any other Loan Document (in the case of such costs and expenses, to the extent any Loan Party is obligated under the Loan Documents to pay such costs and expenses);
(b) SECOND, to the extent of any excess of such Proceeds, to the payment in full of the Guaranteed Obligations (the amounts so applied to be distributed among the Guaranteed Parties pro rata in accordance with the amounts of the Guaranteed Obligations owed to them on the date of any such distribution); and
(c) THIRD, to the payment to or upon the order of the Loan Parties or to whosoever may be lawfully entitled to receive the same pursuant to the Second Lien Intercreditor Agreement or otherwise, or as a court of competent jurisdiction may direct.
Section 7.04 Specified Equity Contributions . Notwithstanding anything to the contrary contained in Section 7.02, in the event of any Financial Covenant Event of Default, any cash equity contribution (in the form of common equity) made to the Parent during any Fiscal Quarter or on or prior to the day that is 10 days after the day on which financial statements are required to be delivered for such Fiscal Quarter will be, at the request of the Parent, included in the calculation of EBITDA solely for the purposes of determining compliance with the financial covenant set forth in Section 6.14 at the end of such Fiscal Quarter and any subsequent period that includes such Fiscal Quarter (any such equity contribution, a “ Specified Equity Contribution ”) and if, after giving effect to the foregoing calculation, the Parent and the Borrower would then be in compliance with the financial covenant set forth in Section 6.14 at the end of such Fiscal Quarter, the Borrower shall be deemed to be in compliance with the financial covenant set forth in Section 6.14 at the end of such Fiscal Quarter and such Financial Covenant Event of Default shall be deemed not to have existed or occurred; provided that (a) there shall be no more than two Specified Equity Contributions made in any period of four consecutive Fiscal Quarters, (b) there shall be no more than five Specified Equity Contributions
 
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at any time prior to the Revolving Maturity Date, (c) there shall be no more than one Specified Equity Contribution in any two consecutive Fiscal Quarters, (d) the amount of any Specified Equity Contribution and the use of proceeds therefrom will be no greater than the amount required to cause Borrower to be in compliance with the financial covenant set forth in Section 6.14 and (e) all Specified Equity Contributions and the use of proceeds therefrom will be disregarded for all other purposes under the Loan Documents (including for purposes of calculating the Available Equity Amount and any ratios or items calculated by reference to EBITDA). To the extent that the proceeds of any Specified Equity Contribution are used to repay Indebtedness, such Indebtedness shall not be deemed to have been repaid for purposes of calculating the financial covenant set forth in Section 6.14 for any period of four consecutive Fiscal Quarters of the Parent in which EBITDA shall have been increased as a result of such Specified Equity Contribution.
ARTICLE VIII.
THE ADMINISTRATIVE AGENT
Section 8.01 Appointment .
(a) In order to facilitate the transactions contemplated by this Agreement, Morgan Stanley is hereby appointed to act as the Administrative Agent. Each of the Lenders and Issuing Banks and each assignee of any such Lender or Issuing Bank hereby irrevocably authorizes the Administrative Agent to take such actions on behalf of such Lender, Issuing Bank or assignee and to exercise such powers as are specifically delegated to the Administrative Agent by the terms and provisions hereof and of the other Loan Documents, together with such actions and powers as are reasonably incidental thereto. Without limiting the generality of the foregoing, the Administrative Agent is hereby expressly authorized by the Lenders and the Issuing Banks, without hereby limiting any implied authority, (i) to receive on behalf of the Lenders all payments of principal of and interest on the Loans and all other amounts due to the Lenders hereunder, and promptly to distribute to each Lender its proper share of each payment so received (and any such payments not so distributed by the Administrative Agent within one Business Day of receipt thereof shall bear interest at a rate equal to the greater of (A) the Federal Funds Effective Rate and (B) a rate reasonably determined by the Administrative Agent in accordance with banking industry rules on interbank compensation); (ii) to give notice on behalf of each of the Lenders and Issuing Banks of any Event of Default specified in this Agreement of which the Administrative Agent has actual knowledge acquired in connection with the performance of its duties as Administrative Agent hereunder; and (iii) to distribute to each Lender and Issuing Bank copies of all notices, financial statements and other materials delivered by the Borrower pursuant to this Agreement as received by the Administrative Agent.
(b) Neither the Administrative Agent nor any of its Related Parties shall be liable as such for any action taken or omitted by any of them except for the Administrative Agent’s or its Related Party’s gross negligence or willful misconduct, as determined by a final, non-appealable judgment of a court of competent jurisdiction, or be responsible for any statement, warranty or representation herein or the contents of any document delivered in connection herewith, or be required to ascertain or to make any inquiry concerning (i) any statement, warranty or representation made in or in connection with this Agreement or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder
 
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or thereunder or in connection herewith or therewith, (iii) the performance or observance by any Loan Party of any of the terms, conditions, covenants or agreements contained herein or therein or the occurrence of any Event of Default, or (iv) the satisfaction of any condition set forth in Article IV or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. The Administrative Agent shall not be responsible to the Lenders or Issuing Banks for the due execution, genuineness, validity, enforceability or effectiveness of this Agreement or any other Loan Documents or other instruments or agreements. The Administrative Agent shall not be responsible or have any liability for, or have any duty to ascertain, inquire into, monitor or enforce, compliance with the provisions hereof relating to Disqualified Lenders. Without limiting the generality of the foregoing, the Administrative Agent shall not (A) be obligated to ascertain, monitor or inquire as to whether any Lender or Participant or prospective Lender or Participant is a Disqualified Lender or (B) have any liability with respect to or arising out of any assignment or participation of Loans, or disclosure of confidential information, to any Disqualified Lender. The Administrative Agent shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the Required Lenders and, except as otherwise specifically provided herein, such instructions and any action or inaction pursuant thereto shall be binding on all the Lenders. The Administrative Agent shall, in the absence of knowledge to the contrary, be entitled to rely on any instrument or document believed by it in good faith to be genuine and correct and to have been signed or sent by the proper Person. Neither the Administrative Agent nor any of its Related Parties shall have any responsibility to any Loan Party or any other party hereto or to any other Loan Document on account of the failure, delay in performance or breach by, or as a result of information provided by, any Lender or Issuing Bank of any of its obligations hereunder or to any Lender or Issuing Bank on account of the failure of or delay in performance or breach by any other Lender or Issuing Bank or any Loan Party of any of its obligations hereunder or under any other Loan Document or in connection herewith or therewith. The Administrative Agent shall be deemed not to have knowledge of any Event of Default unelss and until notice describing such Event of Default is given to it in writing by the Borrower, a Lender or an Issuing Bank. The Administrative Agent may execute any and all duties hereunder by or through agents, attorneys, accountants, appraisers, employees or any sub-agent, expert or advisor selected or appointed by it and shall be entitled to rely upon the advice of legal counsel selected by it with respect to all matters arising hereunder and shall not be liable for any action taken or suffered in good faith by it in accordance with the advice of such counsel. The Administrative Agent shall not be responsible for the misconduct of any such agent or other Person selected by it in good faith. The Administrative Agent is authorized and directed to execute the Loan Documents to which it is party and, in acting thereunder, shall be entitled to the protections, indemnifications and limitations from liability afforded to it hereunder and thereunder. The Administrative Agent shall have the right at any time to seek instructions concerning any action to be taken or not taken or right exercisable by it under the Loan Documents.
(c) The Lenders and Issuing Banks hereby acknowledge that Bank of America, N.A. is appointed to act as the Collateral Agent pursuant to, and in accordance with the provisions of, Article VI of the Intercreditor Agreement.
 
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Section 8.02 Nature of Duties . The Lenders and Issuing Banks hereby acknowledge and agree that the Administrative Agent shall not be under any duty to take any discretionary action permitted to be taken by it pursuant to the provisions of this Agreement unless it shall be requested in writing to do so by the Required Lenders; provided that the Administrative Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose the Administrative Agent to liability or that is contrary to any Loan Document or applicable law, including for the avoidance of doubt actions that may be in violation of the automatic stay under the U.S. Bankruptcy Code or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of the U.S. Bankruptcy Code. The Lenders and Issuing Banks further acknowledge and agree that so long as the Administrative Agent shall make any determination to be made by it hereunder or under any other Loan Document in good faith, the Administrative Agent shall have no liability in respect of such determination to any Person. Notwithstanding any provision to the contrary elsewhere in this Agreement, the Administrative Agent shall not, in connection with any Loan Document, or any transaction contemplated thereunder, have any duties or responsibilities except those expressly set forth herein, or any fiduciary relationship with any Lender, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into the Loan Documents or otherwise exist against the Administrative Agent. Each Lender and Issuing Bank recognizes and agrees that the Arrangers shall have no duties or responsibilities under this Agreement or any other Loan Document, or any fiduciary relationship with any Lender or Issuing Bank, or shall have any functions, responsibilities, duties, obligations or liabilities for acting as such hereunder. Each Agent may exercise such powers, rights and remedies and perform such duties by or through its agents or employees, and may consult with relevant legal and other consultants in the exercise of its powers, rights and remedies and the performance of its duties hereunder and under the other Loan Documents.
Section 8.03 Resignation by or Removal of the Administrative Agent . Subject to the appointment and acceptance of a successor as provided below, the Administrative Agent may resign at any time by notifying the Lenders, the Issuing Banks and the Borrower. The Required Lenders shall have the right to remove the Administrative Agent for cause upon prior written notice to the Administrative Agent. Upon any such resignation or removal, the Required Lenders shall have the right to appoint a successor with, so long as no Event of Default has occurred and is continuing, the consent of the Borrower (not to be unreasonably withheld or delayed). If no successor shall have been so appointed by the Required Lenders and approved by the Borrower and shall have accepted such appointment within 45 days after the retiring Administrative Agent gives notice of its resignation or the Required Lenders vote to remove the Administrative Agent, then the retiring or removed Administrative Agent may, on behalf of the Lenders and the Issuing Banks with, so long as no Event of Default has occurred and is continuing, the consent of the Borrower (not to be unreasonably withheld or delayed), appoint a successor Administrative Agent which shall be a bank with an office in New York, New York and an office in London, England (or a bank having an Affiliate with such an office) having a combined capital and surplus that is not less than $1,000,000,000 or an Affiliate of any such bank. Upon the acceptance of any appointment as Administrative Agent hereunder by a successor bank, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring or removed Administrative Agent and the retiring or removed Administrative Agent shall be discharged from its duties and obligations hereunder. The Loan Parties shall pay to the retiring or removed Administrative Agent, no later than the date of the applicable discharge, all unpaid accrued fees (including Agent Fees) and all expenses owed to such Administrative Agent hereunder as of such discharge date). After an Administrative Agent’s resignation or removal hereunder, the provisions of this Article and Section 9.05 shall continue in effect for its benefit in respect of any actions taken or omitted to be taken by it while it was acting as Administrative Agent.
 
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Section 8.04 Administrative Agent in its Individual Capacity . With respect to its Commitments and Loans, as applicable, the Administrative Agent in its individual capacity and not as Administrative Agent shall have the same rights and powers as any other Lender and may exercise the same as though it were not the Administrative Agent, and the term “Lender” or “Lenders” shall, unless otherwise expressly indicated or unless the context otherwise requires, include the Administrative Agent in its individual capacity. The Administrative Agent and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrower or its Affiliates as if it were not the Administrative Agent and without any duty to account therefor to the Lenders.
Section 8.05 Indemnification . To the extent that the Parent and the Borrower fail to pay any amount required to be paid by them under clause (a) or (b) of Section 9.05 to the Administrative Agent, any Related Party thereof or any director, trustee, officer, employee, investment advisor or agent of any of the foregoing, each Lender severally agrees to pay to the Administrative Agent or such Related Party, director, trustee, officer, employee, investment advisor or agent, as the case may be, such Lender’s pro rata share (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought) of such unpaid amount; provided that the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted against the Administrative Agent in its capacity as such, or against any Related Party thereof or any director, trustee, officer, employee, investment advisor or agent of any of the foregoing acting for the Administrative Agent in connection with such capacity. For purposes of this Section, a Lender’s “pro rata share” shall be determined based upon its share of the sum of the total Revolving Exposures, outstanding Term Loans and unused Commitments at the time (or most recently outstanding and in effect). The obligations contained in this Section 8.05 shall survive the termination of this Agreement and the earlier resignation or removal of the Administrative Agent.
Section 8.06 Lack of Reliance on Administrative Agent . (a) Each Lender and Issuing Bank acknowledges that it has, independently and without reliance upon the Administrative Agent or any other Lender or Issuing Bank and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender and Issuing Bank also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender or Issuing Bank and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement or any other Loan Document, any related agreement or any document furnished hereunder or thereunder.
(b) Each Lender acknowledges that Affiliated Lenders may be Eligible Assignees hereunder and may purchase (including pursuant to privately negotiated transactions with one or more Lenders that are not made available for participation to all Lenders or all Lenders of a particular Class) Term Loans and Term Commitments hereunder from Lenders from time to time, subject to the restrictions set forth herein, including Sections 9.04 and 9.08. Each Lender agrees that the Administrative Agent shall not be responsible for or have any duty
 
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to ascertain or inquire into whether any Lender is at any time an Affiliated Lender and, unless the Administrative Agent shall have received, pursuant to the covenants, if any, of such Lender set forth herein or in the Assignment and Assumption Agreement pursuant to which such Lender shall have purchased and assumed any Loan or Commitment hereunder, prior written notice from any Lender that such Lender is an Affiliated Lender, the Administrative Agent may deal with such Lender (including for purposes of determining the consent, approval, vote or other similar action of the Lenders or the Lenders of any Class), and shall not incur any liability for so doing, as if such Lender were not an Affiliated Lender.
Section 8.07 Intercreditor Agreements . (a) Each of the Lenders hereby acknowledges that it has received and reviewed a copy of the Intercreditor Agreement and agrees to be bound by the terms thereof. Without limiting the generality of the foregoing, each Lender (and each Person that becomes a Lender hereunder pursuant to Section 9.04) hereby (i) authorizes and directs the Administrative Agent and the Collateral Agent to enter into the Intercreditor Agreement on behalf of such Lender and agrees that the Administrative Agent and the Collateral Agent may take such actions on its behalf as are contemplated by the terms of the Intercreditor Agreement, (ii) authorizes and directs the Administrative Agent and the Collateral Agent to execute the Intercreditor Agreement and the other Loan Documents to which they are or either of them is a party on behalf of such Lender and agrees that the Collateral Agent may take such actions on behalf of such Lender as are contemplated by the terms of the Intercreditor Agreement, and (iii) acknowledges that the Collateral Agent is acting as Collateral Agent for all of the Secured Parties and not solely the Lender Parties.
(b) Each of the Lenders hereby acknowledges that it has received and reviewed Exhibit K and, upon execution and delivery thereof by the parties thereto, agrees to be bound by the terms of the Second Lien Intercreditor Agreement. Without limiting the generality of the foregoing, each Lender (and each Person that becomes a Lender hereunder pursuant to Section 9.04) hereby (i) authorizes and directs the Administrative Agent and the Collateral Agent to enter into the Second Lien Intercreditor Agreement on behalf of such Lender and agrees that the Administrative Agent and the Collateral Agent may take such actions on its behalf as are contemplated by the terms of the Second Lien Intercreditor Agreement, (ii) authorizes and directs the Administrative Agent and the Collateral Agent to execute the Second Lien Intercreditor Agreement and the other Loan Documents to which they are or either of them is a party on behalf of such Lender and agrees that the Collateral Agent may take such actions on behalf of such Lender as are contemplated by the terms of the Second Lien Intercreditor Agreement, and (iii) acknowledges that the Collateral Agent is acting as Collateral Agent for all of the Secured Parties and not solely the Lender Parties.
Section 8.08 Administrative Agent . Neither the Administrative Agent nor any of its Affiliates shall be responsible for the value, validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement, any other Loan Document or any other instrument or document referred to or provided for herein or therein or for any failure of the Borrower or any other Loan Party to perform its obligations hereunder or thereunder, or for the validity, enforceability, genuineness, sufficiency or value of, or the perfection or priority of, any Lien or security interest created or purported to be created under any Security Documents or any other instrument or document referred to or provided for therein.
 
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ARTICLE IX.
MISCELLANEOUS
Section 9.01 Notices .
(a) Notices and other communications provided for herein shall be in writing and shall be delivered by hand or overnight courier service, mailed by certified or registered mail or sent by telecopy, to the applicable address set forth on Schedule 9.01 .
(b) Notices and other communications to the Lenders and Issuing Banks hereunder may be delivered or furnished by electronic communications pursuant to procedures set forth in Section 9.16 or as otherwise approved by the Administrative Agent; provided that the foregoing shall not apply to notices pursuant to Article II unless otherwise agreed by the Administrative Agent and the applicable Lender or Issuing Bank. Each of the Administrative Agent, the Collateral Agent and the Borrower may, in its discretion, agree to accept notices and other communications to it hereunder by electronic communications pursuant to procedures approved by it; and provided , further , that approval of such procedures may be limited to particular notices or communications.
(c) All notices and other communications given to any party hereto in accordance with the provisions of this Agreement shall be deemed to have been given on the date of receipt if delivered by hand or overnight courier service, sent by telecopy or (to the extent permitted by paragraph (b) above) electronic means or on the date five Business Days after dispatch by certified or registered mail if mailed, in each case delivered, sent or mailed (properly addressed) to such party as provided in this Section 9.01 or in accordance with the latest unrevoked direction from such party given in accordance with this Section 9.01.
(d) Any party hereto may change its address or telecopy number for notices and other communications hereunder by notice to the other parties hereto.
Section 9.02 Survival of Agreement . All covenants, agreements, representations and warranties made by each of the Loan Parties in this Agreement and the other Loan Documents and in the certificates or other instruments prepared or delivered in connection with or pursuant to this Agreement or any other Loan Document shall be considered to have been relied upon by the Lenders and shall survive the making by the Lenders of the Loans, the issuance by the Issuing Banks of the Letters of Credit and the execution and delivery of the Loan Documents, regardless of any investigation made by such Persons or on their behalf, and shall continue in full force and effect until the Discharge Date. Notwithstanding the foregoing or anything else to the contrary set forth in this Agreement or any other Loan Document, in the event that, in connection with the refinancing or repayment in full of the credit facilities provided for herein, an Issuing Bank shall have provided to the Administrative Agent a written consent to the release of the Revolving Lenders from their obligations hereunder with respect to any Letter of Credit issued by such Issuing Bank (whether as a result of the obligations of the Borrower (and any other account party) in respect of such Letter of Credit having been collateralized in full by a deposit of cash with such Issuing Bank, or being supported by a letter of credit that names such Issuing Bank as the beneficiary thereunder, or otherwise), then from and after such time such Letter of Credit shall cease to be a “Letter of Credit” outstanding hereunder for all purposes of this
 
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Agreement and the other Loan Documents, and the Revolving Lenders shall be deemed to have no participations in such Letter of Credit, and no obligations with respect thereto, under Section 2.05(d) or 2.05(f). Without prejudice to the survival of any other agreements contained herein, the indemnification and reimbursement obligations contained herein (including pursuant to Sections 2.15, 2.16, 2.17, 8.05 and 9.05) shall survive the Discharge Date and the earlier resignation or removal of any Agent.
Section 9.03 Binding Effect . This Agreement shall become effective when it shall have been executed and delivered by each of the Borrower and the Lender Parties and when the Administrative Agent shall have received copies hereof which, when taken together, bear the signatures of each of the other parties hereto, and thereafter shall be binding upon and inure to the benefit of the Borrower, each Lender Party and their respective permitted successors and assigns.
Section 9.04 Successors and Assigns .
(a) The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns permitted hereby (including any Affiliate of any Issuing Bank that issues any Letter of Credit), except that (i) no Loan Party may assign or otherwise transfer any of its rights or obligations hereunder or under any other Loan Document without the prior written consent of each Lender (and any attempted assignment or transfer by any Loan Party without such consent shall be null and void) and (ii) no Lender may assign or otherwise transfer its rights or obligations hereunder except in accordance with this Section 9.04. Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby (including any Affiliate of any Issuing Bank that issues any Letter of Credit), Participants (to the extent provided in paragraph (c) of this Section 9.04), the Arrangers and, to the extent expressly contemplated hereby, the Related Parties of any of the Lender Parties) any legal or equitable right, remedy or claim under or by reason of this Agreement.
(b) (i) Subject to the conditions set forth in paragraph (b)(ii) below, each Lender may assign to one or more Eligible Assignees all or a portion of its rights and obligations under this Agreement (including all or a portion of its Commitments and the Loans at the time owing to it), with the prior written consent (such consent not to be unreasonably withheld or delayed) of:
(A) the Administrative Agent; provided that the consent of the Administrative Agent shall not be required (1) for an assignment of any Term Commitment or Term Loan to an Eligible Assignee that is a Lender, an Affiliate of a Lender or an Approved Fund or (2) for an assignment to an Eligible Assignee that is a Revolving Lender, an Affiliate of a Revolving Lender or an Approved Fund with respect to a Revolving Lender;
(B) the Borrower; provided that the consent of the Borrower shall not be required (1) for an assignment of any Term Commitment or Term Loan, (2) for an assignment to an Eligible Assignee that is a Revolving Lender, an Affiliate of a Revolving Lender or an Approved Fund with respect to a Revolving
 
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Lender or (3) for an assignment during any period in which an Event of Default has occurred and is continuing; provided , further , that the Borrower shall be deemed to have consented to any such assignment unless it shall object thereto by written notice to the Administrative Agent within five Business Days after having received notice thereof;
(C) each Issuing Bank, in the case of an assignment of all or a portion of a Revolving Commitment or any Lender’s obligations in respect of its LC Exposure; provided that the consent of the Issuing Banks shall not be required for an assignment to an Eligible Assignee that is a Revolving Lender, an Affiliate of a Revolving Lender or an Approved Fund with respect to a Revolving Lender; and
(D) the Swingline Lender, in the case of an assignment of all or a portion of a Revolving Commitment or any Lender’s obligations in respect of its Swingline Exposure; provided that the consent of the Swingline Lender shall not be required for an assignment to an Eligible Assignee that is a Revolving Lender, an Affiliate of a Revolving Lender or an Approved Fund with respect to a Revolving Lender.
(ii) Assignments shall be subject to the following additional conditions:
(A) except in the case of an assignment to an Eligible Assignee that is a Lender, an Affiliate of a Lender or an Approved Fund, an assignment of the entire remaining amount of the assigning Lender’s Commitment or contemporaneous assignments to related Approved Funds that equal at least $1,000,000 in the aggregate, the amount of the Commitment of the assigning Lender subject to each such assignment (determined as of the date the Assignment and Assumption with respect to such assignment is delivered to the Administrative Agent) shall be equal to an aggregate amount that is an integral multiple of $1,000,000 and shall not be less than (1) in the case of an assignment of Term Commitments or Term Loans, $1,000,000 and (2) in the case of an assignment of Revolving Commitments or Revolving Loans, $5,000,000, in each case unless the Administrative Agent otherwise consents; provided that related Approved Funds shall be aggregated for purposes of determining compliance with such minimum assignment amounts;
(B) each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender’s rights and obligations under this Agreement;
(C) the parties to each assignment shall execute and deliver to the Administrative Agent an Assignment and Assumption; and
(D) the assignee, if it shall not already be a Lender, shall deliver to the Administrative Agent an Administrative Questionnaire.
 
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(iii) Subject to acceptance and recording thereof pursuant to paragraph (b)(iv) of this Section 9.04, from and after the effective date specified in each Assignment and Assumption the assignee thereunder shall be a party hereto and, to the extent of the interest assigned by such Assignment and Assumption, have the rights and obligations of a Lender under this Agreement, and the assigning Lender hereunder shall, to the extent of the interest assigned by such Assignment and Assumption, be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption covering all of the assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto but shall continue to be entitled to the benefits of Sections 2.15, 2.16, 2.17 and 9.05). Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply with this Section 9.04 shall be treated for purposes of this Agreement as a sale by such Lender of a participation in such rights and obligations in accordance with paragraph (c) of this Section 9.04.
(iv) Promptly upon its receipt of a duly completed Assignment and Assumption executed by an assigning Lender and an assignee, the assignee’s completed Administrative Questionnaire (unless the assignee shall already be a Lender hereunder) and any written consent to such assignment required by paragraph (b)(i) of this Section 9.04, the Administrative Agent shall accept such Assignment and Assumption and record the information contained therein in the Register. No assignment shall be effective for purposes of this Agreement unless it has been recorded in the Register as provided in this paragraph. In addition, notwithstanding anything to the contrary herein, without the consent of the Administrative Agent, no such assignment shall be made to any Lender, if after giving effect to such assignment, the Lender bears a relationship to the Borrower described in Section 108(e)(4) of the Code.
(v) In connection with all assignments, there shall be delivered to the Borrower and the Administrative Agent such forms, certificates or other evidence, if any, with respect to Tax withholding matters as the assignee under such Assignment and Assumption Agreement is required to deliver pursuant to Section 2.17, together with payment by such assigning Lender (or, in the case of any assignment pursuant to Section 2.19(b) or (c), by the Borrower) to the Administrative Agent of a registration and processing fee of $3,500.
(vi) (A) Notwithstanding the foregoing, (1) no assignment or transfer of any Revolving Commitment or Revolving Loan may be made to any Affiliated Lender and (2) no other assignment or transfer may be made to an Affiliated Lender unless the Affiliated Lender Limitation shall be satisfied after giving effect thereto.
(B) In connection with an assignment to an Affiliated Lender, (1) the Affiliated Lender shall have identified itself in writing as an Affiliated Lender to the assigning Term Lender and the Administrative Agent prior to the execution of such assignment and (2) the Affiliated Lender shall be deemed to have represented and warranted to the assigning Term Lender and the Administrative Agent that the Affiliated Lender Limitation shall be satisfied after giving effect to such assignment.
 
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(c) (i) Any Lender may, without the consent of the Borrower, the Administrative Agent or any Issuing Bank, sell participations to one or more Eligible Assignees (other than any Affiliated Lender) (a “ Participant ”) in all or a portion of such Lender’s rights and obligations under this Agreement (including all or a portion of its Commitments and the Loans at the time owing to it); provided that (A) such Lender’s obligations under this Agreement shall remain unchanged, (B) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (C) the Parent, the Borrower and the Lender Parties shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and (D) such Participant does not bear a relationship to the Borrower described in Section 108(e)(4) of the Code; provided , further , that in the case of clause (D), such participation shall be permitted if made with the consent of the Administrative Agent. Any agreement or instrument (oral or written) pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and the other Loan Documents and to approve any amendment, modification or waiver of any provision of this Agreement and the other Loan Documents; provided that (x) such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any amendment, modification or waiver described in Section 9.04(a)(i) or clause (ii), (iii), (iv), (v), (vi), (vii), (viii) or (ix) of the first proviso to Section 9.08(b) that affects such Participant and (y) no other agreement (oral or written) with respect to such Participant may exist between such Lender and such Participant. Subject to paragraph (c)(ii) of this Section 9.04, the Borrower agrees that each Participant shall be entitled to the benefits of Sections 2.15, 2.16 and 2.17 to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to paragraph (b) of this Section 9.04. To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 9.06 as though it were a Lender, provided such Participant agrees to be subject to Section 2.18(c) as though it were a Lender.
(ii) A Participant shall not be entitled to receive any greater payment under Section 2.15, 2.16 or 2.17 than the applicable Lender would have been entitled to receive with respect to the participation sold to such Participant, unless the sale of the participation to such Participant is made with the Borrower’s prior written consent (which shall not be unreasonably withheld). A Participant that would be a Non-U.S. Lender if it were a Lender shall not be entitled to the benefits of Section 2.17 to the extent such Participant fails to comply with Section 2.17(e) as though it were a Non-U.S. Lender.
(d) Each Lender that sells a participation, acting for this purpose as a non-fiduciary agent (solely for tax purposes) of the Borrower, shall maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans (or other rights or obligations) held by it (the “ Participant Register ”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any Commitments or Loans) to any Person except to the extent that such disclosure is necessary to establish that such Commitments or Loans are in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such Loan (or other right or obligation) hereunder as the owner thereof for all purposes of this Agreement notwithstanding any notice to the contrary.
 
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(e) Any Lender may at any time pledge or assign a security interest in all or any portion of its rights under this Agreement to secure obligations of such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank, and this Section 9.04 shall not apply to any such pledge or assignment of a security interest; provided that no such pledge or assignment of a security interest shall release a Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.
(f) Notwithstanding anything to the contrary contained in this Section 9.04 or any other provision of this Agreement, the Borrower may repurchase outstanding Term Loans, and each Lender shall have the right at any time to sell, assign or transfer all or a portion of its Term Loans to the Borrower, on the following basis:
(i) The Borrower may conduct one or more modified Dutch auctions (each, an “ Auction ”) to repurchase all or any portion of the Term Loans, provided that (A) the Borrower delivers a notice of such Auction to the Auction Manager and the Administrative Agent (for distribution to the Term Lenders) no later than 12:00 noon, New York City time, at least five Business Days in advance of a proposed commencement date of such Auction, which notice shall specify (1) the dates on which such Auction will commence and conclude, (2) the maximum principal amount of Term Loans that the Borrower desires to repurchase in such Auction and (3) the range of discounts to par at which the Borrower would be willing to repurchase the Term Loans, (B) the maximum dollar amount of such Auction shall be no less than an aggregate amount of $10,000,000 or an integral multiple of $1,000,000 in excess thereof, (C) such Auction shall be open for at least two Business Days after the date of the commencement thereof, (D) such Auction shall be open for participation by all the Lenders on a ratable basis, (E) a Lender that elects to participate in such Auction will be permitted to tender for repurchase all or a portion of such Lender’s Term Loans, (F) each repurchase of Term Loans shall be of a uniform, and not varying, percentage of all rights of the assigning Lender hereunder with respect thereto (and shall be allocated among the Term Loans of such Lender in a manner that would result in such Lender’s remaining Term Loans being included in each Term Borrowing in accordance with its applicable share thereof), (G) at the time of the commencement and conclusion of such Auction, no Default or Event of Default shall have occurred and be continuing, (H) the Borrower shall not use the proceeds of Revolving Loans to make such repurchase and (I) such Auction shall be conducted pursuant to such procedures as the Auction Manager may establish, so long as such procedures are consistent with this Section 9.04(f) and are reasonably acceptable to the Administrative Agent and the Borrower. In connection with any Auction, the Auction Manager and the Administrative Agent may request one or more certificates of a Responsible Officer of the Parent and the Borrower as to the satisfaction of the conditions set forth in clauses (G) and (H) above.
(ii) Repurchases by the Borrower of Term Loans pursuant to this Section 9.04(f) shall not constitute voluntary prepayments for purposes of Section 2.10 or 2.11. The aggregate principal amount of the Term Loans of any Class repurchased by the Borrower pursuant to this Section 9.04(f) shall be applied to reduce the subsequent scheduled repayments of Term Loans of such Class to be made pursuant to Section 2.10(a) in inverse order of maturity. Upon the repurchase by the Borrower
 
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pursuant to this Section 9.04(f) of any Term Loans, such Term Loans shall, without further action by any Person, be deemed cancelled and no longer outstanding (and may not be resold by the Borrower) for all purposes of this Agreement and the other Loan Documents, including with respect to (A) the making of, or the application of, any payments to the Lenders under this Agreement or any other Loan Document, (B) the making of any request, demand, authorization, direction, notice, consent or waiver under this Agreement or any other Loan Document or (C) the determination of Required Lenders, or for any similar or related purpose, under this Agreement or any other Loan Document. The Administrative Agent is authorized to make appropriate entries in the Register to reflect any cancelation of the Term Loans repurchased and cancelled pursuant to this Section 9.04(f). Any payment made by the Borrower in connection with a repurchase permitted by this Section 9.04(f) shall not be subject to the provisions of Section 2.16. Failure by the Borrower to make any payment to a Lender required to be made in consideration of a repurchase of Term Loans permitted by this Section 9.04(f) shall not constitute a Default or an Event of Default under Section 7.01(a). Each Lender shall, to the extent that its Term Loans shall have been repurchased and assigned to the Borrower pursuant to this Section 9.04(f), relinquish its rights in respect thereof. Except as otherwise set forth in this Section 9.04(f), the provisions of this Section 9.04 shall not apply to any repurchase of Term Loans pursuant to this Section 9.04(f).
Section 9.05 Expenses; Indemnity .
(a) The Borrower agrees to pay (i) all reasonable and documented out-of-pocket expenses incurred by the Agents and the Arrangers in connection with the preparation, negotiation, execution, and closing of this Agreement and the other Loan Documents, or by the Agents and the Arrangers in connection with the initial syndication of the Commitments or the administration of this Agreement and the other Loan Documents (including, in each case, reasonable expenses incurred in connection with initial and ongoing due diligence and initial and ongoing Collateral examination (including reasonable travel expenses) and the reasonable fees, disbursements and the charges for no more than one counsel in each jurisdiction where Collateral is located) or in connection with any amendments, modifications, supplements or waivers of the provisions hereof or thereof and any other documents or matters requested by the Borrower in connection with this Agreement or any other Loan Documents (whether or not the transactions contemplated by the Loan Documents shall be consummated) (which shall be limited to the reasonable and documented fees, charges and disbursements of Milbank, Tweed, Hadley & McCloy LLP, counsel for the Administrative Agent and the Arrangers, and Bracewell & Giuliani LLP, counsel for the Collateral Agent, or counsel replacing such counsel, and not more than one counsel in each jurisdiction in which Collateral is located), (ii) all actual costs and reasonable expenses of creating, perfecting, recording, maintaining and preserving Liens in favor of the Collateral Agent, for the benefit of the Secured Parties, including filing and recording fees, expenses and taxes, stamp or documentary taxes, search fees and reasonable fees, expenses and disbursements of Milbank, Tweed, Hadley & McCloy LLP, counsel for the Administrative Agent and the Arrangers, and Bracewell & Giuliani LLP, counsel for the Collateral Agent, or counsel replacing such counsel, (iii) all reasonable and documented out of-pocket expenses incurred by any Issuing Bank in connection with the issuance, amendment, renewal or extension of any Letter of Credit or any demand for payment thereunder, (iv) all reasonable and documented out-of-pocket expenses incurred by the Agents and the Arrangers in connection with
 
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the enforcement or protection of their rights (including any costs of settlement) in connection with this Agreement and the other Loan Documents, in connection with the Loans made or Letters of Credit issued hereunder (which shall be limited to, in connection with any such enforcement or protection, the reasonable fees, charges and disbursements of Milbank, Tweed, Hadley & McCloy LLP and Bracewell & Giuliani LLP, counsel for the Administrative Agent and/or the Collateral Agent, or counsel replacing such counsel, and not more than one counsel in each jurisdiction in which Collateral is located), and (v) from and after the occurrence of an Event of Default, the reasonable and documented fees, expenses, charges and disbursements of the Lender Parties, including the reasonable and documented fees, charges and disbursements of one transaction counsel, one conflicts counsel and one financial or restructuring advisor for the Agents, the Arranger, the Lenders and the Issuing Banks (as a group) and costs of settlement, in each case incurred during any workout, restructuring or negotiations in connection with this Agreement or any other Loan Document or in connection with the custody, use or preservation of, or the sale of, collection from or realization upon, any of the Collateral, including the reasonable expenses of re-taking, holding, preparing for sale or lease, selling or otherwise disposing of or realizing on the Collateral.
(b) The Borrower agrees to indemnify each Lender Party, their respective Related Parties and each of their respective directors, trustees, officers, employees, investment advisors and agents (each such Person being called an “ Indemnitee ”) against, and to hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and related expenses, including reasonable and documented counsel fees, charges and disbursements, incurred by or asserted against any Indemnitee (including any such losses, claims, damages, liabilities and related expenses claimed or asserted by any of the Group Members) arising out of, in any way connected with, or as a result of (i) the execution or delivery of this Agreement, any other Loan Document or any agreement or instrument contemplated hereby or thereby, the performance by the parties hereto and thereto of their respective obligations hereunder or thereunder or the consummation of the Transactions, (ii) any Loan or Letter of Credit or the use of the proceeds therefrom (including any refusal by any Issuing Bank to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit) or (iii) any claim, litigation, investigation or proceeding relating to any of the foregoing, whether or not any Indemnitee is a party thereto, in all cases, WHETHER OR NOT CAUSED BY OR ARISING, IN WHOLE OR IN PART, OUT OF THE COMPARATIVE, CONTRIBUTORY OR SOLE NEGLIGENCE OF THE INDEMNITEE; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses (A) result from the gross negligence or willful misconduct of such Indemnitee or a material breach in bad faith by such Indemnitee of its express obligations under this Agreement, in each case, as determined by the final, non-appealable judgment of a court of competent jurisdiction (treating, for this purpose only, any Lender Party and its Related Parties as a single Indemnitee), or (B) arise out of any proceeding that does not involve an act or omission of any Group Member or any of any Group Member’s Affiliates and that is brought by an Indemnitee against any other Indemnitee (other than any such proceedings which relate to claims against any Arranger, the Administrative Agent or the Collateral Agent). Subject to and without limiting the generality of the foregoing sentence, the Borrower agrees to indemnify each Indemnitee against, and hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and related expenses, including reasonable and documented counsel or consultant fees, charges and disbursements, incurred by
 
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or asserted against any Indemnitee arising out of, in any way connected with, or as a result of (1) any Environmental Claim to the extent related in any way to any of the Group Members or the Terminal Storage Facility or (2) any actual or alleged presence, Release or threatened Release of Hazardous Materials at, under, on or from any Real Property, any property owned, leased or operated by any predecessor of any of the Group Members or the Terminal Storage Facility, or, to the extent related in any way to any of the Group Members, any property at which any of the Group Members has sent Hazardous Materials for treatment, storage or disposal; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses result from the gross negligence or willful misconduct of such Indemnitee or any of its Related Parties or a material breach in bad faith by such Indemnitee of its express obligations under this Agreement, in each case, as determined by a final, non-appealable judgment of a court of competent jurisdiction. The provisions of this Section 9.05 shall remain operative and in full force and effect regardless of the expiration of the term of this Agreement, the resignation or removal of any Agent, the consummation of the Transactions, the repayment of any of the Obligations, the invalidity or unenforceability of any term or provision of this Agreement or any other Loan Document, or any investigation made by or on behalf of any Lender Party. All amounts due under this Section 9.05 shall be payable promptly upon (and in any event within 30 days after) written demand therefor accompanied by reasonable documentation with respect to any reimbursement, indemnification or other amount requested.
(c) Sections 9.05(a) and (b) shall not apply to Indemnified Taxes and Other Taxes indemnified by the Borrower pursuant to Section 2.17.
(d) No Indemnitee shall be liable for, and the Borrower hereby agrees not to assert any claim against any Indemnitee, on any theory of liability, for consequential, incidental, indirect, punitive or special damages arising out of or otherwise relating to the Loan Documents, any of the Transactions, any Loan or Letter of Credit or the use of the proceeds thereof. No Indemnitee referred to in Section 9.05(b) above shall be liable for any damages arising from the use by unintended recipients of any information or other materials distributed by it through telecommunications, electronic or other information transmission systems in connection with this Agreement of the other Loan Documents or the transactions contemplated hereby or thereby.
Section 9.06 Right of Set-off . If an Event of Default shall have occurred and be continuing, each Lender Party and each of their respective Affiliates is hereby authorized at any time and from time to time, to the fullest extent permitted by applicable law, to set off and apply any and all deposits (general or special, time or demand, provisional or final) at any time held and other indebtedness at any time owing by such Lender Party or such Affiliate to or for the credit or the account of the Borrower, against any and all obligations of the Loan Parties, now or hereafter existing under this Agreement or any other Loan Document held by such Lender Party or their respective Affiliates, irrespective of whether or not such Lender Party shall have made any demand under this Agreement or such other Loan Document and although the obligations may be unmatured or are owed to a branch, office or Affiliate of such Lender Party different from the branch, office or Affiliate holding such deposit or so obligated; provided that in the event that any Defaulting Lender shall exercise any such right of setoff, (i) all amounts so set off shall be paid over immediately to the Administrative Agent for further application in accordance with the provisions of Section 2.21 and, pending such payment, shall be segregated by such
 
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Defaulting Lender from its other funds and deemed held in trust for the benefit of the Lender Parties, and (ii) the Defaulting Lender shall provide promptly to the Administrative Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such right of setoff. The rights of each Lender Party under this Section 9.06 are in addition to other rights and remedies (including other rights of set-off) that such Lender Party or its Affiliates may have. Each Lender Party agrees to notify the Borrower and the Administrative Agent promptly after any such setoff and application; provided that the failure to give such notice shall not affect the validity of such setoff and application.
Section 9.07 APPLICABLE LAW . THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS (OTHER THAN AS EXPRESSLY SET FORTH IN OTHER LOAN DOCUMENTS) SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES THAT WOULD RESULT IN THE APPLICATION OF ANY OTHER LAW.
Section 9.08 Waivers; Amendment .
(a) No failure or delay of any Lender Party in exercising any right or power hereunder or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce any such right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Lender Parties hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement or any other Loan Document, or consent to any departure by any Loan Party therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) below, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. No notice or demand on the Borrower or any other Loan Party in any case shall entitle such Person to any other or further notice or demand in similar or other circumstances.
(b) Except as provided in Sections 2.22, 2.23 and 2.24, in the Guaranty Agreement, in the Security Documents and in the Second Lien Intercreditor Agreement (at any time when the Second Lien Intercreditor Agreement is in effect), neither this Agreement nor any other Loan Document nor any provision hereof or thereof may be waived, amended or modified except (x) in the case of this Agreement, pursuant to an agreement or agreements in writing entered into by the Parent, the Borrower, the Administrative Agent and the Required Lenders and (y) in the case of any other Loan Document, pursuant to an agreement or agreements in writing entered into by the Administrative Agent and the Loan Party or Loan Parties that are party thereto and consented to by the Required Lenders (in the case of clauses (x) and (y), at the Borrower’s expense); provided , however , that no such agreement shall:
(i) waive any condition set forth in Section 4.02 without the written consent of a Majority in Interest of the Revolving Lenders;
 
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(ii) decrease or forgive the principal amount of, or extend the final maturity of, or decrease the rate of interest on, any Loan or LC Disbursement, without the prior written consent of each Lender directly affected thereby;
(iii) increase or extend any Commitment of any Lender or decrease the fees of any Lender without the prior written consent of such Lender (it being understood that waivers or modifications of conditions precedent, covenants, Defaults or Events of Default or of a mandatory reduction in the aggregate Commitments shall not constitute an increase of the Commitments of any Lender);
(iv) extend or waive any date for payment of principal of any Loan or any date for reimbursement of any LC Disbursement or reduce the amount due on any such date or extend any date on which payment of interest on any Loan or any fee (including any Agent Fee) is due, without the prior written consent of each Lender directly affected thereby;
(v) amend or modify the provisions of Section 2.18(b) or 2.18(d) in a manner that would by its terms alter the pro rata sharing of payments required thereby, without the prior written consent of each Lender;
(vi) amend or modify the provisions of this Section 9.08 or the definition of the terms “Required Lenders” or “Majority in Interest” or any other provision hereof specifying the number or percentage of Lenders required to waive, amend or modify any rights hereunder or make any determination or grant any consent hereunder, without the prior written consent of each Lender (it being understood that, without the consent of the Required Lenders, additional extensions of credit pursuant to this Agreement may be included in the determination of the Required Lenders on substantially the same basis as the Loans and Commitments are included on the Closing Date);
(vii) except as expressly permitted under Section 9.17, release the Parent or any Subsidiary Loan Party from its Guarantee under the Guaranty Agreement, or limit its liability in respect of such Guarantee, without the written consent of each Lender;
(viii) except as expressly permitted under Section 9.17 or Section 3.07(a) of the Intercreditor Agreement (other than clause (iii) thereof), release all or substantially all of the Collateral from the Liens of the Security Documents without the consent of each Lender; or
(ix) change the order of priority of payments set forth in Section 7.03, Section 5.04 of the Security Agreement or Section 2.01 of the Intercreditor Agreement, without the prior written consent of each Lender;
provided , further , that (A) no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative Agent, the Collateral Agent, any Issuing Bank or the Swingline Lender hereunder without the prior written consent of the Administrative Agent, the Collateral Agent, such Issuing Bank or the Swingline Lender, as the case may be, acting as such at the
 
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effective date of such agreement, as applicable, (B) any amendment, waiver or other modification of this Agreement that by its terms affects the rights or duties under this Agreement of the Lenders of a particular Class (but not the Lenders of any other Class), may be effected by an agreement or agreements in writing entered into by the Parent, the Borrower, the Administrative Agent and the requisite number or percentage in interest of the affected Class of Lenders that would be required to consent thereto under this Section if such Class of Lenders were the only Class of Lenders hereunder at the time and (C) any (1) amendment or modification of the provisions of Section 6.14 or, solely for purposes of Section 6.14, the defined terms used, directly or indirectly, therein or (2) waiver of a Financial Covenant Event of Default, in each case, may be effected by an agreement or agreements in writing entered into by the Parent, the Borrower, the Administrative Agent and a Majority in Interest of the Revolving Lenders. Notwithstanding the foregoing, no consent with respect to any amendment, waiver or other modification of this Agreement or any other Loan Document shall be required of any Defaulting Lender, except with respect to any amendment, waiver or other modification referred to in clause (ii), (iii) or (iv) of the first proviso of this Section 9.08(b) and then only in the event such Defaulting Lender shall be affected by such amendment, waiver or other modification. Each Lender shall be bound by any waiver, amendment or modification authorized by this Section 9.08 and any consent by any Lender pursuant to this Section 9.08 shall bind any assignee of such Lender.
(c) Without the consent of any Lender, the Parent, the Borrower and the Administrative Agent and/or the Collateral Agent may (in their respective sole discretion, or shall, to the extent required by any Loan Document) enter into any amendment, modification or waiver of any Loan Document, or enter into any new agreement or instrument, in each case at the Borrower’s expense, to effect the granting, perfection, protection, expansion or enhancement of any security interest in any Collateral or additional property to become Collateral for the benefit of the Secured Parties, or as required by local law to give effect to or protect any security interest for the benefit of the Secured Parties in any property or so that the security interests therein comply with applicable law.
(d) Notwithstanding the other provisions of this Section 9.08, the applicable Loan Parties and the Administrative Agent and/or the Collateral Agent may (but shall have no obligation to) amend or supplement the Loan Documents without the consent of any other Lender Party for the purpose of (i) curing any ambiguity, defect, inconsistency or typographical or drafting error, (ii) making any change that would provide any additional rights or benefits to the Lender Parties and (iii) making, completing or confirming any grant of Collateral permitted or required by this Agreement or any of the Security Documents or any release of any Collateral that is otherwise permitted under the terms of this Agreement and the Security Documents.
(e) Limitation on Voting Rights of Affiliated Lenders .
(i) Notwithstanding anything to the contrary set forth herein, no Affiliated Lender shall have any right to (and no Affiliated Lender shall) (A) consent to any waiver, amendment, modification, consent or other such action with respect to any of the terms of this Agreement or any other Loan Document, (B) require any Lender Party to undertake any action (or refrain from taking any action) with respect to this Agreement or any other Loan Document, (C) otherwise vote on any matter relating to this Agreement
 
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or any other Loan Document, (D) attend any meeting (whether in person, by telephone or other means) with any Lender Party, except any portion thereof attended (at the invitation of the Administrative Agent) by representatives of the Borrower, or receive any information or material (in whatever form) prepared by or on behalf of, or otherwise provided by, any Lender Party, other than any such information or material that has been made available by the Administrative Agent to the Borrower, (E) have access to the Platform or (F) make or bring any claim, in its capacity as a Lender, against any Lender Party with respect to the duties and obligations of such Persons under the Loan Documents, provided that (1) any waiver, amendment or other modification of this Agreement or any other Loan Agreement, or any consent to any departure by an Loan Party therefrom, of the type referred to in Section 9.08(b) that directly affects any Affiliated Lender shall require the prior written consent of such Affiliated Lender and (2) without the prior written consent of such Affiliated Lender, no waiver, amendment or other modification of this Agreement or any other Loan Agreement, and no consent to any departure by an Loan Party therefrom, shall (x) deprive any Affiliated Lender, in its capacity as Lender, of its share of any payments that Lenders of the same Class are entitled to share on a pro rata basis hereunder or (y) affect any Affiliated Lender, in its capacity as Lender, in a manner that is disproportionate to the effect of such waiver, amendment, modification or consent on the other Lenders of the same Class.
(ii) If a proceeding under the U.S. Bankruptcy Code or any other federal, state or foreign bankruptcy, insolvency, receivership or similar law shall be commenced by or against any Loan Party prior to the time when the Obligations have been paid in full, then each Affiliated Lender (A) shall promptly give notice to the Administrative Agent of any solicitation of such Affiliated Lender for a vote, or of such Affiliated Lender’s receipt of a ballot to vote, in or in connection with such proceeding and (B) irrevocably authorizes and empowers the Administrative Agent to vote on behalf of such Affiliated Lender with respect to the Obligations in any manner in the Administrative Agent’s sole discretion, unless the Administrative Agent instructs such Affiliated Lender to vote, in which case such Affiliated Lender shall vote with respect to the Obligations as the Administrative Agent directs; provided that the Administrative Agent shall so vote with respect to the Obligations as directed by the Required Lenders; provided further that no such vote with respect to the Obligations held by such Affiliated Lender shall treat such Obligations in a manner less favorable than the proposed treatment of the same class or type of the Obligations held by Lenders that are not Affiliated Lenders. To give effect to the foregoing right of the Administrative Agent to vote on behalf of any Affiliated Lender with respect to the Obligations, each Affiliated Lender hereby constitutes and appoints the Administrative Agent and any officer or agent of the Administrative Agent, with full power of substitution, as such Affiliated Lender’s true and lawful attorney-in-fact with full power and authority in the place of such Affiliated Lender and in the name of such Affiliated Lender or in its own name, to take any and all appropriate action and to execute any and all documents and instruments as, in the opinion of such attorney, may be necessary or desirable to accomplish the purposes hereof, which appointment as attorney is irrevocable and coupled with an interest; provided that the Administrative Agent shall not exercise the foregoing rights in such capacity until the commencement by or against any Loan Party of a proceeding under the U.S. Bankruptcy Code or any other federal, state or foreign bankruptcy, insolvency, receivership or similar law. Each Affiliated Lender agrees to execute any and all further documents and instruments, and take all such further actions, as the Administrative Agent may reasonably request to effectuate the provisions of this Section 9.08(e)(ii).
 
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Section 9.09 Interest Rate Limitation . Notwithstanding anything herein to the contrary, if at any time the applicable interest rate, together with all fees and charges that are treated as interest under applicable law (collectively, the “ Charges ”), as provided for herein or in any other document executed in connection herewith, or otherwise contracted for, charged, received, taken or reserved by any Lender, shall exceed the maximum lawful rate (the “ Maximum Rate ”) that may be contracted for, charged, taken, received or reserved by such Lender in accordance with applicable law, the rate of interest payable hereunder, together with all Charges payable to such Lender, shall be limited to the Maximum Rate, provided that such excess amount shall be paid to such Lender on subsequent payment dates to the extent not exceeding the legal limitation.
Section 9.10 Entire Agreement . This Agreement and the other Loan Documents constitute the entire contract between the parties relative to the subject matter hereof. Any previous agreement among or representations from the parties or their Affiliates with respect to the subject matter hereof is superseded by this Agreement and the other Loan Documents. Notwithstanding the foregoing, the Engagement Letter and the Administrative Agent Fee Letter (and any separate letter agreements with respect to fees payable to the Administrative Agent, the Collateral Agent or any Issuing Bank) shall survive the execution and delivery of this Agreement and remain in full force and effect. Nothing in this Agreement or in the other Loan Documents, expressed or implied, is intended to confer upon any party other than the parties hereto and thereto any rights, remedies, obligations or liabilities under or by reason of this Agreement or the other Loan Documents.
Section 9.11 Waiver of Jury Trial . EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS. EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS, AS APPLICABLE, BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 9.11.
Section 9.12 Severability . In the event any one or more of the provisions contained in this Agreement or in any other Loan Document should be held 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. The parties shall endeavor in good-faith negotiations to replace the invalid, illegal or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the invalid, illegal or unenforceable provisions.
 
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Section 9.13 Counterparts . This Agreement may be executed in two or more counterparts, each of which shall constitute an original but all of which, when taken together, shall constitute but one contract, and shall become effective as provided in Section 9.03. Delivery of an executed counterpart to this Agreement by facsimile transmission or electronic transmission in “.pdf” or comparable format shall be as effective as delivery of a manually signed original.
Section 9.14 Headings . Article and Section headings and the Table of Contents used herein are for convenience of reference only, are not part of this Agreement and are not to affect the construction of, or to be taken into consideration in interpreting, this Agreement or any provision hereof.
Section 9.15 Jurisdiction; Consent to Service of Process .
(a) Each of the Parent and the Borrower and each Lender Party hereby irrevocably and unconditionally submits, for itself and its property, to the exclusive jurisdiction of any New York State court or federal court of the United States sitting in New York City, New York County, and any appellate court from any thereof, in any action or proceeding arising out of or relating to this Agreement or the other Loan Documents, or for recognition or enforcement of any judgment, and each of the parties hereto hereby irrevocably and unconditionally agrees that all claims in respect of any such action or proceeding shall be heard and determined in such New York State Court or, to the extent permitted by law, in such federal court. Each of the Parent and the Borrower further irrevocably consents to the service of process in any action or proceeding in such courts by the mailing thereof by any parties thereto by registered or certified mail, postage prepaid, to the Parent or the Borrower, as the case may be, at the address specified therefor on Schedule 9.01 . Each of the parties hereto agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. Nothing in this Agreement shall affect any right that any Lender Party may otherwise have to bring any action or proceeding relating to this Agreement or the other Loan Documents against any Loan Party or its properties in the courts of any jurisdiction in which the Borrower or any of its properties is located.
(b) Each of the Parent and the Borrower and each Lender Party hereby irrevocably and unconditionally waives, to the fullest extent it may legally and effectively do so, any objection which it may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to this Agreement or the other Loan Documents in any New York State or federal court. Each of the parties hereto hereby irrevocably waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of such action or proceeding in any such court.
 
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Section 9.16 Communications .
(a) Delivery .
(i) Each of the Parent and the Borrower hereby agrees that it will use all reasonable efforts to provide to the Administrative Agent all information, documents and other materials that it is obligated to furnish to the Administrative Agent pursuant to this Agreement and any other Loan Document, including all notices, requests, financial statements, financial and other reports, certificates and other information materials, but excluding any such communication that (A) relates to a request for a new, or a conversion of an existing, borrowing or other extension of credit (including any election of an interest rate or interest period relating thereto), (B) relates to the payment of any principal or other amount due under this Agreement prior to the scheduled date therefor, (C) provides notice of any Default or Event of Default under this Agreement or (D) is required to be delivered to satisfy any condition precedent to the effectiveness of this Agreement and/or any borrowing or other extension of credit hereunder (all such non-excluded communications collectively, the “ Communications ”), by transmitting the Communications in an electronic/soft medium in a format reasonably acceptable to the Administrative Agent at the address referenced on Schedule 9.01 . Nothing in this Section 9.16 shall prejudice the right of any Arranger, any Lender Party, the Parent or the Borrower to give any notice or other communication pursuant to this Agreement or any other Loan Document in any other manner specified in this Agreement or any other Loan Document.
(ii) The Administrative Agent agrees that receipt of the Communications by the Administrative Agent at the email address referenced on Schedule 9.01 shall constitute effective delivery of the Communications to the Administrative Agent for purposes of the Loan Documents. Each Lender agrees that notice to it (as provided in the next sentence) specifying that the Communications have been posted to the Platform shall constitute effective delivery of the Communications to such Lender for purposes of the Loan Documents. Each Lender agrees (A) to notify the Administrative Agent in writing (including by electronic communication) from time to time of such Lender’s email address to which the foregoing notice may be sent by electronic transmission and (B) that the foregoing notice may be sent to such email address.
(b) Posting .
(i) Each of the Parent and the Borrower further agrees that the Administrative Agent may make the Communications available to the Lenders by posting the Communications on Intralinks, SyndTrak or a substantially similar electronic transmission system (the “ Platform ”). Each of the Parent and the Borrower acknowledges and agrees that the list of Disqualified Lenders shall be deemed suitable for posting and may be posted by the Administrative Agent on the Platform, including the portion of the Platform that is designated for Public Side Lender Representatives.
(ii) The Platform is provided “as is” and “as available.” The Agent Parties (as defined below) do not warrant the accuracy or completeness of the Communications, or the adequacy of the Platform and expressly disclaim liability for errors or omissions in the communications. No warranty of any kind, express, implied or statutory, including any warranty of merchantability, fitness for a particular purpose, non-infringement of third party rights or freedom from viruses or other code defects, is made by any Agent Party in connection with the Communications or the Platform. In no event shall the Administrative Agent or any of its Affiliates or any of their respective officers,
 
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directors, employees, agents advisors or representatives (collectively, “ Agent Parties ”) have any liability to the Parent, the Borrower, any Lender or any other Person or entity for damages of any kind, including direct or indirect, special, incidental or consequential damages, losses or expenses (whether in tort, contract or otherwise) arising out of the Parent’s, the Borrower’s or the Administrative Agent’s transmission of communications through the internet, except to the extent the liability of any Agent Party is found in a final non-appealable judgment by a court of competent jurisdiction to have resulted primarily from such Agent Party’s gross negligence or willful misconduct.
(c) Non-Public Information .
(i) Each Lender acknowledges that all information, including requests for waivers and amendments, furnished by the Parent, the Borrower or the Administrative Agent pursuant to or in connection with, or in the course of administering, this Agreement will be syndicate-level information, which may contain Private Side Information. Each Lender represents to the Parent, the Borrower and the Administrative Agent that (A) it has developed compliance procedures regarding the use of Private Side Information and that it will handle Private Side Information in accordance with such procedures and applicable law, including Federal, state and foreign securities laws, and (B) it has identified in its Administrative Questionnaire a credit contact who may receive information that may contain Private Side Information in accordance with its compliance procedures and applicable law, including Federal, state and foreign securities laws.
(ii) The Parent, the Borrower and each Lender acknowledge that, if information furnished by the Parent or the Borrower pursuant to or in connection with this Agreement is being distributed by the Administrative Agent through the Platform, (A) the Administrative Agent may post any information that the Parent or the Borrower has indicated as containing Private Side Information solely on that portion of the Platform as is designated for Private Side Lender Representatives and (B) if the Parent or the Borrower has not indicated whether any information furnished by it pursuant to or in connection with this Agreement contains Private Side Information, the Administrative Agent reserves the right to post such information solely on that portion of the Platform as is designated for Private Side Lender Representatives. Each of the Parent and the Borrower agrees to clearly designate all information provided to the Administrative Agent by or on behalf of the Parent or the Borrower that is suitable to be made available to Public Side Lender Representatives, and the Administrative Agent shall be entitled to rely on any such designation by the Parent and the Borrower without liability or responsibility for the independent verification thereof.
Section 9.17 Release of Liens . (a) In the event that any Loan Party Disposes of all or any portion of any of its assets to any Person (other than a Loan Party) in a transaction permitted by Section 6.04, the Administrative Agent and the Collateral Agent shall promptly (and the Lenders hereby authorize the Administrative Agent and the Collateral Agent to) take such action and execute any such documents as may be reasonably requested by the Borrower and at the Borrower’s expense to (i) release any Liens created by any Loan Document in respect of such assets and (ii) if such Disposition is a sale of the Equity Interests in a Subsidiary, release such Subsidiary as a Guarantor under the Guaranty Agreement. In addition, if the Borrower or any
 
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other Restricted Subsidiary enters into any lease or sublease with, or grants any easement, right-of-way, permit, license, restriction or the like to, any Person (other than a Loan Party or any other Affiliate of the Parent or any Subsidiary) in a transaction permitted by Section 6.04, the Administrative Agent and the Collateral Agent may (and the Lenders hereby authorize the Administrative Agent and the Collateral Agent to) take such action and execute any such documents as may be reasonably requested by the Borrower and at the Borrower’s expense to subordinate any Liens created by any Loan Document with respect to such lease, sublease, easement, right-of-way, permit, license, restriction or the like to such Person. In connection with any such transaction, the Administrative Agent and the Collateral Agent may rely conclusively (and without further inquiry) on a certificate provided to it upon its reasonable request by any Loan Party to the effect that such transaction is permitted by Section 6.04.
(b) In the event that any Subsidiary Loan Party becomes an Unrestricted Subsidiary pursuant to Section 5.17, the Administrative Agent and the Collateral Agent shall promptly (and the Lenders hereby authorize the Administrative Agent and the Collateral Agent to) take such action and execute any such documents as may be reasonably requested by the Borrower and at the Borrower’s expense to (i) release any Liens created by any Loan Document in respect of the assets of such Unrestricted Subsidiary and the Equity Interests in such Unrestricted Subsidiary and (ii) release such Subsidiary as a Guarantor under the Guaranty Agreement. In connection with the foregoing, the Administrative Agent and the Collateral Agent may rely conclusively (and without further inquiry) on a certificate provided to it upon its reasonable request by any Loan Party to the effect that such transaction is permitted by Section 5.17.
Section 9.18 Confidentiality . Each of the Agents, the Lenders and the Issuing Banks agrees to maintain the confidentiality of the Information (as defined below), except that Information may be disclosed (a) to its Related Parties, including accountants, legal counsel and other agents and advisors, it being understood that the Persons to whom such disclosure is made will be informed of the confidential nature of such Information and instructed to keep such Information confidential, (b) to the extent requested by any regulatory authority purporting to have jurisdiction over it (including any self-regulatory authority, such as the National Association of Insurance Commissioners), (c) to the extent required by applicable law or by any subpoena or similar legal process, (d) to any other party to this Agreement, (e) in connection with the exercise of any remedies under this Agreement or any other Loan Document or any suit, action or proceeding relating to this Agreement or any other Loan Document or the enforcement of rights hereunder or thereunder, (f) subject to an agreement containing confidentiality undertakings substantially similar to those of this Section, to (i) any assignee of or Participant in, or any prospective assignee of or Participant in, any of its rights or obligations under this Agreement or (ii) any actual or prospective counterparty (or its Related Parties) to any swap or derivative transaction relating to the Parent, the Borrower or any other Subsidiary and its obligations, (g) with the consent of the Borrower or (h) to the extent such Information (i) becomes publicly available other than as a result of a breach of this Section or (ii) becomes available to any Agent, any Lender, any Issuing Bank or any Affiliate of any of the foregoing on a nonconfidential basis from a source other than the Parent or the Borrower. For purposes of this Section, “ Information ” means all information received from the Parent or the Borrower relating to the Parent, the Borrower or any other Subsidiary or their businesses that is confidential or proprietary in nature or that is clearly identified as confidential at the time of delivery thereof,
 
146

other than any such information that is available to any Agent, any Lender or any Issuing Bank on a nonconfidential basis prior to disclosure by the Parent or the Borrower. Any Person required to maintain the confidentiality of Information as provided in this Section shall be considered to have complied with its obligation to do so if such Person has exercised the same degree of care to maintain the confidentiality of such Information as such Person would accord to its own confidential information.
Section 9.19 U.S.A. Patriot Act . Each Lender and each Agent hereby notifies the Loan Parties that pursuant to the requirements of the U.S.A. Patriot Act, it is required to obtain, verify and record information that identifies the Loan Parties, which information includes the name and address of the Loan Parties and other information that will allow the Lender Parties to identify the Loan Parties in accordance with the U.S.A. Patriot Act.
Section 9.20 No Fiduciary Duty . Each Lender Party and their respective Affiliates (collectively, solely for purposes of this paragraph, the “ Lender Parties ”), may have economic interests that conflict with those of the Loan Parties. Each of the Parent and the Borrower agrees that nothing in the Loan Documents or otherwise will be deemed to create an advisory, fiduciary or agency relationship or fiduciary or other implied duty between the Lender Parties and the Loan Parties, their respective equityholders or their respective Affiliates. Each of the Parent and the Borrower acknowledges and agrees that (a) the transactions contemplated by the Loan Documents are arm’s-length commercial transactions between the Lender Parties, on the one hand, and the Loan Parties, on the other, (b) in connection with such transactions (and any matters or processes leading to such transactions), each of the Lender Parties is acting solely as a principal and not the agent or fiduciary of any Loan Party, any of its affiliates or any of their respective management, equityholders, creditors or any other Person, (c) no Lender Party has assumed an advisory or fiduciary responsibility in favor of any Loan Party with respect to the transactions contemplated hereby or by the other Loan Documents or the matters or processes leading thereto (irrespective of whether any Lender Party has advised or is currently advising any Loan Party on other matters) or any other obligation to any Loan Party except the obligations expressly set forth in the Loan Documents and (d) each Loan Party has consulted its own legal and financial advisors to the extent it deemed appropriate. Each of the Parent and the Borrower further acknowledges and agrees that it is responsible for making its own independent judgment with respect to such transactions and the process leading thereto. Each of the Parent and the Borrower agrees that it will not claim that any Lender Party has rendered advisory services of any nature or respect, or owes a fiduciary or similar duty to any Loan Party, in connection with such transaction or the process leading thereto.
[ Signature pages follow ]
 
147

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of the day and year first above written.

BUFFALO GULF COAST TERMINALS LLC, as Parent	
		
By:	 	/s/ Guy Lotem	
Name:	 	Guy Lotem	
Title:	 	Treasurer	
	
HFOTCO LLC,
as Borrower	
		
By:	 	/s/ Michael Mangan	
Name:	 	Michael Mangan	
Title:	 	Vice President of Finance	
Signature Page to Credit Agreement

			
MORGAN STANLEY SENIOR FUNDING, INC., as Administrative Agent and as a Lender	
		
By:	 	/s/ Henrik Z. Sandstrom	
Name:	 	Henrik Z. Sandstrom	
Title:	 	Authorized Signatory	
	
MORGAN STANLEY BANK, N.A.,
as an Issuing Bank and as a Lender	
		
By:	 	/s/ Henrik Z. Sandstrom	
Name:	 	Henrik Z. Sandstrom	
Title:	 	Authorized Signatory	
Signature Page to Credit Agreement

			
BANK OF AMERICA, N.A.,	
as Collateral Agent	
		
By:	 	/s/ Priscilla Baker	
	 	Priscilla Baker	
	 	Assistant Vice President	
Signature Page to Credit Agreement

			
DEUTSCHE BANK AG NEW YORK BRANCH, as an Issuing Bank and as a Lender	
		
By:	 	/s/ Chris Chapman	
Name:	 	Chris Chapman	
Title:	 	Director	
		
By:	 	/s/ Shai Bandner	
Name:	 	Shai Bandner	
Title:	 	Vice President	
Signature Page to Credit Agreement

Schedule 1.01
Storage Contracts
 
1.	Terminaling and Storage Agreement, effective September 17, 2010, by and between the Borrower and Conoco-Phillips Company.	
 
2.	Terminaling and Storage Agreement, effective January 1, 2014, by and between the Borrower and Koch Supply and Trading, LP.	
 
3.	Terminaling and Storage Agreement, effective February 1, 2008, by and between the Borrower and Vitol Inc., as amended by First Amendment to Terminaling and Storage Agreement, dated April 29, 2011, as further amended by the Addendum to Terminaling and Storage Agreement, effective November 17, 2013, and as further amended by the Addendum to Terminaling and Storage Agreement, effective December 12, 2013.	
 
4.	Terminaling and Storage Agreement, effective June 1, 2012, by and between the Borrower and Westport Petroleum, Inc.	
 
5.	Terminaling and Storage Agreement, effective February 10, 2010, by and between the Borrower and Chemoil Corporation, as amended by the First Amendment to Terminaling and Storage Agreement, effective February 1, 2011, and as further amended by the Addendum to Terminaling and Storage Agreement, effective April 7, 2014.	
 
6.	Terminaling and Storage Agreement #14-004, effective January 29, 2014, by and between the Borrower and Chemoil Corporation.	
 
7.	Terminaling and Storage Agreement, effective August 1, 2012, by and between the Borrower and Glencore Ltd., as amended by the Addendum to Terminaling and Storage Agreement, effective December 24, 2013, as further amended by the Addendum to Terminaling and Storage Agreement, entered into February 22, 2014, as further amended by the Addendum to Terminaling and Storage Agreement, entered into March 5, 2014, as further amended by the Addendum to Terminaling and Storage Agreement, effective April 5, 2014, and as further amended by the Addendum to Terminaling and Storage Agreement, entered into June 6, 2014.	
 
8.	Terminaling and Storage Agreement, effective July 1, 2013, by and between the Borrower and P.M.I. Trading Ltd.	
 
9.	Terminaling and Storage Agreement, effective April 1, 2012, by and between the Borrower and Chevron Marine Products, LLC.	
 
10.	Terminaling and Storage Agreement, effective February 1, 2006, by and between the Borrower and Atlantic Trading and Marketing, Inc., as amended by the First Amendment to Terminaling and Storage Agreement, dated November 27, 2007, as further amended and by the Second Amendment to Fuel Oil Terminaling and Storage Agreement, dated September 24, 2010, and as further amended by the Third Amendment to Fuel Oil Terminaling and Storage Agreement, dated January 30, 2014.	

11.	Terminaling and Storage Agreement, effective April 1, 2010, by and between the Borrower and BP Products North America, Inc., as amended by the First Amendment to Terminaling and Storage Agreement, dated June 13, 2011, and as further amended by the Second Amendment to Terminaling and Storage Agreement, dated March 22, 2012.	
 
12.	Terminaling and Storage Agreement Number 13-001, entered into May 23, 2013, by and between the Borrower and Davison Petroleum Supply, LLC.	
 
13.	Terminaling and Storage Agreement Number 13-004, effective December 1, 2013, by and between the Borrower and Davison Petroleum Supply LLC.	
 
14.	Terminaling and Storage Agreement, effective March 1, 2008, by and between the Borrower and Fortis International Energy, Ltd., as amended by the First Amendment to Terminaling and Storage Agreement, dated March 3, 2011.	
 
15.	Terminaling and Storage Agreement, effective January 1, 2013, by and between the Borrower and Rio Energy International, Inc.	
 
16.	Terminaling and Storage Agreement, entered into January 11, 2011, by and between the Borrower and Shell Trading (US) Company.	
 
17.	Terminaling and Storage Agreement, effective February 1, 2014, by and between the Borrower and Shell Trading (US) Company.	
 
18.	Terminaling and Storage Agreement, effective February 1, 2006, by and between the Borrower and Shell Trading (US) Co., as amended by the First Amendment to Terminaling and Storage Agreement, dated October 23, 2007, and as further amended by the Second Amendment to Terminaling and Storage Agreement, dated May 7, 2014.	
 
19.	Terminaling and Storage Agreement, effective April 1, 2006, by and between the Borrower and Sempra Energy Trading Corp., as amended by the First Amendment to Terminaling and Storage Agreement, dated November 1, 2007, and as further amended by the Novation Agreement by and among the Borrower, Sempra Energy Trading LLC, and J.P. Morgan Ventures Energy Corporation, effective May 10, 2010.	
 
20.	Terminaling and Storage Agreement, effective February 1, 2008, by and between the Borrower and Tauber Oil Company, as amended by the First Amendment to Terminaling and Storage Agreement, dated February 12, 2008, and as further amended by the Second Amendment to Terminaling and Storage Agreement, dated February 1, 2011.	
 
21.	Terminaling and Storage Agreement, entered into May 17, 2012, by and between the Borrower and Tauber Oil Company.	
 
22.	Terminaling and Storage Agreement, effective September 11, 2010, by and between the Borrower and Astra Oil Company, LLC.	

23.	Terminaling and Storage Agreement, entered into April 4, 2011, by and between the Borrower and Brightoil Petroleum (USA) Inc., as amended by the First Amendment to Terminaling and Storage Agreement, dated February 27, 2013.	
 
24.	Terminaling and Storage Agreement, entered into May 3, 2011, by and between the Borrower and Noble Americas Corp.	
 
25.	Terminaling and Storage Agreement, entered into August 2, 2011, by and between the Borrower and Trafigura AG, as amended by the First Amendment to Terminaling and Storage Agreement, dated November 26, 2012, and as further amended by the Second Amendment to Terminaling and Storage Agreement, dated June 28, 2013.	
 
26.	Crude Oil Terminaling and Storage Agreement, effective August 1, 2006, by and between the Borrower and Deer Park Refining Limited Partnership, as amended by the First Amendment to Crude Oil Terminaling and Storage Agreement, dated December 21, 2010, and as further amended by the Second Amendment to Crude Oil Terminaling and Storage Agreement, dated September 12, 2012.	
 
27.	Fuel Oil Terminaling and Storage Agreement, effective October 1, 2006, by and between the Borrower and Valero Marketing and Supply Company, as amended by the letter agreement dated October 19, 2009, as further amended by the Second Amendment to Fuel Oil Terminaling and Storage Agreement, dated January 12, 2010, and as further amended by the Third Amendment to Fuel Oil Terminaling and Storage Agreement, dated September 20, 2010.	
 
28.	Crude Oil Terminaling and Storage Agreement, effective July 1, 2004, by and between the Borrower and Valero Marketing and Supply Company.	
 
29.	Terminaling and Storage Agreement #14-005 Tanks and Barge Dock, entered into May 5, 2014, by and between the Borrower and Bayview Refining Company, LLC.	
 
30.	Terminaling and Storage Agreement #14-006 “AGO,” entered into May 5, 2014, by and between the Borrower and Bayview Refining Company, LLC.	
 
31.	Terminaling and Storage Agreement, effective March 1, 2013, by and between the Borrower and Castleton Commodities Merchant Trading L.P.	
 
32.	Terminaling and Storage Agreement, entered into January 20, 2012, by and between the Borrower and International Chemical Company.	
 
33.	Terminaling and Storage Agreement, effective June 6, 2012, by and between the Borrower and Mercuria Energy Trading Inc., as amended by the Addendum to Terminaling and Storage Agreement, dated February 3, 2014.	
 
34.	Terminaling and Storage Agreement 14-007, entered into May 14, 2014, by and between the Borrower and Motiva Enterprises LLC.	

35.	Terminaling and Storage Agreement, effective May 1, 2012, by and between the Borrower and Orion Engineered Carbons, LLC.	
 
36.	Terminaling and Storage Agreement 14-009, dated July 31, 2014 and effective August 1, 2014, by and between the Borrower and Freepoint Commodities Trading and Marketing LLC.	

Schedule 2.01
Commitments
Tranche B Term Commitments

Morgan Stanley Senior Funding, Inc.	  	$	550,000,000.00	 	
Total	  	$	550,000,000.00	 	
Revolving Commitments

Morgan Stanley Bank, N.A.	  	$	37,500,000.00	 	
Deustche Bank AG New York Branch	  	$	37,500,000.00	 	
Total	  	$	75,000,000.00	 	

Schedule 3.02

Schedule 3.05
Government Consents
None.

Schedule 3.08(b)
Owned Real Property

Record Owner	  	Street Address	  	County	  	State	
HFOTCO LLC	  	16642 Jacintoport Bvld.	  	Harris	  	TX	
HFOTCO LLC	  	1201 S. Sheldon Rd.	  	Harris	  	TX	
HFOTCO LLC	  	1515 S. Sheldon Rd.	  	Harris	  	TX	
HFOTCO LLC	  	0 Moore Rd.	  	Harris	  	TX	

Schedule 3.08(c)
Leased Real Property

Lessor	  	Street Address	  	County	  	State	  	Lessee	  	Expiration Date of
Lease	
Johann Haltermann, Ltd.	  	16717 Jacintoport Blvd	  	Harris	  	TX	  	HFOTCO LLC	  	March 31, 2051	
						
Port of Houston Authority of
Harris County,
Texas	  	None (Pipeline Lease)	  	Harris	  	TX	  	HFOTCO LLC	  	January 31, 2041	
						
Port of Houston Authority of
Harris County,
Texas	  	None (“Dock 5” Lease)	  	Harris	  	TX	  	HFOTCO LLC	  	September 30, 2043	

Schedule 3.14
ERISA Matters
None.

Schedule 6.01
Liens

DEBTOR	  	SECURED PARTY	  	COLLATERAL	  	FILING OFFICE
AND
JURISDICTION	  	ORIGINAL FILE
DATE AND
NUMBER	
HFOTCO LLC	  	WebBank	  	Certain computer equipment and software financed pursuant to that certain revolving credit Account #687945020500026XXXX dated May 26, 2011	  	Secretary of State, State of Texas	  	6/03/2011 #11-0016512815	
					
HFOTCO LLC	  	Toshiba America Business Solutions, Inc.	  	All equipment leased or financed under that certain Equipment Lease Agreement No. 7733325- 001	  	Secretary of State, State of Texas	  	3/27/2012 #12-0009481540	

Schedule 6.02
Indebtedness
None.

Schedule 6.07
Investments
None.

Schedule 6.13
Restrictive Agreements
None.

Schedule 9.01
Notice Addresses
With respect to the Borrower:
HFOTCO LLC
1201 South Sheldon Road
Houston, TX 77015
Attention: Michael Mangan
Telephone: 281.452.3390
Facsimile: 281.452.3458
Email: MMangan@hotco.com
With a copy to:
Alinda Capital Partners LLC
100 West Putnam Avenue
Greenwich, CT 06830
Attention: Ravi Purohit
Telephone: 203.930.3830
Facsimile: 203.724.1544
Email: ravi.purohit@alinda.com
With respect to the Parent:
Alinda Capital Partners LLC
100 West Putnam Avenue
Greenwich, CT 06830
Attention: Ravi Purohit
Telephone: 203.930.3830
Facsimile: 203.724.1544
Email: ravi.purohit@alinda.com
With respect to the Administrative Agent:
Morgan Stanley Senior Funding, Inc.
1 New York Plaza
New York, NY 10004
Attention: Morgan Stanley Agency Servicing
Telephone: (212) 517-6680
Email: msagency@morganstanley.com

With respect to the Collateral Agent:
Collateral Agent’s Office (for payments):
Bank of America, N.A.
Credit Services – Servicing Dallas
901 Main Street
Dallas, Texas 75202-3714
Attention: Angie Hidalgo
Telephone: (972) 338-3768
Email: angie.hidalgo@baml.com
Payment Instructions:
Bank of America, NA
ABA Number – 026009593
Account Number – 1292000883
Account Name – Credit Services
Reference – HFOTCO/Angie Hidalgo
Other Notices as Collateral Agent:
Bank of America Merrill Lynch
Agency Management East
900 W Trade Street
NC1-026-06-03
Charlotte, NC 28255
Attention: Priscilla Baker
Telephone: (980) 386-3475
Facsimile: (704) 409-0918
Email: priscilla.l.baker@baml.com

Exhibit A
to Credit Agreement
FORM OF ADMINISTRATIVE QUESTIONNAIRE
Lender Administrative Questionnaire

Borrower:	  	HFOTCO LLC	  		
			
Agent	  	Morgan Stanley Senior	  	Return To:	
			
Address:	  	Funding, Inc.	  	Telephone:	
	  		  	Facsimile:	
	  		  	E-mail:	
Legal Name of Lender:

Signature Block Information:

Type of Lender:

(Bank, Asset Manager, Broker/Dealer, CLO/CDO, Finance Company, Hedge Fund, Insurance, Mutual Fund, Pension Fund, Other Regulated Investment)
Lender Parent:

Signing Credit Agreement     ☐
Coming in via Assignment     ☐

Domestic Address	  	Eurodollar Address	

 	  	 	

Contacts	  		  		
	  	Primary Credit Contact	  	Secondary Credit Contact	
Name:	  	 	  	 	
Company:	  	 	  	 	
Title:	  	 	  	 	
Address:	  	 	  	 	

Telephone:	  	 	  	 	
Facsimile:	  	 	  	 	
 
A-1

					
E-mail Address:	  	 	  	 	

	  	Primary Operations Contact	  	Secondary Operations Contact	
			
Name:	  	 	  	 	
Company:	  	 	  	 	
Title:	  	 	  	 	
Address:	  	 	  	 	

Telephone:	  	 	  	 	
Facsimile:	  	 	  	 	
E-mail Address:	  	 	  	 	
			
	  	Bid Contact	  	LC Contact	
Name:	  	 	  	 	
Company:	  	 	  	 	
Title:	  	 	  	 	
Address:	  	 	  	 	

Telephone:	  	 	  	 	
Facsimile:	  	 	  	 	
E-mail Address:	  	 	  	 	
		
Lender’s Domestic Wire instructions	  		
		
Bank Name:	  	 	
ABA/Routing No.:	  	 	
Account Name:	  	 	
Account No.:	  	 	
FFC Account Name:	  	 	
FFC Account No.:	  	 	
Attention:	  	 	
Reference:	  	 	
		
Lender’s Foreign Wire Instructions	  		
		
Bank Name:	  	 	
ABA/Routing No.:	  	 	
Account Name:	  	 	
Account No.:	  	 	
FFC Account Name:	  	 	
FFC Account No.:	  	 	
Attention:	  	 	
Reference:	  	 	

A-2

Agent’s Wire Instructions

Bank Name:	  	 	
ABA/Routing No.:	  	 	
Account Name:	  	 	
Account No.:	  	 	
Attention:	  	 	
Reference:	  	 	

A-3

TAX DOCUMENTS
NON-U.S. LENDER INSTITUTIONS:
 
I.	Corporations:	
If your institution is incorporated outside of the United States for U.S. federal income tax purposes, and is the beneficial owner of the interest and other income it receives, you must complete one of the following three tax forms, as applicable to your institution:
(a)      Form W - 8BEN-E (Certificate of Status of Beneficial Owner for United States Tax Withholding and Reporting (Entities)), (b) Form W - 8ECI (Certificate of Foreign Person’s Claim That Income Is Effectively Connected With the Conduct of a Trade or Business in the United States) or (c)  Form W - 8EXP (Certificate of Foreign Government or Other Foreign Organization for United States Tax Withholding and Reporting). The Form W-8BEN-E and Form W-8EXP also require certain certifications and information related to the institution’s Chapter 4 Status (“FATCA” status).
A U.S. taxpayer identification number is required for any institution submitting Form W- 8ECI. It is also required on Form W-8BEN –E for certain institutions claiming the benefits of a tax treaty with the U.S. Please refer to the instructions when completing the form applicable to your institution. In addition, please be advised that U.S. tax regulations do not permit the acceptance of faxed forms. An original tax form must be submitted.
 
II.	Flow-Through Entities:	
If your institution is organized outside the United States, and is classified for U.S. federal income tax purposes as either a Partnership, Trust, Qualified or Non-Qualified Intermediary, or other non-U.S. flow-through entity, an original Form W - 8IMY (Certificate of Foreign Intermediary, Foreign Flow-Through Entity, or Certain U.S. Branches for United States Tax Withholding) must be completed by the intermediary together with a withholding statement. Flow-through entities other than Qualified Intermediaries are required to include tax forms for each of the underlying beneficial owners.
Please refer to the instructions when completing this form. In addition, please be advised that U.S. tax regulations do not permit the acceptance of faxed forms. Original tax form(s) must be submitted.
U.S. LENDER INSTITUTIONS:
If your institution is incorporated or organized within the United States, you must complete and return Form W - 9 (Request for Taxpayer Identification Number and Certification) . Please be advised that we request that you submit an original Form W - 9.
Pursuant to the language contained in the tax section of the Credit Agreement , the applicable tax form for your institution must be completed and returned on or prior to the date you become a lender under the Credit Agreement. Failure to provide the proper tax form when requested may subject your institution to U.S. tax withholding.

A-4

Exhibit B
to Credit Agreement
FORM OF ASSIGNMENT AND ASSUMPTION
This Assignment and Assumption (this “ Assignment and Assumption ”) is dated as of the Effective Date set forth below and is entered into by and between [ insert name of Assignor ] (the “ Assignor ”) and [ insert name of Assignee ] (the “ Assignee ”). Capitalized terms used but not defined herein shall have the meanings given to them in the Credit Agreement identified below (as amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “ Credit Agreement ”); receipt of a copy of which is hereby acknowledged by the Assignee. The Standard Terms and Conditions set forth in Annex 1 attached hereto are hereby agreed to and incorporated herein by reference and made a part of this Assignment and Assumption as if set forth herein in full.
For an agreed consideration, the Assignor hereby irrevocably sells and assigns to the Assignee, and the Assignee hereby irrevocably purchases and assumes from the Assignor, subject to and in accordance with the Standard Terms and Conditions and the Credit Agreement, as of the Effective Date inserted by the Administrative Agent as contemplated below, (a) all of the Assignor’s rights and obligations in its capacity as a Lender under the Credit Agreement, any other Loan Documents or any other documents or instruments delivered pursuant thereto to the extent related to the amount and percentage interest identified below of all of such outstanding rights and obligations of the Assignor under the respective Facilities identified below and (b) to the extent permitted to be assigned under applicable law, all claims, suits, causes of action and any other right of the Assignor (in its capacity as a Lender) against any Person, whether known or unknown, arising under or in connection with the Credit Agreement, any other Loan Documents or any other documents or instruments delivered pursuant thereto or the loan transactions governed thereby or in any way based on or related to any of the foregoing, including, but not limited to, contract claims, tort claims, malpractice claims, statutory claims and all other claims at law or in equity related to the rights and obligations sold and assigned by the Assignor to the Assignee pursuant to clause (a) above (the rights and obligations sold and assigned pursuant to clauses (a) and (b) above being referred to herein collectively as the “ Assigned Interest ”). Each such sale and assignment is without recourse to the Assignor and, except as expressly provided in this Assignment and Assumption, without representation or warranty by the Assignor.

1.	  	Assignor:	  	                                                     	
	  		  	[Assignor [is][is not] a Defaulting Lender]	
			
2.	  	Assignee:	  	                                                     	
	  		  	[indicate [Affiliate] [Approved Fund] of [ identify Lender ]]	
			
3.	  	Borrower:	  	HFOTCO LLC	
			
4.	  	Administrative Agent:	  	Morgan Stanley Senior Funding, Inc., as the administrative agent under the Credit Agreement	

B-1

					
5.	  	Credit Agreement:	  	Credit Agreement, dated as of August 19, 2014, among Buffalo Gulf Coast Terminals LLC, HFOTCO LLC, the Lenders party thereto from time to time, Morgan Stanley Senior Funding, Inc., as Administrative Agent, and Bank of America, N.A., as Collateral Agent	
			
7.	  	Assigned Interest:	  		

Assignor[s]	  	Assignee[s]	  	Facility
Assigned 1	  	Aggregate Amount of
Commitment/Loans
for all Lenders 2	  	Amount of
Commitment/Loans
Assigned 8	  	Percentage
Assigned of
Commitment/
Loans 3	  	CUSIP
Number	
 	  	 	  	 	  	$	  	$	  	%	  	 	
 	  	 	  	 	  	$	  	$	  	%	  	 	
 	  	 	  	 	  	$	  	$	  	%	  	 	

8.	  	Effective Date:	  	                     , 20         [ To be inserted by the Administrative Agent and which shall be the Effective Date of recordation of transfer in the register therefor.].	

1  	Fill in the appropriate terminology for the types of facilities under the Credit Agreement that are being assigned under this Assignment (e.g., “Revolving Credit Commitment,” “Term Loan Commitment,” etc.)	
2  	Amount to be adjusted by the counterparties to take into account any payments or prepayments made between the Trade Date and the Effective Date.	
3	Set forth, to at least 9 decimals, as a percentage of the Commitment/Loans of all Lenders thereunder.	

B-2

The terms set forth in this Assignment and Assumption are hereby agreed to:

ASSIGNOR	
[NAME OF ASSIGNOR]	
		
By:	 	 	
Name:	 		
Title:	 		
	
ASSIGNEE	
[NAME OF ASSIGNEE]	
		
By:	 	 	
Name:	 		
Title:	 		

[Consented to and] 4 Accepted:	
	
MORGAN STANLEY SENIOR FUNDING, INC.,
as Administrative Agent	
		
By:	 	 	
Name:	 		
Title:	 		
	
[Consented to:] 5	
	
[MORGAN STANLEY BANK, N.A.,
as Swingline Lender and [an] Issuing Bank	
		
By:	 	 	
Name:	 		
Title:]	 		
	
[[                    ]
as an Issuing Bank	
		
By:	 	 	
Name:	 		
Title:]	 		

4	To be included only if the consent of the Administrative Agent is required by the terms of the Credit Agreement.	
5  	To be included only if the consent of each Issuing Bank and the Swingline Lender Bank is required by the terms of the Credit Agreement.	

B-3

[Consented to:] 6

[HFOTCO LLC	
		
By:	 	 	
Name:	 		
Title:]	 		

6	To be included only if the consent of the Borrower is required by the terms of the Credit Agreement.	

B-4

Annex 1
STANDARD TERMS AND CONDITIONS FOR
ASSIGNMENT AND ASSUMPTION
1. Representations and Warranties .
1.1 Assignor . The Assignor (a) represents and warrants that (i) it is the legal and beneficial owner of the Assigned Interest, (ii) the Assigned Interest is free and clear of any Lien, encumbrance or other adverse claim (iii) it has full power and authority, and has taken all action necessary, to execute and deliver this Assignment and Assumption and to consummate the transactions contemplated hereby and (iv) it is [not] a Defaulting Lender; and (b) assumes no responsibility with respect to (i) any statements, warranties or representations of any Person other than the Assignor made in or in connection with the Credit Agreement or any other Loan Document, (ii) the execution, legality, validity, enforceability, genuineness, sufficiency or value of the Loan Documents or any collateral thereunder, (iii) the financial condition of the Parent, the Borrower, any of the other Subsidiaries or any Affiliate of the foregoing or any other Person obligated in respect of any Loan Document or (iv) the performance or observance by the Parent, the Borrower, any of the other Subsidiaries or any Affiliate of the foregoing or any other Person of any of such Person’s respective obligations under any Loan Document.
1.2. Assignee . The Assignee (a) represents and warrants that (i) it has full power and authority, and has taken all action necessary, to execute and deliver this Assignment and Assumption and to consummate the transactions contemplated hereby and to become a Lender under the Credit Agreement, (ii) it is an Eligible Assignee, (iii) from and after the Effective Date, it shall be bound by the provisions of the Credit Agreement and the other Loan Documents as a Lender thereunder and, to the extent of the Assigned Interest, shall have the obligations of a Lender thereunder, (iv) it is sophisticated with respect to decisions to acquire assets of the type represented by the Assigned Interest and either it, or the Person exercising discretion in making its decision to acquire the Assigned Interest, is experienced in acquiring assets of such type, (v) it has received a copy of the Credit Agreement, and has received or has been accorded the opportunity to receive copies of the most recent financial statements delivered pursuant to Section  5.04(a) or (b)  thereof, as applicable, and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into this Assignment and Assumption and to purchase the Assigned Interest, (vi) it has, independently and without reliance on the Administrative Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Assignment and Assumption and to purchase the Assigned Interest, and (vii) attached to the Assignment and Assumption is any documentation required to be delivered by it pursuant to the terms of Section  2.17 of the Credit Agreement, duly completed and executed by the Assignee; and (b) agrees that (i) it will, independently and without reliance on the Administrative Agent, the Assignor or any other Lender Party, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under the Loan Documents, and (ii) it will perform in accordance with their terms all of the obligations which by the terms of the Loan Documents are required to be performed by it as a Lender.

B-5

2.     Payments . From and after the Effective Date, the Administrative Agent shall make all payments in respect of the Assigned Interest (including payments of principal, interest, fees and other amounts) to the Assignor for amounts which have accrued to but excluding the Effective Date and to the Assignee for amounts which have accrued from and after the Effective Date.
3.     General Provisions . This Assignment and Assumption shall be binding upon, and inure to the benefit of, the parties hereto and their respective successors and assigns. This Assignment and Assumption may be executed in any number of counterparts, which together shall constitute one instrument. Delivery of an executed counterpart of a signature page of this Assignment and Assumption by telecopy or electronic transmission in “.pdf’ or comparable format shall be effective as delivery of a manually executed counterpart of this Assignment and Assumption. This Assignment and Assumption shall be governed by, and construed in accordance with, the laws of the State of New York.

B-6

Exhibit C
to Credit Agreement
FORM OF BORROWING REQUEST
Date:                    ,          7
Requested Closing Date:                     ,         
Morgan Stanley Senior Funding, Inc.,
as Administrative Agent
1 New York Plaza
New York, NY 10004
Attention: Morgan Stanley Agency Servicing
 
 	Re:	HFOTCO LLC – Borrowing Request	
Ladies and Gentlemen:
Reference is made to the Credit Agreement, dated as of August 19, 2014 (as amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “ Credit Agreement ”), by and among Buffalo Gulf Coast Terminals LLC, a Delaware limited liability company (the “ Parent ”), HFOTCO LLC, a Texas limited liability company (the “ Borrower ”), the Lenders party thereto from time to time, Morgan Stanley Senior Funding, Inc., as Administrative Agent, and Bank of America, N.A., as Collateral Agent. Each capitalized term used but not otherwise defined in this request (this “ Borrowing Request ”) shall have the meaning assigned to such term in the Credit Agreement.
Pursuant to Section [2.03][2.04] of the Credit Agreement, the Borrower hereby requests a Borrowing under the Credit Agreement, and in connection therewith specifies the following information with respect to such Borrowing:

(a)	  	Class of Borrowing: 8	  	 	
			
(b)	  	Aggregate principal amount of	  	 	
	  	Borrowing:	  		
			
(c)	  	Date of Borrowing	  	 	
	  	(which is a Business Day):	  		

7  	To be delivered (a) in the case of a Eurodollar Borrowing, not later than 11:00 a.m., New York City time, three Business Days before the date of the proposed Borrowing, (b) in the case of an ABR Borrowing (other than a Swingline Borrowing), not later than 11:00 a.m., New York City time, one Business Day before the date of the proposed Borrowing and (c) in the case of a Swingline Borrowing, not later than 12:00 noon, New York City time, on the day of the proposed Swingline Borrowing.	
8  	Specify Tranche B Term Borrowing, an Incremental Term Borrowing of a particular Series, Revolving Borrowing or Swingline Borrowing.	

C-1

					
			
(d)	  	[Type of Borrowing 9 :]	  	 	
			
	  	[Interest Period 10 :]	  	                     months	
			
(e)	  	Funds are requested to be disbursed to:	  	[ insert account information ]	
The Borrower hereby certifies that the conditions specified in paragraphs (a) and (b) of Section  4.02 the Credit Agreement have been satisfied and that, after giving effect to the Borrowing requested hereby, the Aggregate Revolving Exposure (or any component thereof) shall not exceed the maximum amount thereof (or the maximum amount of any such component specified in Section  2.01(b) , 2.04(a) or 2.05(b) of the Credit Agreement
* * *
IN WITNESS WHEREOF, the Borrower has caused this Borrowing Request to be duly executed and delivered by a Responsible Officer of the Borrower as of the date first above written.

HFOTCO LLC	
		
By:	 	 	
Name:	 		
Title:	 		

9	Specify ABR Borrowing or Eurodollar Borrowing. This information is not required for a Swingline Borrowing.	
10	This information is only required for a Eurodollar Borrowing and may be one, two, three or six months.	

C-2

Exhibit D
to Credit Agreement
FORM OF INTEREST ELECTION REQUEST
Date:                     ,         11
Morgan Stanley Senior Funding, Inc.,
as Administrative Agent
1 New York Plaza
New York, NY 10004
Attention: Morgan Stanley Agency Servicing
Ladies and Gentlemen:
 
 	Re:	HFOTCO LLC – Interest Election Request	
Reference is made to the Credit Agreement, dated as of August 19, 2014 (as amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “ Credit Agreement ”), by and among Buffalo Gulf Coast Terminals LLC, a Delaware limited liability company (the “ Parent ”), HFOTCO LLC, a Texas limited liability company (the “ Borrower ”), the Lenders from time to time party thereto, Morgan Stanley Senior Funding, Inc., as Administrative Agent, and Bank of America, N.A., as Collateral Agent. Each capitalized term used but not otherwise defined herein shall have the meaning assigned to such term in the Credit Agreement.
Pursuant to Section  2.07 of the Credit Agreement, the Borrower hereby requests the conversion or continuation of a Borrowing under the Credit Agreement, and in connection therewith specifies the following information wih respect to such Borrowing and each resulting Borrowing:

1. Borrowing to which this request applies:	 	 	 		
Aggregate principal amount:	 	 	 		
Class:	 	 	 		
Type:	 	 	 		
[Last day of the current	 		 		

11  	To be delivered by the time that the Borrowing Request would be required under Section 2.03 of the Credit Agreement if the Borrower were requesting a Borrowing of the Type resulting from such election to be made on the effective date of such election.	

D-1

					
Interest Period: 12 ]	 	 	 		
2. Effective date of this election (which is a Business Day):	 	 	 		
3. Resulting Borrowing[s]: 13	 	 	 		
Aggregate principal amount: 14	 	 	 		
Type: 15	 	 	 		
[Interest Period:] 16	 	 	 		

Very truly yours,	
	
HFOTCO LLC	
		
By:	 	 	
Name:	 		
Title:	 		

12	This information is only required for a Eurodollar Borrowing.	
13  	If different options are being elected with respect to different portions of the Borrowing, provide the information required by this item 3 for each resulting Borrowing.	
14	Indicate the principal amount of the resulting Borrowing and the percentage of the Borrowing in item 1 above.	
15	Specify ABR Borrowing or Eurodollar Borrowing.	
16	This information is only required for a Eurodollar Borrowing.	

D-2

Exhibit E
to Credit Agreement
FORM OF [TERM] [REVOLVING] NOTE
THIS [TERM] [REVOLVING] NOTE AND THE OBLIGATIONS REPRESENTED HEREBY MAY NOT BE TRANSFERRED EXCEPT IN COMPLIANCE WITH THE TERMS AND PROVISIONS OF THE CREDIT AGREEMENT REFERRED TO BELOW. TRANSFERS OF THIS NOTE AND THE OBLIGATIONS REPRESENTED HEREBY MUST BE RECORDED IN THE REGISTER MAINTAINED BY THE ADMINISTRATIVE AGENT PURSUANT TO THE TERMS OF SUCH CREDIT AGREEMENT.

$ [                    ]	  	New York, New York	
	  	Date:             , 20        	
FOR VALUE RECEIVED, the undersigned, HFOTCO LLC, a Texas limited liability company (the “ Borrower ”), hereby unconditionally promises to pay to [ insert name of Lender ] (the “ Payee ”) or its registered assigns at the office specified in the Credit Agreement (as hereinafter defined) in lawful money of the United States and in immediately available funds, on the [Tranche B Term] [Revolving] Maturity Date the principal amount of (a) $[                    ], or, if less, (b) the aggregate unpaid principal amount of all Loans made by the Payee under the Credit Agreement. The principal amount shall also be paid in the amounts and on the dates specified in the Credit Agreement. The Borrower further agrees to pay interest in like money at such office specified in the Credit Agreement on the unpaid principal amount hereof from time to time outstanding at the rates and on the dates specified in the Credit Agreement.
The holder of this promissory note (this “ Note ”) is authorized to endorse on the schedules annexed hereto and made a part hereof or on a continuation thereof which shall be attached hereto and made a part hereof the date, Type and amount of each Loan made pursuant to the Credit Agreement and the date and amount of each payment or prepayment of principal thereof, each continuation thereof, each conversion of all or a portion thereof to another Type and, in the case of Eurodollar Loans, the length of each Interest Period with respect thereto. Subject to the entries made in the Register maintained pursuant to Section  2.09(c) of the Credit Agreement, each such endorsement shall constitute prima facie evidence of the accuracy of the information endorsed. The failure to make any such endorsement or any error in any such endorsement shall not limit or otherwise affect the obligations of the Borrower in respect of any Loan.
This Note is (a) one of the promissory notes relating to Loans referred to in the Credit Agreement, dated as of August 19, 2014 (as amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “ Credit Agreement ”), by and among Buffalo Gulf Coast Terminals LLC, a Delaware limited liability company (the “ Parent ”), the Borrower, the Lenders party thereto from time to time, Morgan Stanley Senior Funding, Inc., as Administrative Agent, and Bank of America, N.A., as Collateral Agent, (b) subject to the terms, conditions and other provisions of the Credit Agreement, to which reference is made for a more complete statement of the terms and conditions under which the Loans evidenced hereby were made and are to be repaid and (c) subject to optional and mandatory prepayment in whole or in part as provided in the Credit Agreement. This Note is secured as provided in the Security

E-1

Documents. Reference is hereby made to the Security Documents for a description of the properties and assets in which a security interest has been granted, the nature and extent of the security, the terms and conditions upon which the security interests were granted and the rights of the holder of this Note in respect thereof.
This Note is a registered Note and, 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 Borrower 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 Borrower will not be affected by any notice to the contrary.
Upon the occurrence of any one or more Events of Default, all principal and accrued interest then remaining unpaid on this Note shall become, or may be declared to be, immediately due and payable, all as provided in the Credit Agreement.
All parties now and hereafter liable with respect to this Note, whether maker, principal, surety, guarantor, endorser or otherwise, hereby consent to renewals and extensions of time at or after the maturity hereof, without notice, and hereby waive diligence, presentment, demand, protest and all other notices of any kind.
Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement.
[THIS NOTE WAS ISSUED WITH ORIGINAL ISSUE DISCOUNT UNDER SECTION 1271, 1273 AND 1275 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED. YOU MAY CONTACT MICHAEL MANGAN, VICE PRESIDENT OF FINANCE OF THE BORROWER], AT HFOTCO LLC, 1201 SOUTH SHELDON ROAD, HOUSTON, TX 77015, TEL: 713-948-6100, WHO WILL PROVIDE YOU WITH ANY REQUIRED INFORMATION REGARDING THE ORIGINAL ISSUE DISCOUNT].
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN OR IN THE CREDIT AGREEMENT, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT PURSUANT TO AND IN ACCORDANCE WITH THE REGISTRATION AND OTHER PROVISIONS OF SECTION 9.04 OF THE CREDIT AGREEMENT.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.

HFOTCO LLC	
		
By:	 	 	
Name:	 		
Title:	 		

E-2

Schedule A
LOANS, CONVERSIONS AND REPAYMENTS OF ABR LOANS

Date	  	Amount of
ABR Loans	  	Amount
Converted to ABR
Loans	  	Amount of
Principal of ABR
Loans Repaid	  	Amount of ABR
Loans Converted to
Eurodollar Loans	  	Unpaid Principal
Balance of ABR
Loans	  	Notation Made By	

 
E-3

Schedule B
LOANS, CONTINUATIONS, CONVERSIONS AND REPAYMENTS OF EURODOLLAR LOANS

Date	  	Amount of
Eurodollar
Loans	  	Amount
Converted to
Eurodollar Loans	  	Interest Period
and Eurodollar
Rate with
Respect Thereto	  	Amount of
Principal of
Eurodollar
Loans Repaid	  	Amount of
Eurodollar Loans
Converted to ABR
Loans	  	Unpaid
Principal
Balance of
Eurodollar
Loans	  	Notation
Made By	

E-4

Exhibit F
to Credit Agreement
FORM OF COMPLIANCE CERTIFICATE
The form of this Compliance Certificate has been prepared for convenience only, and is not to affect, or to be taken into consideration in interpreting, the terms of the Credit Agreement referred to below. The obligations of the Parent and the Borrower under the Credit Agreement are as set forth in the Credit Agreement, and nothing in this Compliance Certificate, or the form hereof, shall modify such obligations or constitute a waiver of compliance therewith in accordance with the terms of the Credit Agreement. In the event of any conflict between the terms of this Compliance Certificate and the terms of the Credit Agreement, the terms of the Credit Agreement shall govern and control, and the terms of this Compliance Certificate are to be modified accordingly.
This Compliance Certificate, dated as of [                    ], 20[        ] (this “ Compliance Certificate ”), is delivered to you pursuant to Section  5.08 of the Credit Agreement, dated as of August 19, 2014 (as amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “ Credit Agreement ”), by and among Buffalo Gulf Coast Terminals LLC, a Delaware limited liability company (the “ Parent ”), HFOTCO LLC, a Texas limited liability company (the “ Borrower ”), the Lenders party thereto from time to time, Morgan Stanley Senior Funding, Inc., as Administrative Agent, and Bank of America, N.A., as Collateral Agent. Each capitalized term used but not otherwise defined in this Compliance Certificate shall have the meaning assigned to such term in the Credit Agreement.
Each of the undersigned hereby certifies, on behalf of the Parent or the Borrower, as applicable, in his or her capacity as a duly elected, qualified and acting Responsible Officer of the Parent or the Borrower, as applicable, and not in such Responsible Officer’s individual capacity, as follows:
1. I am a duly elected, qualified and acting Responsible Officer of the Parent or the Borrower, as applicable, having the title set forth next to my signature below.
2. I have reviewed and am familiar with the contents of this Compliance Certificate.
3. I have reviewed the terms of the Credit Agreement and the other Loan Documents that are relevant to the furnishing of this Compliance Certificate and have made or caused to be made under my supervision, a review in reasonable detail of the transactions and condition of the Parent and the Subsidiaries from the beginning of the [Fiscal Quarter] [Fiscal Year] covered by the financial statements attached hereto as Annex 1 (the “ Financial Statements ”) to the date hereof. The examination described in this paragraph 3 did not disclose, and I have no knowledge of, the existence of any condition or event which constitutes a Default or an Event of Default during or at the end of such period [, except as set forth in a separate attachment, if any, to this Compliance Certificate, describing in reasonable detail, the nature of the condition or event, the period during which it has existed and the action which the Parent or the Borrower has taken, is taking, or proposes to take with respect to each such condition or event].

F-1

4. The Total Adjusted Net Leverage Ratio for the four consecutive Fiscal Quarters ending with the [Fiscal Quarter] [last Fiscal Quarter of the Fiscal Year] to which the Financial Statements relate is [            ] to 1.00. Attached hereto as Annex 2 is the calculation of such Total Adjusted Net Leverage Ratio.
5. The Available Amount as of the last day of the [Fiscal Quarter] [Fiscal Year] to which the Financial Statements relate is $[            ]. Attached hereto as Annex 3 is the calculation of such Available Amount[ and details of the Available Amount Expenditures during such [Fiscal Quarter] [Fiscal Year]].
6. Attached hereto as Annex 4 is a report in form and method of analysis similar to a “Management’s Discussion and Analysis” in form and substance reasonably satisfactory to the Administrative Agent (covering such topics as the Parent and the Subsidiaries’ financial condition and results of operations and the Parent and the Subsidiaries’ businesses).
[7. Attached hereto as Annex 5 are consolidating financial statements for the [Fiscal Quarter] [Fiscal Year] to which the Financial Statements relate reflecting the adjustments necessary to eliminate the accounts of the Unrestricted Subsidiaries from the Financial Statements.] 17
[8. Concurrently with the delivery of this Compliance Certificate, each of the Parent and the Borrower has delivered or caused to be delivered or shall deliver or cause to be delivered to the Administrative Agent a Perfection Certificate Supplement in accordance with Section  4.01(b) of the Security Agreement.] 18
[ Signature Page Follows ]

17  	To be included only if there are any Unrestricted Subsidiaries during the Fiscal Quarter or Fiscal Year covered by the Financial Statements.	
18	To be included in each Compliance Certificate delivered with respect to a Fiscal Year.	

F-2

IN WITNESS WHEREOF, the undersigned Responsible Officers have executed and delivered this Compliance Certificate on behalf of the Parent or the Borrower, as applicable, and have made the certifications and statements contained herein, as of the date first above written.

BUFFALO GULF COAST TERMINALS LLC	
		
By:	 	 	
Name:	 		
Title:	 		
	
HFOTCO LLC	
		
By:	 	 	
Name:	 		
Title:	 		

F-3

Annex 1
[Attach financial statements]

F-4

Annex 2 – Total Adjusted Net Leverage Ratio
Annex 2 – Total Adjusted Net Leverage Ratio The information described herein is as of                     , 20        , and pertains to the period from            , 20         to                     , 20        . Section references herein relate to Sections of the Credit Agreement.

1.	  	Total Adjusted Net Indebtedness : (i) - (ii) =	  	$  [          ,          ,          ]	
				
	  	(i)	  	Total Indebtedness:	  		
				
	  		  	The total consolidated Indebtedness of the Parent and the Restricted Subsidiaries 19	  	$  [          ,          ,          ]	
				
	  	(ii)	  	[The designated portion of the][The] aggregate amount of Unrestricted cash and Permitted Investments of the Loan Parties as of the last day of the period specified above that is subject to a Control Agreement 20	  	$  [          ,          ,          ]	
			
2.	  	Adjusted EBITDA : 21 (i) + (ii) + (iii) - (iv) – (v) =	  	$  [          ,          ,          ]	
				
	  	(i)	  	Net Income	  	$  [          ,          ,          ]	
				
	  	(ii)	  	to the extent deducted in the determination of Net Income:	  	$  [          ,          ,          ]	
				
	  		  	(a) all federal, state and other income taxes (including state franchise taxes based upon income) of the Parent and the Restricted Subsidiaries paid or accrued according to GAAP	  	$  [          ,          ,          ]	
					
	  		  	(b)	  	Interest Expense: (I) + (II) + (III)	  	$  [          ,          ,          ]	
						
	  		  		  	(I)	  	All interest, prepayment charges and fees incurred (whether paid or accrued) in respect of any Indebtedness of the Parent and the Restricted Subsidiaries (including imputed interest in respect of Capital Lease Obligations of the Parent and the Restricted	  		

19  	To be determined in accordance with GAAP as of such date, without giving effect to (a) any election to value any Indebtedness at “fair value”, as described in Section 1.02(f), (b) Indebtedness of the type referred to in clause (h) of the definition of “Indebtedness” or (c) Indebtedness incurred in reliance on clause (b) of the definition of “Permitted Debt”.	
20	For any date on or prior to December 31, 2015, not to exceed $25,000,000.	
21  	For purposes of calculating EBITDA for any period to determine the Total Adjusted Net Leverage Ratio, if during such period the Parent, the Borrower or any other Restricted Subsidiary shall have consummated a Specified Transaction, EBITDA for such period shall be calculated after giving pro forma effect thereto in accordance with Section 1.02(j).	

F-5

											
						
	  		  		  		  	Subsidiaries, net payments received or made under interest rate hedge agreements of the Parent and the Restricted Subsidiaries and all fees, commissions and discounts owed by the Parent and the Restricted Subsidiaries with respect to letters of credit and bankers’ acceptance financing) deducted in determining Net Income, together with all interest capitalized or deferred of the Parent and the Restricted Subsidiaries and not deducted in determining Net Income	  	$  [          ,          ,          ]	
						
	  		  		  	(II)	  	All debt discount and expense amortized or required to be amortized in the determination of Net Income	  	$  [          ,          ,          ]	
						
	  		  		  	(III)	  	Dividends in respect of Preferred Stock of the Parent and the Restricted Subsidiaries paid	  	$  [          ,          ,          ]	
				
	  		  	(c) depreciation and amortization of the Parent and the Restricted Subsidiaries determined in accordance with GAAP	  	$  [          ,          ,          ]	
				
	  		  	(d) non-cash charges (excluding write-downs of current assets)	  	$  [          ,          ,          ]	
				
	  		  	(e) unusual, extraordinary or non-recurring expenses or losses	  	$  [          ,          ,          ]	
				
	  		  	(f) fees, costs and expenses incurred in connection with the Transactions	  	$  [          ,          ,          ]	
				
	  		  	(g) fees, costs and expenses incurred in connection with the structuring, negotiation, documentation and consummation of Permitted Acquisitions, permitted issuances of Equity Interests, permitted Investments, permitted Restricted Payments and permitted incurrences of Indebtedness, in each case, whether or not consummated	  	$  [          ,          ,          ]	
				
	  		  	(h) fees, costs or expenses incurred in connection with the redemption or retirement of any Indebtedness (including prepayment premiums and make whole amounts, but excluding the payment of accrued interest and fees thereon)	  	$  [          ,          ,          ]	
 
F-6

											
					
	  		  		  	(i)   charges, losses and expenses for such period to the extent (I) paid for or reimbursed by any Person (other than an Affiliate of the Parent or any Subsidiary) or (II) reasonably expected to be paid for or reimbursed by any such Person during the period of four consecutive Fiscal Quarters of the Parent immediately following the period described above 22	  	$  [          ,          ,           ]	
					
	  		  		  	(j)   restructuring charges incurred during such period 23	  	$  [          ,          ,          ]	
					
	  		  	(iii)	  	Crude Topping Unit EBITDA Adjustment:	  	$  [          ,          ,          ]	
					
	  		  	(iv)	  	Without duplication:	  	$  [          ,          ,          ]	
					
	  		  		  	(a) all cash payments made on account of non-cash charges added back in computing EBITDA pursuant to (ii)(d) above	  	$  [          ,          ,          ]	
					
	  		  		  	(b) to the extent including in the determination of Net Income for such period, any unusual, extraordinary or non-recurring gains and all non-cash items of income (including non-cash gains)	  	$  [          ,          ,          ]	
					
	  		  	(v)	  	Interest Expense in respect of the IKE Bonds	  	$  [          ,          ,          ]	
			
3.	  	Total Adjusted Net Leverage Ratio (1. / 2.)	  	[          ]:1.00	

22  	If any charges, losses or expenses are added back in computing EBITDA pursuant to clause (ii)(i)(II) for any period and such charges, losses or expenses are not paid for or reimbursed by any Person (other than an Affiliate of the Parent or any Subsidiary) during the period of four consecutive Fiscal Quarters of the Parent immediately following such period, then such charges, losses or expenses shall be subtracted in computing EBITDA for the Fiscal Quarter of the Parent immediately following such period of four consecutive Fiscal Quarters of the Parent.	
23	Subject to the Aggregate Cap.	

F-7

Annex 3 – Available Amount
The information described herein is as of                     , 20        , and pertains to the period from                     , 20         to                     , 20        . Section references herein relate to Sections of the Credit Agreement.

			
	  	Available Amount : (i) + [(ii) – (iii) – (iv)] =	  		
					
	  		  	(i)	  	$75,000,000	  	$  [          ,          ,          ]	
					
	  		  	(ii)	  	Available Equity Amount (a) + (b)	  	$             75,000,000	
					
	  		  		  	The aggregate amount received by the Parent and contributed to the Borrower subsequent to the Closing Date constituting either:	  	$  [          ,          ,          ]	
					
	  		  		  	(a) Cash equity contributions (in the form of common equity) made to the Parent by any Person other than the Borrower or any other Restricted Subsidiary (other than Specified Equity Contributions)	  	$  [          ,          ,          ]	
					
	  		  		  	(b) Net Issuance Proceeds from any sale or issuance of common Equity Interests in the Parent (other than Specified Equity Contributions)	  	$  [          ,          ,          ]	
					
	  		  	(iii)	  	The aggregate amount of Investments made pursuant to Section 6.07(m) subsequent to the Closing Date as of such time	  	$  [          ,          ,          ]	
					
	  		  	(iv)	  	Available Amount Expenditures	  	$  [          ,          ,          ]	
					
	  		  		  	(a) Restricted Payments made pursuant to Section 6.03(a)(iii)	  	$  [          ,          ,          ]	
					
	  		  		  	(b) payments of or in respect of Indebtedness pursuant to Section 6.03(b)(v)	  	$  [          ,          ,          ]	
					
	  		  		  	(c) Investments made pursuant to Section 6.07(n)	  	$  [          ,          ,          ]	

F-8

Exhibit G-1
to Credit Agreement
FORM OF
U.S. TAX COMPLIANCE CERTIFICATE
(For Foreign Lenders That Are Not Partnerships For U.S. Federal Income Tax Purposes)
Date:                     , 20        
Morgan Stanley Senior Funding, Inc.,
as Administrative Agent
1 New York Plaza
New York, NY 10004
Attention: Morgan Stanley Agency Servicing
 
 	Re:	HFOTCO LLC – Certificate of Non-U.S. Lender	
Ladies and Gentlemen:
Reference is made to the Credit Agreement, dated as of August 19, 2014 (as amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “ Credit Agreement ”), by and among Buffalo Gulf Coast Terminals LLC, a Delaware limited liability company (the “ Parent ”), HFOTCO LLC, a Texas limited liability company (the “ Borrower ”) the Lenders party thereto from time to time, Morgan Stanley Senior Funding, Inc., as Administrative Agent, and Bank of America, N.A., as Collateral Agent. Capitalized terms used but not otherwise defined in this certificate (this “ Certificate ”) shall have the meanings assigned to such terms in the Credit Agreement.
Pursuant to the provisions of Section  2.16 of the Credit Agreement, the undersigned hereby certifies that (i) it is the sole record and beneficial owner of the Loan(s) (as well as any Note(s) evidencing such Loan(s)) in respect of which it is providing this certificate, (ii) it is not a bank within the meaning of Section 881(c)(3)(A) of the Code, (iii) it is not a ten percent shareholder of the Borrower within the meaning of Section 871(h)(3)(B) of the Code and (iv) it is not a controlled foreign corporation related to the Borrower as described in Section 881(c)(3)(C) of the Code.
The undersigned has furnished the Administrative Agent and the Borrower with a certificate of its non-U.S. Person status on IRS Form W- 8BEN or IRS Form W-8BEN-E. By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall promptly so inform the Borrower and the Administrative Agent, and (2) the undersigned shall have at all times furnished the Borrower and the Administrative Agent with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments.
Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement.
 
G-1-1

*    *    *
IN WITNESS WHEREOF, the undersigned has duly executed and delivered this Certificate as of the date first above written.

[NAME OF LENDER]	
		
By:	 	 	
Name:	 		
Title:	 		
 
G-1-2

Exhibit G-2
to Credit Agreement
FORM OF
U.S. TAX COMPLIANCE CERTIFICATE
(For Foreign Participants That Are Not Partnerships For U.S. Federal Income Tax Purposes)
Date:                     , 20        
Morgan Stanley Senior Funding, Inc.,
as Administrative Agent
1 New York Plaza
New York, NY 10004
Attention: Morgan Stanley Agency Servicing
 
 	Re:	HFOTCO LLC – Certificate of Non-U.S. Participant	
Ladies and Gentlemen:
Reference is made to the Credit Agreement, dated as of August 19, 2014 (as amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “ Credit Agreement ”), by and among Buffalo Gulf Coast Terminals LLC, a Delaware limited liability company (the “ Parent ”), HFOTCO LLC, a Texas limited liability company (the “ Borrower ”) the Lenders party thereto from time to time, Morgan Stanley Senior Funding, Inc., as Administrative Agent, and Bank of America, N.A., as Collateral Agent. Capitalized terms used but not otherwise defined in this certificate (this “ Certificate ”) shall have the meanings assigned to such terms in the Credit Agreement.
Pursuant to the provisions of Section  2.16 of the Credit Agreement, the undersigned hereby certifies that (i) it is the sole record and beneficial owner of the participation in respect of which it is providing this certificate, (ii) it is not a bank within the meaning of Section 881(c)(3)(A) of the Code, (iii) it is not a ten percent shareholder of the Borrower within the meaning of Section 871(h)(3)(B) of the Code, and (iv) it is not a controlled foreign corporation related to the Borrower as described in Section 881(c)(3)(C) of the Code].
The undersigned has furnished its participating Lender with a certificate of its non-U.S. Person status on IRS Form W-8BEN or IRS Form W-8BEN-E. By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall promptly so inform such Lender in writing, and (2) the undersigned shall have at all times furnished such Lender with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments.
Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement.
*    *    *
 
G-2-1

IN WITNESS WHEREOF, the undersigned has duly executed and delivered this Certificate as of the date first above written.

[NAME OF PARTICIPANT]	
		
By:	 	 	
Name:	 		
Title:	 		
 
G-2-2

Exhibit G-3
to Credit Agreement
FORM OF
U.S. TAX COMPLIANCE CERTIFICATE
(For Foreign Participants That Are Partnerships For U.S. Federal Income Tax Purposes)
Date:                     , 20        
Morgan Stanley Senior Funding, Inc.,
as Administrative Agent
1 New York Plaza
New York, NY 10004
Attention: Morgan Stanley Agency Servicing
 
 	Re:	HFOTCO LLC – Certificate of Non-U.S. Participant	
Ladies and Gentlemen:
Reference is made to the Credit Agreement, dated as of August 19, 2014 (as amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “ Credit Agreement ”), by and among Buffalo Gulf Coast Terminals LLC, a Delaware limited liability company (the “ Parent ”), HFOTCO LLC, a Texas limited liability company (the “ Borrower ”) the Lenders party thereto from time to time, Morgan Stanley Senior Funding, Inc., as Administrative Agent, and Bank of America, N.A., as Collateral Agent. Capitalized terms used but not otherwise defined in this certificate (this “ Certificate ”) shall have the meanings assigned to such terms in the Credit Agreement.
Pursuant to the provisions of Section  2.16 of the Credit Agreement, the undersigned hereby certifies that (i) it is the sole record owner of the participation in respect of which it is providing this certificate, (ii) its direct or indirect partners/members are the sole beneficial owners of such participation, (iii) with respect such participation, neither the undersigned nor any of its direct or indirect partners/members is a bank extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business within the meaning of Section 881(c)(3)(A) of the Code, (iv) none of its direct or indirect partners/members is a ten percent shareholder of the Borrower within the meaning of Section 871(h)(3)(B) of the Code and (v) none of its direct or indirect partners/members is a controlled foreign corporation related to the Borrower as described in Section 881(c)(3)(C) of the Code.
The undersigned has furnished its participating Lender with IRS Form W-8IMY accompanied by one of the following forms from each of its partners/members that is claiming the portfolio interest exemption: (i) an IRS Form W-8BEN, IRS Form W-8BEN-E or (ii) an IRS Form W-8IMY accompanied by an IRS Form W-8BEN from each of such partner’s/member’s beneficial owners that is claiming the portfolio interest exemption. By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall promptly so inform such Lender and (2) the undersigned shall have at all times furnished such Lender with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments.
 
G-3-1

Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement.
*    *    *
IN WITNESS WHEREOF, the undersigned has duly executed and delivered this Certificate as of the date first above written.

[NAME OF PARTICIPANT]	
		
By:	 	 	
Name:	 		
Title:	 		
 
G-3-2

Exhibit G-4
to Credit Agreement
FORM OF
U.S. TAX COMPLIANCE CERTIFICATE
(For Foreign Lenders That Are Partnerships For U.S. Federal Income Tax Purposes)
Date:                     , 20        
Morgan Stanley Senior Funding, Inc.,
as Administrative Agent
1 New York Plaza
New York, NY 10004
Attention: Morgan Stanley Agency Servicing
 
 	Re:	HFOTCO LLC – Certificate of Non-U.S. Lender	
Ladies and Gentlemen:
Reference is made to the Credit Agreement, dated as of August 19, 2014 (as amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “ Credit Agreement ”), by and among Buffalo Gulf Coast Terminals LLC, a Delaware limited liability company (the “ Parent ”), HFOTCO LLC, a Texas limited liability company (the “ Borrower ”) the Lenders party thereto from time to time, Morgan Stanley Senior Funding, Inc., as Administrative Agent, and Bank of America, N.A., as Collateral Agent. Capitalized terms used but not otherwise defined in this certificate (this “ Certificate ”) shall have the meanings assigned to such terms in the Credit Agreement.
Pursuant to the provisions of Section  2.16 of the Credit Agreement, the undersigned hereby certifies that (i) it is the sole record owner of the Loan(s) (as well as any Note(s) evidencing such Loan(s)) in respect of which it is providing this certificate, (ii) its direct or indirect partners/members are the sole beneficial owners of such Loan(s) (as well as any Note(s) evidencing such Loan(s)), (iii) with respect to the extension of credit pursuant to this Credit Agreement or any other Loan Document, neither the undersigned nor any of its direct or indirect partners/members is a bank extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business within the meaning of Section 881(c)(3)(A) of the Code, (iv) none of its direct or indirect partners/members is a ten percent shareholder of the Borrower within the meaning of Section 871(h)(3)(B) of the Code and (v) none of its direct or indirect partners/members is a controlled foreign corporation related to the Borrower as described in Section 881(c)(3)(C) of the Code.
The undersigned has furnished the Administrative Agent and the Borrower with IRS Form W-8IMY accompanied by one of the following forms from each of its partners/members that is claiming the portfolio interest exemption: (i) an IRS Form W-8BEN, IRS Form W-8BEN-E or (ii) an IRS Form W-8IMY accompanied by an IRS Form W-8BEN or W-8BEN-E from each of such partner’s/member’s beneficial owners that is claiming the portfolio interest exemption. By executing this certificate, the undersigned agrees that (1) if the information provided on this
 
G-4-1

certificate changes, the undersigned shall promptly so inform the Borrower and the Administrative Agent, and (2) the undersigned shall have at all times furnished the Borrower and the Administrative Agent with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments.
Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement.
*    *    *
IN WITNESS WHEREOF, the undersigned has duly executed and delivered this Certificate as of the date first above written.

[NAME OF LENDER]	
		
By:	 	 	
Name:	 		
Title:	 		
 
G-4-2

Exhibit H-l
to Credit Agreement
FORM OF CLOSING DATE CERTIFICATE
This Closing Date Certificate, dated as of [                ], 2014 (this “ Certificate ”), is delivered pursuant to Section  4.01(b) of the Credit Agreement, dated as of August 19, 2014 (as amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “ Credit Agreement ”), by and among Buffalo Gulf Coast Terminals LLC, a Delaware limited liability company (the “ Parent ”), HFOTCO LLC, a Texas limited liability company (the “ Borrower ”), the Lenders party thereto from time to time, Morgan Stanley Senior Funding, Inc., as Administrative Agent, and Bank of America, N.A., as Collateral Agent. Each capitalized term used but not otherwise defined in this Certificate shall have the meaning assigned to such term in the Credit Agreement.
Each of the undersigned hereby certifies, on behalf of the Parent or the Borrower, as applicable, in his or her capacity as a duly elected, qualified and acting Responsible Officer of the Parent or the Borrower, as applicable, and not in such Responsible Officer’s individual capacity, as follows:
1. I am a duly elected, qualified and acting Responsible Officer of the Parent or the Borrower, as applicable, having the title set forth next to my signature below, and, as such, I am authorized to execute and deliver this Certificate on behalf of the Parent or the Borrower, as applicable.
2. I have reviewed the terms of Articles III and IV of the Credit Agreement and the definitions and provisions contained in the Credit Agreement relating thereto, and in my opinion I have made, or have caused to be made under my supervision, such examination or investigation as is necessary to enable me to express an informed opinion as to the matters referred to herein.
3. The conditions precedent set forth in Section  4.01(e) of the Credit Agreement have been satisfied as of the date hereof.
4. The representations and warranties set forth in Article III of the Credit Agreement and the other Loan Documents are true and correct (i) in the case of the representations and warranties qualified or modified as to materiality in the text thereof, in all respects and (ii) otherwise, in all material respects, in each case as of the date hereof, except in the case of any such representation and warranty that expressly relates to an earlier date, in which case such representation and warranty shall be so true and correct on and as of such earlier date.
5. At the time of and immediately after the date hereof, no Default or Event of Default shall have occurred and be continuing.
 
H-1-1

IN WITNESS WHEREOF, the undersigned Responsible Officers have executed and delivered this Certificate on behalf of the Parent or the Borrower, as applicable, and have made the certifications and statements contained herein, as of the date first above written.

BUFFALO GULF COAST TERMINALS LLC	
		
By:	 	 	
Name:	 		
Title:	 		
	
HFOTCO LLC	
		
By:	 	 	
Name:	 		
Title:	 		
 
H-1-2

Exhibit H-2
to Credit Agreement
FORM OF SOLVENCY CERTIFICATE
This Solvency Certificate, dated as of [                ], 2014 (this “ Solvency Certificate ”), is delivered pursuant to Section  4.01(b) of the Credit Agreement, dated as of August 19, 2014 (as amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “ Credit Agreement ”), by and among Buffalo Gulf Coast Terminals LLC, a Delaware limited liability company (the “ Parent ”), HFOTCO LLC, a Texas limited liability company (the “ Borrower ”), the Lenders party thereto from time to time, Morgan Stanley Senior Funding, Inc., as Administrative Agent, and Bank of America, N.A., as Collateral Agent. Each capitalized term used but not otherwise defined in this Certificate shall have the meaning assigned to such term in the Credit Agreement.
It is understood that the Administrative Agent and the other Secured Parties are relying on the truth and accuracy of this Solvency Certificate in connection with the Transactions.
Each of the undersigned hereby certifies, on behalf of the Parent or the Borrower, as applicable, in his or her capacity as a duly elected, qualified and acting Responsible Officer of the Parent or the Borrower, as applicable, and not in such Responsible Officer’s individual capacity, as follows:
1. I am a duly elected, qualified and acting Responsible Officer of the Parent or the Borrower, as applicable, having the title set forth next to my signature below, and, as such, I am authorized to execute and deliver this Certificate on behalf of the Parent or the Borrower, as applicable.
2. I am generally familiar with the properties, businesses and assets of the Loan Parties and have reviewed the provisions of the Credit Agreement and the other Loan Documents that are relevant to the furnishing of this Solvency Certificate and the contents of this Solvency Certificate, and in my opinion I have made, or caused to be made under my supervision, such examination or investigation as is necessary to enable me to express an informed opinion as to the matters referred to in this Solvency Certificate. The financial information and assumptions that underlie and form the basis for the representations made in this Solvency Certificate were reasonable when made and were made in good faith and continue to be reasonable as of the date hereof.
3. On the date hereof, immediately after giving effect to the Transactions, the fair value of the aggregate assets of the Loan Parties, at a fair valuation, exceeds the debts and liabilities, direct, subordinated, contingent or otherwise, of the Loan Parties.
4. On the date hereof, immediately after giving effect to the Transactions, the present fair value of the property of the Loan Parties is greater than the amount that will be required to pay the probable liabilities of the Loan Parties on their debts and other liabilities, direct, subordinated, contingent or otherwise, as such debts and other liabilities become absolute and matured. I have assumed that in this context “ present fair value ” means the price available upon the sale of such assets by a willing seller to a willing buyer, where material information as to the asset and the market for such asset is known to both, and where the sale is executed with commercially reasonable promptness.
 
H-2-1

5. On the date hereof, immediately after giving effect to the Transactions, the Loan Parties are able to pay their debts and other liabilities, direct, subordinated, contingent or otherwise, as such debts and other liabilities become absolute and matured (after giving effect to any guarantees and credit support).
6. On the date hereof, immediately after giving effect to the Transactions, the Loan Parties do not have unreasonably small capital with which to conduct the businesses in which they are engaged as such businesses are now conducted and are proposed to be conducted following the date hereof (after giving effect to any guarantees and credit support). I have assumed for purposes of reaching this conclusion that “ unreasonably small capital ” depends upon the nature of the particular business or businesses conducted or to be conducted, and I have reached my conclusion based on the needs and anticipated needs for capital of the businesses conducted or anticipated to be conducted by the Loan Parties in light of the projections made on the date hereof and available credit capacity (as the same may be restricted by the terms and conditions of the Loan Documents).
7. In making the certifications set forth herein, I have considered, among other things, the Base Case Projections delivered pursuant to the Credit Agreement.
*     *    *
IN WITNESS WHEREOF, the undersigned Responsible Officers have executed and delivered this Solvency Certificate on behalf of the Parent or the Borrower, as applicable, and have made the certifications and statements contained herein, as of the date first above written.

BUFFALO GULF COAST TERMINALS LLC	
		
By:	 	 	
Name:	 		
Title:	 		
	
HFOTCO LLC	
		
By:	 	 	
Name:	 		
Title:	 		
 
H-2-2

Exhibit I
to Credit Agreement
FORM OF INSURANCE BROKER’S CERTIFICATE
[ Insert Insurance Broker’s Letterhead ]
[•], 2014
Morgan Stanley Senior Funding, Inc.,
as Administrative Agent
1 New York Plaza
New York, NY 10004
Attention: Morgan Stanley Agency Servicing
Bank of America, N.A.,
as Collateral Agent
One Bryant Park
New York, NY 10036
Attention:
 
 	Re:	HFOTCO LLC	
Ladies and Gentlemen:
The undersigned, a duly authorized officer of [•] (the “ Insurance Broker ”), hereby provides this letter (this “ Insurance Broker’s Certificate ”) to you in accordance with Section  4.01(h) of the Credit Agreement, dated as of August 19, 2014 (as amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “ Credit Agreement ”), by and among Buffalo Gulf Coast Terminals LLC, a Delaware limited liability company (the “ Parent ”), HFOTCO LLC, a Texas limited liability company (the “ Borrower ”), the Lenders party thereto from time to time, Morgan Stanley Senior Funding, Inc., as Administrative Agent, and Bank of America, N.A., as Collateral Agent. Each capitalized term used by not otherwise defined in this Insurance Broker’s Certificate shall have the meaning assigned to such term (whether directly or by reference to another agreement or document) in the Credit Agreement.
I, on behalf of the Insurance Broker, do hereby certify to the Administrative Agent as of the date hereof that:
 
 	1.	Attached hereto as Appendix A are certificates of insurance and/or certified copies of the insurance policies of the Borrower and its Subsidiaries.	
 
 	2.	Attached hereto as Appendix B is an accurate and complete list of the Loan Parties’ insurance coverages which have been obtained to date in connection with the properties and businesses of the Loan Parties. Such insurance coverages are in full force and effect as of the date hereof, and all premiums due and payable on or prior to the date hereof have been paid in full by the Loan Parties.	
 
I-1

 	3.	In our view, the Loan Parties’ insurance coverages (as represented by the certificates or policies provided as Appendix A ) meet or exceed the insurance requirements specified in Section  5.13 of the Credit Agreement.	
The Insurance Broker acknowledges that, pursuant to the Credit Agreement, the Lender Parties are providing financing to the Borrower, and in so doing are relying on this Insurance Broker’s Certificate with respect to the insurance policies of the Loan Parties and their respective properties and businesses.
*    *    *
IN WITNESS WHEREOF, the Insurance Broker has caused this Insurance Broker’s Certificate to be duly executed and delivered by an authorized officer of the Insurance Broker as of the date first written above.

[•]	 		
		
By:	 	 	
Name:	 		
Title:	 		
 
I-2

Appendix A
to Insurance Broker’s Certificate
[ Attach certificates of insurance and/or certified copies of the insurance policies ]
 
I-3

Appendix B
to Insurance Broker’s Certificate
[ Attach list of insurance coverages ]
 
I-4

Exhibit J
to Credit Agreement
FORM OF PREPAYMENT NOTICE
Date:                     , 201     24
Morgan Stanley Senior Funding, Inc.,
as Administrative Agent
1 New York Plaza
New York, NY 10004
Attention: Morgan Stanley Agency Servicing
 
 	Re:	HFOTCO LLC – Prepayment Notice	
Ladies and Gentlemen:
Reference is made to the Credit Agreement, dated as of August 19, 2014 (as amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “ Credit Agreement ”), by and among Buffalo Gulf Coast Terminals LLC, a Delaware limited liability company (the “ Parent ”), HFOTCO LLC, a Texas limited liability company (the “ Borrower ”), the Lenders from time to time party thereto, Morgan Stanley Senior Funding, Inc., as Administrative Agent, and Bank of America, N.A., as Collateral Agent. Each capitalized term used but not otherwise defined herein shall have the meaning assigned to such term in the Credit Agreement.
This Prepayment Notice is delivered to you pursuant to Section  2.10(e) of the Credit Agreement. The Borrower hereby gives notice of a prepayment of Loans as follows:
1. Select Type(s) of Borrowing:
 
 	☐	ABR Borrowing in an aggregate principal amount of $                    .	
 
 	☐	Eurodollar Borrowing with an Interest Period ending                     , 201    in the aggregate principal amount of $                    .	
 
 	2.	On                , 201     (a Business Day).	
[3. Attached hereto as Appendix A is a calculation of the amount of the prepayment contemplated hereby] 25

24  	To be delivered not later than 12:00 noon, New York City time, (a) in the case of an ABR Borrowing, one Business Day before the date of the proposed prepayment, (b) in the case of a Eurodollar Borrowing, three Business Days before the date of the proposed prepayment and (c) in the case of a Swingline Borrowing, on the date of the proposed prepayment.	
25	This information is only required for a mandatory prepayment.	
 
J-1

This Prepayment Notice and prepayment contemplated hereby comply with the Credit Agreement (including Sections 2.08 and 2.09 thereof).
*    *    *

HFOTCO LLC	
		
By:	 	 	
Name:	 		
Title:	 		
 
J-2

Exhibit K
to Credit Agreement
[FORM OF]
SECOND LIEN INTERCREDITOR AGREEMENT
Dated as of [     ], 20[     ]
among
BUFFALO GULF COAST TERMINALS LLC,
HFOTCO LLC,
THE OTHER GRANTORS PARTY HERETO,
BANK OF AMERICA, N.A.,
as the Collateral Agent for the First Lien Secured Parties and
as the First Lien Authorized Representative for the Bond Facility Secured Parties
MORGAN STANLEY SENIOR FUNDING, INC.,
as the First Lien Authorized Representative for the Credit Facilities Secured Parties
[    ],
as the Second Lien Authorized Representative for the Initial Second Lien Secured Parties
and
THE OTHER AUTHORIZED REPRESENTATIVES PARTY HERETO
 
K-1

SECOND LIEN INTERCREDITOR AGREEMENT dated as of [ ], 20[ ] (as it may be amended, restated, amended and restated, supplemented or otherwise modified from time to time, this “ Agreement ”), is by and among BUFFALO GULF COAST TERMINALS LLC, a Delaware limited liability company (the “ Parent ”), HFOTCO LLC, a Texas limited liability company (the “ Borrower ”), the other Grantors party hereto, BANK OF AMERICA, N.A., in its capacity as collateral agent for the First Lien Secured Parties (in such capacity, together with its successors and permitted assigns in such capacity, the “ First Lien Collateral Agent ”), and as First Lien Authorized Representative for the Bond Facility Secured Parties (in such capacity, together with its successors and permitted assigns in such capacity, the “ Bond Facility Administrative Agent ”), MORGAN STANLEY SENIOR FUNDING, INC., in its capacity as First Lien Authorized Representative for the Credit Facilities Secured Parties (in such capacity, together with its successors and permitted assigns in such capacity, the “ Credit Facilities Administrative Agent ”) and [INSERT NAME AND CAPACITY], as Second Lien Authorized Representative for the Initial Second Lien Secured Parties (in such capacity, together with its successors and permitted assigns in such capacity, the “ Initial Second Lien Authorized Representative ”) and each additional Authorized Representative that from time to time becomes a party hereto in accordance with Section 8.10.
In consideration of the premises and the agreements, provisions and covenants herein contained, and for other good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, the Grantors, the First Lien Collateral Agent, the Bond Facility Administrative Agent (for itself and on behalf of the Bond Facility Secured Parties), the Credit Facilities Administrative Agent (for itself and on behalf of the Credit Facilities Secured Parties, the Initial Second Lien Authorized Representative (for itself and on behalf of the Initial Second Lien Secured Parties), each additional First Lien Authorized Representative (for itself and on behalf of the Additional First Lien Secured Parties of the applicable Series) and each additional Second Lien Authorized Representative (for itself and on behalf of the Second Lien Secured Parties of the applicable Series) agree as follows:
1.
DEFINITIONS
(a) Certain Defined Terms .
(i) Other than the terms set forth in Section  1.01(b) , each capitalized term used and not otherwise defined herein (including the preamble, recitals, exhibits and schedules hereof) shall have the meaning assigned to such term (whether directly or by reference to another agreement or document) in the Bond Facility Agreement or the Credit Facilities Agreement, as applicable, or, if defined in the UCC, the meaning assigned to such term therein.
(ii) In addition to the terms defined in the Bond Facility Agreement, the Credit Facilities Agreement, the preamble and the recitals, as applicable, the following terms shall have the following respective meanings:
“ Additional First Lien Documents ” shall have the meaning assigned to such term in the First Lien Security Agreement.
 
K-2

“ Additional First Lien Obligations ” shall have the meaning assigned to such term in the First Lien Security Agreement.
“ Additional First Lien Secured Parties ” shall have the meaning assigned to such term in the First Lien Security Agreement.
“ Additional Second Lien Documents ” shall mean, with respect to any Series of Additional Second Lien Obligations, the notes, indentures, security documents and other operative agreements evidencing or governing such Additional Second Lien Obligations, including each agreement entered into for the purpose of securing such Additional Second Lien Obligations; provided that, in each case, such Additional Second Lien Obligations have been designated as Additional Second Lien Obligations pursuant to and in accordance with Section 8.10(b).
“ Additional Second Lien Obligations ” shall mean, with respect to any Series of Additional Second Lien Documents, the Second Lien Obligations with respect to such Series of Additional Second Lien Documents that have been designated as Additional Second Lien Obligations pursuant to and in accordance with Section 8.10(b).
“ Additional Second Lien Secured Parties ” shall mean, with respect to any Series of Additional Second Lien Obligations, the holders of such Additional Second Lien Obligations and any Second Lien Authorized Representative with respect thereto.
“ Agreement ” shall have the meaning assigned to such term in the preamble.
“ Applicable First Lien Secured Parties ” shall mean, at any time, the Secured Parties entitled to direct the Collateral Agent at such time pursuant to the First Lien Intercreditor Agreement.
“ Applicable Second Lien Secured Parties ” shall mean, at any time, Second Lien Secured Parties owed, having or holding Second Lien Obligations representing more than 50% of the Second Lien Obligations at such time.
“ Authorized Representatives ” shall mean the First Lien Authorized Representatives and the Second Lien Authorized Representatives.
“ Bankruptcy Case ” shall mean a case under the Bankruptcy Code.
“ Bankruptcy Code ” shall mean Title 11 of the United States Code, as amended.
“ Bankruptcy Law ” shall mean the Bankruptcy Code and any similar Federal, state or foreign law for the relief of debtors.
“ Bond Facility Administrative Agent ” shall have the meaning assigned to such term in the recitals.
“ Bond Facility Secured Parties ” shall have the meaning assigned to such term in the First Lien Security Agreement.
 
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“ Business Day ” shall mean any day that is not a Saturday, Sunday or other day on which commercial banks in New York City are authorized or required by law to remain closed.
“ Collateral ” shall mean the First Lien Collateral and the Second Lien Collateral.
“ Control ” shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ability to exercise voting power, by contract or otherwise. “ Controlling ” and “ Controlled ” have meanings correlative thereto.
“ Credit Facilities Administrative Agent ” shall have the meaning assigned to such term in the preamble.
“ Credit Facilities Secured Parties ” shall have the meaning assigned to such term in the First Lien Security Agreement.
“ Debtor Relief Law ” shall mean any applicable liquidation, conservatorship, bankruptcy, insolvency, rearrangement, moratorium, reorganization or similar debtor relief laws affecting the rights, remedies, powers, privileges or benefits of creditors generally from time to time in effect.
“ Designated Second Lien Authorized Representative ” shall mean (a) the Initial Second Lien Authorized Representative, until such time as the Initial Second Lien Obligations cease to be the only Series of Second Lien Obligations hereunder, and (b) thereafter, the Second Lien Authorized Representative designated from time to time by the Applicable Second Lien Secured Parties, in a notice to the First Lien Collateral Agent, the Parent and the Borrower, as the “Designated Second Lien Authorized Representative” for purposes hereof.
“ Discharge ” shall mean, with respect to any Series of Secured Obligations, the date on which all principal, premium, if any, interest, fees and other amounts due or outstanding under the First Lien Documents or Second Lien Documents, as the case may be, evidencing or governing such Series of Secured Obligations has been paid in full (or, in the case of the Bond Facility Documents Obligations, the Bonds have been repurchased in full by the Parent, the Borrower or an Affiliate thereof) and all commitments thereunder have terminated and all guarantees guaranteeing and all Liens securing such Series of Secured Obligations have been discharged and released. The term “ Discharged ” shall have a corresponding meaning.
“ First Lien Authorized Representative ” shall mean each “Authorized Representative” under and as defined in the First Lien Intercreditor Agreement.
“ First Lien Authorized Representative Joinder Agreement ” shall mean an “Authorized Representative Joinder Agreement” under and as defined in the First Lien Intercreditor Agreement.
“ First Lien Collateral ” shall mean all assets and properties that are (or are required by any First Lien Document to be) subject to Liens created pursuant to any First Lien Security Document to secure one or more Series of First Lien Obligations.
 
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“ First Lien Collateral Agent ” shall have the meaning assigned to such term in the preamble.
“ First Lien Documents ” shall have the meaning assigned to such term in the First Lien Security Agreement.
“ First Lien Event of Default ” shall mean an “Event of Default” under and as defined in any First Lien Document.
“ First Lien Intercreditor Agreement ” shall mean the Intercreditor Agreement, dated as of August 19, 2014, among the Parent, the Borrower, the other Loan Parties party thereto, the First Lien Collateral Agent, the Bond Facility Administrative Agent, the Credit Facilities Administrative Agent and each additional First Lien Authorized Representative from time to time party thereto.
“ First Lien Obligations ” shall have the meaning assigned to such term in the First Lien Intercreditor Agreement.
“ First Lien Secured Parties ” shall have the meaning assigned to such term in the First Lien Intercreditor Agreement.
“ First Lien Security Agreement ” shall mean the Pledge and Security Agreement, dated as of August 19, 2014, among the Parent, the Borrower, the other Grantors party thereto and the First Lien Collateral Agent.
“ First Lien Security Documents ” shall have the meaning assigned to such term in the First Lien Intercreditor Agreement.
“ Grantor Joinder Agreement ” shall mean a written instrument substantially in the form of Exhibit B .
“ Grantors ” shall mean the Parent, the Borrower and each other Subsidiary or direct or indirect parent company of the Parent which has granted a security interest pursuant to any Security Document to secure any Series of Secured Obligations.
“ Initial Second Lien Documents ” shall mean the [[Indenture] dated as of [ ], 20[ ], by and among [ ]], and the notes, security documents and other operative agreements evidencing or governing the Initial Second Lien Obligations, including each agreement entered into for the purpose of securing the Initial Second Lien Obligations.
“ Initial Second Lien Obligations ” shall mean the Second Lien Obligations with respect to the Initial Second Lien Documents.
“ Initial Second Lien Secured Parties ” shall mean the holders of the Initial Second Lien Obligations and the Initial Second Lien Authorized Representative.
“ Initial Second Lien Authorized Representative ” shall have the meaning assigned to such term in the preamble.
 
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“ Insolvency or Liquidation Proceeding ” shall mean:
(1) any voluntary or involuntary case or proceeding under the Bankruptcy Code or any other Bankruptcy Law with respect to any Grantor;
(2) any proceeding for the reorganization of any Grantor, any receivership or any other similar case or proceeding with respect to any Grantor or a material portion of its property, in each case whether voluntary or involuntary;
(3) any liquidation, dissolution or winding up of or relating to any Grantor, in each case whether voluntary or involuntary and whether or not involving insolvency or bankruptcy; or
(4) any assignment for the benefit of creditors or marshaling of assets or liabilities relating to any Grantor.
“ Loan Parties ” shall mean the Parent, the Borrower and each other Subsidiary or direct or indirect parent company of the Parent which has (a) granted a security interest pursuant to any Security Document to secure any Series of Secured Obligations or (b) guaranteed any Series of Secured Obligations pursuant to any First Lien Document or Second Lien Document, as the case may be.
“ New Second Lien Authorized Representative ” shall have the meaning assigned to such term in Section 8.10(b)(ii).
“ New Second Lien Documents ” shall have the meaning assigned to such term in Section 8.10(b)(i).
“ New Second Lien Obligations ” shall have the meaning assigned to such term in Section 8.10(b).
“ New Second Lien Secured Parties ” shall have the meaning assigned to such term in Section 8.10(b)(ii).
“ Officer’s Certificate ” has the meaning assigned to such term in Section 8.09.
“ Parent ” shall have the meaning assigned to such term in the preamble.
“ Person ” shall mean any natural person, corporation, business trust, joint venture, association, company, partnership, limited liability company or government, individual or family trusts, or any agency or political subdivision thereof.
“ Pledged or Controlled Collateral ” shall have the meaning assigned to such term in Section 5.05(a).
“ Possessory Collateral ” shall mean any Shared Collateral in the possession of the First Lien Collateral Agent (or its agents or bailees), to the extent that possession thereof perfects a Lien thereon under the Uniform Commercial Code of any jurisdiction. Possessory Collateral
 
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includes, without limitation, any Certificated Securities, Promissory Notes, Instruments and Chattel Paper, in each case, delivered to or in the possession of the First Lien Collateral Agent under the terms of the First Lien Security Documents.
“ Proceeds ” shall mean the proceeds of any sale, collection or other liquidation of Shared Collateral, any payment or distribution made in respect of Shared Collateral in a Bankruptcy Case and any amounts received by the First Lien Collateral Agent, any First Lien Authorized Representative or any First Lien Secured Party from a Second Lien Secured Party in respect of Shared Collateral pursuant to this Agreement or any other intercreditor agreement.
“ Recovery ” shall have the meaning assigned to such term in Section 6.04.
“ Refinance ” shall mean, in respect of any indebtedness, to refinance, extend, renew, defease, amend, increase, modify, supplement, restructure, refund, replace or repay, or to issue other indebtedness or enter alternative financing arrangements, in exchange or replacement for such indebtedness (in whole or in part), including by adding or replacing lenders, creditors, agents, borrowers and/or guarantors, and including in each case, but not limited to, after the original instrument giving rise to such indebtedness has been terminated and including, in each case, through any credit agreement, indenture or other agreement. “Refinanced” and “Refinancing” shall have correlative meanings.
“ Second Lien Authorized Representative ” shall mean (a) in the case of the Initial Second Lien Obligations, the Initial Second Lien Authorized Representative and (b) in the case of any Series of Additional Second Lien Obligations or Additional Second Lien Secured Parties that become subject to this Agreement after the date hereof, the Second Lien Authorized Representative named for such Series in the applicable Second Lien Authorized Representative Joinder Agreement.
“ Second Lien Authorized Representative Joinder Agreement ” shall mean a written instrument substantially in the form of Exhibit A .
“ Second Lien Collateral ” shall mean all assets and properties that are (or are required by any Second Lien Document to be) subject to Liens created pursuant to any Second Lien Security Document to secure one or more Series of Second Lien Obligations.
“ Second Lien Document ” shall mean (a) each Initial Second Lien Document and (b) each Additional Second Lien Document.
“ Second Lien Obligations ” shall mean, with respect to any Series of Second Lien Documents, (a) all obligations (monetary or otherwise, whether absolute or contingent, matured or unmatured) of any of the Loan Parties arising under or in connection with such Series of Second Lien Documents, including the principal of and premium, if any, and interest (including interest accruing during the pendency of any proceeding under any Debtor Relief Law, whether or not allowed in such proceeding) on the Indebtedness under such Series of Second Lien Documents and reimbursement obligations, fees, indemnities, costs, expenses (including all fees, charges and disbursements of counsel to the related Second Lien Secured Parties that are required to be paid by any of the Loan Parties pursuant to such Series of Second Lien Documents) or otherwise with respect to the Indebtedness under such Series of Second Lien
 
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Documents and (b) all other amounts due to the related Second Lien Secured Parties under or in respect of such Series of Second Lien Documents, in each case whether now existing or hereafter incurred, whether direct, indirect, fixed, contingent, liquidated, unliquidated, joint, several, or joint and several, now or hereafter existing, due or to become due whether evidenced in writing or not, together with all costs, expenses (including attorneys’ fees incurred in the enforcement or collection thereof), and interest accruing thereon including interest accruing after the commencement of any proceedings against any Loan Party under any Debtor Relief Law, whether or not allowed in such proceeding.
“ Second Lien Secured Parties ” shall mean (a) the Initial Second Lien Secured Parties and (b) any Additional Second Lien Secured Parties.
“ Second Lien Security Documents ” shall mean each agreement entered into in favor of any Second Lien Authorized Representative for the purpose of securing any Series of Second Lien Obligations.
“ Secured Obligations ” shall mean the First Lien Obligations and the Second Lien Obligations.
“ Secured Parties ” shall mean the First Lien Secured Parties and the Second Lien Secured Parties.
“ Security Documents ” shall mean the First Lien Security Documents and the Second Lien Security Documents.
“ Series ” shall mean (a) with respect to the First Lien Secured Parties, any First Lien Obligations or any First Lien Documents, each “Series” (under and as defined in the First Lien Intercreditor Agreement) thereof and (b)(i) with respect to the Second Lien Secured Parties, each of (A) the Initial Second Lien Secured Parties (in their capacities as such) and (B) the Additional Second Lien Secured Parties that become subject to this Agreement after the date hereof and that are represented by a common Second Lien Authorized Representative (in its capacity as such for such Additional Second Lien Secured Parties), (ii) with respect to any Second Lien Obligations, each of (A) the Initial Second Lien Obligations and (B) the Additional Second Lien Obligations incurred pursuant to any Additional Second Lien Document which, pursuant to any Second Lien Authorized Representative Joinder Agreement, are to be represented hereunder by a common Second Lien Authorized Representative (in its capacity as such for such Additional Second Lien Obligations) and (iii) with respect to any Second Lien Documents, each of (A) the Initial Second Lien Documents and (B) the Additional Second Lien Documents evidencing or governing Additional Second Lien Obligations which, pursuant to any Second Lien Authorized Representative Joinder Agreement, are to be represented hereunder by a common Second Lien Authorized Representative (in its capacity as such for such Additional Second Lien Obligations).
“ Shared Collateral ” shall mean, at any time, First Lien Collateral in which the holders of at least one Series of Second Lien Obligations (or its Authorized Representative) holds a valid and perfected security interest at such time. If, at any time, any portion of the First Lien Collateral does not constitute Second Lien Collateral under one or more Series of Second

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Lien Obligations, then such portion of the First Lien Collateral shall constitute Shared Collateral only with respect to those Series of Second Lien Obligations for which it constitutes Second Lien Collateral and shall not constitute Shared Collateral for any Series of Second Lien Obligations which does not have a valid and perfected security interest in such Collateral at such time.
“ Uniform Commercial Code ” or “ UCC ” shall mean, unless otherwise specified, the Uniform Commercial Code as from time to time in effect in the State of New York.
(b) Terms Generally. The following rules of interpretation shall apply to this Agreement:
(i) the definitions set forth or referred to in Section 1.01 shall apply equally to both the singular and plural forms of the terms defined;
(ii) whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms;
(iii) the words “include,” “includes” and “including” shall be deemed to be followed by the phrase “without limitation”;
(iv) all references herein to Articles, Sections, Exhibits, Schedules, recitals and the preamble shall be deemed references to Articles and Sections of, and Exhibits, Schedules, recitals and the preamble to, this Agreement unless the context shall otherwise require;
(v) the term “or” is not exclusive;
(vi) the words “asset” and “property” shall be construed to have the same meaning and effect and to refer to any and all tangible and intangible assets and properties (whether real or personal), including cash, Equity Interests, securities, revenues, accounts, leasehold interests and contract rights; and
(vii) references to agreements or other contractual obligations shall, unless otherwise specified, be deemed to refer to such agreements or contractual obligations as amended, supplemented, restated or otherwise modified from time to time (subject to any applicable restrictions in any First Lien Document or Second Lien Document).
2.
PRIORITIES AND AGREEMENTS WITH RESPECT TO SHARED COLLATERAL
(a) Subordination . (i) Notwithstanding the date, time, manner or order of filing or recordation of any document or instrument or grant, attachment or perfection of any Liens granted to any Second Lien Authorized Representative or any Second Lien Secured Party on the Shared Collateral or of any Liens granted to the First Lien Collateral Agent or the First Lien Secured Parties on the Shared Collateral (or any actual or alleged defect in any of the foregoing) and notwithstanding any provision of the UCC, any applicable law, any Second Lien Document or any First Lien Document or any other circumstance whatsoever, each Second Lien Authorized Representative, on behalf of itself and its Second Lien Secured Parties, hereby agrees
 
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that (a) any Lien on the Shared Collateral securing any First Lien Obligations now or hereafter held by or on behalf of the First Lien Collateral Agent, any First Lien Authorized Representative or other agent or trustee therefor or any First Lien Secured Party, regardless of how acquired, whether by grant, statute, operation of law, subrogation or otherwise, shall have priority over and be senior in all respects and prior to any Lien on the Shared Collateral securing any Second Lien Obligations and (b) any Lien on the Shared Collateral securing any Second Lien Obligations now or hereafter held by or on behalf of any Second Lien Authorized Representative or other agent or trustee therefor or any Second Lien Secured Party, regardless of how acquired, whether by grant, statute, operation of law, subrogation or otherwise, shall be junior and subordinate in all respects to all Liens on the Shared Collateral securing the First Lien Obligations. All Liens on the Shared Collateral securing the First Lien Obligations shall be and remain senior in all respects and prior to all Liens on the Shared Collateral securing any Second Lien Obligations for all purposes, whether or not such Liens securing any Series of First Lien Obligations are subordinated to any Lien securing any other obligation of the Parent, the Borrower, any other Grantor or any other Person or otherwise subordinated, voided, avoided, invalidated or lapsed.
(b) Nature of First Lien Obligations . Each Second Lien Authorized Representative, on behalf of itself and its Second Lien Secured Parties, acknowledges that (a) a portion of the First Lien Obligations is revolving in nature and that the amount thereof that may be outstanding at any time or from time to time may be increased or reduced and subsequently reborrowed, (b) the terms of the First Lien Documents and the First Lien Obligations may be amended, supplemented or otherwise modified, and the First Lien Obligations, or a portion thereof, may be Refinanced from time to time and (c) the aggregate amount of the First Lien Obligations may be increased, in each case, without notice to or consent by any Second Lien Authorized Representative or Second Lien Secured Party and without affecting the provisions hereof. The Lien priorities provided for in Section 2.01 shall not be altered or otherwise affected by any amendment, supplement or other modification, or any Refinancing, of either the First Lien Obligations or the Second Lien Obligations, or any portion thereof. As between the Parent, the Borrower and the other Grantors and the Second Lien Secured Parties, the foregoing provisions will not limit or otherwise affect the obligations of the Parent, the Borrower and the other Grantors contained in any Second Lien Document with respect to the incurrence of additional First Lien Obligations.
(c) Prohibition on Contesting Liens . Each of the Second Lien Authorized Representatives, for itself and on behalf of its Second Lien Secured Parties, agrees that it shall not (and hereby waives any right to) contest or support any other Person in contesting, in any proceeding (including any Insolvency or Liquidation Proceeding), the validity, extent, perfection, priority or enforceability of any Lien securing the First Lien Obligations held (or purported to be held) by or on behalf of the First Lien Collateral Agent, any First Lien Authorized Representative or other agent or trustee therefor or any First Lien Secured Party in any First Lien Collateral. Notwithstanding anything to the contrary contained in this Agreement, no provision in this Agreement shall be construed to prevent or impair the rights of the First Lien Collateral Agent or any First Lien Authorized Representative to enforce this Agreement (including the priority of the Liens securing the First Lien Obligations as provided in Section 2.01) or any of the First Lien Documents.
 
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(d) No New Liens . The parties hereto agree that, so long as the Discharge of the First Lien Obligations has not occurred, (a) none of the Grantors shall, or shall permit any of its Subsidiaries to, grant or permit any additional Liens on any asset to secure any Second Lien Obligation unless it has granted, or concurrently therewith grants, a Lien on such asset to secure the First Lien Obligations and (b) if any Second Lien Authorized Representative or any Second Lien Secured Party shall hold any Lien on any asset of any Grantor or any other Person securing any Second Lien Obligation that are not also subject to the first-priority Liens securing the First Lien Obligations under the First Lien Security Documents, such Second Lien Authorized Representative or Second Lien Secured Party (i) shall notify the First Lien Collateral Agent promptly upon becoming aware thereof and, unless such Grantor or other Person shall promptly grant a similar Lien on such asset to the First Lien Collateral Agent as security for the First Lien Obligations, shall assign such Lien to the First Lien Collateral Agent as security for the First Lien Obligations (but may retain a junior lien on such asset subject to the terms hereof) and (ii) until such assignment or such grant of a similar Lien to the First Lien Collateral Agent, shall be deemed to hold and have held such Lien for the benefit of the First Lien Collateral Agent as security for the First Lien Obligations. To the extent that the provisions of the immediately preceding sentence are not complied with for any reason, without limiting any other right or remedy available to the First Lien Collateral Agent, the First Lien Authorized Representatives or the First Lien Secured Parties, each Second Lien Authorized Representative agrees, for itself and on behalf of its Second Lien Secured Parties, that any amounts received by or distributed to any Second Lien Secured Party pursuant to or as a result of any Lien granted in contravention of this Section 2.04 shall be subject to Section 4.02.
(e) Perfection of Liens . Except for the agreements of the First Lien Collateral Agent pursuant to Section 5.05 hereof, none of the First Lien Collateral Agent, the First Lien Authorized Representatives or the First Lien Secured Parties shall be responsible for perfecting and maintaining the perfection of Liens with respect to the Shared Collateral for the benefit of the Second Lien Authorized Representatives or the Second Lien Secured Parties. The provisions of this Agreement are intended solely to govern the respective Lien priorities as between the First Lien Secured Parties and the Second Lien Secured Parties and shall not impose on the First Lien Collateral Agent, the First Lien Authorized Representatives, the First Lien Secured Parties, the Second Lien Authorized Representatives, the Second Lien Secured Parties or any agent or trustee therefor any obligations in respect of the disposition of Proceeds of any Shared Collateral which would conflict with prior perfected claims therein in favor of any other Person or any order or decree of any court or governmental authority or any applicable law.
3.
ENFORCEMENT
(a) Exercise of Remedies . (i) So long as the Discharge of the First Lien Obligations has not occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against the Parent, the Borrower or any other Grantor, (i) neither any Second Lien Authorized Representative nor any Second Lien Secured Party will (A) exercise or seek to exercise any rights or remedies (including setoff) with respect to any Shared Collateral in respect of any Second Lien Obligations, or institute any action or proceeding with respect to such rights or remedies (including any action of foreclosure), (B) contest, protest or object to any
 
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foreclosure proceeding or action brought with respect to the Shared Collateral or any other First Lien Collateral by the First Lien Collateral Agent, any First Lien Authorized Representative or any First Lien Secured Party in respect of the First Lien Obligations, the exercise of any right by the First Lien Collateral Agent, any First Lien Authorized Representative or any First Lien Secured Party (or any agent or sub-agent on their behalf) in respect of the First Lien Obligations under any lockbox agreement, control agreement, landlord waiver or bailee’s letter or similar agreement or arrangement to which the First Lien Collateral Agent, any First Lien Authorized Representative or any First Lien Secured Party either is a party or may have rights as a third party beneficiary, or any other exercise by any such party of any rights and remedies relating to the Shared Collateral under the First Lien Documents or otherwise in respect of the First Lien Collateral or the First Lien Obligations, or (C) object to the forbearance by the First Lien Secured Parties from bringing or pursuing any foreclosure proceeding or action or any other exercise of any rights or remedies relating to the Shared Collateral in respect of First Lien Obligations and (ii) except as otherwise provided herein, the First Lien Collateral Agent, the First Lien Authorized Representatives and the First Lien Secured Parties shall have the exclusive right to enforce rights, exercise remedies (including setoff and the right to credit bid their debt) and make determinations regarding the release, disposition or restrictions with respect to the Shared Collateral without any consultation with or the consent of any Second Lien Authorized Representative or any Second Lien Secured Party; provided , however , that (1) in any Insolvency or Liquidation Proceeding commenced by or against the Parent, the Borrower or any other Grantor, any Second Lien Authorized Representative may file a claim or statement of interest with respect to its Second Lien Obligations, (2) any Second Lien Authorized Representative may take any action (not adverse to the prior Liens on the Shared Collateral securing the First Lien Obligations or the rights of the First Lien Collateral Agent, the First Lien Authorized Representatives or the First Lien Secured Parties to exercise remedies in respect thereof) in order to create, prove, perfect, preserve or protect (but not enforce) its rights in, and perfection and priority of its Lien on, the Shared Collateral, (3) any Second Lien Authorized Representative and the Second Lien Secured Parties may exercise their rights and remedies as unsecured creditors, as provided in Section 5.04, and (4) any Second Lien Authorized Representative may exercise the rights and remedies provided for in Section 6.03. In exercising rights and remedies with respect to the First Lien Collateral, the First Lien Collateral Agent, the First Lien Authorized Representatives and the First Lien Secured Parties may enforce the provisions of the First Lien Documents and exercise remedies thereunder, all in such order and in such manner as they may determine in the exercise of their sole discretion. Such exercise and enforcement shall include the rights of an agent appointed by them to sell or otherwise dispose of Shared Collateral upon foreclosure, to incur expenses in connection with such sale or disposition and to exercise all the rights and remedies of a secured lender under the Uniform Commercial Code of any applicable jurisdiction and of a secured creditor under Bankruptcy Laws of any applicable jurisdiction.
(ii) So long as the Discharge of the First Lien Obligations has not occurred, each Second Lien Authorized Representative, on behalf of itself and its Second Lien Secured Parties, agrees that it will not, in the context of its role as secured creditor, take or receive any Shared Collateral or any Proceeds of Shared Collateral in connection with the exercise of any right or remedy (including setoff) with respect to any Shared Collateral in respect of Second Lien Obligations. Without limiting the generality of the foregoing, unless and until the Discharge of the First Lien Obligations has occurred, except as expressly provided in the proviso in clause (ii) of Section 3.01(a), the sole right of the Second Lien Authorized Representatives and the Second
 
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Lien Secured Parties with respect to the Shared Collateral is to hold a Lien on the Shared Collateral in respect of Second Lien Obligations pursuant to the Second Lien Documents for the period and to the extent granted therein and to receive a share of the Proceeds thereof, if any, after the Discharge of the First Lien Obligations has occurred.
(iii) Subject to the proviso in clause (ii) of Section 3.01(a), (i) each Second Lien Authorized Representative, for itself and on behalf of its Second Lien Secured Parties, agrees that neither such Second Lien Authorized Representative nor any of its Second Lien Secured Parties will take any action that would hinder any exercise of remedies undertaken by the First Lien Collateral Agent, any First Lien Authorized Representative or any First Lien Secured Party with respect to the Shared Collateral under the First Lien Documents, including any sale, lease, exchange, transfer or other disposition of the Shared Collateral, whether by foreclosure or otherwise, and (ii) each Second Lien Authorized Representative, for itself and on behalf of its Second Lien Secured Parties, hereby waives any and all rights it or any of its Second Lien Secured Parties may have as a junior lien creditor or otherwise to object to the manner in which the First Lien Collateral Agent, the First Lien Authorized Representatives or the First Lien Secured Parties seek to enforce or collect the First Lien Obligations or the Liens granted on any of the First Lien Collateral, regardless of whether any action or failure to act by or on behalf of the First Lien Collateral Agent, any First Lien Authorized Representative or any other First Lien Secured Party is adverse to the interests of the Second Lien Secured Parties.
(iv) Each Second Lien Authorized Representative hereby acknowledges and agrees that no covenant, agreement or restriction contained in any Second Lien Document shall be deemed to restrict in any way the rights and remedies of the First Lien Collateral Agent, the First Lien Authorized Representatives or the First Lien Secured Parties with respect to the First Lien Collateral as set forth in this Agreement and the First Lien Documents.
(v) Until the Discharge of the First Lien Obligations, the First Lien Collateral Agent (acting at the direction of the Applicable First Lien Secured Parties) shall have the exclusive right to exercise any right or remedy with respect to the Shared Collateral and shall have the exclusive right to determine and direct the time, method and place for exercising such right or remedy or conducting any proceeding with respect thereto. Following the Discharge of the First Lien Obligations, the Designated Second Lien Authorized Representative (acting at the direction of the Applicable Second Lien Secured Parties) shall have the exclusive right to exercise any right or remedy with respect to the Collateral, and the Designated Second Lien Authorized Representative (acting at the direction of the Applicable Second Lien Secured Parties) shall have the exclusive right to direct the time, method and place of exercising or conducting any proceeding for the exercise of any right or remedy available to the Second Lien Secured Parties with respect to the Collateral, or of exercising or directing the exercise of any trust or power conferred on the Second Lien Authorized Representatives, or for the taking of any other action authorized by the Second Lien Security Documents; provided , however , that nothing in this Section shall impair the right of any Second Lien Authorized Representative or other agent or trustee acting on behalf of the Second Lien Secured Parties to take such actions with respect to the Collateral after the Discharge of the First Lien Obligations as may be otherwise required or authorized pursuant to any intercreditor agreement governing the Second Lien Secured Parties or the Second Lien Obligations.
 
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(b) Cooperation . Subject to the proviso in clause (ii) of Section 3.01(a), each Second Lien Authorized Representative, on behalf of itself and its Second Lien Secured Parties, agrees that, unless and until the Discharge of the First Lien Obligations has occurred, it will not commence, or join with any Person (other than the First Lien Secured Parties and the First Lien Collateral Agent upon the request thereof) in commencing, any enforcement, collection, execution, levy or foreclosure action or proceeding with respect to any Lien held by it in the Shared Collateral under any of the Second Lien Documents or otherwise in respect of the Second Lien Obligations.
(c) Actions upon Breach . Should any Second Lien Authorized Representative or Second Lien Secured Party, contrary to this Agreement, in any way take, attempt to take or threaten to take any action with respect to the Shared Collateral (including any attempt to realize upon or enforce any remedy with respect to this Agreement) or fail to take any action required by this Agreement, the First Lien Collateral Agent, any First Lien Authorized Representative or any First Lien Secured Party (in its or their own name or in the name of the Parent, the Borrower or any other Grantor) or the Parent, the Borrower or any Grantor may obtain relief against such Second Lien Authorized Representative or Second Lien Secured Party by injunction, specific performance or other appropriate equitable relief. Each Second Lien Authorized Representative, on behalf of itself and its Second Lien Secured Parties, hereby (i) agrees that the damages of the First Lien Collateral Agent, the First Lien Authorized Representatives and the First Lien Secured Parties from the actions of such Second Lien Authorized Representative or any of its Second Lien Secured Parties may at any time be difficult to ascertain and may be irreparable and waives any defense that the Parent, the Borrower, any other Grantor or the First Lien Collateral Agent, any First Lien Authorized Representative or any First Lien Secured Party cannot demonstrate damage or be made whole by the awarding of damages and (ii) irrevocably waives any defense based on the adequacy of a remedy at law and any other defense that might be asserted to bar the remedy of specific performance in any action that may be brought by the First Lien Collateral Agent, any First Lien Authorized Representative or any First Lien Secured Party.
4.
PAYMENTS
(a) Application of Proceeds . From and after the occurrence and during the continuance of any First Lien Event of Default, so long as the Discharge of the First Lien Obligations has not occurred, the Shared Collateral or Proceeds thereof received in connection with the sale or other disposition of, or collection on, such Shared Collateral upon the exercise of remedies shall be applied by the First Lien Collateral Agent to the First Lien Obligations in the order specified in the First Lien Intercreditor Agreement until the Discharge of the First Lien Obligations has occurred. Upon the Discharge of the First Lien Obligations, the First Lien Collateral Agent shall deliver promptly to the Designated Second Lien Authorized Representative any Shared Collateral or Proceeds thereof held by it in the same form as received, with any necessary endorsements, or as a court of competent jurisdiction may otherwise direct, to be applied by the Designated Second Lien Authorized Representative to the Second Lien Obligations in the order specified in the relevant Second Lien Documents.
 
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(b) Payments Over . Any Shared Collateral or Proceeds thereof received by any Second Lien Authorized Representative or any Second Lien Secured Party in connection with the exercise of any right or remedy (including setoff) relating to the Shared Collateral in contravention of this Agreement shall be segregated and held in trust for the benefit of and forthwith paid over to the First Lien Collateral Agent for the benefit of the First Lien Secured Parties in the same form as received, with any necessary endorsements, or as a court of competent jurisdiction may otherwise direct. The First Lien Collateral Agent is hereby authorized to make any such endorsements as agent for each Second Lien Authorized Representative or any Second Lien Secured Party. This authorization is coupled with an interest and is irrevocable.
5.
OTHER AGREEMENTS
(a) Releases . (i) Each Second Lien Authorized Representative, for itself and on behalf of its Second Lien Secured Parties, agrees that, in the event of a sale, transfer or other disposition of any specified item of Shared Collateral (including all or substantially all of the equity interests of any Subsidiary), the Liens granted to the Second Lien Authorized Representatives and the Second Lien Secured Parties upon such Shared Collateral to secure Second Lien Obligations shall terminate and be released, automatically and without any further action, concurrently with the termination and release of all Liens granted upon such Shared Collateral to secure First Lien Obligations. Upon delivery to a Second Lien Authorized Representative of an Officer’s Certificate stating that any such termination and release of Liens securing the First Lien Obligations has become effective (or shall become effective concurrently with such termination and release of the Liens granted to the Second Lien Secured Parties and the Second Lien Authorized Representatives) and any necessary or proper instruments of termination or release prepared by the Parent, the Borrower or any other Grantor, such Second Lien Authorized Representative will promptly execute, deliver or acknowledge, at the Parent’s, the Borrower’s or such other Grantor’s sole cost and expense, such instruments to evidence such termination and release of the Liens. Nothing in this Section 5.01(a) will be deemed to affect any agreement of a Second Lien Authorized Representative, for itself and on behalf of its Second Lien Secured Parties, to release the Liens on the Second Lien Collateral as set forth in the relevant Second Lien Documents.
(ii) Each Second Lien Authorized Representative, for itself and on behalf of its Second Lien Secured Parties, hereby irrevocably constitutes and appoints the First Lien Collateral Agent and any officer or agent of the First Lien Collateral Agent, with full power of substitution, as its true and lawful attorney-in-fact with full irrevocable power and authority in the place and stead of such Second Lien Authorized Representative or such Second Lien Secured Party or in the First Lien Collateral Agent’s own name, from time to time in the First Lien Collateral Agent’s discretion, for the purpose of carrying out the terms of Section 5.01(a), to take any and all appropriate action and to execute any and all documents and instruments that may be necessary or desirable to accomplish the purposes of Section 5.01(a), including any termination statements, endorsements or other instruments of transfer or release.
 
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(iii) Unless and until the Discharge of the First Lien Obligations has occurred, each Second Lien Authorized Representative, for itself and on behalf of its Second Lien Secured Parties, hereby consents to the application, whether prior to or after an event of default under any First Lien Document of proceeds of Shared Collateral to the repayment of First Lien Obligations pursuant to the First Lien Documents, provided that nothing in this Section 5.01(c) shall be construed to prevent or impair the rights of the Second Lien Authorized Representatives or the Second Lien Secured Parties to receive proceeds in connection with the Second Lien Obligations not otherwise in contravention of this Agreement.
(iv) Notwithstanding anything to the contrary in any Second Lien Security Document, in the event the terms of a First Lien Security Document and a Second Lien Security Document each require any Grantor (i) to make payment in respect of any item of Shared Collateral, (ii) to deliver or afford control over any item of Shared Collateral to, or deposit any item of Shared Collateral with, (iii) to register ownership of any item of Shared Collateral in the name of or make an assignment of ownership of any Shared Collateral or the rights thereunder to, (iv) cause any securities intermediary, commodity intermediary or other Person acting in a similar capacity to agree to comply, in respect of any item of Shared Collateral, with instructions or orders from, or to treat, in respect of any item of Shared Collateral, as the entitlement holder, (v) hold any item of Shared Collateral in trust for (to the extent such item of Shared Collateral cannot be held in trust for multiple parties under applicable law), (vi) obtain the agreement of a bailee or other third party to hold any item of Shared Collateral for the benefit of or subject to the control of or, in respect of any item of Shared Collateral, to follow the instructions of or (vii) obtain the agreement of a landlord with respect to access to leased premises where any item of Shared Collateral is located or waivers or subordination of rights with respect to any item of Shared Collateral in favor of, in any case, both the First Lien Collateral Agent and any Second Lien Authorized Representative or Second Lien Secured Party, such Grantor may, until the Discharge of the First Lien Obligations has occurred, comply with such requirement under the Second Lien Security Document as it relates to such Shared Collateral by taking any of the actions set forth above only with respect to, or in favor of, the First Lien Collateral Agent.
(b) Insurance and Condemnation Awards . Unless and until the Discharge of the First Lien Obligations has occurred, the First Lien Collateral Agent and the First Lien Secured Parties shall have the sole and exclusive right, subject to the rights of the Grantors under the First Lien Documents, (a) to be named as additional insured and loss payee under any insurance policies maintained from time to time by any Grantor, (b) to adjust settlement for any insurance policy covering the Shared Collateral in the event of any loss thereunder and (c) to approve any award granted in any condemnation or similar proceeding affecting the Shared Collateral. Unless and until the Discharge of the First Lien Obligations has occurred, all proceeds of any such policy and any such award, if in respect of the Shared Collateral, shall be paid (i) first, prior to the occurrence of the Discharge of the First Lien Obligations, to the First Lien Collateral Agent for the benefit of the First Lien Secured Parties pursuant to the terms of the First Lien Documents, (ii) second, after the occurrence of the Discharge of the First Lien Obligations, to the Designated Second Lien Authorized Representative for the benefit of the Second Lien Secured Parties pursuant to the terms of the applicable Second Lien Documents and (iii) third, if no Second Lien Obligations are outstanding, to the owner of the subject property, such other Person as may be entitled thereto or as a court of competent jurisdiction may otherwise direct. If any Second Lien Authorized Representative or
 
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any Second Lien Secured Party shall, at any time, receive any proceeds of any such insurance policy or any such award in contravention of this Agreement, it shall pay such proceeds over to the First Lien Collateral Agent in accordance with the terms of Section 4.02.
(c) Amendments to Second Lien Security Documents . (i) Without the prior written consent of the First Lien Collateral Agent and each First Lien Authorized Representativ (acting in accordance with the applicable First Lien Documents), no Second Lien Security Document may be amended, supplemented or otherwise modified or entered into to the extent such amendment, supplement or modification, or the terms of any new Second Lien Security Document, would be prohibited by or inconsistent with any of the terms of this Agreement. Each Grantor agrees to deliver to the First Lien Collateral Agent copies of (i) any amendments, supplements or other modifications to the Second Lien Security Documents and (ii) any new Second Lien Security Documents promptly after effectiveness thereof, and each Second Lien Authorized Representative, for itself and on behalf of its Second Lien Secured Parties, agrees that each Second Lien Security Document shall include the following language (or language to similar effect reasonably approved by the First Lien Collateral Agent):
“Notwithstanding anything herein to the contrary, (i) the liens and security interests granted to the [Second Lien Authorized Representative] pursuant to this Agreement are expressly subject and subordinate to the liens and security interests granted in favor of the First Lien Secured Parties (as defined in the Intercreditor Agreement referred to below), including liens and security interests granted to Bank of America, N.A., in its capacity as collateral agent for the First Lien Secured Parties, and (ii) the exercise of any right or remedy by the [Second Lien Authorized Representative] hereunder is subject to the limitations and provisions of the Second Lien Intercreditor Agreement dated as of [ ], 20[ ] (as amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “ Intercreditor Agreement ”), by and among Buffalo Gulf Coast Terminals LLC, HFOTCO LLC, the other grantors party hereto, Bank of America, N.A., in its capacity as collateral agent for the First Lien Secured Parties, [Second Lien Authorized Representative] and the other parties thereto. In the event of any conflict between the terms of the Intercreditor Agreement and the terms of this Agreement, the terms of the Intercreditor Agreement shall govern.”
(ii) In the event that the First Lien Collateral Agent or the First Lien Secured Parties enter into any amendment, waiver or consent in respect of any of the First Lien Security Documents for the purpose of adding to or deleting from, or waiving or consenting to any departures from any provisions of, any First Lien Security Document or changing in any manner the rights of the First Lien Collateral Agent, the First Lien Secured Parties, the Parent, the Borrower or any other Grantor thereunder (including the release of any Liens in First Lien Collateral), then such amendment, waiver or consent shall apply automatically to any comparable provision of the comparable Second Lien Security Documents without the consent of any Second Lien Authorized Representative or any Second Lien Secured Party and without any action by any Second Lien Authorized Representative, the Parent, the Borrower or any other Grantor; provided , however , that written notice of such amendment, waiver or consent shall have been given to each Second Lien Authorized Representative within 10 Business Days after the effectiveness of such amendment, waiver or consent.
 
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(d) Rights as Unsecured Creditors . Notwithstanding anything to the contrary in this Agreement, the Second Lien Authorized Representatives and the Second Lien Secured Parties may exercise rights and remedies as unsecured creditors against the Parent, the Borrower and any other Grantor in accordance with the terms of the Second Lien Documents and applicable law. Nothing in this Agreement shall prohibit the receipt by any Second Lien Authorized Representative or any Second Lien Secured Party of the required payments of principal, premium, interest, fees and other amounts due under the Second Lien Documents so long as such receipt is not the direct or indirect result of the exercise by a Second Lien Authorized Representative or any Second Lien Secured Party of rights or remedies as a secured creditor in respect of Shared Collateral. In the event any Second Lien Authorized Representative or any Second Lien Secured Party becomes a judgment lien creditor in respect of Shared Collateral as a result of its enforcement of its rights as an unsecured creditor in respect of Second Lien Obligations, such judgment lien shall be subordinated to the Liens securing First Lien Obligations on the same basis as the other Liens securing the Second Lien Obligations are so subordinated to such Liens securing First Lien Obligations under this Agreement. Nothing in this Agreement shall impair or otherwise adversely affect any rights or remedies the First Lien Collateral Agent, the First Lien Authorized Representatives or the First Lien Secured Parties may have with respect to the First Lien Collateral.
(e) Gratuitous Bailee for Perfection . (i) The First Lien Collateral Agent acknowledges and agrees that if it shall at any time hold a Lien securing any First Lien Obligations on any Shared Collateral that can be perfected by the possession or control of such Shared Collateral or of any account in which such Shared Collateral is held, and if such Shared Collateral or any such account is in fact in the possession or under the control of the First Lien Collateral Agent, or of agents or bailees of the First Lien Collateral Agent (such Shared Collateral being referred to herein as the “ Pledged or Controlled Collateral ”), or if it shall any time obtain any landlord waiver or bailee’s letter or any similar agreement or arrangement granting it rights or access to Shared Collateral, the First Lien Collateral Agent shall also hold such Pledged or Controlled Collateral, or take such actions with respect to such landlord waiver, bailee’s letter or similar agreement or arrangement, as sub-agent or gratuitous bailee for the relevant Second Lien Authorized Representatives, in each case solely for the purpose of perfecting the Liens granted under the relevant Second Lien Security Documents and subject to the terms and conditions of this Section 5.05.
(ii) In the event that the First Lien Collateral Agent (or its agents or bailees) has Lien filings against intellectual property that is part of the Shared Collateral that are necessary for the perfection of Liens in such Shared Collateral, the First Lien Collateral Agent agrees to hold such Liens as sub-agent and gratuitous bailee for the relevant Second Lien Authorized Representatives and any assignee thereof, solely for the purpose of perfecting the security interest granted in such Liens pursuant to the relevant Second Lien Security Documents, subject to the terms and conditions of this Section 5.05.
(iii) Except as otherwise specifically provided herein, until the Discharge of the First Lien Obligations has occurred, the First Lien Collateral Agent shall be entitled to deal with the Pledged or Controlled Collateral in accordance with the terms of the First Lien Documents as if the Liens under the Second Lien Security Documents did not exist. The rights of the Second Lien Authorized Representatives and the Second Lien Secured Parties with respect to the Pledged or Controlled Collateral shall at all times be subject to the terms of this Agreement.
 
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(iv) The First Lien Collateral Agent shall have no obligation whatsoever to the Second Lien Authorized Representatives or any Second Lien Secured Party to assure that any of the Pledged or Controlled Collateral is genuine or owned by the Grantors or to protect or preserve rights or benefits of any Person or any rights pertaining to the Shared Collateral, except as expressly set forth in this Section 5.05. The duties or responsibilities of the First Lien Collateral Agent under this Section 5.05 shall be limited solely to holding or controlling the Shared Collateral and the related Liens referred to in paragraphs (a) and (b) of this Section 5.05 as subagent and gratuitous bailee for the relevant Second Lien Authorized Representative for purposes of perfecting the Lien held by such Second Lien Authorized Representative.
(v) The First Lien Collateral Agent shall not have by reason of the Second Lien Security Documents or this Agreement, or any other document, a fiduciary relationship in respect of any Second Lien Authorized Representative or any Second Lien Secured Party, and each, Second Lien Authorized Representative, for itself and on behalf of its Second Lien Secured Parties, hereby waives and releases the First Lien Collateral Agent from all claims and liabilities arising pursuant to the First Lien Collateral Agent’s role under this Section 5.05 as sub-agent and gratuitous bailee with respect to the Shared Collateral.
(vi) Upon the Discharge of the First Lien Obligations, the First Lien Collateral Agent shall, at the Grantors’ sole cost and expense, (i) (A) deliver to the Designated Second Lien Authorized Representative, to the extent that it is legally permitted to do so, all Shared Collateral, including all proceeds thereof, held or controlled by the First Lien Collateral Agent or any of its agents or bailees, including the transfer of possession and control, as applicable, of the Pledged or Controlled Collateral, together with any necessary endorsements and notices to depositary banks, securities intermediaries and commodities intermediaries, and assign its rights under any landlord waiver or bailee’s letter or any similar agreement or arrangement granting it rights or access to Shared Collateral, or (B) direct and deliver such Shared Collateral as a court of competent jurisdiction may otherwise direct, (ii) notify any applicable insurance carrier that it is no longer entitled to be a loss payee or additional insured under the insurance policies of any Grantor issued by such insurance carrier and (iii) notify any governmental authority involved in any condemnation or similar proceeding involving any Grantor that the Designated Second Lien Authorized Representative is entitled to approve any awards granted in such proceeding. The Parent, the Borrower and the other Grantors shall take such further action as is required to effectuate the transfer contemplated hereby and shall indemnify the First Lien Collateral Agent for loss or damage suffered by the First Lien Collateral Agent as a result of such transfer, except for loss or damage suffered by the First Lien Collateral Agent as a result of its own willful misconduct or gross negligence. The First Lien Collateral Agent has no obligation to follow instructions from the Designated Second Lien Authorized Representative in contravention of this Agreement.
(vii) None of the First Lien Collateral Agent, any First Lien Authorized Representative or any First Lien Secured Party shall be required to marshal any present or future collateral security for any obligations of the Parent, the Borrower or any Subsidiary to the First Lien Collateral Agent, any First Lien Authorized Representative or any First Lien Secured Party

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under the First Lien Documents or any assurance of payment in respect thereof, or to resort to such collateral security or other assurances of payment in any particular order, and all of their rights in respect of such collateral security or any assurance of payment in respect thereof shall be cumulative and in addition to all other rights, however existing or arising.
(f) When Discharge of First Lien Obligations Deemed to Not Have Occurred . If, at any time after any Discharge of the First Lien Obligations has occurred, the Parent, the Borrower or any Subsidiary incurs any First Lien Obligations (other than in respect of the payment of indemnities surviving the Discharge of the First Lien Obligations), then such Discharge of the First Lien Obligations shall automatically be deemed not to have occurred for all purposes of this Agreement (other than with respect to any actions taken prior to the date of the incurrence of such First Lien Obligations as a result of the occurrence of such Discharge of the First Lien Obligations) and the documents evidencing or governing such First Lien Obligations shall automatically be treated as First Lien Documents for all purposes of this Agreement, including for purposes of the Lien priorities and rights in respect of Shared Collateral set forth herein and the granting by the First Lien Collateral Agent of amendments, waivers and consents hereunder and the administrative agent, collateral agent, trustee and/or similar representative acting on behalf of the holders of such First Lien Obligations shall be the First Lien Collateral Agent for all purposes of this Agreement. Upon receipt of notice of the incurrence of such First Lien Obligations (including the identity of the new First Lien Collateral Agent), each Second Lien Authorized Representative (including the Designated Second Lien Authorized Representative) shall promptly (a) enter into such documents and agreements (at the expense of the Borrower), including amendments or supplements to this Agreement, as the Borrower or the new First Lien Collateral Agent shall reasonably request in writing in order to provide the new First Lien Collateral Agent the rights of the First Lien Collateral Agent contemplated hereby, (b) deliver to the new First Lien Collateral Agent, to the extent that it is legally permitted to do so, all Shared Collateral, including all proceeds thereof, held or controlled by such Second Lien Authorized Representative or any of its agents or bailees, including the transfer of possession and control, as applicable, of the Pledged or Controlled Collateral, together with any necessary endorsements and notices to depositary banks, securities intermediaries and commodities intermediaries, and assign its rights under any landlord waiver or bailee’s letter or any similar agreement or arrangement granting it rights or access to Shared Collateral, (c) notify any applicable insurance carrier that it is no longer entitled to be a loss payee or additional insured under the insurance policies of any Grantor issued by such insurance carrier and (d) notify any governmental authority involved in any condemnation or similar proceeding involving a Grantor that the new First Lien Collateral Agent is entitled to approve any awards granted in such proceeding.
6.
INSOLVENCY OR LIQUIDATION PROCEEDINGS.
(a) Financing Issues . Until the Discharge of the First Lien Obligations has occurred, if the Parent, the Borrower or any other Grantor shall be subject to any Insolvency or Liquidation Proceeding and the First Lien Collateral Agent, any First Lien Authorized Representative or any First Lien Secured Party shall desire to consent (or not object) to the sale, use or lease of cash or other collateral or to consent (or not object) to the Parent’s, the
 
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Borrower’s or any other Grantor’s obtaining financing under Section 363 or Section 364 of Title 11 of the United States Code or any similar provision of any other Bankruptcy Law (“ DIP Financing ”), then each Second Lien Authorized Representative, for itself and on behalf of its Second Lien Secured Parties, agrees that (a) it will raise no objection to and will not otherwise contest such sale, use or lease of such cash or other collateral or such DIP Financing and, except to the extent permitted by the proviso in clause (ii) of Section 3.01(a) and Section 6.03, will not request adequate protection or any other relief in connection therewith and, to the extent the Liens securing the First Lien Obligations are subordinated or pari passu with such DIP Financing, will subordinate (and will be deemed hereunder to have subordinated) its Liens in the Shared Collateral to (x) such DIP Financing (and all obligations relating thereto) on the same basis as the Liens securing the Second Lien Obligations are so subordinated to Liens securing the First Lien Obligations under this Agreement and (y) to any “carve-out” for professional and United States Trustee fees agreed to by the First Lien Collateral Agent or the First Lien Authorized Representatives, (b) it will raise no objection to (and will not otherwise contest) any motion for relief from the automatic stay or from any injunction against foreclosure or enforcement in respect of the First Lien Obligations made by the First Lien Collateral Agent, any First Lien Authorized Representative or any First Lien Secured Party, (c) it will raise no objection to (and will not otherwise contest) any lawful exercise by any First Lien Secured Party of the right to credit bid First Lien Obligations at any sale in foreclosure of any First Lien Collateral, (d) it will raise no objection to (and will not otherwise contest) any other request for judicial relief made in any court by any First Lien Secured Party relating to the lawful enforcement of any Lien on any First Lien Collateral or (e) it will raise no objection to (and will not otherwise contest or oppose) any order relating to a sale or other disposition of any asset of any Grantor for which the First Lien Collateral Agent has consented that provides, to the extent such sale or other disposition is to be free and clear of Liens, that the Liens securing the First Lien Obligations and the Second Lien Obligations will attach to the proceeds of the sale on the same basis of priority as the Liens on the Shared Collateral securing the First Lien Obligations rank to the Liens on the Shared Collateral securing the Second Lien Obligations pursuant to this Agreement. Each Second Lien Authorized Representative, for itself and on behalf of its Second Lien Secured Parties, agrees that notice received two Business Days prior to the entry of an order approving such usage of cash or other collateral or approving such financing shall be adequate notice.
(b) Relief from the Automatic Stay . Until the Discharge of the First Lien Obligations has occurred, each Second Lien Authorized Representative, for itself and on behalf of its Second Lien Secured Parties, agrees that none of them shall seek relief from the automatic stay or any other stay in any Insolvency or Liquidation Proceeding or take any action in derogation thereof, in each case in respect of any Shared Collateral, without the prior written consent of the First Lien Collateral Agent.
(c) Adequate Protection . Each Second Lien Authorized Representative, for itself and on behalf of its Second Lien Secured Parties, agrees that none of them shall object, contest or support any other Person objecting to or contesting (a) any request by the First Lien Collateral Agent, any First Lien Authorized Representative or any First Lien Secured Party for adequate protection, (b) any objection by the First Lien Collateral Agent, any First Lien Authorized Representative or any First Lien Secured Party to any motion, relief, action or proceeding based on the First Lien Collateral Agent’s, any First Lien Authorized
 
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Representative’s or any First Lien Secured Party’s claiming a lack of adequate protection or (c) the payment of interest, fees, expenses or other amounts of the First Lien Collateral Agent, any First Lien Authorized Representative or any First Lien Secured Party under Section 506(b) or 506(c) of Title 11 of the United States Code or any similar provision of any other Bankruptcy Law. Notwithstanding anything contained in this Section 6.03 or in Section 6.01, in any Insolvency or Liquidation Proceeding, (i) if the First Lien Secured Parties (or any subset thereof) are granted adequate protection in the form of additional collateral in connection with any DIP Financing or use of cash collateral under Section 363 or 364 of Title 11 of the United States Code or any similar provision of any other Bankruptcy Law and the First Lien Collateral Agent and the First Lien Secured Parties do not object to the adequate protection being provided to the First Lien Secured Parties, then each Second Lien Authorized Representative, for itself and on behalf of its Second Lien Secured Parties, may seek or request adequate protection in the form of a replacement Lien on such additional collateral, which Lien is subordinated to the Liens securing the First Lien Obligations and such DIP Financing (and all obligations relating thereto) on the same basis as the other Liens securing the Second Lien Obligations are so subordinated to the Liens securing the First Lien Obligations under this Agreement and (ii) in the event any Second Lien Authorized Representative, for itself and on behalf of its Second Lien Secured Parties, seeks or requests adequate protection and such adequate protection is granted in the form of additional collateral, then such Second Lien Authorized Representative, for itself and on behalf of its Second Lien Secured Parties, agrees that the First Lien Collateral Agent shall also be granted a senior Lien on such additional collateral as security for the First Lien Obligations and any such DIP Financing and that any Lien on such additional collateral securing the Second Lien Obligations shall be subordinated to the Liens on such collateral securing the First Lien Obligations and any such DIP Financing (and all obligations relating thereto) and any other Liens granted to the First Lien Secured Parties as adequate protection on the same basis as the other Liens securing the Second Lien Obligations are so subordinated to such Liens securing the First Lien Obligations under this Agreement.
(d) Preference Issues . If any First Lien Secured Party is required in any Insolvency or Liquidation Proceeding or otherwise to disgorge, turn over or otherwise pay any amount to the estate of the Parent, the Borrower or any other Grantor (or any trustee, receiver or similar Person therefor), because the payment of such amount was declared to be fraudulent or preferential in any respect or for any other reason, any amount (a “ Recovery ”), whether received as proceeds of security, enforcement of any right of setoff or otherwise, then the First Lien Obligations shall be reinstated to the extent of such Recovery and deemed to be outstanding as if such payment had not occurred and the First Lien Secured Parties shall be entitled to a Discharge of the First Lien Obligations with respect to all such recovered amounts. If this Agreement shall have been terminated prior to such Recovery, this Agreement shall be reinstated in full force and effect, and such prior termination shall not diminish, release, discharge, impair or otherwise affect the obligations of the parties hereto. Each Second Lien Authorized Representative, for itself and on behalf of its Second Lien Secured Parties, hereby agrees that none of them shall be entitled to benefit from any avoidance action affecting or otherwise relating to any distribution or allocation made in accordance with this Agreement, whether by preference or otherwise, it being understood and agreed that the benefit of such avoidance action otherwise allocable to them shall instead be allocated and turned over for application in accordance with the priorities set forth in this Agreement.

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(e) Separate Grants of Security and Separate Classifications . Each Second Lien Authorized Representative, for itself and on behalf of its Second Lien Secured Parties, acknowledges and agrees that (a) the grants of Liens pursuant to the First Lien Security Documents and the Second Lien Security Documents constitute two separate and distinct grants of Liens and (b) because of, among other things, their differing rights in the Shared Collateral, the Second Lien Obligations are fundamentally different from the First Lien Obligations and must be separately classified in any plan of reorganization proposed or adopted in an Insolvency or Liquidation Proceeding. To further effectuate the intent of the parties as provided in the immediately preceding sentence, if it is held that the claims of the First Lien Secured Parties and the Second Lien Secured Parties in respect of the Shared Collateral constitute only one secured claim (rather than separate classes of senior and junior secured claims), then each Second Lien Authorized Representative, for itself and on behalf of its Second Lien Secured Parties, hereby acknowledges and agrees that all distributions shall be made as if there were separate classes of senior and junior secured claims against the Grantors in respect of the Shared Collateral (with the effect being that, to the extent that the aggregate value of the Shared Collateral is sufficient (for this purpose ignoring all claims held by the Second Lien Secured Parties), the First Lien Secured Parties shall be entitled to receive, in addition to amounts distributed to them in respect of principal, pre-petition interest and other claims, all amounts owing in respect of post-petition interest (whether or not allowed or allowable) before any distribution is made in respect of the Second Lien Obligations, with each Second Lien Authorized Representative, for itself and on behalf of its Second Lien Secured Parties, hereby acknowledging and agreeing to turn over to the First Lien Collateral Agent amounts otherwise received or receivable by them to the extent necessary to effectuate the intent of this sentence, even if such turnover has the effect of reducing the claim or recovery of the Second Lien Secured Parties.
(f) No Waivers of Rights of First Lien Secured Parties . Nothing contained herein shall, except as expressly provided herein, prohibit or in any way limit the First Lien Collateral Agent, any First Lien Authorized Representative or any First Lien Secured Party from objecting in any Insolvency or Liquidation Proceeding or otherwise to any action taken by any Second Lien Secured Party, including the seeking by any Second Lien Secured Party of adequate protection or the asserting by any Second Lien Secured Party of any of its rights and remedies under the Second Lien Documents or otherwise.
(g) Application . This Agreement, which the parties hereto expressly acknowledge is a “subordination agreement” under Section 510(a) of Title 11 of the United States Code or any similar provision of any other Bankruptcy Law, shall be effective before, during and after the commencement of any Insolvency or Liquidation Proceeding. The relative rights as to the Shared Collateral and proceeds thereof shall continue after the commencement of any Insolvency or Liquidation Proceeding on the same basis as prior to the date of the petition therefor, subject to any court order approving the financing of, or use of cash collateral by, any Grantor. All references herein to any Grantor shall include such Grantor as a debtor-in-possession and any receiver or trustee for such Grantor.
(h) Other Matters . To the extent that any Second Lien Authorized Representative or any Second Lien Secured Party has or acquires rights under Section 363 or Section 364 of Title 11 of the United States Code or any similar provision of any other Bankruptcy Law with respect to any of the Shared Collateral, such Second Lien Authorized
 
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Representative, on behalf of itself and its Second Lien Secured Parties, agrees not to assert any such rights without the prior written consent of the First Lien Collateral Agent, provided that if requested by the First Lien Collateral Agent, such Second Lien Authorized Representative shall timely exercise such rights in the manner requested by the First Lien Collateral Agent, including any rights to payments in respect of such rights.
(i) 506(c) Claims . Until the Discharge of the First Lien Obligations has occurred, each Second Lien Authorized Representative, on behalf of itself and its Second Lien Secured Parties, agrees that it will not assert or enforce any claim under Section 506(c) of Title 11 of the United States Code or any similar provision of any other Bankruptcy Law senior to or on a parity with the Liens securing the First Lien Obligations for costs or expenses of preserving or disposing of any Shared Collateral.
(j) Reorganization Securities . If, in any Insolvency or Liquidation Proceeding, debt obligations of the reorganized debtor secured by Liens upon any property of the reorganized debtor are distributed, pursuant to a plan of reorganization or similar dispositive restructuring plan, on account of both the First Lien Obligations and the Second Lien Obligations, then, to the extent the debt obligations distributed on account of the First Lien Obligations and on account of the Second Lien Obligations are secured by Liens upon the same assets, the provisions of this Agreement will survive the distribution of such debt obligations pursuant to such plan and will apply with like effect to the Liens securing such debt obligations.
7.
RELIANCE; ETC.
(a) Reliance . The consent by the First Lien Secured Parties to the execution and delivery of the Second Lien Documents to which the First Lien Secured Parties have consented and all loans and other extensions of credit made or deemed made on and after the date hereof by the First Lien Secured Parties to the Parent, the Company or any Subsidiary shall be deemed to have been given and made in reliance upon this Agreement. Each Second Lien Authorized Representative, on behalf of itself and its Second Lien Secured Parties, acknowledges that it and its Second Lien Secured Parties have, independently and without reliance on the First Lien Collateral Agent, any First Lien Authorized Representative or any First Lien Secured Party, and based on documents and information deemed by them appropriate, made their own credit analysis and decision to enter into the Second Lien Documents to which they are party or by which they are bound, this Agreement and the transactions contemplated hereby and thereby, and they will continue to make their own credit decision in taking or not taking any action under the Second Lien Documents or this Agreement.
(b) No Warranties or Liability . Each Second Lien Authorized Representative, on behalf of itself and its Second Lien Secured Parties, acknowledges and agrees that none of the First Lien Collateral Agent, any First Lien Authorized Representative or any First Lien Secured Party has made any express or implied representation or warranty, including with respect to the execution, validity, legality, completeness, collectibility or enforceability of any of the First Lien Documents, the ownership of any Shared Collateral or the perfection or priority of any Liens thereon. The First Lien Secured Parties will be entitled to manage and
 
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supervise their respective loans and extensions of credit under the First Lien Documents in accordance with law and as they may otherwise, in their sole discretion, deem appropriate, and the First Lien Secured Parties may manage their loans and extensions of credit without regard to any rights or interests that the Second Lien Authorized Representatives and the Second Lien Secured Parties have in the Shared Collateral or otherwise, except as otherwise provided in this Agreement. None of the First Lien Collateral Agent, any First Lien Authorized Representative or any First Lien Secured Party shall have any duty to any Second Lien Authorized Representative or Second Lien Secured Party to act or refrain from acting in a manner that allows, or results in, the occurrence or continuance of an event of default or default under any agreement with the Parent, the Borrower or any Subsidiary (including the Second Lien Documents), regardless of any knowledge thereof that they may have or be charged with. Except as expressly set forth in this Agreement, the First Lien Collateral Agent, the First Lien Authorized Representatives, the First Lien Secured Parties, the Second Lien Authorized Representatives and the Second Lien Secured Parties have not otherwise made to each other, nor do they hereby make to each other, any warranties, express or implied, nor do they assume any liability to each other with respect to (a) the enforceability, validity, value or collectibility of any of the First Lien Obligations, the Second Lien Obligations or any guarantee or security which may have been granted to any of them in connection therewith, (b) any Grantor’s title to or right to transfer any of the Shared Collateral or (c) any other matter except as expressly set forth in this Agreement.
(c) Obligations Unconditional . All rights, interests, agreements and obligations of the First Lien Collateral Agent, the First Lien Authorized Representatives, the First Lien Secured Parties, the Second Lien Authorized Representatives and the Second Lien Secured Parties hereunder shall remain in full force and effect irrespective of:
(i) any lack of validity or enforceability of any First Lien Document or any Second Lien Document;
(ii) any change in the time, manner or place of payment of, or in any other terms of, all or any of the First Lien Obligations or Second Lien Obligations, or any amendment or waiver or other modification, including any increase in the amount thereof, whether by course of conduct or otherwise, of the terms of the Bond Facility Agreement, the Credit Facilities Agreement or any other First Lien Document or of the terms of any Second Lien Document;
(iii) any exchange of any security interest in any Shared Collateral or any other collateral or any amendment, waiver or other modification, whether in writing or by course of conduct or otherwise, of all or any of the First Lien Obligations or Second Lien Obligations or any guarantee thereof;
(iv) the commencement of any Insolvency or Liquidation Proceeding in respect of the Parent, the Borrower or any other Grantor; or
(v) any other circumstances that otherwise might constitute a defense available to, or a discharge of, (i) the Parent, the Borrower or any other Grantor in respect of the First Lien Obligations or (ii) any Second Lien Authorized Representative or Second Lien Secured Party in respect of this Agreement.
 
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8.
MISCELLANEOUS
(a) Conflicts . Subject to Section 8.18, in the event of any conflict between the provisions of this Agreement and the provisions of any First Lien Document or any Second Lien Document, the provisions of this Agreement shall govern.
(b) Continuing Nature of this Agreement . Subject to Section 6.04, this Agreement shall continue to be effective until the Discharge of the First Lien Obligations shall have occurred. This is a continuing agreement of Lien subordination, and the First Lien Secured Parties may continue, at any time and without notice to any Second Lien Authorized Representative or Second Lien Secured Party, to extend credit and other financial accommodations and lend monies to or for the benefit of the Parent, the Borrower or any Subsidiary constituting First Lien Obligations in reliance hereon. The terms of this Agreement shall survive and continue in full force and effect in any Insolvency or Liquidation Proceeding.
(c) Severability . In the event any one or more of the provisions contained in this Agreement should be held invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein shall not in any way be affected or impaired thereby. The parties shall endeavor in good-faith negotiations to replace the invalid, illegal or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the invalid, illegal or unenforceable provisions.
(d) Waivers; Amendments; Joinder Agreements . (i) No failure or delay on the part of any party hereto in exercising any right, remedy, power or privilege hereunder shall operate as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder or under any other Security Document preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege hereunder. The rights and remedies herein expressly provided of the parties hereto are cumulative and not exclusive of any rights or remedies which they would otherwise have. No waiver of any provision of this Agreement, or consent to any departure by any party hereto herefrom shall in any event be effective unless the same shall be permitted by paragraph (b) below, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. No notice or demand on any party hereto in any case shall entitle such party to any other or further notice or demand in similar or other circumstances.
(ii) Neither this Agreement nor any provision hereof may be terminated, waived, amended, supplemented or otherwise or modified (other than as supplemented pursuant to any First Lien Authorized Representative Joinder Agreement, Second Lien Authorized Representative Joinder Agreement or Grantor Joinder Agreement) except pursuant to an agreement or agreements in writing entered into by each First Lien Authorized Representative (acting in accordance with the applicable First Lien Documents) and each Second Lien Authorized Representative (acting in accordance with the applicable Second Lien Documents); provided that no such termination, waiver, amendment, supplement or modification shall amend, modify or otherwise affect the rights or obligations of any Grantor without such Grantor’s prior written consent.
 
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(iii) Notwithstanding the foregoing:
(1) without the consent of any Secured Party, any First Lien Authorized Representative may become a party hereto by execution and delivery of an First Lien Authorized Representative Joinder Agreement in accordance with Section 6.18(a) of the First Lien Security Agreement and upon such execution and delivery, such First Lien Authorized Representative and the First Lien Secured Parties and First Lien Obligations of the Series for which such First Lien Authorized Representative is acting shall be subject to the terms hereof;
(2) without the consent of any Secured Party, any Second Lien Authorized Representative may become a party hereto by execution and delivery of a Second Lien Authorized Representative Joinder Agreement in accordance with Section 8.10(b) of this Agreement and upon such execution and delivery, such Second Lien Authorized Representative and the Second Lien Secured Parties and Second Lien Obligations of the Series for which such Second Lien Authorized Representative is acting shall be subject to the terms hereof; and
(3) without the consent of any party hereto, any Subsidiary or direct or indirect parent company of the Parent may become a party hereto by execution and delivery of a Grantor Joinder Agreement in accordance with Section 8.08 and upon such execution and delivery, such Subsidiary or direct or indirect parent company of the Parent shall be subject to the terms hereof.
(e) Information Concerning Financial Condition of the Parent, the Borrower and the Subsidiaries . The First Lien Collateral Agent, the First Lien Authorized Representatives, the First Lien Secured Parties, the Second Lien Authorized Representatives and the Second Lien Secured Parties shall each be responsible for keeping themselves informed of (a) the financial condition of the Parent, the Borrower and the Subsidiaries and all endorsers or guarantors of the First Lien Obligations or the Second Lien Obligations and (b) all other circumstances bearing upon the risk of nonpayment of the First Lien Obligations or the Second Lien Obligations. The First Lien Collateral Agent, the First Lien Authorized Representatives, the First Lien Secured Parties, the Second Lien Authorized Representatives and the Second Lien Secured Parties shall have no duty to advise any other party hereunder of information known to it or them regarding such condition or any such circumstances or otherwise. In the event that the First Lien Collateral Agent, any First Lien Authorized Representative, any First Lien Secured Party, any Second Lien Authorized Representative or any Second Lien Secured Party, in its sole discretion, undertakes at any time or from time to time to provide any such information to any other party, it shall be under no obligation to (i) make, and the First Lien Collateral Agent, the First Lien Authorized Representatives, the First Lien Secured Parties, the Second Lien Authorized Representatives and the Second Lien Secured Parties shall not make or be deemed to have made, any express or implied representation or warranty, including with respect to the accuracy, completeness, truthfulness or validity of any such information so provided, (ii) provide any additional information or to provide any such information on any subsequent occasion, (iii) undertake any investigation or (iv) disclose any information that, pursuant to accepted or reasonable commercial finance practices, such party wishes to maintain confidential or is otherwise required to maintain confidential.
 
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(f) Subrogation . Each Second Lien Authorized Representative, on behalf of itself and its Second Lien Secured Parties, hereby waives any rights of subrogation it may acquire as a result of any payment hereunder until the Discharge of the First Lien Obligations has occurred.
(g) Application of Payments . Except as otherwise provided herein, all payments received by the First Lien Secured Parties may be applied, reversed and reapplied, in whole or in part, to such part of the First Lien Obligations as the First Lien Secured Parties, in their sole discretion, deem appropriate, consistent with the terms of the First Lien Documents. Except as otherwise provided herein, each Second Lien Authorized Representative, on behalf of itself and its Second Lien Secured Parties, assents to any such extension or postponement of the time of payment of the First Lien Obligations or any part thereof and to any other indulgence with respect thereto, to any substitution, exchange or release of any security that may at any time secure any part of the First Lien Obligations and to the addition or release of any other Person primarily or secondarily liable therefor.
(h) Additional Grantors . If any Subsidiary or direct or indirect parent company of the Parent grants a security interest pursuant to any Security Document to secure any Series of Secured Obligations, the Parent and the Borrower will, substantially concurrently therewith, cause such Subsidiary or direct or indirect parent company of the Parent, if not already a party hereto, to become a party hereto as a “Grantor”. Upon execution and delivery by the First Lien Collateral Agent, the Designated Second Lien Authorized Representative and such Subsidiary or direct or indirect parent company of the Parent of a Grantor Joinder Agreement, such Subsidiary or direct or indirect parent company of the Parent shall become a Grantor hereunder with the same force and effect as if originally named as a Grantor herein. The execution and delivery of any Grantor Joinder Agreement shall not require the consent of any other party hereto. The rights and obligations of each party hereto hereunder shall remain in full force and effect notwithstanding the addition of any new Grantor as a party to this Agreement.
(i) Dealings with Grantors . Upon any application or demand by the Parent, the Borrower or any other Grantor to the First Lien Collateral Agent, the Applicable First Lien Secured Parties, the Designated Second Lien Authorized Representative or the Applicable Second Lien Secured Parties to take or permit any action under any of the provisions of this Agreement or under any Security Document (if such action is subject to the provisions hereof), the Parent, the Company or such other Grantor, as appropriate, shall furnish to the Designated Second Lien Authorized Representative or the First Lien Collateral Agent a certificate of an appropriate officer (an “ Officer’s Certificate ”) stating that all conditions precedent, if any, provided for in this Agreement or such Security Document, as the case may be, relating to the proposed action have been complied with, except that in the case of any such application or demand as to which the furnishing of such documents is specifically required by any provision of this Agreement or any Security Document relating to such particular application or demand, no additional certificate or opinion need be furnished.
(j) Additional First Lien Obligations; Additional Second Lien Obligations . (i) On or after the date hereof and so long as such Indebtedness is permitted to be incurred under the First Lien Documents and Second Lien Documents then in effect, the

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Borrower may from time to time designate Indebtedness to be secured on a pari passu basis with the First Lien Obligations as First Lien Obligations under this Agreement by satisfying the conditions set forth in clauses (i) through (iv) of Section 6.18(a) of the First Lien Security Agreement.
(ii) On or after the date hereof and so long as such Indebtedness is permitted to be incurred under the First Lien Documents and Second Lien Documents then in effect, the Borrower may from time to time designate Indebtedness to be secured on a second lien, subordinated basis to the First Lien Obligations as Additional Second Lien Obligations under this Agreement by satisfying the conditions set forth in clauses (i) through (iv) of this Section 8.10(b). In order for such Indebtedness (the “ New Second Lien Obligations ”) to be secured on a second lien, subordinated basis to the First Lien Obligations as Additional Second Lien Obligations under this Agreement:
(1) the Borrower shall have delivered to the First Lien Collateral Agent and the Designated Second Lien Authorized Representative (A) a certificate signed by a Responsible Officer of the Parent and the Borrower (1) identifying the New Second Lien Obligations and the initial aggregate principal amount or face amount thereof, (2) stating that the New Second Lien Obligations are designated as Additional Second Lien Obligations for purposes hereof, and (3) representing that the designation of the New Second Lien Obligations as Additional Second Lien Obligations complies with the provisions of the First Lien Documents and Second Lien Documents then in effect, and (B) true and complete copies of each of the operative agreements evidencing or governing such New Second Lien Obligations (the “ New Second Lien Documents ”), certified as being true and correct by a Responsible Officer of the Parent and the Borrower;
(2) the representative (as determined by the First Lien Collateral Agent and the Designated Second Lien Authorized Representative) acting on behalf of the holders of the New Second Lien Obligations (the “ New Second Lien Authorized Representative ”), the First Lien Collateral Agent, the Designated Second Lien Authorized Representative and each Loan Party shall have executed and delivered a Second Lien Authorized Representative Joinder Agreement pursuant to which the New Second Lien Authorized Representative shall have become a Second Lien Authorized Representative under this Agreement, and the New Second Lien Obligations and the holders thereof (the “ New Second Lien Secured Parties ”) shall have become subject to, and bound by, this Agreement;
(3) all filings, recordations and/or amendments or supplements to the Second Lien Security Documents necessary or desirable in the reasonable judgment of the Designated Second Lien Authorized Representative to confirm and perfect the Liens securing the New Second Lien Obligations shall have been made, executed and/or delivered (or, with respect to any such filings or recordations, acceptable provisions to perform such filings or recordings have been taken in the reasonable judgment of the Designated Second Lien Authorized Representative), and all fees and taxes in connection therewith shall have been paid (or acceptable provisions to make such payments have been taken in the reasonable judgment of the Designated Second Lien Authorized Representative); and
 
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(4) the New Second Lien Documents shall provide, in a manner reasonably satisfactory to the First Lien Collateral Agent and the Designated Second Lien Authorized Representative, that each New Second Lien Secured Party will be subject to and bound by the provisions of this Agreement in its capacity as a holder of the New Second Lien Obligations.
(k) Jurisdiction; Consent to Service of Process . The First Lien Collateral Agent and each Authorized Representative, on behalf of itself and the Secured Parties of the Series for whom it is acting, irrevocably and unconditionally:
(i) submits, for itself and its property, to the exclusive jurisdiction of any New York State court or federal court of the United States sitting in New York City, New York County, and any appellate court from any thereof, in any action or proceeding arising out of or relating to this Agreement, or for recognition or enforcement of any judgment, and agrees that all claims in respect of any such action or proceeding shall be heard and determined in such New York State Court or, to the extent permitted by law, in such federal court;
(ii) consents to the service of process in any action or proceeding in such courts by the mailing thereof by any parties thereto by registered or certified mail, postage prepaid, to such Person (or its Authorized Representative) at the address specified in Section 8.16;
(iii) agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law;
(iv) waives, to the fullest extent it may legally and effectively do so, any objection which it may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to this Agreement in any New York State or federal court;
(v) waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of such action or proceeding in any such court; and
(vi) waives, to the maximum extent not prohibited by law, any right it may have to claim or recover in any action or proceeding referred to in this Section 8.11 any special, exemplary, punitive or consequential damages.
(l) Notices . (i) Notices and other communications provided for herein shall be in writing and shall be delivered by hand or overnight courier service, mailed by certified or registered mail or sent by telecopy, as follows:
(1) if to the Parent, the Company or any other Grantor, to the Borrower at HFOTCO LLC, 1201 South Sheldon road, Houston, TX 77015, Attention of Michael Mangan, (Fax No.: (281) 452-6306) (email: mmangan@hfotco.com) with a copy to c/o Alinda Capital Partners LLC, 100 West Putnam Avenue, 3 rd Floor, Greenwich, CT 06830, Attention of Ravi Purohit, (Fax No.: (203) 930-3880) (email: ravi.purohit@alinda.com);
 
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(2) if to the First Lien Collateral Agent or the Bond Facility Administrative Agent, to it at Bank of America, N.A., Agencty Management East, 900 W Trade Street, NC1-026-06-03, Charlotte, NC 28255, Attention of Priscilla Baker (Fax No.: 704 409-0918) (email: priscilla.l.baker@baml.com);
(3) if to the Credit Facilities Administrative Agent, to it at Morgan Stanley Senior Funding, Inc., 1 New York Plaza, New York, NY 10004, Attention of Morgan Stanley Agency Servicing (email: msagency@morganstanley.com);
(4) if to the Initial Second Lien Authorized Representative to it at [•], Attention of [•] (Fax No.: [•]) (email: [•]); and
(5) if to any other Authorized Representative, to it at the address set forth in the applicable First Lien Authorized Representative Joinder Agreement or Second Lien Authorized Representative Joinder Agreement.
(ii) The First Lien Collateral Agent and any Authorized Representative may, in its discretion, agree to accept notices and other communications to it hereunder by electronic communications pursuant to procedures approved by it; and provided, further, that approval of such procedures may be limited to particular notices or communications.
(iii) All notices and other communications given to any party hereto in accordance with the provisions of this Agreement shall be deemed to have been given on the date of receipt if delivered by hand or overnight courier service, sent by telecopy or (to the extent permitted by paragraph (b) above) electronic means or on the date five Business Days after dispatch by certified or registered mail if mailed, in each case delivered, sent or mailed (properly addressed) to such party as provided in this Section 8.12 or in accordance with the latest unrevoked direction from such party given in accordance with this Section 8.12.
(iv) Any party hereto may change its address or telecopy number for notices and other communications hereunder by notice to the other parties hereto.
(m) Further Assurances . Each of the First Lien Collateral Agent, on behalf of itself and each First Lien Secured Party, and each Second Lien Authorized Representative, on behalf of itself and its Second Lien Secured Parties, agrees that it will take such further action and shall execute and deliver such additional documents and instruments (in recordable form, if requested) as the other parties hereto may reasonably request to effectuate the terms of, and the Lien priorities contemplated by, this Agreement.
(n) Governing Law . THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICTS OF LAW PROVISIONS THAT WOULD RESULT IN THE APPLICATION OF ANY OTHER LAW.
 
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(o) WAIVER OF JURY TRIAL . EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT. EACH PARTY HERETO (i) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (ii) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 8.15 .
(p) Successors and Assigns . This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns, as well as the other Secured Parties, all of whom are intended to be bound by, and to be third party beneficiaries of, this Agreement.
(q) Headings . Article and Section headings used herein are for convenience of reference only, are not part of this Agreement and are not to affect the construction of, or to be taken into consideration in interpreting, this Agreement.
(r) Counterparts . This Agreement may be executed in two or more counterparts, each of which shall constitute an original but all of which, when taken together, shall constitute but one contract. Delivery of an executed counterpart to this Agreement by facsimile transmission or electric transmission in “.pdf’ or comparable format shall be as effective as delivery of a manually signed original.
(s) Authorization . By its signature, each Person executing this Agreement on behalf of a party hereto represents and warrants to the other parties hereto that it is duly authorized to execute this Agreement. The First Lien Collateral Agent represents and warrants that this Agreement is binding upon the First Lien Secured Parties. The Initial Second Lien Authorized Representative represents and warrants that this Agreement is binding upon the Initial Second Lien Secured Parties.
(t) First Lien Collateral Agent . It is understood and agreed that the First Lien Collateral Agent is entering into this Agreement in its capacity as First Lien Collateral Agent under the First Lien Intercreditor Agreement, and the provisions of Article VI of the First Lien Intercreditor Agreement applicable to it as collateral agent thereunder shall also apply to it as First Lien Collateral Agent hereunder.
(u) Provisions Solely to Define Relative Rights . (i) The provisions of this Agreement are and are intended solely for the purpose of defining the relative rights of the First Lien Secured Parties, on the one hand, and the Second Lien Secured Parties, on the other hand. None of the Parent, the Borrower, any other Loan Party or any other creditor thereof shall have any rights or obligations hereunder, except as expressly provided in this Agreement.
 
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(ii) Notwithstanding anything in this Agreement to the contrary (except to the extent contemplated by Section 5.01(a), 5.01(d) or 5.03(b)), nothing in this Agreement is intended to or will (i) amend, waive or otherwise modify the provisions of the Bond Facility Agreement, the Credit Facilities Agreement, any other First Lien Document or any Second Lien Document, or permit the Parent, the Borrower or any other Grantor to take any action, or fail to take any action, to the extent such action or failure would otherwise constitute a breach of, or default under, the Bond Facility Agreement, the Credit Facilities Agreement or any other First Lien Document or any Second Lien Document, (ii) change the relative priorities of the First Lien Obligations or the Liens granted under the First Lien Security Documents on the Shared Collateral (or any other assets) as among the First Lien Secured Parties, (iii) otherwise change the relative rights of the First Lien Secured Parties in respect of the Shared Collateral as among such First Lien Secured Parties or (iv) obligate the Parent, the Borrower or any other Grantor to take any action, or fail to take any action, that would otherwise constitute a breach of, or default under, the Bond Facility Agreement, the Credit Facilities Agreement or any other First Lien Document or any Second Lien Document. Nothing in this Agreement is intended to or shall impair the obligations of any Loan Party, which are absolute and unconditional, to pay the First Lien Obligations and the Second Lien Obligations as and when the same shall become due and payable in accordance with their terms.
(v) Survival . All agreements, statements, representations and warranties made by any party hereto in this Agreement or in any certificate or other instrument delivered by any party hereto or on its behalf under this Agreement shall be considered to have been relied upon by the other parties hereto and shall survive the execution and delivery of this Agreement.
 
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their respective authorized officers as of the day and year first above written.

BANK OF AMERICA, N.A.,
as First Lien Collateral Agent and Bond Facility Administrative Agent,	
			
	 	by	 	 	
	 		 	Name:	 		
	 		 	Title:	 		
	
MORGAN STANLEY SENIOR FUNDING, INC.,
as Credit Facilities Administrative Agent,	
			
	 	by	 	 	
	 		 	Name:	 		
	 		 	Title:	 		
	
BUFFALO GULF COAST TERMINALS LLC,
as the Parent	
			
	 	by	 	 	
	 		 	Name:	 		
	 		 	Title:	 		
	
HFOTCO LLC,
as the Borrower	
			
	 	by	 	 	
	 		 	Name:	 		
	 		 	Title:	 		
	
[OTHER GRANTORS],
as a Grantor	
			
	 	by	 	 	
	 		 	Name:	 		
	 		 	Title:	 		
[        ],	 		 		 		
as Initial Second Lien Authorized Representative	
			
	 	by	 	 	
	 		 	Name:	 		
	 		 	Title:	 		
 
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ANNEX I
Grantors
Buffalo Gulf Coast Terminals LLC
HFOTCO LLC

EXHIBIT A
TO SECOND LIEN INTERCREDITOR AGREEMENT
SECOND LIEN AUTHORIZED REPRESENTATIVE JOINDER AGREEMENT
This SECOND LIEN AUTHORIZED REPRESENTATIVE JOINDER AGREEMENT, dated as of [ ], 20[ ] (this “ Joinder Agreement ”), is being delivered by [ ] (the “ New Second Lien Authorized Representative ”) pursuant to requirements of the Second Lien Intercreditor Agreement, dated as of [ ], 20[ ] (as amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “ Intercreditor Agreement ”), by and among BUFFALO GULF COAST TERMINALS LLC, HFOTCO LLC, the other Grantors party thereto, BANK OF AMERICA, N.A., as the First Lien Collateral Agent and as First Lien Authorized Representative for the Bond Facility Secured Parties, MORGAN STANLEY SENIOR FUNDING, INC., as First Lien Authorized Representative for the Credit Facilities Secured Parties, [ ], as Second Lien Authorized Representative for the Initial Second Lien Secured Parties, and each additional Authorized Representative that from time to time becomes a party thereto in accordance with Section 8.10 thereof. Capitalized terms used herein without definition shall have the meaning assigned thereto in the Intercreditor Agreement, as applicable.
RECITALS :
WHEREAS, the Borrower desires to designate the Indebtedness described in Schedule A (the “ New Second Lien Obligations ”) as Additional Second Lien Obligations under the Intercreditor Agreement, which New Second Lien Obligations will be secured on a second lien, subordinated basis to the First Lien Obligations.
WHEREAS, the Intercreditor Agreement require that the New Second Lien Authorized Representative deliver this Joinder Agreement to the First Lien Collateral Agent and the Designated Second Lien Authorized Representative; and
WHEREAS, the New Second Lien Authorized Representative has agreed to execute and deliver this Joinder Agreement in order for (a) the New Second Lien Authorized Representative to become a Second Lien Authorized Representative under the Intercreditor Agreement, (b) the New Second Lien Authorized Representative to become party to the Intercreditor Agreement and (c) the New Second Lien Obligations and the holders thereof (the “ New Second Lien Secured Parties ”) to become subject to, and bound by, the Intercreditor Agreement.
NOW, THEREFORE, it is agreed as follows:
1. In accordance with Section 8.10(b) of the Intercreditor Agreement, the New Second Lien Authorized Representative by its signature below becomes a Second Lien Authorized Representative under, and the related New Second Lien Obligations and New Second Lien Secured Parties become subject to and bound by, the Intercreditor Agreement with the same force and effect as if the New Second Lien Authorized Representative had originally been named therein as a Second Lien Authorized Representative, and the New Second Lien Authorized Representative, on behalf of itself and such New Second Lien Secured Parties, hereby agrees to all the terms and provisions of the Intercreditor Agreement applicable to it as a Second Lien Authorized Representative and to the New Second Lien Secured Parties that it represents as
 
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Additional Second Lien Secured Parties. From and after the date hereof, the New Second Lien Authorized Representative shall be a party to the Intercreditor Agreement as a Second Lien Authorized Representative thereunder as if originally a signatory thereto.
Each reference to a “ Second Lien Authorized Representative ” and an “ Authorized Representative ” in the Intercreditor Agreement shall be deemed to include the New Second Lien Authorized Representative.
2. The New Second Lien Authorized Representative represents and warrants to the First Lien Collateral Agent, the Designated Second Lien Authorized Representative and the other Secured Parties that (a) it has full power and authority to enter into this Joinder Agreement, in its capacity as [agent] [trustee], (b) this Joinder Agreement has been duly authorized, executed and delivered by it and constitutes its legal, valid and binding obligation, enforceable against it in accordance with the terms hereof and (c) the operative documents evidencing or governing the New Second Lien Obligations (the “ New Second Lien Documents ”) provide that, upon the New Second Lien Authorized Representative’s entry into this Joinder Agreement, the New Second Lien Secured Parties will be subject to and bound by the provisions of the Intercreditor Agreement as Additional Second Lien Secured Parties.
3. All communications and notices hereunder shall be in writing and given as provided in Section 8.12 of the Intercreditor Agreement. All communications and notices hereunder to the New Second Lien Authorized Representative shall be given to it at the address set forth below its signature hereto.
5. This Joinder Agreement may be executed in two or more counterparts, each of which shall constitute an original but all of which when taken together shall constitute one contract.
6. THIS JOINDER AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICTS OF LAW PROVISIONS THAT WOULD RESULT IN THE APPLICATION OF ANY OTHER LAW.
7. The provisions of Article VIII of the Intercreditor Agreement shall apply with like effect to this Joinder Agreement.
[ Signature Pages Follow ]
 
K-A – 2

IN WITNESS WHEREOF, each of the undersigned has caused this Joinder Agreement to be duly executed and delivered, and the certification and warranties contained herein to be made, as of the date first above written.

[NAME OF NEW SECOND LIEN AUTHORIZED REPRESENTATIVE], as [ ] for the holders of [ ]	

By:	 	 	
Name:	 		
Title:	 		
	
Address for notices:	

 	
attention of:	 	 	
Telecopy:	 	 	

Acknowledged and Agreed:	
	
BANK OF AMERICA, N.A.,
as First Lien Collateral Agent	

By:	 	 	
Name:	 		
Title:	 		
		
[ ],	 		
			
as Designated Second Lien Authorized Representative	

By:	 	 	
Name:	 		
Title:	 		

BUFFALO GULF COAST TERMINALS LLC,	
[Signature Page to Second Lien Authorized Representative Joinder Agreement]

			
By:	 	 	
Name:	 		
Title:	 		

HFOTCO LLC,	

By:	 	 	
Name:	 		
Title:	 		

[OTHER GRANTORS],	

By:	 	 	
Name:	 		
Title:	 		
[Signature Page to Second Lien Authorized Representative Joinder Agreement]

EXHIBIT B
TO SECOND LIEN INTERCREDITOR AGREEMENT
GRANTOR JOINDER AGREEMENT
This GRANTOR JOINDER AGREEMENT, dated as of [ ], 20[ ] (this “Joinder Agreement”), is being delivered by [ ], a [ ] (the “New Grantor”), pursuant to requirements of the Intercreditor Agreement, dated as of [ ], 2014 (as amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “ Intercreditor Agreement ”), by and among BUFFALO GULF COAST TERMINALS LLC, HFOTCO LLC, the other Grantors party thereto, BANK OF AMERICA, N.A., as the First Lien Collateral Agent and as First Lien Authorized Representative for the Bond Facility Secured Parties, MORGAN STANLEY SENIOR FUNDING, INC., as First Lien Authorized Representative for the Credit Facilities Secured Parties, [ ], as Second Lien Authorized Representative for the Initial Second Lien Secured Parties, and each additional Authorized Representative that from time to time becomes a party thereto in accordance with Section 8.10 thereof. Capitalized terms used herein without definition shall have the meaning assigned thereto in the Intercreditor Agreement.
RECITALS :
WHEREAS, Section 8.08 of the Intercreditor Agreement provides that Subsidiaries and direct or indirect parent companies of the Parent may become Grantors under the Intercreditor Agreement by execution and delivery of an instrument in the form of this Joinder Agreement; and
WHEREAS, the New Grantor is executing this Joinder Agreement in accordance with the requirements of the Intercreditor Agreement to become a Grantor under the Intercreditor Agreement in order to induce the Secured Parties to make additional loans and other extensions of credit and as consideration for loans and other extensions of credit previously made.
NOW, THEREFORE, it is agreed as follows:
1. In accordance with Section 8.08 of the Intercreditor Agreement, the New Grantor by its signature below becomes a Grantor under the Intercreditor Agreement with the same force and effect as if originally named therein as a Grantor and the New Grantor hereby (a) agrees to all the terms and provisions of the Intercreditor Agreement applicable to it as a Grantor thereunder and (b) represents and warrants that the representations and warranties made by it as a Grantor thereunder are true and correct on and as of the date hereof. Each reference to a “Grantor” in the Intercreditor Agreement shall be deemed to include the New Grantor. The Intercreditor Agreement is hereby incorporated herein by reference.
2. The New Grantor represents and warrants to the First Lien Collateral Agent and each Authorized Representative that this Joinder Agreement has been duly authorized, executed and delivered by it and constitutes its legal, valid and binding obligation, enforceable against it in accordance with its terms.
 
K-B – 1

3. This Joinder Agreement may be executed in two or more counterparts, each of which shall constitute an original but all of which when taken together shall constitute one contract.
4. THIS JOINDER AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICTS OF LAW PROVISIONS THAT WOULD RESULT IN THE APPLICATION OF ANY OTHER LAW.
5. The provisions of Article VIII of the Intercreditor Agreement shall apply with like effect to this Joinder Agreement.
 
K-B – 2

IN WITNESS WHEREOF, each of the undersigned has caused this Joinder Agreement to be duly executed and delivered, and the certification and warranties contained herein to be made, as of the date first above written.

[NEW GRANTOR]	

By:	 	 	
Name:	 		
Title:	 		

Acknowledged and Agreed:	
	
BANK OF AMERICA, N.A.,
as First Lien Collateral Agent	

By:	 	 	
Name:	 		
Title:	 		
		
[ ],	 		
			
as Designated Second Lien Authorized Representative	

By:	 	 	
Name:	 		
Title:	 		

Exhibit 10.3
EXECUTION VERSION
CONSENT AND AMENDMENT NO. 1
TO
CREDIT AGREEMENT
This CONSENT AND AMENDMENT NO. 1 dated as of June 14, 2017 (this “ Amendment ”) is by and among BUFFALO GULF COAST TERMINALS LLC (“ Parent ”), HFOTCO LLC (“ Borrower ”), MORGAN STANLEY SENIOR FUNDING, INC., as administrative agent (the “ Administrative Agent ”), and the LENDERS signatory hereto constituting “Required Lenders” and amends, and provides consent under, that certain Credit Agreement dated as of August 19, 2014 (as amended, restated, extended, supplemented, modified and otherwise in effect from time to time, the “ Credit Agreement ”) by and among Parent, Borrower, the Administrative Agent, Bank of America, N.A., as collateral agent and the persons from time to time party thereto as “Lenders” (the “ Lenders ”). Capitalized terms used herein without definition shall have the meanings assigned to such terms in the Credit Agreement.
WHEREAS, the indirect owners of Parent have entered into to a Purchase and Sale Agreement, dated on or about the date hereof (as amended, modified or otherwise supplemented from time to time, the “ Purchase and Sale Agreement ”), by and among Buffalo Investor I. LP, Buffalo Investor II, LP, Alinda Infrastucture Fund II, L.P. (solely for the limited purposes specified therein), Alinda Infrastructure Parallel Fund II, L.P. (solely for the limited purposes specified therein), Beachhead I LLC (“ Buyer I ”), Beachhead II LLC (“ Buyer II ”, and together with Buyer I, the “ Buyers ”) and SemGroup Corporation;
WHEREAS, pursuant to the Purchase and Sale Agreement, the Buyers, either directly or through one or more wholly owned subsidiaries of the applicable Buyer, intend to acquire in the aggregate 100% of the membership interests of Buffalo Parent Gulf Coast Terminals LLC (the “ Acquisition ”), the immediate parent entity of Parent;
WHEREAS, the consummation of the transactions contemplated by the Purchase and Sale Agreement would constitute a Change of Control under clause (a)(i) of the definition thereof (the “ Specified Change of Control ”), and such occurrence would constitute an Event of Default under Section 7.01(1) of the Credit Agreement;
WHEREAS, in connection with the Specified Change of Control, the Buyers have requested that the definition of “Change of Control” and certain other provisions be amended substantially contemporaneously with the Acquisition;
WHEREAS, the Lenders party hereto, constituting the Required Lenders, have agreed, on the terms and conditions set forth herein (i) to consent under the Credit Agreement and related Loan Documents to the Specified Change of Control and (ii) to amend the definition of “Change of Control” and certain other provisions as noted below.

NOW THEREFORE, in consideration of the mutual agreements contained in the Credit Agreement and herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows:
§1. Consent
§1.1. As of the Effective Date (as defined below), the Required Lenders consent to the Specified Change of Control and agree that no Default or Event of Default shall arise under Section 7.01(1) of the Credit Agreement or otherwise under any Loan Document due to the Specified Change of Control.
§2. Amendments to the Credit Agreement.
In reliance upon the representations, warranties and covenants set forth herein and effective as of the Effective Date, the Credit Agreement shall be amended in the manner set forth in this Section 2 :
§2.1. Amendment to Section 1.01 . Section 1.01 of the Credit Agreement shall be amended by amending and restating the definition of “Applicable Margin” as follows:
“ Applicable Margin ” shall mean (a) in the case of Tranche B Term Loans, (i) with respect to ABR Loans, a rate per annum equal to 2.50%, and (ii) with respect to Eurodollar Loans, a rate per annum equal to 3.50%, (b) in the case of any Incremental Term Loans of any Series, the rate per annum specified in the Incremental Facility Agreement establishing the Incremental Term Commitments of such Series, and (c) in the case of Revolving Loans (i) with respect to ABR Loans, a rate per annum equal to 2.25%, and (ii) with respect to Eurodollar Loans, a rate per annum equal to 3.25%.
§2.2. Amendment to Section 1.01 . Section 1.01 of the Credit Agreement shall be amended by adding the following definition, which shall read in its entirety as follows:
“ Buffalo Parent ” means Buffalo Parent Gulf Coast Terminals LLC, a Delaware limited liability company.
§2.3. Amendment to Section 1.01 . The definition of “Change of Control” appearing in Section 1.01 of the Credit Agreement shall be amended by (i) deleting the reference to “Sponsor” therein and (ii) replacing it with “Permitted Holders” in lieu thereof.
§2.4. Amendment to Section 1.01 . Section 1.01 of the Credit Agreement shall be amended by adding the following definition, which shall read in its entirety as follows:
“ Permitted Holders ” means (i) SemGroup Corporation, a Delaware corporation or (ii) Sponsor.
§2.5. Amendment to Section 2.11(c). Section 2.11(c) of the Credit Agreement shall be amended and restated in its entirety as follows:
“(c) Call Protection. In the event that all or any portion of the Tranche B Term Loans are (i) prepaid through any voluntary prepayments, (ii) prepaid pursuant to Section 2.11(b)(iv) or (iii) repriced (including pursuant to any amendment, waiver or consent with respect to this Agreement) (in each case, in connection with (A) any amendment, waiver or consent with respect to this Agreement directed at, or the result of which would be, the lowering of the effective interest cost or the Weighted Average Yield of the Tranche B Term Loans (or portion thereof) or (B) the incurrence of any Indebtedness having an effective interest cost or Weighted Average Yield that is less than
 
- 2 -

the effective interest cost or Weighted Average Yield of the Tranche B Term Loans (or portion thereof) so prepaid or repriced (a “Repricing Transaction”)) occurring on or prior to December 14, 2017, such prepayment or repricing will be made at 101.0% of the principal amount so prepaid or repriced. If all or any portion of the Tranche B Term Loans held by any Lender are effectively prepaid, refinanced or replaced pursuant to Section 2.19 as a result of, or in connection with, such Lender not agreeing or otherwise consenting to any amendment, waiver, or consent referred to in clause (iii) above (or otherwise in connection with a Repricing Transaction) occurring on or prior to December 14, 2017, such effective prepayment, refinancing or replacement of the Tranche B Term Loans of such Lender will be made at 101.0% of the principal amount of such Tranche B Term Loans so prepaid, refinanced or replaced.”
§2.6. Amendment to Section 5.04(a). Section 5.04(a) of the Credit Agreement shall be amended by (a) deleting each reference to “Parent” therein and replacing it with “Buffalo Parent” in lieu thereof, and (b) adding the following clause at the end thereof:
“; provided, that if, at any time, Buffalo Parent (I) ceases to directly and beneficially own 100% on a fully diluted basis of the economic and voting interests in the Equity Interests in the Parent, or (II) engages in any business or activity, or owns any assets, other than owning 100% of the economic and voting interests in the Equity Interests in the Parent and activities and assets incidental or related thereto, the financial statements required to be delivered pursuant to this Section 5.04(a) shall be the financial statements of the Parent and the Subsidiaries.”
§2.7. Amendment to Section 5.04(b). Section 5.04(b) of the Credit Agreement shall be amended by (a) deleting each reference to “Parent” therein and replacing it with “Buffalo Parent” in lieu thereof, and (b) adding the following clause at the end thereof:
“; provided, that if, at any time, Buffalo Parent (I) ceases to directly and beneficially own 100% on a fully diluted basis of the economic and voting interests in the Equity Interests in the Parent, or (II) engages in any business or activity, or owns any assets, other than owning 100% of the economic and voting interests in the Equity Interests in the Parent and activities and assets incidental or related thereto, the financial statements required to be delivered pursuant to this Section 5.04(b) shall be the financial statements of the Parent and the Subsidiaries.”
§2.8. Amendment to Section 5.08. Section 5.08 of the Credit Agreement shall be amended by deleting the phrase “of the Parent” in the introductory clause thereof.
§2.9. Amendment to Section 5.13 . Section 5.13(a) of the Credit Agreement shall be amended by adding the following sentence at the end thereof: “For the avoidance of doubt, the maintenance by a Permitted Holder or one or more Affiliates of a Permitted Holder of insurance policies on behalf of Parent, Borrower and the other Restricted Subsidiaries shall constitute compliance with this Section 5.13(a) if such policies otherwise satisfy the requirements specified in this Section 5.13(a).”
§2.10. Amendment to Section 6.08(g) . Section 6.08(g) of the Credit Agreement shall be amended by deleting the reference to “the Sponsor” therein and replacing it with “any Permitted Holder” in lieu thereof.
 
- 3 -

§2.11. Amendment to Schedule 9.01 . Schedule 9.01 of the Credit Agreement shall be amended by restating the notices information for the Borrower in its entirety as follows:

	 	“The Borrower and the Loan	  	HFOTCO LLC	
	 	Parties:	  	1201 South Sheldon Road	
	 		  	Houston, TX 77015	
	 		  	Attention:        Shaun Revere	
	 		  	Facsimile:       713-948-7553	
	 		  	Telephone:      713-948-7503	
	 		  	Email: srevere@hfotco.com	
			
	 		  	with a copy to:	
	 		  	SemGroup Corporation	
	 		  	Attention: General Counsel	
	 		  	6120 S. Yale Avenue	
	 		  	Suite 700	
	 		  	Tulsa, OK 74136	
	 		  	Email: WGAULT@SEMGROUPCORP.COM”	
§3. Affirmation and Acknowledgment . Each of Parent and Borrower hereby ratifies and confirms all of its obligations to the Lenders and the Administrative Agent under the Credit Agreement and the other Loan Documents, as amended hereby and acknowledges and agrees that the Credit Agreement and the other Loan Documents, as amended hereby, shall remain in full force and effect in accordance with their respective terms. By signature hereto, the (a) Parent confirms and agrees that it has no defense to enforcement of the Guaranty Agreement, and that according to its terms, the Guaranty Agreement will continue in full force and effect to guaranty the Borrower’s obligations under the Loan Documents and the other amounts described in the Guaranty Agreement following execution of this Amendment and the occurrence of the Effective Date and (b) Parent and Borrower confirm and agree that all Liens now or hereafter held by the Collateral Agent for the benefit of the Secured Parties as security for payment of the Obligations remain in full force and effect.
§4. Representations and Warranties . Each of Parent and Borrower hereby represent and warrant to the Lenders and the Administrative Agent as follows:
(a) Prior to and after giving effect to this Amendment, the representations of the Parent and the Borrower contained in Article III of the Credit Agreement and any other Loan Document are true and correct in all material respects on and as of the Effective Date (or, with respect to representations and warranties qualified by materiality, in all respects as of such date), except, in each case, to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct, or true and correct in all material respects, as the case may be, as of such earlier date (and except, for the avoidance of doubt, for any inaccuracy of such representations and warranties that would arise as a result of the Specified Change of Control prior to giving effect to this Amendment).
(b) The execution and delivery by Parent and Borrower of this Amendment and the performance by Parent and Borrower of its respective obligations and agreements under this Amendment, the Credit Agreement and the other Loan Documents as amended hereby are within the organizational power and authority of Parent and Borrower, as applicable, and have been duly authorized by all necessary limited liability company or other organizational action of the Parent and the Borrower.
 
- 4 -

(c) This Amendment has been duly executed and delivered by Parent and Borrower. Each of this Amendment and the Credit Agreement as amended hereby constitutes a legal, valid and binding obligation of the Parent and Borrower, enforceable against Parent and Borrower in accordance with their respective terms subject to applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors’ rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at law.
(d) Prior to and after giving effect to this Amendment, no Default or Event of Default exists (for the avoidance of doubt not including any Default or Event of Default that would arise as a result of the Specified Change of Control prior to giving effect to this Amendment).
§5. Binding Effect . This Amendment shall become effective and legally binding on the date hereof when the Administrative Agent shall have received counterparts of this Amendment duly executed and delivered by Parent, Borrower, the Administrative Agent and Lenders constituting Required Lenders. This Amendment shall bind each party’s successors and assigns, including any Person to whom any Lender party hereto assigns any of its interests, rights and obligations under the Credit Agreement.
§6. Conditions . The effectiveness of the consent set forth in §1 and the amendments set forth in §2 are subject to the satisfaction of the following conditions precedent or concurrent (the date of satisfaction of such conditions, the “ Effective Date ”):
(a) The Administrative Agent shall have received a fully executed copy of a consent and amendment to the Bond Facility Agreement, permitting the Specified Change of Control and otherwise on terms permitted by the Loan Documents, certified by a Financial Officer as being complete and correct.
(b) The Administrative Agent shall have received evidence reasonably satisfactory to it of the consummation of the Acquisition prior to or substantially contemporaneously with the Effective Date.
(c) The representations and warranties set forth in Section 4 hereof shall be true and correct.
(d) All fees and expenses required to be paid on or before the date hereof in connection with this Amendment in accordance with Credit Agreement shall have been paid.
(e) the Borrower shall have paid, by wire transfer of immediately available funds, to the Administrative Agent, for the account of each Lender that delivers a signed counterpart of this Amendment prior to 3:00 p.m. (New York City time) on June 13, 2017 (the “ Signing Date ”), a fee in an aggregate amount equal to 0.25% of the outstanding principal amount of the Tranche B Term Loans and Revolving Commitments held by such Lender on the Signing Date.
For purposes of determining compliance with the conditions specified in this Section 6, each Lender that has signed this Amendment shall be deemed to have consented to, approved, accepted or be satisfied with, each document or other matter required thereunder to be consented to, approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received written notice from such Lender prior to the proposed Effective Date, specifying its objection thereto. The Administrative Agent shall notify the Parent, the Borrower and the Lenders of the Effective Date.
 
- 5 -

§7. [Reserved.] .
§8. Miscellaneous Provisions.
§8.1. Except as otherwise expressly provided by this Amendment, all of the terms, conditions and provisions of the Credit Agreement and the Loan Documents shall remain the same. It is declared and agreed by each of the parties hereto that the Credit Agreement and the Loan Documents, as amended hereby, shall continue in full force and effect, and that this Amendment and the Credit Agreement and the Loan Documents shall be read and construed as one instrument.
§8.2. THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES THEREOF (OTHER THAN SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW).
§8.3. EACH OF THE PARENT AND THE BORROWER IRREVOCABLY AND UNCONDITIONALLY AGREES THAT IT WILL NOT COMMENCE ANY ACTION, LITIGATION OR PROCEEDING OF ANY KIND OR DESCRIPTION, WHETHER IN LAW OR EQUITY, WHETHER IN CONTRACT OR IN TORT OR OTHERWISE, AGAINST THE LENDERS OR ANY RELATED PARTY OF THE LENDERS IN ANY WAY RELATING TO THIS AMENDMENT, THE TRANSACTIONS RELATING HERETO OR THERETO, IN ANY FORUM OTHER THAN THE COURTS OF THE STATE OF NEW YORK SITTING IN NEW YORK COUNTY AND OF THE UNITED STATES DISTRICT COURT OF THE SOUTHERN DISTRICT OF NEW YORK, AND ANY APPELLATE COURT FROM ANY THEREOF, AND EACH OF THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY SUBMITS TO THE JURISDICTION OF SUCH COURTS AND AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION, LITIGATION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH NEW YORK STATE COURT OR, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN SUCH FEDERAL COURT. EACH OF THE PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION, LITIGATION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW. NOTHING IN THIS AMENDMENT OR IN ANY OTHER LOAN DOCUMENT SHALL AFFECT ANY RIGHT THAT THE LENDERS MAY OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS AMENDMENT OR ANY OTHER LOAN DOCUMENT AGAINST THE PARENT, THE BORROWER OR ITS RESPECTIVE PROPERTIES IN THE COURTS OF ANY JURISDICTION.
§8.4. This Amendment may be executed in any number of counterparts, but all such counterparts shall together constitute but one instrument. In making proof of this Amendment, it shall not be necessary to produce or account for more than one counterpart signed by each party hereto by and against which enforcement hereof is sought.
§8.5. Except as otherwise expressly provided for in this Amendment, nothing contained in this Amendment shall extend to or affect in any way any of the rights or obligations of Parent and/or Borrower, as applicable, or the Administrative Agent’s or a Lender’s obligations, rights and remedies.
 
- 6 -

§8.6. The provisions of this Amendment are solely for the benefit of the Parent, Borrower, the Administrative Agent and the Lenders and no other Person shall have rights as a third party beneficiary of any of such provisions.
§8.7. This Amendment shall constitute a “Loan Document” for all purposes of the Credit Agreement and the other Loan Documents.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY BLANK.]
 
- 7 -

IN WITNESS WHEREOF, the parties hereto have executed this Amendment as a document under seal as of the date first above written.

HFOTCO LLC	
		
By:	 	/s/ Shaun Revere	
Name:	 	Shaun Revere	
Title:	 	CEO	
	
BUFFALO GULF COAST TERMINALS LLC	
		
By:	 	/s/ James M. Metcalfe	
Name:	 	James M. Metcalfe	
Title:	 	Authorized Signatory	
 
[Signature Page to Amendment to Credit Agreement]

			
MORGAN STANLEY SENIOR FUNDING, INC.,	
as Administrative Agent for the Lenders	
		
By:	 	/s/ Lisa Hansan	
Name:	 	Lisa Hansan	
Title:	 	Authorized Signatory	
 
[Signature Page to Amendment to Credit Agreement]

			
1199 SEIU Health Care Employees Pension Fund as a Lender	
		
By:	 	/s/ Heydi Lu	
	 	Name: Heydi Lu	
	 	Title: Authorized SIgnor	
	
For Lenders requiring a second signature block:	
		
By:	 		
	 	Name:	
	 	Title:	
 
[Signature Page to Amendment to Credit Agreement]

			
ALLSTATE INSURANCE COMPANY,
as Lender	
		
By:	 	/s/ Kyle Roth	
Name:	 	Kyle Roth	
Title:	 	Authorized Signatory	
		
By:	 	/s/ Mark D. Pittman	
Name:	 	Mark D. Pittman	
Title:	 	Authorized Signatory	
 
[Signature Page to Amendment to Credit Agreement]

			
ALLSTATE LIFE INSURANCE COMPANY,
as Lender	
		
By:	 	/s/ Kyle Roth	
Name:	 	Kyle Roth	
Title:	 	Authorized Signatory	
		
By:	 	/s/ Mark D. Pittman	
Name:	 	Mark D. Pittman	
Title:	 	Authorized Signatory	
 
[Signature Page to Amendment to Credit Agreement]

			
AIMCO CLO, SERIES 2014-A,
as Lender	
	
By: Allstate Investment Management Company,
as Collateral Manager	
		
By:	 	/s/ Kyle Roth	
Name:	 	Kyle Roth	
Title:	 	Authorized Signatory	
		
By:	 	/s/ Mark D. Pittman	
Name:	 	Mark D. Pittman	
Title:	 	Authorized Signatory	
 
[Signature Page to Amendment to Credit Agreement]

			
AIMCO CLO, SERIES 2015-A,
as Lender	
	
By: Allstate Investment Management Company,
as Collateral Manager	
		
By:	 	/s/ Kyle Roth	
Name:	 	Kyle Roth	
Title:	 	Authorized Signatory	
		
By:	 	/s/ Mark D. Pittman	
Name:	 	Mark D. Pittman	
Title:	 	Authorized Signatory	
 
[Signature Page to Amendment to Credit Agreement]

			
AIMCO CLO, SERIES 2017-A,
as Lender	
	
By: Allstate Investment Management Company,
as Collateral Manager	
		
By:	 	/s/ Kyle Roth	
Name:	 	Kyle Roth	
Title:	 	Authorized Signatory	
		
By:	 	/s/ Mark D. Pittman	
Name:	 	Mark D. Pittman	
Title:	 	Authorized Signatory	
 
[Signature Page to Amendment to Credit Agreement]

			
Argo Re Ltd.
as a Lender	
By:	 	Oaktree Capital Management, L.P.	
Its:	 	Investment Manager	
		
By:	 	/s/ Peter Deschner	
	 	Name: Peter Deschner	
	 	Title: Senior Vice President	
	
For Lenders requiring a second signature block:	
		
By:	 	/s/ Armen Panossian	
	 	Name: Armen Panossian	
	 	Title: Managing Director	
 
[Signature Page to Amendment to Credit Agreement]

			
Argonaut Insurance Company
as a Lender	
By:	 	Oaktree Capital Management, L.P.	
Its:	 	Investment Manager	
		
By:	 	/s/ Peter Deschner	
	 	Name: Peter Deschner	
	 	Title: Senior Vice President	
	
For Lenders requiring a second signature block:	
		
By:	 	/s/ Armen Panossian	
	 	Name: Armen Panossian	
	 	Title: Managing Director	
 
[Signature Page to Amendment to Credit Agreement]

			
FIDELITY INCOME FUND: FIDELITY
TOTAL BOND FUND, as Lender	
		
By:	 	/s/ Jeffrey Christian	
Name:	 	Jeffrey Christian	
Title:	 	Authorized Signatory	
	
For Lenders requiring a second signature block:	
		
By:	 	 	
Name:	 		
Title:	 		
 
[Signature Page to Amendment to Credit Agreement]

			
FIDELITY SUMMER STREET TRUST:
FIDELITY SERIES FLOATING RATE HIGH
INCOME FUND, as Lender	
		
By:	 	/s/ Jeffrey Christian	
Name:	 	Jeffrey Christian	
Title:	 	Authorized Signatory	
	
For Lenders requiring a second signature block:	
		
By:	 	 	
Name:	 		
Title:	 		
 
[Signature Page to Amendment to Credit Agreement]

			
FIDELITY ADVISOR SERIES I: FIDELITY ADVISOR FLOATING RATE HIGH INCOME FUND, as Lender	
		
By:	 	/s/ Jeffrey Christian	
Name:	 	Jeffrey Christian	
Title:	 	Authorized Signatory	
	
For Lenders requiring a second signature block:	
		
By:	 	 	
Name:	 		
Title:	 		
 
[Signature Page to Amendment to Credit Agreement]

			
FIDELITY CENTRAL INVESTMENT PORTFOLIOS LLC: FIDELITY FLOATING
RATE CENTRAL FUND, as Lender	
		
By:	 	/s/ Jeffrey Christian	
Name:	 	Jeffrey Christian	
Title:	 	Authorized Signatory	
	
For Lenders requiring a second signature block:	
		
By:	 	 	
Name:	 		
Title:	 		
 
[Signature Page to Amendment to Credit Agreement]

			
FIDELITY FLOATING RATE HIGH INCOME INVESTMENT TRUST FOR FIDELITY INVESTMENTS CANADA ULC AS TRUSTEE OF FIDELITY FLOATING RATE HIGH INCOME INVESTMENT TRUST, as Lender	
		
By:	 	/s/ Jeffrey Christian	
Name:	 	Jeffrey Christian	
Title:	 	Authorized Signatory	
	
For Lenders requiring a second signature block:	
		
By:	 	 	
Name:	 		
Title:	 		
 
[Signature Page to Amendment to Credit Agreement]

			
FIDELITY FLOATING RATE HIGH INCOME FUND FOR FIDELITY INVESTMENTS CANADA ULC AS TRUSTEE OF FIDELITY FLOATING RATE HIGH INCOME FUND, as Lender	
		
By:	 	/s/ Jeffrey Christian	
Name:	 	Jeffrey Christian	
Title:	 	Authorized Signatory	
	
For Lenders requiring a second signature block:	
		
By:	 	 	
Name:	 		
Title:	 		
 
[Signature Page to Amendment to Credit Agreement]

			
FIDELITY QUALIFYING INVESTOR FUNDS PLC BY FIAM LLC AS SUB ADVISOR, as Lender	
		
By:	 	/s/ Jeffrey Christian	
Name:	 	Jeffrey Christian	
Title:	 	Authorized Signatory	
	
For Lenders requiring a second signature block:	
		
By:	 	 	
Name:	 		
Title:	 		
 
[Signature Page to Amendment to Credit Agreement]

			
VARIABLE INSURANCE PRODUCTS FUND: FLOATING RATE HIGH INCOME PORTFOLIO, as Lender	
		
By:	 	/s/ Jeffrey Christian	
Name:	 	Jeffrey Christian	
Title:	 	Authorized Signatory	
	
For Lenders requiring a second signature block:	
		
By:	 	 	
Name:	 		
Title:	 		
 
[Signature Page to Amendment to Credit Agreement]

			
FIAM FLOATING RATE HIGH INCOME COMMINGLED POOL BY FIDELITY INSTITUTIONAL ASSET MANAGEMENT
TRUST COMPANY AS TRUSTEE, as Lender	
		
By:	 	/s/ Dana Rancourt	
Name:	 	Dana Rancourt	
Title:	 	Director	
	
For Lenders requiring a second signature block:	
		
By:	 	 	
Name:	 		
Title:	 		
 
[Signature Page to Amendment to Credit Agreement]

			
FIAM LEVERAGED LOAN, LP BY FIAM
LLC AS INVESTMENT MANAGER, as Lender	
		
By:	 	/s/ Dana Rancourt	
Name:	 	Dana Rancourt	
Title:	 	Director	
	
For Lenders requiring a second signature block:	
		
By:	 	 	
Name:	 		
Title:	 		
 
[Signature Page to Amendment to Credit Agreement]

			
BALLYROCK CLO 2013-1 LTD BY
BALLYROCK INVESTMENT ADVISORS LLC, AS COLLATERAL MANAGER, as Lender	
		
By:	 	/s/ Jeffrey Christian	
Name:	 	Jeffrey Christian	
Title:	 	Authorized Signatory	
	
For Lenders requiring a second signature block:	
		
By:	 	 	
Name:	 		
Title:	 		
 
[Signature Page to Amendment to Credit Agreement]

			
BALLYROCK CLO 2014-1 LTD BY
BALLYROCK INVESTMENT ADVISORS LLC, AS COLLATERAL MANAGER, as Lender	
		
By:	 	/s/ Jeffrey Christian	
Name:	 	Jeffrey Christian	
Title:	 	Authorized Signatory	
	
For Lenders requiring a second signature block:	
		
By:	 	 	
Name:	 		
Title:	 		
 
[Signature Page to Amendment to Credit Agreement]

			
BALLYROCK CLO 2016-1 LTD BY	
BALLYROCK INVESTMENT ADVISORS	
LLC, AS COLLATERAL MANAGER, as
Lender	
		
By:	 	/s/ Jeffrey Christian	
Name:	 	Jeffrey Christian	
Title:	 	Authorized Signatory	
	
For Lenders requiring a second signature block:	
		
By:	 	 	
Name:	 		
Title:	 		
 
[Signature Page to Amendment to Credit Agreement]

			
California State Teachers’ Retirement System	
as a Lender	
BY: Western Asset Management Company as	
Investment Manager and Agent	
		
By:	 	/s/ Heydi Lu	
	 	Name: Heydi Lu	
	 	Title: Authorized SIgnor	
	
For Lenders requiring a second signature block:	
		
By:	 		
	 	Name:	
	 	Title:	
 
[Signature Page to Amendment to Credit Agreement]

			
CIFC Funding 2012-II, Ltd.	
as a Lender	
By: CIFC Asset Management LLC, its Collateral
Manager	
		
By:	 	/s/ Robert Steelman	
	 	Name: Robert Steelman	
	 	Title: Managing Director	
	
For Lenders requiring a second signature block:	
		
By:	 		
	 	Name:	
	 	Title:	
 
[Signature Page to Amendment to Credit Agreement]

			
CIFC Funding 2012-III, Ltd.
as a Lender	
By: CIFC Asset Management LLC, its Collateral Manager	
		
By:	 	/s/ Robert Steelman	
	 	Name: Robert Steelman	
	 	Title: Managing Director	
	
For Lenders requiring a second signature block:	
		
By:	 		
	 	Name:	
	 	Title:	
 
[Signature Page to Amendment to Credit Agreement]

			
CIFC Funding 2013-I, Ltd.
as a Lender	
By: CIFC Asset Management LLC, its Collateral Manager	
		
By:	 	/s/ Robert Steelman	
	 	Name: Robert Steelman	
	 	Title: Managing Director	
	
For Lenders requiring a second signature block:	
		
By:	 		
	 	Name:	
	 	Title:	
 
[Signature Page to Amendment to Credit Agreement]

			
CIFC Funding 2013-II, Ltd.
as a Lender	
By: CIFC Asset Management LLC, its Collateral Manager	
		
By:	 	/s/ Robert Steelman	
	 	Name: Robert Steelman	
	 	Title: Managing Director	
	
For Lenders requiring a second signature block:	
		
By:	 		
	 	Name:	
	 	Title:	
 
[Signature Page to Amendment to Credit Agreement]

			
CIFC Funding 2013-III, Ltd.
as a Lender	
By: CIFC Asset Management LLC, its Collateral Manager	
		
By:	 	/s/ Robert Steelman	
	 	Name: Robert Steelman	
	 	Title: Managing Director	
	
For Lenders requiring a second signature block:	
		
By:	 		
	 	Name:	
	 	Title:	
 
[Signature Page to Amendment to Credit Agreement]

			
CIFC Funding 2013-IV, Ltd.
as a Lender	
By: CIFC Asset Management LLC, its Collateral Manager	
		
By:	 	/s/ Robert Steelman	
	 	Name: Robert Steelman	
	 	Title: Managing Director	
	
For Lenders requiring a second signature block:	
		
By:	 		
	 	Name:	
	 	Title:	
 
[Signature Page to Amendment to Credit Agreement]

			
CIFC Funding 2014, Ltd.
as a Lender	
By: CIFC Asset Management LLC, its Portfolio Manager	
		
By:	 	/s/ Robert Steelman	
	 	Name: Robert Steelman	
	 	Title: Managing Director	
	
For Lenders requiring a second signature block:	
		
By:	 		
	 	Name:	
	 	Title:	
 
[Signature Page to Amendment to Credit Agreement]

			
CIFC Funding 2014-II, Ltd.
as a Lender	
By: CIFC Asset Management LLC, its Collateral Manager	
		
By:	 	/s/ Robert Steelman	
	 	Name: Robert Steelman	
	 	Title: Managing Director	
	
For Lenders requiring a second signature block:	
		
By:	 		
	 	Name:	
	 	Title:	
 
[Signature Page to Amendment to Credit Agreement]

			
CIFC Funding 2014-III, Ltd.
as a Lender	
BY: CIFC Asset Management LLC, its Collateral Manager	
		
By:	 	/s/ Robert Steelman	
	 	Name: Robert Steelman	
	 	Title: Managing Director	
	
For Lenders requiring a second signature block:	
		
By:	 		
	 	Name:	
	 	Title:	
 
[Signature Page to Amendment to Credit Agreement]

			
CIFC Funding 2014-IV, Ltd
as a Lender	
BY: CIFC Asset Management LLC, its Collateral Manager	
		
By:	 	/s/ Robert Steelman	
	 	Name: Robert Steelman	
	 	Title: Managing Director	
	
For Lenders requiring a second signature block:	
		
By:	 		
	 	Name:	
	 	Title:	
 
[Signature Page to Amendment to Credit Agreement]

			
CIFC Funding 2014-V, Ltd.
as a Lender	
By: CIFC Asset Management LLC, its Collateral Manager	
		
By:	 	/s/ Robert Steelman	
	 	Name: Robert Steelman	
	 	Title: Managing Director	
	
For Lenders requiring a second signature block:	
		
By:	 		
	 	Name:	
	 	Title:	
 
[Signature Page to Amendment to Credit Agreement]

			
CIFC Funding 2015-I, Ltd.
as a Lender	
BY: CIFC Asset Management LLC, its Collateral Manager	
		
By:	 	/s/ Robert Steelman	
	 	Name: Robert Steelman	
	 	Title: Managing Director	
	
For Lenders requiring a second signature block:	
		
By:	 		
	 	Name:	
	 	Title:	
 
[Signature Page to Amendment to Credit Agreement]

			
CIFC Funding 2015-II, Ltd.
as a Lender	
By: CIFC Asset Management LLC, its Collateral Manager	
		
By:	 	/s/ Robert Steelman	
	 	Name: Robert Steelman	
	 	Title: Managing Director	
	
For Lenders requiring a second signature block:	
		
By:	 		
	 	Name:	
	 	Title:	
 
[Signature Page to Amendment to Credit Agreement]

			
CIFC Funding 2015-III, Ltd.
as a Lender	
By: CIFC Asset Management LLC, its Collateral Manager	
		
By:	 	/s/ Robert Steelman	
	 	Name: Robert Steelman	
	 	Title: Managing Director	
	
For Lenders requiring a second signature block:	
		
By:	 		
	 	Name:	
	 	Title:	
 
[Signature Page to Amendment to Credit Agreement]

			
CIFC Funding 2015-IV, Ltd.
as a Lender	
By: CIFC Asset Management LLC, its Collateral Manager	
		
By:	 	/s/ Robert Steelman	
	 	Name: Robert Steelman	
	 	Title: Managing Director	
	
For Lenders requiring a second signature block:	
		
By:	 		
	 	Name:	
	 	Title:	
 
[Signature Page to Amendment to Credit Agreement]

			
CIFC Funding 2015-V, Ltd
as a Lender	
By: CIFC Asset Management LLC, its Collateral Manager	
		
By:	 	/s/ Robert Steelman	
	 	Name: Robert Steelman	
	 	Title: Managing Director	
	
For Lenders requiring a second signature block:	
		
By:	 		
	 	Name:	
	 	Title:	
 
[Signature Page to Amendment to Credit Agreement]

			
CIFC Funding 2016-I, Ltd.
as a Lender	
By: CIFC Asset Management LLC, its Collateral Manager	
		
By:	 	/s/ Robert Steelman	
	 	Name: Robert Steelman	
	 	Title: Managing Director	
	
For Lenders requiring a second signature block:	
		
By:	 		
	 	Name:	
	 	Title:	
 
[Signature Page to Amendment to Credit Agreement]

			
CIFC Funding 2017-I, Ltd
as a Lender	
By: CIFC Asset Management LLC, its Collateral Manager	
		
By:	 	/s/ Robert Steelman	
	 	Name: Robert Steelman	
	 	Title: Managing Director	
	
For Lenders requiring a second signature block:	
		
By:	 		
	 	Name:	
	 	Title:	
 
[Signature Page to Amendment to Credit Agreement]

			
CIFC Funding 2017-II, Ltd.
as a Lender	
By: CIFC CLO Management LLC, its Collateral Manager	
		
By:	 	/s/ Robert Steelman	
	 	Name: Robert Steelman	
	 	Title: Managing Director	
	
For Lenders requiring a second signature block:	
		
By:	 		
	 	Name:	
	 	Title:	
 
[Signature Page to Amendment to Credit Agreement]

			
Covenant Credit Partners CLO II, Ltd.
as a Lender	
		
By:	 	/s/ Chris Brogdon	
	 	Name: Chris Brogdon
Title: Assistant Portfolio Manager	
	
For Lenders requiring a second signature block:	
		
By:	 		
	 	Name:
Title:	
 
[Signature Page to Amendment to Credit Agreement]

			
Crown Point CLO II Ltd.
as a Lender	
		
By:	 	/s/ John D’Angelo	
	 	Name: John D’Angelo
Title: Sr. Portfolio Manager	
	
For Lenders requiring a second signature block:	
		
By:	 		
	 	Name:
Title:	
 
[Signature Page to Amendment to Credit Agreement]

			
Crown Point CLO III, Ltd.
as a Lender
by Valcour Capital Management LLC, as its Collateral Manager	
		
By:	 	/s/ John D’Angelo	
	 	Name: John D’Angelo
Title: Sr. Portfolio Manager	
	
For Lenders requiring a second signature block:	
		
By:	 		
	 	Name:
Title:	
 
[Signature Page to Amendment to Credit Agreement]

			
Crown Point CLO Ltd.
as a Lender	
		
By:	 	/s/ John D’Angelo	
	 	Name: John D’Angelo
Title: Sr. Portfolio Manager	
	
For Lenders requiring a second signature block:	
		
By:	 		
	 	Name:
Title:	
 
[Signature Page to Amendment to Credit Agreement]

			
CSAA Insurance Exchange
as a Lender	
By:	 	Oaktree Capital Management, L.P.	
Its:	 	Investment Manager	
		
By:  	 	/s/ Peter Deschner	
	 	Name: Peter Deschner
Title: Senior Vice President	
	
For Lenders requiring a second signature block:	
		
By:	 	/s/ Armen Panossian	
	 	Name: Armen Panossian
Title: Managing Director	
 
[Signature Page to Amendment to Credit Agreement]

			
CVP Cascade CLO-1 Ltd.
as a Lender	
BY: Credit Value Partners, LP, as Investment Manager	
		
By:	 	/s/ Joseph Matteo	
	 	Name: Joseph Matteo
Title: Partner	
	
For Lenders requiring a second signature block:	
		
By:	 		
	 	Name:
Title:	
 
[Signature Page to Amendment to Credit Agreement]

			
CVP Cascade CLO-2 Ltd.
as a Lender	
BY: Credit Value Partners, LP, as Investment Manager	
		
By:	 	/s/ Joseph Matteo	
	 	Name: Joseph Matteo
Title: Partner	
	
For Lenders requiring a second signature block:	
		
By:	 		
	 	Name:
Title:	
 
[Signature Page to Amendment to Credit Agreement]

			
CVP Cascade CLO-3 Ltd.
as a Lender	
By: CVP CLO Manager, LLC
as Investment Manager	
		
By:	 	/s/ Joseph Matteo	
	 	Name: Joseph Matteo
Title: Partner	
	
For Lenders requiring a second signature block:	
		
By:	 		
	 	Name:
Title:	
 
[Signature Page to Amendment to Credit Agreement]

			
DEUTSCHE BANK AG NEW YORK BRANCH
as Lender	
		
By:	 	/s/ Chris Chapman	
	 	Name: Chris Chapman
Title: Director	
		
By:	 	/s/ Shai Bandner	
	 	Name: Shai Bandner
Title: Director	
 
[Signature Page to Amendment to Credit Agreement]

			
Deutsche Floating Rate Fund
as a Lender	
BY:	 	Deutsche Investment Management Americas Inc.	
Investment Advisor	
		
By:	 	/s/ Mark Kim	
	 	Name: Mark Kim
Title: Vice President	
	
For Lenders requiring a second signature block:	
		
By:	 	/s/ Mark Rigazio	
	 	Name: Mark Rigazio
Title: Portfolio Manager	
 
[Signature Page to Amendment to Credit Agreement]

			
Employees’ Retirement System of the State of Rhode
Island
as a Lender	
BY: Western Asset Management Company as Investment Manager and Agent	
		
By:	 	/s/ Heydi Lu	
	 	Name: Heydi Lu	
	 	Title: Authorized SIgnor	
	
For Lenders requiring a second signature block:	
		
By:	 		
	 	Name:	
	 	Title:	
 
[Signature Page to Amendment to Credit Agreement]

			
Flagship CLO VIII Ltd
as a Lender	
BY: Deutsche Investment Management Americas
Inc.,	
As Interim Investment Manager	
		
By:	 	/s/ Mark Kim	
	 	Name: Mark Kim	
	 	Title: Vice President	
	
For Lenders requiring a second signature block:	
		
By:	 	/s/ Mark Rigazio	
	 	Name: Mark Rigazio	
	 	Title: Portfolio Manager	
 
[Signature Page to Amendment to Credit Agreement]

			
Flagship VII Limited
as a Lender	
BY: Deutsche Investment Management Americas
Inc.,	
As Investment Manager	
		
By:	 	/s/ Mark Kim	
	 	Name: Mark Kim	
	 	Title: Vice President	
	
For Lenders requiring a second signature block:	
		
By:	 	/s/ Mark Rigazio	
	 	Name: Mark Rigazio	
	 	Title: Portfolio Manager	
 
[Signature Page to Amendment to Credit Agreement]

			
Halcyon Loan Advisors Funding 2012-2, Ltd.
as a Lender	
BY: Halcyon Loan Advisors 2012-2 LLC as collateral manager	
		
By:	 	/s/ David Martino	
	 	Name: David Martino	
	 	Title: Controller	
	
For Lenders requiring a second signature block:	
		
By:	 		
	 	Name:	
	 	Title:	
 
[Signature Page to Amendment to Credit Agreement]

			
Halcyon Loan Advisors Funding 2013-1 Ltd.
as a Lender	
		
By:	 	/s/ David Martino	
	 	Name: David Martino	
	 	Title: Controller	
	
For Lenders requiring a second signature block:	
		
By:	 		
	 	Name:	
	 	Title:	
 
[Signature Page to Amendment to Credit Agreement]

			
Halcyon Loan Advisors Funding 2013-2 LTD.
as a Lender	
		
By:	 	/s/ David Martino	
	 	Name: David Martino	
	 	Title: Controller	
	
For Lenders requiring a second signature block:	
		
By:	 		
	 	Name:	
	 	Title:	
 
[Signature Page to Amendment to Credit Agreement]

			
Halcyon Loan Advisors Funding 2014-1, Ltd.
as a Lender	
By: Halcyon Loan Advisors 2014-1 LLC as collateral manager	
		
By:	 	/s/ David Martino	
	 	Name: David Martino	
	 	Title: Controller	
	
For Lenders requiring a second signature block:	
		
By:	 		
	 	Name:	
	 	Title:	
 
[Signature Page to Amendment to Credit Agreement]

			
Halcyon Loan Advisors Funding 2014-2 Ltd.
as a Lender	
By: Halcyon Loan Advisors 2014-2 LLC as collateral manager	
		
By:	 	/s/ David Martino	
	 	Name: David Martino	
	 	Title: Controller	
	
For Lenders requiring a second signature block:	
		
By:	 		
	 	Name:	
	 	Title:	
 
[Signature Page to Amendment to Credit Agreement]

			
Halcyon Loan Advisors Funding 2014-3 Ltd
as a Lender	
BY: Halcyon Loan Advisors 2014-3 LLC as Collateral Manager	
		
By:	 	/s/ David Martino	
	 	Name: David Martino	
	 	Title: Controller	
	
For Lenders requiring a second signature block:	
		
By:	 		
	 	Name:	
	 	Title:	
 
[Signature Page to Amendment to Credit Agreement]

			
Halcyon Loan Advisors Funding 2015-1 Ltd
as a Lender	
By: Halcyon Loan Advisors 2015-1 LLC as Collateral Manager	
		
By:	 	/s/ David Martino	
	 	Name: David Martino	
	 	Title: Controller	
	
For Lenders requiring a second signature block:	
		
By:	 		
	 	Name:	
	 	Title:	
 
[Signature Page to Amendment to Credit Agreement]

			
Halcyon Loan Advisors Funding 2015-2 Ltd.
as a Lender	
		
By:	 	/s/ David Martino	
	 	Name: David Martino	
	 	Title: Controller	
	
For Lenders requiring a second signature block:	
		
By:	 		
	 	Name:	
	 	Title:	
 
[Signature Page to Amendment to Credit Agreement]

			
Halcyon Loan Advisors Funding 2015-3 Ltd
as a Lender	
By: Halcyon Loan Advisors 2015-3 LLC as Collateral Manager	
		
By:	 	/s/ David Martino	
	 	Name: David Martino	
	 	Title: Controller	
	
For Lenders requiring a second signature block:	
		
By:	 		
	 	Name:	
	 	Title:	
 
[Signature Page to Amendment to Credit Agreement]

			
Halcyon Loan Advisors Funding 2017-1 Ltd
as a Lender	
By: Halcyon Loan Advisors A LLC as Collateral Manager	
		
By:	 	/s/ David Martino	
	 	Name: David Martino	
	 	Title: Controller	
	
For Lenders requiring a second signature block:	
		
By:	 		
	 	Name:	
	 	Title:	
 
[Signature Page to Amendment to Credit Agreement]

			
HARBOURVIEW CLO VII, LTD    ,	
as Lender	
		
By:	 	/s/ Janet Harrison	
	 	Name: Janet Harrison	
	 	Title: Associate	
	
Brown Brothers Harriman & Co. acting as agent for OppenheimerFunds, Inc.	
 
[Signature Page to Amendment to Credit Agreement]

			
Health Net Community Solutions, Inc.
as a Lender	
BY: Deutsche Investment Management Americas Inc.
As Manager	
		
By:	 	/s/ Mark Kim	
	 	Name: Mark Kim	
	 	Title: Vice President	
	
For Lenders requiring a second signature block:	
		
By:	 	/s/ Mark Rigazio	
	 	Name: Mark Rigazio	
	 	Title: Portfolio Manager	
 
[Signature Page to Amendment to Credit Agreement]

			
Health Net of California, Inc.
as a Lender	
By: Deutsche Investment Management Americas Inc. As Manager	
		
By:	 	/s/ Mark Kim	
	 	Name: Mark Kim	
	 	Title: Vice President	
	
For Lenders requiring a second signature block:	
		
By:	 	/s/ Mark Rigazio	
	 	Name: Mark Rigazio	
	 	Title: Portfolio Manager	
 
[Signature Page to Amendment to Credit Agreement]

			
ICE Global Credit CLO Limited
as a Lender	
By: ICE Canyon LLC, its Collateral Manager	
		
By:	 	/s/ Jonathan M. Kaplan	
	 	Name: Jonathan M. Kaplan	
	 	Title: Authorized Signatory	
	
For Lenders requiring a second signature block:	
		
By:	 		
	 	Name:	
	 	Title:	
 
[Signature Page to Amendment to Credit Agreement]

			
Indiana Public Retirement System
as a Lender	
By: Oaktree Capital Management, L.P.
its: Investment Manager	
		
By:	 	/s/ Peter Deschner	
	 	Name: Peter Deschner	
	 	Title: Senior Vice President	
	
For Lenders requiring a second signature block:	
		
By:	 	/s/ Armen Panossian	
	 	Name: Armen Panossian	
	 	Title: Managing Director	
 
[Signature Page to Amendment to Credit Agreement]

			
John Hancock Fund II Floating Rate Income Fund
as a Lender	
BY: Western Asset Management Company as Investment Manager and Agent	
		
By:	 	/s/ Heydi Lu	
	 	Name: Heydi Lu	
	 	Title: Authorized SIgnor	
	
For Lenders requiring a second signature block:	
		
By:	 		
	 	Name:	
	 	Title:	
 
[Signature Page to Amendment to Credit Agreement]

			
Montgomery County Employee’s Retirement System as Lender	
		
By:	 	/s/ Steve Kotsen	
	 	Name: Steve Kotsen	
	 	Title: Managing Director / Portfolio Manager	
	
For Lenders requiring a second signature block:	
		
By:	 	 	
Name:	 		
Title:	 		
NOMURA CORPORATE RESEARCH
AND ASSET MANAGEMENT INC.
AS
INVESTMENT MANAGER

			
State of New Jersey – Common Pension Fund D
as Lender	
		
By:	 	/s/ Steve Kotsen	
Name: Steve Kotsen	
Title: Managing Director / Portfolio Manager	
	
For Lenders requiring a second signature block:	
		
By:	 	 	
Name:	
Title:	
NOMURA CORPORATE RESEARCH
AND ASSET MANAGEMENT INC.
AS
INVESTMENT MANAGER

			
Safety National Casualty Corporation
as Lender	
		
By:	 	/s/ Steve Kotsen	
Name: Steve Kotsen	
Title: Managing Director / Portfolio Manager	
	
For Lenders requiring a second signature block:	
		
By:	 	 	
Name:	
Title:	
NOMURA CORPORATE RESEARCH
AND ASSET MANAGEMENT INC.
AS
INVESTMENT MANAGER

			
Kapitalforeningen Industriens Pension Portfolio, High Yield Obligationer III	
	
as Lender	
		
By:	 	/s/ Steve Kotsen	
Name: Steve Kotsen	
Title: Managing Director / Portfolio Manager	
	
For Lenders requiring a second signature block:	
		
By:	 	 	
Name:	
Title:	
NOMURA CORPORATE RESEARCH
AND ASSET MANAGEMENT INC.
AS
INVESTMENT MANAGER

			
Pinnacol Assurance
as Lender	
		
By:	 	/s/ Steve Kotsen	
Name: Steve Kotsen	
Title: Managing Director / Portfolio Manager	
	
For Lenders requiring a second signature block:	
		
By:	 	 	
Name:	
Title:	
NOMURA CORPORATE RESEARCH
AND ASSET MANAGEMENT INC.
AS
INVESTMENT MANAGER

			
Kapitalforeningen Unipension Invest, High Yield Obligationer V	
	
as Lender	
		
By:	 	/s/ Steve Kotsen	
Name: Steve Kotsen	
Title: Managing Director / Portfolio Manager	
	
For Lenders requiring a second signature block:	
		
By:	 	 	
Name:	
Title:	
NOMURA CORPORATE RESEARCH
AND ASSET MANAGEMENT INC.
AS
INVESTMENT MANAGER

			
Kingsland VI
as a Lender	
By: Kingsland Capital Management, LLC as Manager	
		
By:	 	/s/ Katherine Kim	
	 	Name: Katherine Kim	
	 	Title: Authorized Signatory	
	
For Lenders requiring a second signature block:	
		
By:	 		
	 	Name:	
	 	Title:	
 
[Signature Page to Amendment to Credit Agreement]

			
Kingsland VII
as a Lender	
By: Kingsland Capital Management, LLC as Manager	
		
By:	 	/s/ Katherine Kim	
	 	Name: Katherine Kim	
	 	Title: Authorized Signatory	
	
For Lenders requiring a second signature block:	
		
By:	 		
	 	Name:	
	 	Title:	
 
[Signature Page to Amendment to Credit Agreement]

			
Los Angeles County Employees Retirement
Association
as a Lender	
BY: Western Asset Management Company as Investment Manager and Agent	
		
By:	 	/s/ Heydi Lu	
	 	Name: Heydi Lu	
	 	Title: Authorized SIgnor	
	
For Lenders requiring a second signature block:	
		
By:	 		
	 	Name:	
	 	Title:	
 
[Signature Page to Amendment to Credit Agreement]

			
Missouri Education Pension Trust
as a Lender	
By: Oaktree Capital Management, L.P.
Its: Investment Manager	
		
By:	 	/s/ Peter Deschner	
	 	Name: Peter Deschner	
	 	Title: Senior Vice President	
	
For Lenders requiring a second signature block:	
		
By:	 	/s/ Armen Panossian	
	 	Name: Armen Panossian	
	 	Title: Managing Director	
 
[Signature Page to Amendment to Credit Agreement]

			
MORGAN STANLEY BANK, N.A.,
as Lender	
		
By:	 	/s/ Patrick Layton	
Name: Patrick Layton	
Title: Authorizied Signatory	
 
[Signature Page to Amendment to Credit Agreement]

			
Mountain Hawk I CLO, LTD.	
as a Lender	
BY: Western Asset Management Company as Investment Manager and Agent	
		
By:	 	/s/ Heydi Lu	
	 	Name: Heydi Lu	
	 	Title: Authorized SIgnor	
	
For Lenders requiring a second signature block:	
		
By:	 		
	 	Name:	
	 	Title:	
 
[Signature Page to Amendment to Credit Agreement]

			
Mountain Hawk II CLO, LTD.	
as a Lender	
		
By:	 	/s/ Heydi Lu	
	 	Name: Heydi Lu	
	 	Title: Authorized SIgnor	
	
For Lenders requiring a second signature block:	
		
By:	 		
	 	Name:	
	 	Title:	
 
[Signature Page to Amendment to Credit Agreement]

			
Mountain Hawk III CLO, Ltd.	
as a Lender	
		
By:	 	/s/ Heydi Lu	
	 	Name: Heydi Lu	
	 	Title: Authorized SIgnor	
	
For Lenders requiring a second signature block:	
		
By:	 		
	 	Name:	
	 	Title:	
 
[Signature Page to Amendment to Credit Agreement]

			
MP CLO III, Ltd.	
as a Lender	
By: MP CLO Management LLC, its Manager	
		
By:	 	/s/ Thomas Shandell	
	 	Name: Thomas Shandell	
	 	Title: CEO	
	
For Lenders requiring a second signature block:	
		
By:	 		
	 	Name:	
	 	Title:	
 
[Signature Page to Amendment to Credit Agreement]

			
MP CLO IV, Ltd.	
as a Lender	
By: MP CLO Management LLC, its Manager	
		
By:	 	/s/ Thomas Shandell	
	 	Name: Thomas Shandell	
	 	Title: CEO	
	
For Lenders requiring a second signature block:	
		
By:	 		
	 	Name:	
	 	Title:	
 
[Signature Page to Amendment to Credit Agreement]

			
MP CLO V, Ltd.	
as a Lender	
By: MP CLO Management LLC, its Manager	
		
By:	 	/s/ Thomas Shandell	
	 	Name: Thomas Shandell	
	 	Title: CEO	
	
For Lenders requiring a second signature block:	
		
By:	 		
	 	Name:	
	 	Title:	
 
[Signature Page to Amendment to Credit Agreement]

			
MP CLO VI, Ltd.	
as a Lender	
By: MP CLO Management LLC, its Manager	
		
By:	 	/s/ Thomas Shandell	
	 	Name: Thomas Shandell	
	 	Title: CEO	
	
For Lenders requiring a second signature block:	
		
By:	 		
	 	Name:	
	 	Title:	
 
[Signature Page to Amendment to Credit Agreement]

			
MP CLO VII, Ltd.	
as a Lender	
By: MP CLO Management LLC, its Collateral Manager	
		
By:	 	/s/ Thomas Shandell	
	 	Name: Thomas Shandell	
	 	Title: CEO	
	
For Lenders requiring a second signature block:	
		
By:	 		
	 	Name:	
	 	Title:	
 
[Signature Page to Amendment to Credit Agreement]

			
MP CLO VIII, Ltd.	
as a Lender	
By: MP CLO Management LLC, its Collateral Manager	
		
By:	 	/s/ Thomas Shandell	
	 	Name: Thomas Shandell	
	 	Title: CEO	
	
For Lenders requiring a second signature block:	
		
By:	 		
	 	Name:	
	 	Title:	
 
[Signature Page to Amendment to Credit Agreement]

			
Mt. Whitney Securities, L.L.C.	
as a Lender	
BY: Deutsche Investment Management Americas Inc.	
As Manager	
		
By:	 	/s/ Mark Kim	
	 	Name: Mark Kim	
	 	Title: Vice President	
	
For Lenders requiring a second signature block:	
		
By:	 	/s/ Mark Rigazio	
	 	Name: Mark Rigazio	
	 	Title: Portfolio Manager	
 
[Signature Page to Amendment to Credit Agreement]

			
Stichting Pensioenfonds TNO
as Lender	
		
By:	 	/s/ Steve Kotsen	
Name:	 	Steve Kotsen	
Title:	 	Managing Director / Portfolio Manager	
	
For Lenders requiring a second signature block:	
		
By:	 	 	
Name:	 		
Title:	 		
NOMURA CORPORATE RESEARCH
AND ASSET MANAGEMENT INC.
AS
INVESTMENT MANAGER

			
NCRAM Loan Trust
as Lender	
		
By:	 	/s/ Steven Rosenthal	
Name:	 	Steven Rosenthal	
Title:	 	Managing Director / Portfolio Manager	
	
For Lenders requiring a second signature block:	
		
By:	 	 	
Name:	 		
Title:	 		
NOMURA CORPORATE RESEARCH
AND ASSET MANAGEMENT INC.
AS
INVESTMENT MANAGER

			
Nomura Bond and Loan Fund
as Lender	
		
By:	 	/s/ Steven Rosenthal	
Name:	 	Steven Rosenthal	
Title:	 	Managing Director / Portfolio Manager	
	
For Lenders requiring a second signature block:	
		
By:	 	 	
Name:	 		
Title:	 		
NOMURA CORPORATE RESEARCH
AND ASSET MANAGEMENT INC.
AS
INVESTMENT MANAGER

			
Tuolumne Grove CLO, Ltd.	
By: Tall Tree Investment Management, LLC
As Collateral Manager,	
		
By:	 	/s/ Douglas L. Winchell	
Name:	 	Douglas L. Winchell	
Title:	 	Officer	
	
For Lenders requiring a second signature block:	
		
By:	 	N/A	
Name:	 		
Title:	 		
 
[Signature Page to Amendment to Credit Agreement]

			
Lockwood Grove CLO, Ltd.
By: Tall Tree Investment Management, LLC
As Collateral Manager,	
		
By:	 	/s/ Douglas L. Winchell	
Name:	 	Douglas L. Winchell	
Title:	 	Officer	
	
For Lenders requiring a second signature block:	
		
By:	 	N/A	
Name:	 		
Title:	 		
 
[Signature Page to Amendment to Credit Agreement]

			
Nelder Grove CLO, Ltd.
By: Tall Tree Investment Management, LLC
As Collateral Manager,	
		
By:	 	/s/ Douglas L. Winchell	
Name:	 	Douglas L. Winchell	
Title:	 	Officer	
	
For Lenders requiring a second signature block:	
		
By:	 	N/A	
Name:	 		
Title:	 		
 
[Signature Page to Amendment to Credit Agreement]

			
Nomura Global Manager Select - Bank Loan Fund
as a Lender
BY: Deutsche Investment Management Americas Inc.,
its Investment Sub-Advisor	
		
By:	 	/s/ Mark Kim	
	 	Name: Mark Kim	
	 	Title: Vice President	
	
For Lenders requiring a second signature block:	
		
By:	 	/s/ Mark Rigazio	
	 	Name: Mark Rigazio	
	 	Title: Portfolio Manager	
 
[Signature Page to Amendment to Credit Agreement]

			
Stichting Pensioenfond Hoogovens
as Lender	
		
By:	 	/s/ Steve Kotsen	
	 	Name: Steve Kotsen	
	 	Title: Managing Director / Portfolio Manager	
	
For Lenders requiring a second signature block:	
		
By:	 	 	
Name:	 		
Title:	 		
NOMURA CORPORATE RESEARCH
AND ASSET MANAGEMENT INC.
AS
INVESTMENT MANAGER

			
California Public Employee’s Retirement System
as Lender	
		
By:	 	/s/ Steve Kotsen	
Name:	 	Steve Kotsen	
Title:	 	Managing Director / Portfolio Manager	
	
For Lenders requiring a second signature block:	
		
By:	 	 	
Name:	 		
Title:	 		
NOMURA CORPORATE RESEARCH
AND ASSET MANAGEMENT INC.
AS
INVESTMENT MANAGER

			
Nomura High Yield Fund
as Lender	
		
By:	 	/s/ Steve Kotsen	
Name:	 	Steve Kotsen	
Title:	 	Managing Director / Portfolio Manager	
	
For Lenders requiring a second signature block:	
		
By:	 	 	
Name:	 		
Title:	 		
NOMURA CORPORATE RESEARCH
AND ASSET MANAGEMENT INC.
AS
INVESTMENT MANAGER

			
Oaktree CLO 2014-2 Ltd.
as a Lender	
By:	 	Oaktree Capital Management, L.P.	
Its:	 	Collateral Manager	
		
By:	 	/s/ Peter Deschner	
	 	Name: Peter Deschner
Title: Senior Vice President	
	
For Lenders requiring a second signature block:	
		
By:	 	/s/ Armen Panossian	
	 	Name: Armen Panossian
Title: Managing Director	
 
[Signature Page to Amendment to Credit Agreement]

			
OAKTREE CLO 2015-1 LTD.
as a Lender	
By:	 	Oaktree Capital Management, L.P.	
its:	 	Collateral Manager	
		
By:	 	/s/ Peter Deschner	
	 	Name: Peter Deschner
Title: Senior Vice President	
	
For Lenders requiring a second signature block:	
		
By:	 	/s/ Armen Panossian	
	 	Name: Armen Panossian
Title: Managing Director	
 
[Signature Page to Amendment to Credit Agreement]

			
Oaktree EIF I Series A, LTD
as a Lender	
By:	 	Oaktree Capital Management, L.P.	
its:	 	Collateral Manager	
		
By:	 	/s/ Peter Deschner	
	 	Name: Peter Deschner
Title: Senior Vice President	
	
For Lenders requiring a second signature block:	
		
By:	 	/s/ Armen Panossian	
	 	Name: Armen Panossian
Title: Managing Director	
 
[Signature Page to Amendment to Credit Agreement]

			
Oaktree EIF I Series A1, LTD
as a Lender	
By:	 	Oaktree Capital Management, L.P.	
its:	 	Collateral Manager	
		
By:	 	/s/ Peter Deschner	
	 	Name: Peter Deschner
Title: Senior Vice President	
	
For Lenders requiring a second signature block:	
		
By:	 	/s/ Armen Panossian	
	 	Name: Armen Panossian
Title: Managing Director	
 
[Signature Page to Amendment to Credit Agreement]

			
Oaktree EIF II Series A1, Ltd.
as a Lender	
By:	 	Oaktree Capital Management, L.P.	
its:	 	Collateral Manager	
		
By:	 	/s/ Peter Deschner	
	 	Name: Peter Deschner
Title: Senior Vice President	
	
For Lenders requiring a second signature block:	
		
By:	 	/s/ Armen Panossian	
	 	Name: Armen Panossian
Title: Managing Director	
 
[Signature Page to Amendment to Credit Agreement]

			
OAKTREE EIF II SERIES B1, LTD.
as a Lender	
By:	 	Oaktree Capital Management, L.P.	
its:	 	Collateral Manager	
		
By:	 	/s/ Peter Deschner	
	 	Name: Peter Deschner
Title: Senior Vice President	
	
For Lenders requiring a second signature block:	
		
By:	 	/s/ Armen Panossian	
	 	Name: Armen Panossian
Title: Managing Director	
 
[Signature Page to Amendment to Credit Agreement]

			
OAKTREE EIF II SERIES B2, LTD.
as a Lender	
By:	 	Oaktree Capital Management, L.P.	
its:	 	Collateral Manager	
		
By:	 	/s/ Peter Deschner	
	 	Name: Peter Deschner
Title: Senior Vice President	
	
For Lenders requiring a second signature block:	
		
By:	 	/s/ Armen Panossian	
	 	Name: Armen Panossian
Title: Managing Director	
 
[Signature Page to Amendment to Credit Agreement]

			
Oaktree Enhanced Income Funding Series IV, Ltd.
as a Lender	
BY:	 	Oaktree Capital Management, L.P.	
Its:	 	Collateral Manager	
		
By:	 	/s/ Peter Deschner	
	 	Name: Peter Deschner
Title: Senior Vice President	
	
For Lenders requiring a second signature block:	
		
By:	 	/s/ Armen Panossian	
	 	Name: Armen Panossian
Title: Managing Director	
 
[Signature Page to Amendment to Credit Agreement]

			
Oaktree Senior Loan Fund, L.P.
as a Lender	
By:	 	Oaktree Senior Loan GP, L.P.	
Its:	 	General Partner	
		
By:	 	Oaktree Fund GP IIA, LLC	
Its:	 	General Partner	
		
By:	 	Oaktree Fund GP II, L.P.	
Its:	 	Managing Member	
		
By:	 	/s/ Peter Deschner	
	 	Name: Peter Deschner
Title: Authorized Signatory	
	
For Lenders requiring a second signature block:	
		
By:	 	/s/ Armen Panossian	
	 	Name: Armen Panossian
Title: Authorized Signatory	
 
[Signature Page to Amendment to Credit Agreement]

			
Ocean Trails CLO IV
as a Lender	
By: Five Arrows Managers North America LLC
as Asset Manager	
		
By:	 	/s/ Todd Solomon	
	 	Name: Todd Solomon
Title: Vice President	
	
For Lenders requiring a second signature block:	
		
By:  	 		
	 	Name:
Title:	
 
[Signature Page to Amendment to Credit Agreement]

			
Ocean Trails CLO V
as a Lender	
By: Five Arrows Managers North America LLC
as Asset Manager	
		
By:	 	/s/ Todd Solomon	
	 	Name: Todd Solomon	
	 	Title: Vice President	
	
For Lenders requiring a second signature block:	
		
By:	 		
	 	Name:	
	 	Title:	
 
[Signature Page to Amendment to Credit Agreement]

			
Ocean Trails CLO VI
as a Lender	
By: Five Arrows Managers North America LLC
as Asset Manager	
		
By:	 	/s/ Todd Solomon	
	 	Name: Todd Solomon	
	 	Title: Vice President	
	
For Lenders requiring a second signature block:	
		
By:	 		
	 	Name:	
	 	Title:	
 
[Signature Page to Amendment to Credit Agreement]

			
ORIX Corporate Capital Inc.
as Lender	
		
By:	 	/s/ David Marun	
Name:	 	David Marun	
Title:	 	Authorized Signatory	
	
For Lenders requiring a second signature block:	
		
By:	 	 	
Name:	 		
Title:	 		
 
[Signature Page to Amendment to Credit Agreement]

			
Palmer Square CLO 2013-1, Ltd
as a Lender	
By: Palmer Square Capital Management LLC, as Portfolio Manager	
		
By:	 	/s/ Matt Bloomfield	
	 	Name: Matt Bloomfield	
	 	Title: Managing Director/Portfolio Manager	
	
For Lenders requiring a second signature block:	
		
By:	 		
	 	Name:	
	 	Title:	
 
[Signature Page to Amendment to Credit Agreement]

			
Palmer Square CLO 2013-2, Ltd
as a Lender	
By: Palmer Square Capital Management LLC, as Portfolio Manager	
		
By:	 	/s/ Matt Bloomfield	
	 	Name: Matt Bloomfield	
	 	Title: Managing Director/Portfolio Manager	
	
For Lenders requiring a second signature block:	
		
By:	 		
	 	Name:	
	 	Title:	
 
[Signature Page to Amendment to Credit Agreement]

			
Palmer Square CLO 2014-1, Ltd
as a Lender	
By: Palmer Square Capital Management LLC, as Portfolio Manager	
		
By:	 	/s/ Matt Bloomfield	
	 	Name: Matt Bloomfield	
	 	Title: Managing Director/Portfolio Manager	
	
For Lenders requiring a second signature block:	
		
By:	 		
	 	Name:	
	 	Title:	
 
[Signature Page to Amendment to Credit Agreement]

			
Palmer Square CLO 2015-1, Ltd
as a Lender	
BY: Palmer Square Capital Management LLC, as Portfolio Manager	
		
By:	 	/s/ Matt Bloomfield	
	 	Name: Matt Bloomfield	
	 	Title: Managing Director/Portfolio Manager	
	
For Lenders requiring a second signature block:	
		
By:	 		
	 	Name:	
	 	Title:	
 
[Signature Page to Amendment to Credit Agreement]

			
Palmer Square CLO 2015-2, Ltd
as a Lender	
BY: Palmer Square Capital Management LLC, as Portfolio Manager	
		
By:	 	/s/ Matt Bloomfield	
	 	Name: Matt Bloomfield	
	 	Title: Managing Director/Portfolio Manager	
	
For Lenders requiring a second signature block:	
		
By:	 		
	 	Name:	
	 	Title:	
 
[Signature Page to Amendment to Credit Agreement]

			
Palmer Square Loan Funding 2016-2, Ltd
as a Lender	
By: Palmer Square Capital Management LLC, as Servicer	
		
By:	 	/s/ Matt Bloomfield	
	 	Name: Matt Bloomfield	
	 	Title: Managing Director/Portfolio Manager	
	
For Lenders requiring a second signature block:	
		
By:	 		
	 	Name:	
	 	Title:	
 
[Signature Page to Amendment to Credit Agreement]

			
Palmer Square Loan Funding 2016-3, Ltd
as a Lender	
By: Palmer Square Capital Management LLC, as Servicer	
		
By:	 	/s/ Matt Bloomfield	
	 	Name: Matt Bloomfield	
	 	Title: Managing Director/Portfolio Manager	
	
For Lenders requiring a second signature block:	
		
By:	 		
	 	Name:	
	 	Title:	
 
[Signature Page to Amendment to Credit Agreement]

			
Regatta II Funding LP
as a Lender	
By: Napier Park Global Capital (US) LP
Attorney-in-fact	
		
By:	 	/s/ Melanie Hanlon	
	 	Name: Melanie Hanlon	
	 	Title: Managing Director	
	
For Lenders requiring a second signature block:	
		
By:	 		
	 	Name:	
	 	Title:	
 
[Signature Page to Amendment to Credit Agreement]

			
Regatta III Funding Ltd
as a Lender	
By: Napier Park Global Capital (US) LP
Attorney-in-fact	
		
By:	 	/s/ Melanie Hanlon	
	 	Name: Melanie Hanlon	
	 	Title: Managing Director	
	
For Lenders requiring a second signature block:	
		
By:	 		
	 	Name:	
	 	Title:	
 
[Signature Page to Amendment to Credit Agreement]

			
Regatta IV Funding Ltd
as a Lender	
By: Napier Park Global Capital (US) LP
Attorney-in-fact	
		
By:	 	/s/ Melanie Hanlon	
	 	Name: Melanie Hanlon	
	 	Title: Managing Director	
	
For Lenders requiring a second signature block:	
		
By:	 		
	 	Name:	
	 	Title:	
 
[Signature Page to Amendment to Credit Agreement]

			
Regatta V Funding Ltd
as a Lender	
By: Napier Park Global Capital (US) LP
Attorney-in-fact	
		
By:	 	/s/ Melanie Hanlon	
	 	Name: Melanie Hanlon	
	 	Title: Managing Director	
	
For Lenders requiring a second signature block:	
		
By:	 		
	 	Name:	
	 	Title:	
 
[Signature Page to Amendment to Credit Agreement]

			
Saranac CLO I Limited
as a Lender	
By: Canaras Capital Management, LLC
As Sub-Investment Adviser	
		
By:	 	/s/ Richard Vratanina	
	 	Name: Richard Vratanina	
	 	Title: Authorized Signatory	
	
For Lenders requiring a second signature block:	
		
By:	 		
	 	Name:	
	 	Title:	
 
[Signature Page to Amendment to Credit Agreement]

			
Saranac CLO II Limited
as a Lender	
By: Canaras Capital Management, LLC
As Sub-Investment Adviser	
		
By:	 	/s/ Richard Vratanina	
	 	Name: Richard Vratanina	
	 	Title: Authorized Signatory	
	
For Lenders requiring a second signature block:	
		
By:	 		
	 	Name:	
	 	Title:	
 
[Signature Page to Amendment to Credit Agreement]

			
Saranac CLO III Limited
as a Lender	
By: Canaras Capital Management, LLC
As Sub-Investment Adviser	
		
By:	 	/s/ Richard Vratanina	
	 	Name: Richard Vratanina	
	 	Title: Authorized Signatory	
	
For Lenders requiring a second signature block:	
		
By:	 		
	 	Name:	
	 	Title:	
 
[Signature Page to Amendment to Credit Agreement]

			
SHBNPP US Senior Loan Private Special Asset Investment Trust No.1 (H)[Loan]
as a Lender	
By: CIFC Asset Management LLC, its Advisor	
		
By:	 	/s/ Robert Steelman	
	 	Name: Robert Steelman	
	 	Title: Managing Director	
	
For Lenders requiring a second signature block:	
		
By:	 		
	 	Name:	
	 	Title:	
 
[Signature Page to Amendment to Credit Agreement]

			
SIEMENS FINANCIAL SERVICES, INC,
as Lender	
		
By:	 	/s/ Patrick N. Riley	
Name:	 	Patrick N. Riley	
Title:	 	Vice President	
		
By:	 	/s/ Steve Kanaplue	
Name:	 	Steve Kanaplue	
Title:	 	VP	
 
[Signature Page to Amendment to Credit Agreement]

			
Sound Harbor Loan Fund 2014-1 Ltd.
as a Lender	
By Allianz Global Investors U.S. LLC, as Manager	
		
By:	 	/s/ Thomas E. Bancroft	
	 	Name: Thomas E. Bancroft	
	 	Title: Portfolio Manager	
	
For Lenders requiring a second signature block:	
		
By:	 		
	 	Name:	
	 	Title:	
 
[Signature Page to Amendment to Credit Agreement]

			
Sound Point CLO II, Ltd
as a Lender	
BY: Sound Point Capital Management, LP as Collateral Manager	
		
By:	 	/s/ Andrew Wright	
	 	Name: Andrew Wright	
	 	Title: Authorized Signatory	
	
For Lenders requiring a second signature block:	
		
By:	 		
	 	Name:	
	 	Title:	
 
[Signature Page to Amendment to Credit Agreement]

			
Sound Point CLO III, Ltd
as a Lender	
BY: Sound Point Capital Management, LP as Collateral Manager	
		
By:	 	/s/ Andrew Wright	
	 	Name: Andrew Wright	
	 	Title: Authorized Signatory	
	
For Lenders requiring a second signature block:	
		
By:	 		
	 	Name:	
	 	Title:	
 
[Signature Page to Amendment to Credit Agreement]

			
Sound Point CLO IV, Ltd
as a Lender	
BY: Sound Point Capital Management, LP as Collateral Manager	
		
By:	 	/s/ Andrew Wright	
	 	Name: Andrew Wright	
	 	Title: Authorized Signatory	
	
For Lenders requiring a second signature block:	
		
By:	 		
	 	Name:	
	 	Title:	
 
[Signature Page to Amendment to Credit Agreement]

			
Sound Point CLO IX, Ltd.
as a Lender	
		
By:	 	/s/ Andrew Wright	
	 	Name: Andrew Wright	
	 	Title: Authorized Signatory	
	
For Lenders requiring a second signature block:	
		
By:	 		
	 	Name:	
	 	Title:	
 
[Signature Page to Amendment to Credit Agreement]

			
Sound Point CLO V, Ltd.
as a Lender	
BY: Sound Point Capital Management, LP as Collateral Manager	
		
By:	 	/s/ Andrew Wright	
	 	Name: Andrew Wright	
	 	Title: Authorized Signatory	
	
For Lenders requiring a second signature block:	
		
By:	 		
	 	Name:	
	 	Title:	
 
[Signature Page to Amendment to Credit Agreement]

			
Sound Point CLO VI, Ltd.
as a Lender	
BY: Sound Point Capital Management, LP as Collateral Manager	
		
By:	 	/s/ Andrew Wright	
	 	Name: Andrew Wright	
	 	Title: Authorized Signatory	
	
For Lenders requiring a second signature block:	
		
By:	 		
	 	Name:	
	 	Title:	
 
[Signature Page to Amendment to Credit Agreement]

			
Sound Point CLO VII, Ltd.
as a Lender	
BY: Sound Point Capital Management, LP as Collateral Manager	
		
By:	 	/s/ Andrew Wright	
	 	Name: Andrew Wright	
	 	Title: Authorized Signatory	
	
For Lenders requiring a second signature block:	
		
By:	 		
	 	Name:	
	 	Title:	
 
[Signature Page to Amendment to Credit Agreement]

			
Sound Point CLO VIII, Ltd.
as a Lender	
BY: Sound Point Capital Management, LP as Collateral Manager	
		
By:	 	/s/ Andrew Wright	
	 	Name: Andrew Wright	
	 	Title: Authorized Signatory	
	
For Lenders requiring a second signature block:	
		
By:	 		
	 	Name:	
	 	Title:	
 
[Signature Page to Amendment to Credit Agreement]

			
Sound Point CLO X, Ltd.
as a Lender	
By: Sound Point Capital Management, LP as Collateral Manager	
		
By:	 	/s/ Andrew Wright	
	 	Name: Andrew Wright	
	 	Title: Authorized Signatory	
	
For Lenders requiring a second signature block:	
		
By:	 		
	 	Name:	
	 	Title:	
 
[Signature Page to Amendment to Credit Agreement]

			
Sound Point CLO XI, Ltd.
as a Lender	
By: Sound Point Capital Management, LP as Collateral Manager	
		
By:	 	/s/ Andrew Wright	
	 	Name: Andrew Wright	
	 	Title: Authorized Signatory	
	
For Lenders requiring a second signature block:	
		
By:	 		
	 	Name:	
	 	Title:	
 
[Signature Page to Amendment to Credit Agreement]

			
Sound Point CLO XII, Ltd.
as a Lender	
By: Sound Point Capital Management, LP as
Collateral Manager	
		
By:	 	/s/ Andrew Wright	
	 	Name: Andrew Wright	
	 	Title: Authorized Signatory	
	
For Lenders requiring a second signature block:	
		
By:	 		
	 	Name:	
	 	Title:	
 
[Signature Page to Amendment to Credit Agreement]

			
Sound Point CLO XIV, Ltd.
as a Lender	
By: Sound Point Capital Management, LP as
Collateral Manager	
		
By:	 	/s/ Andrew Wright	
	 	Name: Andrew Wright	
	 	Title: Authorized Signatory	
	
For Lenders requiring a second signature block:	
		
By:	 		
	 	Name:	
	 	Title:	
 
[Signature Page to Amendment to Credit Agreement]

			
Steele Creek CLO 2014-1, LTD.	
as a Lender	
BY: Steele Creek Investment Management LLC	
		
By:	 	/s/ Will Farr	
	 	Name: Will Farr	
	 	Title: Senior Research Analyst	
	
For Lenders requiring a second signature block:	
		
By:	 		
	 	Name:	
	 	Title:	
 
[Signature Page to Amendment to Credit Agreement]

			
Steele Creek CLO 2015-1, LTD.	
as a Lender	
		
By:	 	/s/ Will Farr	
	 	Name: Will Farr	
	 	Title: Senior Research Analyst	
	
For Lenders requiring a second signature block:	
		
By:	 		
	 	Name:	
	 	Title:	
 
[Signature Page to Amendment to Credit Agreement]

			
Steele Creek CLO 2016-1, Ltd.	
as a Lender	
		
By:	 	/s/ Will Farr	
	 	Name: Will Farr	
	 	Title: Senior Research Analyst	
	
For Lenders requiring a second signature block:	
		
By:	 		
	 	Name:	
	 	Title:	
 
[Signature Page to Amendment to Credit Agreement]

			
SUMITOMO MISUI TRUST BANK,	
LIMITED, NEW YORK BRANCH,	
As a Lender	
		
By:	 	/s/ Lorraine Netter	
Name:	 	LORRAINE NETTER, ESQ.	
Title:	 	AUTHORIZED SIGNATORY
LENDING GROUP	
 
[Signature Page to Amendment to Credit Agreement]

			
TELOS CLO 2013-3, Ltd.	
as a Lender	
By: Telos Asset Management, LLC	
		
By:	 	/s/ Jonathan Tepper	
	 	Name: Jonathan Tepper	
	 	Title: Managing Director	
	
For Lenders requiring a second signature block:	
		
By:	 		
	 	Name:	
	 	Title:	
 
[Signature Page to Amendment to Credit Agreement]

			
TELOS CLO 2013-4, Ltd.	
as a Lender	
By: Telos Asset Management, LLC	
		
By:	 	/s/ Jonathan Tepper	
	 	Name: Jonathan Tepper	
	 	Title: Managing Director	
	
For Lenders requiring a second signature block:	
		
By:	 		
	 	Name:	
	 	Title:	
 
[Signature Page to Amendment to Credit Agreement]

			
TELOS CLO 2014-5, Ltd.	
as a Lender	
BY: Telos Asset Management, LLC	
		
By:	 	/s/ Jonathan Tepper	
	 	Name: Jonathan Tepper	
	 	Title: Managing Director	
	
For Lenders requiring a second signature block:	
		
By:	 		
	 	Name:	
	 	Title:	
 
[Signature Page to Amendment to Credit Agreement]

			
TELOS CLO 2014-6, Ltd.	
as a Lender	
		
By:	 	/s/ Jonathan Tepper	
	 	Name: Jonathan Tepper	
	 	Title: Managing Director	
	
For Lenders requiring a second signature block:	
		
By:	 		
	 	Name:	
	 	Title:	
 
[Signature Page to Amendment to Credit Agreement]

			
Louisiana State Employee’s Retirement System
as Lender	
		
By:	 	/s/ Steve Kotsen	
Name:	 	Steve Kotsen	
Title:	 	Managing Director / Portfolio Manager	
	
For Lenders requiring a second signature block:	
		
By:	 	 	
Name:	 		
Title:	 		
NOMURA CORPORATE RESEARCH
AND ASSET MANAGEMENT INC.
AS
INVESTMENT MANAGER

			
L-3 Communications Corporation Master Trust
as Lender	
		
By:	 	/s/ Steve Kotsen	
Name:	 	Steve Kotsen	
Title:	 	Managing Director / Portfolio Manager	
	
For Lenders requiring a second signature block:	
		
By:	 	 	
Name:	 		
Title:	 		
NOMURA CORPORATE RESEARCH
AND ASSET MANAGEMENT INC.
AS
INVESTMENT MANAGER

			
The Regents of The University of California
as Lender	
		
By:	 	/s/ Steve Kotsen	
Name:	 	Steve Kotsen	
Title:	 	Managing Director / Portfolio Manager	
	
For Lenders requiring a second signature block:	
		
By:	 	 	
Name:	 		
Title:	 		
NOMURA CORPORATE RESEARCH
AND ASSET MANAGEMENT INC.
AS
INVESTMENT MANAGER

			
Thrivent Balanced Income Plus Fund
as a Lender	
BY: Thrivent Asset Management, LLC	
		
By:	 	/s/ Conrad Smith	
	 	Name: Conrad Smith	
	 	Title: Sr. Portfolio Manager	
	
For Lenders requiring a second signature block:	
		
By:	 		
	 	Name:	
	 	Title:	
 
[Signature Page to Amendment to Credit Agreement]

			
Thrivent Balanced Income Plus Portfolio
as a Lender	
		
By:	 	/s/ Conrad Smith	
	 	Name: Conrad Smith	
	 	Title: Sr. Portfolio Manager	
	
For Lenders requiring a second signature block:	
		
By:	 		
	 	Name:	
	 	Title:	
 
[Signature Page to Amendment to Credit Agreement]

			
Thrivent Diversified Income Plus Fund
as a Lender	
BY: Thrivent Asset Management, LLC	
		
By:	 	/s/ Conrad Smith	
	 	Name: Conrad Smith	
	 	Title: Sr. Portfolio Manager	
	
For Lenders requiring a second signature block:	
		
By:	 		
	 	Name:	
	 	Title:	
 
[Signature Page to Amendment to Credit Agreement]

			
Thrivent Diversified Income Plus Portfolio
as a Lender	
BY: Thrivent Financial for Lutherans	
		
By:	 	/s/ Conrad Smith	
	 	Name: Conrad Smith	
	 	Title: Sr. Portfolio Manager	
	
For Lenders requiring a second signature block:	
		
By:	 		
	 	Name:	
	 	Title:	
 
[Signature Page to Amendment to Credit Agreement]

			
Thrivent Financial Defined Benefit Plan Trust
as a Lender	
		
By:	 	/s/ Conrad Smith	
	 	Name: Conrad Smith	
	 	Title: Sr. Portfolio Manager	
	
For Lenders requiring a second signature block:	
		
By:	 		
	 	Name:	
	 	Title:	
 
[Signature Page to Amendment to Credit Agreement]

			
Thrivent Financial For Lutherans
as a Lender	
		
By:	 	/s/ Conrad Smith	
	 	Name: Conrad Smith	
	 	Title: Sr. Portfolio Manager	
	
For Lenders requiring a second signature block:	
		
By:	 		
	 	Name:	
	 	Title:	
 
[Signature Page to Amendment to Credit Agreement]

			
Thrivent Growth and Income Plus Fund
as a Lender	
		
By:	 	/s/ Conrad Smith	
	 	Name: Conrad Smith	
	 	Title: Sr. Portfolio Manager	
	
For Lenders requiring a second signature block:	
		
By:	 		
	 	Name:	
	 	Title:	
 
[Signature Page to Amendment to Credit Agreement]

			
Thrivent Growth and Income Plus Portfolio
as a Lender	
		
By:	 	/s/ Conrad Smith	
	 	Name: Conrad Smith	
	 	Title: Sr. Portfolio Manager	
	
For Lenders requiring a second signature block:	
		
By:	 		
	 	Name:	
	 	Title:	
 
[Signature Page to Amendment to Credit Agreement]

			
Thrivent Income Fund
as a Lender
BY: Thrivent Asset Management, LLC	
		
By:	 	/s/ Conrad Smith	
	 	Name: Conrad Smith	
	 	Title: Sr. Portfolio Manager	
	
For Lenders requiring a second signature block:	
		
By:	 		
	 	Name:	
	 	Title:	
 
[Signature Page to Amendment to Credit Agreement]

			
Thrivent Income Portfolio
as a Lender
BY: Thrivent Financial For Lutherans	
		
By:	 	/s/ Conrad Smith	
	 	Name: Conrad Smith	
	 	Title: Sr. Portfolio Manager	
	
For Lenders requiring a second signature block:	
		
By:	 		
	 	Name:	
	 	Title:	
 
[Signature Page to Amendment to Credit Agreement]

			
Thrivent Moderate Allocation Fund
as a Lender
BY: Thrivent Asset Management, LLC	
		
By:	 	/s/ Conrad Smith	
	 	Name: Conrad Smith	
	 	Title: Sr. Portfolio Manager	
	
For Lenders requiring a second signature block:	
		
By:	 		
	 	Name:	
	 	Title:	
 
[Signature Page to Amendment to Credit Agreement]

			
Thrivent Moderate Allocation Portfolio
as a Lender
BY: Thrivent Financial for Lutherans	
		
By:	 	/s/ Conrad Smith	
	 	Name: Conrad Smith	
	 	Title: Sr. Portfolio Manager	
	
For Lenders requiring a second signature block:	
		
By:	 		
	 	Name:	
	 	Title:	
 
[Signature Page to Amendment to Credit Agreement]

			
Thrivent Moderately Aggressive Allocation Fund
as a Lender
BY: Thrivent Asset Management, LLC	
		
By:	 	/s/ Conrad Smith	
	 	Name: Conrad Smith	
	 	Title: Sr. Portfolio Manager	
	
For Lenders requiring a second signature block:	
		
By:	 		
	 	Name:	
	 	Title:	
 
[Signature Page to Amendment to Credit Agreement]

			
Thrivent Moderately Aggressive Allocation Portfolio
as a Lender
BY: Thrivent Financial for Lutherans	
		
By:	 	/s/ Conrad Smith	
	 	Name: Conrad Smith	
	 	Title: Sr. Portfolio Manager	
	
For Lenders requiring a second signature block:	
		
By:	 		
	 	Name:	
	 	Title:	
 
[Signature Page to Amendment to Credit Agreement]

			
Thrivent Moderately Conservative Allocation Fund
as a Lender
BY: Thrivent Asset Management, LLC	
		
By:	 	/s/ Conrad Smith	
	 	Name: Conrad Smith	
	 	Title: Sr. Portfolio Manager	
	
For Lenders requiring a second signature block:	
		
By:	 		
	 	Name:	
	 	Title:	
 
[Signature Page to Amendment to Credit Agreement]

			
Thrivent Moderately Conservative Allocation Portfolio
as a Lender
BY: Thrivent Financial for Lutherans	
		
By:	 	/s/ Conrad Smith	
	 	Name: Conrad Smith	
	 	Title: Sr. Portfolio Manager	
	
For Lenders requiring a second signature block:	
		
By:	 		
	 	Name:	
	 	Title:	
 
[Signature Page to Amendment to Credit Agreement]

			
Thrivent Opportunity Income Plus Fund
as a Lender
BY: Thrivent Asset Management, LLC	
		
By:	 	/s/ Conrad Smith	
	 	Name: Conrad Smith	
	 	Title: Sr. Portfolio Manager	
	
For Lenders requiring a second signature block:	
		
By:	 		
	 	Name:	
	 	Title:	
 
[Signature Page to Amendment to Credit Agreement]

			
Thrivent Opportunity Income Plus Portfolio
as a Lender	
		
By:	 	/s/ Conrad Smith	
	 	Name: Conrad Smith	
	 	Title: Sr. Portfolio Manager	
	
For Lenders requiring a second signature block:	
		
By:	 		
	 	Name:	
	 	Title:	
 
[Signature Page to Amendment to Credit Agreement]

			
Trinitas CLO II, Ltd.
as a Lender	
		
By:	 	/s/ Gibran Mahmud	
	 	Name: Gibran Mahmud	
	 	Title: Chief Investment Officer	
	
For Lenders requiring a second signature block:	
		
By:	 		
	 	Name:	
	 	Title:	
 
[Signature Page to Amendment to Credit Agreement]

			
Trinitas CLO III, Ltd.
as a Lender	
		
By:	 	/s/ Gibran Mahmud	
	 	Name: Gibran Mahmud	
	 	Title: Chief Investment Officer	
	
For Lenders requiring a second signature block:	
		
By:	 		
	 	Name:	
	 	Title:	
 
[Signature Page to Amendment to Credit Agreement]

			
Venture X CLO, Limited
as a Lender	
By its Collateral Manager, MJX
Venture Management LLC	
		
By:	 	/s/ John Calaba	
	 	Name: John Calaba	
	 	Title: Managing Director	
	
For Lenders requiring a second signature block:	
		
By:	 		
	 	Name:	
	 	Title:	
 
[Signature Page to Amendment to Credit Agreement]

			
VENTURE XII CLO, Limited
as a Lender	
BY: its investment advisor
MJX Venture Management LLC	
		
By:	 	/s/ John Calaba	
	 	Name: John Calaba	
	 	Title: Managing Director	
	
For Lenders requiring a second signature block:	
		
By:	 		
	 	Name:	
	 	Title:	
 
[Signature Page to Amendment to Credit Agreement]

			
VENTURE XIII CLO, Limited
as a Lender	
BY: its Investment Advisor
MJX Asset Management LLC	
		
By:	 	/s/ John Calaba	
	 	Name: John Calaba	
	 	Title: Managing Director	
	
For Lenders requiring a second signature block:	
		
By:	 		
	 	Name:	
	 	Title:	
 
[Signature Page to Amendment to Credit Agreement]

			
VENTURE XIV CLO, Limited
as a Lender	
By: its investment advisor
MJX Asset Management LLC	
		
By:	 	/s/ John Calaba	
	 	Name: John Calaba	
	 	Title: Managing Director	
	
For Lenders requiring a second signature block:	
		
By:	 		
	 	Name:	
	 	Title:	
 
[Signature Page to Amendment to Credit Agreement]

			
VENTURE XIX CLO, Limited
as a Lender	
By: its investment advisor
MJX Asset Management LLC	
		
By:	 	/s/ John Calaba	
	 	Name: John Calaba	
	 	Title: Managing Director	
	
For Lenders requiring a second signature block:	
		
By:	 		
	 	Name:	
	 	Title:	
 
[Signature Page to Amendment to Credit Agreement]

			
VENTURE XV CLO, Limited
as a Lender	
By: its investment advisor
MJX Asset Management LLC	
		
By:	 	/s/ John Calaba	
	 	Name: John Calaba	
	 	Title: Managing Director	
	
For Lenders requiring a second signature block:	
		
By:	 		
	 	Name:	
	 	Title:	
 
[Signature Page to Amendment to Credit Agreement]

			
VENTURE XVI CLO, Limited
as a Lender	
By: its investment advisor
MJX Asset Management LLC	
		
By:	 	/s/ John Calaba	
	 	Name: John Calaba	
	 	Title: Managing Director	
	
For Lenders requiring a second signature block:	
		
By:	 		
	 	Name:	
	 	Title:	
 
[Signature Page to Amendment to Credit Agreement]

			
Venture XVII CLO Limited
as a Lender	
BY: its investment advisor, MJX Asset Management, LLC	
		
By:  	 	/s/ John Calaba	
	 	Name: John Calaba
Title: Managing Director	
	
For Lenders requiring a second signature block:	
		
By:  	 		
	 	Name:
Title:	
 
[Signature Page to Amendment to Credit Agreement]

			
Venture XVIII CLO, Limited
as a Lender	
By: its investment advisor
MJX Asset Management LLC	
		
By:  	 	/s/ John Calaba	
	 	Name: John Calaba
Title: Managing Director	
	
For Lenders requiring a second signature block:	
		
By:  	 		
	 	Name:
Title:	
 
[Signature Page to Amendment to Credit Agreement]

			
Venture XXVI CLO, Limited
as a Lender	
By: its investment advisor
MJX Venture Management LLC	
		
By:  	 	/s/ John Calaba	
	 	Name: John Calaba
Title: Managing Director	
	
For Lenders requiring a second signature block:	
		
By:  	 		
	 	Name:
Title:	
 
[Signature Page to Amendment to Credit Agreement]

			
Western Asset Bank Loan (Multi-Currency) Master Fund
as a Lender	
BY: Western Asset Management Company as Investment Manager and Agent	
		
By:  	 	/s/ Heydi Lu	
	 	Name: Heydi Lu
Title: Authorized SIgnor	
	
For Lenders requiring a second signature block:	
		
By:  	 		
	 	Name:
Title:	
 
[Signature Page to Amendment to Credit Agreement]

			
Western Asset Bank Loan (Offshore) Fund
as a Lender	
		
By:  	 	/s/ Heydi Lu	
	 	Name: Heydi Lu
Title: Authorized SIgnor	
	
For Lenders requiring a second signature block:	
		
By:  	 		
	 	Name:
Title:	
 
[Signature Page to Amendment to Credit Agreement]

			
Western Asset Corporate Loan Fund Inc.
as a Lender	
BY: Western Asset Management Company as Investment Manager and Agent	
		
By:  	 	/s/ Heydi Lu	
	 	Name: Heydi Lu
Title: Authorized SIgnor	
	
For Lenders requiring a second signature block:	
		
By:  	 		
	 	Name:
Title:	
 
[Signature Page to Amendment to Credit Agreement]

			
Western Asset Floating Rate High Income Fund, LLC
as a Lender	
BY: Western Asset Management Company as Investment Manager and Agent	
		
By:  	 	/s/ Heydi Lu	
	 	Name: Heydi Lu
Title: Authorized SIgnor	
	
For Lenders requiring a second signature block:	
		
By:  	 		
	 	Name:
Title:	
 
[Signature Page to Amendment to Credit Agreement]

			
Western Asset U.S. Bank Loan (Offshore) Fund
as a Lender	
		
By:  	 	/s/ Heydi Lu	
	 	Name: Heydi Lu
Title: Authorized SIgnor	
	
For Lenders requiring a second signature block:	
		
By:  	 		
	 	Name:
Title:	
 
[Signature Page to Amendment to Credit Agreement]

			
WHISTLER FUNDING, LLC
as a Lender	
		
By:  	 	/s/ Madonna Sequeira	
	 	Name: Madonna Sequeira
Title: Authorized Signatory	
	
For Lenders requiring a second signature block:	
		
By:  	 		
	 	Name:
Title:	
 
[Signature Page to Amendment to Credit Agreement]

			
WhiteHorse VI. Ltd.,
as Lender	
	
By: H.I.G. WhiteHorse Capital, LLC	
As: Collateral Manager	
	
/s/ Ethan Underwood	
By: Ethan Underwood
Title: Manager	
	
For Lenders requiring a second signature block:	

By:	 	 	
Name:
Title:	 		
 
[Signature Page to Amendment to Credit Agreement]

			
WhiteHorse VII, Ltd.,
as Lender	
	
By: H.I.G. WhiteHorse Capital, LLC
As: Collateral Manager	
	
/s/ Ethan Underwood	
By: Ethan Underwood	
Title: Manager	
	
For Lenders requiring a second signature block:	
		
By:	 	 	
Name:	 		
Title:	 		
 
[Signature Page to Amendment to Credit Agreement]

			
WhiteHorse VIII, Ltd.,
as Lender	
	
By: H.I.G. WhiteHorse Capital, LLC
As: Collateral Manager	
	
/s/ Ethan Underwood	
By: Ethan Underwood	
Title: Manager	
	
For Lenders requiring a second signature block:	
		
By:	 	 	
Name:	 		
Title:	 		
 
[Signature Page to Amendment to Credit Agreement]

			
WhiteHorse IX, Ltd.,
as Lender	
	
By: H.I.G. WhiteHorse Capital, LLC
As: Collateral Manager	
	
/s/ Ethan Underwood	
By: Ethan Underwood	
Title: Manager	
	
For Lenders requiring a second signature block:	
		
By:	 	 	
Name:	 		
Title:	 		
 
[Signature Page to Amendment to Credit Agreement]

			
WhiteHorse X, Ltd.,
as Lender	
	
By: H.I.G. WhiteHorse Capital, LLC
As: Collateral Manager	
	
/s/ Ethan Underwood	
By: Ethan Underwood	
Title: Manager	
	
For Lenders requiring a second signature block:	
		
By:	 	 	
Name:	 		
Title:	 		
 
[Signature Page to Amendment to Credit Agreement]

			
WM Pool - High Yield Fixed Interest Trust
as a Lender	
By: Oaktree Capital Management, L.P.
Its: Investment Manager	
		
By:	 	/s/ Peter Deschner	
	 	Name: Peter Deschner	
	 	Title: Senior Vice President	
	
For Lenders requiring a second signature block:	
		
By:	 	/s/ Armen Panossian	
	 	Name: Armen Panossian	
	 	Title: Managing Director	
 
[Signature Page to Amendment to Credit Agreement]

			
ZAIS CLO 1, Limited
as a Lender	
ZAIS CLO 1, Limited	
		
By:	 	/s/ Vincent Ingato	
	 	Name: Vincent Ingato	
	 	Title: Managing Director	
	
For Lenders requiring a second signature block:	
		
By:	 		
	 	Name:	
	 	Title:	
 
[Signature Page to Amendment to Credit Agreement]

			
ZAIS CLO 2, Limited
as a Lender	
ZAIS CLO 2, Limited	
		
By:	 	/s/ Vincent Ingato	
	 	Name: Vincent Ingato	
	 	Title: Managing Director	
	
For Lenders requiring a second signature block:	
		
By:	 		
	 	Name:	
	 	Title:	
 
[Signature Page to Amendment to Credit Agreement]

			
ZAIS CLO 3, Limited
as a Lender	
ZAIS CLO 3, Limited	
		
By:	 	/s/ Vincent Ingato	
	 	Name: Vincent Ingato	
	 	Title: Managing Director	
	
For Lenders requiring a second signature block:	
		
By:	 		
	 	Name:	
	 	Title:	
 
[Signature Page to Amendment to Credit Agreement]

			
ZAIS CLO 6, Limited
as a Lender	
By Zais Leveraged Loan Master Manager, LLC its collateral manager	
By: Zais Group, LLC, its sole member	
		
By:	 	/s/ Vincent Ingato	
	 	Name: Vincent Ingato	
	 	Title: Managing Director	
	
For Lenders requiring a second signature block:	
		
By:	 		
	 	Name:	
	 	Title:	
 
[Signature Page to Amendment to Credit Agreement]

Exhibit 99.1

SemGroup Completes Acquisition of Houston Fuel Oil Terminal Company
Immediately Accretive Acquisition Adds Downstream Balance
to SemGroup Portfolio and Stability Amid Volatile Oil Prices
Tulsa, Okla. – July  17, 2017 – SemGroup ®  Corporation (NYSE:SEMG) today announced the closing of its acquisition of Houston Fuel Oil Terminal Company (“HFOTCO”) from investment funds managed by Alinda Capital Partners (“Alinda”). HFOTCO, one of the largest oil terminals in the U.S., establishes SemGroup’s position in the premier energy market, the Houston Ship Channel, and provides a strategic platform to refinery-facing growth.
“As planned, this acquisition helps fulfill our long-term strategy to further de-risk our business by adding secure, downstream cash flow to our portfolio mix,” said SemGroup President and CEO Carlin Conner. “In addition to generating stable earnings for SemGroup on day one, this remarkably versatile asset provides an entirely new growth platform to capture opportunities within the Houston Ship Channel’s massive processing, trading and import/export complex. HFOTCO provides strong and consistent cash flows regardless of commodity price fluctuations, which further underscores the timeliness of this acquisition and the long-term value proposition it creates for our shareholders.”
The 16.8-million-barrel terminal is strategically located on the U.S. Gulf Coast with crude pipeline delivery connectivity to the local refining complex, deep water marine access and inbound crude receipt pipeline connectivity, as well as rail/truck loading and unloading capabilities from major producing basins. The assets are located on 330 acres on the Houston Ship Channel, one of the world’s most active trading centers for residual fuel oil, clean products, LPGs and crude oil. The business is supported by take-or-pay contracts with primarily investment-grade counterparties that have been customers for an average of 15 years. HFOTCO is currently executing on contractually supported growth projects, including a new ship dock, a new pipeline and connections, as well as an additional 1.45 million barrels of crude oil storage, expected to be in service mid-2018.
In conjunction with the closing of the transaction, SemGroup completed the initial payment, which consisted of a $301 million cash payment, funded from SemGroup’s revolving credit facility, issuance of 12.4 million common shares to Alinda, at a predetermined price of $32.30 per share, and the assumption of $761 million of existing HFOTCO net debt, subject to customary post-closing adjustments. SemGroup will fund the second payment of $600 million in cash before the end of 2018.
About SemGroup
Based in Tulsa, Okla., SemGroup ®  Corporation is a publicly traded midstream service company providing the energy industry the means to move products from the wellhead to the wholesale marketplace. SemGroup provides diversified services for end users and consumers of crude oil, natural gas, natural gas liquids, refined products and asphalt. Services include purchasing, selling, processing, transporting, terminalling and storing energy.
SemGroup uses its Investor Relations website and social media outlets as channels of distribution of material company information. Such information is routinely posted and accessible on our Investor Relations website at www.semgroupcorp.com, our Twitter account and LinkedIn account.
About Houston Fuel Oil Terminal Company
Houston Fuel Oil Terminal Company stores, blends and transports residual fuel and crude oil via pipeline, ship, barge, rail and truck for major oil companies, refiners, international trading firms and other energy companies. Storage is divided among 144 tanks ranging in size from 10 thousand barrels to 400 thousand barrels. The facility also includes multiple receipt and delivery pipelines, four ship docks with a fifth under construction, as well as seven barge docks able to accommodate 23 barges simultaneously.
 
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About Alinda Capital Partners
Alinda Capital Partners is one of the world’s largest and most experienced infrastructure investment firms. Alinda is a long-term investor in infrastructure assets that provide essential services to communities. Alinda has $10 billion of assets under management and has invested in infrastructure businesses that operate in 33 states in the United States as well as in Canada, the United Kingdom, the Netherlands, Belgium and Poland. These businesses serve over 100 million customers annually in more than 550 cities globally, and are run by a workforce of over 80,000 people.
Forward-Looking Statements
Certain matters contained in this Press Release include “forward-looking statements” within the meaning of Section 27A of the Securities Act of 1933, as amended, and Section 21E of the Securities Exchange Act of 1934, as amended. We make these forward-looking statements in reliance on the safe harbor protections provided under the Private Securities Litigation Reform Act of 1995.
All statements, other than statements of historical fact, included in this Press Release including the prospects of our industry, our anticipated financial performance, our anticipated annual dividend growth rate, management’s plans and objectives for future operations, planned capital expenditures, business prospects, outcome of regulatory proceedings, market conditions and other matters, may constitute forward-looking statements. Although we believe that the expectations reflected in these forward-looking statements are reasonable, we cannot assure you that these expectations will prove to be correct. These forward-looking statements are subject to certain known and unknown risks and uncertainties, as well as assumptions that could cause actual results to differ materially from those reflected in these forward-looking statements. Factors that might cause actual results to differ include, but are not limited to, the failure to realize the anticipated benefits of our acquisition of HFOTCO; our ability to pay the deferred consideration and the consequences of our failing to do so; the amount and timing of transaction expenses associated with our acquisition of HFOTCO, and the impact of our management team spending a significant portion of its time focusing on completing and integrating our acquisition of HFOTCO; the impact of the completion of our acquisition of HFOTCO on the credit ratings assigned to any of our indebtedness or the indebtedness of HFOTCO; the financial and operating performance of HFOTCO; our ability to generate sufficient cash flow from operations to enable us to pay our debt obligations and our current and expected dividends or to fund our other liquidity needs; any sustained reduction in demand for, or supply of, the petroleum products we gather, transport, process, market and store; the effect of our debt level on our future financial and operating flexibility, including our ability to obtain additional capital on terms that are favorable to us; our ability to access the debt and equity markets, which will depend on general market conditions and the credit ratings for our debt obligations and equity; the loss of, or a material nonpayment or nonperformance by, any of our key customers; the amount of cash distributions, capital requirements and performance of our investments and joint ventures; the amount of collateral required to be posted from time to time in our commodity purchase, sale or derivative transactions; the impact of operational and developmental hazards and unforeseen interruptions; our ability to obtain new sources of supply of petroleum products; competition from other midstream energy companies; our ability to comply with the covenants contained in our credit agreement and the indentures governing our senior notes, including requirements under our credit agreement to maintain certain financial ratios; our ability to renew or replace expiring storage, transportation and related contracts; the overall forward markets for crude oil, natural gas and natural gas liquids; the possibility that the construction or acquisition of new assets may not result in the corresponding anticipated revenue increases; changes in currency exchange rates; weather and other natural phenomena, including climate conditions; a cyber attack involving our information systems and related infrastructure, or that of our business associates; the risks and uncertainties of doing business outside of the U.S., including political and economic instability and changes in local governmental laws, regulations and policies; costs of, or changes in, laws and regulations and our failure to comply with new or existing laws or regulations, particularly with regard to taxes, safety and protection of the environment; the possibility that our hedging activities may result in losses or may have a negative impact on our financial results; general economic, market and business conditions; as well as other risk factors discussed from time to time in each of our documents and reports filed with the U.S. Securities and Exchange Commission.
Readers are cautioned not to place undue reliance on any forward-looking statements contained in this press release, which reflect management’s opinions only as of the date hereof. Except as required by law, we undertake no obligation to revise or publicly release the results of any revision to any forward-looking statements.
 
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Contacts:
Investor Relations:
Alisa Perkins
918-524-8081
investor.relations@semgroupcorp.com
Media:
Tom Droege
918-524-8560
tdroege@semgroupcorp.com
 
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