First Supplemental Indenture to Amended and Restated Bond Indenture, dated as of July 26, 2019, 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

This FIRST SUPPLEMENTAL INDENTURE to amended and restated bond indenture (SERIES 2011) dated as of July 26, 2019 (this “Amendment”), made pursuant to Section 9.01 of the Indenture (as defined below), is between HARRIS COUNTY INDUSTRIAL DEVELOPMENT CORPORATION (the “Issuer”), and THE BANK OF NEW YORK MELLON TRUST COMPANY, NATIONAL ASSOCIATION, as Trustee (the “Trustee”), and amends that certain Amended and Restated Bond Indenture dated as of August 19, 2014 relating to the Harris County Industrial Development Corporation Marine Terminal Revenue Bonds (HFOTCO LLC Project) Series 2011 (as amended, restated, extended, supplemented, modified and otherwise in effect from time to time, the “Indenture”) between the Issuer and the Trustee. Capitalized terms used herein without definition shall have the meanings assigned to such terms in the Indenture.

WHEREAS, pursuant to Section 9.01A of the Indenture, the parties hereto have agreed, with consent of the Borrower and the Bondholders, on the terms and conditions set forth herein, to extend the initial Purchase Date of the Initial LIBOR Term Indexed Mode and to make certain amendments to the Indenture in connection therewith; and

WHEREAS, Section 9.01 of the Indenture authorizes the Issuer and the Trustee to modify or amend the Indenture from time to time upon receipt of the written consent of each Credit Facility Provider (if a Credit Facility is in effect or any amount is owing thereto), each Liquidity Facility Provider, if any, the Bondholder Representative, and each Holder of an Outstanding Bond;

WHEREAS, no Credit Facility or Liquidity Facility is presently in effect; and no amounts are presently owed to any Credit Facility Provider;

NOW THEREFORE, in consideration of the mutual agreements contained in the Indenture 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.    Amendments to the Indenture. Effective as of the Amendment Effective Date (as defined below):

(a)Section 1.01 of the Indenture is hereby amended by adding the following definition in the appropriate alphabetical order:

(b)Section 1.01 of the Indenture is hereby amended by deleting the definition of “Margin Rate Factor” in its entirety.

(c)The definition of “Applicable Factor” in Section 1.01 of the Indenture is hereby amended by replacing the reference to “70%” therein to “81%”.

(d)The definition of “LIBOR Index” in Section 1.01 of the Indenture is hereby restated in its entirety as follows:

(e)The definition of “LIBOR Index Rate” in Section 1.01 of the Indenture is hereby restated in its entirety as follows:

(f) The definition of “Taxable Rate Factor” in Section 1.01 of the Indenture is hereby restated in its entirety as follows:

(g)Section 2.07(B) of the Indenture is hereby amended by adding the following new second sentence immediately following the first sentence therein:

(h)Section 11.07(2) of the Indenture is hereby amended by restating the notice information for the Borrower in its entirety as follows:

§2.    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 “Amendment Effective Date”):

(a)    Each party hereto shall have received a counterpart of this Amendment duly executed and delivered by the other party hereto and written consent to this Amendment by the Borrower.

(b)    The parties hereto shall have received a copy of a fully executed corresponding amendment to the Bondholder Agreement, which shall include therein the consent of the Bondholder Representative and the Bondholders to this Amendment and a direction to the Trustee to execute this Amendment.

(c)    The Trustee shall have received favorable written opinions from Bond Counsel (i) in form and substance satisfactory to the Trustee, (ii) dated the Amendment Effective Date, (iii) addressed to the Trustee, (iv) to the effect that this Amendment has been duly authorized, executed and delivered by the Issuer and constitutes a legal, valid and binding obligation of the Issuer enforceable in accordance with its terms (subject to customary exceptions regarding enforceability), (v) to the effect that this Amendment and the corresponding amendment to the Bondholder Agreement 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, (vi) to the effect that this Amendment and the corresponding amendment to the Bondholder Agreement are permitted under the Indenture, including but not limited to Section 9.01 A of the Indenture and (vii) covering such other customary matters as the Trustee may reasonably request.

§3.1.    Except as otherwise expressly provided by this Amendment, all of the terms, conditions and provisions of the Indenture and the Bonds shall remain the same, all of which are expressly ratified and confirmed. This Amendment is not intended to, and shall not, extinguish any indebtedness represented by the Indenture or the Bonds. It is declared

and agreed by each of the parties hereto that the Indenture, as amended hereby, shall continue in full force and effect, and that the Indenture and this Amendment shall be read and construed as one instrument.

 

§3.2.    THIS AMENDMENT IS A CONTRACT 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.

§3.3.    The Trustee accepts the amendment to the Indenture as set forth in this Amendment and agrees to perform the duties of the Trustee upon the terms and conditions set forth herein and in the Indenture. Without limiting the generality of the foregoing, the Trustee assumes no responsibility for the correctness of the recitals contained herein, which shall be taken as the statements of the Issuer, and the Trustee shall not be responsible or accountable in any way whatsoever for or with respect to the validity or execution of this Amendment by the Issuer or the sufficiency of this Amendment and makes no representation with respect thereto.

§3.4.    This Amendment 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.

§3.5.    The Issuer represents and warrants to the Trustee that this Amendment has been duly and validly executed and delivered by the Issuer and constitutes its legal, valid, and binding obligation, enforceable against the Issuer in accordance with its terms and that the Recitals are true and accurate.

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