New Jersey Economic Development Authority Preliminary Official Statement Is Dated December 8, 2017

The information contained in this Preliminary Official Statement is subject to completion or amendment without notice. Under no circumstances shall this Preliminary Official Statement constitute an offer to sell or the solicitation of an offer to buy nor shall there be any sale of these securities in any jurisdiction in which such offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of such jurisdiction. DTC onoraboutDecember__, 2017. Hill, NewJersey.Itisexpected thattheSeries2017Bondsindefinitiveformwillbeavailable fordeliverythroughthefacilitiesof York, NewYorkandDLAPiper LLP(US),ShortHills,NewJerseyandfortheUnderwriterby itscounsel,BallardSpahrLLP,Cherry Counsel. Certainlegalmatters willbepasseduponfortheCompanybyitscounsel,Cleary GottliebSteen&HamiltonLLP,New Underwriter, subjecttopriorsale andtoapprovalofthevaliditythereofbyMcCarter&English, LLP,Newark,NewJersey,asBond decision. to aninvestmentintheSeries2017Bonds.Investorsshouldread thisOfficialStatementinitsentirelybeforemakinganinvestment SOURCE OFPAYMENTFORTHESERIES2017BONDS”and “RISKFACTORS”herein. to the security and sources of payment for the Series 2017 Bonds and certain risks with respect thereto, see “SECURITY AND CONSTITUTE ACHARGEAGAINSTTHEGENERALCREDIT OFTHEISSUER.ISSUERHASNOTAXINGPOWER. THE PAYMENTOFSERIES2017BONDS. SERIES 2017BONDSDONOTNOWANDSHALLEVER ANY AMOUNTSOTHERWISEAVAILABLEUNDERTHE INDENTUREANDTHECOLLATERALDOCUMENTSFOR MONEYS OFTHEISSUERPLEDGEDUNDER INDENTURE, THECOLLATERALDOCUMENTSANDFROM OBLIGATIONS OFTHEISSUER,PAYABLESOLELYOUTREVENUESOROTHERRECEIPTS,FUNDS OR PRICE, IF ANY, OF OR INTEREST ON THE SERIES 2017 BONDS. THE SERIES 2017 BONDS ARE SPECIAL, LIMITED POWER OFTHESTATENEWJERSEYISPLEDGEDTOPAYMENTPRINCIPALORREDEMPTION name ofCede&Co.,asnomineeTheDepositoryTrustCompany,NewYork,York(“DTC”).SeeAPPENDIXHhereto. extraordinary optionalredemptionasdescribedherein.See“THESERIES2017BONDS.” Official Statement.TheSeries2017Bondsaresubjecttooptional,mandatorysinkingfund,extraordinarymandatory,special and of eachyear,commencingonApril1,2018,attheratesandwillmaturedatesspecifiedinsidecoverpage ofthis denominations shallbereducedto$5,000andanyintegralmultiplethereof,willbearinterestpayableApril1 October 1 provided, however,thatintheeventSeries2017BondsachieveanInvestmentGradeRating(asdefinedherein), the AND SOURCEOFPAYMENTFORTHESERIES2017BONDS”herein. when andasthesamebecomeduepayablepursuanttoaGuarantyAgreementdatedofDecember1,2017.See“SECURITY the Trusteefullandpromptpaymentofprincipalredemptionpremium,ifany,interestonSeries2017 Bonds between theIssuerandU.S.BankNationalAssociation,astrustee(the“Trustee”).TheCompanywillunconditionallyguaranteeto PROJECT” and“APPLICATIONOFBONDPROCEEDS”herein. the Series2017Bonds;and(d)payingcertaincostsincurredinconnectionwithissuanceofBonds. See “THE adeposittodebtservicereservefundsecuring of thePortNewarkContainerTerminalatNewark,NewJersey;(c) funding Series 2003Aand$62,500,0002003B;(b)financingaportionofthecostsexpansion,renovation,construction equipping Authority SpecialFacilityRevenueBonds(PortNewarkContainerTerminalL.L.C.Project)Series 2003, consistingofthe$62,500,000 the Company,tofinanceaprojectconsistingof:(a)refunding theoutstanding$125,000,000NewJerseyEconomicDevelopment liability company(the“Company”),pursuanttoaLeaseAgreementdatedasofDecember1,2017byandbetweentheIssuer (the “Issuer”),andtheproceedsthereofwillbemadeavailabletoPortNewarkContainerTerminalL.L.C.,aDelawarelimited * Preliminary, subjecttochange. Dated: December __,2017. Dated: DateofDelivery Statement. are excludedfromgrossincomeundertheexistingNewJerseyGrossIncomeTaxAct.See“TAXMATTERS”inthisOfficial Bond CounselisfurtheroftheopinionthatinterestonSeries2017Bondsandanygainsale is anitemoftaxpreferenceforpurposesthefederalalternativeminimumimposedonindividualsandcorporations. thereof) isexcludablefromgrossincomeforfederaltaxpurposes,exceptasdescribedinthisOfficialStatement,but (the “Code”),theinterestonSeries2017Bonds(includinganyoriginalissuediscountproperlyallocabletoanowner existing law and assuming continued compliance with certain requirements of the Internal Revenue Code of 1986, as amended Development AuthorityandPortNewarkContainerTerminalL.L.C.withcertaintaxcovenantsdescribedherein,under NEW ISSUE—BOOKENTRYONLY The Series 2017 Bondsare offered when,as and ifissued by theIssuerandreceivedWellsFargoSecurities, LLC, as This coverpagecontainscertaininformationforquickreference only.Itisnotintendedtobeasummaryofallfactorsrelating AN INVESTMENTINTHESERIES2017BONDSINVOLVES CERTAINRISKS.Formorecompleteinformationwithrespect THE STATEOFNEWJERSEYISNOTOBLIGATEDTOPAY,ANDNEITHERFAITHCREDITNORTAXING The Series 2017 Bonds will be issuable only as fully registered bonds, without coupons, and initially will be registered in the The Series2017Bondswillbeissuedindenominationsof$100,000andanyintegralmultiple$5,000excess$100,000; The Series2017BondswillbeissuedpursuanttoanIndentureofTrustdatedasDecember1,(the“”),byand The Bondsreferencedabove(the“Series2017”)arebeingissuedbytheNewJerseyEconomicDevelopmentAuthority In the opinion of McCarter & English, LLP, Bond Counsel to the Issuer, assuming compliance by theNew Jersey Economic (PORT NEWARKCONTAINERTERMINALL.L.C.PROJECT),SERIES2017 NEW JERSEY ECONOMIC DEVELOPMENT AUTHORITY PRELIMINARY OFFICIAL STATEMENT IS DATED DECEMBER 8, 2017

SPECIAL FACILITYREVENUEANDREFUNDINGBONDS

Wells Fargo Securities $286,260,000* Rating: “Ba1”See“RATING”herein. Due: SeeInsideFrontCover

$286,260,000* NEW JERSEY ECONOMIC DEVELOPMENT AUTHORITY SPECIAL FACILITY REVENUE AND REFUNDING BONDS (PORT NEWARK CONTAINER TERMINAL L.L.C. PROJECT), SERIES 2017

MATURITIES, AMOUNTS, INTEREST RATES AND YIELDS*

Maturity Principal Interest CUSIP (October 1) Amount Rate Yield Number** 2021 $ 5,235,000 % % 2022 5,500,000 2023 5,775,000 2024 6,060,000 2025 6,365,000 2026 6,685,000 2027 7,015,000

Due: October 1, 2037; Principal Amount: $92,675,000; Interest Rate: ___%; Yield: ___%; CUSIP: _____

Due: October 1, 2047; Principal Amount: $150,950,000; Interest Rate: ___%; Yield: ___%; CUSIP: _____

* Preliminary, subject to change. ** CUSIP® is a registered trademark of the American Bankers Association (“ABA”). CUSIP data herein are provided by CUSIP Global Services, operated on behalf of the ABA by S&P Global Market Intelligence, a division of S&P Global Inc. The CUSIP numbers listed above is being provided solely for the convenience of Series 2017 Bondholders only at the time of issuance of the Series 2017 Bonds and none of the Issuer, the Company nor the Underwriter makes any representation with respect to such number nor undertakes any responsibility for its accuracy now or at any time in the future. The CUSIP numbers are subject to being changed after the issuance of the Series 2017 Bonds as a result of various subsequent actions including, but not limited to, a refunding in whole or in part of the Series 2017 Bonds or as a result of the procurement of secondary market portfolio insurance or other similar enhancement by investors that is applicable to all or a portion of the Series 2017 Bonds.

Terminal Location and Aerial View

Investors should rely only on the information contained in this Official Statement. No one has been authorized to give any different information or to make any other representations. Neither the delivery of this Official Statement nor any sale hereunder shall under any circumstances create any implication that there has been no change in the affairs of the Issuer or the Company since the date hereof. These securities are not being offered in any state where the offer is not permitted. The Issuer neither has nor assumes any responsibility as to the accuracy of the information in this Official Statement (other than that under the headings “THE ISSUER” and “NO LITIGATION—The Issuer”).

THE UNDERWRITER HAS PROVIDED THE FOLLOWING SENTENCE FOR INCLUSION IN THIS OFFICIAL STATEMENT. THE UNDERWRITER HAS REVIEWED THE INFORMATION IN THIS OFFICIAL STATEMENT IN ACCORDANCE WITH, AND AS PART OF, ITS RESPONSIBILITIES TO INVESTORS UNDER THE FEDERAL SECURITIES LAWS AS APPLIED TO THE FACTS AND CIRCUMSTANCES OF THIS TRANSACTION, BUT THE UNDERWRITER DOES NOT GUARANTEE THE ACCURACY OR COMPLETENESS OF SUCH INFORMATION.

IN CONNECTION WITH THIS OFFERING, THE UNDERWRITER MAY OVERALLOT OR EFFECT TRANSACTIONS WHICH STABILIZE OR MAINTAIN THE MARKET PRICE OF ANY OF THE SECURITIES OFFERED HEREBY AT A LEVEL ABOVE THAT WHICH MIGHT OTHERWISE PREVAIL IN THE OPEN MARKET. SUCH STABILIZING, IF COMMENCED, MAY BE DISCONTINUED AT ANY TIME.

CERTAIN STATEMENTS CONTAINED IN THIS OFFICIAL STATEMENT DO NOT REFLECT HISTORICAL FACTS AND THEREFORE ARE, OR MAY DEEMED TO BE, “FORWARD LOOKING STATEMENTS.” FUTURE EXPECTATIONS, OUTCOMES AND EVENTS ARE DIFFICULT TO PREDICT. NO ASSURANCE CAN BE GIVEN THAT THE FUTURE RESULTS DISCUSSED HEREIN WILL BE ACHIEVED, AND ACTUAL RESULTS MAY DIFFER MATERIALLY FROM THE FORECASTS DESCRIBED HEREIN. IN THIS RESPECT, WORDS SUCH AS “ESTIMATE,” “FORECAST,” “ANTICIPATE,” “EXPECT,” “INTEND,” “PLAN,” “BELIEVE,” “SEEK,” “TARGET,” “WILL,” “SHOULD,” “MAY,” “OUTLOOK,” “PROJECT” AND SIMILAR EXPRESSIONS ARE INTENDED TO IDENTIFY FORWARD LOOKING STATEMENTS. BY THEIR NATURE, FORWARD- LOOKING STATEMENTS INVOLVE RISKS AND UNCERTAINTIES BECAUSE THEY RELATE TO EVENTS AND DEPEND ON CIRCUMSTANCES THAT MAY OR MAY NOT OCCUR IN THE FUTURE. IMPORTANT FACTORS THAT COULD CAUSE ACTUAL RESULTS TO DIFFER MATERIALLY FROM THOSE INDICATED BY SUCH FORWARD-LOOKING STATEMENTS ARE SET FORTH IN THIS OFFICIAL STATEMENT UNDER THE CAPTION “RISK FACTORS.” ALL PROJECTIONS, FORECASTS, ASSUMPTIONS AND OTHER FORWARD LOOKING STATEMENTS ARE EXPRESSLY QUALIFIED IN THEIR ENTIRETY BY THE CAUTIONARY STATEMENTS SET FORTH IN THIS OFFICIAL STATEMENT.

The Series 2017 Bonds have not been registered under the Securities Act of 1933, as amended, nor has the Indenture been qualified under the Trust Indenture Act of 1939, as amended, in reliance upon exemptions contained in such acts. The registration or qualification of the Series 2017 Bonds in accordance with applicable provisions of securities laws of the states in which the Series 2017 Bonds have been registered or qualified and the exemption from registration or qualification in other states cannot be regarded as a recommendation thereof.

In making an investment decision, investors should rely on their own examination of the terms of this Official Statement, including the merits and risks involved. Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved these securities or determined if this official statement is truthful or complete. Any representation to the contrary is a criminal offense.

References to website addresses presented herein are for informational purposes only and may be in the form of a hyperlink solely for the reader’s convenience. Unless specified otherwise, such websites and the information or links contained therein are not incorporated into, and are not part of, this Official Statement.

TABLE OF CONTENTS Page SUMMARY STATEMENT ...... 1 INTRODUCTION ...... 9 THE SERIES 2017 BONDS ...... 9 General ...... 9 Redemption ...... 10 Debt Service Requirements ...... 14 THE ISSUER ...... 15 THE COMPANY ...... 16 Port Authority Lease ...... 16 Management ...... 17 Company’s Members ...... 18 THE PORT OF NEW YORK AND NEW JERSEY ...... 19 Facilities within the Port ...... 19 Competitive Strengths ...... 21 THE TERMINAL ...... 22 Terminal Overview ...... 22 Competitive Strengths ...... 23 Customers ...... 23 Terminal Location and Aerial View ...... 24 Terminal Key Facts ...... 25 Expansion of the Terminal ...... 25 Capex Projects Funded with the Series 2017 Bonds ...... 29 Capex Projects Not Funded with the Series 2017 Bonds ...... 33 Ongoing Capital Maintenance ...... 34 Port Security ...... 34 Risk Management/Insurance ...... 35 Labor Relations ...... 35 HISTORICAL OPERATING RESULTS ...... 36 MANAGEMENT’S DISCUSSION OF OPERATING RESULTS ...... 36 PROJECTED OPERATING RESULTS AND PROJECTED DEBT SERVICE COVERAGE ...... 39 REPORT OF THE INDEPENDENT CONSULTANT ...... 40 PLAN OF FINANCE ...... 41 Project Description ...... 41 Working Capital Facility ...... 42 ESTIMATED SOURCES AND USES ...... 42 SECURITY AND SOURCE OF PAYMENT FOR THE SERIES 2017 BONDS ...... 42 General ...... 42 Collateral ...... 43 Indenture ...... 44 Lease Agreement ...... 46 Guaranty Agreement ...... 50 Special Covenants Under the Collateral Agency Agreement ...... 50 Additional Obligations ...... 51 Subordinate Obligations and Shareholder Loans ...... 52 Capital Leases ...... 53 Intercreditor Agreement ...... 53 ACCOUNTS AND FLOW OF FUNDS ...... 57 Funds and Accounts under the Indenture ...... 57 Project Accounts under the Collateral Agency Agreement ...... 57 Description of Project Accounts ...... 58 Investment of Funds in Project Accounts ...... 67 Withdrawal and Application of Funds; Priority of Transfers from Project Accounts ...... 67 Flow of Funds—Revenue Fund ...... 69

Application of Proceeds Following an Enforcement Action ...... 71 RISK FACTORS ...... 73 Risks Relating to the Company and the Industry ...... 73 Risks Relating to the Series 2017 Bonds ...... 80 CONTINUING DISCLOSURE ...... 84 TAX MATTERS ...... 85 Exclusion of Interest on the Series 2017 Bonds from Gross Income for Federal Tax Purposes ...... 85 Tax Treatment of Original Issue Discount ...... 85 Tax Treatment of Original Issue Premium ...... 86 State Taxation ...... 86 Changes in Tax Law ...... 86 UNDERWRITING ...... 87 NO LITIGATION ...... 88 The Issuer ...... 88 The Company ...... 88 RATING ...... 88 SUITABILITY FOR INVESTMENT ...... 88 INDEPENDENT AUDITOR ...... 89 LEGAL MATTERS ...... 89 MISCELLANEOUS ...... 89

APPENDIX A – DEFINITIONS OF CERTAIN TERMS A-1 APPENDIX B –INDEPENDENT CONSULTANT’S REPORT B-1 APPENDIX C – AUDITED CONSOLIDATED FINANCIAL STATEMENTS OF THE COMPANY FOR THE YEARS ENDED DECEMBER 31, 2016, 2015 AND 2014 C-1 APPENDIX D – UNAUDITED FINANCIAL STATEMENTS OF THE COMPANY FOR THE NINE-MONTH PERIODS ENDED SEPTEMBER 30, 2017 AND 2016 D-1 APPENDIX E – FORMS OF CERTAIN FINANCING DOCUMENTS AND COLLATERAL DOCUMENTS E-1 APPENDIX F – FORM OF CONTINUING DISCLOSURE AGREEMENT F-1 APPENDIX G – FORM OF APPROVING OPINION OF BOND COUNSEL G-1 APPENDIX H – BOOK-ENTRY ONLY SYSTEM H-1

OFFICIAL STATEMENT

$286,260,000* NEW JERSEY ECONOMIC DEVELOPMENT AUTHORITY SPECIAL FACILITY REVENUE AND REFUNDING BONDS (PORT NEWARK CONTAINER TERMINAL L.L.C. PROJECT), SERIES 2017

SUMMARY STATEMENT

The following Summary Statement is subject in all respects to more complete information contained in this Official Statement and in the appendices hereto. The offering of the Series 2017 Bonds (as defined below) to potential investors is made only by means of this entire Official Statement, including the appendices, and no person is authorized to detach this Summary Statement from this Official Statement or to otherwise use it without the entire Official Statement, including the appendices. Capitalized terms used herein and not otherwise defined will have the meanings given to such terms as set forth in APPENDIX A hereto.

The Issuer: The New Jersey Economic Development Authority (the “Issuer”), a public body corporate and politic, constituting an instrumentality of the State of New Jersey (the “State”). See “THE ISSUER.”

The Company: Port Newark Container Terminal L.L.C. (the “Company”), a Delaware limited liability company. The Company is owned equally by its two members, Ports America, Inc., a Delaware corporation, and Terminal Investment Limited S.à.r.l, a company domiciled in Switzerland. The Company was formed for the purpose of leasing, managing and operating the Terminal and providing stevedoring services in Port Newark, New Jersey. The Company also performs services incidental to operating the Terminal and stevedoring services, including equipment repair and maintenance. See “THE COMPANY” and APPENDIX C hereto for the audited consolidated financial statements of the Company for the Fiscal Years ended December 31, 2016, 2015 and 2014 and APPENDIX D hereto for the unaudited financial statements of the Company for the nine-month periods ended September 30, 2017 and 2016.

Bonds: The Issuer will issue its Special Facility Revenue and Refunding Bonds (Port Newark Container Terminal L.L.C. Project), Series 2017 in the aggregate principal amount of $286,260,000* (the “Series 2017 Bonds”), pursuant to an Indenture of Trust dated as of December 1, 2017 (the “Indenture”) by and between the Issuer and U.S. Bank National Association, as trustee (the “Trustee”). The Series 2017 Bonds are being issued and delivered in fully registered form and registered in the name of Cede & Co., as the registered owner and nominee for The Depository Trust Company, New York, New York (“DTC”). The Series 2017 Bonds are being issued in Book-Entry Form. See “THE SERIES 2017 BONDS.”

* Preliminary, subject to change.

Project: Proceeds of the Series 2017 Bonds will be used to finance a project (the “Project”) consisting of: (a) refunding the outstanding $125,000,000 New Jersey Economic Development Authority Special Facility Revenue Bonds (Port Newark Container Terminal LLC Project) Series 2003, consisting of the $62,500,000 Series 2003A and $62,500,000 Series 2003B (the “Series 2003 Bonds”); (b) financing a portion of the costs of expansion, renovation, construction and equipping of the Port Newark Container Terminal at Port Newark (the “Terminal”), including (i) construction and installation of new truck gate facilities and equipment, (ii) acquisition and installation of new customs and security technology, (iii) construction and installation of new comfort and customer service stations for truckers, (iv) construction and installation of new back-up power generation facilities, (v) demolition of two existing warehouses, (vi) expansion of the Terminal yard by 46 acres and renovation of approximately 34 acres of the Terminal yard, (vii) expansion and improvements to the yard electrical and lighting systems, (viii) expansion and improvements to the existing wharf and berths, (ix) acquisition and installation of new gantry cranes and straddle carriers, (x) construction and equipping of an offsite depot, and (xi) various paving and improvements to existing facilities (collectively, the “2017 Facility”); (c) funding a deposit to a debt service reserve fund securing the payment of principal and interest on the Series 2017 Bonds; and (d) paying certain costs incurred in connection with the issuance of the Series 2017 Bonds.

Terminal and The Terminal is located in Port Newark, New Jersey, which is owned by the City of Port Authority Newark, New Jersey (the “City”) and is leased by the City to The Port Authority of Lease: New York and New Jersey (the “Port Authority”), a body corporate and politic which was established by a compact between the States of New York and New Jersey with the consent of the Congress of the United States, pursuant to an Agreement of Lease dated October 22, 1947 (as amended and supplemented, the “Basic Lease”). The Port Authority has subleased the Terminal to the Company pursuant to an Amended and Restated Agreement of Lease (Lease No. L-PN-264) dated as of June 14, 2011 (as amended and supplemented, the “Port Authority Lease”).

The 2017 Facility is to be located on certain Leased Premises located at the Terminal. In connection with the Project, the Company and the Issuer have entered into a Lease Agreement dated as of December 1, 2017 (the “Lease Agreement”), pursuant to which the Company sub-subleases the Leased Premises to the Issuer, and the Issuer sub-sub-subleases the Leased Premises back to the Company, subject to the Basic Lease and the Port Authority Lease.

The 2017 Facility, exclusive of the Gantry Cranes and the Personal Property is owned by the City. The Gantry Cranes and the Personal Property financed with the proceeds of the Series 2017 Bonds and any investment earnings thereon are owned by the Issuer.

In exchange for its right to sub-sub-sublease the Leased Premises from the Issuer, the Company will make rental payments to the Trustee, as assignee of the Issuer, in an amount which is sufficient to pay when due, the principal and redemption price, if any, of and interest on the Series 2017 Bonds pursuant to a Guaranty Agreement dated as of December 1, 2017 (the “Guaranty”). The Company has also agreed to reimburse the reasonable fees and expenses, including, among others, the compensation and reimbursement of the reasonable expenses and advances (including reasonable counsel fees), payable to the Issuer, the Port Authority, the Trustee, the Paying Agent, any co-Paying Agent and the Registrar in connection with the Project (the “Administration Expenses”) pursuant to an Administration Expense Guaranty Agreement dated as of December 1, 2017 (the “Administration Expense Guaranty”) made by the Company in favor of the Issuer. See APPENDIX E hereto.

Limited The Series 2017 Bonds will not be secured by any interest of the Port Authority in the Obligations: Terminal, or by any other property, including any leasehold interest or other interest of the Port Authority in the Terminal, or by any revenues derived by the Port Authority from the operation of the Terminal or otherwise. Further, neither the City nor the Port Authority shall have any obligation whatsoever with respect to the Series 2017 Bonds.

THE STATE OF NEW JERSEY IS NOT OBLIGATED TO PAY, AND NEITHER THE FAITH AND CREDIT NOR TAXING POWER OF THE STATE OF NEW JERSEY IS PLEDGED TO THE PAYMENT OF THE PRINCIPAL OR REDEMPTION PRICE, IF ANY, OF OR INTEREST ON THE SERIES 2017 BONDS. THE SERIES 2017 BONDS ARE SPECIAL, LIMITED OBLIGATIONS OF THE ISSUER, PAYABLE SOLELY OUT OF THE REVENUES OR OTHER RECEIPTS, FUNDS OR MONEYS OF THE ISSUER PLEDGED UNDER THE INDENTURE, THE COLLATERAL DOCUMENTS AND FROM ANY AMOUNTS OTHERWISE AVAILABLE UNDER THE INDENTURE AND THE COLLATERAL DOCUMENTS FOR THE PAYMENT OF THE SERIES 2017 BONDS. THE SERIES 2017 BONDS DO NOT NOW AND SHALL NOT EVER CONSTITUTE A CHARGE AGAINST THE GENERAL CREDIT OF THE ISSUER. THE ISSUER HAS NO TAXING POWER.

Security: The Series 2017 Bonds will be secured by the Trust Estate established under the Indenture and the Collateral held by U.S. Bank National Association, as the collateral agent and the securities intermediary (the “Collateral Agent”), in accordance with the terms of the Collateral Agency Agreement, dated as of December 1, 2017 (the “Collateral Agency Agreement”), by and among the Company, the Working Capital Loan Provider, the Trustee, Parity Lien Agent and the Collateral Agent, and pursuant to the other Collateral Documents. See “SECURITY AND SOURCE OF PAYMENT FOR THE SERIES 2017 BONDS” for a more complete description of the security for the Series 2017 Bonds.

Denominations: The Series 2017 Bonds will be sold in minimum denominations of $100,000 and any integral multiple of $5,000 in excess of $100,000; provided, however, that in the event the Series 2017 Bonds achieve an Investment Grade Rating, the denominations shall be reduced to $5,000 and any integral multiple thereof.

Interest: Interest on the Series 2017 Bonds is payable at the rates shown on the inside front cover page hereof on April 1 and October 1 of each year, commencing on April 1, 2018.

Principal: Principal of the Series 2017 Bonds, whether at maturity or pursuant to mandatory sinking fund redemption, is payable on October 1 of each year, in the years and amounts set forth herein. See “THE SERIES 2017 BONDS—Redemption— Mandatory Sinking Fund Redemption.”

Redemption: The Series 2017 Bonds are subject to optional, mandatory sinking fund, extraordinary mandatory, special and extraordinary optional redemption as described herein. See “THE SERIES 2017 BONDS – Redemption.”

Debt Service On the Closing Date, the Series 2017 Debt Service Reserve Account will be initially Reserve Fund: funded from the proceeds of the Series 2017 Bonds in an amount equal to $19,551,250.* Thereafter, the Collateral Agent shall, on each Monthly Funding Date, cause amounts in the Revenue Fund to be deposited into the Series 2017 Debt Service Reserve Account as shall be necessary to maintain an amount equal to the Maximum Annual Debt Service calculated with respect to the Series 2017 Bonds (the “Series 2017 Debt Service Reserve Required Balance”). Any amounts on deposit in the Series 2017 Debt Service Reserve Account in excess of the Series 2017 Debt Service Reserve Required Balance as of such date shall be deposited into the Revenue Fund as set forth in “ACCOUNTS AND FLOW OF FUNDS—Flow of Funds—Revenue Fund.”

Operating On the Closing Date, the Company shall fund the Operating Reserve Fund in an Reserve Fund: amount equal to $17,407,811.* Thereafter, to the extent that the amounts in the Operating Reserve Fund are less than the Operating Reserve Required Balance, the Collateral Agent shall, on each Monthly Funding Date, cause amounts in the Revenue Fund to be deposited into the Operating Reserve Fund in an amount equal to the lesser of: (i) $500,000 and (ii) the amount necessary so that the balance in the Operating Reserve Fund plus the aggregate amount available to be drawn on any Operating Reserve Letters of Credit on deposit therein equals the Operating Reserve Required Balance.

“Operating Reserve Required Balance” means as of each Monthly Funding Date an amount equal to the sum of: (a) the projected Fixed Operating Expenses of the Company for the next 60-day period as set forth in the Annual Forecast (taking into account amounts on deposit in the Operating Reserve Fund) and (b) all selling, general, and administrative costs due in the next 60-day period.

Major After the Completion Date, to the extent that the amounts in the Major Maintenance Maintenance Reserve Fund are less than the Major Maintenance Reserve Required Balance, the Reserve Fund: Collateral Agent shall, on each Monthly Funding Date, cause amounts in the Revenue Fund to be deposited into the Major Maintenance Reserve Fund in an amount equal to the Major Maintenance Reserve Deposit Requirement.

* Preliminary, subject to change.

“Major Maintenance Reserve Required Balance” means, as of each Monthly Funding Date after the Completion Date, an amount equal to all projected Major Maintenance Expenditures for the next 12-month period as set forth in the Maintenance Plan (taking into account amounts on deposit in the Major Maintenance Reserve Fund); provided, however, that the Major Maintenance Reserve Required Balance shall not exceed $25,000,000.

Flow of Funds: Commencing on the Monthly Funding Date on or immediately after the Closing Date, the Collateral Agent shall make the following withdrawals, transfers and payments from the Revenue Fund (after the payment of fees and expenses of the Issuer, the Collateral Agent and certain other parties) on each Monthly Funding Date:

First, to the Operating Account to pay projected Operating Expenses for the next succeeding month;

Second, to the Series 2017 Rebate Fund to pay any amounts then due and payable pursuant to the Indenture;

Third, pro rata, to the applicable sub-accounts of the Interest Payment Account for the payment of interest on Parity Obligations, the sum of (a) the total aggregate amount of interest to be paid in respect of such Parity Obligations on the next applicable Interest Payment Date divided by the number of months in the relevant interest period, plus (b) without duplication, any deficiency from a prior Monthly Funding Date then existing;

Fourth, commencing on (x) for payments in respect of principal, sinking fund payments, mandatory prepayment or mandatory redemption, the Monthly Funding Date that is twelve months before the applicable first Principal Payment Date (including any mandatory sinking fund redemption date or any other mandatory prepayment or mandatory redemption date) and (y) for payments in respect of Capital Lease Obligations and Purchase Money Obligations, the first Monthly Funding Date to occur after the Closing Date, pro rata to (1) the applicable sub-accounts of the Capital Lease Payment Account for the payment of any Capital Lease Obligations, the sum of (a) the total aggregate amount to be paid in respect of such Capital Lease Obligations on the next applicable Capital Lease Payment Date plus (b) any deficiency from a prior Monthly Funding Date then existing; (2) the applicable sub- accounts of the Principal Payment Account for the payment of principal, sinking fund payments, mandatory prepayment or mandatory redemption, as applicable, on Parity Obligations (other than Capital Lease Obligations and Purchase Money Obligations), the sum of (a) the total aggregate amount of such principal, sinking fund payments, mandatory prepayment or mandatory redemption, as applicable, to be paid in respect of such Parity Obligations on the next applicable Principal Payment Date divided by the number of months between the immediately prior applicable Principal Payment Date and the next applicable Principal Payment Date, plus (b) any deficiency from a prior Monthly Funding Date then existing; and (3) the applicable sub-accounts of the Purchase Money Payment Account for the payment of any Purchase Money Obligations, the sum of (a) the total aggregate amount to be paid in respect of such Purchase Money Obligations on the next applicable Purchase Money Payment Date

plus (b) any deficiency from a prior Monthly Funding Date then existing; provided, that the deposit on the Monthly Funding Date occurring on or immediately before an applicable Principal Payment Date, Capital Lease Payment Date or Purchase Money Payment Date, as applicable, will equal the amount required, taking into account the amount then on deposit in the applicable sub-accounts of the Principal Payment Account, the Capital Lease Payment Account and the Purchase Money Payment Account, as applicable, to pay such payments due with respect to such Parity Obligations on such Principal Payment Date, Capital Lease Payment Date and Purchase Money Payment Date, as applicable;

Fifth, to the applicable sub-account of the Debt Service Reserve Fund in respect of the Bonds an amount to the extent necessary to fund such sub-account so that the balance therein (taking into account amounts then on deposit therein) plus the aggregate amount available to be drawn on any Debt Service Reserve Letters of Credit on deposit therein equals the applicable Debt Service Reserve Required Balance;

Sixth, to the Operating Reserve Fund, to the extent that the amounts in the Operating Reserve Fund are less than the Operating Reserve Required Balance, an amount equal to the lesser of: (i) $500,000 and (ii) the amount necessary so that the balance in the Operating Reserve Fund plus the aggregate amount available to be drawn on any Operating Reserve Letters of Credit on deposit therein equals the Operating Reserve Required Balance;

Seventh, after the Completion Date, to the Major Maintenance Reserve Fund, to the extent that the amounts in the Major Maintenance Reserve Fund are less than the Major Maintenance Reserve Required Balance, an amount equal to the Major Maintenance Reserve Deposit Requirement;

Eighth, to the Subordinate Obligations Fund, an amount equal to the amount necessary to pay Debt Service in respect of Subordinate Obligations that will become due and payable prior to the next Monthly Funding Date; and

Ninth, to the Residual Fund, all remaining amounts, if any.

Additional Subject to the satisfaction of conditions set forth in the Financing Documents, the Obligations: Company may incur Additional Obligations and Subordinate Obligations to finance the Costs of the Project and certain other permitted uses. See “SECURITY AND SOURCE OF PAYMENT FOR THE SERIES 2017 BONDS – Additional Obligations” and “– Subordinate Obligations.”

Rate Covenant: The Company has agreed, beginning with the Fiscal Year ending December 31, 2018, to (a) establish, fix, set and collect rates, fees, rentals and charges in connection with the Terminal and for services rendered by the Company in connection with the Terminal and (b) conduct and maintain its operations so that (1) the Company has funds to pay all Operating Expenses and (2) the Debt Service Coverage Ratio, calculated at the end of each Fiscal Year, will not be less than 1.10x. Failure to achieve the Debt Service Coverage Ratio described above in any Fiscal Year shall not constitute an Event of Default under the Collateral Agency Agreement as long as in the event the Debt Service Coverage Ratio is not achieved in any Fiscal Year, the Company will retain and direct an Independent Consultant to make recommendations as to the revision of the Company’s business operations and its schedule of rates, fees, rentals and charges for the use of the Terminal and for services rendered by the Company in connection with the Terminal, and after receiving such recommendations or giving reasonable opportunity for such recommendations to be made the Company shall take all commercially reasonable measures to revise the schedule of rates, fees, rentals and charges as may be necessary to achieve such Debt Service Coverage Ratio or, if in the opinion of the Independent Consultant the attainment of such Debt Service Coverage Ratio is impracticable, to the highest Debt Service Coverage Ratio attainable. See “SECURITY AND SOURCE OF PAYMENT FOR THE SERIES 2017 BONDS – Special Covenants Under the Collateral Agency Agreement – Rate Covenant.”

Working On the Closing Date, the Company is also entering into a Credit Agreement with Capital Loan: Wells Fargo Bank, National Association (the “Working Capital Loan Provider”) for a revolving working capital loan facility in an amount not to exceed $15,000,000.

Other Independent Auditor. Ernst & Young LLP serves as the independent auditor for the Participants: Company. The audited consolidated financial statements of the Company as of December 31, 2016, 2015 and 2014 for the years then ended are included in APPENDIX C hereto.

Independent Consultant. Mercator International LLC (“Mercator”) has been retained by the Company as the Independent Consultant to perform the acts and carry out the duties required of such consultant under the Lease Agreement and the other Financing Documents. See “ROLE OF INDEPENDENT CONSULTANT.”

Independent The Independent Consultant’s Report, which is included as APPENDIX B hereto, Consultant’s includes certain forecasts and conclusions of the Independent Consultant, among Report: which include: • The financial outlook for the Company appears strong, with EBITDA forecast to grow from approximately $53 million in FY2017 to approximately $100 million by 2020 and then to about $160 million by 2027. Overall growth in EBITDA from FY2017 through FY2047 is expected to be approximately 5.8% per annum. • With nearly 30 million people living within 100 miles and over 50 million living within 200 miles, the Port is strategically positioned to optimally serve the largest local market on the U.S. East Coast. • By virtue of being 50% owned by a subsidiary of MSC Mediterranean Shipping Company, S.A., which is the 2nd largest shipping line in the world and the largest carrier in the NY/NJ market, the Company has strong prospects for continued high levels of container traffic. • Utilization of container handling capacity across the Port is set to rise, despite the capacity being added by the Company, which will contribute to rate and volume stability for container terminal operators at the Port. • Revenue per lift has risen over the last five years, which, along with falling unit costs and rising volume, has increased profit margins.

Risk Factors: Investing in the Series 2017 Bonds involves a certain degree of risk. Prospective investors in the Series 2017 Bonds are encouraged to read and consider the risk factors set forth under “RISK FACTORS” below as well as other information included in this Official Statement and all appendices hereto.

Rating: The Series 2017 Bonds are expected to be assigned a rating of “Ba1” by Moody’s Investors Service (“Moody’s”). This rating is not a recommendation to buy, sell or hold the Series 2017 Bonds and are subject to revision or withdrawal at any time by Moody’s. See “RATING” herein.

$286,260,000* NEW JERSEY ECONOMIC DEVELOPMENT AUTHORITY SPECIAL FACILITY REVENUE AND REFUNDING BONDS (PORT NEWARK CONTAINER TERMINAL L.L.C. PROJECT), SERIES 2017

INTRODUCTION

This Official Statement is provided to furnish information in connection with the offering of $286,260,000* Special Facility Revenue and Refunding Bonds (Port Newark Container Terminal L.L.C. Project), Series 2017 to be issued by the New Jersey Economic Development Authority, a public body corporate and politic, constituting an instrumentality of the State of New Jersey, the proceeds of which will be loaned to the Company pursuant to the Lease Agreement to finance the Project described herein.

This Official Statement, including the appendices hereto, contains brief descriptions of the Issuer, the Company, the Project, various Financing Documents, the Port Authority Lease, the security and source of payment for the Series 2017 Bonds and other documents executed in connection therewith. The summaries of statutes, opinions, and all documents and instruments contained herein are summaries only and do not purport to be comprehensive or definitive, and are qualified in all respects by reference to the originals or official compilations thereof, copies of which are available during the period of the sale of the Series 2017 Bonds upon reasonable request from the Underwriter. Thereafter, copies of such documents are available from the Trustee upon written request. Capitalized terms used herein and not otherwise defined have the meanings ascribed to them in APPENDIX A hereto.

THE SERIES 2017 BONDS

General

The Series 2017 Bonds will be issued as fully registered bonds without coupons, will be dated their date of delivery, will bear interest from such date payable on April 1, 2018, and on each October 1 and April 1 thereafter, and will bear interest at the rates and mature on the dates set forth on the inside cover page hereof.

Interest on any Series 2017 Bond shall be paid on each Interest Payment Date by check or draft which the Trustee shall cause to be mailed to the address of the Owner appearing in the bond register on the fifteenth (15th) day (whether or not such day is a Business Day) immediately preceding such Interest Payment Date (the “Record Date”). Notwithstanding the foregoing and while the Series 2017 Bonds are held by a Depository, interest on any Series 2017 Bond shall be paid by wire transfer in immediately available funds to the bank account number and address filed with the Trustee by such Holder. Any such interest not so timely paid shall cease to be payable to the Owner of the Series 2017 Bonds at the close of business on the Record Date and shall be payable to the Owner of the Series 2017 Bonds at the close of business on a special record date fixed by the Trustee for purposes of paying such defaulted interest (the “Special Record Date”). Such Special Record Date shall be fixed by the Trustee whenever moneys become available for payment of the defaulted interest, and notice of the Special Record Date shall be given by the Trustee to the Holders of the Series 2017 Bonds, not less than ten (10) days prior to the Special Record Date, by certified or first-class mail to each such Holder as shown on the Trustee’s registration records on a date selected by the Trustee, stating the date of the Special Record Date and the date fixed for the payment of such defaulted interest.

The Series 2017 Bonds will be issued in denominations of $100,000 and any integral multiple of $5,000 in excess of $100,000; provided, however, that in the event the Series 2017 Bonds achieve an

* Preliminary, subject to change.

Investment Grade Rating, the denominations shall be reduced to $5,000 and any integral multiple thereof. The Series 2017 Bonds will be registered in the name of Cede & Co., as nominee of DTC, pursuant to DTC’s Book-Entry System. Purchases of beneficial interests in the Series 2017 Bonds will be made in book-entry form, without certificates. If at any time the Book-Entry System is discontinued for the Series 2017 Bonds, the Series 2017 Bonds will be exchangeable for other fully registered Series 2017 Bonds in any other authorized denominations of the same maturity without charge except the payment of any tax, fee or other governmental charge to be paid with respect to such exchange, subject to the conditions and restrictions set forth in the Indenture. See APPENDIX E and APPENDIX H hereto.

The proceeds from the issuance of the Series 2017 Bonds will be made available to the Company pursuant to the Lease Agreement to finance the Project described herein. See “THE PROJECT” and “APPLICATION OF BOND PROCEEDS” herein.

Redemption*

The Series 2017 Bonds are subject to redemption prior to stated maturity as follows:

Optional Redemption

The Series 2017 Bonds are subject to redemption prior to maturity, at the option of the Issuer, at the direction of the Company, on or after October 1, 2027, from amounts deposited in the Series 2017 Redemption Account (excluding accrued interest, which is payable from the Series 2017 Interest Account), in whole or in part from time to time, on any date, at a Redemption Price equal to 100% of the principal amount of Series 2017 Bonds to be redeemed, plus accrued interest thereon to the date of redemption, without penalty or make-whole premium.

Mandatory Sinking Fund Redemption

The Series 2017 Bonds maturing on October 1, 20__ and October 1, 20__ are subject to mandatory redemption prior to maturity, in part, on each October 1 (or, if such date is not a Business Day, then the Business Day succeeding such date) of the years and in the respective principal amounts set forth below, at 100% of the principal amount thereof, plus accrued interest to the date of redemption, through mandatory Sinking Fund Installments which are required to be made in amounts sufficient to redeem on October 1 of each year the principal amount of the Series 2017 Bonds specified for each of the dates shown below:

Series 2017 Bonds Series 2017 Bonds Maturing on October 1, 20 Maturing on October 1, 20 Principal Principal Date Amount Date Amount $ $

** ** ______** Final Maturity

There will be credited against and in satisfaction of all or a portion of the Sinking Fund Installment payable on any date the principal amount of Series 2017 Bonds of a particular maturity

* Preliminary, subject to change.

redeemed or purchased with money in the Series 2017 Redemption Account (excluding accrued interest, which is payable from the Series 2017 Interest Account) and the principal amount of such Series 2017 Bonds so redeemed or purchased shall be applied against and in fulfillment of the applicable required Sinking Fund Installment of the applicable maturity of such Series 2017 Bonds in accordance with the Indenture. In addition, there shall be credited against and in satisfaction of the applicable Sinking Fund Installments of the applicable maturity of Series 2017 Bonds, (a) Series 2017 Bonds optionally redeemed at the election of the Company as set forth in “– Extraordinary Optional Redemption” and “– Optional Redemption,” (b) Series 2017 Bonds purchased by the Company and delivered to the Trustee for cancellation or (c) Series 2017 Bonds deemed to have been paid in accordance with the Indenture, and the principal amount of such Series 2017 Bonds shall be applied against and in fulfillment of the applicable required Sinking Fund Installments thereafter payable on such Series 2017 Bonds, as nearly as practicable pro rata, taking into consideration the Authorized Denominations.

Extraordinary Mandatory Redemption with respect to Port Authority Lease and Lease Agreement

The Series 2017 Bonds are subject to extraordinary mandatory redemption at a redemption price of 100% of the principal amount of the Series 2017 Bonds to be redeemed, plus accrued interest on such Series 2017 Bonds to be redeemed to the date fixed for redemption, as a whole, on or as soon as practicable, but in no event later than ninety (90) days, after the effective date of any expiration, termination or surrender of (a) the Port Authority Lease and/or the Basic Lease in its entirety or (b) the Lease Agreement. Notwithstanding the foregoing, the Series 2017 Bonds will not be subject to extraordinary mandatory redemption, in whole, in the event of the expiration, surrender or termination of (A) the Port Authority Lease as a result of the expiration, surrender or termination of the Basic Lease, or (B) the Lease Agreement, so long as the Company continues to have permitted occupancy of the Leased Premises (including occupancy as a result of a permitted holdover tenancy).

Extraordinary Mandatory Redemption by the Issuer

The Series 2017 Bonds are subject to mandatory redemption prior to maturity at any time at a redemption price of 100% of the principal amount of the Series 2017 Bonds to be redeemed, plus accrued interest on such Series 2017 Bonds to be redeemed to the date fixed for redemption, (a) as a whole, upon receipt by the Trustee and the Company of a notice from the Issuer that (i) the Company has ceased to operate the Facility or to cause the Facility to be operated as an authorized project under the Act for twelve (12) consecutive months, without first obtaining the written consent of the Issuer, (ii) any representation or warranty of the Company in the Lease Agreement or in any other document furnished in connection with the Lease Agreement proves to have been false or misleading in any material respect when made, (iii) the Company has failed to maintain or cause to be maintained the liability insurance required pursuant to the Lease Agreement for the benefit of the Issuer for thirty (30) consecutive days and for an additional three Business Days after notice by the Issuer to the Company of such failure or (iv) the Issuer is unable to exercise its right to specific performance pursuant to the Lease Agreement due to the fact that such specific performance would constitute a breach or default of or would conflict with or violate the Port Authority Lease or involve the specific enforcement of any covenant of the Company under the Bond Documents relating to or of a Property Interest if the performance of such covenant would constitute a breach of the Port Authority Lease; or (b) as a whole, or in part if such partial redemption will preserve the exclusion from gross income as set forth in a Favorable Opinion of Bond Counsel, if the whole or a part of the Facility is damaged or destroyed, condemned or taken by eminent domain, and the Company elects not to rebuild, replace, repair or restore the Facility; provided, however that the Series 2017 Bonds are not subject to mandatory redemption pursuant to clause (b) above if the Company receives an opinion of Bond Counsel to the effect that the Facility would still constitute a dock and wharf that is an exempt facility within the meaning of Section 142(a)(1) of the Code or that failure to rebuild,

replace, repair or restore would not cause the interest on the Series 2017 Bonds to be includable in gross income for federal income tax purposes.

Special Redemption of Bonds Upon Determination of Taxability

The Series 2017 Bonds are subject to special redemption prior to maturity in the event of a Determination of Taxability, at a redemption price equal to 100% of the unpaid principal amount thereof plus accrued interest thereon to the date of redemption on a date selected by the Company, but in no event later than 180 days following such Determination of Taxability. Any such redemption shall be in whole unless the Trustee receives an opinion of Bond Counsel that redemption of a portion of the Series 2017 Bonds Outstanding would have the result that interest payable on the Series 2017 Bonds remaining Outstanding after such redemption would not be included in the gross income for federal income tax purposes of any Owners of the Series 2017 Bonds (other than a Person who is a “substantial user” of the Project or a “related person” within the meaning of Section 147(a) of the Code), in which event only such portion of the Series 2017 Bonds Outstanding shall be redeemed.

Extraordinary Optional Redemption

The Series 2017 Bonds are subject to extraordinary optional redemption by the Issuer, at the written direction of the Company (which shall be delivered to the Trustee in writing or by facsimile confirmed in writing by notice delivered by first class mail), at a redemption price equal to 100% of the unpaid principal amount of the Series 2017 Bonds to be redeemed, plus accrued interest thereon to the date of redemption at any time upon the occurrence of the following: (a) in whole or in part, if the Company determines in its sole discretion as evidenced by a certificate of an Authorized Company Representative, that the continued operation of the Terminal or a substantial portion of the Terminal is impractical, uneconomical or undesirable for any reason, including, without limitation, the imposition upon the Company with respect thereto of unreasonable burdens or excessive liabilities, which will be deemed to include, without limitation, the imposition or substantial increase of ad valorem property taxes or taxes on the leasing or use of the Terminal or a substantial portion thereof or on amounts payable with respect thereto; (b) in whole or in part, if all or a portion of the Terminal is damaged, destroyed, condemned, taken by eminent domain or sold under a reasonably apprehended threat of condemnation or such portion of the Terminal or the use or control thereof is condemned or taken by eminent domain or sold under a reasonably apprehended threat of condemnation as to render the Terminal or a substantial portion of the Terminal unsatisfactory for its intended use as determined by the Company in its sole discretion; (c) in whole or in part, if the operation of the Terminal or a substantial portion of the Terminal is enjoined or prevented or is otherwise prohibited by, or conflicts with, any order, decree, rule or regulation of any court or of any federal, State or local regulatory body, administrative agency or other governmental body; or (iv) in part, on any date, at the direction of the Company after the filing of a company completion certificate pursuant to the Lease Agreement, with funds remaining in the Construction Fund, not reserved for punch-list items, Costs of Construction, deposits to the Series 2017 Rebate Fund, or amounts to be used for additional capital projects.

Selection of Series 2017 Bonds, Partial Redemption

If less than all of a single maturity of the Series 2017 Bonds are to be redeemed, the Trustee shall select the Series 2017 Bonds for redemption in any manner that is customary in the industry a portion of each such maturity, which selection shall be as nearly as practicable, taking into consideration the Authorized Denominations, a pro rata portion of each such Series 2017 Bonds.

Upon surrender of any such Series 2017 Bonds redeemed in part only, the Issuer shall execute (but need not prepare) and the Trustee shall prepare or cause to be prepared, authenticate and deliver to

the Owner thereof, a new bond or bonds of Authorized Denominations, equal in aggregate principal amount to the unredeemed portion of the Series 2017 Bonds surrendered.

Notice of Redemption

Whenever the Series 2017 Bonds, or any part thereof, are to be redeemed, the Trustee shall give notice of such redemption in the name of the Issuer which notice shall specify: (a) the bonds to be redeemed which shall be identified by the designation of the Series 2017 Bonds given in accordance with the Indenture, the maturity dates and interest rates of the Series 2017 Bonds to be redeemed and the date such bonds were issued; (b) the numbers and other distinguishing marks of the Series 2017 Bonds to be redeemed, including CUSIP numbers; (c) the redemption date; (d) the redemption price; (e) the principal amount of each Series 2017 Bonds to be redeemed; (f) the date of publication, if any, of the notice of redemption; (g) that, except in the case of Book–Entry Bonds, such Series 2017 Bonds will be redeemed at a corporate trust office of the Trustee giving the address thereof and the name and telephone number of a representative of the Trustee to whom inquiries may be directed; (h) that no representation is made as to the correctness of the CUSIP number either as printed on the Series 2017 Bonds or as contained in such notice and that an error in a CUSIP number as printed on such Series 2017 Bonds or as contained in such notice shall not affect the validity of the proceedings for redemption; and (i) if the Issuer’s obligation to redeem the Series 2017 Bonds is subject to conditions, a statement that describes the condition to such redemption. Such notice shall further state that on such date there shall become due and payable upon each bond to be redeemed the redemption price thereof, together with interest accrued and unpaid thereon to the redemption date, and that, from and after such date, payment having been made or provided for, interest thereon shall cease to accrue. Such notice shall be given by mailing a copy of such notice not less than thirty (30) days nor more than forty–five (45) days prior to the redemption date. Such notice shall be sent by first class mail, postage prepaid, to the registered owners of the Series 2017 Bonds which are to be redeemed, at their last known addresses, if any, appearing on the registration books not more than ten (10) Business Days prior to the date such notice is given. Upon giving such notice, the Trustee shall promptly notify the Issuer that it has mailed or caused to be mailed such notice to the Bondholders of the Series 2017 Bonds to be redeemed in the manner provided herein. Such notification shall be conclusive evidence that such notice was given in the manner required under the Indenture. The failure of any Bondholder of a Series 2017 Bond to be redeemed to receive such notice shall not affect the validity of the proceedings for the redemption of such Series 2017 Bonds.

Open Market Purchases; Purchase in Lieu of Redemption

The Company may, to the extent permitted by applicable Law, at any time and from time to time purchase Series 2017 Bonds in the open market, on an exchange or by tender or by private agreement at any price. Any purchase of Series 2017 Bonds by tender shall be made available to all Owners of such Series 2017 Bonds. Any Series 2017 Bonds so purchased may be held by or for the account of the Company, and the Company may surrender such Series 2017 Bonds to the Trustee for cancellation.

Without prejudice to the rights of the Company pursuant to the paragraph above, the Series 2017 Bonds maturing after October 1, 2027 are eligible to be purchased prior to maturity, at the election of the Issuer, upon the written request of the Company, on or after October 1, 2027, in any order, in whole or in part at any time, at a purchase price equal to one hundred percent (100%) of the principal amount thereof, plus accrued interest to the date set for purchase set forth in the notice of purchase to the registered owners of the Series 2017 Bonds to be so purchased. If the Issuer, upon written request of the Company, elects to purchase Series 2017 Bonds, the Trustee shall give notice of the purchase of Series 2017 Bonds in the name of the Issuer to the registered owners of the Series 2017 Bonds to be purchased by first-class mail, postage prepaid, not less than thirty (30) days nor more than sixty (60) days prior to the purchase date specified in such notice.

Debt Service Requirements*

The following schedule sets forth the debt service on the Series 2017 Bonds.

Fiscal Year Ending Dec. 31 Principal Interest Debt Service 2018 $ - $10,854,025 $10,854,025 2019 - 14,313,000 14,313,000 2020 - 14,313,000 14,313,000 2021 5,235,000 14,313,000 19,548,000 2022 5,500,000 14,051,250 19,551,250 2023 5,775,000 13,776,250 19,551,250 2024 6,060,000 13,487,500 19,547,500 2025 6,365,000 13,184,500 19,549,500 2026 6,685,000 12,866,250 19,551,250 2027 7,015,000 12,532,000 19,547,000 2028 7,370,000 12,181,250 19,551,250 2029 7,735,000 11,812,750 19,547,750 2030 8,125,000 11,426,000 19,551,000 2031 8,530,000 11,019,750 19,549,750 2032 8,955,000 10,593,250 19,548,250 2033 9,405,000 10,145,500 19,550,500 2034 9,875,000 9,675,250 19,550,250 2035 10,365,000 9,181,500 19,546,500 2036 10,885,000 8,663,250 19,548,250 2037 11,430,000 8,119,000 19,549,000 2038 12,000,000 7,547,500 19,547,500 2039 12,600,000 6,947,500 19,547,500 2040 13,230,000 6,317,500 19,547,500 2041 13,895,000 5,656,000 19,551,000 2042 14,590,000 4,961,250 19,551,250 2043 15,315,000 4,231,750 19,546,750 2044 16,085,000 3,466,000 19,551,000 2045 16,885,000 2,661,750 19,546,750 2046 17,730,000 1,817,500 19,547,500 2047 18,620,000 931,000 19,551,000 Total $286,260,000 $281,046,025 $567,306,025

* Preliminary, subject to change.

THE ISSUER The Issuer was created in 1974 as a public body corporate and politic and an instrumentality of the State. The Issuer was created and operates pursuant to the New Jersey Economic Development Authority Act, constituting Chapter 80 of the Pamphlet Laws of 1974 of the State, as amended and supplemented (the “Act”). The Act provides that neither the members of the Issuer nor any person executing bonds or notes issued pursuant to the Act shall be liable personally on such bonds or notes by reason of the issuance thereof, and that bonds or other obligations issued by the Issuer pursuant to the Act shall not be in any way a debt or liability of the State or of any political subdivision thereof and shall not create or constitute any indebtedness, liability or obligation of the State or any political subdivision thereof (other than a special, limited obligation of the Issuer), either legal, moral or otherwise. The Act further provides that nothing contained therein shall be construed to authorize the Issuer to incur any indebtedness on behalf of or in any way obligate the State or any political subdivision thereof. The Series 2017 Bonds will be special, limited obligations of the Issuer as described under “SECURITY AND SOURCE OF PAYMENT FOR THE SERIES 2017 BONDS” herein. The Issuer consists of thirteen members and three alternate members. Of the thirteen members, an officer of the Executive Branch of the State appointed by the Governor, the Commissioner of Labor and Workforce Development, the Commissioner of Banking and Insurance, the Commissioner of Department of Environmental Protection, and the State Treasurer are ex-officio members and the remaining eight are public members, appointed by the Governor, all for terms of three years. In addition, a public member of the State Economic Recovery Board established pursuant to section 36 of P.L.2002, c.43 (C.52:27BBB- 36) appointed by the board, shall serve as a non-voting, ex-officio member of the Issuer. Thomas P. Scrivo, Esquire is a public member and Chairman of the Issuer. The Act, as amended, provides that the appointment of new public members shall be as follows: there shall be eight public members, two public members (who shall not be legislators) are appointed by the Governor upon recommendation of the Senate President, and two public members (who shall not be legislators) are appointed by the Governor upon recommendation of the Speaker of the General Assembly, and four public members shall be appointed by the Governor. The appointments of the eight public members shall be as follows: the two members appointed upon the recommendation of the Senate President and the two members appointed upon the recommendation of the Speaker of the General Assembly shall serve terms of three years; two members shall serve terms of two years and two members shall serve terms of one year. There shall be three alternate members. Of the three alternate members, one alternate member (who shall not be a legislator) is appointed by the Governor upon recommendation of the Senate President, one alternate member (who shall not be a legislator) is appointed by the Governor upon recommendation of the Speaker of the General Assembly, and one alternate member shall be appointed by the Governor. The appointments of the alternate members shall be as follows: the alternate member appointed upon the recommendation of the Senate President shall serve a term of three years; the alternate member appointed upon the recommendation of the Speaker of the General Assembly shall serve a term of two years; and one alternate member shall serve a term of one year. The executive staff of the Issuer includes professionals in the fields of industrial and commercial development and management, finance and mortgage lending. Melissa Orsen is the Chief Executive Officer. The Issuer maintains offices at 36 West State Street, Trenton, New Jersey 08625- 0990 (P.O. Box 990). The Issuer does not represent or warrant in any way as to the accuracy or completeness of any information in this Official Statement, including the Appendices hereto, other than the information concerning the Issuer under the caption “THE ISSUER” and under the caption “NO LITIGATION – Issuer” herein. For purposes of compliance with Rule 15c2-12 of the United States Securities and Exchange Commission, as amended, and in effect on the date hereof, this Preliminary Official Statement constitutes an official statement of the Issuer that has been deemed final by the Issuer as of its date except for the omission of no more than the information permitted by Rule 15c2-12.

THE COMPANY Port Newark Container Terminal L.L.C. (the “Company”), a Delaware limited liability company, was formed for the purpose of leasing, managing and operating the Terminal and providing stevedoring services in Port Newark, New Jersey. The Company also performs services incidental to operating the Terminal and stevedoring services, including equipment repair and maintenance. The Company’s two members, Ports America, Inc. (“PAI”), a Delaware corporation, and Terminal Investment Limited S.à.r.l (“TIL”), a company domiciled in Switzerland, each hold a 50% ownership interest in the Company. Neither of the Company’s members is responsible for, nor guarantees, any obligations of the Company with respect to the Series 2017 Bonds. The audited consolidated financial statements of the Company for the Fiscal Years ended December 31, 2016, 2015 and 2014 are included in APPENDIX C hereto and the unaudited financial statements of the Company for the nine-month periods ended September 30, 2017 and 2016 are included in APPENDIX D hereto. The Company currently handles approximately 20% of the Port’s container volume. As a multi- modal container terminal with both truck access and an exclusive on-dock rail yard, the Company is a leader in the Port with 24% of all cargo handled at the Terminal using rail. The Company is pursuing opportunities to increase overall rail utilization, which has been facilitated by the construction of a flyover bridge that gives the Company a direct physical connection to its now on-dock rail freight terminal. This reduces short-haul truck transits on public roads by over 700 moves per day. Doubling the rail track in the Company’s rail yard has created additional intermodal capacity in advance of the planned marine and yard side growth. The Company’s business is supported by volumes from its indirect shareholder, MSC Mediterranean Shipping Company S.A. (“ MSC”), the second largest shipping line in the world and the largest in the North American market, and from the “2M Alliance” (an alliance between MSC and Maersk, which is the largest shipping company in the world and the second largest in the North American market behind MSC). MSC acquired an interest in the Company (through its terminal subsidiary TIL) in 2011 as part of its strategy to secure terminal capacity for its escalating container volumes, which it carries on its approximately 500-strong ship fleet. MSC has the largest market share of container volumes in the Port, and has sought to secure priority access to the Company’s terminal capacity to ensure efficient door to door container logistics. MSC is committed to using the Terminal to service its vessels in the Port subject to the Terminal having the capacity and providing competitive service levels. In connection with the Port Authority Lease, MSC entered into an agreement with the Port Authority, which provides for MSC to annually increase its container volumes through the Port through 2030. Port Authority Lease In 2000, the Company was granted a 30-year lease by the Port Authority to operate the Terminal, which was replaced by the Amended and Restated Agreement of Lease (Lease No. L-PN-264) dated as of June 14, 2011 (as amended and supplemented, the “Port Authority Lease”). The Port Authority Lease grants the Company operating control of the Terminal through November 30, 2030 (the “Initial Term”) and an option to extend the lease term through November 30, 2050 (provided that certain capital expenditure and other conditions are met). The Port Authority Lease is a triple net lease under which the Port Authority is responsible for certain underlying infrastructure and wharf structure maintenance. The Port Authority Lease requires a total capital investment by the Company of $500 million by November 30, 2029 in order to exercise this option for the full extension term. The Company has embarked on an over $500 million expansion plan that will upgrade the Terminal from a 850,000-lift container terminal without Ultra Large Container Vessel (“ULCV(s)”) capabilities to a 1.4 million-lift terminal with ULCV, barge and significantly improved road and rail capabilities. Since signing the Port

Authority Lease, the Company has spent or committed more than $250 million on capital improvements and projects, and expects to spend an additional $275 million by 2024. The Company has agreed to make certain rental payments to the Port Authority during the term of the Port Authority Lease, consisting of (i) an annual base rent, payable in monthly installments, based on a per acre rate, which rate is subject to increase each year during the Initial Term and subject to reset and further increase upon extension of the Initial Term and (ii) a container throughput rent, payable monthly in arrears, based on the annual rental rate and the number of containers loaded onto or discharged from vessels berthing at the premises during the lease year. The Company also has certain contingent rent obligations. The Port Authority Lease is subject to termination upon the occurrence of any of the following events, each of which constitutes an event of default under the Port Authority Lease: (i) the Company becomes insolvent or voluntarily files for bankruptcy; (ii) the Company is adjudged bankrupt by order or decree of the court, a petition filed by any of its creditors is approved by an order of the court, or the Company seeks reorganization or readjustment of its indebtedness under bankruptcy laws; (iii) a petition under any bankruptcy law or action under any insolvency law is filed against the Company and not dismissed within ninety (90) days; (iv) the Port Authority Lease is assigned, subleased or transferred in violation of the terms of the Port Authority Lease; (v) the occurrence of any “change of control” of the Company as defined in the Port Authority Lease, without the prior written consent of the Port Authority; (vi) dissolution of the Company; (vii) a receiver, trustee or liquidator takes possession or control of all or substantially all of the Company’s property for a period of thirty (30) days; (viii) the Company abandons, deserts or vacates the leased premises or discontinues its operations there for a period of sixty (60) days; (ix) failure of the Company to make rent payments under the Port Authority Lease when due and such failure continues for a period of five (5) days; (x) failure of the Company to maintain insurance as required under the Port Authority Lease; and (xi) failure of the Company to perform its obligations or violation of any covenant or agreement of the Company under the Port Authority Lease not cured within the applicable cure period. Upon any such event of default, the Port Authority may, upon ten (10) days’ written notice, terminate the Port Authority Lease and re-enter the Terminal. Under a Consent to Subleases Agreement, dated as of December 1, 2017 (the “Port Authority Consent”), by and among the Port Authority, the Company, the Issuer and the Trustee, the Port Authority will consent to the sub-sublease of the Leased Premises by the Company to the Issuer and the sub- sub - sublease of the Leased Premises by the Issuer back to the Company as set forth in the Lease Agreement. Management James J. Pelliccio – President and Chief Executive Officer, 2011 – Present As President and CEO of the Company, James Pelliccio provides leadership and direction for all container terminal operations. Mr. Pelliccio is leading the Company towards continued growth and profitability through a focus on operational excellence by developing and maintaining strong relationships with customers, members, service partners and government officials. Mr. Pelliccio has more than 35 years of domestic and international transportation industry experience. His diverse experience includes senior executive level and field operations leadership roles in the United States and Canada as well as extensive exposure to the Asian, European and Middle-East markets.

Markus Braun – Chief Financial Officer, 2011 – Present As Chief Financial Officer, Markus Braun is responsible for the Company’s strategic planning and execution. He oversees the finances of the Company, including operational finance, treasury, financial planning and analysis, accounting, process excellence and procurement. In this capacity, Mr. Braun also is responsible for shareholder relations, corporate governance as well as for developing and executing the Company’s strategy. Mr. Braun is a highly experienced senior finance professional with 20+ years of international management experience in corporate headquarters as well as in operational entities in Europe and North America. He has broad industry experience in logistics and he has been instrumental in reshaping and optimizing the finance and governance processes of the Company, and in introducing procedures to enhance and monitor financial performance.Mr. Braun was born in Germany, and earned a master’s degree in industrial organization and managerial economics at Eberhard-Karls-University in Tuebingen, Germany. In addition, he earned a master of business administration degree from Rutgers University Executive MBA program. Chris Garbarino – Vice President Operations, 2012 – Present Chris Garbarino has more than 19 years of domestic and international transportation and supply chain industry experience and has received seven industry awards for operational and safety achievements/records. Presently, Mr. Garbarino is the Vice President of Operations at the Company. During his four-year tenure, Mr. Garbarino has led the Company through a complete operational transformation that has resulted in new commercial growth and record financial results. He provides the strategic direction for the ongoing infrastructure upgrade project at the Company, and leads all change management aspects of the operation and the supporting Kaizen/process improvement initiatives. Prior to joining the Company, Mr. Garbarino held two consecutive roles as General Manager for Ports America businesses in Savannah, GA for two years and New Orleans, LA for five years. Before Ports America, he worked for DP World/CSX World Terminals in a senior manager role at a greenfield terminal development in the Dominican Republic. Mr. Garbarino directed various internal operations consulting projects for terminal assets in South America and Europe during the course of his 18+ years career. Mr. Garbarino holds a BSBA from the Kenan Flagler Business School at the University of North Carolina – Chapel Hill and holds an MBA with concentrations in Supply Chain and Finance from the Smeal College of Business at Penn State University. Company’s Members PAI PAI’s indirect parent company, Ports America Group, Inc. (“Ports America”), is the largest container terminal operator and stevedore in North America, with operations in every major port in the U.S. Ports America provides a full range of terminal management and ports services at more than 80 locations in more than 40 ports, handling both imported and exported cyclical and non-cyclical cargo types. Ports America’s operations involve the handling of containers, automobiles and other roll-on roll- off vehicles (“RoRo”), bulk, breakbulk and military cargo, cruise passengers, and the operation of intermodal facilities. In 2016, Ports America handled more than 6.2 million lifts, 2.2 million vehicles, 9.6 million breakbulk, bulk and military tons and 1.5 million cruise ship passengers. Ports America’s facilities handle an estimated 26% of the container port throughput in the U.S. mainland. The Company contracts with PAI to provide back office services, such as human resources, IT and accounting and billing, on an arm’s length basis, enabling the Company to leverage Ports America’s shared service capabilities to enhance its efficiency and competitiveness. In addition, workers

compensation and certain other insurance coverages are obtained through Ports America’s captive insurance company Ports Insurance Company, Inc. (“PIC”) at competitive rates. TIL Terminal Investment Limited is the 6th largest container terminal operating investor in the world, handling 24M container moves (36M TEU) at its terminals in 2016. TIL owns interests in 38 terminals which are strategically located in key ports on major shipping routes in 23 countries across five continents. TIL has a significant presence at seven of the world’s 25 busiest ports, including those at Antwerp, Singapore, Ningbo, New York and New Jersey, Los Angeles, Long Beach, Rotterdam, and Bremerhaven. TIL is co-owned by MSC, the world's second largest container shipping line, which in 2016 accounted for two-thirds of the volumes through TIL’s terminal portfolio, and by Global Infrastructure Partners (“GIP”), one of the world’s leading infrastructure investment funds. THE PORT OF NEW YORK AND NEW JERSEY The Port of New York and New Jersey (the “Port”) is the second largest container port in the country, after the Los Angeles / Long Beach port complex, and the largest port on the East Coast, accounting for 32% of container throughput on the East Coast and 12.5% of throughput nationally. In 2016, the Port handled over 4.6 million loaded-TEUs (twenty-foot equivalent container units; all references made to TEUs assume a TEU/lift conversion of 1.70) at its various marine container terminals, which accounted for approximately 50% of the United States domestic North Atlantic market share). The total number of TEUs (loaded and empty) handled in the Port over the past five years is set forth below:

Year Total TEUs 2016 6,251,953 2015 6,371,720 2014 5,772,303 2013 5,467,347 2012 5,529,908

Source: The Port Authority of New York and New Jersey

Facilities within the Port

The Port is served by six terminals operated by independent terminal operating companies. The Port Authority owns or leases the land on which the terminals are located but leases the terminal space to the terminal operators. The primary container facilities are located in New Jersey and consist of Port Newark Container Terminal (Newark), APM Terminals (Elizabeth), Maher Terminals (Elizabeth), and Global Terminals (Bayonne). The remaining two facilities play more minor roles in the Port’s container business, and consist of New York Container Terminal (“NYCT”), located on Staten Island, and Red Hook, located in Brooklyn. Combined, these facilities provide capacity for transfer of cargo to and from vessels, on site storage, and transfer of cargo to and from inland transportation services, including over the road trucking and intermodal rail services.

When combined, the six terminals that make up the Port’s container facilities have approximately 9.4 million TEU in capacity. The distribution of that capacity across the six terminals is shown in the figure below.

Source: Mercator International LLC

The terminals are large operations, with deep-draft access channels and berths, focused on serving major ocean carriers. Together, the first five terminals handled an estimated 98% of the Port’s container traffic. The sixth terminal, Red Hook, is a niche operation located on the Brooklyn waterfront with shallower draft. The five major terminals are generally comparable in terms of facilities with deep- draft channels and berths, large terminal yards, and access to intermodal rail facilities. The table below outlines the key specifications of the six terminals within the Port.

Port-wide, the Port realized better than 65% utilization of its overall container terminal capacity in 2016. The majority of the capacity was utilized at the Terminal, Maher, APMT, and Global Terminals, with decreasing utilization at NYCT and Red Hook Terminal.

Competitive Strengths

A key strength for the Port is its ability to accommodate larger vessels. The U.S. Army Corps of Engineers and the Port Authority have completed the multi-year effort to deepen the Port’s main ship channels to 50-feet mean low water. Most recently, the June 2017 completion of the Bayonne Bridge construction to raise the roadway within the existing steel structure provides 215 feet of air draft, suitable for the largest ships (14,000 TEU) expected to call at the Port and the Northeast in the future.

The Port is located at a major intersection of many critical road and rail arteries in the northeastern U.S., with connections throughout North America. The Port Authority continues to invest in the intermodal rail terminal infrastructure at the Port. The Port’s ExpressRail System is a comprehensive $600 million rail program with dedicated rail facilities, and additional support track and rail yards, for each of the port's major container terminals. It connects Port Elizabeth, Port Newark and Staten Island terminals with main rail routes operated by CSX, Norfolk Southern and Canadian Pacific shipping lines, with direct connections to the Northeast, Midwest, Great Lakes, Canada and Mid Atlantic. In 2017, approximately 14.3% of Port volumes has moved by rail.

Trade routes are changing to accommodate increases in ship size. While the Panama Canal expansion means larger ships can pass through the Canal, many ships will still be too large. These ships currently transit the Suez Canal on their way to the U.S. East Coast, and an increasing number of ships are expected to do so as trade volumes rise. First and last calls on these routes are preferred for intermodal rail and barge volumes because of the quick transit time to destination.

The first port of call for crossing the Atlantic is likely to be the Port, given the regional, commercial and economic significance. The Port’s northern location makes it a natural first call seaport for vessels crossing the Atlantic from Europe or through the Suez Canal from Asia.

The expansion of the Panama Canal, completed in 2016, has improved all-water access between the East Coast of the United States and East Asia, and is expected to result in re-routing of some East Coast and Midwest cargo from West Coast ports to East Coast ports. This change in transportation pattern is expected to result in increased container volume traveling through the Port, and will likely also change the direction of container travel on the region’s highway and rail networks as some West Coast-based cargo could shift to an East Coast-based distribution pattern. As a consequence, the Company expects that East Coast ports will grow at a faster pace than the rest of the traffic at other ports in the U.S.

The New Jersey population as a whole is expected to increase by 9.7% overall between 2010 and 2030 (Source: Department of Labor and Workforce Development, State of New Jersey). This population growth is expected to create continued demand for imported goods, driving substantial container volume growth. Container volumes in the Port are anticipated to grow by at least 3.4% compound annual growth rate (CAGR) between 2016 and 2021, with the potential of additional discretionary cargo prompted by shifts in Asian manufacturing, the Panama Canal expansion, and the Bayonne Bridge being raised.

THE TERMINAL

Terminal Overview

The Terminal has been in operation since 1971 under different ownerships. The facility had a 2017 throughput of approximately 740,000 lifts and a capacity of approximately 850,000 lifts, reflecting an 87% utilization rate. In 2018, the Company expects to handle over 800,000 waterborne containers. The Terminal currently occupies 263 acres and the Company has taken possession of an additional 46 acres of adjacent land currently being developed.

The Terminal, located in the heart of the Liberty Corridor and at the nexus of the M-87 and M-95 Maritime Administration (“MARAD”)-designated Marine Highway routes, is immediately adjacent to Interstate 95 (“I-95”), one of the busiest and most important interstate highways in the country. The Terminal is at the convergence of several United States Department of Transportation (“USDOT”)- designated Primary Highway Freight Systems (“PHFS”), including I-95, I-78, and I-280. The Terminal is also within miles of other interstate highways not designated as a PHFS, such as I-278, I-80, I-87, and I-495, and dozens of major state roads. The Terminal has its own on-dock intermodal rail facility, ExpressRail Port Newark, with rail service provided by CSX. ExpressRail Port Newark is connected to and very near CSX, Norfolk Southern, other freight rail lines and multiple other intermodal rail terminals. Its strategic location in Newark Bay between Newark, NJ and Manhattan, NY, is a key link in the Atlantic trade network and a vital component in the international logistics network that serves the eastern United States.

Competitive Strengths

The Company has concentrated on accommodating and attracting discretionary cargo that can be shipped via intermodal rail to areas with large consumer markets in the Ohio Valley, eastern Canada, Chicago, Detroit and New York Metro areas (80 million people within 24 hours). As a result, the Company is a market leader in New York and New Jersey with rail volume representing 24% of its total volume.

The Company is the only terminal operator within the Port that has adjacent parcels of land accessible and readily available for development, providing the opportunity to expand capacity while continuing to meet incremental container growth in the interim. The Company’s ongoing program and access to this adjacent land avoids the risks and costs faced by competing terminals in the Port, each of which would have to take capacity offline in order to upgrade their operating modes to expensive rail mounted stacking cranes.

Customers

The competitive position of a container terminal is tied to a number of factors, including location, intermodal access, local market dynamics, capacity and performance. An additional important factor is the ability to secure long-term commitments from customers to call at a terminal. By virtue of its ownership structure – 50% owned by TIL, which is in turn majority-owned by MSC – the Terminal is the preferred gateway for all MSC-controlled cargo in the Port.

In 2014, MSC entered into the 2M Alliance with Maersk. The Company currently handles 50% of the 2M Alliance traffic in the Port and expects that to continue. The Company’s current business plan anticipates that MSC and 2M Alliance volumes will represent approximately 80% of the Terminal’s future projected volumes.

While MSC and its 2M Alliance partner are expected to continue providing substantial container volumes to the Terminal, the Terminal also provides services to numerous other global shipping lines that collectively contributed nearly 30% of the Terminal’s 2016 container volume.

Source: Port Newark Container Terminal

In 2017, however, a re-alignment of shipping alliance services resulted in the transfer of a significant portion of the Company’s third-party volume to another terminal within the Port, reducing the overall third-party share to 13%. At the same time, the Company was able to absorb approximately 50% of 2M Alliance volumes in the Port to mitigate most of the impact of this shift. This 2M Alliance share is assumed to continue in 2018 and beyond. MSC and 2M Alliance volumes are projected to represent approximately 94% of the Terminal’s volumes in 2018, 86% in 2019, and 80% in 2020 and beyond. The projected future decrease in the MSC and 2M share is based on the expectation that the Company will be able to secure new third-party customers over the same period.

Terminal Location and Aerial View

Source: Port Newark Container Terminal

Terminal Key Facts

Current Capacity: . 850,000 containers

Terminal Area: . 3 berths; 4,800 ft. quay; 40 / 50 ft. draft . 263 acres yard area

Terminal Assets: . 9 STS cranes (3 of which are ULCV capable, 2 additional ULCV cranes currently on order) . 100 Straddle Carriers . 3 Rubber Tired Gantry Cranes (RTGs) . 5 Reach Stackers . 15 Empty Handlers . 39 Yard Hustlers

Rail Access: . Exclusive on-dock rail . 10,000 feet of working track

Expansion . 30 acres of expansion are under construction Opportunities: . The Company took possession of an additional 16 acres effective November 2017.

Source: Port Newark Container Terminal

Expansion of the Terminal

Global trends in shipping have introduced larger more economically and environmentally efficient vessels—-ULCVs—to the world’s shipping fleet. The trend toward larger vessels has required large-scale infrastructure investments to accommodate these vessels, ranging from widening the Panama Canal to improvements in the U.S. national and regional rail systems and improvements to ports and harbors.

Container handling capacity within the Port is nearing full utilization, and substantial investments are required to meet future throughput demands. The Company believes it provides the most cost- effective opportunity to expand capacity within the Port in order to meet the requirements of increasingly larger container vessels arriving at the Port. While incremental capacity improvements can be realized at the other terminals in the Port, the Terminal is the only facility with available adjacent land parcels to expand its operation. The advantage of the adjacent parcels includes the ability to expand capacity without interrupting or inhibiting current operations, or reducing capacity to enable improvements within the existing terminal.

Since 2011, the Company has spent more than $250 million on capital improvements, and remains committed to invest over $275 million in 2018 through 2024. These investments are part of a large-scale, long-term terminal expansion plan, with over $500 million of cumulative investments to double container handling capacity, expand the Terminal’s ULCV capabilities and improve services at the Terminal.

Civil Works

• 2012 Expansion (33 acres/13.4 ha): Expanded stacking capacity by approximately 25% • Rail Expansion: New flyover bridge giving direct off-road access to rail yard. Doubled the rail working track to 10,000 feet • Existing Terminal Upgrades: Removal of multiple unused buildings, cranes and structures. Construction of a new 4 high straddle carrier shop. Pavement expansion and replacement. New reefer racks, substations and electrical upgrades

Capital Equipment

• 3 Additional ULCV capable Cranes: 22 wide, 45m under spreader, 65 ton twin lift capacity • Straddle Carriers: 64 new over past 5 years, 36 of which are 4 high • Other New Equipment: 15 Empty Handlers, 3 RTG, 5 Reach Stackers, 39 Yard Hustlers

The Company expects the Terminal to reach maximum practical terminal capacity in 2017, based on its current configuration. The Company’s current terminal expansion consists of a suite of projects that will increase capacity by 65% from the current 850,000 containers per year to 1.4 million containers per year at full build out in 2028. The projects include the addition of container storage by expanding into more than 46 acres of adjacent parcels, redeveloping 56 acres of the existing terminal, and deepening berths 55/57 to alleviate berth capacity constraints, allowing the terminal to service multiple ULCVs.

This expansion would enable the Terminal to: • continue capturing volume growth • accommodate more of the ULCVs that would otherwise not be able to call on the Port • maximize utilization of existing capacity in accordance with business requirements over the near-term, and • bring sizeable capacity improvements online to accommodate step-function demand increases.

The Company’s expansion project will complement other federal and local investments and planned initiatives as follows:

• Major improvements by the Port Authority and other governmental agencies totaling $4 billion to increase capacity and harbor access including rail network improvements, raising the Bayonne Bridge, and harbor deepening. The $600 million ExpressRail System has created dedicated rail facilities and additional support track and rail yards for each of the Ports major terminals. The $1.3 billion “Bayonne Bridge Raise the Roadway” project raised the deck of the Bayonne Bridge by 54 feet to 215 feet above sea level. This allows ULCVs to pass under the Bayonne Bridge to access the Terminal. The project was critical to maintaining and enhancing the competitiveness of the Terminal and the greater Port. The project was completed in June 2017. For the NY/NJ Harbor Deepening Project, the U.S. Army Corps of Engineers, in conjunction with the Port Authority, has completed a $1.63 billion project to deepen the Port’s access channels to 50-foot depths. These channels, which provide vessels access to the main container terminals within the Port, including the Terminal, required deepening to support the ULCVs that are expected to call on the Port.

• The NY/NJ Regional Goods Movement Plan, which seeks to develop a comprehensive long- term regional goods movement plan for the New York and New Jersey region that establishes a framework and action plan for the identification and prioritization of freight strategies and projects within a 30-year planning horizon.

• The Liberty Corridor, which is designated as a Transportation Corridor of Regional and National Significance under P.L. 109-59 (SAFETEA-LU) and is envisioned as the economic, jobs and transportation engine for a New Jersey region that includes 8 counties, 232 municipalities, 59% of the state's population, and 9 of the state's 10 largest cities. The Liberty Corridor region also includes thousands of acres of potential brownfield development sites, an extensive multi-modal transportation system, an array of higher education and research institutions, and most importantly, the largest container port on the Atlantic Coast, which is a vital economic engine for the entire state of New Jersey. Through coordinated planning, direct investment in infrastructure and encouragement of public-private partnerships, the Liberty Corridor can emerge as a national model of how to create ladders of opportunity connecting urban and rural communities with transportation infrastructure. A key goal of the Liberty Corridor initiative is creating a world-class seaport through efforts that support expansion, modernization and security. The accomplishment of the Liberty Corridor goal will require developing an effective public-private partnership and deploying innovative financing strategies to support vital large-scale port infrastructure and capacity improvements.

The project is separated into different sub-projects, all of which are independent from each other and therefore provide independent benefit to the Company and the region, and individually facilitate additional movements of goods into the region. The total investments scheduled for the expansion phase of the Terminal are summarized below:

Source: Port Newark Container Terminal

The Terminal expansion project encompasses the most significant short-term infrastructure investment required for the expansion and upgrade of the Terminal from a 850,000-lift container terminal without ULCV capabilities to a 1.4 million-lift terminal by 2028 with ULCV, barge and significantly improved road and rail capabilities. The $63 million in heavy infrastructure projects packaged together for this expansion phase is part of the overall projected $177 million in capital expenditures planned for the Terminal from 2018 through 2020.

Terminal Layout with Scheduled Investments

Capex Projects Funded with the Series 2017 Bonds

Civil Works

Subproject 1 - Terminal Access Improvement and Expansion Project (Phase 2&4), (TIGER 6 Grant Recipient).

The Terminal’s Phase 2&4 expansion project is a complex project covering multiple phases that will ultimately give the Terminal the ability to handle 1.1 million containers per year. The multidimensional project tasks included in the Phase 2&4 expansion must be completed in such a manner to enable the Terminal to maintain the capability and capacity to deliver a continued high level of service to its customers as well as to deliver the project on schedule. Therefore, to facilitate the proper execution of this project, prior to the start of this project, the Company developed a well-designed and simulated conceptual plan based on real-time simulation models for the overall facility footprint and expansion thereof. As can be seen from the below scope of Subproject 1, this brownfield project requires the close coordination, scheduling, agility and communications between all departments to maintain our service levels

The Phase 2&4 project complements the Company’s strategy and increases capacity to handle committed and anticipated volume growth. This subproject outlines the short and medium term need to support the current contracted volume growth and to provide the base for future volume growth. The scope of this project is to increase the capacity of the existing Terminal yard by expanding the Terminal yard by 30 acres, renovate 34 acres of the existing yard and relocate and build a new gate complex. The Company has secured through its lease the 30 acres of expansion land which was immediately available for construction starting in 2015.

The Terminal’s current gate is outmoded and queues for truckers often extend into public roads causing customer service issues and conflicts with local regulatory agencies. The yard and gate capacity is currently limited at approximately 850,000 lifts and will be the bottleneck to handle the increased volume beyond 850,000 lifts and to support the increasing crane fleet. Therefore, the Phase 2&4 expansion is required to increase the yard throughput capacity by 30% to 1.1M containers and align with the available berth and crane capacity. This project will also provide for a modern, state-of-the-art gate with the most advanced gate processing and security technology. Further, the relocation of the current gate will free up additional yard capacity, and will make yard operations more effective.

The electrical and IT infrastructure is aging and will be updated to support this and the other expansion projects.

• Project Budget 2018: $5.6M still to be invested o $44.2M already invested prior to 2018 o This project is supported by an awarded $14.8M federal TIGER Grant (TIGER 6). $9.7M has been received by the Company through November 2017 o Status: • Construction commenced in 2015 • Main Benefits: o Adds 250,000 lifts of capacity to yard o Provides for faster, more efficient, and environmentally friendly truck transactions at the gate by reducing truck waiting times and idling • Scope: o Gate • New state-of-the-art truck gate processing • New state-of-the-art security technology • New Customs Border Protection Radiation Portal Monitoring facility • Trucker comfort and customer service stations • Natural gas back-up power generation o Yard • 30 acres of new terminal • 34 acres of renovated terminal • Expand yard capacity by 29%, allowing for increased overall capacity and faster cargo handling • Raise the elevation of sections of the terminal to protect from future flooding events and sea level rise • Expand on-grid refrigerated container plug capacity, reducing the need for diesel- powered generation • Installation of a new, more energy-efficient yard lighting system

Subproject 2 - Wharf Revitalization and Improvement Project (Berths 55/57).

The two improved berths under the Wharf Revitalization and Improvement Project will increase the Terminal’s capacity to handle larger ships, support cargo volume growth, and enable the Company to more efficiently move vessels in and out of the Terminal. Other ongoing projects are allowing the Company to expand its staging and handling areas, thereby reducing truck queuing and idling times,

allowing the Company to speed up cargo handling and decreasing days spent by vessels in port. The project will reduce the all-in cost to the shipping lines calling at the Terminal. In addition, the investment is expected to improve the Company’s ability to attract more discretionary intermodal cargo. In many cases, U.S. export cargo is extremely sensitive to incrementally high transport costs, and this increase in efficiency will translate into lower costs for export cargo, and therefore increased opportunity for cost- sensitive U.S. exports. This is particularly true in light of the Bayonne Bridge Raising Project that was completed in 2017.

The Terminal lacks an adequate length of modern berth to handle the multiple ULCVs that are expected to call on the Port in the near future. The Wharf Revitalization and Improvement Project will address this by recommissioning and upgrading Berth 55—an existing deficient and decommissioned wharf—and upgrading a currently operational, but soon to be functionally-obsolete, wharf to accommodate larger vessels. This work will take advantage of the recently completed deepening of the Port’s access channels and the raising of the Bayonne Bridge. These improvements will provide the Terminal with true multiple ULCV capabilities.

The project will transform Berth 55 into a state-of-the-art modern berth to support container ships and barges, along with the newest ship-to-shore gantry cranes. The new Berth 55 is located closer to the truck yard as well as to the rail complex. After project completion, approximately 150,000 miles of straddle carrier travel is expected to be saved every year. The decreased straddle carrier trips will reduce wear and tear on the port pavement and the straddle carrier fleet.

• Project Budget 2018: $23.0M • Status: o Design complete o Construction contracting able to commence upon funding • Current: o Berths 59-61: 2,400’ (731m) at 50’ (15.3m) minimum dredge depth at MLW (mean low water) • Bollards and Fenders sized for ULCV at 50’ draft • 150t bollards at approximately 15.3m spacing • Fenders: Energy Absorption = 797kip-ft; Reaction Force: 311 kips at approximately 15.3m spacing o Berth 57: 1,200’ (366m) at 40’ (12.2m) o Berth 55: 1,200’ (366m) at 35’ (10.7m) - decommissioned. • Scope: o First: Dredge 400’ of berth 55 to 40’ (12.2m), o Then: Dredge 400’ of berth 57 to 50’ (15.2m), so that • Berth 61 gets extended to 1400’ (427m) @ 50’; • Berth 59 gets extended to 1400’ @ 50’; and • Berth 57 remains at 1200’ @ 40’ (absorbing 400’ from berth 55). o After completion: • Berths 59-61: 2,800’ (853m) at 50’ (15.3m) • Berth 57: 1,200’ (366m) at 40’ (12.2m) • Berth 55: 800’ (244m) at 35’ (10.7m) - decommissioned.

Illustration Berth 55/57 – first 400’:

Source: Port Newark Container Terminal

Subproject 3 - Terminal Expansion Project (Phase 3).

The Phase 3 Expansion Project will expand the acreage of the Terminal, developing such acreage for straddle carrier operations and making it contiguous to the eastern boundary of the Terminal. This project will repurpose acreage through the demolition of existing warehouses, as well as the relocation of an access road. A total of 16.5 acres will be added to the total acreage of the Terminal, adding up to 120,000 lifts of incremental capacity. Additionally, a new refrigerated container rack, allowing on grid plug in capacity for 180 refrigerated containers, which might otherwise be run from mobile diesel generators, will be constructed.

The addition of the acreage gained from Phase 3 will provide yard capacity directly behind the Company’s current deep water Berth 61 which will reduce travel distance to and from the vessel. This will improve operational efficiencies by allowing containers to be discharged and loaded from acreage directly behind Berth 61, and reduce mileage on the straddle carrier fleet as well as reduce emissions and equipment wear and tear.

• Project Budget 2018: $23.3M • Main Benefits: o Adds up to 120,000 lifts of capacity to yard o Expands yard capacity directly behind current deep water berth, which will reduce the distance traveled by container handling equipment (straddle carriers and trucks) o Expands refrigerated container plug capacity, reducing the need for diesel-powered generation o Highest capacity per acre improvement available • Scope o Abatement and demolition of two existing warehouses

o 16.5 acres of new terminal o 180-electric plugs for refrigerated containers

Other Civil Capital Expenditures

• Project Budget: $8.9M • Maintenance Paving and Engineering

Equipment and Other Capex

Straddle Carriers

• Project Budget 2018: $18.0M • 16 replacement straddle carriers, 4 expansion straddle carriers

Subproject 2B – Wharf Revitalization and Improvement Project (4 ULCV cranes).

This crane procurement project further complements the Company’s growth strategy. Moreover, the four new cranes will provide the additional berth capacity to match the 1.1M moves in the Terminal’s capacity created by the Phase 2&4 civil expansion project. Since the raising of the Bayonne Bridge was completed in June 2017, ULCVs of 12,000 to 14,000 TEUs and larger are expected to call on the Port. The demands placed on terminals by these ULCVs will require bigger cranes, longer quays and larger container yards. These four cranes will complement three existing ULCV cranes to service these ULCV class vessels.

• Project Budget 2018: $45.6M • 2 cranes already on order with expected delivery in Q2 2018 • Main Benefits o Adds 480,000 lifts of capacity to berth that is improved under sub-project 2 scope o Install four new Ultra Large Container Vessel capable ship-to-shore gantry cranes

Capex Projects Not Funded with the Series 2017 Bonds

Civil Works

Other Civil Capital Expenditures • Project Budget 2018: $2.5M • Maintenance Paving, Straddle Carrier Parking Access Platforms and Engineering

Equipment and Other Capex

Straddle Carriers • Project Budget: $25.2M • 21 replacement straddle carriers, 5 expansion straddle carriers

ULCV Capable Crane • Project Budget: $15M • Optional crane pending demand

Other Equipment • Project Budget 2018-2020: $3.0M • Various smaller container handling/yard vehicle equipment

Information Technology • Project Budget 2018-2020: $6.6M o Install crane OCR on 11 STS-cranes; o Install Fiber cable

Subprojects 2, 4, 5 & 6 (long term development beyond 2020) • Subprojects 4, 5 & 6 longer term projects and are out of scope of the Company’s 2018-2020 investment plan and have been excluded from the Project. • Major projects are: o Project 4: Heavy Duty Strad Shop 2022/2023: $7.5M o Project 5: Marsh Street Empty Depot completed 2017 o Project 6: New Administration Building 2026: $12M o Project 6: West Paving Strad Field 2027/2028: $25M • Project 2: Upgrading and deepening of remaining 800 foot for Berths 55 and 57: $65M

Ongoing Capital Maintenance

Ongoing preventative and predictive capital maintenance is essential to realize and extend the useful life of key assets. The Company is currently on the path towards implementing Total Productive Maintenance (“TPM”) as applied to all of its assets. TPM is a process excellence tool that when fully implemented directs maintenance activities away from reactionary maintenance to preventative and predictive maintenance. The Company is actively applying TPM in all maintenance activities to be pro- active and plan all capital maintenance activities. The Company utilizes a maintenance monitoring and asset management system, Mainpac EAM, to assist with and facilitate the asset management, maintenance and inventory control of capital maintenance activities. These maintenance activities include maintenance planning and scheduling, inventory control, purchasing, asset register, job requests, work safety, labor and resource management and asset criticality. This system is widely used for civil assets (pavement, wharf, gate and terminal maintenance) as well as equipment (quay crane, straddle carrier and terminal equipment maintenance activities).

Port Security

The Company maintains a Facility Security Plan (“FSP”) that has been approved by the United States Coast Guard (“USCG”). The FSP is audited twice a year by the USCG and once a year by an outside security professional. The current plan was submitted and approved by the USCG in 2014. The plan is amended whenever conditions on the Terminal change and alter the security procedures or the basic footprint of the Terminal.

All gates and the perimeter fence line are monitored with CCTV cameras.

The Company employs security guards that are certified and licensed by the NY/NJ Waterfront Commission and are all members of the Port Patrolmen Guard Union. The guards are not armed. As per USCG security regulations, the Company conducts security drills every 90 days to test security procedures, awareness and knowledge of the security personnel. All guards receive security training

yearly provided by the NY/NJ Waterfront Commission and the Port Authority. Guards and management personnel with security duties receive security awareness training provided internally at least twice a year. The Company has a certified Facility Security Officer and two certified Alternate Facility Security Officers.

Ports America, including the Company, are certified members of the Customs and Border Protection voluntary security profile program C-TPAT which requires the business to maintain specific security procedures and be subjected to an annual audit to verify compliance. The Ports America Security Profile has been successfully audited in 2017. The FSP receives security alerts from the New York Police Department, Port Authority Police, New Jersey Department of Homeland Security and several private security firms. Finally, the Company and management personnel participate in Port Wide security tabletop and drills which include Law enforcement officials, from local, state and federal departments.

Risk Management/Insurance

The Company is included in Ports America’s overall insurance program which uses a captive, PIC, to underwrite the various deductibles and together with commercial insurance coverage provide full insurance coverage to PNCT. This insurance program is very comprehensive, and includes federal and state workers compensation, liability, property and casualty and business interruption, and terrorism insurance coverages. It affords PNCT guaranteed costs for most policies with no deductibles and limits of coverage well above standard industry practice. In addition, the Company is specifically covered by a pollution legal liability policy and a contractors legal liability policy purchased from a commercial insurer.

Labor Relations

Labor relations agreements covering the Port (which include the Terminal) are governed by local "multi-employer" Collective Bargaining Agreements (“CBA”). The Company as a member company of the NYSA (New York Shipping Association) and the MMMCA (Metropolitan Marine Maintenance Contractors’ Association. Inc.) is subject to the terms and condition of the multi-employer CBA which encompass all organized labor functions including ILA drivers, clerks, mechanics and security guards. The Company holds a board seat within both associations and actively participates in key committees negotiating on behalf of its members.

Labor negotiations and the management of material issues with regard to bargaining, arbitration, and manning levels are managed in cooperation with the multi-employer associations referenced above.

In addition to the local "New York" agreements, the Company is subject to the terms of the coast wide master contract agreement which is supported through the multi-employer association known as the United States Maritime Alliance (“USMX”). The master contract is primarily focused on matters related to health & welfare, employee benefits, pension and container royalty. Ports America holds a seat on the Board of Directors of the USMX and actively participates in the shaping of the terms and conditions of the master contract agreements as it relates to terminal operations.

Since 1977, USMX which covers all east coast operations and the NYSA/MMCA which covers all local Port issues have been successfully negotiated with the International Longshoremen's Association (“ILA”) without interruption to service. The current CBA with the ILA expires in September 2018.

HISTORICAL OPERATING RESULTS

Source: Port Newark Container Terminal

MANAGEMENT’S DISCUSSION OF OPERATING RESULTS

Since the formation of the joint venture between Ports America and TIL in 2011, the Company has undergone a significant transformation. The first two years were driven by renegotiation of the Port Authority Lease, the stabilization of the operations and the implementation of new financial procedures, a new management information system and governance rules.

In the years 2014 through 2016, the Company secured new business, which led to gains in market share. Moreover, as a result of continuous process improvements, operational improvements and the successful implementation of rate increases, operating margins improved significantly during the same period.

In 2017, the Company has continued to grow, driven by market growth and 2M Alliance growth. Profit margins have continued to improve as a result of operational improvements and terminal upgrades.

Nine months ended September 30, 2017 compared to nine months ended September 30, 2016

Revenues increased by $27.5 million or 14.2% for the nine months ended September 30, 2017 compared to the same period in 2016. That increase was primarily driven by a 6.7% increase in volume, significant increase in terminal related revenues, mainly storage revenue, and the pass-through of labor rate increases to customers.

Labor expenses increased by $8.4 million or 7.4% for the nine months ended September 30, 2017 compared to the same period in 2016. That increase was primarily driven by the 6.7% increase in

volumes. The balance of the increase is a result of year over year contract labor rate increases, which were partially mitigated by process improvements and other cost savings initiatives at the Terminal.

Insurance expenses decreased by $0.6 million or 7.8% for the nine months ended September 30, 2017 compared to the same period in 2016. This decrease was mainly driven by favorable Workers Compensation insurance rates in 2017 due to safety achievements in 2016 and reduced labor hours in the operations.

Equipment expenses increased by $0.7 million or 7.4% for the nine months ended September 30, 2017 compared to the same period in 2016. This increase was mainly driven by fuel cost increase due to a combination of volume and fuel price increases.

Facilities expenses increased by $1.8 million or 8.9% for the nine months ended September 30, 2017 compared to the same period in 2016. This increase was mainly driven by the onset of rental payments for expansion parcels as per the Terminal lease with the PANYNJ and volume driven increases in variable rent.

Depreciation and Amortization expense decreased by $1.1 million or 6.7% for the nine months ended September 30, 2017 compared to the same period in 2016. That decrease was driven by a change in the useful life of certain fixed assets.

Other expenses remained generally unchanged for the nine months ended September 30, 2017 compared to the same period in 2016.

General and Administrative expense increased by $0.8 million or 10.7% for the nine months ended September 30, 2017 compared to the same period in 2016. That increase was primarily driven by non-operating depreciation of a new Terminal Operating System.

Net Income increased by $17.5 million for the nine months ended September 30, 2017 compared to the same period in 2016. This was primarily driven by the operating results discussed above as there was only minimal change to Interest Expense.

Year ended December 31, 2016 compared to the year ended December 31, 2015

Revenues increased by $16.4 million, or 6.3%, for the year ended December 31, 2016 compared to the same period in 2015. That increase was driven by a 6.3% increase in total container volume and the pass through of labor rate increases. The 2016 revenue also included a $15 million non-recurring revenue from a customer, which was offset by significantly lower terminal related revenues.

Labor expense decreased by $4.0 million or 2.6% for the year ended December 31, 2016 compared to the same period in 2015. That decrease was primarily driven by operational and productivity improvements throughout terminal operations and incremental weather related labor costs incurred in 2015.

Insurance expense decreased by $0.8 million or 7.9% for the year ended December 31, 2016 compared to the same period in 2015. That decrease was mainly driven by reduced labor hours in the operations driven by productivity improvements and higher weather related labor costs incurred in 2015.

Equipment expense decreased by $1.5 million or 11.3% for the year ended December 31, 2016 compared to the same period in 2015. This decrease was mainly driven by significant reduction in oil and fuel prices during 2016.

Facilities expense increased by $0.6 million or 2.2% for the year ended December 31, 2016 compared to the same period in 2015. That increase was primarily driven by lease payments for additional expansion parcels, partially offset by reduced expenses for snow removal and terminal repair paving.

Depreciation and Amortization increased by $1.0 million or 5.2% for the year ended December 31, 2016 compared to the same period in 2015. That increase was primarily driven by depreciation of expanded equipment fleet.

Other expenses decreased by $4.0 million or 18.9% for the year ended December 31, 2016 compared to the same period in 2015. That decrease was primarily driven by one off costs incurred in 2015 related to overflow volumes serviced at a neighboring terminal.

General and Administrative expenses remained unchanged for the year ended December 31, 2016 compared to the same period in 2015.

Net income increased by $23.9 million for the year ended December 31, 2016 compared to the same period in 2015. That increase was primarily due to the reasons set forth above partially offset by increased interest expenses.

Year ended December 31, 2015 compared to the year ended December 31, 2014

Revenues increased by $30.8 million, or 13.4%, for the year ended December 31, 2015 compared to the same period in 2014. That increase was primarily driven by 5.9% increase in total container volume as a result of new services and alliances formed by the shipping lines. Extraordinary demurrage revenues as a result of several major winter storms and vessel bunching and the pass-through of labor rate increases to customers further contributed to revenue increase.

Labor expense increased by $15.5 million or 11.3% for the year ended December 31, 2015 compared to the same period in 2014. This increase was primarily driven by extra labor cost caused severe winter storms and vessel bunching. Staffing increases in maintenance shops driven by expanded equipment fleet further contributed to the labor cost increases.

Insurance expense increased by $0.2 million or 2.3% for the year ended December 31, 2015 compared to the same period in 2014.

Equipment expense decreased by $2.0 million or 13.1% for the year ended December 31, 2015 compared to the same period in 2014. This was primarily driven by a significant decrease in oil and fuel prices in 2015.

Facilities expense increased by $3.3 million, or 14.6% for the year ended December 31, 2015 compared to the same period in 2014. That increase was primarily driven by extraordinary revenue from sublease of warehouses in 2014 and increased terminal repair paving in 2015.

Depreciation and Amortization expenses increased by $3.7 million or 22.8% for the year ended December 31, 2015 compared to the same period in 2014. That increase was primarily driven by the terminal expansion.

Other expenses increased by $10.0 million or 90.4% for the year ended December 31, 2015 compared to the same period in 2014. This was primarily driven by insurance proceeds from Superstorm

Sandy that were included in 2014 totals and one off costs incurred in 2015 related to overflow volumes serviced at a neighboring terminal.

General and Administrative expenses increased by $0.7 million or 7.2% for the year ended December 31, 2015 compared to the same period in 2014. That increase was primarily driven by salary re-class of management labor from labor.

Net income decreased by $1.6 million for the year ended December 31, 2015 compared to the same period in 2014. That decrease was primarily due to the reasons discussed above and an increase in interest expense due to the increase in equipment fleet in 2015 and related financing expense.

PROJECTED OPERATING RESULTS AND PROJECTED DEBT SERVICE COVERAGE

Revenues for 2018, 2019 and 2020 are projected to increase by 11.1%, 12.7%, and 12.0%, respectively. These increases are driven primarily by the full year 2018 impact of the new 2M Alliance services, which began in 2017, and new services that are targeted for 2018, 2019 and 2020, are exected to result in annual volumes increases during this period of 10.5%, 12.2%, and 10.9%, respectively. Annual revenue unit rate increases of 2% are also expected for this time period. In the longer term, organic volume growth and annual unit rate revenue increases are expected to result in 5% revenue increase per annum until terminal maximum capacity is reached.

Labor/Compensation expenses for 2018–2020 are projected to increase by 10.0%, 10.8%, and 10.4%, respectively, in correlation with volume increases during the same period. In the longer term, labor expense is projected to increase at 4.4% annually, a combination of 3% annual volume growth and annual labor rate increases.

Rent/Facilities expenses for 2018–2020 are projected to increase by 16.2%, 8.2%, and 6.4% respectively. This is mainly driven by terminal rent expense that increases due to the inclusion of new expansion properties and due to volume driven variable terminal rent. In the longer term, these expenses are projected to increase at 2.7% annually with a unit rate increase in variable rent every third year, per the Port Authority Lease.

Contract Services expenses are projected to decrease in 2018 by $0.8 million or 7.4% compared to 2017. This is mainly due to the full year impact of cost savings associated to a new operating agreement for off dock empty depot in 2017. Going forward, an annual increase of 2% is assumed.

Other expenses for 2018–2020 are projected to increase by 13.5%, 11.1%, and 10.7% respectively. This is mainly due to volume and rate driven Equipment and Lashing expenses. In the longer term, these expenses are projected to increase 4.7% p.a., in-line with organic volume growth and annual rate increases.

Net Income is expected to increase by 8.7%, 22.8% and 51.2%, respectively, from $24.2M in 2018 to $44.9M in 2020. Over that same period depreciation is expected to increase by $6.8M due to significant capital expenditures to expand and upgrade the terminal facilities. Interest expenses increase by $2.7 due to the Series 2017 Bonds financing.

The Company has agreed under the Collateral Agency Agreement that it will maintain a minimum Debt Service Coverage Ratio of 1.10x, to be tested at the end of each Fiscal Year beginning with the fiscal year ending December 31, 2018. Below are the Independent Consultant’s projections of the Company’s Debt Service Coverage for the years 2018 – 2027. These projections were developed

based upon a review of the Company’s financial projections and the Independent Consultant’s forecast for the Company.

The Company’s Debt Service Coverage Ratio is projected to be 2.4x in 2018, 2.9x in 2019, 3.4x in 2020, 3.1x in 2021, 3.3x in 2022, 3.8x in 2023, 5.0x in 2024, 5.2x in 2025, 5.3x in 2026 and 6.5x in 2027. The slight decrease in the 2021 Debt Service Coverage Ratio is due to an increase in the period’s Total Debt Service. This increase is attributed to the Company beginning to make principal payments on the Series 2017 Bonds. In all subsequent years any projected growth of Total Debt Service is projected to be covered by the Company’s projected growth of Net Cash Flow.

All figures below are shown in USD thousands Source: Mercator International LLC

REPORT OF THE INDEPENDENT CONSULTANT

The Independent Consultant’s Report included as APPENDIX B hereto has been prepared by the Independent Consultant. The Independent Consultant’s Report describes some of the factors that may affect the volumes of trade in and out of the United States and the shippers’ decisions whether to ship cargo through a particular port.

Some of the factors considered by the Independent Consultant were (1) the expected rate of growth of economic activity in the U.S. and Canada and the relationship between economic growth and the volume of containerized shipping; (2) the size and proximity of the markets served by relevant ports; (3) the availability of capacity to efficiently handle the expected containerized trade flows; (4) the quality and capability of infrastructure, including the operational efficiency of the Terminal and competing ports or terminals, and their ability to handle the current and future ships in the relevant trades; and (5) the structure of the container shipping industry and the relationships between terminal operating companies and their ocean carrier customers.

Among the conclusions of the Independent Consultant are that:

• With nearly 30 million people living within 100 miles and over 50 million living within 200 miles, the Port is strategically positioned to optimally serve the largest local market on the U.S. East Coast.

• The capabilities of the Company, including the access channels that connect it to the ocean shipping lanes, are adequate to meet the needs of the market, to handle increasing levels of container traffic, and to efficiently serve the size of containerships that are expected to call at the Port, including ships with a capacity in excess of 14,000 TEUs.

• By virtue of being 50% owned by a subsidiary of MSC, which is the 2nd largest shipping line in the world and the largest carrier in the NY/NJ market, the Company has strong prospects for continued high levels of container traffic.

• Utilization of container handling capacity across the Port is set to rise, despite the capacity being added by the Company, which will contribute to rate and volume stability for container terminal operators at the Port.

• The Company has improved the efficiency of its operations over the last five years, reducing both labor hours per lift and cost per lift, and is positioned for further efficiency improvements upon completion of the ongoing development projects.

• Revenue per lift has risen over the last five years, which, along with falling unit costs and rising volume, has increased profit margins.

• The financial outlook for the Company appears strong, with EBITDA forecast to grow from approximately $53 million in FY2017 to approximately $100 million by 2020 and then to about $160 million by 2027. Overall growth in EBITDA from FY2017 through FY2047 is expected to be approximately 5.8% per annum.

• Based on of the foregoing estimate for future earnings, there is a high probability that the Company can service both its existing debt obligations and the anticipated bond debt.

PLAN OF FINANCE

Project Description

Proceeds of the Series 2017 Bonds will be used to finance a project (the “Project”) consisting of: (a) refunding the outstanding $125,000,000 New Jersey Economic Development Authority Special Facility Revenue Bonds (Port Newark Container Terminal LLC Project) Series 2003, consisting of the $62,500,000 Series 2003A and $62,500,000 Series 2003B (collectively, the “Series 2003 Bonds”); (b) financing a portion of the costs of expansion, renovation, construction and equipping of the Port Newark Container Terminal at Port Newark, including (i) construction and installation of new truck gate facilities and equipment, (ii) acquisition and installation of new customs and security technology, (iii) construction and installation of new comfort and customer service stations for truckers, (iv) construction and installation of new back-up power generation facilities, (v) demolition of two existing warehouses, (vi) expansion of the Terminal yard by 46 acres and renovation of approximately 34 acres of the Terminal yard, (vii) expansion and improvements to the yard electrical and lighting systems, (viii) expansion and improvements to the existing wharf and berths, (ix) acquisition and installation of new gantry cranes and straddle carriers, (x) construction and equipping an offsite depot, and (xi) various paving and improvements to existing facilities (collectively, the “2017 Facility”); (c) paying certain costs incurred in connection with the issuance of the Series 2017 Bonds (as hereinafter defined); and (d) funding a deposit to a debt service reserve fund securing the payment of principal and interest on the Series 2017 Bonds. The Company currently anticipates that the 2017 Facility will be completed in Q4 2020.

The Series 2003 Bonds were originally issued to finance: (i) the costs of the renovation, construction and equipping of the Terminal consisting of (a) the upgrading of the waterside crane beam, extension of the landside crane beam, and installation of new crane rails; (b) the removal, repair and/or upgrading of the existing pavement and the construction of new heavy duty pavement; (c) the construction of a new entry complex; (d) the construction or renovation of administration buildings and other ancillary buildings; (e) the removal or demolition of buildings and other structures not required by the Company; (f) the strengthening of berths; (g) the dredging of berths; (h) the upgrading of the

container yard utilities, reefer racks and conduits; (i) the installation of security systems for the entire Terminal; (j) the purchase and installation of additional piling; (k) the construction of new substations for the new high voltage system; (l) the installation of rail switches and removal and replacement of railroad tracks and ties; (m) the installation of traffic improvements; and (n) improvements to the Company’s rail yard (the “2003 Facility” and, together with the 2017 Facility, the “Facility”); (ii) paying interest accruing on the Series 2003 Bonds during construction of the 2003 Facility; and (iii) paying a portion of the costs incurred in connection with issuing the Series 2003 Bonds.

Working Capital Facility

On the Closing Date, the Company is also entering into a Credit Agreement with Wells Fargo Bank, National Association for a revolving working capital loan facility in an amount not to exceed $15,000,000.

ESTIMATED SOURCES AND USES

The following table sets forth the estimated sources and initial uses of funds in connection with the Series 2017 Bonds:

Estimated Sources(1) Par Amount of Series 2017 Bonds $286,260,000.00 Net Original Premium 16,092,294.90 Company Contribution 17,407,811.00 Total $319,760,105.90

Estimated Uses(1) Refunding of Series 2003 Bonds(2) $125,000,000.00 Deposit to Bonds Construction Account 124,459,635.80 Deposit to Series 2017 Debt Service Reserve Account 19,551,250.00 Deposit to Operating Reserve Account 17,407,811.00 Reimbursement to the Company(3) 28,902,420.00 Costs of Issuance(4) 4,438,989.10 Total $319,760,105.90 ______(1) Preliminary, subject to change. (2) The 2003 Bonds will be reemed on January 3, 2018. (3) Includes reimbursement for prior eligible Costs of the Project. (4) Includes Underwriter’s discount, legal, accounting and other financing expenses.

SECURITY AND SOURCE OF PAYMENT FOR THE SERIES 2017 BONDS

General

The Series 2017 Bonds will be issued pursuant to the constitution and laws of the State, particularly the Act, and will be secured under the Indenture. The Series 2017 Bonds will be special, limited obligations of the Issuer and payable from and secured by the Trust Estate and the funds and accounts held under the Indenture.

The Company is obligated under the Lease Agreement to pay or cause to be paid to the Trustee amounts sufficient to pay, when due, the principal of and the interest on the Series 2017 Bonds and other amounts required by the Indenture. The Company’s obligation to make such payments is secured by a

collateral assignment of and the grant of a lien on and security interest in the Collateral described below (which is shared with other Secured Creditors), which Collateral includes the Project Accounts (other than as set forth below). As additional security for the Series 2017 Bonds, pursuant to the Guaranty, the Company will unconditionally guarantee the payment to the Trustee of all amounts required for the full and prompt payment when due of the principal and redemption price, if any, of and interest on the Series 2017 Bonds.

Collateral

The Series 2017 Bonds and any other Obligations will be payable from the Trust Estate held by the Trustee in accordance with the terms of the Indenture and the Collateral held by the Collateral Agent in accordance with the terms of the Collateral Agency Agreement and pursuant to the other Collateral Documents. The payment of the Obligations will be secured by the Collateral. The Series 2017 Bonds will be secured by a security interest granted by the Issuer to the Trustee in the funds held by the Trustee in certain accounts under the Indenture. At the time of issuance of the Series 2017 Bonds, the Series 2017 Bonds, the Working Capital Loan Obligations, the existing Purchase Money Obligations and the existing Capital Lease Obligations will be the only Obligations of the Company. The principal of and interest on the Series 2017 Bonds will be payable from amounts on deposit in the Revenue Fund under the Collateral Agency Agreement. See “ACCOUNTS AND FLOW OF FUNDS—Flow of Funds—Revenue Fund.”

The Company may incur Additional Obligations to finance certain Costs of the Project, equipment purchases, improvements and repairs at the Terminal, and certain other expenditures identified in the Collateral Agency Agreement. Such Additional Obligations and certain other Additional Obligations that rank (and are secured by liens) on parity with the Series 2017 Bonds in the form of Additional Bonds or other types of Additional Obligations. The Company may also incur Subordinate Obligations for certain permitted uses. For additional information regarding the limitation on Additional Obligations and Subordinate Obligations, see “SECURITY AND SOURCE OF PAYMENT FOR THE SERIES 2017 BONDS – Additional Obligations” and “– Subordinate Obligations.” The Series 2017 Bonds, Working Capital Loan Obligations, Capital Lease Obligations, Additional Obligations, Subordinate Obligations and any other secured obligations of the Company are referred to collectively in this Official Statement as “Obligations.”

The payment of the Series 2017 Bonds will be secured by:

(a) certain accounts held by the Trustee pursuant to and subject to the Indenture and all funds deposited therein; except that the lien on each such account is for the benefit of bondholders under the Indenture, and not the holders of all Obligations; and

(b) a security interest in the Collateral pledged to the Collateral Agent, pursuant to the Collateral Agency Agreement, the Intercreditor Agreement and Security Agreement.

The Collateral is being pledged to the Collateral Agent by the Company pursuant to a Security Agreement, dated as of December 1, 2017 (the “Security Agreement”), between the Company and the Collateral Agent. The Security Agreement requires that the Company take all actions necessary to create, establish and perfect the liens on the Security Agreement Collateral. Further, the Company may not amend or terminate any lien granted to the Collateral Agent pursuant to the Security Agreement other than in accordance with the terms thereof without the prior written consent of the Collateral Agent.

The Collateral Agency Agreement provides for the creation of and deposits to the Project Accounts. A description of the Project Accounts can be found below under the heading “ACCOUNTS

AND FLOW OF FUNDS”. The Collateral Agency Agreement contains a number of special covenants of the Company which are described in APPENDIX E hereto.

The Collateral Agency Agreement contains a number of special covenants of the Company which are described in APPENDIX E hereto.

Indenture

Pursuant to the Indenture, the Issuer will, subject to certain terms and conditions, assign to the Trustee, as security for the payment of the Series 2017 Bonds and any Additional Bonds issued thereunder, the Trust Estate, including, without limitation, all Company Rent and certain other amounts receivable by or on behalf of the Issuer under the Lease Agreement or the Guaranty in respect of payment of all amounts due under the Series 2017 Bonds, and all moneys, investments and accounts from time to time held by the Trustee under the terms of the Indenture.

Source of Payment of Bonds; Limited Obligations

The Series 2017 Bonds constitute valid special, limited obligations of the Issuer, payable solely from and secured exclusively by the Trust Estate (including the Collateral), including the payments to be made by the Company under the Lease Agreement and the Guaranty, and nothing in the Series 2017 Bonds or the Indenture shall be construed as assigning or pledging therefor any other funds or assets of the Issuer.

The Series 2017 Bonds will not be secured by any interest of the Port Authority in the Terminal, or by any other property, including any leasehold interest or other interest of the Port Authority in the Terminal, or by any revenues derived by the Port Authority from the operation of the Terminal or otherwise. Further, neither the City nor the Port Authority shall have any obligation whatsoever with respect to the Series 2017 Bonds.

Additional Bonds

Subject to the restrictions in the Collateral Agency Agreement described under “– Additional Obligations” below, upon request by the Company, the Issuer may issue Additional Bonds, which shall be ratably and equally secured by the Trust Estate, upon execution of a Supplemental Indenture without consent of the Owners of the Bonds. Except to the extent inconsistent with the express terms of the Additional Bonds issued and the related Supplemental Indenture, all of the provisions, terms, covenants and conditions of the Indenture shall be applicable to any Additional Bonds issued. See “– Additional Obligations” below.

Events of Default

The occurrence of any of the following events is defined as and declared to be and to constitute an Event of Default under the Indenture:

(a) failure to pay any portion of the principal of or redemption price, on any Outstanding Series 2017 Bonds when due and payable;

(b) failure to pay any portion of interest on any Outstanding Series 2017 Bonds within ten (10) Business Days after such interest payment is due and payable;

(c) failure to pay the purchase price of any Outstanding Series 2017 Bonds required to be purchased in accordance with its terms;

(d) failure by the Issuer to cure any noncompliance with any other provision of the Indenture within sixty (60) days after receiving written notice of such noncompliance from the Trustee or the Collateral Agent (with a copy to the Company and the Collateral Agent or Trustee, as applicable) with respect to the Series 2017 Bonds;

(e) an “Event of Default” under the Lease Agreement or any other Bond Document shall have occurred and be continuing; and

(f) the occurrence and continuance, with respect to the Issuer, of an Act of Bankruptcy.

Remedies

At any time during which an Event of Default has occurred and is continuing, the Owners of not less than a majority of the aggregate principal amount of Outstanding Series 2017 Bonds shall have the right to give the Trustee one or more enforcement directions directing the Trustee, upon being indemnified to its satisfaction, to exercise all remedies available to it at law or in equity, including the following actions on behalf of the Bondholders:

(i) if such Event of Default as described under subsections (a), (b) or (c) under “– Indenture – Events of Default” immediately above has occurred and is continuing, without further demand or notice, request the Collateral Agent to transfer moneys to the Series 2017 Interest Account or Series 2017 Principal Account, as applicable, as provided in the Collateral Agency Agreement; and

(ii) for all Events of Default, subject to the paragraph immediately below, subject to the Intercreditor Agreement and the Collateral Agency Agreement, take whatever action at law or in equity may appear necessary or desirable to enforce the rights of the Owners (including in respect of the Trust Estate), and the Trustee shall deposit any moneys received as a result of such action in the Series 2017 Interest Account or Series 2017 Principal Account, as applicable.

Upon the occurrence and during the continuance of an Event of Default, if so instructed by the Owners of not less than a majority of the aggregate principal amount of Outstanding Series 2017 Bonds, the Trustee, subject to the immediately succeeding provisos, and subject to it being indemnified to its satisfaction, shall declare all Series 2017 Bonds, all interest accrued and unpaid thereon, and all other amounts payable in respect thereof to be due and payable, whereupon the same shall become immediately due and payable without presentment, demand, protest or further notice of any kind, all of which are

waived by the Issuer; provided that the Series 2017 Bonds may be accelerated pursuant to this paragraph only to the extent the obligations under the Lease Agreement or Guaranty shall have been accelerated.

The Majority Holders may, by written notice to the Trustee, on behalf of all of the Owners, rescind any acceleration and its consequences if such rescission would not conflict with any judgment or decree and if all existing Events of Default (except nonpayment of principal, interest or premium that has become due solely because of the acceleration) have been cured or waived and the Issuer has paid or deposited, or caused to be paid or deposited, with the Trustee a sum sufficient to pay all sums paid or advanced by the Trustee under the Indenture and the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel. In case of any such rescission, then and in every such case the Issuer, the Trustee and the Owners shall be restored to their former positions and rights.

After an acceleration as described above, moneys received by the Trustee from the Collateral Agent pursuant to and in accordance with the Collateral Agency Agreement, the Indenture, the Intercreditor Agreement and the other Collateral Documents in respect of the Issuer’s obligations under the Indenture shall be applied first to pay the reasonable and proper fees, costs and expenses (including the reasonable fees and expenses of counsel) of and indemnification payments owing to the Trustee pursuant to and in accordance with the Financing Documents, including those incurred in connection with the exercise of remedies following such Event of Default, and thereafter remaining amounts shall be applied promptly by the Trustee as follows:

First, to the payments then due and payable by the Company to the Series 2017 Rebate Fund; Second, ratably, to all accrued and unpaid interest on the Series 2017 Bonds; Third, ratably, to the outstanding principal amount on the Series 2017 Bonds; and Fourth, to the Company, upon termination, expiration or payment in full of all commitments, any surplus to be applied at the Company’s discretion in accordance with the Collateral Agency Agreement and the other Financing Documents.

Lease Agreement

Pursuant to the Lease Agreement, the Company agrees to make payments to the Issuer in such amounts and at such times as are sufficient to pay in full, when due, the principal of, premium, if any, and interest on the Series 2017 Bonds. Pursuant to the Indenture, the Lease Agreement (with certain reservations) has been assigned by the Issuer to the Trustee, and consequently, the Company will make the Company Rent directly to the Trustee. See APPENDIX E hereto for a further description of the Company Rent.

Unconditional Obligation

The obligations of the Company to make or direct the Collateral Agent to make the payments required by the Lease Agreement shall be absolute and unconditional, without defense or set-off by reason of any default by the Issuer under the Lease Agreement or any default under any other agreement between the Company and the Trustee, the Port Authority, the Issuer or any other person or for any other reason, including, without limitation, any acts or circumstances that may constitute failure of consideration or failure to perform and observe any agreement, whether express or implied, or any duty, liability or obligation arising out of or connected with the Lease Agreement, the Basic Lease or the Port Authority Lease, it being the intention of the parties that all payments due under the Lease Agreement will be paid in full when due without any delay and will be received by the Issuer or the Trustee, as the case may be, as a net sum without deductions, abatements, diminution or set-off of any kind whatsoever. Until such time as the principal of, premium, if any, and interest on the Series 2017 Bonds shall have

been fully paid, or provision for the payment thereof shall have been made in accordance with the Indenture, the Company: (a) will not suspend or discontinue any payments provided for under the Lease Agreement; (b) will perform and observe all of its other agreements contained in the Lease Agreement; and (c) will not terminate the Lease Agreement for any cause, including, without limiting the generality of the foregoing, failure to complete the 2017 Facility, the occurrence of any act or circumstance that may constitute failure of consideration, destruction of or damage to the 2017 Facility, commercial frustration of purpose, any change in the tax laws of the United States or of the State or any political subdivision of either of these or any failure of the Issuer or the Trustee to perform and observe any agreement, whether express or implied, or any duty, liability or obligation arising out of or connected with the Lease Agreement or the Indenture, except to the extent permitted by the Lease Agreement.

Covenants

Condition of the Terminal. The Company shall at all times preserve and protect the Terminal in good repair, working order and safe condition, and from time to time will make, or will cause to be made, all needed and proper repairs, renewals, replacements, betterments and improvements thereto including those required after a casualty loss, to the extent required by the Port Authority Lease or the Lease Agreement. The Company shall pay or cause to be paid all operating costs, utility charges and other costs and expenses arising out of the possession, use or operation of the Terminal.

Compliance with Laws. The Company shall operate or cause the Terminal to be operated as an authorized project for a purpose and use as provided for under the Act until the expiration or earlier termination of the Lease Agreement. Unless otherwise directed by the Port Authority pursuant to the express provisions of the Port Authority Lease, the Company shall comply in all material respects with all laws, ordinances and regulations, including, without limitation, all zoning and environmental laws (except to the extent such compliance is the responsibility of the Port Authority pursuant to the terms of the Port Authority Lease), ordinances and regulations, of any duly constituted authority which if not complied with, could reasonably be expected to materially adversely affect the Terminal or the use thereof.

Covenants with Respect to the Port Authority Lease. Promptly following the execution by the Company of any material amendment, supplement or modification to the Port Authority Lease, the Company shall deliver a true copy of such material amendment, supplement or modification to the Issuer and the Trustee. The Company shall promptly transmit to the Issuer and the Trustee copies of any termination or default notice it shall receive or deliver under the Port Authority Lease. The Company agrees to comply in all material respects with and perform all of its covenants and obligations set forth in the Port Authority Lease.

Maintain Existence; Covenant Against Sale and Removal. The Company shall maintain its existence as a limited liability company and shall not sell, assign, transfer or otherwise dispose of (whether in one transaction or in a series of transactions) substantially all of its assets without the prior written consent of the Issuer, which consent shall not be unreasonably withheld, delayed or conditioned; provided however that the Company may merge with or into or consolidate with another entity or sell, assign, transfer or otherwise dispose of (whether in one transaction or in a series of transactions) substantially all of its assets, and the Lease Agreement may be transferred pursuant to such merger, consolidation, sale, assignment, transfer or other disposition without obtaining such consent provided (a) the Company causes the proposed surviving, resulting or transferee company (the “Surviving Entity”) to furnish the Issuer and the Trustee with a Change of Ownership Information Form; (b) the net worth of the Surviving Entity following the merger, consolidation or transfer is at least 95% of the net worth of the Company immediately preceding the merger, consolidation or transfer; (c) any litigation or investigation in which the Surviving Entity or its officers and directors are involved, and any court, administrative or other orders to which the Surviving Entity or its officers and directors are subject, relate to matters

assumed from the Company or arising in the ordinary course of business; (d) the Issuer receives a Favorable Opinion of Bond Counsel and an opinion of Bond Counsel that the merger, consolidation or transfer will not cause a reissuance of the Series 2017 Bonds; (e) the Surviving Entity assumes in writing the obligations of the Company under the Lease Agreement, the Consent and the Port Authority Lease; (f) after the merger, consolidation or transfer, the Facility shall be operated as an authorized project under the Act; (g) no event of default by the Company under any Bond Document or the Port Authority Lease has occurred and is continuing; and (h) such merger, consolidation or transfer will not cause the Company to be in default under the Port Authority Lease.

Construction. The Company will proceed with due diligence to complete construction of the 2017 Facility pursuant to the Lease Agreement. In the event of a material default of any contractor or subcontractor under any contract made by it in connection with any repair or improvement or in the event of a material breach of warranty with respect to any materials, workmanship or performance guaranty, the Company will, to the extent commercially reasonable, promptly proceed either separately or in conjunction with others, to exhaust the remedies against the contractor or subcontractor so in default and against each such surety for the performance of such contract. The Company agrees to advise the Issuer of the steps it intends to take in connection with any such default.

Additional Covenants. The Lease Agreement contains a number of additional affirmative and negative covenants which are described in APPENDIX E hereto.

Events of Default

The occurrence of any of the following events is defined as and declared to be and to constitute an Event of Default under the Lease Agreement:

(a) any material representation or warranty by or on behalf of the Company made in the Lease Agreement or in any report, certificate, financial statement or other instrument furnished in connection with the Lease Agreement shall prove to have been false or misleading in any material respect when made;

(b) default in the payment of principal of, premium, if any, or interest on the Series 2017 Bonds when due;

(c) except as provided in subsection (b) above, default in the due payment of any other amounts or in the due observance or performance of any other covenants, conditions or agreements on the part of the Company required to be observed or performed pursuant to the terms of the Lease Agreement or pursuant to any certificate or other instrument furnished in connection with the Lease Agreement, including the Administration Expense Guaranty, and such default shall continue unremedied for thirty (30) days after written notice thereof to the Company from the Issuer or the Trustee, provided that if said default is such that it cannot be corrected within such period it shall not constitute an Event of Default if corrective action is instituted by the Company within such period and diligently pursued until the default is corrected, and provided further that in no event shall the failure of the Company to comply with its secondary market disclosure obligations under the Lease Agreement be deemed to constitute an Event of Default thereunder;

(d) the occurrence of any Event of Default under the Indenture;

(e) the occurrence of an Act of Bankruptcy of the Company;

(f) if the Company voluntarily abandons the Terminal or otherwise ceases operations at the Terminal and, without reasonable cause, fails, for sixty (60) consecutive days, to take reasonable action to end such abandonment or cessation; provided that this clause shall not apply if the Company abandons the Terminal or ceases operations at the Terminal in connection with any strike, boycott, labor dispute, embargo, shortage of materials, act of God, act of a public enemy, act of governmental authority, weather condition, tide, riot, rebellion, sabotage or any other circumstance that is not within the Company’s control;

(g) a final, non-appealable judgment is entered against the Company for the payment of money in excess of $15,000,000 (to the extent not paid or covered by insurance or indemnities as to which the insurer or indemnity has been, or promptly will be, notified of such judgment and the applicable insurance company or indemnity has not denied coverage thereof) as a result of the possession, ownership, control, operation or financing of the Terminal, if such judgment remains unsatisfied without any procurement of a stay of execution or is not otherwise vacated or discharged within sixty (60) days from the date of entry thereof; or

(h) any Collateral Document, except in accordance with its terms or as permitted pursuant to the terms of the Bond Documents, ceases to be effective to grant a perfected lien on a material portion of the Collateral (as defined therein), or any Bond Document to which the Company is a party ceases to be in full force and effect, and such event continues for thirty (30) days after the Company receives notice of such event from the Trustee or the Collateral Agent.

Remedies

Upon the occurrence of an Event of Default under the Lease Agreement, and at any time thereafter during the continuance of such Event of Default, the Issuer and/or the Trustee, as assignee of the Issuer, may take one or more of the following remedial steps:

(a) subject to certain terms of the Indenture, in the case of a default in the payment of principal of or interest on the Series 2017 Bonds when due, declare the entire unpaid amount payable under the Lease Agreement to be immediately due and payable forthwith, whereupon such amount shall become forthwith due and payable, without presentment, demand, protest, or other notice of any kind, all of which are hereby expressly waived, anything contained in the Lease Agreement or elsewhere to the contrary notwithstanding;

(b) subject to certain terms of the Indenture, take any action at law or in equity to collect the payments then due and thereafter to become due under the Lease Agreement or to enforce performance and observance of any obligation, agreement or covenant of the Company under the Lease Agreement;

(c) pursuant to the terms of the Intercreditor Agreement and the Collateral Agency Agreement, direct the Collateral Agent to take or cause to be taken any and all actions necessary to implement any available remedies with respect to the Collateral under any of the Collateral Documents;

(d) have reasonable access to and inspect, examine and make copies of the books and records and any and all accounts, data and income tax and other tax returns of the Company during regular business hours of the Company and following prior reasonable notice;

(e) take on behalf of the Bondholders whatever other action at law or in equity as may appear necessary or desirable to collect the amounts then due and thereafter to become due, or to enforce performance and observance of any obligation, agreement or covenant of the Company under the Lease Agreement or the rights of the Bondholders, in each case subject to the terms of the Intercreditor Agreement; or

(f) discontinue disbursement of any portion of the Series 2017 Bond proceeds.

For a summary of additional remedies in the Lease Agreement, see APPENDIX E hereto.

Guaranty Agreement

The owners of the Series 2017 Bonds are also entitled to the benefits of the Guaranty from the Company to the Trustee under which the Company unconditionally guarantees to the Trustee, for the benefit of the owners of the Series 2017 Bonds, the full and prompt payment of the principal and redemption price, if any, of and interest on the Series 2017 Bonds when and as any of the same become due and payable as provided in the Indenture. The obligations of the Company under the Guaranty are intended to be independent of those set out in the Lease Agreement and to be enforceable without regard to the validity or enforceability of the Lease Agreement or any obligation of the Company contained therein. However, a bankruptcy court could limit a claim against the Company under both the Lease Agreement and the Guaranty. See “BONDOWNERS' RISKS – Certain Considerations Under the United States Bankruptcy Code with Respect to the Lease Agreement and the Guaranty” herein.

Special Covenants Under the Collateral Agency Agreement

Rate Covenant

In the Collateral Agency Agreement, the Company has agreed, beginning with the Fiscal Year ending December 31, 2018, to (a) establish, fix, set and collect rates, fees, rentals and charges in connection with the Terminal and for services rendered by the Company in connection with the Terminal and (b) conduct and maintain its operations so that (1) the Company has funds to pay all Operating Expenses and (2) the Debt Service Coverage Ratio, calculated at the end of each Fiscal Year, will not be less than 1.10x as certified by the Company to the Collateral Agent not later than five days after the delivery of the Annual Report pursuant to the Continuing Disclosure Agreement.

Failure to achieve the Debt Service Coverage Ratio described above in any Fiscal Year shall not constitute an “Event of Default” under the Collateral Agency Agreement as long as in the event the Debt Service Coverage Ratio is not achieved in any Fiscal Year, the Company will retain and direct an Independent Consultant to make recommendations as to the revision of the Company’s business operations and its schedule of rates, fees, rentals and charges for the use of the Terminal and for services rendered by the Company in connection with the Terminal, and after receiving such recommendations or giving reasonable opportunity for such recommendations to be made the Company shall take all commercially reasonable measures to revise the schedule of rates, fees, rentals and charges as may be necessary to achieve such Debt Service Coverage Ratio or, if in the opinion of the Independent Consultant the attainment of such Debt Service Coverage Ratio is impracticable, to the highest Debt Service Coverage Ratio attainable. The Company will be obligated to implement such recommendations to the extent such recommendations are commercially reasonable and are not prohibited or restricted by applicable Law, accounting policies or contractual obligations (so long as such contractual obligations were not entered into in contemplation of such recommendation).

Annual Forecast and Maintenance Plan

On or prior to December 20 of each Fiscal Year beginning with the first full Fiscal Year after the Closing Date, the Company shall submit the Annual Forecast and the Maintenance Plan for the next succeeding Fiscal Year to the Trustee and the Collateral Agent, provided, however, that the Company shall submit the initial Annual Forecast and a Maintenance Plan on the Closing Date. The Company shall use commercially reasonable efforts, consistent with normal operations and maintenance requirements, to operate and maintain the Project, or cause the Project to be operated and maintained, substantially in accordance with the Annual Forecast and the Maintenance Plan; provided, that the Collateral Agent shall have no duty to monitor such operations and maintenance; provided, further that the Company may, from time to time, revise the Annual Forecast and/or the Maintenance Plan, as applicable, as may be reasonably necessary to address changes to (i) in the case of the Annual Budget, the projected Revenues and Operating Expenses for the Fiscal Year and (ii) in the case of the Maintenance Plan, the projected major capital expenditures and repairs for the next succeeding five Fiscal Years. Any such revised Annual Forecast or revised Maintenance Plan shall be submitted to the Trustee and the Collateral Agent promptly after completion thereof, and any reference to Annual Forecast or Maintenance Plan in the Collateral Agency Agreement or in any other Document shall refer to such Annual Forecast or Maintenance Plan as so revised.

No Encumbrances

The Company shall not create, incur, assume or permit to exist or be created or permit any Lien with respect to the Collateral or assign, pledge or in any way transfer or encumber its rights to receive income from the Terminal, while any Parity Obligation or Subordinate Obligation is outstanding, except for Permitted Liens. For the avoidance of doubt, the Company shall not grant any leasehold mortgage to any Person while any Parity Obligation or Subordinate Obligation is outstanding.

Capital Expenditure Plan

On or prior to November 30, 2029 (or such later date as specified in the Port Authority Lease), the Company shall have made an aggregate amount of at least $500,000,000 (or such lesser amount as the Port Authority may elect to accept without reducing the Extended Term) of certain qualifying expenditures for the construction of capital improvements and the acquisition and installation or placement of capital fixtures, equipment or other capital items at the Terminal, and reasonably promptly after making such qualifying expenditures in such amount, the Company shall exercise the option to extend the term of the Port Authority Lease for the Extended Term.

Additional Obligations

The Company has agreed to not incur any obligations or indebtedness, having a Lien on the Collateral except for Additional Obligations. Additional Obligations may only be issued for the following purposes:

(a) to pay costs of completing and equipping the 2017 Facility in an amount not to exceed 10% of the Costs of the Project subject to receipt by the Collateral Agent of a certification from the Independent Consultant that the proceeds of such Additional Obligations will be sufficient to complete the Project;

(b) to pay costs of acquiring additional equipment for use at the Terminal;

(d) to refund outstanding Series 2017 Bonds, provided, that in the case where only a portion of the outstanding Series 2017 Bonds is refunded, (A) the Maximum Annual Debt Service with respect to Parity Obligations (after giving effect to the issuance of Additional Obligations) is no greater than the Maximum Annual Debt Service before the issuance of such Additional Obligations and (B) the final maturity of the Additional Obligations is no later than the final maturity of the Series 2017 Bonds;

(e) to refund outstanding Parity Obligations (other than the Series 2017 Bonds), provided, that in the case where only a portion of such outstanding Parity Obligations is refunded, (A) the Maximum Annual Debt Service with respect to Parity Obligations (after giving effect to the issuance of Additional Obligations) is no greater than the Maximum Annual Debt Service with respect to the existing Parity Obligations being refunded before the issuance of such Additional Obligations and (B) the final maturity of the Additional Obligations is no earlier than the final maturity of the existing Parity Obligations;

(f) to pay costs of terminating Interest Hedging Agreements; and

(g) to pay costs of issuing such Additional Obligations, to make deposits to the applicable Debt Service Reserve Accounts and to pay capitalized interest and other costs reasonably related to such Additional Obligations.

As a condition to the issuance of an Additional Obligation, the Company shall deliver to the Collateral Agent a certificate, dated as of a date between the date of pricing the Additional Obligations being issued and the date of delivery of such Additional Obligations (both dates inclusive), prepared in good faith by a financial officer of the Company showing that either:

(i) Net Cash Flow for any twelve (12) consecutive months of the 18 months immediately preceding the date of issuance of the Additional Obligations as calculated in good faith by a financial officer of the Company was at least 1.50 times the Maximum Annual Debt Service with respect to all existing Parity Obligations and Subordinate Obligations and any Additional Obligations being issued; or

(ii) (A) Net Cash Flow for the twelve (12) months immediately preceding the date of issuance of the Additional Obligations as calculated in good faith by a financial officer of the Company was at least 1.20 times the Maximum Annual Debt Service with respect to all existing Parity Obligations and Subordinate Obligations and any Additional Obligations being issued; and (B) Net Cash Flow in any of the first five (5) years after the issuance of the Additional Obligations as projected by the Independent Consultant will be at least 1.60 times the projected Maximum Annual Debt Service on all existing Parity Obligations and Subordinate Obligations and any Additional Obligations being issued.

Subordinate Obligations and Shareholder Loans

The Company is permitted to incur (A) Subordinate Obligations that are payable from available funds in the Subordinate Obligations Fund, provided that (i) such Subordinate Obligations may only be issued to refund Parity Obligations or Subordinate Obligations or to finance capital projects at the Terminal; (ii) the Subordinate Obligations provide that they may not be accelerated unless and until the then-outstanding Parity Obligations have been accelerated; and (iii) so long as any Parity Obligations are

outstanding, no remedies may be exercised by the holders of the Subordinate Obligations or by a trustee for the benefit of such holders (and if a default or Event of Default has occurred and is continuing, no payments may be made to such holders until the Parity Obligations are paid), except that the Subordinate Obligations may be accelerated if the Parity Obligations have been accelerated and the holders thereof or trustee may make a claim in any bankruptcy or similar proceeding or (B) Shareholder Loans.

Capital Leases

Any equipment that serves as collateral for any Capital Lease Obligation or Purchase Money Obligation is Excluded Collateral and therefore does not secure the payment of Debt Service on the Series 2017 Bonds.

The Company has multiple capital lease arrangements for stevedoring equipment with terms expiring on various dates through April 2026. During 2015, the Company financed the purchase of three ship-to-shore gantry cranes by issuing a $30.7 million note payable to the supplier (the note requires a quarterly payment of $1.2 million, which includes principal and interest, has a maturity date of April 30, 2023 and carries a 6.0 percent annual interest rate). See the financial statements in “APPENDIX C” for further details regarding the Company’s equipment financing.

Intercreditor Agreement

General

On the Closing Date, the Company, U.S. Bank National Association, as Trustee, Parity Lien Agent, and Collateral Agent and the Working Capital Loan Provider will enter into the Intercreditor Agreement. The Intercreditor Agreement sets forth the rights and remedies with respect to the Collateral securing the Parity Lien Obligations, Subordinate Obligations and Working Capital Loan Obligations.

Priority of Liens Securing Obligations

A Lien or purported Lien on Collateral (other than Working Capital Collateral) securing, or purportedly securing, any Parity Lien Obligation will at all times rank (i) senior in right of payment, in right of security and in all other respects to a Lien on such Collateral securing, or purportedly securing, any Subordinate Obligation and (ii) pari passu in right of payment, in right of security and in all other respects to a Lien on such Collateral securing, or purportedly securing, any other Parity Lien Obligation, without any preference or priority among the Parity Lien Claimholders except as expressly provided in the Intercreditor Agreement.

A Lien or purported Lien on Collateral (other than Working Capital Collateral) securing, or purportedly securing, any Subordinate Obligation will at all times rank (i) junior and subordinate in right of payment, in right of security and in all other respects to a Lien on such Collateral securing, or purportedly securing, any Parity Lien Obligation and (ii) pari passu in right of payment, in right of security and in all other respects to a Lien on such Collateral securing, or purportedly securing, any other Subordinate Obligation, without any preference or priority among the Subordinate Claimholders except as expressly provided in the Intercreditor Agreement.

A Lien or purported Lien on Working Capital Collateral securing, or purportedly securing, any Working Capital Loan Obligation will at all times rank (i) senior in right of payment, in right of security and in all other respects to a Lien on such Working Capital Collateral securing, or purportedly securing, any Parity Lien Obligation or Subordinate Obligation and (ii) pari passu in right of payment, in right of security and in all other respects to a Lien on such Working Capital Collateral securing, or purportedly

securing, any other Working Capital Loan Obligation, without any preference or priority among the Working Capital Loan Claimholders except as expressly provided in the Intercreditor Agreement.

A Lien or purported Lien on Working Capital Collateral securing, or purportedly securing, any Parity Lien Obligation will at all times rank (i) junior and subordinate in right of payment, in right of security and in all other respects to a Lien on such Working Capital Collateral securing, or purportedly securing, any Working Capital Loan Obligation, (ii) pari passu in right of payment, in right of security and in all other respects to a Lien on such Collateral securing, or purportedly securing, any other Parity Lien Obligation, without any preference or priority among the Parity Lien Claimholders except as expressly provided in the Intercreditor Agreement and (iii) senior in right of payment, in right of security and in all other respects to a Lien on such Working Capital Collateral securing, or purportedly securing, any Subordinate Obligation.

Subordination of Subordinate Obligations

Each Subordinate Claimholder will agree in the Intercreditor Agreement that the payment of all Subordinate Obligations is subordinated in right of payment, to the prior payment in full in cash of all Senior Obligations (whether outstanding on the date of the Intercreditor Agreement or thereafter created, incurred, assumed or guaranteed), and that the subordination is for the benefit of and enforceable by each Senior Claimholder.

Notwithstanding the immediately preceding paragraph, each Subordinate Claimholder may retain Permitted Subordinate Payments; provided, however, that each such Subordinate Claimholder further agrees that no Permitted Subordinate Payment may be retained by such Subordinate Claimholder if, either at the time of such payment or after giving effect thereto, a default or event of default under the Senior Obligations has occurred and is continuing; provided, further, that the Subordinate Claimholders may resume receipt of Permitted Subordinate Payments (including any Permitted Subordinate Payments missed due to the application of the immediately preceding proviso unless such payments have been previously capitalized as part of the Subordinate Obligations) in respect of any Subordinate Obligations and the Subordinate Claimholders may retain such payments, so long as no default or event of default under the Senior Obligations exists or following the discharge of the Senior Obligations.

Until the Discharge of Senior Obligations has occurred, the Company may not make, and no Subordinate Claimholder may sue for, demand, receive, accept or retain, any payment or distribution in respect of Subordinate Obligations.

Prohibition on Contesting Liens

Class and Intercreditor Voting

With respect to any Parity Lien Obligations, a “class” under the Intercreditor Agreement means all Parity Lien Obligations that arise pursuant to the same Parity Lien Documents. The Parity Lien Document for each class of Parity Lien Obligations will set forth the requisite percentage of Secured Parties under such class of Parity Lien Obligations whose approval or consent will be required for an affirmative vote by such class with respect to any matters specified in the Intercreditor Agreement to be subject to class voting as well as the procedures governing any such approval or consent process.

In connection with any vote of the Required Parity Lien Claimholders, (i) any Parity Lien Obligations held by an Affiliate of the Company will not be entitled to vote and will be excluded from both the numerator and denominator of the calculation described in the definition of Required Parity Lien Claimholders and (ii) any outstanding Parity Lien Obligations constituting a bond or similar security that does not vote affirmatively or negatively in connection with any decision within the prescribed period for such vote in accordance with the procedure set forth in the Intercreditor Agreement will be excluded from both the numerator and the denominator of the calculation described in the definition of Required Parity Lien Claimholders.

Acceleration

The Parity Lien Document for each class of Parity Lien Obligations will set forth the requisite percentage of Secured Parties (which in all cases shall be not less than 50%) under such class that may, during the continuance of any Event of Default under such Parity Lien Document, accelerate such class of Parity Lien Obligations in accordance with the terms thereof.

Notwithstanding anything in the Intercreditor Agreement to the contrary, no rights of the Parity Lien Claimholders under any class of Parity Lien Obligations to accelerate such class of Parity Lien Obligations following an Event of Default will be limited by the Intercreditor Agreement to the extent such acceleration is otherwise permitted under the applicable Parity Lien Document.

Modification of Obligations

Except as otherwise expressly provided in the Intercreditor Agreement, the Obligations may be modified in accordance with their respective terms, and their aggregate amount increased or Refinanced, without notice to or consent by any other Claimholder, provided that, to the extent such Refinancing debt is secured by any of the Collateral, the holders of any such Refinancing debt (or their agent) bind themselves in a writing addressed to the other Claimholders to the terms of the Intercreditor Agreement.

Enforcement

Pursuant to the Intercreditor Agreement, until the Discharge of the Parity Lien Obligations, the Parity Lien Agent (acting at the direction of the Required Parity Lien Claimholders) will have the exclusive right to instruct the Collateral Agent with regards to: (i) commencing and maintaining an Enforcement Action (other than an Enforcement Action with respect to the Working Capital Collateral), (ii) making determinations regarding the release or Disposition of, or restrictions with respect to, the Collateral (other than the Working Capital Collateral), (iii) otherwise enforcing the rights and remedies of a secured creditor under the UCC and the Bankruptcy Laws of any applicable jurisdiction with respect to the Collateral (other than the Working Capital Collateral), and (iv) any instructions required to be made by the “Required Agent” under the Collateral Documents with respect to the actions set forth in the foregoing subclauses (i), (ii) and (iii). Any Proceeds received by Parity Lien Agent in excess of those necessary to achieve Discharge of the Parity Lien Obligations shall be distributed in accordance with the UCC and applicable law, subject to the terms and conditions of the Intercreditor Agreement and the Collateral Agency Agreement.

Pursuant to the Intercreditor Agreement, until the Discharge of the Working Capital Loan Obligations, the Working Capital Loan Provider will have the exclusive right to instruct the Collateral Agent with regards to: (i) commencing and maintaining an Enforcement Action with respect to the Working Capital Collateral, (ii) making determinations regarding the release or Disposition of, or restrictions with respect to, the Working Capital Collateral, (iii) otherwise enforcing the rights and remedies of a secured creditor under the UCC and the Bankruptcy Laws of any applicable jurisdiction with respect to the Working Capital Collateral, and (iv) any instructions required to be made by the

“Required Agent” under the Collateral Documents with respect to the actions set forth in the foregoing subclauses (i), (ii) and (iii). Any Proceeds received by the Working Capital Loan Provider in excess of those necessary to achieve Discharge of the Working Capital Loan Obligations shall be distributed in accordance with the UCC and applicable law, subject to the terms and conditions of the Intercreditor Agreement and the Collateral Agency Agreement.

Until the Discharge of all Senior Obligations, no Subordinate Claimholder shall: (i) initiate any Enforcement Action (whether with respect to any Collateral or otherwise) or (ii) initiate or join any involuntary Insolvency Proceeding against the Company unless a Senior Claimholder shall have initiated an Enforcement Action or joined any involuntary Insolvency Proceeding, as applicable.

Manner of Exercise

The Parity Lien Agent shall be the only Person permitted to instruct the Collateral Agent to take Enforcement Actions on behalf of Parity Lien Claimholders with respect to the Collateral (excluding the Working Capital Collateral). Following the Parity Lien Agent’s delivery of notice of an Event of Default to the Collateral Agent and the Parity Lien Claimholders, the Parity Lien Agent shall convene a vote of the Parity Lien Claimholders in respect of any proposed Enforcement Actions (other than any Enforcement Actions with respect to the Working Capital Collateral), and, at and upon the direction of the Required Parity Lien Claimholders, instruct the Collateral Agent to take any such Enforcement Action.

The Working Capital Loan Provider shall be the only Person permitted to instruct the Collateral Agent to take Enforcement Actions with respect to the Working Capital Collateral.

Application of Proceeds

Until the Discharge of Parity Lien Obligations, and regardless of whether an Insolvency Proceeding has been commenced, Collateral (other than Working Capital Collateral) or Proceeds thereof received in connection with an Enforcement Action (other than an Enforcement Action with respect to the Working Capital Collateral) will be applied: (1) prior to the Discharge in full of the Series 2017 Bonds and all amounts payable with respect thereto, as set forth in paragraphs first through fifth described under “ACCOUNTS AND FLOW OF FUNDS – Application of Proceeds Following an Enforcement Action” and (2) thereafter, to the payment in full, in cash, of all Parity Lien Obligations, as specified in the Parity Lien Documents or as otherwise determined by the relevant Parity Lien Claimholders.

Until the Discharge of Senior Obligations, and regardless of whether an Insolvency Proceeding has been commenced, Working Capital Collateral or Proceeds thereof received in connection with an Enforcement Action with respect thereto will be applied: (1) prior to the Discharge in full of the Working Capital Loan Obligations, to the payment in full in cash of all Working Capital Loan Obligations as specified in the Working Capital Loan Documents; and (2) thereafter, after reimbursement of the Collateral Agent and the Parity Lien Agent for payment of any reasonable fees and expenses (including reasonable attorneys’ fees and expenses) in accordance with the terms of the Security Agreement and the Collateral Agency Agreement to the payment in full, in cash, of all Parity Lien Obligations, as specified in the Parity Lien Documents or as otherwise determined by the relevant Senior Claimholders.

ACCOUNTS AND FLOW OF FUNDS

Funds and Accounts under the Indenture

The following funds will be established and created under the Indenture in the name of the Trustee:

(a) The Series 2017 Debt Service Fund; and within the Series 2017 Debt Service Fund:

(i) the Series 2017 Interest Account;

(ii) the Series 2017 Principal Account; and

(iii) the Series 2017 Redemption Account.

(b) The Series 2017 Rebate Fund.

For a summary of the funds and accounts listed above, see APPENDIX E hereto.

Project Accounts under the Collateral Agency Agreement

The following Project Accounts will be established and created under the Collateral Agency Agreement in the name of the Collateral Agent (the Project Accounts set forth below, including any additional accounts or sub-accounts established and created pursuant to the terms of the Collateral Agency Agreement therein, collectively, the “Securities Accounts”):

(a) the Construction Fund, and within the Construction Fund:

(i) the Bonds Construction Account; and

(ii) the Equity Construction Account;

(b) the Revenue Fund;

(i) the Interest Payment Account;

(ii) the Capital Lease Payment Account;

(iii) the Principal Payment Account; and

(iv) the Purchase Money Payment Account;

(d) the Debt Service Reserve Fund, and with the Debt Service Reserve Fund, the Series 2017 Debt Service Reserve Account;

(e) the Operating Reserve Fund;

(f) the Major Maintenance Reserve Fund;

(g) the Subordinate Obligations Fund;

(h) the Residual Fund; and

(i) the Loss Proceeds Fund.

In addition, the Company has established an operating account (the “Operating Account”), subject to a Control Agreement, with the Deposit Account Bank. The Operating Account will also constitute a Project Account (but not one of the Securities Accounts).

Description of Project Accounts

The following is a description of each of the Project Accounts under the Collateral Agency Agreement:

Construction Fund

Bonds Construction Account. On the Closing Date, the proceeds of the Series 2017 Bonds, net of (i) all Costs of Issuance incurred in connection with the issuance thereof, (ii) the amounts to be deposited in connection with the redemption of the Series 2003 Bonds and (iii) the amounts to be deposited into the Series 2017 Debt Service Reserve Account, shall be deposited into the Bonds Construction Account and thereafter, any interest earned on such proceeds shall be deposited into the Bonds Construction Account. Amounts on deposit in the Bonds Construction Account shall be used to pay Costs of the Project or to reimburse the Company or any affiliate of the Company for any Costs of the Project actually paid by the Company or on behalf of the Company and eligible for reimbursement pursuant to the Tax Certificate. The Collateral Agent shall from time to time withdraw funds from the Bonds Construction Account in accordance with a Requisition delivered by the Company pursuant to “— Requisition Procedures.”

Equity Construction Account. From time to time, the proceeds of any equity contributions or any Shareholder Loans may be deposited into the Equity Construction Account or into a new sub-account of the Construction Fund pursuant to the terms hereof at the sole option of the Company. Amounts on deposit in the Equity Construction Account shall be used to pay Costs of the Project or to reimburse the Company or any affiliate of the Company for any Costs of the Project actually paid by the Company or on behalf of the Company. The Collateral Agent shall from time to time withdraw funds from the Equity Construction Account in accordance with a Requisition delivered by the Company pursuant to “—Requisition Procedures.”

Fund Transfer after Completion Date. Subject to “—Funds Transfer Required Pursuant to the Lease Agreement” below, as soon as practicable after the Completion Date and in any event not more than sixty (60) days from the date of receipt by the Collateral Agent of the Contractor’s Completion Certificate, any balance remaining in the Construction Fund shall without further authorization, instruction or delivery by the Company of a Requisition to the Collateral Agent be transferred by the Collateral Agent to the Revenue Fund.

Sub-Accounts. In accordance with the terms of the Collateral Agency Agreement, the Collateral Agent, upon direction from the Company, shall open new sub-accounts of the Construction Fund as specified by the Company (including the name of any such sub-account) for the purpose of (i) depositing the proceeds of any Additional Obligations or Subordinate Obligations (but not refinancing proceeds which may be deposited under the Indenture or as provided in “—Proceeds of Additional Obligations or Subordinate Obligations” above to facilitate such refinancing) permitted to be incurred by the Financing Documents in accordance with “—Proceeds of Additional Obligations or Subordinate Obligations” above, (ii) accounting for and payment of Costs of Issuance or otherwise thereof, or (iii) any

other purpose permitted by the Financing Documents. To the extent that such a sub-account of the Construction Fund is established for Debt pursuant to this subheading, such proceeds may be used for the purposes for which such Debt is incurred and requisitioned solely as set forth in any related Additional Financing Document or other agreement evidencing such Debt; provided, that the Company may, at any time, (x) open such sub-accounts, (y) direct the Collateral Agent to retain any necessary amounts therein and (z) transfer any remaining funds therein to the Revenue Fund; provided, further, that, for the avoidance of doubt, amounts on deposit in the other Project Accounts or the accounts under the Indenture may not be transferred to such new sub-accounts unless such transfers are expressly permitted herein or therein.

Funds Transfer Required Pursuant to the Lease Agreement. Notwithstanding anything under “– Construction Fund” to the contrary, on or after the earlier of the third anniversary of the issuance date of the Series 2017 Bonds or the Completion Date, the Collateral Agent shall transfer the remaining amounts on deposit in the Construction Fund representing the proceeds of Series 2017 Bonds (other than amounts (x) retained by the Collateral Agent for any costs of Construction not then due and payable or if due and payable, not then paid, (y) to be deposited in the Rebate Fund and (z) to be used to finance the costs of additional capital projects selected by the Company upon receipt of a Favorable Opinion of Bond Counsel) to the Trustee for the purpose of redeeming Series 2017 Bonds in accordance with the Lease Agreement.

Requisition Procedures. Subject to the last sentence of this paragraph and other than as expressly set forth under “– Fund Transfer after Completion Date,” “– Sub-Accounts” and “– Funds Transfer Required Pursuant to the Lease Agreement,” the Company shall request disbursements from monies on deposit in the Construction Fund (and any sub-account thereof) by delivering to the Collateral Agent, not later than the second Business Day prior to the proposed date of disbursement, a withdrawal certificate (the “Company Withdrawal Certificate”) signed by an Authorized Company Representative (collectively, a “Requisition”). Upon receipt of each Requisition, the Collateral Agent shall make the payments set forth in such Requisition out of money in the Construction Fund (and each sub-account thereof) as set forth in such Requisition. For the avoidance of doubt, the Collateral Agent is not prevented by the two (2) Business Day notice requirement from paying the obligations set forth in the Requisition prior to the date of disbursement proposed in the Requisition. In making such payments the Collateral Agent may conclusively rely upon the Requisition without further inquiry. Except as set forth under “— Fund Transfer after Completion Date”, “—Sub-Accounts” and “—Funds Transfer Required Pursuant to the Lease Agreement”, any payments from the Construction Fund shall be made by the Collateral Agent solely based on Requisitions received from time to time pursuant to “– Construction Fund”. The opening of or requisitioning of amounts on deposit in any new sub-accounts pursuant to “—Sub-Accounts” shall be made by the Collateral Agent solely based on instructions received by the Collateral Agent from the Company.

Each Company Withdrawal Certificate shall set forth the funds requested to be withdrawn and the applicable accounts and payees to which such funds shall be transferred (with a description of the purpose therefor), referencing customary invoices, to the extent required. Each Company Withdrawal Certificate shall include the following certifications of the Company as of the date of proposed requisition:

(i) All amounts requisitioned in such Company Withdrawal Certificate relate to Costs of the Project that have been or are reasonably projected to be incurred in connection with the Project and none have been the basis for a prior Requisition that has been paid; and

(ii) No Event of Default has occurred and is continuing.

Revenue Fund

All Revenues received by the Company will be promptly deposited by the Company (or transferred by the Collateral Agent, as applicable) into the Revenue Fund, except for specific amounts required or expressly permitted to be deposited into other accounts under the Collateral Agency Agreement or the Indenture, provided, however that following the acceleration of Working Capital Loan Obligations and termination of lending commitments upon the occurrence and during the continuance of an event of default under the related Working Capital Loan Document, until the Discharge of the Working Capital Loan Obligations, all Revenues constituting Working Capital Collateral and other amounts constituting Working Capital Collateral, that is identified to the Collateral Agent in writing by the Company or a Working Capital Loan Provider as such, shall be applied in accordance with the Intercreditor Agreement prior to being deposited to the Revenue Fund. See “SECURITY AND SOURCE OF PAYMENT FOR THE SERIES 2017 BONDS – Intercreditor Agreement.”

Subject to the foregoing, the Company will promptly, but no later than five (5) Business Days after receipt, deposit or cause to be deposited into the Revenue Fund (a) all Revenues received by the Company, (b) all other amounts received after such date by the Company from any source whatsoever, unless deposited in one of the other Project Accounts as required or permitted by the terms of the Collateral Agency Agreement, including, at the option of the Company, additional equity contributions, which may be deposited in any of the Project Accounts as directed by the Company, and (c) transfers from other accounts (including the Project Accounts and any interest earnings thereon) required by the terms of the Collateral Agency Agreement or the Indenture. Pending such deposit, the Company shall hold all such amounts coming into its possession in trust for the benefit of the Secured Parties.

Commencing on the Monthly Funding Date on or immediately after the Closing Date, subject to “—Withdrawal and Application of Funds; Priority of Transfers from Project Accounts” and subject to “— Application of Proceeds Following an Enforcement Action,” the Collateral Agent shall make withdrawals, transfers and payments from the Revenue Fund in the amounts, at the times and only for the purposes specified and in the order of priority as set forth under “—Flow of Funds—Revenue Fund.”

Debt Service Fund

Interest Payment Account. Funds will be deposited in the Interest Payment Account, or any sub-account established therein, as set forth under “—Flow of Funds—Revenue Fund” and “— Withdrawal and Application of Funds; Priority of Transfers from Project Accounts—Shortfalls on any Monthly Funding Date,” and withdrawn for the payment of the interest portion of Debt Service on the Parity Obligations in accordance with this subheading, subject to “—Application of Proceeds Following an Enforcement Action” and “—Withdrawal and Application of Funds; Priority of Transfers from Project Accounts—Transfer of Funds to Trustee for Payment of Debt Service.”

On the Business Day immediately prior to each applicable Payment Date when the interest portion of Debt Service on the Parity Obligations shall be due and payable, the Collateral Agent shall transfer monies on deposit in the applicable sub-account of the Interest Payment Account, pro rata to the payment of the interest portion of all of the Parity Obligations until the interest portion of all such Parity Obligations has been transferred (a) to the Trustee, without further authorization or instruction, with respect to transfers to the Series 2017 Interest Account of the Series 2017 Debt Service Fund for the payment of interest of Bonds and (b) for all other Parity Obligations to the applicable Parity Secured Creditor in accordance with a Funds Transfer Certificate delivered by the Company.

Capital Lease Payment Account; Principal Payment Account; and Purchase Money Payment Account. Funds will be deposited in the Capital Lease Payment Account, the Principal Payment

Account and the Purchase Money Payment Account, or any sub-account established therein, in accordance with “—Flow of Funds—Revenue Fund” and “—Withdrawal and Application of Funds; Priority of Transfers from Project Accounts—Shortfalls on any Monthly Funding Date,” and withdrawn for the payment of the Debt Service (including sinking fund payments, mandatory prepayment or mandatory redemption, as applicable) on Capital Lease Obligations, the principal portion of other Parity Obligations (other than Capital Lease Obligations and Purchase Money Obligations) and Purchase Money Obligations in accordance with this subheading, subject to “—Application of Proceeds Following an Enforcement Action” and “—Withdrawal and Application of Funds; Priority of Transfers from Project Accounts—Transfer of Funds to Trustee for Payment of Debt Service.”

On the Business Day immediately prior to each applicable Payment Date for Debt Service (including sinking fund payments, mandatory prepayment or mandatory redemption, as applicable) on Capital Lease Obligations, the principal portion of Parity Obligations (other than Capital Lease Obligations and Purchase Money Obligations) and Purchase Money Obligations shall be due and payable, the Collateral Agent shall transfer monies on deposit (x) in the applicable sub-account of the Principal Payment Account (to the extent funds have been transferred to a sub-account of the Principal Payment Account that may only be used hereunder for the principal portion (including sinking fund payments, mandatory prepayment or mandatory redemption, as applicable) of Debt Service for a specific series of Bonds) to the applicable principal account of the applicable Series 2017 Debt Service Fund relating to such series of Bonds and (y) in the Capital Lease Payment Account, any sub-account of the Principal Payment Account for the payment of Parity Obligations (other than Capital Lease Obligations and Purchase Money Obligations) and the Purchase Money Payment Account, pro rata to the payment of the applicable Capital Lease Obligations, the principal portion (including sinking fund payments, mandatory prepayment or mandatory redemption, as applicable) of such Parity Obligations and the applicable Purchase Money Obligations, until such amounts as are due and payable have been transferred, without further authorization or instruction to the Trustee with respect to transfers to the Series 2017 Principal Account of the Series 2017 Debt Service Fund for the payment of principal (including sinking fund payments, mandatory prepayment or mandatory redemption, as applicable) on such Bonds and, for all other Parity Obligations in accordance with a Funds Transfer Certificate delivered by the Company.

To the extent on any date upon which a transfer pursuant to the second paragraph under “—Principal Payment Account” is to be made with respect to the Series 2017 Bonds there are insufficient funds on deposit in the applicable sub-account of the Principal Payment Account to make any such required transfer with respect to the Series 2017 Bonds, after application of all such deposited funds pursuant to the second paragraph under “—Principal Payment Account”, the Collateral Agent is authorized and instructed to determine the amount of such shortfall with respect to the Series 2017 Bonds by reference to the amount set forth for such applicable Payment Date on the then-effective schedule of Debt Service on the Series 2017 Bonds included in the most recent Funds Transfer Certificate and to transfer to the Trustee on such date such shortfall from the accounts, and in the priority, set forth in “— Withdrawal and Application of Funds; Priority of Transfers from Project Accounts—Shortfalls on any Monthly Funding Date” without further authorization or instruction of the Company.

Debt Service Reserve Fund

On the Closing Date, the Series 2017 Debt Service Reserve Account shall be initially funded from the proceeds of the Series 2017 Bonds in an amount equal to $19,551,250.* Thereafter, the Collateral Agent shall cause amounts in the Revenue Fund, to the extent available, to be deposited in accordance with, and at the times specified under “—Flow of Funds—Revenue Fund” into the Series

* Preliminary, subject to change.

2017 Debt Service Reserve Account as shall be necessary to maintain the Series 2017 Debt Service Reserve Required Balance.

Any amounts on deposit in (i) the Series 2017 Debt Service Reserve Account in excess of the Series 2017 Debt Service Reserve Required Balance as of such date shall be deposited into the Revenue Fund in accordance and (ii) any other sub-account of the Debt Service Reserve Fund shall be established and initially funded at the time and in the amount set forth in the applicable Additional Financing Documents pursuant to which Additional Obligations are issued. Thereafter, the Collateral Agent shall cause amounts in the Revenue Fund, to the extent available, to be deposited in accordance with, and at the times specified under “—Flow of Funds—Revenue Fund” into the applicable sub-accounts of the Debt Service Reserve Fund.

So long as any outstanding Bonds that are being rated by a Nationally Recognized Rating Agency have an Investment Grade Rating, on not less than ten (10) Business Days’ notice to the Collateral Agent, the Company may deposit Debt Service Reserve Letters of Credit with the Collateral Agent for deposit into the Debt Service Reserve Fund, and at the direction of the Company, at time of such deposit, the Collateral Agent shall release and transfer to such accounts or payees as the Company directs, an amount of cash from the Debt Service Reserve Fund up to the amount (if any) by which the balance of the Debt Service Reserve Fund plus the amounts available to be drawn on any Debt Service Reserve Letters of Credit on deposit therein exceeds the Debt Service Reserve Required Balance.

Operating Reserve Fund

On the Closing Date, the Company shall fund the Operating Reserve Fund in an amount equal to $17,407,811. Thereafter, the Collateral Agent shall cause amounts in the Revenue Fund to be, to the extent available, deposited into the Operating Reserve Fund as set forth under “—Flow of Funds— Revenue Fund.”

So long as any outstanding Parity Obligations that are being rated by a Nationally Recognized Rating Agency have an Investment Grade Rating, on not less than ten (10) Business Days’ notice to the Collateral Agent, the Company may deposit Operating Reserve Letters of Credit with the Collateral Agent for deposit into the Operating Reserve Fund, and at the direction of the Company, at time of such deposit, the Collateral Agent shall release and transfer to such accounts or payees as the Company directs, an amount of cash from the Operating Reserve Fund up to the amount (if any) by which the balance of the Operating Reserve Fund plus the amounts available to be drawn on any Operating Reserve Letters of Credit on deposit therein exceeds the Operating Reserve Required Balance.

All amounts drawn on any Operating Reserve Letter of Credit shall be deposited into the Operating Reserve Fund and all amounts available under any such Operating Reserve Letter of Credit shall be deemed to be on deposit in the Operating Reserve Fund for all purposes under the Collateral Agency Agreement.

All amounts on deposit in the Operating Reserve Fund shall be available for the funding, or reimbursement of the funding, of Operating Expenses (except for Major Maintenance Expenditures prior to the Completion Date) incurred in the ordinary course of business, and as otherwise permitted under the Financing Documents. Any amounts on deposit in the Operating Reserve Fund in excess of the Operating Reserve Required Balance shall be applied in accordance with the requirements of the Collateral Agency Agreement.

On any date on which funds are required for the purposes set forth in this subheading, monies on deposit in the Operating Reserve Fund shall be transferred to the Operating Account (or otherwise as

directed by the Company) in accordance with a Funds Transfer Certificate delivered by the Company as described under “—Withdrawal and Application of Funds; Priority of Transfers from Project Accounts” and used by the Company as provided in this subheading.

In the event funds on deposit in the Revenue Fund are insufficient to fund the transfers contemplated by any or all of clauses First through Fifth as described in “—Flow of Funds—Revenue Fund” at the times required thereby, funds on deposit in the Operating Reserve Fund shall be transferred and applied by the Collateral Agent in accordance with “—Withdrawal and Application of Funds; Priority of Transfers from Project Accounts—Shortfalls on any Monthly Funding Date.”

A draw on the Operating Reserve Fund shall not constitute an Event of Default so long as amounts are deposited to the Operating Reserve Fund as set forth under “—Flow of Funds—Revenue Fund” so that the balance therein plus the aggregate amount available to be drawn on any Operating Reserve Letters of Credit on deposit therein equal the Operating Reserve Required Balance within the later of (i) 180 days after such draw and (ii) the period as is required to replenish, at the rate of $500,000 per month, the Operating Reserve Fund to the Operating Reserve Required Balance.

Major Maintenance Reserve Fund

After the Completion Date, the Collateral Agent shall cause amounts in the Revenue Fund, to the extent available, to be deposited into the Major Maintenance Reserve Fund as set forth under “—Flow of Funds—Revenue Fund.”

So long as any outstanding Parity Obligations that are being rated by a Nationally Recognized Rating Agency have an Investment Grade Rating, on not less than ten (10) Business Days’ notice to the Collateral Agent, the Company may deposit Major Maintenance Reserve Letters of Credit with the Collateral Agent for deposit into the Major Maintenance Reserve Fund, and at the direction of the Company, at time of such deposit, the Collateral Agent shall release and transfer to such accounts or payees as the Company directs, an amount of cash from the Major Maintenance Reserve Fund up to the amount (if any) by which the balance of the Major Maintenance Reserve Fund plus the amounts available to be drawn on any Major Maintenance Reserve Letters of Credit on deposit therein exceeds the Major Maintenance Reserve Required Balance.

All amounts drawn on any Major Maintenance Reserve Letter of Credit shall be deposited into the Major Maintenance Reserve Fund and all amounts available under any such Major Maintenance Reserve Letter of Credit shall be deemed to be on deposit in the Major Maintenance Reserve Fund for all purposes under the Collateral Agency Agreement.

All amounts on deposit in the Major Maintenance Reserve Fund shall be available exclusively for funding Major Maintenance Expenditures and shall not be available for any other purpose, except as provided by the Collateral Agency Agreement. On any date on which funds in the Residual Fund are not sufficient to pay for then scheduled Major Maintenance Expenditures (if any), monies on deposit in the Major Maintenance Reserve Fund shall be transferred to the Operating Account (or otherwise as directed by the Company) in accordance with a Funds Transfer Certificate delivered by the Company and used by the Company to pay such Major Maintenance Expenditures. Any amounts on deposit in the Major Maintenance Reserve Fund in excess of the Major Maintenance Reserve Required Balance shall be applied in accordance with the requirements of the Collateral Agency Agreement.

In the event funds on deposit in the Revenue Fund are insufficient to fund the transfers contemplated by any or all of clauses First through Fifth set forth under “—Flow of Funds—Revenue Fund” at the times required thereby, funds on deposit in the Major Maintenance Reserve Fund shall be

transferred and applied by the Collateral Agent in accordance with “—Withdrawal and Application of Funds; Priority of Transfers from Project Accounts—Shortfalls on any Monthly Funding Date.”

A draw on the Major Maintenance Reserve Fund shall not constitute an Event of Default so long as amounts are deposited to the Major Maintenance Reserve Fund as set forth under “—Flow of Funds— Revenue Fund” so that the balance therein plus the aggregate amount available to be drawn on any Major Maintenance Reserve Letters of Credit on deposit therein equal the Major Maintenance Reserve Required Balance within the later of (a) 180 days after such draw and (b) the period as is required to replenish the Major Maintenance Reserve Fund at a rate of $500,000 per month.

Subordinate Obligations Fund

Funds will be deposited in the Subordinate Obligations Fund, or any sub-account established therein, in accordance with clause Eighth set forth under “– Flow of Funds after Closing Date – Revenue Fund,” and withdrawn for the payment of Debt Service on any Subordinate Obligations in accordance with the paragraphs below.

On the Business Day immediately prior to each applicable Payment Date when Debt Service on the Subordinate Obligations shall be due and payable, the Collateral Agent shall transfer monies on deposit in the Subordinate Obligations Fund to the Subordinate Lender for the payment of Debt Service on the Subordinate Obligations.

In the event funds on deposit in the Revenue Fund are insufficient to fund the transfers contemplated by any or all of the clauses First through Seventh set forth under “– Flow of Funds after Closing Date – Revenue Fund” at the times required thereby, funds on deposit in the Subordinate Obligations Fund shall be transferred and applied by the Collateral Agent in accordance with “– Withdrawal and Application of Funds; Priority of Transfers from Project Accounts – Shortfalls on any Monthly Funding Date.”

Residual Fund

The Residual Fund shall be funded in accordance with and subject to clause Ninth set forth under “—Flow of Funds—Revenue Fund.”

The following conditions comprise, collectively, the “Restricted Payment Conditions.” As of the applicable date of distribution:

(a) all transfers and distributions required to be made pursuant to clauses First through Eighth set forth under “—Flow of Funds—Revenue Fund” on the Monthly Funding Date that is on or immediately preceding such date of distribution shall have been satisfied in full on such Monthly Funding Date;

(b) the Debt Service Reserve Fund is funded at the Debt Service Reserve Required Balance, the Major Maintenance Reserve Fund is funded at the Major Maintenance Reserve Required Balance, the Operating Reserve Fund is funded at the Operating Reserve Required Balance and each of the Debt Service Fund and the Subordinate Obligations Fund are funded at their respective required amounts;

(c) amounts on deposit in the Debt Service Fund are equal to the Debt Service due on the next applicable Monthly Funding Date;

(d) no Event of Default has occurred and is continuing, or would occur as a direct result of the proposed distribution;

(e) for the twelve (12) month period ending on the most recent Calculation Date, the Debt Service Coverage Ratio as of such Calculation Date exceeded 1.25 to 1.00, as certified by the Company;

(f) for the six (6) month period commencing on the applicable Calculation Date, the Debt Service Coverage Ratio is projected to exceed 1.25 to 1.00, based on reasonable projections made by the Company and as certified by the Company; and

(g) the Completion Date has occurred.

Subject to the following paragraphs, funds on deposit in the Residual Fund may be distributed to an account (or to such Person) as directed by the Company in writing in its sole discretion on any date within ten (10) Business Days after the date on which financial statements for the fiscal quarter ending on the most recent Calculation Date have been delivered, provided that the Company certifies in writing to the Collateral Agent that the Restricted Payment Conditions are satisfied on or as of such Calculation Date.

In the event funds on deposit in the Revenue Fund are insufficient to fund the transfers contemplated by any or all of clauses First through Seventh set forth under “—Flow of Funds—Revenue Fund” at the times required thereby, funds on deposit in the Residual Fund shall be transferred and applied by the Collateral Agent in accordance with the Collateral Agency Agreement, without having to satisfy at such times any of the Restricted Payment Conditions.

The Company may, from time to time, withdraw funds from the Residual Fund (i) for the payment of any Capital Expenditures or Major Maintenance Expenditures pursuant to a Funds Transfer Certificate and (ii) to make Voluntary Prepayments, in each case without having to satisfy any of the Restricted Payment, without having to satisfy at such times any of the Restricted Payment Conditions.

Loss Proceeds Fund

All Loss Proceeds received by the Company shall be deposited by the Company into the Loss Proceeds Fund. Except in connection with the application of funds after an Enforcement Action as described in “—Application of Proceeds Following an Enforcement Action” below, amounts on deposit in the Loss Proceeds Fund will be used as set forth below:

(i) If (A) a Loss Event occurs and (B) the Company determines that it is not commercially feasible to Restore the Terminal, then the Loss Proceeds received in connection with such Loss Event shall be used to redeem or prepay, as applicable, the Bonds on a pro rata basis among the Bonds, based upon the then outstanding principal amounts of each of the Bonds, at the prices for redemption or prepayment set forth in the applicable Financing Document, and the Company shall provide the Collateral Agent a certificate as to such amounts to be so allocated and the account or accounts into which each Bond’s allocable share shall be deposited in accordance with the terms of the applicable Financing Document. Within three (3) Business Days of its receipt of such certificate, the Collateral Agent shall make the transfers specified therein. .

Consultant) determines that it is commercially feasible to Restore the Terminal, the Company shall deliver to the Collateral Agent an officer’s certificate of the Company certifying to the foregoing and, in the case of a Loss Event in an amount greater than $10,000,000, a certificate signed by an authorized representative of the Independent Consultant, concurring with such officer’s certificate of the Company, and such Loss Proceeds shall be applied as set forth in the next paragraph. If the Company receives Loss Proceeds in respect of such Loss Event in an amount less than or equal to $1,000,000, the Company shall apply such Loss Proceeds to the Restoration of the Terminal (and the Company shall have no obligation to deliver an officer’s certificate pursuant to this paragraph).

(iii) The Company shall request disbursements of monies on deposit in the Loss Proceeds Fund by delivering to the Collateral Agent (with a copy to each agent), not later than the fifth (5th) Business Day prior to the proposed date of disbursement, a requisition signed by an Authorized Company Representative in the form of Exhibit E attached hereto (and, to the extent required in the paragraph above, a certificate of the Independent Consultant (collectively, a “Restoration Requisition”)) and the Collateral Agent shall comply with any Restoration Requisition.

Operating Account

The Operating Account, and any sub-account thereof, shall be a special deposit account maintained with the Deposit Account Bank, subject to a Control Agreement. On the Closing Date, the Company shall transfer $21,857,112.19* to the Operating Account, to pay projected Operating Expenses due and payable prior to the first Monthly Funding Date. The Company may transfer to and deposit in the Operating Account, or any sub-account thereof, (a) any amounts available to pay any fees, administrative costs and other expenses then due and payable to the Collateral Agent, the Trustee, the Issuer, any other Secured Party or any Nationally Recognized Rating Agency, or their respective agents or trustees, as applicable, as described under “—Flow of Funds—Revenue Fund,” (b) any amounts available under clause First as described under “—Flow of Funds—Revenue Fund”, “—Withdrawal and Application of Funds; Priority of Transfers from Project Accounts—Shortfalls on any Monthly Funding Date”, the fourth paragraph under “—Major Maintenance Reserve Fund” and the fifth paragraph under “—Operating Reserve Fund”, and (c) proceeds of any Working Capital Loans and, in each case, shall thereafter apply such funds in the Operating Account, or any sub-account thereof, for the payment of Operating Expenses or as otherwise provided in accordance with the terms of the Collateral Agency Agreement.

Other Deposit Accounts

The Company may maintain (a) one or more deposit accounts used solely to fund payroll, payroll Taxes and similar employee Taxes and other employee benefits in the ordinary course of business (the “Payroll Accounts”) and such Payroll Accounts shall not be required to be subject to a Control Agreement; and (b) one or more deposit accounts for the purpose of depositing the proceeds of any equity contribution or any Shareholder Loans (the “Shareholder Loan Accounts”), and such proceeds may be used for the purposes for which such equity contributions are made or Shareholder Loans are incurred, as applicable, and requisitioned as set forth in any documentation in connection with such equity contributions or Shareholder Loans, and such Shareholder Loan Accounts shall not be required to be subject to a Control Agreement. Neither the Payroll Accounts nor the Shareholder Loan Accounts shall constitute Project Accounts and the Company may write checks on each of the Payroll Accounts and the Shareholder Loan Accounts without further notice or requisition.

* Preliminary, subject to change.

Investment of Funds in Project Accounts

Funds in the Project Accounts may be invested and reinvested only in Permitted Investments (at the risk and expense of the Company) in accordance with written instructions given to the Collateral Agent by the Company (prior to the occurrence of an Event of Default and, thereafter, so long as such Event of Default shall be continuing, as directed by the Required Agent) and, unless an Event of Default has occurred and is continuing, the Company is entitled to instruct the Collateral Agent to liquidate Permitted Investments for purposes of effecting any such investment or reinvestment or for any other purpose permitted under the Collateral Agency Agreement; provided, however, that the maturity on any investment of funds in the Debt Service Reserve Fund shall not exceed ten (10) years unless such investment provides for withdrawals of the invested amount without penalty at any time required under the Collateral Agency Agreement in an amount equal to the invested amount (or portion thereof withdrawn) plus accrued interest. The Collateral Agent shall not be required to take any action with respect to investing the funds in any of the Project Accounts in the absence of written instructions by the Company or the Required Agent (to the extent provided in accordance with the Collateral Agency Agreement) and shall hold the cash uninvested. The Collateral Agent shall not be liable for any loss resulting from any Permitted Investment or the sale or redemption thereof made in accordance with the terms Collateral Agency Agreement. If and when cash is required for disbursement as set forth in “Application of Proceeds Following an Enforcement Action” the Collateral Agent is authorized, without instructions from the Company, to the extent necessary to make payments required pursuant to the Collateral Agency Agreement, in the event the Company fails to direct the Collateral Agent to do so in a timely manner, to cause Permitted Investments to be sold or otherwise liquidated into cash (without regard to maturity). All funds in the Project Accounts and all Permitted Investments made in respect thereof shall be held by the Collateral Agent and the interests of the Company therein shall constitute part of the security subject to the pledge and security interest created by the Collateral Documents.

Withdrawal and Application of Funds; Priority of Transfers from Project Accounts

Except as provided in the Collateral Agency Agreement, each withdrawal or transfer of funds from the Project Accounts, including the Revenue Fund, the Major Maintenance Reserve Fund, the Operating Reserve Fund, the Residual Fund, each new account or sub-account created under the Collateral Agency Agreement that does not specify a required alternate requisition procedure, and excluding only such Project Accounts that authorize and require an alternative requisition procedure under the Collateral Agency Agreement, by the Collateral Agent on behalf of the Company in accordance with the Collateral Agency Agreement shall be made pursuant to an executed Funds Transfer Certificate or otherwise pursuant to written instructions of the Company, which certificate or instruction shall be provided and prepared by the Company in accordance with the terms of the Collateral Agency Agreement and shall contain a certification by the Company that such withdrawal or transfer complies with the requirements of the Collateral Agency Agreement. Each Funds Transfer Certificate executed and delivered with respect to transfer of funds from the Residual Fund (other than to fund a shortfall) and to pay Debt Service on any series of Bonds.

Unless a shorter period is acceptable to both the Collateral Agent and the Required Agent (acting in accordance with the terms of the Intercreditor Agreement), such Funds Transfer Certificate or other instructions relating to the transfer or deposit of funds from the Project Accounts required to use the requisition procedure set forth in this subheading shall be received by the Collateral Agent no later than two Business Days prior to each date on which funds are proposed to be withdrawn from the applicable Project Accounts or transferred from one of the Project Accounts to another of the Project Accounts in accordance with the Collateral Agency Agreement.

Notwithstanding anything to the contrary contained herein, upon receipt of a notice of an Event of Default (and during the continuance of the related Event of Default), the Required Agent (acting in accordance with the terms of the Intercreditor Agreement) may, as a form of Enforcement Action, without consent of the Company, instruct the Collateral Agent in writing to apply amounts in the Project Accounts in accordance with the terms hereof, including “—Application of Proceeds Following an Enforcement Action”, and of the Intercreditor Agreement, and in the order set forth in “—Application of Proceeds Following an Enforcement Action”, so long as such payments are on account of (i) amounts due under the Financing Documents or (ii) any amounts pursuant to “—Application of Proceeds Following an Enforcement Action”, and the Collateral Agent shall comply therewith. The Collateral Agent is not obligated to monitor or verify that any such payments are applied to amounts due under the Financing Documents.

Shortfalls on any Monthly Funding Date

To the extent there are insufficient amounts in the Revenue Fund to make the transfers required by any or all of clauses First through Seventh set forth under “—Flow of Funds—Revenue Fund” on any Monthly Funding Date, amounts shall be withdrawn from the following Project Accounts in the following priority in an amount up to the amount of such shortfall in the priority set forth under “—Flow of Funds—Revenue Fund”: first, from the Residual Fund; and second, the Subordinate Obligations Fund. After application of the funds available pursuant to the preceding sentence, to the extent there are insufficient amounts in the Revenue Fund to make the transfers required by any or all of clauses First through Fifth set forth under “—Flow of Funds—Revenue Fund” on any Monthly Funding Date, amounts shall be withdrawn from the following Project Accounts in the following priority in an amount up to the amount of such shortfall in the priority set forth under “—Flow of Funds—Revenue Fund”: first, the Major Maintenance Reserve Fund; and second, the Operating Reserve Fund.

In the event funds on deposit in the Revenue Fund are insufficient to fund at the times required thereby, the transfers required by clauses Third and Fourth set forth under “—Flow of Funds—Revenue Fund”: (a) only with respect to the Series 2017 Bonds, after application of the funds available pursuant to the immediately preceding paragraph, amounts shall be withdrawn from the Series 2017 Debt Service Reserve Account and transferred in accordance with “– Debt Service Fund – Interest Payment Account” and “—Principal Payment Account” in that order of priority in an amount up to the amount of such shortfall; and (b) only with respect to any other Parity Obligations to the extent the terms of such Parity Obligations require a sub-account of the Debt Service Reserve Fund, after application of the funds available pursuant to “—Withdrawal and Application of Funds; Priority of Transfers from Project Accounts—Shortfalls on any Monthly Funding Date”, amounts shall be withdrawn from such other sub- account of the Debt Service Reserve Fund with respect to such other Parity Obligations and transferred in accordance with “– Debt Service Fund – Interest Payment Account” and “—Principal Payment Account” in that order of priority in an amount up to the amount of such shortfall.

Transfer of Funds to Trustee for Payment of Debt Service

If at any time the total amounts held by the Trustee available for the payment of a particular series of the Series 2017 Bonds in the applicable interest account and principal account under the Indenture plus the amount held by the Collateral Agent available for the payment of such series of Bonds in the applicable sub-accounts of the Debt Service Fund and the Debt Service Reserve Fund are sufficient to pay all of the principal of and interest and premium, if any, on such series of Bonds on the applicable scheduled Payment Dates, as applicable, the Company may elect to instruct the Collateral Agent to transfer such amounts as are in the Collateral Agent’s control to the Trustee for deposit into the applicable sub-accounts of the Series 2017 Debt Service Fund for payment of Debt Service on such series of Bonds; in which case, notwithstanding clauses Third and Fourth under “—Flow of Funds—Revenue Fund”

below, any transfer of funds into the applicable sub-accounts of the Interest Payment Account and/or the Principal Payment Account to the extent required to be made or otherwise on each applicable Monthly Funding Date for the payment of such Debt Service on such series of bonds shall be deemed to have occurred on each such Monthly Funding Date. Further, if at any time, so long as a particular series of Bonds are the only outstanding Parity Obligations, the aggregate amount available for the payment of Debt Service on such series of Bonds in any Project Account and in the Series 2017 Interest Account and the Series 2017 Principal Account under the Indenture are sufficient to pay all of the principal of and interest and premium, if any, on such series of bonds on the applicable scheduled Payment Dates, as applicable, the Company may elect to instruct the Collateral Agent to transfer such amounts as are in the Collateral Agent’s control to the Trustee for deposit into the applicable sub-accounts of the Series 2017 Debt Service Fund for payment of Debt Service on such series of bonds; in which case, notwithstanding clauses Third and Fourth under “—Flow of Funds—Revenue Fund” below, any transfer of funds into the applicable sub-accounts of the Debt Service Fund to the extent required to be made or otherwise on each applicable Monthly Funding Date for the payment of such Debt Service on such series of Bonds shall be deemed to have occurred on each such Monthly Funding Date.

Flow of Funds—Revenue Fund

Commencing on the Monthly Funding Date on or immediately after the Closing Date, subject to certain terms and conditions described in “—Withdrawal and Application of Funds; Priority of Transfers from Project Accounts” above, including, to the extent applicable, the delivery of a Funds Transfer Certificate, the Collateral Agent shall make the following withdrawals, transfers and payments from the Revenue Fund (after payment of any fees, administrative costs and other expenses then due and payable to the Collateral Agent, the Trustee, any Agent, the Issuer, or any other Secured Party, or their respective agents or trustees, as applicable and payment of any costs due to any Nationally Recognized Rating Agencies then rating the Series 2017 Bonds, in the amounts and only for the purposes specified below and in the following order of priority (it being agreed that (a) no amount shall be withdrawn on any date pursuant to any clause below until amounts sufficient as of that date for all the purposes specified under the prior clauses shall have been withdrawn or set aside and (b) the obligation with respect to the amounts required to be transferred pursuant to any clause below is only to the extent there are sufficient amounts on deposit in the Revenue Fund on such Monthly Funding Date to make any such transfer) on each Monthly Funding Date:

Operating First, to the Operating Account, an amount equal to the Operating Expenses projected Expenses pursuant to the Annual Forecast to be due and payable prior to the next succeeding ↓ Monthly Funding Date;

Series 2017 Second, an amount equal to any payments then due and payable by the Company to the Rebate Fund Series 2017 Rebate Fund or any similar rebate fund established with respect to Bonds ↓ and any future tax-exempt borrowing transaction;

Interest on Third, on each Monthly Funding Date, pro rata to the applicable sub-accounts of the Parity Interest Payment Account for the payment of interest on Parity Obligations, the sum of Obligations (a) the total aggregate amount of interest to be paid in respect of such Parity ↓ Obligations on the next applicable Interest Payment Date divided by the number of months in the relevant interest period, plus (b) without duplication, any deficiency from a prior Monthly Funding Date then existing; provided, that the deposit on the Monthly Funding Date occurring on or immediately before an applicable Interest Payment Date will equal the amount required, taking into account the amount then on deposit in the applicable sub-accounts of the Interest Payment Account, to pay the interest payment due with respect to such Parity Obligations on such Interest Payment Date;

Principal on Fourth, commencing on (x) for payments in respect of principal, sinking fund Parity payments, mandatory prepayment or mandatory redemption, the Monthly Funding Obligations Date that is twelve months before the applicable first Principal Payment Date and Capital (including any mandatory sinking fund redemption date or any other mandatory Lease prepayment or mandatory redemption date) and (y) for payments in respect of Capital Obligations Lease Obligations and Purchase Money Obligations, the first Monthly Funding Date to ↓ occur after the Closing Date, pro rata to (1) the applicable sub-accounts of the Capital Lease Payment Account for the payment of any Capital Lease Obligations, the sum of (a) the total aggregate amount to be paid in respect of such Capital Lease Obligations on the next applicable Capital Lease Payment Date plus (b) any deficiency from a prior Monthly Funding Date then existing; (2) the applicable sub-accounts of the Principal Payment Account for the payment of principal, sinking fund payments, mandatory prepayment or mandatory redemption, as applicable, on Parity Obligations (other than Capital Lease Obligations and Purchase Money Obligations), the sum of (a) the total aggregate amount of such principal, sinking fund payments, mandatory prepayment or mandatory redemption, as applicable, to be paid in respect of such Parity Obligations on the next applicable Principal Payment Date divided by the number of months between the immediately prior applicable Principal Payment Date and the next applicable Principal Payment Date, plus (b) any deficiency from a prior Monthly Funding Date then existing; and (3) the applicable sub-accounts of the Purchase Money Payment Account for the payment of any Purchase Money Obligations, the sum of (a) the total aggregate amount to be paid in respect of such Purchase Money Obligations on the next applicable Purchase Money Payment Date plus (b) any deficiency from a prior Monthly Funding Date then existing; provided, that the deposit on the Monthly Funding Date occurring on or immediately before an applicable Principal Payment Date, Capital Lease Payment Date or Purchase Money Payment Date, as applicable, will equal the amount required, taking into account the amount then on deposit in the applicable sub-accounts of the Principal Payment Account, the Capital Lease Payment Account and the Purchase Money Payment Account, as applicable, to pay such payments due with respect to such Parity Obligations on such Principal Payment Date, Capital Lease Payment Date and Purchase Money Payment Date, as applicable;

Debt Service Fifth, to the applicable sub-accounts of the Debt Service Reserve Fund in respect of the Reserve Fund Bonds, an amount to the extent necessary to fund such sub-account so that the balance ↓ therein (taking into account amounts then on deposit therein) plus the aggregate amount available to be drawn on any Debt Service Reserve Letters of Credit on deposit therein equals the applicable Debt Service Reserve Required Balance;

Operating Sixth, to the Operating Reserve Fund, to the extent that the amounts in the Operating Reserve Fund Reserve Fund are less than the Operating Reserve Required Balance, an amount equal ↓ to the lesser of: (a) $500,000 and (b) the amount necessary so that the balance in the Operating Reserve Fund plus the aggregate amount available to be drawn on any Operating Reserve Letters of Credit on deposit therein equals the Operating Reserve Required Balance;

Major Seventh, after the Completion Date, to the Major Maintenance Reserve Fund, to the Maintenance extent that the amounts in the Major Maintenance Reserve Fund are less than the Major Reserve Fund Maintenance Reserve Required Balance, an amount equal to the Major Maintenance ↓ Reserve Deposit Requirement;

Subordinate Eighth, to the Subordinate Obligations Fund, an amount equal to the amount necessary Obligations to pay Debt Service in respect of Subordinate Obligations that will become due and ↓ payable prior to the next Monthly Funding Date; and

Residual Fund Ninth, on each Monthly Funding Date, to the Residual Fund, all remaining amounts, if any.

Application of Proceeds Following an Enforcement Action

Subject to the Enforcement Action flow of funds set forth below, after the application of any amounts on deposit in the various accounts held by the Trustee under the Indenture for the payment of Debt Service on the Series 2017 Bonds pursuant to and in accordance with the Indenture, all amounts and Proceeds received by the Collateral Agent derived from the funds set forth below shall be applied by the Collateral Agent as follows:

(a) amounts and Proceeds attributable to the Bonds Construction Account of the Construction Fund to the Trustee for deposit into the appropriate sub-account of the Series 2017 Debt Service Fund, first to the pro rata payment of all accrued and unpaid interest (including default interest, if any) on all Series 2017 Bonds, and second, if any unpaid principal of any Series 2017 Bonds has become due (by acceleration or otherwise), to the pro rata payment of such unpaid principal amounts;

(b) amounts and Proceeds attributable to any additional sub-account of the Construction Fund established pursuant to the terms hereof for the deposit of proceeds from the issuance of Additional Obligations to the appropriate Designated Representative or Additional Parity Creditor for deposit into the appropriate account or payee pursuant to the applicable Additional Financing Document, first to the pro rata payment of all accrued and unpaid interest (including default interest, if any) on such Additional Obligations, and second, if any unpaid principal of any such Additional Obligations has become due (by acceleration or otherwise), to the pro rata payment of such unpaid principal amounts; and

(c) amounts and Proceeds attributable to any sub-account of the Series 2017 Debt Service Fund shall be transferred by the Collateral Agent to the relevant Secured Parties (or representatives thereof) for deposit into the appropriate sub-account of the Series 2017 Debt Service Fund relating to such Bonds (or other appropriate account or payee pursuant to the applicable Additional Financing Document), first to pay for the pro rata payment

of all accrued and unpaid interest (including default interest, if any) on the relevant Bonds, and second, if any unpaid principal of any such Bonds has become due (by acceleration or otherwise), to the pro rata payment of such unpaid principal amounts.

Notwithstanding anything to the contrary, from and after the taking of an Enforcement Action, the Collateral Agent, as directed by the Required Agent (acting in accordance with the Intercreditor Agreement) or the Working Capital Loan Provider (with respect to the Working Capital Collateral), shall have the right to direct the application of all amounts on deposit in or credited to or available for draw under a letter of credit in the Project Accounts (including with respect to the investment of such amounts), and to otherwise deal with the Collateral, in each case in accordance herewith and with the Intercreditor Agreement, without the need for consent of, or any other action by, the Company. Subject to (a) the prior application of certain funds as described in the first paragraph under this subheading and (b) the application of the Working Capital Collateral, following the taking of an Enforcement Action and subject to the Intercreditor Agreement, all amounts and Proceeds received by the Collateral Agent pursuant to the exercise of any rights or remedies accorded to the Collateral Agent, including proceeds from the sale or disposition of Collateral or other Enforcement Action (other than the Working Capital Collateral), shall be applied promptly by the Collateral Agent as directed by the Required Agent (acting in accordance with the Intercreditor Agreement) or the Working Capital Loan Provider (with respect to the Working Capital Collateral), as follows; provided, that any such Proceeds or amounts which are to be used to pay any amounts to the owners of Bonds shall be paid to the Trustee for deposit into the applicable sub-account of the Series 2017 Debt Service Fund:

Fees, Costs First, to the payment of all reasonable, documented and invoiced out-of-pocket fees, and Expenses costs and other expenses (including the reasonable, documented and invoiced out-of- ↓ pocket fees, costs and expenses of counsel as set forth in the Collateral Agency Agreement) owed to the Collateral Agent, the Trustee, the Parity Lien Agent and any other Parity Secured Creditors (and/or a representative thereof) for payment of the reasonable costs and expenses of the Enforcement Action and in connection with the performance of their obligations under the Documents to which they are a party and the consummation of the transactions contemplated thereby (in each case to the extent not previously satisfied);

Interest on Second, to the pro rata payment of all accrued and unpaid interest (including default Parity Lien interest, if any) on all Parity Lien Obligations; Obligations ↓

Principal on Third, to the pro rata payment of (a) if any unpaid principal of any Parity Lien Parity Lien Obligations has become due (other than by acceleration) to the pro rata payment of Obligations such unpaid principal amounts or (b) if any of the Parity Lien Obligations have been ↓ accelerated, to the pro rata payment of such unpaid principal amounts;

Redemption or Fourth, to the pro rata payment of all accrued and unpaid redemption or prepayment Prepayment premium then due, if any, with respect to any Parity Lien Obligations pro rata in the Premium on order of their due dates, or, if the Parity Lien Obligations have been accelerated, to Parity Lien the pro rata payment of such unpaid redemption or prepayment premiums without Obligations regard to due dates; ↓

Other Amounts Fifth, to the pro rata payment of all other amounts, if any, due and payable under Relating to any Financing Document with respect to any Parity Lien Obligations; Parity Lien Obligations ↓

Interest on Sixth, to the pro rata payment of all accrued and unpaid interest (including default Subordinate interest, if any) on all Subordinate Obligations; Obligations ↓

Principal on Seventh, to the pro rata payment of (a) if any unpaid principal of any Subordinate Subordinate Obligations has become due (other than by acceleration) to the pro rata payment of Obligations such unpaid principal amounts or (b) if any of the Subordinate Obligations have been ↓ accelerated, to the pro rata payment of such unpaid principal amounts; and

To the Eighth, to the Company and its successors and assigns, or as may be directed by the Company Company and its successors and assigns, or as a court of competent jurisdiction may direct, any Proceeds or other amounts then remaining.

RISK FACTORS Investing in the Series 2017 Bonds involves significant risks. Prospective purchasers of the Series 2017 Bonds should carefully consider the following matters, as well as other information contained or incorporated by reference in this Official Statement, including the consolidated financial statements and related notes of the Company, before making an investment in the Series 2017 Bonds. The following discussion is not meant to be an exhaustive list of the risks that should be considered in connection with the purchase of the Series 2017 Bonds and does not necessarily reflect the relative importance of the various risks involved. Any of the risks discussed herein, among others, may adversely affect the operations and results of the Port, the Terminal and the Company, which could result in decreases in the value and liquidity of the Series 2017 Bonds. Risks Relating to the Company and the Industry General The Company is exposed to risks that may result in a material and adverse impact on its operations. The risks make future outcomes difficult to predict and may cause the results of the Company’s operations and performance to fall below expectations. Purchasers should not rely on the Company’s past results to predict future outcomes of its operations. Risk factors that may adversely affect the Company’s operating results and financial performance include but are not limited to:

• mergers among shipping companies and consolidation of shipping companies into strategic alliances; • the financial performance of its customers and prospective customers, including their investment in ULCV vessels and the deployment of such vessels or similar post– Panamax vessels; • concentration of its source of revenues among a few customers; • its ability to attract and retain customers;

• its ability to increase or maintain revenue from existing customers; • increased competition among terminal operators and other services providers in the shipping industry; • costs or liabilities associated with any past or future capital investments, acquisitions, strategic investments or partnerships; • the timing and outcome of investments to support its growth strategy; • the amount and timing of capital expenditures and extraordinary expenses; • impact of labor disruptions or increases in wages and benefits for labor at the Terminal; • errors in or misinterpretations of its metrics, forecasts and data; • failure to anticipate or identify market or industry developments; • impact of environmental conditions; • impact of natural disasters and other weather events and conditions; • economic conditions that negatively affect the shipping and freight industry; • unfavorable macroeconomic conditions; • terminations of, disputes with or material changes to its relationships and agreements with any Governmental Authority, vendor, supplier, strategic partner or industry group; • changes in legislation or regulations or the enforcement therefor, including changes that affect its operations or efficiency or its collection of fees, regulate alliance agreements among the carriers that call at the Terminal, or that subject it to additional taxation; and • litigation or governmental enforcement actions.

The Company competes with other Terminals in the Port as well as other Ports and Terminals along the East Coast

The shipping industry is highly competitive, and the Company’s ability to generate revenues sufficient to pay debt service and meet other expenses at the Terminal depends in part upon a number of factors that are outside the Company’s control.

The financial condition and results of operations of the Company are significantly influenced by the conditions of the maritime industry in general, and the Port, in particular. Factors relevant to the vitality of the maritime industry and the Port include but are not limited to economic conditions globally and locally, acts of terrorism or war, heightened security procedures that may slow the movement of cargo through the Terminal or reduce or delay container traffic, overcapacity in the global transportation markets, changes in the U.S. demand for imported goods, changes in relative values of currencies and changes in international trade policies or relations. These factors can adversely affect freight volumes and the Company’s rates for its services.

The Company faces competition from local terminal operators in the Port as well as other ports and terminal operators along the U.S. East Coast. Terminal operators locally compete primarily on rates, speed and efficiency of services and customer relationships. Competition from other terminals along the East Coast can also be dependent on trade routes, port infrastructure and the general transportation infrastructure in those locations, including truck and rail access. Increases in the level of competition from other terminals within the Port, or other ports that engage in similar business and handle cargo similar to cargo handled by the Company, due to the expansion of such competing terminals or ports or otherwise,

may have an adverse impact on the Company’s rates for its services or its revenues, which could negatively impact the Company’s ability to satisfy its debt service obligations on the Series 2017 Bonds.

The widening of the Panama Canal in 2016 has enabled it to accommodate many, but not all, of the larger vessels in Northeast Asia-U.S. trade, leading to some shifts and anticipated shifts to ports along the U.S. East Coast. The expanded Panama Canal allows passage of container ships up to 14,000 TEU in capacity, and it is estimated that these Neo-Panamax vessels will make up 62% of total container ship capacity by 2030. Ships of that size will not be able to call on some major U.S. East Coast ports unless significant investment is made to improve channel or berth depths. Depending on the speed at which 14,000 TEU ships are deployed in the trades serving the U.S. East Coast, the Company may need to accelerate the acquisition of larger cranes and other equipment or modify existing cranes in order to be able to serve two such ships simultaneously, which would require a minimum of 8-10 cranes of ULCV dimensions or larger.

Consolidation of Container-Shipping Industry and Formation of Alliances

The container-shipping industry has been under significant stress due to many factors including, among others, overcapacity of available ships, rate pressure and volatile fuel costs. In response to these challenges, the industry has experienced the emergence of strategic alliances and mergers between shipping lines as shipping companies seek to cut costs and make better use of spare capacity. Such arrangements allow companies to offer more frequent or enhanced shipping services without buying more ships or adding new shipping routes.

In 2014, Maersk (which is now acquiring Hamburg Sud) and MSC began operating the 2M Alliance, combining the world’s first and second largest container lines. In 2016, CMA CGM, China Shipping Cosco Group, the Orient Overseas Container Line (which is now merging with China Shipping Cosco Group) and Evergreen Marine formed the “Ocean Alliance,” combining the world’s third, fourth, fifth and ninth largest container lines. Hapag-Lloyd AG, Hanjin Shipping (which has since filed for bankruptcy and ceased operating), “K” Line, Mitsui OSK Line (“MOL”), NYK Line and Yang Ming Marine Transport Line have announced the formation of a vessel-sharing alliance to be known as “The Alliance,” commencing in 2017.

As the trend toward consolidation increases, carrier alliances continue to grow in size and scope resulting in greater concentration of volumes under the control of fewer players. There are very few ports and terminal operators in the U.S. capable of meeting the challenging service requirements imposed by the new alliance dynamic. In addition, alliance carriers represent large market shares, in some instances being the only customer in a given port, limiting competition on the pricing for their services.

The consortium and alliance agreements entered into between container shipping companies, including under the 2M Alliance, the Ocean Alliance and The Alliance agreements, are regulated by the Federal Maritime Commission (the “FMC”), an independent U.S. federal agency responsible for the regulation of ocean-borne foreign commerce of the United States. Each of these alliances obtains antitrust immunity for their activities by filing their agreements with the FMC. Such practices are regulated under the Shipping Act of 1984, as amended, which gives the FMC authority to block or negotiate mitigation of unfair provisions in carrier alliance agreements. New legislation has been proposed to increase the power of the FMC to regulate carrier alliances. The FMC legislation, when enacted, will represent the most substantial changes to the Shipping Act since Congress last updated the statute in 1998. The House and Senate are currently resolving differences between their respective FMC reauthorization bills. The House version of the bill currently contains significant changes to Section 6(g), which enumerates the FMC’s powers when reviewing ocean carrier alliances. These changes would allow the FMC to consider the economic impact to service providers when reviewing ocean carrier alliance agreements in contrast to the current law under which the FMC’s analysis may only consider the

impact to carriers and shippers – not service providers such as marine terminal operators. The Senate bill, as reported out of committee, does not currently contain this same language, although a more recent Senate working draft does include language identical to the House language. Enactment of the FMC bill before the end of the year is expected as the House and Senate are operating under a December 18, 2017 deadline to pass an unrelated Coast Guard authorization to which the FMC bill is attached.

The Company cannot predict what effect the alliances and future mergers will have on container traffic, nor the regulatory environment in which these alliances will operate. Consolidation in the container-shipping industry could lead to an increase in competition among service providers for container traffic at the Port or greater leverage by an alliance in the negotiation of rates for the Company’s services, which could adversely affect the Company’s net revenue and operating results.

The Company is Dependent on Two Customers for a Majority of its Throughput and Revenues

The Company’s results of operations are dependent upon its relationships with its customer shipping lines. Approximately 71% of the Company’s throughput and 69% of the Company’s revenues in 2016 were derived from servicing vessels of MSC or the 2M Alliance. All seven vessel strings currently calling at the Terminal are operated by MSC or the 2M Alliance, and the Company’s current business plan anticipates that MSC and 2M Alliance volumes will represent approximately 80% of the Terminal’s future projected volumes. Therefore, the Company and its results of operations could be adversely affected by reductions in volumes and/or rates charged to these customers, or the loss of either of these customers or delays in payment of the Company’s invoices by them.

The Company’s terminal service agreements with other shipping lines are generally shorter-term in nature or can be terminated on short notice. There may be lags in replacing any business that is lost due to the time required for new customers to re-route their services.

Even in the case of long-term agreements, the rates and charges are typically re-set annually or at other periodic intervals. The Company is currently in the process of negotiating with MSC the rates and charges for its services during the 2018-2020 period. A reduction in the rates that the Company can charge for its services, or the inability of the Company to pass along labor cost increases, whether as a result of the current negotiations with MSC or otherwise, could have an adverse impact on its revenues which could negatively impact the Company’s ability to satisfy its debt service obligations on the Series 2017 Bonds.

The Company Operates only at the Terminal

The Company’s activities are carried out solely at the Terminal. A reduction in either the volume of traffic processed at the Terminal or the rates for the Company’s services would adversely affect its results and financial condition. These developments or other adverse matters affecting the Terminal or the Port could not be offset by operations elsewhere.

Ability to Fund and Achieve Capital Expenditure Plan

The Port Authority Lease specifies that, (i) in order to extend the lease to November 30, 2050 (the “Extended Term”), the Company must invest at least $500,000,000 prior to November 30, 2029, in certain qualifying expenditures (as specified in the Port Authority Lease) in connection with the certain capital improvements, capital fixtures, equipment and/or other capital items at the Terminal and (ii) if (a) $500,000,000 has not been invested on or before November 30, 2029, the Extended Term will be subject to reduction by the Port Authority and (b) $320,000,000 in qualifying expenditures has not been invested on or before November 30, 2028 (and such shortfall is not cured within the time period specified in the Port Authority Lease), the Port Authority may terminate the Port Authority Lease as of November 30,

2030 and require the Company to pay certain liquidated damages. The termination of the Port Authority Lease would have a material adverse effect on the Company’s operations.

Construction and Permitting Risks

As with any major construction effort, the completion of the 2017 Facility involves many risks that could result in cost overruns, in delays or in a failure to complete the Project at all. No assurance can be given that additional Bonds to complete the 2017 Facility can be issued and sold if completion of the Project is delayed or if the costs of completing the project increase substantially. Some of the risks to completing the 2017 Facility on time and within budget include any delay in preparing portions of the site, shortages of materials and labor, work stoppages, labor disputes, bad weather, floods and other casualties, unforeseen engineering, environmental or geological problems, changes in law or regulations, discovery of unidentified hazardous materials, unidentified utilities, third-party litigation, difficulties in obtaining or renewing permits or other local government approvals and changes in federal, state or local design or building requirements, any of which could increase the cost of and delay the construction of the 2017 Facility.

Construction of the 2017 Facility and operation of the Terminal require a number of permits and approvals from local, state and federal agencies. Delay and/or failure to obtain and/or maintain all required permits could cause substantial delays in completing the 2017 Facility or in operations at the Terminal. Permitting requirements can change over time and such changes are uninsured risks.

Events of Force Majeure

Construction of the 2017 Facility and operations at the Terminal are subject to the risk of future events of force majeure, including but not limited to damaging storms, winds and floods, fires and explosions, strikes and lockouts and spills of hazardous substances. Construction and operations may also be stopped or delayed by non-casualty events such as delays in obtaining or renewing permits, revocation or revision of permit requirements, other changes in law and litigation, among other things. Any of these events can result in delays in the Company’s ability to provide services or suspension of operations resulting in increased expenses and potential loss of business. In addition, severe weather or natural disasters can cause material damage to the Company’s equipment, including its cranes, and its buildings and infrastructure, which could have an adverse effect on the Company’s business.

On October 29, 2012, Superstorm Sandy hit the Northeast region. The storm severely impacted the Port and the Terminal. While the Terminal took many precautionary steps to protect containers and assets prior to the storm, there was significant damage sustained. Most of the Port and the Terminal were inundated with 5 feet of seawater. Power to the Terminal was lost for several days. The Terminal experienced $29 million in property damage, including to buildings, equipment, and electrical infrastructure. Over 1,000 containers on the Terminal were affected either by water or by damage due to being toppled over by winds. The Terminal was able to open for operations on November 5, 2012, seven days after the storm. The Company’s insurance provided coverage for facility damage, equipment losses, and business interruption losses. There are no assurances that the Company could achieve a similarly prompt resumption of operations or that insurance proceeds would be adequate in the event of a subsequent severe storm.

Limits on Insurance Coverage; Risk of Loss

The Company maintains insurance policies, which include casualty and liability coverage. Contractors are also expected to have certain insurance coverage during the construction of the 2017 Facility. These insurance policies, however, do not cover all damage and delay from all events that potentially could interrupt construction or operation of the Terminal. Insurance policies may not be

maintained or be obtainable in amounts that would be sufficient or timely to meet the required amounts to be paid under the Indenture, including for debt service on the Series 2017 Bonds. Risks that are not insurable or that may not be insurable include a nuclear event, war, terrorism, unforeseeable environmental or geological conditions, discovery of archeological artifacts, criminal or intentional acts by the insured, bankruptcy, loss of market, longshoremen's strikes, riot and civil commotion and insurer insolvency. Additionally, changes in federal, state or local design, building and environmental requirements and other changes in law are not risks that are generally insurable.

A number of the policies, including the construction contractor’s policies and the Company’s liability policies, are blanket policies that cover other facilities of the Company’s member, Ports America, as well as the Terminal, and no assurance can be given that sufficient coverage will be available, especially if more than one facility is damaged at the same time. The Company is responsible for retentions and deductibles on any claims it may have and retains all risk of loss in amounts that exceed the limits of its insurance coverage and recovery. There can be no assurance that such sources of funds would be available to the Company or that insurance proceeds could be used to pay debt service if damaged terminal facilities cannot be repaired or restored.

Labor Disruptions; Increases in Wages and Benefits

The Company depends upon good labor relations with stevedoring firms, longshoremen, cargo checkers and handlers and other workers at the Terminal. Many of the workers hired by the Company are members of the ILA and are bound by national and local collective bargaining agreements. The current CBA with the ILA expires in September 2018. There is no assurance that business disruptions will not occur due to slowdowns, strikes, lockouts or other actions, including limits to the availability of labor through trade union hiring halts. If any of these disruptions occurs, it could adversely affect the Company’s operations and its ability in the short or long term to generate sufficient revenue to pay debt service on the Series 2017 Bonds.

In addition, if the wages and benefits for labor at the Terminal increase at rates greater than the rates the Company can charge for its services to its customers, such increases could adversely impact the Company’s results of operations and negatively impact the Company’s ability to satisfy its debt service obligations on the Series 2017 Bonds.

Compliance with Laws and Regulations

The Terminal and the ocean, rail and truck carriers that serve the Terminal are subject to federal, state and local laws and regulations, which are subject to change from time to time, and could become more stringent and more costly. These regulations include environmental, safety and health regulations, and regulations by the U.S. Army Corps of Engineers. New statutory or regulatory requirements could be implemented or increased; for example, regulations limiting emissions and addressing global climate change. No assurance can be given that compliance with such requirements or other regulations will not adversely affect the Company’s ability to generate revenues or impact the construction of the 2017 Facility.

Environmental Matters

The Company and the Terminal are subject to laws, regulations and other requirements relating to the protection of the environment, including emissions limits, storage, handling and disposal of hazardous substances and petroleum products, investigation and remediation of contamination and occupational health and safety. These laws and regulations are subject to frequent amendments, complex and apply to all aspects of construction and operation of the 2017 Facility; therefore, exact compliance cannot always be assured. Noncompliance could impact operations or result in substantial penalties. In addition, the

costs of regulatory compliance may increase over time and could materially impact the Company’s results of operations. For example, changes in laws or regulations or initiatives relating to emissions or air quality generally could cause the Company to have to purchase new equipment, alter existing equipment or change operating procedures to remain in compliance or to meet the needs of compliance by vessels, rail carriers or trucks.

Construction of the 2017 Facility and operation of the Terminal require permits from federal, state and local authorities and require the Company to comply with any conditions imposed by those permits. Existing law imposes on persons who own, lease or operate a site the responsibility for investigating and remediating any contamination that exists on the site, and for the proper disposal of contaminated materials. The Company could have potentially significant responsibility for management of contamination and for compliance with disposal requirements. The Company may also incur liability for clean-up costs and additional disposal costs in connection with such contamination, and retain liability for the proper management of materials disposed of at off-site locations. Furthermore, the Port Authority Lease requires the Company to comply with environmental laws and regulations and, in certain matters of environmental liability and costs, to indemnify the Port Authority.

Cybersecurity Risks

The Company is dependent on the proper functioning of its information technology systems, including accounting, vessel scheduling, equipment tracking, security, employee communications and customer service. Information technology systems rely on third-party service providers for services such as access to the Internet, database storage and telecommunications. If third-party service providers experience disruptions or failures, there could be an adverse impact on the Company’s information and communications systems, which could lead to business disruptions or inefficiencies. Further, data and communications systems could be vulnerable to cybersecurity risks such as computer viruses, hacking and denial of service attacks. Any failure or unauthorized access or breach of the Company’s systems could result in the lack of access to or the loss of proprietary information, interrupt the Company’s services or otherwise adversely impact the Company’s overall business operations.

Increased Security Measures

The Terminal and movement of cargo, are subject to federal, state and local security-related regulations. The Maritime Transportation Security Act imposes security-related regulations on all United States ports including the Port. Changes in regulations or events such as acts, or threatened acts, of war or terrorism could increase the need for heightened security measures, which could slow the movement of cargo through the Terminal, reduce or delay container traffic or increase the Company’s regulatory compliance costs and adversely affect the Company’s results of operations.

Dispute Resolution in the Event of Conflict

Parties may disagree about the appropriate course of action to be taken, particularly if adverse events occur. The Company and the Port Authority may have different priorities and interests and may have difficulty in resolving disputes. Similarly, the Port Authority and the Trustee, on behalf of the Holders, including the Holders of the Series 2017 Bonds, may have very different interests and priorities following an event of default or a termination of the Basic Lease and no assurance can be given that the Port Authority will be willing or able to take into account the interests of the Holders of the Series 2017 Bonds if these events or other adverse events occur.

The Company may have exposure under its multi-employer pension and post-retirement plans in which it participates that extends beyond its funding obligation with respect to the Company’s employees.

The Company contributes to various multi-employer pension plans. In the event of a partial or complete withdrawal by the Company from any plan that is underfunded, the Company would be liable for a proportionate share of such plan’s unfunded vested benefits. Based on the limited information available from plan administrators, which the Company cannot independently validate, the Company believes that its portion of the contingent liability in the case of a full withdrawal or termination may be material to its financial position and results of operations. If any other contributing employer withdraws from any plan that is underfunded, and such employer (or any member of its controlled group) cannot satisfy its obligations under the plan at the time of withdrawal, then the Company, along with the other remaining contributing employers, would be liable for its proportionate share of such plan’s unfunded vested benefits. In addition, if a multi-employer plan fails to satisfy the minimum funding requirements, the Internal Revenue Service will impose certain penalties and taxes.

Risks Relating to the Series 2017 Bonds

Limited Obligation of the Issuer

The Series 2017 Bonds and any Parity Obligations are payable solely from the Trust Estate and are not a debt, liability or a pledge of the full faith and credit of the State or any governmental unit of the State, including the Issuer and the Port Authority. Neither the full faith and credit nor the taxing power of the State or any governmental unit of the State, including the Issuer, is pledged to the payment of the principal or redemption price of or interest on the Series 2017 Bonds or any other obligations under the Indenture. The Issuer has no taxing power.

Limitations on Recourse

The Company is obligated to make payments to the Trustee, as assignee of the Issuer, pursuant to the Lease Agreement, the Guaranty and other Bond Documents, which would constitute the principal sources for the payment of the debt service on the Series 2017 Bonds. The payment of such amounts is dependent upon the financial condition and results of operations of the Company, which are significantly influenced by the conditions of the maritime industry in general, and the Port, in particular. The Series 2017 Bonds will not be secured by a leasehold mortgage on the Basic Lease with the Port Authority and will not have any recourse in the event the Basic Lease is terminated by the Port Authority which would preclude the Company from further operations at the Terminal.

Expiration of Port Authority Lease

As described under “THE COMPANY – Port Authority Lease”, the Port Authority Lease currently expires on November 30, 2030. The Port Authority Lease specifies that (i) in order to extend the lease to the Extended Term, the Company must invest at least $500,000,000 prior to November 30, 2029, in certain qualifying expenditures (as specified in the Port Authority Lease) in connection with the certain capital improvements, capital fixtures, equipment and/or other capital items at the Leased Premises and (ii) if (a) $500,000,000 has not been invested on or before November 30, 2029, the Extended Term will be subject to reduction by the Port Authority and (b) $320,000,000 in qualifying expenditures has not been invested on or before November 30, 2028 (and such shortfall is not cured within the time period specified in the Port Authority Lease), the Port Authority may terminate the Port Authority Lease as of November 30, 2030 and require the Company to pay certain liquidated damages.

There is no guarantee that the Company will invest such amounts and there is no guarantee that the Port Authority Lease term will be extended to November 30, 2050. The Port Authority Lease is also subject to early termination under certain circumstances described under “THE COMPANY – Port Authority Lease.”

In the event that the Port Authority Lease expires, terminates or is surrendered prior to the final maturity of the Series 2017 Bonds, the Bonds will be subject to extraordinary mandatory redemption as more fully set forth under “THE SERIES 2017 BONDS – Redemption – Extraordinary Mandatory Redemption with respect to Port Authority Lease and Lease Agreement” herein.

Uncertainties of Forecasts and Assumptions

The assumptions, forecasts and projections contained in the Independent Consultant’s Report, or projections that may be contained in any future certificate of the Company or of a consultant required under the Financing Documents, are not necessarily indicative of future performance (see limitation above on FORWARD LOOKING STATEMENTS). Neither the Company nor the Independent Consultant assumes any responsibility for the accuracy of such projections. In addition, certain assumptions of the Company with respect to future business and financing decisions are subject to change. No representation is made or intended, nor should any representation be inferred, with respect to the likely existence of any particular future set of facts or circumstances. Prospective purchasers of the Series 2017 Bonds are cautioned not to place undue reliance upon the projections in the Independent Consultant’s Report or upon any other projections or requirements for projections. If actual results are less favorable than the results projected or if the assumptions used in preparing such projections prove to be incorrect, the Company’s ability to make timely payment of the principal and interest on the Series 2017 Bonds may be materially and adversely affected.

The Independent Consultant’s projections do not assume any capacity limitations, new projects or that the Terminal’s recent share of overseas origins or destinations or local markets will change but do assume some growth based upon the economic outlook generally. No assurance can be given, however, that the Independent Consultant’s projections of general economic growth will materialize.

Certain Considerations under the United States Bankruptcy Code with Respect to the Lease Agreement and the Guaranty

In the event a bankruptcy case is filed with respect to the Company, a bankruptcy court could determine that the Lease Agreement is an executory contract or unexpired lease pursuant to Section 365 of the United States Bankruptcy Code. In that event, a trustee in bankruptcy or the Company as a debtor- in-possession might reject the Lease Agreement. Under the United States Bankruptcy Code, any rejection of the Lease Agreement could result in a claim for damages against the Company in connection with the Series 2017 Bonds, which claim would rank as that of a general unsecured creditor of the Company. If a court determined that the Lease Agreement was an unexpired lease of non-residential real property, the amount of any such corresponding claim would be limited to the rent payable under the Lease Agreement (without acceleration) for the greater of one year or 15% of the remaining term of the Lease Agreement, but not to exceed three years, following the earlier of (a) the date the bankruptcy petition was filed or (b) the date on which the Company surrendered the leased property under the Lease Agreement, plus any unpaid rentals under the Lease Agreement (without acceleration) on the earlier of such dates. In this event, any claim with respect to the Series 2017 Bonds that do not mature (absent acceleration) within the period of one year or 15% of the remaining term of the Lease Agreement (but not in excess of three years) following the bankruptcy commencement date (i.e., the earlier of (a) or (b) above) could be limited to the interest which would accrue on the Series 2017 Bonds during such period and may not permit a claim for the recovery of principal.

To mitigate the risk that Bondholders’ claims against the Company might be limited in the event of a Company bankruptcy to less than 100% of all amounts owing with respect to the Series 2017 Bonds, the Company has provided the Trustee with the Guaranty, which is a separate guaranty of the Issuer’s special obligation to repay the Series 2017 Bonds. Pursuant to the terms of the Guaranty, the Company unconditionally guarantees to the Trustee, for the benefit of the owners of the Series 2017 Bonds, the full and prompt payment of the principal, purchase price and redemption price, if any, of such Series 2017 Bonds when and as the same shall become due and payable as provided in the Indenture, whether at the stated maturity thereof, by redemption, acceleration or otherwise, and the full and prompt payment of the interest on the Series 2017 Bonds when and as the same shall become due and payable as provided in the Indenture. The obligations covered by the Guaranty are intended by the parties to be independent of those set out in the Lease Agreement (and thereby not be subject to the United States Bankruptcy Code limitations on claims for damages with respect to non-residential real property leases discussed above) and to be enforceable without regard to the validity or enforceability of the Lease Agreement or any obligation of the Company contained therein. In the event a bankruptcy case were filed with respect to the Company, the Trustee might file a claim pursuant to the Guaranty, independent of any claim under the Lease Agreement and Indenture, for the payment of all amounts, if any, required for the payment of the principal, Purchase Price and redemption price, if any, of and interest on the Series 2017 Bonds when due. Such claim, if allowed, would rank as that of a general unsecured creditor of the Company. A bankruptcy court could determine, however, that the Trustee’s claims under the Guaranty should be limited to the same extent as the United States Bankruptcy Code limitation of claims for damages with respect to non-residential real property leases described above in connection with claims under the Lease Agreement. No assurance can be given that the Trustee’s claims in connection with the Guaranty will not be so limited. If so limited, the Guaranty would provide no additional security for payments due on the Series 2017 Bonds.

No representation or warranty is made by the Company or any other party that any claim under the Lease Agreement or the Guaranty will be allowed or that any recovery on any such claim will be permitted under the United States Bankruptcy Code.

Limitations Upon Trustee’s Ability to Accelerate Company Rent

Upon certain payment-related events of default under the Indenture, the Trustee may declare all amounts owed under the Series 2017 Bonds immediately due and payable. The Lease Agreement provides that the Company must pay Company Rent in an amount sufficient to pay all amounts when due upon the Series 2017 Bonds, upon acceleration or otherwise. New Jersey law concerning real property leases provides for certain remedies available to a lessor for breach of a lease for real property, but acceleration of all rental payments due under the lease may not be an available remedy. A court could conclude that the requirement that the Company pay Company Rent in an amount equal to the amount due on the Series 2017 Bonds following an acceleration of the Series 2017 Bonds is, in effect, an impermissible acceleration of the rent due under a lease for real property and refuse to enforce the payment.

Effect on Series 2017 Bonds of Merger or Other Reorganization of the Company

The Lease Agreement does not prohibit the Company from consolidating or merging with or into another corporation or entity, or from selling or otherwise disposing of all or substantially all of its assets, so long as certain conditions are satisfied. See APPENDIX E hereto. The Lease Agreement also permits change of control of the Company. If the Company were to participate in a merger or other reorganization as permitted under the Lease Agreement, either voluntarily or otherwise, the financial condition and prospects of the surviving or resulting corporation or transferee could be materially different from those of the Company, and the security for the payment of the Series 2017 Bonds, and the ratings thereon and

market price thereof, could be adversely affected. Any change of control of the Company may also similarly impact the financial condition and prospects of the Company.

Holders of the Series 2017 Bonds do not have the right to require the Company to repurchase the Series 2017 Bonds because of a merger or other reorganization of the Company.

No Established Trading Market

If issued, the Series 2017 Bonds will be new securities for which there will not initially be a trading market. The Company has been advised by the Underwriters that they intend to make a market in the Series 2017 Bonds but they are not obligated to do so and may discontinue market making at any time without notice. Therefore, an active trading market for the bonds may not develop, or if developed, may not continue. If an active trading market does not develop or is not maintained, Bondholders may not be able to sell the bonds at a particular time or at favorable prices. As a result, the Company cannot assure Bondholders as to the liquidity of any trading market for the Series 2017 Bonds. Accordingly, Bondholders may be required to bear the financial risk of investment in the Series 2017 Bonds indefinitely.

The trading market, if any, for the Series 2017 Bonds may experience disruptions and any such disruptions may adversely affect the prices at which the Series 2017 Bonds are sold. In addition, the Series 2017 Bonds may trade at a discount from their value on the date you acquired them depending upon prevailing interest rates, the trading market for similar securities, the Company’s performance and other factors.

Possible Loss of Tax-Exempt Status of Interest on Series 2017 Bonds

On the date of delivery of and payment for the Series 2017 Bonds, Bond Counsel will render its opinion with respect to the tax-exempt status of the interest on the Series 2017 Bonds, the form of which opinion is set forth in APPENDIX G hereto. See also “TAX MATTERS” herein.

The Indenture and the Lease Agreement contain various covenants and agreements on the part of the Company and the Issuer that are intended to establish and maintain the tax-exempt status of interest on the Series 2017 Bonds. A failure by the Issuer or the Company to comply with such covenants and agreements, including their respective remediation obligations could, directly or indirectly, adversely affect the tax-exempt status of interest on the Series 2017 Bonds. Any loss of tax-exemption could cause all of the interest received by Holders to be taxable.

If the interest on the Series 2017 Bonds is determined to be includable in gross income of registered owners of the Series 2017 Bonds for federal income tax purposes on account of a Determination of Taxability, the Series 2017 Bonds will be subject to special mandatory redemption as described under “THE SERIES 2017 BONDS—Redemption—Special Redemption Upon Determination of Taxability” above. If the interest on the Series 2017 Bonds is determined to be includable in gross income of registered owners of the Series 2017 Bonds for federal income tax purposes for any reason other than as a result of a Determination of Taxability, the Series 2017 Bonds will not be subject to special mandatory redemption. In either such event, there will be no adjustment in the interest rate on the Series 2017 Bonds and the owners will not be indemnified against losses sustained as a result of a determination that the interest on the Series 2017 Bonds is not excludable from gross income for federal income tax purposes. Further, a Determination of Taxability may not occur for a substantial period of time after interest first becomes includable in the gross income of the owners of the Series 2017 Bonds for federal income tax purposes. Additionally, if, prior to a Determination of Taxability, the lien of the Indenture has been defeased pursuant to the provisions thereof, such Series 2017 Bonds will not be subject to special mandatory redemption as a result of such Determination of Taxability.

In certain circumstances, the loss of the exclusion of interest on any Series 2017 Bonds from gross income of the owners of those Series 2017 Bonds for federal income tax purposes could be retroactive to the date of issuance of the Series 2017 Bonds. The tax liability of the owners of any Series 2017 Bonds for failure to include interest on the Series 2017 Bonds in their gross income may extend to years for which interest was received on the Series 2017 Bonds, or a portion of the Series 2017 Bonds, and for which the relevant statute of limitations has not yet run.

If the Series 2017 Bonds are redeemed as described in the foregoing paragraph, then the failure by the Company to observe any covenant, agreement or representation in the Lease Agreement or Indenture that results in a Determination of Taxability will not constitute an Event of Default under the Indenture and payment of the redemption price will constitute full and complete payment and satisfaction to the owners of the Series 2017 Bonds for any claims, damages, costs or expenses arising out of or based upon such failure by the Company.

Changes in Tax Laws Could Materially Affect an Investment in the Series 2017 Bonds

Tax laws are dynamic and subject to change as new laws and regulations are passed and new interpretations of the laws are issued or applied. The current U.S. administration and members of Congress have made public statements indicating that tax reform is a priority. In November 2017, tax reform bills were introduced in both the House and Senate, which include, among many other proposed changes, lower tax rates, preferential rates for certain investments, and in the House bill, eliminating the tax exemption for private activity bonds issued after December 31, 2017. These tax reform bills could, if enacted, have significant effects on a proposed investment in the Series 2017 Bonds, although the precise effects cannot currently be determined. It is unclear whether these tax reform proposals will become law, and if so what form they will take. The impact of any potential tax reform on an investment in the Series 2017 Bonds is uncertain. Prospective investors should consult their own tax advisors regarding the implications of potential changes in tax laws, including in light of their own particular circumstances.

CONTINUING DISCLOSURE

Paragraph (b)(5) of Securities and Exchange Commission Rule 15c2-12 requires, generally, that an underwriter may agree to purchase municipal securities from an issuer only after the underwriter has reasonably determined that the issuer and, in certain cases, other obligated persons, have undertaken in a written agreement for the benefit of the holder of the municipal securities to provide certain financial information and operating data on an annual basis and prompt notice of certain events listed in Rule 15c2- 12 to the Municipal Securities Rulemaking Board (the “MSRB”) in accordance with the Electronic Municipal Market Access (“EMMA”) facility for municipal securities disclosure of the MSRB.

In order to assist the Underwriter in complying with Rule 15c2-12, the Company will enter into a Continuing Disclosure Agreement with the Issuer and the Trustee (the “Continuing Disclosure Agreement”) for the benefit of the holders and beneficial owners of the Series 2017 Bonds to file such information annually with and to provide notice of such events to the MSRB in accordance with the EMMA system pursuant to the requirements of paragraph (b)(5) of Rule 15c2-12. In addition, in the Continuing Disclosure Agreement, the Company will agree to provide certain quarterly financial information to the MSRB in accordance with the EMMA system. The form of the Continuing Disclosure Agreement is attached as APPENDIX F hereto.

A failure by the Company to comply with the Continuing Disclosure Agreement will not constitute an Event of Default under the Indenture or the Loan Agreement, and beneficial owners of the Series 2017 Bonds are limited to the remedies described in the Continuing Disclosure Agreement. A failure by the Company to comply with the Continuing Disclosure Agreement must be reported in

accordance with Rule 15c2-12 and must be considered by any broker, dealer or municipal securities dealer before recommending the purchase or sale of the Series 2017 Bonds in the secondary market. Consequently, such failure may adversely affect the transferability and liquidity of the Series 2017 Bonds and their market price.

The Company has not previously undertaken continuing disclosure obligations with respect to its previously issued bonds.

TAX MATTERS

Exclusion of Interest on the Series 2017 Bonds from Gross Income for Federal Tax Purposes

The Code imposes certain requirements that must be met on a continuing basis subsequent to the issuance of the Series 2017 Bonds in order to assure that interest on the Series 2017 Bonds will be and remain excluded from gross income for federal income tax purposes under Section 103 of the Code. Such requirements include, among other things, rebate of arbitrage, investment limitations, use of proceeds for qualifying, exempt facilities, limitations with respect to payment of issuance costs and acquisition of land, used property and prohibited facilities. Failure of the Issuer or the Company to comply with such requirements may cause interest on the Series 2017 Bonds to be included in gross income for federal income tax purposes retroactive to the date of issuance of the Series 2017 Bonds. Except as otherwise expressly permitted by the Series 2017 Bond Documents, the Issuer and the Company have covenanted not to take any action or fail to take any action which would cause the interest on the Series 2017 Bonds to be included in gross income under Section 103 of the Code.

Assuming compliance by the Issuer and the Company with their covenants with respect to the Code, McCarter & English, LLP, Bond Counsel to the Issuer, is of the opinion that, under existing law, interest on the Series 2017 Bonds is excluded from the gross income of the owners of the Series 2017 Bonds for federal income tax purposes pursuant to Section 103 of the Code, except as to interest on any Bond for any period during which such Series 2017 Bond is held by a person who is either a "substantial user" (within the meaning of Section 147(a) of the Internal Revenue Code) of the facilities financed with the proceeds of the Series 2017 Bonds or a "related person" of such a substantial user.

Tax Treatment of Original Issue Discount

The initial public offering price of certain Series 2017 Bonds is less than the principal amount payable on such Series 2017 Bonds at maturity (the “OID Bonds”). The difference between the initial public offering price at which a substantial amount of each of the OID Bonds was sold and the principal amount payable at maturity of each of the OID Bonds constitutes original issue discount. Bond Counsel is of the opinion that the appropriate portion of the original issue discount allocable to the original and each subsequent owner of the OID Bonds will be treated for federal income tax purposes as interest not includable in gross income under Section 103 of the Code to the same extent as stated interest on the Series 2017 Bonds. Under Section 1288 of the Code, original issue discount on the OID Bonds accrues on the basis of economic accrual. The basis of an initial purchaser of an OID Bond acquired at the initial public offering price of the OID Bond will be increased by the amount of such accrued discount. Owners of the OID Bonds should consult their personal tax advisors with respect to the determination for federal income tax purposes of the original issue discount properly accruable with respect to the OID Bonds and the tax accounting treatment of accrued interest.

Tax Treatment of Original Issue Premium

The Series 2017 Bonds maturing on October 1 of 20__, 20__ and 20__ (the “Premium Bonds”) were sold at a price in excess of the amount payable at their maturity date. The excess, if any, of the tax basis of the Series 2017 Bonds to a purchaser (other than a purchaser who holds such Series 2017 Bonds as inventory, stock in trade or for sale to customers in the ordinary course of business) over the amount payable at maturity is amortizable bond premium, which is not deductible from gross income for federal income tax purposes.

Amortizable bond premium, as it amortizes, will reduce the owner’s tax cost of the Premium Bonds used to determine, for federal income tax purposes, the amount of gain or loss upon the sale, redemption at maturity or other disposition of the Premium Bonds. Accordingly, an owner of a Premium Bond may have taxable gain from the disposition of the Premium Bond, even though the Premium Bond is sold, or disposed of, for a price equal to the owner’s original cost of acquiring the Premium Bond. Bond premium amortizes over the term of the Premium Bonds under the “constant yield method” described in regulations interpreting Section 1272 of the Code. Owners of Premium Bonds should consult their own tax advisors with respect to the calculation of the amount of bond premium which will be treated for federal income tax purposes as having amortized for any taxable year (or portion thereof) of the owner and with respect to other federal, state and local tax consequences of owning and disposing of the Premium Bonds.

Additional Federal Income Tax Consequences

Under the Code, interest on the Series 2017 Bonds is an “item of tax preference” and therefore is included in calculating alternative minimum taxable income for purposes of the alternative minimum tax imposed by Section 55 of the Code on individuals and corporations.

Prospective purchasers of the Series 2017 Bonds should also be aware that ownership of, accrual or receipt of interest on, or disposition of, governmental obligations, such as the Series 2017 Bonds, may have collateral federal income tax consequences for certain taxpayers, including financial institutions, property and casualty insurance companies, S Corporations, certain foreign corporations, individual recipients of Social Security or Railroad Retirement benefits and taxpayers who may be deemed to have incurred or continued indebtedness to purchase or carry such obligations. Prospective purchasers of the Series 2017 Bonds should consult their tax advisers as to any possible collateral consequences from their ownership of, accrual or receipt of interest on, or disposition of, the Series 2017 Bonds. Bond Counsel expresses no opinion regarding any federal tax consequences other than its opinion with regard to the exclusion of interest on the Series 2017 Bonds from gross income pursuant to Section 103 of the Code.

State Taxation

Bond Counsel is of the opinion that, based upon existing law, interest on the Series 2017 Bonds and net gains from the sale of the Series 2017 Bonds are exempt from the tax imposed by the New Jersey Gross Income Tax Act.

Changes in Tax Law

Federal, state or local legislation, administrative pronouncements or court decisions may significantly affect the tax-exempt status of interest on the Series 2017 Bonds, in whole or in part, on a federal and/or state level, gain from the sale or other disposition of the Series 2017 Bonds, the market value of the Series 2017 Bonds, or the marketability of the Series 2017 Bonds, or otherwise prevent the owners of the Series 2017 Bonds from realizing the full current benefit of the exclusion from gross

income of the interest thereon. Similar tax legislation has been introduced in both houses of the United States Congress, the Tax Cuts and Jobs Act, (the “Tax Bills”). If enacted as introduced, the Tax Bills would not affect the exclusion from gross income of interest on the Series 2017 Bonds. However, the Tax Bills could significantly change the income tax rates for individuals and corporations and could, among other changes, repeal or modify the alternative minimum tax for tax years beginning after December 31, 2017, potentially affecting certain types of state and local government bonds, including the Series 2017 Bonds. No prediction can be made as to whether either of the Tax Bills will be enacted into law, be enacted in their present form, or whether any other tax legislation will be enacted.

The opinions expressed by Bond Counsel on the Series 2017 Bonds are based upon existing laws and regulations as interpreted by relevant judicial and regulatory changes as of the date of issuance of the Series 2017 Bonds, and Bond Counsel has expressed no opinion with respect to any legislation, regulatory changes or litigation enacted, adopted or decided subsequent thereto. Prospective purchasers of the Series 2017 Bonds should consult their own tax advisers regarding the potential impact of any pending or proposed federal or state tax legislation, regulations or litigation.

UNDERWRITING

The Company, the Issuer and Wells Fargo Securities, LLC (the “Underwriter”), have entered into a bond purchase agreement with respect to the Series 2017 Bonds (the “Purchase Agreement”). Subject to certain conditions detailed in the Purchase Agreement, including the issuance of the Series 2017 Bonds, the Underwriter has agreed to purchase the Series 2017 Bonds at a price equal to $______(reflecting the par amount of the Series 2017 Bonds [plus/minus] net original issue [premium/discount] of $______minus Underwriter’s discount of $______). In the Purchase Agreement, the Underwriter has agreed to purchase all of the Series 2017 Bonds if any are purchased.

The Underwriter may offer and sell the Series 2017 Bonds to certain dealers (including dealers depositing the Series 2017 Bonds into investment accounts) and to others at prices lower than the initial offering price set forth on the inside cover page of this Official Statement.

The Underwriter and its respective affiliates are full service financial institutions engaged in various activities, which may include sales and trading, commercial and investment banking, advisory, investment management, investment research, principal investment, hedging, market making, brokerage and other financial and non-financial activities and services. The Underwriter and its respective affiliates have provided, and may in the future provide, a variety of these services to the Issuer or the Company and to persons and entities with relationships with the Issuer or the Company, for which they received or will receive customary fees and expenses.

In the ordinary course of their various business activities, the Underwriter and its respective affiliates, officers, directors and employees may purchase, sell or hold a broad array of investments and actively trade securities, derivatives, loans, commodities, currencies, credit default swaps and other financial instruments for their own account and for the accounts of their customers, and such investment and trading activities may involve or relate to assets, securities and/or instruments of the Issuer or the Company (directly, as collateral securing other obligations or otherwise) and/or persons and entities with relationships with the Issuer or the Company. The Underwriter and its respective affiliates may also communicate independent investment recommendations, market color or trading ideas and/or publish or express independent research views in respect of such assets, securities or instruments and may at any time hold, or recommend to clients that they should acquire, long and/or short positions in such assets, securities and instruments.

Wells Fargo Securities is the trade name for certain securities-related capital markets and investment banking services of Wells Fargo & Company and its subsidiaries, including Wells Fargo Securities, LLC, member NYSE, FINRA, NFA, and SIPC. Wells Fargo Securities, LLC (“WFS”), the underwriter of the Series 2017 Bonds, has entered into an agreement (the “WFA Distribution Agreement”) with its affiliate, Wells Fargo Clearing Services, LLC (which uses the trade name Wells Fargo Advisors) (“WFA”), for the distribution of certain municipal securities offerings, including the Series 2017 Bonds. Pursuant to the WFA Distribution Agreement, WFS will share a portion of its underwriting compensation, as applicable, with respect to the Series 2017 Bonds with WFA. WFS has also entered into an agreement (the “WFBNA Distribution Agreement”) with its affiliate, Wells Fargo Bank, N.A., acting through its Municipal Products Group (“WFBNA”), for the distribution of municipal securities offerings, including the Series 2017 Bonds. Pursuant to the WFBNA Distribution Agreement, WFBNA pays a portion of the Underwriter’s expenses based on its municipal securities transactions. WFBNA, the Underwriter and WFA are each wholly-owned subsidiaries of Wells Fargo & Company.

A separate Wells Fargo line of business is serving as the initial Working Capital Facility provider and will be separately compensated for serving in this capacity. In addition, Wells Fargo also performs certain treasury management services for Ports America.

NO LITIGATION

The Issuer

There is not now pending or, to the knowledge of the Issuer, threatened, any litigation against the Issuer restraining or enjoining the issuance or delivery of the Series 2017 Bonds or questioning or affecting the validity of the Series 2017 Bonds or the proceedings or authority under which they are to be issued. There is no litigation pending or, to the Issuer’s knowledge, threatened against the Issuer which in any manner questions the right of the Issuer to enter into the Lease Agreement with the Company or to issue and secure the Series 2017 Bonds in the manner provided in the Indenture.

The Company

There is no controversy or litigation of any nature now pending against the Company, or to the knowledge of its officers, threatened, which, if successful, would in the view of the Company have a material adverse effect on the long-term financial condition and operations of the Company.

RATING

The Series 2017 Bonds will be rated “Ba1” (stable outlook) by Moody’s Investors Service (“Moody’s”). Such rating reflects only the view of Moody’s at the time the rating is issued, and any explanation of the significance of such rating may only be obtained from Moody’s. There is no assurance that any such credit rating will remain in effect for any given period of time or that such rating will not be raised, lowered, suspended or withdrawn entirely by Moody’s, if, in Moody’s judgment, circumstances so warrant. Any such raising, lowering, suspension or withdrawal of any rating may have an adverse effect on the market price or marketability of the Series 2017 Bonds.

SUITABILITY FOR INVESTMENT

Investment in the Series 2017 Bonds poses certain economic risks. The Series 2017 Bonds may not be a suitable investment for certain purchasers and each purchaser should make its own judgment as to suitability. No dealer, broker or salesman or other person has been authorized by the Issuer or

Company to give any information or make any representations, other than those contained in this Official Statement, and, if given or made, such other information or representations must not be relied upon as having been authorized by either of the foregoing.

INDEPENDENT AUDITOR

The consolidated financial statements of the Company as of December 31, 2016, 2015 and 2014 and for the years then ended, which are included in APPENDIX C hereto, have been audited by Ernst & Young LLP, independent auditors, as stated in their reports appearing herein.

LEGAL MATTERS

The issuance of the Series 2017 Bonds is subject to the approving opinion of McCarter & English, LLP, Newark, New Jersey, Bond Counsel, as to the validity of the issuance of the Series 2017 Bonds. See APPENDIX G hereto for the form of the approving opinion of Bond Counsel. Certain legal matters will be passed upon by Cleary Gottlieb Steen & Hamilton LLP, New York, New York, as counsel to the Company, by DLA Piper LLP (US), Short Hills, New Jersey, as New Jersey counsel to the Company, and by Ballard Spahr LLP, Cherry Hill, New Jersey, as counsel to the Underwriter.

MISCELLANEOUS

The references herein to the Indenture, the Lease Agreement, the Collateral Agency Agreement and certain other agreements are brief summaries of certain provisions thereof. Such summaries do not purport to be complete and are subject to, and qualified in their entirety by reference to, all of the provisions of such agreements. Copies of such documents are on file at the principal corporate trust office of the Trustee. Copies of such documents are available from the Trustee upon written request by Holders of the Series 2017 Bonds.

The Company has reviewed the information contained herein that relates to it, its properties and operations, and has approved all such information for use within this Official Statement.

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APPENDIX A DEFINITIONS OF CERTAIN TERMS

“Acceptable Letter of Credit” means a letter of credit issued by an Acceptable Letter of Credit Bank.

“Acceptable Letter of Credit Bank” means any bank or other legally authorized Person, provided that at the time of the delivery of the Acceptable Letter of Credit, such entity shall have a minimum credit rating of at least “A-” or its equivalent from at least one Nationally Recognized Rating Agency.

“Act” means the New Jersey Economic Development Authority Act, constituting Chapter 80 of the Pamphlet Laws of 1974 of the State of New Jersey approved on August 7, 1974, as amended and supplemented from time to time.

“Act of Bankruptcy” occurs immediately if and when (a) a petition in bankruptcy is filed by the relevant party under the Federal or state bankruptcy code or a receivership, conservatorship, insolvency, assignment for the benefit of creditors or other similar proceedings is commenced by the relevant party under the Federal or state bankruptcy code or (b) a petition in bankruptcy is filed against the relevant party under the Federal or state bankruptcy code or a receivership, conservatorship, insolvency, assignment for the benefit of creditors or other similar proceedings is commenced against the relevant party under the Federal or state bankruptcy code which is (i) consented to or not timely contested by such party, (ii) results in the entry of an order for relief or (iii) is not dismissed within 60 days.

“Additional Bonds” means additional bonds issued under the Indenture, which additional bonds shall be equally and ratably secured with the Series 2017 Bonds, without preference, priority or distinction.

“Additional Financing Documents” means any documents and/or instruments evidencing, documenting, securing or otherwise relating to any or all of the obligations relating to the applicable Additional Obligations, as the same may from time to time be amended, modified, extended, renewed and/or restated.

“Additional Obligations” means any Parity Obligation issued from time to time satisfying the conditions of “Additional Obligations” set forth under the Collateral Agency Agreement, subject to the terms of the Intercreditor Agreement and the Collateral Documents.

“Additional Parity Creditor” means a holder or creditor of any Additional Obligation.

“Administration Expense Guaranty” means the Administration Expense Guaranty dated as of December 1, 2017, by the Company in favor of the Issuer.

“Administration Expenses” means the reasonable expenses incurred with respect to the Lease Agreement, the Indenture and any transaction or event contemplated by the Lease Agreement or the Indenture, including, without limitation, the compensation and reimbursement of the reasonable expenses and advances (including reasonable counsel fees) payable to the Issuer, the Trustee, the Port Authority, the Paying Agent, any Co-Paying Agent and the Registrar.

“Affiliate” means any person which controls or is controlled by the Company or is under common control with the Company, as set forth below: (a) one person shall be deemed to control another if it owns more than 50% of the outstanding voting stock of or other equity interest in the other, or it has the power to elect more than 50% of the governing body of the other; and (b) such control may be

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exercised by one person over another directly, indirectly through control over a third party, or jointly with one or more controlled third parties.

“Annual Forecast” means the operating plan and budget prepared by the Company for the next succeeding Fiscal Year, setting forth, on a monthly basis, in reasonable detail and by category, all projected Revenues, projected Operating Expenses, and a revised Maintenance Plan.

“Arbitrage Certificate” means the Arbitrage Certificate dated as of the Closing Date and delivery of any series of Bonds, furnished by the Issuer and based upon a certificate furnished by the Company.

“Authorized Company Representative” means the Person or Persons at the time designated to act on behalf of the Company. As of the date of issuance for the Series 2017 Bonds the Authorized Company Representatives are the Chief Executive Officer, President and the Chief Financial Officer of the Company.

“Authorized Denominations” means denominations of $100,000 and any integral multiple of $5,000 in excess of $100,000; provided, however, that in the event the Series 2017 Bonds achieve an Investment Grade Rating, the denominations shall be reduced to $5,000 and any integral multiple thereof.

“Bankruptcy Code” means the federal Bankruptcy Code as currently in effect and as amended from time to time, as well as any replacement statute therefor.

“Bankruptcy Law” means the Bankruptcy Code and any similar federal, state, or foreign bankruptcy, insolvency, receivership, or similar law affecting creditors’ rights generally.

“Beneficial Owners” means purchasers of beneficial interests in the Series 2017 Bonds.

“Bond Counsel” means McCarter & English, LLP, or other attorneys selected by the Issuer, with the consent of the Company, which consent shall not be unreasonably withheld, who have nationally recognized expertise in the issuance of municipal securities, the interest on which is excluded from gross income for federal and state income tax purposes.

“Bond Documents” means the Indenture, the Lease Agreement, the Guaranty and the Administration Expense Guaranty.

“Bond Financing Documents” means the Bond Documents, any Supplemental Indenture executed with respect to the Bonds, the Series 2017 Bonds, any Additional Bonds, the Consent, the Collateral Documents, the Continuing Disclosure Agreement, the Arbitrage Certificate, the Representation Letter, and any fee letter entered into by the Company with the Underwriter or the Issuer, all as the same may from time to time be amended, modified, extended, renewed and/or restated.

“Bonds” means the Series 2017 Bonds and any Additional Bonds.

“Bonds Construction Account” means the “Bonds Construction Account” established in the Construction Fund pursuant to the Collateral Agency Agreement.

“Business Day” means a day of the year other than (a) a Saturday or Sunday, (b) a day on which commercial banks located in New York City and New Jersey are required or authorized to remain closed or (c) a day on which the New York Stock Exchange is closed.

“Calculation Date” means each March 31 and September 30 of each calendar year.

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“Capital Expenditure” means any capital expenditure incurred by the Company in connection with the Terminal.

“Capital Lease” means any lease of property, real or personal, that, in accordance with generally accepted accounting principles, would be required to be capitalized on a balance sheet of the lessee thereof.

“Capital Lease Debt Service Account” means the “Capital Lease Debt Service Account” established and created in the name of the Collateral Agent pursuant to the Collateral Agency Agreement.

“Capital Lease Obligation” means any payment obligation of the Company pursuant to a Capital Lease.

“Capital Lease Payment Date” means the lease payment date set forth in the applicable Financing Document with respect to the relevant Capital Lease Obligation.

“Capital Lease Provider” means any provider of a Capital Lease.

“Casualty Event” means an event that causes all or a portion of the Terminal to be damaged, destroyed or rendered unfit for normal use for any reason whatsoever, other than a Condemnation Event.

“Casualty Proceeds” means, with respect to any Casualty Event, all proceeds of insurance (other than proceeds of business interruption insurance and loss of advance profits insurance, which shall constitute Revenues) received by the Company (whether by way of claims, return of premiums, ex gratia settlements or otherwise) in connection with such Casualty Event, less any costs reasonably incurred by the Company to receive such Casualty Proceeds.

“Closing Date” means December ___, 2017.

“Code” means the Internal Revenue Code of 1986, as amended.

“Collateral” means all of the following personal property owned by the Company (other than Excluded Collateral), whether now owned or hereafter acquired and wherever located:

(a) Accounts; Chattel Paper; Deposit Accounts and any and all other bank accounts; Documents; Financial Assets; Fixtures; General Intangibles including all intellectual property; Goods; Instruments; Investment Property and all credit balances in Securities Accounts; Money; and Letter of Credit Rights (each as defined in Article 9 of the UCC);

(b) all moneys due and to become due to the Company in repayment of any loans or advances, in payment of tax refunds, insurance refund claims and all other insurance claims, and proceeds;

(c) insurance required to be maintained by the Company pursuant to the terms of the Lease Agreement and any other insurance policies issued with respect to the Terminal;

(d) the Company’s books and records concerning the Collateral;

(e) any commercial tort claims now or hereafter described in the Security Agreement;

(f) all Project Accounts, including the Reserve Funds, and funds deposited therein and all monies, bond proceeds, revenues, funds, instruments, securities and all other property from time to time credited to such Project Accounts;

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(g) to the maximum extent assignable, all agreements and contracts, in each case, to which the Company is a party or of which it is a beneficiary (as amended, supplemented, amended and restated or otherwise modified and in effect from time to time), including (A) all contracts and agreements related to the Terminal to which the Company is a party or of which it is a beneficiary and (B) each and every bond, indemnity, warranty, guaranty and other similar document relating to the performance by any party (other than the Company) of any of the foregoing;

(h) to the maximum extent assignable all Governmental Approvals now or hereafter held in the name, or for the benefit, of the Company;

(i) to the extent not otherwise included above, all other personal property of any kind; and

(j) to the extent not otherwise included above, all proceeds, products, accessions, additions, substitutions, rents and profits of, to or in respect of any of the foregoing;

provided, however, that:

(1) “Collateral” shall not include (i) any Excluded Collateral, (ii) any right, title or interest in any of the items described above which has been released from the Liens created under the Security Agreement, (iii) any Personal Property and Gantry Cranes or (iv) any of the funds or accounts established and maintained under the Indenture;

(2) the Lien on (1) the Series 2017 Debt Service Reserve Account within the Debt Service Reserve Fund (and all proceeds thereof and earnings thereon) is in favor of the Collateral Agent solely for the benefit of Trustee on behalf of the holders or owners of the Series 2017 Bonds until such funds have been disbursed in accordance with the terms of the Collateral Agency Agreement, (2) the Bonds Construction Account within the Construction Fund (and all proceeds thereof and earnings thereon) is in favor of the Collateral Agent solely for the benefit of Trustee on behalf of the holders or owners of Bonds until such funds have been disbursed in accordance with the terms of the Collateral Agency Agreement, (3) any additional sub-account of the Debt Service Reserve Fund established with respect to any Additional Obligations (and all proceeds thereof and earnings thereon) is in favor of the Collateral Agent solely for the benefit of the Secured Creditor acting on behalf of the holders or owners of the applicable Additional Obligations until such funds have been disbursed in accordance with the terms of the Collateral Agency Agreement, (4) any additional sub-account of the Construction Fund established for the deposit of any proceeds of Additional Obligations, as the case may be (and all proceeds thereof and earnings thereon) is in favor of the Collateral Agent solely for the benefit of the Secured Creditor acting on behalf of the owners of the applicable Additional Obligations until such funds have been disbursed in accordance with the terms of the Collateral Agency Agreement and (5) any additional sub-account of the Construction Fund established for the deposit of any proceeds of Subordinate Obligations, as the case may be (and all proceeds thereof and earnings thereon) is in favor of the Collateral Agent solely for the benefit of the Subordinate Lender until such funds have been disbursed in accordance with the terms of the Collateral Agency Agreement; and

(3) Working Capital Loan Obligations shall only be secured by the Working Capital Collateral.

“Collateral Agency Agreement” means that certain Collateral Agency Agreement, dated as of December 1, 2017, by and among the Collateral Agent, the Working Capital Loan Provider, the Trustee, U.S. Bank National Association, as Securities Intermediary, and the Company, as amended or supplemented from time to time.

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“Collateral Agent” means U.S. Bank National Association, or any Person appointed to replace such Person with the authority to exercise and perform the rights and duties of the Collateral Agent under the Collateral Documents.

“Collateral Documents” means the collective reference to the Security Agreement, the Intercreditor Agreement, the Collateral Agency Agreement, each Control Agreement entered into with a Deposit Account Bank and any other agreement or instrument hereafter entered into by the Company or any other Person which secures payment of the Parity Lien Obligations of the Company under the Financing Documents.

“Company Rent” means the payments to be made by the Company under the Lease Agreement.

“Company Sublease” means the sub-sub-sublease of the Leased Premises by the Issuer to the Company pursuant to the Lease Agreement.

“Completion Date” means the date of substantial completion of the Construction of the 2017 Facility, as that date shall be certified as provided in the Lease Agreement.

“Condemnation Event” means any action (or series of related actions) by any Governmental Authority (a) by which such Governmental Authority appropriates, confiscates, condemns, expropriates, nationalizes, seizes or otherwise takes all or any portion of the Collateral or the Terminal or (b) by which such Governmental Authority assumes custody or control of all or any portion of the Terminal, in each case that is reasonably anticipated to last for more than one hundred twenty (120) consecutive days.

“Condemnation Proceeds” means, with respect to any Condemnation Event, all proceeds received by the Company from the applicable Governmental Authority in connection with such Condemnation Event, less any costs reasonably incurred by the Company in order to receive such Condemnation Proceeds.

“Consent” means the Consent to Subleases Agreement dated as of December 1, 2017, by and among the Port Authority, the Trustee, the Issuer and the Company.

“Construction” means, when used with respect to the 2017 Facility, the construction of the 2017 Facility, within the meaning of the Act, and shall include, without limitation, the acquisition, improvement and equipping of the 2017 Facility.

“Construction Fund” means the “Construction Fund” established and created in the name of the Collateral Agent pursuant to the Collateral Agency Agreement.

“Contractor’s Completion Certificate” means the certificate or certificates executed by the construction contractors and any subcontractors, upon substantial completion of construction of the 2017 Facility, if any, in form and substance acceptable to the Issuer.

“Control Agreement” means each of (a) the control agreements among the Company, the Collateral Agent and the Deposit Account Bank with respect to the Operating Account and (b) each control agreement reasonably acceptable to the Collateral Agent acting at the direction of the Required Agent (acting in accordance with the Intercreditor Agreement), with a successor Deposit Account Bank.

“Costs of Issuance” include the following:

(a) expenses necessary or incidental to determining the feasibility or practicability of the issuance and sale of the Series 2017 Bonds, the fees and expenses of management consultants for making studies, surveys and estimates of costs and revenues and other estimates necessary to the issuance of the

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Series 2017 Bonds (as opposed to such studies, surveys or estimates related to completion of the Project, but not to the issuance of the Series 2017 Bonds);

(b) Administration Expenses, any expenses of supervision and inspection properly chargeable to the issuance and sale of the Series 2017 Bonds, legal expenses and fees of the Issuer or the Company in connection with the issuance and sale of the Series 2017 Bonds, other legal expenses and fees, fees and expenses of the Trustee, fees and expenses of the Intercreditor Agent, fees and expenses of the Underwriter, financial advisors or brokers in arranging for the sale or placement of the Series 2017 Bonds, financing charges, remarketing fees, cost of audits, cost of preparing, issuing and selling the Series 2017 Bonds, abstracts and reports on titles to real estate, title insurance premiums, recording fees and taxes and all other items of expense, including those of the Issuer or the Company not elsewhere specified herein incident to the issuance and sale of the Series 2017 Bonds;

(d) reimbursement to the Company for any costs described above paid by it, as applicable, whether before or after the execution of the Indenture or any supplemental indenture.

“Costs of the Project,” “Costs of Construction” or “Costs” with respect to the Project shall be deemed to include all items permitted to be financed under the provisions of the Act, including but not limited to:

(a) all amounts necessary to refund and redeem the Series 2003 Bonds;

(b) all costs which the Issuer or the Company shall be required to pay under the terms of any contract or contracts for the construction of the 2017 Facility;

(c) obligations of the Company incurred for labor and materials (including obligations payable to the Company) in connection with the construction of the 2017 Facility, including reimbursement to the Company for all advances and payments made in connection with the 2017 Facility, whether prior to or after delivery of the Series 2017 Bonds;

(d) the cost of performance or other bonds and any and all types of insurance that may be necessary or appropriate to have in effect during the course of construction of the 2017 Facility;

(e) all costs of engineering, architectural and other professional services, including the costs of the Issuer, the Port Authority or the Company for test borings, surveys, estimates, plans and specifications and preliminary investigations therefor, and for allocated overheads pertaining to construction of the 2017 Facility and for supervising construction of the 2017 Facility, as well as for the performance of all other duties required by or consequent to the proper construction of the 2017 Facility, including related legal and accounting costs;

(f) the cost of acquiring any property, real, personal or mixed, tangible or intangible, by purchase, lease or otherwise (including transfer taxes, if any), or any interest therein, rights-of-way, franchises, easements and other interests in land, necessary or desirable in connection with the construction or operation of the 2017 Facility, and all fees and expenses incident thereto, including, without limitation, the cost of abstracts of title, title insurance, title opinions, other legal fees and costs of surveys and reports;

(g) any sums required to reimburse the Company for expenses or advances made by the Company for any of the above items or for any other costs incurred and for work done by the Company which are properly chargeable to the Project;

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(h) interest on the Series 2017 Bonds prior to the completion of construction of the 2017 Facility and commencement of operation of the 2017 Facility;

(i) funding of certain reserves;

(j) Costs of Issuance; and

(k) payment of any other costs permitted by the Act which will not adversely affect the exclusion from gross income for federal income tax purposes of interest on the Series 2017 Bonds.

“Debt” of any Person at any date means, without duplication, (a) all obligations of such Person for borrowed money, (b) all obligations of such Person evidenced by bonds, debentures, notes or other similar instruments, (c) all obligations of such Person to pay the deferred purchase price of property or services (excluding (x) trade accounts payable arising in the ordinary course of business, (y) any earn-out obligation until such obligation becomes a liability on the balance sheet of such Person in accordance with GAAP and if not paid after being due and payable and (z) expenses accrued in the ordinary course of business), (d) all Capital Lease Obligations, (e) all unconditional obligations of such Person to purchase, redeem, retire, defease or otherwise acquire for value any capital stock or other equity interests of such Person or any warrants, rights or options to acquire such capital stock or other equity interests, (f) all deferred obligations of such Person to reimburse any bank or other Person in respect of amounts paid or advanced under a letter of credit or other similar instrument, (g) all Debt of the kind described in clauses (a) through (f) of others secured by a Lien on any asset of such Person, whether or not such Debt is assumed by such Person, and (h) obligations in respect of any interest rate swap agreement, interest rate cap agreement, interest rate collar agreement or other similar agreements or arrangements which is designed to protect against fluctuations in interest rates; provided that the term “Debt” shall not include (i) deferred or prepaid revenue, (ii) purchase price holdbacks in respect of a portion of the purchase price of an asset to satisfy warranty, indemnity or other unperformed obligations of the seller, (iii) any obligations attributable to the exercise of appraisal rights and the settlement of any claims or actions (whether actual, contingent or potential) with respect thereto or (iv) Debt of any Person that is a direct or indirect parent of the Company appearing on the balance sheet of the Company, or solely by reason of push down accounting under GAAP.

“Debt Service” means, with regards to any applicable obligations of the Company (excluding any Shareholder Loans), the principal of, premium, if any, and interest on such obligations, required to be paid for any period, whether due on a Payment Date, at maturity or upon acceleration, tender or redemption, but excluding (i) fees and expenses (including any penalties and interest relating to Taxes) associated with the consummation of the Project, (ii) annual agency fees paid to the administrative agents and collateral agents under any credit facilities or other debt instruments or documents, (iii) costs associated with obtaining swap agreements and any one-time cash costs associated with breakage in respect of swap agreements for interest rates, (iv) fees and expenses (including any penalties and interest relating to Taxes) associated with any investment, the issuance of Equity Interests or indebtedness, (v) any interest component relating to accretion or accrual of discounted liabilities, (vi) all non-recurring cash interest expense consisting of liquidated damages for failure to timely comply with registration rights obligations and (vii) amortization of deferred financing fees, debt issuance costs, commissions, fees and expenses or expensing of any financing fees or prepayment or redemption premiums or penalty and any other amounts of non-cash interest (including as a result of the effects of acquisition method accounting or pushdown accounting). All determinations of the applicable amount of Debt Service due on the Bonds on any applicable Payment Date shall be made in accordance the Collateral Agency Agreement.

“Debt Service Coverage Ratio” means with respect to any period of time, (a) the Net Cash Flow for such period, divided by (b) Total Debt Service for such period.

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“Debt Service Fund” means the “Debt Service Fund” established and created in the name of the Collateral Agent pursuant to the Collateral Agency Agreement.

“Debt Service Reserve Fund” means the “Debt Service Reserve Fund” established and created in the name of the Collateral Agent pursuant to the Collateral Agency Agreement.

“Debt Service Reserve Letter of Credit” means an Acceptable Letter of Credit meeting the requirements of the Collateral Agency Agreement, which is issued by an Acceptable Letter of Credit Bank in favor of the Collateral Agent, delivered to the Collateral Agent for deposit into the Debt Service Reserve Fund, and which may be substituted for cash on deposit in the Debt Service Reserve Fund at the instruction of the Company, or any substantially similar letter of credit issued by an Acceptable Letter of Credit Bank.

“Debt Service Reserve Required Balance” means, respectively and as the case may be, (a) the Series 2017 Debt Service Reserve Required Balance and (b) any other reserve required balance associated with any other sub-account of the Debt Service Reserve Fund created in connection with any Additional Bonds.

“Defeasance Escrow Account” means the “Defeasance Escrow Account” established and created pursuant to the Indenture.

“Deposit Account Bank” means the financial institution with which the Operating Account is established pursuant to the Collateral Agency Agreement, and any Person appointed to replace such Person pursuant to the “Change of Deposit Account Bank” section under the Collateral Agency Agreement.

“Depository” means any securities depository that is a clearing agency or corporation under federal and state law operating and maintaining, with its participants or otherwise, a Book-Entry System to record ownership of Book-Entry interests in bonds, and to effect transfers of Book-Entry interests in bonds in Book-Entry Form, and includes and means initially The Depository Trust Company (a limited purpose trust company), New York, New York.

“Designated Representative” means, at any time: (a) with respect to the Series 2017 Bonds and the Additional Bonds, the Trustee and the Parity Lien Agent; and (b) with respect to any other Additional Obligations, any Additional Parity Creditor (or if applicable, any agent or trustee performing an administrative or fiduciary role for an Additional Parity Creditor pursuant to an Additional Financing Document) and the Parity Lien Agent.

“Determination of Taxability” means the occurrence of any of the following:

(a) the delivery of written notice (the “Audit Notice”) to the Company by the Issuer declaring that an examination of any of the Series 2017 Bonds has been undertaken by the IRS, such Audit Notice to be effective thirty (30) days after the giving of the same, unless prior thereto the Company files written notice with the Issuer that it intends to participate in the audit process, at its own expense, to obtain a written determination from the IRS affirming that the interest on such Series 2017 Bonds is excluded from gross income, and agrees in writing to reimburse the Issuer in accordance with the Lease Agreement. In the event the final IRS determination is adverse, the Audit Notice will be effective thirty (30) days after the receipt of such final determination;

(b) the delivery of written notice (the “Taxability Notice”) by an Owner to the Issuer and the Company declaring that the IRS has issued to such Owner a proposed deficiency, the effect of which (in the opinion of such Owner) is to assert that the interest on any of the Series 2017 Bonds is included in the gross income of such Owner, such Taxability Notice to be effective thirty (30) days after the giving of the

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same, subject to a stay of such 30-day period for the period of litigation if prior thereto the Company agrees in writing to participate in and defend a final judicial determination (including, at the Company’s discretion, any or all appeals) to affirm that the interest on such Series 2017 Bonds is excluded from gross income and agrees in writing to reimburse the Issuer in accordance with the Lease Agreement. In the event the final judicial determination is adverse, the Taxability Notice will be effective thirty (30) days after the entry of such final judicial determination; or

(c) the delivery of written notice by the Company to the Issuer declaring that a violation of one of the Tax Covenants has occurred or will occur on a specified date (other than by reason of any of the events described in the foregoing subparagraphs (a) and (b)), which the Company has determined (with the assistance of counsel) cannot be cured by appropriate remedial action under Treasury Regulation 1.141-12 or other IRS remedial relief, and describing the violation, such notice to become effective thirty (30) days after the giving of same.

“Discharge” means, with respect to any Obligations, the payment in full in cash (other than contingent indemnification obligations for which no claim has been asserted) in accordance with the terms of the Financing Documents governing such Obligations, unless such payment in full occurs in connection with a Refinancing of such Obligations. The term “Discharged” shall have a corresponding meaning.

“Dispose” or “Disposition” means any sale, transfer, lease, contribution or other conveyance (including by way of merger) of, or the granting of options, warrants or other rights to, any of the Company’s assets (including accounts receivable) to any other Person in a single transaction or series of transactions.

“Documents” means

(a) the Lease Agreement and the other Bond Documents,

(b) the Additional Financing Documents and instruments evidencing the Additional Obligations,

(d) each other agreement, document, or instrument securing, providing for, or evidencing a Parity Obligation or a Subordinate Obligation, and

(e) any other document or instrument executed or delivered at any time in connection with the Company’s obligations under the Bond Documents or the Additional Financing Documents and instruments evidencing the Additional Obligations.

“Enforcement Action” means an action under applicable law to:

(a) foreclose, execute, levy, or collect on, take possession or control of, sell or otherwise realize upon (judicially or non-judicially), or lease, license, or otherwise Dispose of (whether publicly or privately), Collateral, or otherwise exercise or enforce any remedial right or remedy with respect to any Collateral (including by way of setoff, recoupment, notification of a public or private sale or other Disposition pursuant to the UCC or other applicable law, notification to account debtors, notification to depositary banks under deposit account control agreements, or exercise of rights under landlord consents, if applicable) or exercise of any right under the Collateral Agency Agreement,

(b) solicit bids from third Persons to conduct the liquidation or Disposition of Collateral or to engage or retain sales brokers, marketing agents, investment bankers, accountants, appraisers,

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auctioneers, or other third Persons for the purposes of valuing, marketing, promoting, and selling Collateral,

(d) otherwise enforce a security interest or exercise another right or remedy, as a secured creditor or otherwise, pertaining to any of the Collateral at law, in equity, or pursuant to the Senior Documents, or

(e) effect the Disposition of Collateral (other than in the ordinary course of business) by the Company after the occurrence and during the continuation of an Event of Default under the Senior Documents with the consent of the Parity Lien Agent, provided that, “Enforcement Action” will not be deemed to include the commencement of, or joinder in filing of a petition for commencement of, an Insolvency Proceeding against the owner of Collateral.

“Equity Construction Account” means the “Equity Construction Account” established and created in the name of the Collateral Agent pursuant to the Collateral Agency Agreement.

“Event of Default” means, with respect to the Indenture, any “Event of Default” as defined in the Indenture; with respect to the Lease Agreement, any “Event of Default” as defined in the Lease Agreement; with respect to any other existing Financing Document, any “Event of Default” as defined thereunder; and an “event of default” or similar term reflecting a breach or default and expiration of all applicable cure or grace periods as defined in any other Additional Financing Document with respect to Additional Obligations having an aggregate principal amount of $20,000,000.

“Excluded Collateral” means (i) any property to the extent an interest therein would result in a material adverse tax consequence (as determined in good faith by the Company); (ii) any intent-to-use trademark applications filed in the United States Patent and Trademark Office, pursuant to Section 1(b) of the Lanham Act, 15 U.S.C. Section 1051, prior to the accepted filing of a “Statement of Use” and issuance of a “Certificate of Registration” pursuant to Section 1(d) of the Lanham Act or an accepted filing of an “Amendment to Allege Use” whereby such intent-to-use trademark application is converted to a “use in commerce” application pursuant to Section 1(c) of the Lanham Act; (iii) any intellectual property if the grant of such security interest would constitute or result in the abandonment of, invalidation of, voiding or rendering unenforceable any of its right, title or interest therein or result in a breach of the terms of, or constitute a default under any intellectual property license or other legally binding agreement related to such intellectual property; (iv) any Deposit Account used exclusively for the payment of insurance premiums; (v) any equity interests in joint ventures and non-wholly-owned Subsidiaries, to the extent a pledge thereof cannot be made without the consent of one or more third parties under the relevant organizational documents (or comparable documents), any stockholder agreement or comparable joint venture agreement or any similar legally binding arrangements; (vi) any property interest to the extent a grant of a security interest would, under the terms of such agreement or otherwise, result in a breach of the terms of, or constitute a default under, or result in the termination of any such agreement, or require a consent of a third party or would be prohibited by any requirement of applicable law or require a consent not obtained of any relevant Government Authority or other third party pursuant to such requirements of law; (vii) any leased property (including any property leased pursuant to any operating lease or Capital Lease) and any property subject to any Purchase Money Obligation; (viii) any right, title or interest in any of the items described in the definition of “Collateral” which has been released in accordance with the terms hereof; (ix) any Personal Property and Gantry Cranes; (x) the Payroll Accounts and the Shareholder Loan Accounts and any funds therein; and (xi) any of the funds or accounts established and maintained under the Indenture.

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“Facility” means, collectively, the 2003 Facility and the 2017 Facility.

“Favorable Opinion of Bond Counsel” means an unqualified opinion of Bond Counsel addressed to the Issuer, the Trustee and the Company to the effect that the action proposed to be taken is permitted by the Act, the Indenture and the Lease Agreement, and will not for purposes of federal income taxation adversely affect the exclusion from gross income of interest on the series of Bonds for which action is proposed to be taken.

“Financial Officer” means the chief financial officer, principal accounting officer, treasurer or corporate controller.

“Financing Documents” means the Bond Documents, the Bond Financing Documents, the Additional Financing Documents, the Capital Leases, the Working Capital Loan Documents, any Interest Hedging Agreements, the Port Authority Consent, the Collateral Agency Agreement, the Security Agreement, any other Document (including any Document in respect of any Purchase Money Obligation), and each other document or instrument required to be executed and delivered by the aforementioned agreements.

“Fiscal Year” means the Company’s fiscal year, which currently begins on January 1 and ends on December 31 of each calendar year.

“Fixed Operating Expenses” means all actual cash fixed expenses incurred by or for the account of the Company for operation and maintenance of the Terminal, including without limitation, payment for fixed costs of labor and terminal management not included in selling, general and administrative cost; expenses for snow removal, site cleaning and building costs; the costs of utilities at the Terminal, excluding crane electricity; base terminal rent; insurance premiums; expenses for contract services for the operation of the dock rail facility; and cost for IT maintenance and services.

“Funds Transfer Certificate” means a certificate prepared by the Company in accordance with the terms of the Collateral Agency Agreement containing the certifications by the Company required by the Collateral Agency Agreement with respect to a requested transfer of funds from and/or to any of the Project Accounts.

“GAAP” means generally accepted accounting principles.

“Gantry Cranes” means those certain gantry cranes included in the 2017 Facility, which are not or have not become a part of the premises under the Port Authority Lease.

“Government Securities” means (a) direct obligations of the United States of America for the payment of which the full faith and credit of the United States of America is pledged, including State and Local Government Series (“SLGS”) of such direct obligations; (b) obligations issued by a person controlled or supervised by and acting as an agency or instrumentality of the United States of America, the payment of the principal of, premium, if any, and interest on which is fully guaranteed as a full faith and credit obligation of the United States of America (including any securities described in (a) or (b) issued or held in book-entry form on the books of the Department of the Treasury of the United States of America or Federal Reserve Bank); and (c) securities evidencing ownership of the right to payment of specific principal or interest payments on an obligation described in (a) or (b) above, provided that such securities were created by or on behalf of the issuer of the applicable obligation and are held in the custody of a bank or trust company having a reported capital, surplus and undivided profits of at least $25,000,000 and a rating on its unsecured, unenhanced short-term obligations in the highest short-term category by at least one Nationally Recognized Rating Agency, in a special account separate from the general assets of such custodian.

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“Governmental Approvals” means any authorization, consent, approval, waiver, exception, variance, filing, permit, orders, license, exemption and declaration of or with any Governmental Authority.

“Governmental Authority” means any federal, state, or local government, and any agency, authority, board, regulatory body, court, or other entity exercising executive, legislative, or judicial functions.

“Guaranty Agreement” means the Guaranty Agreement dated as of December 1, 2017, by and between the Company and the Trustee.

“Independent Consultant” means an independent consultant, consulting firm, architect, architectural firm, accountant or accounting firm, or other expert recognized to be well-qualified for work of the character required and retained by the Company to perform acts and carry out the duties required of such consultant in the Lease Agreement and the other Financing Documents.

“Indenture” means the Indenture of Trust dated as of December 1, 2017, by and between the Issuer and the Trustee, as amended or supplemented from time to time.

“Insolvency Proceeding” means an Act of Bankruptcy.

“Intercreditor Agreement” means the Intercreditor Agreement dated as of December 1, 2017 among U.S. Bank National Association, as Trustee, Parity Lien Agent, and Collateral Agent, the Company, the Working Capital Loan Provider and the other Acceding Parties from time to time party thereto.

“Interest Hedging Agreement” means any agreement entered into after the Closing Date by the Company and an Interest Hedging Bank in form and substance reasonably satisfactory to the Required Agent (acting in accordance with the terms of the Intercreditor Agreement) and the Company, for an Interest Hedging Transaction.

“Interest Hedging Banks” means any entity having a rating of “BBB” or its equivalent from a Nationally Recognized Rating Agency that becomes a party to an Interest Hedging Agreement and which has become a party to the Intercreditor Agreement by joinder or otherwise, and their respective successors and assigns.

“Interest Hedging Obligations” means, collectively, the payment of (a) all scheduled amounts payable to the Interest Hedging Banks by the Company under any Interest Hedging Agreements (including interest accruing after the date of any filing by the Company of any petition in bankruptcy or the commencement of any bankruptcy, insolvency or similar proceeding with respect to the Company), net of all scheduled amounts payable to the Company by such Interest Hedging Banks, and (b) all other Debt, fees, indemnities and other amounts payable by the Company to the Interest Hedging Banks under such Interest Hedging Agreements, net of all other indebtedness, fees, indemnities and other amounts payable by the Interest Hedging Banks to the Company under such Interest Hedging Agreements; provided, that Interest Hedging Obligations shall not include Interest Hedging Termination Obligations. For the avoidance of doubt, all calculations of such amounts payable under the Interest Hedging Agreements shall be made in accordance with the terms of the applicable Interest Hedging Agreement.

“Interest Hedging Termination Obligations” means the aggregate amount payable to the Interest Hedging Banks by the Company upon the early unwind of all or a portion of the Interest Hedging Agreements, net of all amounts payable to the Company by such Interest Hedging Banks upon the early unwind of all or a portion of such Interest Hedging Agreements. For the avoidance of doubt, all

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calculations of such amounts payable under the Interest Hedging Agreements shall be made in accordance with the terms of the applicable Interest Hedging Agreement.

“Interest Hedging Transaction” means any interest rate protection agreement, interest rate swap transaction, interest rate “cap”, “collar” or “floor” transaction, interest rate future, interest rate option or other interest rate hedging arrangement.

“Interest Payment Account” means the “Interest Payment Account” established and created in the name of the Collateral Agent pursuant to the Collateral Agency Agreement.

“Interest Payment Date” means, (a) with respect to the Series 2017 Bonds, April 1 and October 1 of each calendar year or if such date is not a Business Day, then the Business Day succeeding such April 1 and October 1, commencing on April 1, 2018, (b) with respect to the Working Capital Loan, the interest payment date set forth in the Working Capital Loan Documents and (c) with respect to any Additional Obligation, the interest payment date set forth in the applicable Additional Financing Document or the date on which the interest portion of Debt Service in respect of such Additional Obligation is due, as applicable; provided that, in each case, if such day is not a Business Day, the Interest Payment Date shall mean the next succeeding Business Day.

“Investment Grade Rating” means a rating in one of the four highest categories (without regard to subcategories within such rating categories) by a Nationally Recognized Rating Agency.

“Law” means any current or future order, writ, injunction, decree, judgment, law, ordinance, decision, opinion, ruling, statute, code, rule or regulation of any Governmental Authority, in each case applicable to or binding upon such Person or any of its property or to which such Person or any of its property is subject.

“Lease Agreement” means the Lease Agreement dated as of December 1, 2017, by and between the Issuer and the Company, as amended or supplemented from time to time.

“Leased Premises” means those certain premises more particularly described in Schedule A attached to the Lease Agreement (as the same may be amended or modified from time to time), together with all structures, buildings, foundations, related facilities, other improvements and fixtures now or at any time made, erected or situated thereon (including, without limitation, the Facility, exclusive of the Gantry Cranes and any and all Personal Property) and all replacements, improvements, extensions, substitutions, restorations, repairs or additions thereto, which premises are the subject of the Agreement; but excluding, however, any and all real property or Property Interests therein released pursuant to the Lease Agreement and any subsurface rights.

“Lien” means any mortgage, pledge, hypothecation, assignment, mandatory deposit arrangement, encumbrance, lien (statutory or other), or preference, priority or other security agreement of any kind or nature whatsoever, including, without limitation, any sale leaseback arrangement, any conditional sale or other title retention agreement, any financing lease having substantially the same effect as any of the foregoing, and the filing of any financing statement or similar instrument under the Uniform Commercial Code or comparable law.

“Loss Event” means a Casualty Event or a Condemnation Event.

“Loss Proceeds” means, collectively, the Casualty Proceeds and Condemnation Proceeds.

“Loss Proceeds Fund” means the “Loss Proceeds Fund” established and created in the name of the Collateral Agent pursuant to the Collateral Agency Agreement.

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“Maintenance Plan” means the maintenance plan setting forth in reasonable detail the major capital expenditures and repairs for the next succeeding five Fiscal Years, including the amount of any deposits to be made into the Major Maintenance Reserve Fund in accordance with the terms of the Financing Documents.

“Major Maintenance” means major maintenance required in connection with the operations of the Terminal, inclusive of maintenance, repair, renewal, reconstruction or replacement of any portion or component of the Terminal, as applicable, of a type which is not normally included as ordinary or routine maintenance, but excluding maintenance, repair, renewal, reconstruction or replacement of all cranes, straddle carriers and other large, mobile equipment.

“Major Maintenance Expenditures” means any expenditure for Major Maintenance.

“Major Maintenance Reserve Deposit Requirement” means during any 12-month period, 1/12 of the amount required, if deposited each month and taking into account amounts then credited to the Major Maintenance Reserve Fund plus the aggregate amount available to be drawn on any Major Maintenance Reserve Letters of Credit on deposit therein and amounts scheduled to be withdrawn therefrom during such month, to make the balance credited to the Major Maintenance Reserve Fund at the end of such 12-month period equal to the Major Maintenance Reserve Required Balance for the following 12 months.

“Major Maintenance Reserve Fund” means the “Major Maintenance Reserve Fund” established and created in the name of the Collateral Agent pursuant to the Collateral Agency Agreement.

“Major Maintenance Reserve Letter of Credit” means an Acceptable Letter of Credit meeting the requirements under the Collateral Agency Agreement, which is issued by an Acceptable Letter of Credit Bank in favor of the Collateral Agent, delivered to the Collateral Agent for deposit into the Major Maintenance Reserve Fund, and which may be substituted for cash on deposit in the Major Maintenance Reserve Fund at the instruction of the Company, or any substantially similar letter of credit issued by an Acceptable Letter of Credit Bank.

“Majority Holders” means the Owners owning a majority in the aggregate principal amount of the Series 2017 Bonds then Outstanding.

“Maximum Annual Debt Service” means, as of any date of calculation, the maximum amount of Debt Service requirements with respect to all Parity Obligations and/or Subordinate Obligations, as the case may be, for any succeeding Fiscal Year.

“Monthly Funding Date” means the twenty-fifth (25th) day of each calendar month.

“Nationally Recognized Rating Agency” means any nationally-recognized securities rating agency that provides a rating on the Series 2017 Bonds at the request of the Company.

“Net Cash Flow” means, for any period, consolidated net income of the Company for such period, plus: (a) without duplication and to the extent already deducted (and not added back) in arriving at such consolidated net income, the sum of the following amounts for such period:

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(i) Net Interest;

(ii) provision for taxes based on income, profits or capital and sales taxes, including federal, provincial, territorial, foreign, state, local, franchise, excise, and similar taxes and foreign withholding taxes paid or accrued during such period (including in respect of repatriated funds);

(iii) non-cash charges;

(iv) depreciation and amortization expense;

(v) unusual, extraordinary or non-recurring losses, charges or expenses to the extent that such losses, charges or expenses are non-cash;

(vi) losses on asset sales, disposals or abandonments (other than asset sales, disposals or abandonments in the ordinary course of business);

(vii) any loss relating to amounts paid in cash prior to the stated settlement date of any hedging obligation that has been reflected in consolidated net income for such period;

(viii) any gain relating to hedging obligations associated with transactions realized in the current period that has been reflected in consolidated net income in prior periods and excluded from Net Cash Flow pursuant to clauses (b)(v) and (b)(vi) below; less

(b) without duplication and to the extent included in arriving at such consolidated net income, the sum of the following amounts for such period: (i) extraordinary gains and unusual or non-recurring gains to the extent that such gains are non-cash;

(ii) non-cash gains;

(iii) credits for taxes based on income, profits or capital and sales taxes, including federal, provincial, territorial, foreign, state, local, franchise, excise, and similar taxes and foreign withholding taxes paid or accrued during such period (including credits in respect of repatriated funds) including penalties and interest related to such taxes or arising from any tax examinations;

(iv) gains on asset sales, disposals or abandonments (other than asset sales, disposals or abandonments in the ordinary course of business);

(v) any gain relating to amounts received in cash prior to the stated settlement date of any hedging obligation that has been reflected in consolidated net income in such period; and

(vi) any loss relating to hedging obligations associated with transactions realized in the current period that has been reflected in consolidated net income in prior periods and excluded from Net Cash Flow pursuant to clauses (a)(vii) and (a)(viii) above;

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in each case, as determined on a consolidated basis for the Company in accordance with GAAP; provided that, to the extent included in consolidated net income, there shall be excluded in determining Net Cash Flow currency translation gains and losses related to currency remeasurements of assets or liabilities (including the net loss or gain resulting from hedging agreements for currency exchange risk).

“Net Interest” means total interest expense and, to the extent not reflected in such total interest expense, the sum of (A) premium payments, debt discount, fees, charges and related expenses incurred in connection with borrowed money (including capitalized interest) or in connection with the deferred purchase price of assets plus (B) the portion of rent expense with respect to such period under Capital Lease Obligations that is treated as interest expense in accordance with GAAP.

“Operating Account” means the bank account established by the Company with the Deposit Account Bank for the purposes set forth in the Control Agency Agreement or any replacement account therefor established pursuant to the terms of the Control Agency Agreement and subject to a Control Agreement.

“Operating Expenses” means all actual cash expenses incurred by or for the account of the Company for operation and maintenance of the Terminal including without limitation, payments for costs of labor, energy and supplies relating to the operation of the Terminal and including any payments under operating leases for equipment or other personal property to be used in operating the Terminal; costs of management and advisory services; fees and expenses of obtaining and renewing government licenses and services; commissions and other costs of marketing the services provided at the Terminal; taxes, assessments and similar charges; fees and expenses of independent engineers, independent consultants and insurance consultants and legal and other engineering costs and expenses related to operation and maintenance of the Terminal (other than charges in connection with the issuance of Parity Obligations). Operating Expenses do not include costs for any Capital Expenditures or costs of extraordinary, nonrecurring major repairs or replacements, amounts payable as bonuses under construction contracts or reserves therefor, amounts payable as Debt Service on any Parity Obligations or Subordinate Obligations or reserves therefor or any other costs that are capitalized on the books of the Company.

“Operating Reserve Fund” means the “Operating Reserve Fund” established and created in the name of the Collateral Agent pursuant to the Collateral Agency Agreement.

“Operating Reserve Letter of Credit” means an Acceptable Letter of Credit meeting the requirements under the Collateral Agency Agreement, which is issued by an Acceptable Letter of Credit Bank in favor of the Collateral Agent, delivered to the Collateral Agent for deposit into the Operating Reserve Fund, and which may be substituted for cash on deposit in the Operating Reserve Fund at the instruction of the Company, or any substantially similar letter of credit issued by an Acceptable Letter of Credit Bank.

“Outstanding” means, as of any date of determination, all Series 2017 Bonds that have been executed, authenticated and delivered under the Indenture, except:

(a) any Series 2017 Bond, or portion thereof, on which all principal and interest due or to become due on or before maturity has been paid;

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(b) any Series 2017 Bond, or portion thereof, on which the redemption price due or to become due has been paid in accordance with the redemption provisions applicable to such Series 2017 Bond;

(c) Series 2017 Bonds in lieu of which other Series 2017 Bonds have been executed, authenticated and delivered pursuant to the provisions of the Indenture relating to the transfer and exchange of bonds or the replacement of mutilated, lost, stolen or destroyed bonds;

(d) Series 2017 Bonds that have been canceled by the Trustee or that have been surrendered to the Trustee for cancellation; and

(e) Series 2017 Bonds that have been defeased pursuant to and in accordance with the Indenture.

“Owner” or “Bondholder” or “Holder” of a Series 2017 Bond means the registered owner of such Series 2017 Bond as shown in the registration records of the Trustee.

“Parity Lien Agent” means U.S. Bank National Association.

“Parity Lien Claimholders” means, collectively, the Parity Lien Agent and the holders of Parity Lien Obligations.

“Parity Lien Documents” means

(a) the Lease Agreement and the other Bond Financing Documents,

(b) the Additional Financing Documents and instruments evidencing the Additional Obligations,

(c) each other agreement, document, or instrument securing, providing for, or evidencing an Obligation under the Bond Documents or an Obligation with respect to any securities issued to the holders or beneficial owners of the Series 2017 Bonds in exchange therefor, and

(d) any other document or instrument executed or delivered at any time in connection with the Company’s Obligations under the Bond Documents or the Additional Financing Documents and instruments evidencing the Additional Obligations, including any guaranty of or grant of Collateral to secure such Obligations, and any intercreditor or joinder agreement to which holders of Parity Lien Obligations are parties.

“Parity Lien Obligations” means (x) the Bonds and (y) all Parity Obligations (other than Working Capital Loan Obligations) of the Company arising under or in connection with: (a) the Lease Agreement and the other Parity Lien Documents, including any Interest Hedging Agreement as permitted under the Financing Documents, and (b) any agreement or instrument granting or providing for the perfection of a Lien securing any of the foregoing. Parity Lien Obligations will also include interest, fees, expenses, costs, premiums (deferred or otherwise), collateral funding obligations, termination payments, and other charges incurred in connection with the foregoing, whether incurred before or after commencement of an Insolvency Proceeding and whether or not allowed by an Insolvency Proceeding.

“Parity Obligations” means: (i) the Bonds, (ii) the Working Capital Loan Obligations, (iii) Interest Hedging Obligations, (iv) any Interest Hedging Termination Obligations, (v) Capital Lease Obligations, (vi) any Purchase Money Obligations, (vii) any Additional Obligations and (viii) any other secured payment obligations of the Company incurred under and pursuant to the Lease Agreement.

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“Parity Outstanding Exposure” means, at any time, the sum of (a) the aggregate outstanding principal amount of the Parity Lien Obligations; (b) the aggregate amount of any Interest Hedging Termination Obligations that would be due and payable by the Company to an Interest Hedging Bank under an Interest Hedging Agreement, minus the amount of any cash collateral or other permitted credit support held by such Interest Hedging Bank to support the relevant Interest Hedging Agreement and any amounts received (or to be received) under any ordinary course payment netting arrangements set forth in the relevant Interest Hedging Agreement; (c) the aggregate outstanding principal amount of the Bonds; and (d) the aggregate outstanding principal amount of Debt under any other Parity Lien Document plus, if applicable, the aggregate unexpired and uncancelled commitments of the applicable Parity Lien Claimholders thereunder to make loans or similar extensions of credit.

“Parity Secured Creditors” means, collectively, (a) the Trustee, (b) any Additional Parity Creditor, (c) any Interest Hedging Bank party to an Interest Hedging Agreement with respect to Parity Obligations and (d) any Working Capital Loan Provider.

“Paying Agent” means the Trustee, or any successor Paying Agent which shall have become such pursuant to applicable provisions of the Indenture.

“Payment Date” means each Interest Payment Date, Capital Lease Payment Date, Purchase Money Payment Date and Principal Payment Date, as applicable.

“Permitted Encumbrances” means:

(a) Liens for taxes, assessments or governmental charges that are not overdue for a period of more than 30 days or that are being contested in good faith and by appropriate proceedings diligently conducted, if adequate reserves with respect thereto are maintained on the books of the applicable Person in accordance with GAAP;

(b) Liens with respect to outstanding motor vehicle fines and Liens arising or imposed by law, such as carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s or construction contractors’ Liens and other similar Liens arising in the ordinary course of business that secure amounts not overdue for a period of more than 30 days or, if more than 30 days overdue, are unfiled and no other action has been taken to enforce such Lien or that are being contested in good faith and by appropriate proceedings diligently conducted, if adequate reserves with respect thereto are maintained on the books of the applicable Person in accordance with GAAP, in each case so long as such Liens do not individually or in the aggregate have a material adverse effect;

(c) Liens incurred or deposits made in the ordinary course of business (i) in connection with workers’ compensation, unemployment insurance, social security, retirement and other similar legislation or (ii) securing liability for reimbursement or indemnification obligations of (including obligations in respect of letters of credit or bank guarantees or similar instrument for the benefit of) insurance carriers providing property, casualty or liability insurance to the Company or otherwise supporting the payment of items set forth in the foregoing clause (i);

(d) Liens incurred or deposits made to secure the performance of bids, trade contracts, governmental contracts and leases, statutory obligations, surety, stay, customs and appeal bonds, performance bonds, bankers acceptance facilities and other obligations of a like nature (including those to secure health, safety and environmental obligations) and obligations in respect of letters of credit, bank guarantees or similar instruments that have been posted to support the same, in each case incurred in the ordinary course of business or consistent with past practices;

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(e) minor survey exceptions, minor encumbrances, covenants, conditions, easements, rights- of-way, restrictions, encroachments, protrusions, by-law, regulation or zoning restrictions, reservations of or rights of others for sewers, electric lines, telegraph and telephone lines and other similar purposes and other similar encumbrances and minor title defects or irregularities affecting real property, that, in the aggregate, do not materially interfere with the ordinary conduct of the business of the Company, taken as a whole;

(f) Liens securing, or otherwise arising from, judgments not constituting an Event of Default under any of the Financing Documents;

(g) Liens on goods the purchase price of which is financed by a documentary letter of credit issued for the account of the Company or Liens on bills of lading, drafts or other documents of title arising by operation of law or pursuant to the standard terms of agreements relating to letters of credit, bank guarantees and other similar instruments; provided that such Lien secures only the obligations of the Company in respect of such letter of credit to the extent such obligations are permitted by the Financing Documents;

(h) Liens arising from precautionary Uniform Commercial Code financing statements or similar filings made in respect of operating leases entered into by the Company;

(k) Liens in favor of obligations in respect of performance, bid, appeal and surety bonds and performance and completion guarantees and similar obligations provided by the Company or obligations in respect of letters of credit, bank guarantees or similar instruments related thereto, in each case in the ordinary course of business or consistent with past practice;

(l) Liens arising from grants of non-exclusive licenses or sublicenses of intellectual property made in the ordinary course of business;

(m) Liens in favor of deposit banks or securities intermediaries and rights of setoff, banker’s lien, netting agreements and other Liens arising by operation of law or by of the terms of documents of banks or other financial institutions in relation to the establishment, operation or maintenance of administration of deposit accounts, securities accounts, cash management arrangements or in connection with the issuance of letters of credit, bank guarantees or other similar instruments (including fees, expense and charges in connection therewith);

(n) Liens arising from the right of distress enjoyed by landlords or Liens otherwise granted to landlords, in either case, to secure the payment of arrears of rent in respect of leased properties, so long as such Liens are not exercised;

(o) securities to public utilities or to any Governmental Authority when required by the utility or other authority in connection with the supply of services or utilities to the Company; and

(p) servicing agreements, development agreements, site plan agreements and other agreements with any Governmental Authority pertaining to the use or development of any of the assets of the Person, provided same are complied with in all material respects and do not materially reduce the value of the assets of the Person or materially interfere with the use of such assets in the operation of the business of such Person.

“Permitted Investments” means any of the following investments, or any combination thereof, so long as such investments at the time of investment are legal investments under the laws of the State for the moneys proposed to be invested therein:

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(a) Government Securities;

(b) Qualified Investments;

(c) unsecured certificates of deposit having maturities of not more than 365 days which are fully insured by the Federal Deposit Insurance Corporation (“FDIC”) in one or more of the following institutions: banks, trust companies or savings and loan associations (including without limitation, the Trustee or any bank affiliated with the Trustee) organized under the laws of the United States of America or any state thereof, each bank, trust company or savings and loan association having a reported capital, surplus and undivided profits of at least $25,000,000 and a rating on its unsecured, unenhanced short-term obligations in the highest short-term category by at least one Nationally Recognized Rating Agency;

(d) unsecured and uninsured certificates of deposit having maturities of not more than 365 days in institutions described in clause (c) above, provided the short-term obligations of such institution are rated in the highest short-term category by at least one Nationally Recognized Rating Agency;

(e) any investment contract with a bank, trust company or savings and loan association having a reported capital, surplus and undivided profits of at least $25,000,000 and a rating on its unsecured, unenhanced short-term obligations in the highest short-term category by at least one Nationally Recognized Rating Agency, provided further that the investment contract shall contain a provision to the effect that such investment contract can be terminated by the Trustee or Collateral Agent, as applicable, without penalty in the event the rating of the institution falls below the highest short-term category by all of the Nationally Recognized Rating Agencies then rating such institution or such institution defaults on the payment of any of its obligations thereunder or to the Company, unless such investment contract is collateralized with Government Securities held by the Trustee or a third-party custodian acting as agent for the Trustee with a value, marked to market no less frequently than on a weekly basis, of at least 102% of the principal amount invested under the investment contract or such rating is reinstated to the highest short-term category by at least one Nationally Recognized Rating Agency on or prior to such termination date;

(f) any share in a money market mutual fund provided such fund is (i) rated at least “A” by S&P or the equivalent by a Nationally Recognized Rating Agency or (ii) the entire investments of which are limited to investments described in clause (a) above;

(g) commercial paper rated in the highest short-term rating category by any Nationally Recognized Rating Agency;

(h) an investment agreement, repurchase agreement or forward delivery agreement with a provider or a guarantor that has unsecured, unenhanced long-term obligations rated at least “A-” or its equivalent by one or more of the Nationally Recognized Rating Agencies, provided that the investment agreement, repurchase agreement or forward delivery agreement shall contain a provision to the effect that such investment agreement, repurchase agreement or forward delivery agreement can be terminated without penalty by the Trustee or Collateral Agent, as applicable, in the event the rating of the unsecured, unenhanced long-term obligations of the provider thereof falls below “A-” or the equivalent by any of the Nationally Recognized Rating Agencies or the provider defaults on the payment of any of its obligations thereunder or to the Company, unless such investment agreement, repurchase agreement or forward delivery agreement is collateralized with Government Securities held by the Trustee or a third-party custodian acting as agent for the Trustee with a value, marked to market no less frequently than on a weekly basis, of at least 102% of the principal amount invested in the investment agreement, repurchase agreement or forward delivery agreement or such rating is reinstated to “A-” or the equivalent by each of the applicable Nationally Recognized Rating Agencies on or prior to such termination date; and

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(i) (i) any obligation the interest on which is excludable from gross income under Section 103(a) of the Code and which is rated at least “AA” or its equivalent by at least one Nationally Recognized Rating Agency and is not a “specified private activity bond” within the meaning of Section 57(a)(5)(C) of the Code, or (ii) any interest in a regulated investment company, the income of which is at least 95% excludable to the holder under Section 103(a) of the Code, and which invests all its invested assets in obligations described in clause (i) hereof and is rated “Aam” or “AAm-G” or its equivalent by a Nationally Recognized Rating Agency.

“Permitted Liens” shall mean:

(a) Permitted Encumbrances;

(b) Liens created under the Financing Documents and other Liens existing on the Closing Date to the extent such Liens are not securing Indebtedness for borrowed money;

(c) Liens securing indebtedness permitted to be incurred under the Parity Documents and the documents with respect to the Subordinate Obligations;

(d) (i) easements, leases, licenses, subleases or sublicenses granted to others (including licenses and sublicenses of intellectual property) that do not (A) interfere in any material respect with the business of the Company, taken as a whole or (B) secure any Indebtedness and (ii) any interest or title of a lessor or licensee under any lease or license entered into by the Company in the ordinary course of its business or consistent with past practice;

(e) Liens in favor of customs and revenue authorities arising as a matter of law to secure payment of customs duties in connection with the importation of goods;

(f) Liens (i) of a collection bank arising under Section 4-210 of the Uniform Commercial Code, or any comparable or successor provision, on items in the course of collection; (ii) attaching to pooling, commodity trading accounts or other commodity brokerage accounts incurred in the ordinary course of business; or (iii) in favor of a banking or other financial institution or entity, or electronic payment service provider, arising as a matter of law encumbering deposits (including the right of setoff) and that are within the general parameters customary in the banking or finance industry;

(g) Liens (i) on cash advances or escrow deposits in favor of the seller of any property to be acquired to be applied against the purchase price or otherwise in connection with any escrow arrangements or any disposition permitted under the Financing Documents (including any letter of intent or purchase agreement with respect to such acquisition or disposition), or (ii) consisting of an agreement to dispose of any property in a disposition permitted under the Financing Documents;

(h) Liens existing on property or other assets at the time of its acquisition or existing on the property or other assets of any Person at the time such Person becomes a subsidiary, in each case after the Closing Date and any modifications, replacements, renewals or extensions thereof; provided that (i) such Lien was not created in contemplation of such acquisition or such Person becoming a Subsidiary and (ii) such Lien does not extend to or cover any other assets or property (other than any replacements of such property or assets and additions and accessions thereto, the proceeds or products thereof and other than after-acquired property subject to a Lien securing Indebtedness and other obligations incurred prior to such time and which Indebtedness and other obligations are permitted hereunder that require or include, pursuant to their terms at such time, a pledge of after-acquired property, it being understood that such requirement shall not be permitted to apply to any property to which such requirement would not have applied but for such acquisition);

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(i) Liens arising out of conditional sale, title retention, consignment or similar arrangements for sale or purchase of goods by any of the Company in the ordinary course of business;

(j) Liens encumbering reasonable customary initial deposits and margin deposits and similar Liens attaching to commodity trading accounts or other brokerage accounts incurred in the ordinary course of business and not for speculative purposes;

(k) Liens that are contractual rights of setoff (i) relating to the establishment of depository relations with banks not given in connection with the incurrence of indebtedness, (ii) relating to pooled deposit or sweep accounts to permit satisfaction of overdraft or similar obligations incurred in the ordinary course of business of the Company or (iii) relating to purchase orders and other agreements entered into with customers of the Company in the ordinary course of business;

(l) Liens on insurance policies and the proceeds thereof securing the financing of the premiums with respect thereto;

(m) Liens on cash and Permitted Investments used to satisfy or discharge Indebtedness; provided such satisfaction or discharge is permitted under the Financing Documents;

(n) Receipt of progress payments and advances from customers in the ordinary course of business to the extent the same creates a Lien on the related inventory and proceeds thereof; and

(o) Liens on equity interests of any joint venture (i) securing obligations of such joint venture or (ii) pursuant to the relevant joint venture agreement or arrangement; and

(p) Liens on cash or Permitted Investments securing swap agreements in the ordinary course of business submitted for clearing in accordance with applicable Law.

“Permitted Subordinate Payments” shall mean (x) regularly scheduled, non-accelerated payments of interest on the Subordinate Obligations at the applicable non-default interest rate, as and when due and payable and all in accordance with the terms of the Subordinate Obligations documentation and (y) payments and distributions in respect of Shareholder Loans in accordance with the terms of the Shareholder Loan documentation and to the extent such payments and distributions are permitted under the Collateral Agency Agreement.

“Person” or words importing persons means firms, associations, corporations, partnerships (including without limitation, general and limited partnerships), limited liability companies, joint ventures, societies, estates, trusts, corporations, public or governmental bodies, other legal entities and natural persons.

“Personal Property” means that portion of the 2017 Facility that is not or has not become a part of the premises under the Port Authority Lease. For the avoidance of doubt, those certain Gantry Cranes included in the 2017 Facility shall not be considered Personal Property.

“Principal Payment Account” means the “Principal Payment Account” established and created in the name of the Collateral Agent pursuant to the Collateral Agency Agreement.

“Principal Payment Date” means, (a) with respect to the Series 2017 Bonds, October 1 of each calendar year, (b) with respect to a Working Capital Loan, the maturity date set forth in the applicable Working Capital Loan Document and (c) with respect to any Additional Obligation, the principal payment date set forth in the applicable Additional Financing Document or the date on which the principal portion of Debt Service in respect of such Additional Obligation is due, as applicable; provided

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that, in each case, if such day is not a Business Day, the Principal Payment Date shall mean the next succeeding Business Day.

“Proceeds” as such term is defined in the UCC.

“Project Accounts” means, collectively, (1) the Revenue Fund, (2) the Loss Proceeds Fund, (3) the Debt Service Reserve Fund, (4) the Construction Fund, (5) the Major Maintenance Reserve Fund, (6) the Debt Service Fund, (7) the Operating Reserve Fund, (8) the Subordinate Obligations Fund, (9) the Residual Fund, (10) the Operating Account and (11) any other accounts established as Project Accounts and otherwise permitted under the Financing Documents; and any sub-accounts of any such account, including but not limited to, (a) the Bonds Construction Account of the Construction Fund; (b) the Equity Construction Account of the Construction Fund; and (c) to the extent created, any other additional sub- accounts of the Project Accounts otherwise permitted under the Financing Documents; provided, however, that the Project Accounts specifically do not include the Payroll Accounts, the Shareholder Loan Accounts or the Series 2017 Rebate Fund or other funds held by the Trustee under the Indenture.

“Properties” means collectively the whole or any portion of the Leased Premises, the Basic Lease, the Port Authority Lease and the premises thereunder.

“Property Interests” means collectively all legal, equitable, security and other interests in and all legal, equitable and other rights and remedies with respect to or against the Properties or any part thereof or any rights created thereby or the letting thereof or thereunder including, without limitation, any pledge of, mortgage on or security interest in the Properties, the right to the appointment of a receiver, any rights of use, occupancy, entry, re-entry, redemption, eviction, ejectment, reversion, possession, regaining or resumption of possession, letting, reletting, subletting, sale, conveyance, transferring, mortgaging, pledging, assigning, or any similar rights or any rights with respect to the use, occupancy, entry, re-entry, redemption, eviction, ejectment, reversion, possession, regaining or resumption of possession, letting, reletting, subletting, sale, conveyance, transferring, mortgaging, pledging or assigning of the Properties and the rentals and other revenues and income derived from or in connection therewith except for the amounts payable by the Company pursuant to the Lease Agreement. The term “redemption” as used in this definition does not refer to the redemption of the Series 2017 Bonds.

“Purchase Money Obligation” means any payment obligation incurred to finance the purchase or construction of any assets of such Person that is secured by a Lien on such assets where the lender’s sole security is to the assets so purchased or constructed.

“Purchase Money Obligation Provider” means a provider of any Purchase Money Obligation.

“Purchase Money Payment Date” means the payment date set forth in the applicable Financing Document with respect to the relevant Purchase Money Obligation.

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Government National Mortgage Association guaranteed mortgage-backed bonds and guaranteed pass- through obligations; Student Loan Marketing Association senior debt obligations; U.S. Maritime Administration guaranteed Title XI financing obligations; and U.S. Department of Housing and Urban Development project notes, local authority bond, new communities debentures-U.S. government guaranteed debentures and U.S. public housing notes and bonds-U.S. government guaranteed public housing notes and bonds and (b) securities evidencing ownership of the right to payment of specific principal or interest payments on an obligation described in (a) above, provided that such securities were created by or on behalf of the issuer of the applicable obligation and are held in the custody of a bank or trust company having a reported capital, surplus and undivided profits of at least $25,000,000 and a rating on its unsecured, unenhanced short-term obligations in the highest short-term category by at least one Nationally Recognized Rating Agency, in a special account separate from the general assets of such custodian.

“Redemption Price” means the principal, interest and premium, if any due on a Bond on the date on which it is redeemed pursuant to the redemption provisions applicable to such Bond.

“Registrar” means the Trustee, or any successor Registrar which shall have become such pursuant to applicable provisions of the Indenture.

“Requisition” means any Requisition delivered by the Company pursuant to “—Construction Fund Requisition Procedures.”

“Reserved Rights” means those specific reserved rights of the Issuer as set forth in the Indenture and the Lease Agreement.

“Restoration,” “Restore” or “restoring” means repairing, rebuilding or otherwise restoring the Terminal.

“Required Agent” means the Parity Lien Agent, as determined pursuant to the Intercreditor Agreement.

“Required Parity Lien Claimholders” means Parity Lien Claimholders holding more than 50% of the Parity Outstanding Exposure.

“Residual Fund” means the “Residual Fund” established and created in the name of the Collateral Agent pursuant to the Collateral Agency Agreement.

“Revenue Fund” means the “Revenue Fund” established and created in the name of the Collateral Agent pursuant to the Collateral Agency Agreement.

“Revenues” means, for any period (without duplication), all revenue received by or on behalf of the Company during such period, including but not limited to (a) interest paid in respect of any Project Accounts (b) proceeds from any business interruption insurance and/or delayed opening insurance, (c) revenue derived from any third-party concession, lease or contract, (d) any other receipts otherwise arising or derived from or paid or payable in respect of the Facility, (e) liquidated damages payable by or for the account of construction contractors and (f) any net cash payments received by the Company under or in connection with any Interest Hedging Agreement, but excluding proceeds of borrowings (including borrowings under Shareholder Loans), equity contributions to the Company, Loss Proceeds, and asset sales to the extent that such asset sale proceeds are reinvested in replacement property.

“Secured Creditors” means, collectively, (i) Parity Secured Creditors and (ii) any Subordinate Lenders.

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“Secured Parties” means, collectively, the Issuer, the Collateral Agent and the Secured Creditors.

“Security Agreement” means the Security Agreement dated as of December 1, 2017 by and between the Company and the Collateral Agent.

“Series 2003 Bonds” means the $125,000,000 New Jersey Economic Development Authority Special Facility Revenue Bonds (Port Newark Container Terminal LLC Project) Series 2003, consisting of the $62,500,000 Series 2003A and $62,500,000 Series 2003B.

“Series 2017 Debt Service Fund” means the “Series 2017 Debt Service Fund” created and designated as such in the Indenture.

“Series 2017 Debt Service Reserve Account” means the “Series 2017 Debt Service Reserve Account” established and created in the name of the Collateral Agent pursuant to the Collateral Agency Agreement.

“Series 2017 Debt Service Reserve Required Balance” means an amount equal to the Maximum Annual Debt Service calculated with respect to the Series 2017 Bonds.

“Series 2017 Interest Account” means the “Series 2017 Interest Account” created by and designated as such in the Indenture.

“Series 2017 Principal Account” means the “Series 2017 Principal Account” created by and designated as such in the Indenture.

“Series 2017 Rebate Fund” means the “Series 2017 Rebate Fund” created and designated as such in the Indenture.

“Series 2017 Redemption Account” means the “Series 2017 Redemption Account” created by and designated as such in the Indenture.

“Shareholder Loan” means a loan to the Company from any of Ports America Group, Inc., Terminal Investment Limited S.à.r.l., any of their direct or indirect shareholders or any other Person who is, from time to time, a direct or indirect shareholder of the Company.

“State” means the State of New Jersey.

“Subordinate Lender” means the issuer of a Subordinate Obligation.

“Subordinate Obligations” means, collectively, bonds, notes or other obligations of the Company that is not a Parity Obligation and is payable only from the Subordinate Obligations Fund, excluding, in any case, any Shareholder Loans.

“Subordinate Obligations Fund” means the “Subordinate Obligations Fund” established and created in the name of the Collateral Agent pursuant to the Collateral Agency Agreement.

“Supplemental Indenture” means any indenture supplementing or amending the Indenture that is adopted pursuant to the Indenture.

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treatment of interest on such bonds; and (b) any amendment or modification of any such certificate that is accompanied by an opinion of Bond Counsel stating that the amendment or modification will not adversely affect the exclusion of interest on such bonds from gross income for federal income tax purposes.

“Tax Covenants” means the covenants of the Company listed under the heading “Tax Covenants” in the Lease Agreement.

“Total Debt Service” means with respect to any period of time, the aggregate amount of Debt Service on all Parity Obligations and Subordinate Obligations required to be paid at any time within the applicable period (excluding, for the avoidance of doubt, any required Debt Service in respect of any Shareholder Loans), whether due on a scheduled payment date or at maturity. In determining the amount of Debt Service payable on indebtedness for purposes of any projected Debt Service, if the terms of the indebtedness being considered are such that interest thereon for any future period of time is expressed to be calculated at a varying rate per annum, a formula rate or a fixed rate per annum based on a varying index, then for the purpose of making such determination of debt service, interest on such indebtedness for such period shall be computed by assuming that the rate of interest applicable to such period is equal to the average of the rate of interest that was in effect on the last date of each of the twelve (12) full calendar months immediately preceding the month in which such calculation is made.

“Trust Estate” means:

(a) all right, title and interest of the Issuer (except for Reserved Rights) in and to the Company Sublease and the Administration Expense Guaranty, including, but not limited to, the present and continuing right to make claim for, collect, receive and receipt for any of the rents, sums, amounts and revenues and any other sums of money payable or receivable under the Lease Agreement (except for certain payment rights and the payment of the Issuer’s Administration Expenses under the Administration Expense Guaranty), any rights of the Issuer to receive notices, certificates, requests, requisitions, directions and other communications thereunder, the rights expressly reserved hereinafter, the right to bring actions and proceedings thereunder or for the enforcement thereof, and the right to do any and all things which the Issuer is or may become entitled to do under the Company Sublease or the Administration Expense Guaranty, subject to certain limitations set forth in the Indenture;

(b) all moneys from time to time held by the Trustee under the Indenture in any Fund or Account thereunder other than (i) the Series 2017 Rebate Fund and (ii) any Defeasance Escrow Account;

(c) any security interest granted to the Collateral Agent for the benefit of the Trustee (as a Secured Creditor) on behalf of the Owners of the Series 2017 Bonds under the Collateral Documents, including without limitation in respect of the Collateral pledged thereunder, and the present and continuing right of the Collateral Agent on behalf of the Trustee (as a Secured Creditor) to make claim for, collect, receive and receipt for any of the sums, amounts, income, revenues, issues and profits and any other sums of money payable or receivable under the Collateral Documents, to bring actions and proceedings thereunder or for the enforcement thereof, and to do any and all things which the Collateral Agent on behalf of the Trustee (as a Secured Creditor) is entitled to do under such Collateral Documents;

(d) subject to the Collateral Agency Agreement and the Intercreditor Agreement, all funds deposited from time to time and earnings thereon in any Project Accounts under the Collateral Agency Agreement, and any and all sub-accounts created thereunder, each held by the Collateral Agent under the Collateral Agency Agreement; and

(e) any and all other property, revenues, rights or funds from time to time hereafter by delivery or by writing of any kind specifically granted, assigned or pledged as and for additional security

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for any of the Series 2017 Bonds, the Lease Agreement or the Guaranty in favor of the Trustee (as a Secured Creditor) or the Collateral Agent on behalf of the Trustee (as a Secured Creditor), including any of the foregoing granted, assigned or pledged by the Company or any other Person on behalf of the Company, and the Trustee (as a Secured Creditor) and/or the Collateral Agent on behalf of the Trustee (as a Secured Creditor) is authorized to receive any and all such property at any and all times and to hold and apply the same subject to the terms hereof.

“Trustee” means for all purposes hereunder, the Trustee at the time acting on behalf of itself and the owners of the Series 2017 Bonds under the Indenture, originally U.S. Bank National Association, and any successor Trustee as determined or designated under or pursuant to the Indenture.

“Uniform Commercial Code” or “UCC” means the Uniform Commercial Code, as in effect from time to time in the State of New York; provided, however, that, at any time, if by reason of mandatory provisions of law, any or all of the perfection or priority of the Collateral Agent’s security interest in any item or portion of the Collateral is governed by the Uniform Commercial Code as in effect in a U.S. jurisdiction other than the State of New York, the term “UCC” and “Uniform Commercial Code” shall mean the Uniform Commercial Code as in effect, at such time, in such other jurisdiction for purposes of the provisions hereof relating to such perfection or priority and for purposes of definitions relating to such provisions.

“Working Capital Collateral” means, collectively, with respect to the Company: (a) all “accounts” (as that term is defined in the Uniform Commercial Code), whether now owned or hereafter acquired by each such Person (or in which such Person now or hereafter has rights or the power to transfer rights to a secured party); (b) all Proceeds of the foregoing; and (c) all “Records” (as that term is defined in the Security Agreement) of each such Person relating to any of the foregoing.

“Working Capital Loan” means any indebtedness incurred under one or more working capital facilities (and any modification, refinancing, refunding, renewal or extension thereof), provided that (i) the aggregate outstanding principal amount thereunder shall not exceed the greater of (x) $15,000,000 and (y) such larger amount to the extent such Additional Obligations in excess of $15,000,000 are permitted to be incurred as of the date of incurrence pursuant to the terms of the Collateral Documents and (ii) the proceeds of any such loans are used for working capital or other short-term liquidity purposes of the Company.

“Working Capital Loan Documents” means (i) initially, the Credit Agreement, dated as of December 1, 2017 between Wells Fargo Bank, National Association and the Company and (ii) thereafter, any additional loan documents between Working Capital Loan Provider and the Company in connection with a Working Capital Loan.

“Working Capital Loan Obligations” means all Parity Obligations of the Company arising under or in connection with: (a) the Working Capital Credit Agreement and the other Working Capital Loan Documents; and (b) any agreement or instrument granting or providing for the perfection of a Lien securing any of the foregoing. Working Capital Loan Obligations will also include interest, fees, expenses, costs, premiums (deferred or otherwise), collateral funding obligations, termination payments, and other charges incurred in connection with the foregoing, whether incurred before or after commencement of an Insolvency Proceeding and whether or not allowed by an Insolvency Proceeding.

“Working Capital Loan Provider” means any provider of a Working Capital Loan.

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APPENDIX B

INDEPENDENT CONSULTANT’S REPORT

[THIS PAGE INTENTIONALLY LEFT BLANK] Analysis In Support of Financing for Port Newark Container Terminal (PNCT) for:

December 07, 2017 Executive Summary

VOLUME • With 12.5% share of the total US/Canada container market, the Port of NY/NJ is the second-largest container port in North America • It serves the largest local market in the eastern US, as well as hinterland markets in the Ohio/Valley/Midwest and some in East Canada • Primary competing ports for local volume are Baltimore, Philadelphia, and Boston, and for intermodal volume include Hampton Roads (VA), Montreal, and Halifax • Because the population within the catchment area of the Port of NY/NJ consists of over 33m people, and the Port’s proximity to the Great Circle Route (for services crossing the Atlantic), it will continue to be the dominant East Coast gateway port • Within the Port of NY/NJ, there are 6 primary container terminals, four in New Jersey, and two in New York • PNCT’s location on the western side of Newark Bay provides it with excellent access to the region’s road and rail network, as compared to GCT’s New York and Bayonne terminals, both of which require a toll bridge crossing • The recent completion of the Port of NY/NJ’s dredging program that deepened the port’s channel and water depth at terminals to 50 ft., coupled with increasing the Bayonne Bridge’s clearance to allow airdraft of 215 ft., enable all of the port’s terminals, except Red Hook, to handle ultra large container vessels (ULCVs) • Of the 35 vessel services calling in the Port, 7 services presently call at PNCT, and all are operated by the 2M Alliance or MSC • While APMT is affiliated with Maersk, 5 of the 8 services handled at the APMT terminal are not operated by the 2M Alliance or Maersk • The chance of the services that call at PNCT moving to other terminals is considered to be very low • PNCT’s partner in the terminal, MSC/TIL has committed to use PNCT exclusively for all of the vessel services it has calling the Port of NY/NJ that it operates independently • MSC is part of the 2M alliance this group moves approximately 50% of the containers it handles in the Port of NY/NJ at PNCT • Therefore, MSC’s participation in the 2M Alliance means that PNCT also handles volume for Maersk on the alliance services that call there, which is seento be a major advantage given that Maersk is the world’s largest shipping line, as measured by slot capacity • Mercator developed an aggregate volume forecast for the consolidated US/CAN market, based on a regression of container throughput to real GDP • Mercator then analyzed and adjusted growth rates for the specific tradelanes that comprise the aggregate market • Vessel service composition at PNCT was profiled and evaluated, with portions of service volume allocated to the tradelanes, to which Mercator’s tradelane growth rates were then applied, taking into account changes in vessel service composition over time • Mercator expects PNCT volume to increase from he current level of 740k moves in 2017, to 1.0m moves in 2020, and 1.4m moves in 2031, at which point, the terminal will reach capacity – overall volume is forecast to grow from 2017 to 2047 at approximately 2.2% per annum

Private & Confidential 2 Executive Summary – cont’d

CAPACITY • As per its new lease agreement, PNCT is currently undertaking a redevelopment/expansion that will increase its size from 180 acres to 309 acres, and increase its current capacity from about 850k lifts to reach a capacity of1.4 million lifts by 2028 • The PNCT capacity calculations have been done according to accepted methodologies and are based on reasonable input assumptions • Capacity increases are sufficient to accommodate the planned volume, and consistent with the capital spending that is described in the PNCT Capex plan • The governing constraint on annual throughput will be the number of cranes or the amount of container storage space within the PNCT complex. • With the completion of the Phase II / III / IV stacking areas, and the delivery of four super-post panamax cranes, the annual capacity of the terminal will reach about 1.3 million container moves by 2019, and reach 1.4 million moves in 2028. • An important capacity consideration is the portion of capacity that will be suitable for ships of Neo-Panamax size (19 containers across, 14,000 TEU) and larger • With the delivery of two ultra-large cranes in 2018 and two more in 2019, the terminal will have 7 cranes out of 13 that are suitable for such ships. This would allow the terminal to simultaneously serve two ships of 14,000 TEU scale. • PNCT also has an option for an eighth ultra-large crane (with funding in the CapEx plan) if it becomes necessary as the demand for large-ship capacity develops, and plans to bring on 2 additional large cranes midway through the next decade, ensuring capacity for ultra large ships • Although Mercator has not independently validated each of the specific cost estimates, the cost figures used in the CapEx forecast appear to be reasonable • In addition to the capital spending for facility expansion, (which amounts to about $315 million over the period through 2047), the PNCT Plan calls for capital spending of about $607 million for equipment replacement, refurbishment and capitalized maintenance of the facility • Facility maintenance costs are principally for periodic pavement repair and replacement and are in line with recent history for such costs • The other maintenance CapEx is for equipment replacement (primarily Straddle Carriers and Gantry Cranes) at the end of expected useful life. Useful life assumptions appear to be reasonable

Private & Confidential 3 Executive Summary – cont’d

REVENUE • Aggregate average unit rates have grown steadily in recent years at about 3.8% per annum • In 2014-2016, PNCT experienced a fair amount of volatility in vessel service composition and weather–related operational disruptions, substantially driving up terminal services revenue (which comprises approximately 10% of revenue in YTD 2017), but which reverted to a steady-state level in 2017 • Mercator has forecast unit rates using a common escalation formula found in PNCT and other marine terminal services agreements, which combines the actual grow rate in labor cost per hour and the growth rate in other cost items at US inflation • Overall unit revenue rate growth from 2017 through 2047 is forecast to be approximately 1.9% per annum COSTS • As volume increased, aggregate costs increased from about $196m in 2013, to about $224m in 2016, to an estimated $241m for 2017 • Labor is the primary cost driver for PNCT. Due to efficiency gains derived from new operating paradigms/infrastructure, labor cost per unit has increased more slowly that underlying wages • Increases in variable labor cost per lift that were incurred were more than offset by reductions in equipment costs per lift, owing primarily to reductions in fuel costs and reduced rental expenses • Other fixed and SG&A expenses grew at about 6.6% and 5.4% per annum respectively from 2013 to YTD September 2017 Annualized • Based on analysis of the recent cost history and ongoing trends, Mercator has forecast costs to grow at 3.6% per annum over the forecast period (while volume grows at 2.2%), meaning that unit costs will grow somewhat slower than inflation. EBITDA • EBITDA is expected to grow from about $53m in 2017 to approximately $100m by 2020, and then to about $160m by 2027, and then to $270m by 2047– overall growth in EBITDA from 2017 through 2047 is approximately 5.8% per annum • Based on Mercator’s EBITDA forecast, and the Debt Service forecast provided by Management, Mercator has calculated the Debt Service Coverage Ratio for PNCT • The Debt Service Coverage Ratio (DSCR) grows from 2.5x in 2018 to 6.5x in 2027 and then to 9.1x by the end 2047 • The probability that the business can service the anticipated bond debt is high

Private & Confidential 4 Assessment of Port of NY/NJ’s Market Position

Private & Confidential 5 Assessment of Port of NY/NJ’s Market Position Identification of the Port of NY/NJ’s Primary Competitors

• The Port of NY/NJ is the second-largest container port in North America (after the port complex of LA/Long Beach). • With 12.5% share of the total USA/Canada container market in 2016 • It is the dominant port on the East Coast, with a 32% share of the Coast’s total container throughput. • Port of NY/NJ’s throughput in 2016 was 6.25 million TEUs. • About 51% of this throughput consists of laden imports. • About 22% is laden exports. • Balance of 27% is empties. • Port throughput is generated by vessel calls of 35 separate liner services operated by 14 global carriers and 4 niche carriers. • Approximately 85% of loaded export/import containers arrive to/depart from Port of NY/NJ by truck. • Primary truck destinations/origins are Mid-Atlantic and New England states. • Rail service is used primarily for volumes to/from Ohio Valley/Midwest states and some East Canada traffic. • CSXT and NS provide rail service. 2016 • Primary competing gateway ports for rail traffic include: Ports Share of the • From Europe/Mideast = Hampton Roads, Montreal, Halifax North Atlantic • From Latin America = Hampton Roads Market • From Asia = West Coast ports, Hampton Roads, Halifax • Main competitors for truck traffic are Baltimore, and for selected trades only, Philadelphia and Boston.

Private & Confidential 6 Assessment of Port of NY/NJ’s Market Position Analysis of Port of NY/NJ’s Competitive Position Versus Primary Competitors • Port of NY/NJ’s key competitive strengths relative to other North Atlantic ports include: Comparison of Port of NY/NJ’s Competitiveness versus its • Access to the largest East Coast local market Primary Competitors Based on Key Attributes • Proximity to main shipping routes • Ability to handle Neo-Panamax vessels because it has: Key Competitive 50-ft. channel depth Halifax Montreal Boston Philadelphia Baltimore Norfolk Attributes Terminals with adequate berth size/depth, Super- Panamax cranes and yard space Access to NY/NJ Local Market Access to competitive intermodal rail service Proximity Shipping • The table to the right provides Mercator’s assessment on Routes how Port of NY/NJ’s primary regional competitors Ability to Handle Neo- compare to it based on key competitive attributes. panamax Vessels Intermodal Rail • The distance between these ports is great enough to enable all these ports to be a relatively insulated from Competitiveness competition because of the increased land transport Better than NY/NJ Limited Disadvantage vs NY/NJ costs associated with serving each of these markets over Same as NY/NJ Significantly Disadvantage vs NY/NJ adjacent ports

• However, due to the size of the Port of NY/NJ local market, the port’s ability to handle Ultra-large Container Vessels and the number of first inbound calls it attracts, it does handle movements that could be considered part of the Philadelphia, Boston, Baltimore and Montreal local markets • Port of NY/NJ also handles a significant number of intermodal shipments, which can be routed through other regional ports, particularly Norfolk, Halifax and Montreal. • While it competes with other ports in the region for intermodal moves, because Port of NY/NJ has by far the largest local market, it is normally the first inbound port of call on most vessel deployments covering the U.S. Northeast, as described below: • Transatlantic: 12 weekly calls, 8 of which make this port its first inbound calls • Asia: 12 weekly calls and 8 of these stop at this port first • ISC/ME: 3 calls and all of these are first inbound calls • Latin America: 7 calls, 3 of which are first inbound calls • Africa: 1 call and Port of NY/NJ is the first inbound call • The high proportion of services that make the Port of NY/NJ their first inbound call means that this port is well-positioned to continue attracting intermodal shipments, as ocean carriers and BCOs want to minimize the transit time associated with this type of move. Private & Confidential 7 Assessment of Port of NY/NJ’s Market Position Impact of Port of NY/NJ Local Market Access

• With a population of over 33 million, the New York-Newark-Jersey City market is the largest in North America, and one of the most affluent catchment areas in the world. Map of U.S. Population Density • The size of the local market is the primary reason that Port of NY/NJ is the port complex with the highest volume on the North American Atlantic Coast. • The size of the local market that the Port of NY/NJ services and its proximity to the Great Circle route (for services crossing the Atlantic) will continue to cause ocean carriers to make this port the first inbound call for the majority of services. • Port of NY/NJ’s local market is viewed to be insulated from significant competition, as almost all of its volume cannot be economically handled by any other port due to the higher costs for rail and trucking that would result. Thus, the only viable competition for volumes moving through PNCT are other container terminal operators within the harbor.

Private & Confidential 8 Overview of the Port of NY/NJ’s Container Market

Private & Confidential 9 Overview of the Port of NY/NJ’s Container Market Review of Port of NY/NJ’s Container Volume

Port of NY/NJ’s historical volume performance and the composition of its volume by tradelane is provided below.

Historical Overview of Port of NY/NJ’s Volume Breakdown of Port of NY/NJ's 2016 Container Volume by Foreign Trade Area

• The review of the Port of NY/NJ’s volume performance since 2007 • The container terminals within Port of NY/NJ handle cargo from a indicates that, overall, changes in volume have been in line with general diverse group of tradelanes. market fluctuations. • • While Asia is responsible for approximately half of the market Note that the impact of the Great Recession of 2008 on Port of volumes, the Transatlantic comprises nearly one-third of the total. NY/NJ’s volume was less severe than on the general market. • Volumes from the Indian Subcontinent/Middle East (ISC/ME) and • Between 2007 and 2017E the Port of NY/NJ’s container volumes grew at Latin America are significant. aCAGRof2.4%. • Between 2009 and 2017E, the port’s volume grew at 5.0%, as it • Exposure to multiple tradelane volume is viewed as a significant rebound from the impacts of the Great Recession. advantage especially in the long-term, should U.S. trading patterns shift over time.

Private & Confidential 10 Overview of the Port of NY/NJ’s Container Market Summary of Locations and Operating Characteristics

There are six container terminals in this port complex – four in New Jersey and two in New York. The locations of these terminals within the port are displayed in the map below. Also shown is a table summarizing the primary operating characteristics of the Port of NY/NJ’s container terminals.

Map of Port of NY/NJ’s Container Terminal Locations Summary of Operating Characteristics of Port of NY/NJ’s Container Terminals

Operating Characteristics Maher APMT Bayonne NYCT Red Hook Terminal Acreage (Ac) 309 1 454 350 169 187 80 Berth Length (ft) 4,800 2 10,128 6000 2700 3012 2080 Capacity in Lifts 850,000 1,850,000 1,200,000 870,000 540,000 200,000 Berth Length (ft) / 3600 / 45 to 50 10128 / 3600 / 50 2700 / 50 1200 / 52 2080 / 42 Depth (ft) 1200 / Not Active 45 to 50 2400 / 45 1100 / 45 712 / 35 Total No. Cranes 924158 6 5 SPPX 3164 2 Post Panamax 61 86 44 Panamax 73 21 On-dock On-dock Rail Access Near-Dock On-dock N/A On-dock Exclusive Shared Shared 1) PNCT currently has 263 acres in use, 30 acres under construction and 16 acres that will be developed in 2018 as part of its Phase 3 development 2) Of the 4,800 ft 1,200 feet is presently inactive pending rehabilitation, which will be completed as part of the ongoing terminal redevelopment plan.

• PNCT’s location on the western side of Newark Bay provides it with • The recent completion of the Port of NY/NJ’s dredging program that excellent access to the region’s road and rail network, as compared to deepened the port’s channel and water depth at terminals to 50 ft., GCT’s New York and Bayonne terminals, both of which require a toll coupled with increasing the Bayonne Bridge’s airdraft to 215 ft. enable bridge crossing. all of the port’s terminals, except Red Hook, to handle ultra large container vessels (ULCVs). • PNCT’s location is an even greater advantage relative to Red Hook, located in Brooklyn, which has these disadvantages: • All terminals, except Red Hook, have invested in gantry cranes and • It is located in a densely populated area. cargo handling equipment necessary to handle ULCVs. • • There is no dedicated rail access/facility. Therefore, ocean carriers have multiple terminal options when calling the Port of NY/NJ. • Trucks must cross two bridges to reach the area’s major highways, but as an alternative, there is barge service between Red Hook and Port Newark.

Private & Confidential 11 Overview of Port of NY/NJ’s Container Market Overview of Services Calling Port of NY/NJ

Inventory of Services Calling Port of NY/NJ by Terminal (NOV 2017) • The table to the left identifies the 35 services currently calling the Port of NY/NJ, as well as the terminal each uses. • All 7 services calling PNCT are operated by the 2M Alliance or Caribbean CDA Gulf Service Name TP-11 TA2 ECUA Indus EXP AMEX MSC, thus the chance of these services moving to other ECSA Bridge terminals is considered to be very low. Carrier/Alliance 2M 2M MSC MSC MSC MSC MSC/MRSK Tradelane Asia Europe Europe ME/ISC L.America L.America Africa NY/NJ is the 1st Y Y N Y N N Y • Maher is the largest terminal, in terms of yard and berth AVG VSL Capatiy 9,200 7,650 8,300 9,000 6,200 3,300 2,400 dimensions, in the NY/NJ harbor, which allows it to handle calls Maher from 11 services. Service Name AWE1 AWE2 AWE4 AWE5 TAT1 TAT2 AL2 AL6 ZCP Z7S ZCA • Carrier/Alliance Ocean Ocean Ocean Ocean Ocean Ocean THE THE Zim Zim Zim This terminal is not affiliated with an ocean carrier, thus Tradelane Asia Asia Asia Asia Europe Europe Europe Europe Asia Asia Europe receives strong support from ZIM and the other major NY/NJ is the 1st Y Y Y N Y Y N Y N Y N alliances that compete with the 2M. AVG VSL Capatiy 8,500 8,500 8,500 13,500 4,800 8,300 5,300 4,500 9,150 5,300 5,300 APMT • APMT is affiliated with Maersk, but 5 of the 8 services it handles Service Name TP-12 TA-5 MECL 1 AWE3 Indamex CONRO MED-AMR CAGEMA are not operated by the 2M Alliance or Maersk. Carrier/Alliance 2M 2M Maersk OCEAN H-L / CMA ACL Turkon CMA Tradelane Asia Europe ISC/ME Asia ISC/ME Europe Europe L.America • Note that Maersk is in the process of finalizing its acquisition NY/NJ is the 1st Y Y Y N Y N Y Y of Hamburg Sud (HSD) and this carrier has two services that AVG VSL Capatiy 8,700 6,900 6,500 9,200 6,500 3,600 1,750 1,300 currently call at GCT’s New York Container Terminal (NYCT), Bayonne but over time it is expected that these will switch to AMPT, Service Name EC2 EC4 EC5 which will put pressure on this terminal’s capacity. Carrier/Alliance THE THE THE Tradelane Asia Asia Asia • NY/NJ is the 1st Y Y N GCT’s Bayonne terminal is one of the smaller terminals in the AVG VSL Capatiy 9,000 9,500 6,400 harbor, especially when compared to Maher, APMT and PNCT. NYCT • THE Alliance has concentrated its three Asian services at New Service Name AL1 AGAS NAE Bayonne, and as this terminal has recently completed the Tango Carrier/Alliance THE HSD/H-L HSD/H-L MRSK/APL installation of automated equipment and systems, it is well- Tradelane Europe L.America L.America L.America positioned to handle these strings. NY/NJ is the 1st N Y Y N AVG VSL Capatiy 4,600 5,500 4,100 2,500 • NYCT receives calls from 4 services but none of these are Red Hook to/from Asia, which underscores the limitations of this CENTRA Service Name PAD terminal’s location. M CMA/ Carrier/Alliance Seaboard • Marfret Red Hook only handles two niche services that use relatively Tradelane Europe L.America small vessels, which underscores the limitations of this NY/NJ is the 1st Y Y terminal’s location and infrastructure. AVG VSL Capatiy 2,600 2,000

Private & Confidential 12 Assessment of PNCT’s Competitiveness versus Other Port of NY/NJ Terminals

Private & Confidential 13 Assessment of PNCT’s Competitiveness versus Other Port of NY/NJ Terminals Overview of PNCT Existing Capabilities

Details on PNCT’s current ownership, lease and operational capabilities are shown below.

Overview of PNCT Existing Capabilities

Ports of America @ 50% and Terminal Ownership: Investment Limited SA (TIL) @ 50% Terminal Lease from: Port Authority of New York and New Jersey Existing 2011 to 2030 Lease Period: With an Extension to 2050 -- Contingent on Meeting Minimum Capex Requirement Operating Characteristics Berth: 3 Berths Total Length 4,800 ft* Area: 263 acres Dedicate Rail facility with direct Rail Terminal: Capacity of 380,000 Lifts (Based on 2 shifts) 3 SPPX with 2 more to be delivered in 2018 Cranes: 6 Post Panamax Cranes 850,000 Containers expanding to Capacity: 1.1 Million Containers in 2018 1.3 Million Containers in 2019

* Of the 4,800 ft, 1,200 feet is presently inactive pending rehabilitation, which will be completed as part of the ongoing terminal redevelopment plan.

• Though PNCT is not the largest terminal in the harbor, it has the berth and yard capacity required to meet its current volume levels. • While PNCT’s existing capacity level is considered to be adequate, this terminal is in the process of being redeveloped and this plan is described on the next slide.

Private & Confidential 14 Assessment of PNCT’s Competitiveness versus Other Port of NY/NJ Terminals Overview of PNCT Infrastructure Development

In 2011, PNCT signed a new lease with the Port Authority of New York/New Jersey (PANY/NJ). One key feature of the new lease is its commitment to spend $500 million on capital improvements to the terminal and in return the PANY/NJ will: • Increase the terminal’s size from 180 to 309 acres • Extend the lease from 2030 to 2050 The pictures below show how the new land will be added to PNCT’s 2010 footprint.

Impact of PNCT’s New Lease on the Terminal’s Footprint and Infrastructure

• PNCT has taken over the additional land identified in its new lease and expects to complete redevelopment of its container yard by the end of 2018. • PNCT is redeveloping the berth in two phases, which when completed will allow it to have three ULCVs alongside simultaneously. • Included in PNCT’s capital improvement program is the acquisition of six new “Ultra large Container Vessel” (ULCV) cranes, two of which will be delivered in 2018, two more in 2019, and another two by 2025 to coincide with completion of the berth redevelopment. • The additional these large cranes will allow the terminal to efficiently serve not only the largest ships able to pass through the New Panama Canal, but also be ready to serve ships in the 16-20,000 TEU size range. • Recent expansion of PNCT’s land area and completion of the gate complex will increase the terminal’s annual capacity from about 850,000 lifts (as of 2016) to about 1.3 million lifts in 2019. • Expanded terminal infrastructure will by then include the second phase of the Berth 55-57 redevelopment and phase II , III, & IV container storage areas. Final layout enhancements will bring the capacity to 1.4 million container moves by 2028.

Private & Confidential 15 Assessment of PNCT’s Competitiveness versus Other Port of NY/NJ Terminals Assessment of TIL/MSC’s Ownership Position In PNCT

As discussed earlier, TIL’s owns 50% of PNCT and this company is MSC’s terminal operating subsidiary. TIL’s ownership stake in PNCT means that MSC has committed to use PNCT exclusively for all of the vessel services it has calling the Port of NY/NJ that it operates independently. Additionally, MSC is part of the 2M alliance and this group moves approximately 50% of the containers it handles via the Port of NY/NJ through PNCT. Therefore, MSC’s participation in the 2M Alliance means that PNCT handles volume for Maersk on the alliance services that call it, which is seen to be a major advantage as this company is the world’s largest shipping, as measured by slot capacity. A number of other advantages if having TIL/MSC as a partner in PNCT are listed below:

• MSC is the world’s 2nd largest container shipping line as measured by deployed vessel capacity and is the anchor customer at PNCT • By MSC being part of the 2M Alliance, PNCT has as its customer not only MSC but also Maersk Line, the world’s largest shipping line as measured by deployed capacity. The 2M is a major alliance in the east-west trades, and half of the 2M traffic at NY/NJ is committed to PNCT. • MSC also has alliances with other shipping lines in non East-West trades, including East Coast South America and West Coast South America routes and this provides PNCT access to other ocean carriers volumes • In terms of volume, MSC has the highest market share in the Port of NY/NJ • MSC’s model is to invest in strategic terminals to secure the capacity at high efficiency terminals which it needs to support the growth of its vessel network. MSC deploys some of the largest ships found in each tradelane, such that developing and supporting its terminal network is an essential part of its business strategy.

Private & Confidential 16 Volume Forecast for North America and PNCT

Private & Confidential 17 Volume Forecast for North America and PNCT Overview of Forecast Methodology • Mercator employed the top-down analytical approach described in the flow chart below to model terminal-level container throughput for PNCT.

• First, PNCT’s Year-to-Date volume data was analyzed and estimates were made regarding how the changes in the services calling it will impact its volumes in 2017 and 2018.

• Historical port throughput volumes were then analyzed at the continental level (the U.S. and Canada are treated as a single market), and the relationship between container volumes and economic output was modeled by regressing total port throughput against real GDP. • This step provides a basis for forecasting continental volumes using real GDP forecasts from IHS.

• A shift-share analysis of continental volumes by tradelane was then conducted to identify long-term trends. • Historical trends were then pushed forward after considering both the factors that have impacted historical shares and those that will likely impact future shares.

• Recognizing the uncertainty in model inputs (real GDP, the regression coefficient defining the relationship between real GDP and container volumes, and future shifts in tradelane shares), Mercator used Monte Carlo simulation to account for the likelihood that model inputs will vary from what has been forecasted while remaining in a pre-defined range and distribution. • In a Monte Carlo simulation, rather than each input variable being defined in a deterministic manner, each variable is defined by a distribution of possibilities, and the simulation software samples random values in such a way that the distribution of the samples will closely match the expectations. • By way of example, real GDP may be forecasted to grow by 2.3% in year X, but rather than accept this as the only possible outcome, the historical distribution of real GDP growth rates are used to define a probability distribution centered around 2.3% as the mean, and for the first simulation a value of 2.1% might be picked, while the second simulation randomly picks 2.3%. • When the simulation is run, each input variable is sampled randomly but according to the predefined distribution, and each of the 1,000 simulations generates a volume forecast for each tradelane for every year of the forecast. • These results are then aggregated and summarized, allowing an evaluation of all the probabilities of the full range of outputs • The simulation process lends itself to analyzing both risk and sensitivity

Analyze and forecast Apply simulated Explore econometric Analyze historical Forecast continental how the Aggregate and tradelane growth relationship between trends and drivers of volumes by restructuring of analyze historical rates to volumes by North American port shifting shares of tradelane using carrier alliances will port volumes at the service to derive a volumes and real continental volumes Monte Carlo impact PNCT continental level terminal-level GDP by tradelane simulation volumes in 2017 forecast

• From this forecast of continental volumes by trade, tradelane growth rates were calculated and applied to the estimate of PNCT’s volumes and tradelane (which is itself based on an evaluation of the services that call the terminals).

Private & Confidential 18 Volume Forecast for North America and PNCT Historical Relationship between Container Volumes and Real GDP Container throughput is driven by all manner of economic activity (such as personal consumption expenditures and private investment) that is captured by real GDP. As can be seen in the scatterplot below, there is a very strong linear relationship between the combined real GDP of the U.S. and Canada and container volumes moving through these countries’ ports. U.S./CAN Combined Real GDP and Port Throughput, 1990-2016 U.S./CAN Real GDP and Predicted/Observed TEUs, 1990-2016

• A linear regression model based on the combined real GDP of the U.S. • With the exception of data points associated with major economic and Canada explains 98.1% of the variability in North American port disruptions (recessions and recovery volumes are both statistical throughput. outliers), the model very effectively predicts historical throughput through 2016. • In the graphic on the right, historical real GDP figures were input to the regression model, and predicted volumes were plotted against observed • 2016 actuals fall short of the model prediction by 600k TEUs, which can volumes. be explained by a build-up of empty containers associated with low • Incremental TEUs are calculated by applying the beta coefficient, which is rates, expectations of low import demand, and Hanjin’s insolvency. the regression slope (i.e. the number of TEUs per unit of GDP), to the annual change in real GDP and adding this volume to the TEU throughput • Empty container repositioning could provide a slight upside to the volume from the previous year. forecast, but there is insufficient information to determine the exact size • of the empty container overhang and timing of when the overhang will If 2016 real GDP was accurately forecast in 1990, the model would be resolved, thereby making it very difficult to assign volumes to predict that TEUs would grow by 235%; in reality they grew by 230%. individual terminals.

Private & Confidential 19 Volume Forecast for North America and PNCT North American Container Volumes

The shares by tradelane displayed in the following chart were calculated based on headhaul volumes as reported in the PIERS Horizons database (for the U.S. ports) and estimates based on statistics as reported by each port (for Canadian ports). These shares were calculated on a base that excluded backhaul volumes and domestic volumes.

North American Headhaul Container Volume Shares by Coast and Tradelane, 2016 (includes Canada)

Africa & Oceania -- (Import HH) ISC/ME -- (Export HH) Latin America -- (Balanced)

Transatlantic -- (Import HH)

Asia -- (Import HH)

• In total, trade with Asia accounts for approximately two-thirds of North America’s total international container trade, but as a result of favorable location vis-à-vis Asian markets (especially Northeast Asia), Asia’s share of total Pacific Coast volumes is over 88% of the international volumes moving through the Pacific Coast ports. • By contrast, Transatlantic volumes account for just 16.5% of the North American total, but account for nearly 30% of the Atlantic’s base. • Trade with Latin America accounts for just under 10% of continental volumes, but only 3% of Pacific volumes. • Combined, the Asia and Transatlantic tradelanes account for more than 83% of the total, and both trades are heavily oriented toward imports.

Private & Confidential 20 Historical Tradelane Performance North America – International Traffic Only

In order to forecast international volumes by tradelane, a shift-share analysis was conducted using 2010 to 2016 data. As can be seen in the two charts below, Asia’s share of the total throughput has most closely tracked overall volumes (losing less than 0.05 percentage points of share per year), while the Transatlantic tradelane has gained 0.42 pp of share per year with most of this gain coming from the 0.30 pp decline in Latin America’s share of total throughput. Rebased Tradelane Volumes (2010=100), 2010-2015 North American Tradelane Shares, 2010 & 2015

• By rebasing each tradelane to the year 2010, it is possible to visualize • Here we see that the Transatlantic share increased from 14.0% to 16.5% how growth rates on each tradelane have evolved. over the course of the 2010 to 2016 period. • The dotted black line represents total port throughput, and to the extent • While tradelane data for Canada are not available prior to 2010, it is that the lines associated with each of the major tradelanes rises above or worth noting that the Transatlantic share of U.S. port volumes fell by below this line, this reflects growth rates that are higher or lower. 50% from 18.4% to 12.0% over the 2000 to 2009 period, but have • Substantial deviations evident in the smaller tradelanes (Africa, recovered at a steady rate since then, rising to 14.4% by 2015. Oceania, and ISC/ME) should be considered in the context of • Thus, the Transatlantic share increase represents only a partial return to growth/decline on much smaller bases. previous levels, and this trend is expected to continue, albeit at a slower • The only tradelane to show a gain is the Transatlantic. pace.

Private & Confidential 21 Volume Forecast for North America and PNCT Monte Carlo Simulation Assumptions

Recognizing that there is uncertainty regarding future values for each of the model inputs (real GDP, the number of TEUs of port throughput generated by each unit of real GDP, and shares by tradelane), Mercator opted to use Monte Carlo simulation to forecast volumes by tradelane. This approach, therefore, requires that the distribution of each of these variables be defined.

Normal Distributions: Real GDP and TEUs per unit of Real GDP Triangular Distributions: Tradelane Share Shift

Real GDP from IHS (2.0% to 2.6%) Mean Asia: No Change TEUs/USD from regression (4.068) Mean Transatlantic: +0.2 pp per year Latin America: -0.1 pp per year

Real GDP +/- 0.5% Standard Deviation Asia, Transatlantic, and L. America: +/- 0.05 pp per year TEUs/USD +/- 0.10 (from regression)

• Normal distributions have been assumed for annual real GDP estimates, • Triangular distributions were assumed for the annual shift in share with the mean being defined separately as the annual values supplied by among the top three tradelanes (Asia, Transatlantic, and Latin America). IHS and the EIU and the standard deviation being set at 0.5% - meaning that approximately two-thirds of the time the real GDP growth rate • Because shares must add to 100%, annual growth rates for each of the forecasts will be within a half of a percentage point of the prediction. remaining tradelanes is calculated by subtracting the total volume from the top three tradelanes from the forecasted total continental volume, • The regression model indicates that the slope of the regression line is and applying y/y growth rates in this combined volume evenly to each of 4.068 with a standard deviation of 0.1, meaning that over the long term the tradelanes. 4,068 TEUs of throughput will most likely be generated by each billion USD of real GDP growth, but in any given year, there is 68% chance that the true value will be within +/- 100k TEUs per billion USD.

Private & Confidential 22 Volume Forecast for North America and PNCT Forecasted of North America Growth Rates by Tradelane and Estimate of PNCT’s 2017 Volume

The forecast for international container growth rates by tradelane over ports in the U.S. and Canada presented below is based on the median forecast from the 1,000 Monte Carlo simulations. After assigning each of the services calling PNCT to a tradelane, the appropriate growth rates will be applied.

Summary of Tradelane Growth Rate for North American

Tradelane 2019 2020 2021 2022 2023 2024 2025 2026 2027 2028 2029 2030 2031 2032 2033 2034 2035 2036 2037 2042 2047 Asia 3.6% 3.2% 3.2% 3.2% 3.0% 2.9% 2.8% 2.7% 2.6% 2.7% 2.8% 2.8% 2.7% 2.7% 2.7% 2.7% 2.7% 2.6% 2.6% 2.5% 2.5% ISC/ME 2.2% 1.8% 1.8% 1.7% 1.5% 1.4% 1.2% 1.1% 2.6% 2.7% 2.8% 2.8% 2.7% 2.7% 2.7% 2.7% 2.7% 2.6% 2.6% 2.5% 2.5% Latin America 2.5% 2.1% 2.1% 2.0% 1.9% 1.7% 1.6% 1.4% 2.6% 2.7% 2.8% 2.8% 2.7% 2.7% 2.7% 2.7% 2.7% 2.6% 2.6% 2.5% 2.5% Transatlantic 4.8% 4.4% 4.4% 4.3% 4.2% 4.1% 3.9% 3.8% 2.6% 2.7% 2.8% 2.8% 2.7% 2.7% 2.7% 2.7% 2.7% 2.6% 2.6% 2.5% 2.5% Oceania & Africa 2.2% 1.8% 1.8% 1.7% 1.5% 1.4% 1.2% 1.1% 2.6% 2.7% 2.8% 2.8% 2.7% 2.7% 2.7% 2.7% 2.7% 2.6% 2.6% 2.5% 2.5% Total 3.6% 3.2% 3.2% 3.2% 3.0% 2.9% 2.8% 2.7% 2.6% 2.7% 2.8% 2.8% 2.7% 2.7% 2.7% 2.7% 2.7% 2.6% 2.6% 2.5% 2.5%

• PNCT had a number of changes in services calling this terminal during 2017, and it received calls from certain strings on a temporary basis due to operational issues at the terminals at which they normally call. • Based on Year-to-Date volumes provided by PNCT and an estimate of how these services are expected perform in terms of volume for the remainder of the year, Mercator estimated that this terminal’s total volume for 2017 will be 739,932 lifts. • Details on the volume each service is expected to generate for Full Year 2017 is provide in the chart below. (The blue bars identify services that will continue to call PNCT in 2018 and the red bars signify strings that only called this facility for a part of 2017, with no plans to call in 2018.)

Estimate of PNCT’s 2017 Volume by Service

Private & Confidential 23 Volume Forecast for North America and PNCT Volume Forecast for PNCT

The estimate of 2017 actual volume by service was used as a starting point for a long term forecast of PNCT throughput volume. Volume by service for 2018 was estimated by annualizing those services which called only part of the year, and eliminating those that ceased calling. Once an annualized throughput for 2017 for only those services that continue calling in 2018 was established, the appropriate tradelane growth rates were applied to project volume over the forecast period. The chart below summarizes Mercator’s volume forecast for PNCT, f summarized by tradelane. Volume Forecast for PNCT

CAGR 2020 to 2031 of 2.8%

• The volume forecast includes growth of the continuing 2017 traffic, plus three additional vessel services that are expected to begin calling in 2018 or 2019. • One service is expected to start calling in Dec 2017 or Jan 2018 • The contract for the second new service has been under negotiation for some months, with PNCT calls expected to begin in mid-year 2018. • The third new service is yet to be identified, but is expected to arise in mid 2019 as a result of growth in traffic between Asia and the USEC . Among the NYNJ terminals, PNCT is best positioned to attract this service.

Private & Confidential 24 PNCT’s Capex Plan and Resulting Capacity

Private & Confidential 25 Review of PNCT’s Capacity and Capex Plans Capital Expenditure Plan

The table below summarizes the PNCT Capital Expenditure Plan for the development of the terminal through 2047

Summary of PNCT CapEx Plan 2017 2018 2019 2020 2021 2022 2023 2024 2025 2026-2030 2031-35 2036-40 2041-47 Total Facilities 36,930,912 55,872,744 2,500,000 5,019,619 3,361,239 6,652,833 7,799,063 38,598,540 3,681,306 86,442,181 21,108,157 23,649,855 37,969,494 329,585,943 Maintenance 3,866,626 3,289,587 2,500,000 3,685,669 3,361,239 3,438,548 3,517,634 3,598,540 3,681,306 19,442,181 21,108,157 23,649,855 37,969,494 133,108,835 Expansion 33,064,286 52,583,157 - 1,333,950 - 3,214,286 4,281,429 35,000,000 - 67,000,000 - - - 196,477,107 $0 Equipment 12,637,558 55,376,223 38,666,481 12,736,310 8,863,130 8,743,113 8,944,205 11,353,018 14,615,679 90,895,705 163,384,483 75,094,909 97,363,546 598,674,359 Maintenance 947,427 15,847,000 11,999,841 9,795,226 7,860,220 7,717,136 7,894,630 10,279,303 10,465,056 53,103,411 163,384,483 75,094,909 97,363,546 471,752,189 Expansion 11,690,131 39,529,223 26,666,640 2,941,084 1,002,910 1,025,977 1,049,574 1,073,714 4,150,623 37,792,294 - - - 126,922,170 $0 IT 1,547,881 4,707,306 817,193 1,110,988 855,216 874,886 895,008 915,593 936,652 5,016,488 5,620,538 6,297,325 10,110,262 39,705,336 Maintenance - 16,806 67,193 68,738 70,319 71,936 73,591 75,284 77,015 412,475 462,142 517,790 831,305 2,744,595 IT 1,547,881 4,690,500 750,000 1,042,250 784,897 802,949 821,417 840,310 859,637 4,604,013 5,158,396 5,779,534 9,278,957 36,960,741

Total CapEx 51,116,351 115,956,273 41,983,674 18,866,917 13,079,585 16,270,832 17,638,276 50,867,151 19,233,638 182,354,373 190,113,177 105,042,088 145,443,302 967,965,638 Maintenance 4,814,053 19,153,393 14,567,034 13,549,633 11,291,778 11,227,621 11,485,856 13,953,127 14,223,377 72,958,067 184,954,781 99,262,554 136,164,345 607,605,619 Expansion 46,302,297 96,802,880 27,416,640 5,317,284 1,787,807 5,043,212 6,152,420 36,914,024 5,010,260 109,396,306 5,158,396 5,779,534 9,278,957 360,360,019

• The Capex plan includes spending for each of the major civil works, equipment, and IT system additions that are included in the capacity model. • Although Mercator has not independently validated each of the specific cost estimates, the cost figures used in the CapEx forecast appear to be reasonable. • In addition to the 4 new cranes arriving in 2018-2019 and reflected in the capacity model, the CapEx plan includes funds for an additional (optional) crane than may be purchased if warranted by demand. • In addition to the capital spending for facility expansion, (which amounts to about $360 million over the period through 2047), the PNCT Plan calls for capital spending of about $607 million for equipment replacement, refurbishment and capitalized maintenance of the facility. • Facility maintenance costs are principally for periodic pavement repair and replacement and are in line with recent history for such costs. • The other maintenance CapEx is for equipment replacement (primarily Straddle Carriers and Gantry Cranes) at the end of expected useful life. Useful life assumptions appear to be reasonable.

Private & Confidential 26 Review of PNCT’s Capacity and Capex Plans Terminal Capacity Forecast

The chart below presents forecast volume (orange line) and terminal throughput capacity as calculated by PNCT management.

1,800,000 Four elements of terminal capacity are considered, with the lowest capacity element the 1,600,000 governing limitation on total capacity:: Yard Storage Capacity 1,400,000 Berth Capacity 1,200,000 Rail Terminal Capacity

Gate Capacity 1,000,000

800,000

600,000

400,000 2011 2012 2013 2014 2015 2016 2017 2018 2019 2020 2021 2022 2023 2024 2025 2026 2027 2028 2029 2030

Yard Capacity Berth Capacity Crane Capacity Rail Capacity Gate Capacity Hist/MI F'Cast Moves • Mercator has reviewed the PNCT capacity model and confirmed that the capacity calculations have been done according to accepted methodologies and are based on reasonable input assumptions • Capacity increases reflected in the model are consistent with the capital spending that is described in the PNCT Capex Model • As shown in the chart, the governing constraint on annual throughput during the development period is either crane capacity or container storage capacity • With additional cranes and the completion of the Phase II / III / IV stacking areas in 2019, the annual capacity of the terminal will reach 1.3 million container moves in 2019, with final capacity of 1.4 million lifts reached in 2028 (governed still by container storage capacity ) • A consideration for PNCT is the portion of capacity that will be suitable for ships of Neo-Panamax size (19 containers across, 14,000 TEU and larger). • With the delivery of two ultra-large cranes in 2018, the terminal will have 5 cranes out of 11 that are suitable for such ships. With two more to be delivered in 2019, the terminal will have 7 cranes out of 13 that meet this size standard. PNCT also has an option for an eight large crane if needed, with funding included in the CapEx plan. • The terminal would thus be able to simultaneously serve two ships of 14,000 TEU capacity, with seven super-post panama cranes , by 2019

Private & Confidential 27 Analysis and Forecast of PNCT Revenue and Average Revenue Per Lift

Private & Confidential 28 Analysis of PNCT Revenue Per Lift Historical Revenue & Revenue Per Lift

The charts below present PNCT’s total revenue and revenue per lift history. Mercator evaluated both at on a detailed basis by service line item as well as by customer grouping. This analysis, combined with Mercator’s detailed volume forecast, was utilized to inform Mercator’s forecast of revenue per lift and correspondingly, PNCT’s revenue.

Total Revenue Total Revenue Per Lift 350,000 400 295,594 388 388 389 277,173 390 300,000 260,751 10.0% CAGR 380 250,000 229,903 221,696 3.8% CAGR 202,017 370 200,000 362 360 150,000 350 100,000 340 335 50,000 330 0 320 2013 2014 2015 2016 YTD Sep YTD 2017 2017 Annualized 310 * 300 2013 2014 2015 2016 YTD Sep 2017 YTD 2017 Annualized 2013 2014 2015 2016 YTD Sep 2017

* Does not include EBITDA Guarantee

• Growth in revenue was primarily driven by growth in 2M/MSC alliance • Growth in revenue per lift was primarily a function of growth in rail and volume, partially offset by declines in 3rd-party volumes terminal services revenues • Stevedoring revenue was the primary service component contributing to • The rapid step-up in 2015-2016 was largely driven by operational revenue increases disruptions resulting from inclement weather and changes in vessel service composition, which have stabilized as seen in the 2017 figures. • Terminal and rail services also experienced growth

Private & Confidential 29 Forecast of PNCT’s Revenue Per Lift Assessment of Competitive Environment As discussed earlier in this document, contracts between terminal operators and ocean carriers normally include a rate escalation clause that is based on a weighted average of increases in labor costs and the overall inflation rate. However, while terminal operators’ contracts include a rate escalation formula, if operating in a port where overall capacity utilization levels are low, operators may be competing for unaffiliated ocean carriers business. This can cause rate increases to be discounted, or not be applied at all. It is generally felt that if a port’s aggregate terminal utilization rate is 70% or higher, the competitive environment will support normal rate escalation, given all the terminals in the market would be operating at a sustainable volume level. To assess the Port of NY/NJ’s rate environment over the forecast period, the chart below provides a forecast of expected container terminal utilization rates for the Port of NY/NJ over the 30 year forecast period.

Forecast of Aggregate Container Terminal Utilization Rates Across the Port of NY/NJ

• The chart above shows that this port’s utilization drops to 66% in 2018 (with the addition of new PNCT capacity) but is expected to promptly recover due to market growth and be above 70% after 2020 and for the rest of the forecast period. • Therefore, the Port of NY/NJ’s competitive environment should support normal rate escalation over the forecast period.

Private & Confidential 30 Forecast of PNCT’s Revenue Per Lift Projected Revenue Levels Per Unit for PNCT

As the forecast of the Port of NY/NJ’s overall terminal utilization rate is projected to be above 70% for every year in the forecast period, except for 2019 it is expected that PNCT will be able to raise its rates per the normal rate escalation formula. As the formula PNCT uses to escalate rates has two components, which are labor cost increase and CPI, information how these are expected to perform over the forecast period are shown below

Labor Cost Increase Assumption CPI Assumptions

• Labor cost increases are based on ILA wage increase as setout in this • From 2018 to 2022 the IMF’s forecast of the United States’ inflation union’s contract with USMX rate was used • The current ILA contract was signed in 2012 and runs to 2018 and over • From 2023 to 2038 CPI was projected to be 2.5% this contact period the average labor cost increase an average of 1.5% a year • It is expected that labor will look to increase its members wages at a faster rate over the forecast period, as the last contract was negotiated soon after the Great Recession, so the ILA was more focused on maintaining jobs and maintaining health care benefits, costs which are paid directly to the labor organization by carriers • Therefore, it was assumed that the average labor cost increase over the forecast period will be 1.75%

• The assumptions discussed above were utilized to project the changes in PNCT rates and revenue levels and the outcome of this analysis can be found in the following table

Forecast of PNCT’s Rate and Revenue Increases

Year 2018 2019 2020 2021 2022 2023 2024 2025 2026 2027 2028 2029 2030 2031 2032 2033

US Inflation 2.1% 2.6% 2.4% 2.2% 2.3% 2.5% 2.5% 2.5% 2.5% 2.5% 2.5% 2.5% 2.5% 2.5% 2.5% 2.5% Labor Rate Growth 0.0% 1.75% 1.75% 1.75% 1.75% 1.75% 1.75% 1.75% 1.75% 1.75% 1.75% 1.75% 1.75% 1.75% 1.75% 1.75%

% of US Inflation 30.0% 30.0% 30.0% 30.0% 30.0% 30.0% 30.0% 30.0% 30.0% 30.0% 30.0% 30.0% 30.0% 30.0% 30.0% 30.0% % of Labor Growth 70.0% 70.0% 70.0% 70.0% 70.0% 70.0% 70.0% 70.0% 70.0% 70.0% 70.0% 70.0% 70.0% 70.0% 70.0% 70.0% RPL Growth Rate 0.6% 2.0% 1.9% 1.9% 1.9% 2.0% 2.0% 2.0% 2.0% 2.0% 2.0% 2.0% 2.0% 2.0% 2.0% 2.0%

Private & Confidential 31 PNCT’s Historical Costs and Forecast of Costs

Private & Confidential 32 Review of PNCT’s Historical Costs Total Cost & Total Cost Per Lift

Mercator analyzed detailed historical costs by category (variable, fixed operating, and SG&A). Variable costs were evaluated on a per unit of volume basis to understand underlying trends. Labor costs were further broken down and evaluated on a manhours accrued per lift and cost per manhour basis. This analysis was utilized to inform Mercator’s forecast of the different cost components.

Total Cos t Total Cos t Per Lift 300,000 360 233,730 241,133 250,000 223,904 350 348 209,405 5.4% CAGR 195,554 180,850 200,000 340 150,000 330 330 324 100,000 320 317 313 50,000 310 0 2013 2014 2015 2016 YTD Sep YTD 2017 300 2017 Annualized 290 2013 2014 2015 2016 YTD Sep 2017 YTD 2017 Annualized 2013 2014 2015 2016 YTD Sep 2017

• As the chart above shows, PNCT’s total cost has grown from about • The 2015 due unit cost spike was driven by operational disruptions $195.5m in 2013 to about $241.1m in 2017 (based on YTD September resulting from inclement weather and vessel service composition 2017, Annualized) • These factors reduced overall vessel productivity, which led to higher • Growth in costs was primarily driven by labor and facilities, driven in marine labor costs large party by volume – fixed compensation and insurance increased as well • The overall reduction in cost per lift was the result several factors, including reduced fuel costs and equipment rental expenses, as well as • These were partially offset by savings in contract services and other new operational processes and improved rail operations which led to a costs 5% reduction in Man Hours Per Lift (MHPL) • The aberrant increase in 2015 was due to operational disruptions • YTD September 2017 reflects the new normal state for unit costs, and resulting from inclement weather and changes in vessel service provides a reasonable basis from which to project future costs composition

Private & Confidential 33 Review of PNCT’s Historical Costs Labor – Takeaways

• Volume will continue to be the primary driver of change in labor cost through the forecast period • Manhours Per Lift (MHPL), a key measure of operational productivity, declined (i.e. improved) by about 5% between 2012 and 2017. • Further improvements are expected by management and are likely to be achieved, although the pace and magnitude of the improvements remains uncertain • For this reason, Mercator has carried forward the 2017 MHPL when forecasting future costs • Labor Cost Per Manhour increases have been relatively steady from 2012 through 2017, with a growth rate slightly above 2% • Mercator expects the future growth rate of hourly labor costs to be about 1.75% per annum for labor through the forecast period

Private & Confidential 34 Review of PNCT Costs Cost Forecasting Assumptions • Variable Costs • Labor – use YTD 2017 MHPL and Cost Per Manhour figures, grown by volume and inflation • Equipment – use YTD 2017 figures and grow by volume and inflation • Facilities – use YTD 2017 figures and grow by volume and inflation • Contract Services – use YTD 2017 figures and grow by volume and inflation • Other Operating – use YTD 2017 figures and grow by volume and inflation • Fixed/SG&A • Fixed Comp – use YTD 2017/ 2018 Mgmt forecast figures and then grow at inflation • Facilities – use YTD 2017/ 2018 Mgmt forecast figures and then grow at inflation • Insurance – use YTD 2017/ 2018 Mgmt forecast figures and then grow at inflation • Contract Services – use YTD 2017/ 2018 Mgmt forecast figures and then grow at inflation • Other Operating – use YTD 2017/ 2018 Mgmt forecast figures and then grow at inflation

Unit cost reductions associated with operational efficiency gains are not included in the Mercator forecast, and so constitute a potential benefit to the upside.

Private & Confidential 35 Financial Summary & Debt Service Coverage Ratio Forecast

Private & Confidential 36 Financial Summary Financial Forecast

• The table below summarizes Mercator’s forecast of volume, rates, and costs • As it shows, Mercator forecasts EBITDA to grow over the next 10 years from about $60.1m in 2018 to $160.7m by 2027 • The table below also shows the Mercator forecast of EBITDA relative to forecast Debt Service (as provided by Management) incorporating current obligations, as well as the anticipated Bond-related debt service • The Debt Service Coverage Ratio (DSCR) would start at 2.4x, increasing steadily to 6.5x by 2027 • Based on Mercator’s assessment, given the anticipated growth in volume and EBITDA, the probability that the business can service the anticipated bond debt as well as existing obligations is high

Period 1 2 3 4 5 6 7 8 9 10 Year 2018 2019 2020 2021 2022 2023 2024 2025 2026 2027 Mercator Forecast Total Revenue 320,285 373,152 418,014 439,195 461,216 484,073 507,512 531,397 555,677 581,016 Total Cost 260,224 291,687 318,471 331,572 345,224 359,551 374,239 389,219 404,468 420,295 EBITDA 60,061 81,465 99,543 107,624 115,993 124,522 133,274 142,178 151,208 160,721 Margin 19% 22% 24% 25% 25% 26% 26% 27% 27% 28% Total Debt Service 24,990 28,304 28,861 34,335 34,637 32,732 26,435 27,511 28,710 24,588 DSCR 2.4x 2.9x 3.4x 3.1x 3.3x 3.8x 5.0x 5.2x 5.3x 6.5x

Private & Confidential 37 [THIS PAGE INTENTIONALLY LEFT BLANK]

APPENDIX C

AUDITED CONSOLIDATED FINANCIAL STATEMENTS OF THE COMPANY FOR THE YEARS ENDED DECEMBER 31, 2016, 2015 AND 2014

[THIS PAGE INTENTIONALLY LEFT BLANK] C ONSOLIDATED F INANCIAL S TATEMENTS

Port Newark Container Terminal, LLC For the Years Ended December 31, 2016 and 2015 With Report of Independent Auditors Port Newark Container Terminal, LLC

Consolidated Financial Statements

For the Years Ended December 31, 2016 and 2015

Contents

Report of Independent Auditors ...... 1

Audited Consolidated Financial Statements

Consolidated Balance Sheets ...... 3 Consolidated Statements of Operations ...... 4 Consolidated Statements of Members’ Equity ...... 5 Consolidated Statements of Cash Flows ...... 6 Notes to Consolidated Financial Statements ...... 7 Ernst & Young LLP Tel: +1 602 322 3000 Ernst & Young Tower Fax: +1 602 322 3023 One Renaissance Square ey.com Suite 2300 2 North Central Avenue Phoenix, AZ 85004

Report of Independent Auditors

The Members Port Newark Container Terminal, LLC

We have audited the accompanying consolidated financial statements of Port Newark Container Terminal, LLC and Subsidiary, which comprise the consolidated balance sheets as of December 31, 2016 and 2015, and the related consolidated statements of operations, members’ equity, and cash flows for the years then ended, and the related notes to the financial statements.

Management’s Responsibility for the Financial Statements

Management is responsible for the preparation and fair presentation of these financial statements in conformity with U.S. generally accepted accounting principles; this includes the design, implementation and maintenance of internal control relevant to the preparation and fair presentation of consolidated financial statements that are free of material misstatement, whether due to fraud or error.

Auditor’s Responsibility

Our responsibility is to express an opinion on these financial statements based on our audits. We conducted our audits in accordance with auditing standards generally accepted in the United States. Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the financial statements are free of material misstatement.

An audit involves performing procedures to obtain audit evidence about the amounts and disclosures in the financial statements. The procedures selected depend on the auditor’s judgment, including the assessment of the risks of material misstatement of the financial statements, whether due to fraud or error. In making those risk assessments, the auditor considers internal control relevant to the entity’s preparation and fair presentation of the financial statements in order to design audit procedures that are appropriate in the circumstances, but not for the purpose of expressing an opinion on the effectiveness of the entity’s internal control. Accordingly, we express no such opinion. An audit also includes evaluating the appropriateness of accounting policies used and the reasonableness of significant accounting estimates made by management, as well as evaluating the overall presentation of the financial statements.

We believe that the audit evidence we have obtained is sufficient and appropriate to provide a basis for our audit opinion.

A member firm of Ernst & Young Global Limited Opinion

In our opinion, the financial statements referred to above present fairly, in all material respects, the consolidated financial position of Port Newark Container Terminal, LLC and Subsidiary at December 31, 2016 and 2015, and the consolidated results of their operations and their cash flows for the years then ended in conformity with U.S. generally accepted accounting principles. February 10, 2017

A member firm of Ernst & Young Global Limited Port Newark Container Terminal, LLC

Consolidated Balance Sheets (in thousands)

December 31, 2016 2015 Assets Current assets: Cash and cash equivalents $ 8,901 $ 23,237 Trade accounts receivable, net 20,186 16,447 Receivables from affiliates 51,730 26,159 Inventories 7,547 7,515 Prepaid expenses and other current assets 2,820 3,286 Total current assets 91,184 76,644

Property and equipment, net 253,036 242,035 Other assets 416 86 Total assets $ 344,636 $ 318,765

Liabilities and members’ equity Current liabilities: Accounts payable $ 12,806 $ 10,600 Accrued expenses 6,664 6,000 Accounts payable to affiliates 9,239 8,910 Current portion of note payable and capital lease obligations 11,203 8,794 Total current liabilities 39,912 34,304

Bonds payable 125,000 125,000 Note payable and capital lease obligations, net of current portion 66,730 70,114 Deferred rent 30,084 28,483 Total liabilities 261,726 257,901

Members’ equity 82,910 60,864 Total liabilities and members’ equity $ 344,636 $ 318,765

See accompanying notes.

3 Port Newark Container Terminal, LLC

Consolidated Statements of Operations (in thousands)

Year Ended December 31, 2016 2015

Total revenue $ 277,173 $ 260,751

Cost of services: Labor 148,519 152,521 Insurance 9,496 10,311 Equipment 11,712 13,209 Facilities 26,430 25,860 Depreciation and amortization 20,743 19,718 Other 17,027 21,005 Total cost of services 233,927 242,624

General and administrative 10,906 10,911 Total operating costs 244,833 253,535

Operating income 32,340 7,216

Interest expense, net 10,294 9,100 Net income (loss) $ 22,046 $ (1,884)

See accompanying notes.

4 Port Newark Container Terminal, LLC

Consolidated Statements of Members’ Equity (in thousands)

Ports Terminal America, Investment Inc. Limited Total

Balance at December 31, 2014 31,374 31,374 62,748 Net loss (942) (942) (1,884) Balance at December 31, 2015 $330,432 $60,432 $ 0,864 Net income 11,023 11,023 22,046 Balance at December 31, 2016 $441,455 $81,455 $ 2,910

See accompanying notes.

5 Port Newark Container Terminal, LLC

Consolidated Statements of Cash Flows (in thousands)

Year Ended December 31, 2016 2015 Operating activities Net income (loss) $ 22,046 $ (1,884) Adjustments to reconcile net income (loss) to net cash provided by operating activities: Depreciation and amortization 20,861 19,844 Loss (gain) on sales of assets 66 (59) Non-cash interest – (909) Changes in operating assets and liabilities: Trade accounts receivable, net (3,739) (7,987) Accounts receivable and payable with affiliates, net (24,414) 16,271 Prepaid expenses and other current assets 104 (2,641) Accounts payable and accrued expenses 1,679 (537) Deferred rent 1,601 2,690 Net cash provided by operating activities 18,204 24,788 Investing activities Purchases of property and equipment (24,340) (11,953) Proceeds on sale of property and equipment 52 59 Net cash used in investing activities (24,288) (11,894) Financing activities Principal payments on capital lease obligations (5,895) (6,072) Principal payments on long term debt (2,357) (413) Net cash used in financing activities (8,252) (6,485) Net increase (decrease) in cash and cash equivalents (14,336) 6,409 Cash and cash equivalents at beginning of year 23,237 16,828 Cash and cash equivalents at end of year $ 8,901 $ 23,237 Supplemental disclosures of cash flow information Cash paid for interest $ 9,386 $ 7,684 Noncash investing and financing activities Acquired equipment under capital lease $ 7,277 $ 29,492 Acquired equipment under note payable $ - $ 30,673 Acquired equipment in accounts payable $ 6,561 $ 5,370 Acquired equipment in due to and from affiliate $ 182 $ 1,010 Netting of AR and Note Payable related to ZPMC Cranes $ - $ 695

See accompanying notes.

6 Port Newark Container Terminal, LLC

Notes to Consolidated Financial Statements

For the Years Ended December 31, 2016 and 2015

1. Nature of Operations

Port Newark Container Terminal, LLC and its subsidiary, Port Newark Maintenance & Repair, LLC (PNMR) (collectively, PNCT or the Company) was formed under the laws of the state of Delaware and incorporated on May 16, 2000. PNCT is owned equally by its two members, Ports America, Inc. (PAI) a wholly owned subsidiary of Ports America Terminal Holdings II, Inc. (PATH II), a Delaware corporation, and Terminal Investment Limited (TIL), a company domiciled in Luxembourg. TIL acquired its 50 percent interest in the Company from PAI on October 12, 2011, in exchange for cash. Prior to that date, PNCT was a wholly owned subsidiary of PAI.

PNCT was formed for the purpose of leasing, managing and operating the marine container terminal and providing stevedoring services in Port Newark, New Jersey, and other locations in the Ports of New York and New Jersey (collectively, the Port). The Company also performs services incidental to operating the terminal and stevedoring services, including equipment repair and maintenance.

2. Summary of Significant Accounting Policies

Basis of Presentation

The accompanying consolidated financial statements present the financial position of PNCT, as of December 31, 2016 and 2015, and the related consolidated statements of operations, members’ equity, and cash flows for the years then ended. All significant intercompany accounts and transactions have been eliminated upon consolidating the financial statements.

Use of Estimates

The preparation of the Company’s financial statements in conformity with United States generally accepted accounting principles (GAAP) requires management of PNCT to make estimates and assumptions that affect the amounts reported in the financial statements and accompanying notes.

Significant items subject to such estimates and assumptions include the carrying amount of property and equipment, allowance for doubtful accounts, accrued liabilities and obligations related to employee benefits. Actual results could differ from those estimates.

7 Port Newark Container Terminal, LLC

Notes to Consolidated Financial Statements (continued)

For the Years Ended December 31, 2016 and 2015

2. Summary of Significant Accounting Policies (continued)

Cash and Cash Equivalents

Cash and cash equivalents consist of cash and temporary investments with maturities of three months or less when acquired.

Trade Accounts Receivable and Allowance for Doubtful Accounts

PNCT grants credit to its customers on an unsecured basis and records a trade account receivable from its customers at the time revenue is recognized. However, PNCT has certain rights to perfect liens, as provided under maritime law.

PNCT’s management determines the allowance for doubtful accounts based on the aging of accounts receivable balances, historical write-off experience, changes in customer creditworthiness, and industry trends. A review of the allowance for doubtful accounts is performed periodically by PNCT’s management. PNCT routinely assesses the financial strength of its customers and believes that credit risk exposure for trade accounts receivable is limited. A valuation allowance is provided for known and anticipated credit losses. Account balances are charged off against the allowance after all means of collection have been exhausted and the potential for recovery is considered remote. PNCT does not have any off-balance sheet credit exposure related to its customers. The allowance for doubtful accounts was $1.7 million and $1.3 million at December 31, 2016 and 2015, respectively and includes sales return reserve of $0.2 million and $0.7 million, respectively. Bad debt expense was $0.2 million and $0.3 million for the years ended December 31, 2016 and 2015, respectively.

Inventory

Inventory is stated at the lower of cost or market value. Cost is determined by the weighted-average cost and consists principally of materials, supplies, parts and fuel used in operations.

8 Port Newark Container Terminal, LLC

Notes to Consolidated Financial Statements (continued)

For the Years Ended December 31, 2016 and 2015

2. Summary of Significant Accounting Policies (continued)

Property and Equipment

Property and equipment is recorded at cost and depreciated on a straight-line basis over the estimated useful life of the asset. Includedinpropertyandequipmentareassetsundercapital leases. Leasehold improvements are amortized over the shorter of the useful life of the leased asset or term of the lease. Maintenance and repairs are charged to expense as incurred while major remodels or improvements are capitalized. When items of property or equipment are sold or retired, the related cost and accumulated depreciation are removed from the accounts and any gain or loss is included in operating income.

Depreciation lives are as follows:

Leasehold improvements 1–20 years Stevedoring equipment 1–30 years Information technology 1–7 years Furniture and fixtures 1–7 years

In 2016, PNCT undertook an engineering and design review related to its Super Post Panamax cranes as part of future capital expenditure evaluation. As a result of the updated expected life of the cranes in this study, PNCT increased the estimated useful lives of its Post Panamax Cranes from 15 years to 30 years. These changes resulted in a net decrease in depreciation expense of $1.1 million for the year ended December 31, 2016.

Grants

On May 29, 2015, the County of Essex, NJ, was awarded a Transportation Investment Generating Economic Recovery (TIGER) grant to use for a terminal access improvement and expansion project. PNCT is the sub-recipient of this grant under an agreement between the County of Essex, NJ and PNCT. The TIGER grant is a reimbursement grant, where PNCT initially incurs costs prior to receiving government funds. As stipulated in the grant, PNCT agreed to contribute $34.2 million in costs toward the project in order to receive $14.8 million in grant funds, making the total planned project cost of $49.0 million.

When a submission of qualifying expenditures for reimbursement is made by PNCT, the amount is recorded as an other receivable and a reduction of the value of the underlying asset. When the reimbursement is received from the government, such receivable is relieved.

9 Port Newark Container Terminal, LLC

Notes to Consolidated Financial Statements (continued)

For the Years Ended December 31, 2016 and 2015

As of December 31, 2016, PNCT has incurred $6.2 million in costs related to the project with a total recovery under the grant of $1.9 million.

2. Summary of Significant Accounting Policies (continued)

Impairment and Disposal of Long-Lived Assets

Long-lived assets such as property and equipment, are reviewed for impairment annually or when events or changes in circumstances indicate that their carrying amounts may not be recoverable. Recoverability of an asset is measured by comparison of the carrying amount of the asset to the net undiscounted future cash flows expected to be generated from the asset. If the future undiscounted cash flows are not sufficient to recover the carrying value of the asset, the asset’s carrying value is reduced to fair value. Impairment losses, if any, are included in operating expense in the consolidated statements of operations.

Losses for damages to assets due to acts of nature are recorded when the event occurs or becomes known. Recoveries are recognized in the same categories as the losses, at the greater of the amount of the actual funds received from the insurance company or the amounts both confirmed and committed by the insurer. Gains in excess of property damages and gain contingencies, such as those for business interruption, are recorded when no repayment obligation exists, which is generally when the funds are received and contractually settled with the insurer or payor.

Long-lived assets to be disposed of are no longer depreciated and are presented separately in the consolidated balance sheet and reported at the lower of the carrying amount or fair value less costs to sell. The assets and liabilities of a disposal group classified as held-for-sale would be presented separately in the appropriate sections of the consolidated balance sheets. There were no assets to be disposed of in the periods presented.

Fair Value Measurements of Financial Instruments PNCT’s financial instruments consist principally of cash and cash equivalents, trade accounts receivable, trade accounts payable and bonds payableTThe fair values of cash and cash equivalents, trade accounts receivable and trade accounts payable approximate their carrying amounts due to their short-term natures and are considered Level 2 in the fair value hierarchy. The carrying value for the bond obligation approximates fair value, as the variable interest rate on the bond approximates interest rates for like instruments and are considered Level 3 in the fair value hierarchy. Fair value measurement establishes a hierarchy for inputs used in measuring fair value that maximizes the use of observable inputs and minimizes the use of unobservable inputs by requiring that observable inputs be used when available. Observable inputs are inputs that market

10 Port Newark Container Terminal, LLC

Notes to Consolidated Financial Statements (continued)

For the Years Ended December 31, 2016 and 2015 participants would use in pricing the asset or liability based on market data obtained from independent sources. Unobservable inputs are inputs that reflect the Company’s assumptions about

2. Summary of Significant Accounting Policies (continued) the inputs that market participants would use in pricing the asset or liability and are developed using the best information available in the circumstances. The fair value hierarchy is broken down into three levels based on the source of inputs as follows: Level 1 – Valuations based on unadjusted quoted prices in active markets that are accessible at the measurement date for identical, unrestricted assets or liabilities Level 2 – Valuations based on quoted prices in markets that are not active, or financial instruments for which all significant inputs are observable, either directly or indirectly Level 3 – Valuations based on prices or valuation techniques that require inputs that are both significant to the fair value measurement and unobservable, thus reflecting assumptions about the market participants. Commitments and Contingencies

Liabilities for loss contingencies, including environmental remediation costs, arising from claims, assessments, litigation, fines, penalties, and other sources, are recorded when it is probable that a liability has been incurred and the amount of the assessment and/or remediation can be reasonably estimated. Legal costs incurred in connection with loss contingencies are expensed as incurred.

Revenue Recognition

Revenue mainly consists of stevedoring and marine terminal operating services provided under contracts with customers. GAAP guidance states that revenue must be earned and either realized or realizable before it may be recognized in the financial statements. The Company recognizes revenue as earned and realized or realizable when all four of the following criteria are met: persuasive evidence of an arrangement exists, services have been rendered, the price is fixed or determinable, and collectability is reasonably assured.

Revenue from stevedoring services and terminal operations is recognized upon completion and in the period the services are provided. All revenue is presented at the fair value of the consideration received or receivable net of customer discounts.

11 Port Newark Container Terminal, LLC

Notes to Consolidated Financial Statements (continued)

For the Years Ended December 31, 2016 and 2015

Cost of Services

Costs associated with services provided to customers are recognized when services are performed and obligations are incurred.

2. Summary of Significant Accounting Policies (continued)

General and Administration

General and administrative expenses consist of salaries and benefits costs, occupancy and other related costs associated with corporate and regional support services.

Interest Expense

Interest is presented net of amounts capitalized. Interest costs related to construction of assets are capitalized and included with property and equipment. For the year ended December 31, 2016, PNCT capitalized $0.3 million. No interest was capitalized for the year ended December 31, 2015.

Income Taxes

PNCT is a limited liability company and has elected to be treated as a partnership for federal and state tax purposes. Accordingly, income or loss is included in the tax returns of its members. As a result, no provision for income taxes has been recorded in the accompanying consolidated financial statements.

Concentration of Credit Risk

As of December 31, 2016, and at various times during the year, PNCT maintained cash balances at financial institutions in excess of the federally insured limits.

Three customers, including an affiliated customer, aggregate trade receivable balances totaled $64.5 million and $37.9 million, representing 89 percent of the Company’s trade accounts receivable and receivable from affiliates as of December 31, 2016 and 2015. Aggregate revenue from those three customers was approximately $234.3 million and $206.5 million, representing 85 percent and 79 percent of total revenue of the Company for the years ended December 31, 2016 and 2015, respectively.

12 Port Newark Container Terminal, LLC

Notes to Consolidated Financial Statements (continued)

For the Years Ended December 31, 2016 and 2015

2. Summary of Significant Accounting Policies (continued)

Reclassifications

Certain prior year amounts in the consolidated balance sheets and statement of cash flows have been re-classed to be consistent with the current year financial statements. A related party claims accrual of $0.7 million was reclassed from accounts payable to accounts payable to affiliates in the Consolidated Balance Sheets.

Subsequent Events

The Company performed an evaluation of subsequent events from the balance sheet date through February 10, 2017, the date these consolidated financial statements were available to be issued and determined there are no additional disclosure matters.

Recent Accounting Pronouncements

Accounting Standards Not Yet Adopted

In May 2014 the Financial Accounting Standards Board (FASB) issued Auditing Standard Update (ASU) 2014-09, “Revenue Recognition - Revenue from Contracts with Customers” (ASU 2014- 09) that requires companies to recognize revenue when a customer obtains control rather than when companies have transferred substantially all risks and rewards of a good or service. This update was revised by ASU 2015-14 on July 9, 2015, which delayed the effective date of the new standard by one year to December 15, 2018, for annual and interim reporting periods beginning after that date. The Company is currently assessing the impact the adoption of ASU 2014-09 will have on its consolidated financial statements.

In February 2016, the FASB issued ASU 2016-02 “Leases” accounting standard that requires companies to recognize lease assets and liabilities on the balance sheet. This standard is effective for annual periods ending after December 15, 2019. The Company is currently assessing the impact the adoption of the new standard will have on our consolidated financial statements.

Accounting Standards Adopted

13 Port Newark Container Terminal, LLC

Notes to Consolidated Financial Statements (continued)

For the Years Ended December 31, 2016 and 2015 requires management to perform interim and annual assessments of an entity’s ability to continue as a going concern within one year of the date of issuance of the entity’s financial statements (or within one year after the date on which the financial statements are available to be issued, when

2. Summary of Significant Accounting Policies (continued) applicable). Further, an entity must provide certain disclosures if there is substantial doubt about the entity’s ability to continue as a going concern. The ASU 2014-15 is effective for annual periods ending after December 15, 2016. The adoption of ASU 2014-15 had no impact on the Company’s consolidated financial statements.

In April 7, 2015, the Financial Accounting Standards Board issued ASU 2015-03, “Presentation of Debt Issuance Costs” (ASU 2015-03) which changes the presentation of debt issuance costs in financial statements. Under the ASU, an entity presents such costs in the balance sheet as a direct deduction from the related debt liability rather than as an asset. Amortization of the costs is reported as interest expense. The ASU 2015-03 is effective for fiscal years beginning after December 15, 2015, and interim periods beginning after December 15, 2016. The adoption of ASU 2015-03 had no impact on the Company’s consolidated financial statements.

3. Members’ Operating Agreement

The interests of each member and the operations of the Company are governed by an operating agreement dated June 1, 2010, that was amended and restated effective with the formation of the joint venture on October 12, 2011 (the Operating Agreement). Property and business affairs are managed by a board of managers, which is appointed by the members in proportion to their respective membership interest. No member has the right to withdraw or reduce their capital except in accordance with the Operating Agreement. No member is required to make any additional capital contributions, unless expressly required under the terms of the Operating Agreement or unless so required by the unanimous consent of the members, and then only in proportion to such member’s then-existing membership percentage.

Net income, losses and cash distributions are allocated based on member equity percentages. Where a transfer of interest occurs during the year, the net income and losses are allocated between the members on the basis of the number of days each member was a member during the year. No transfers of interest occurred in 2016 or 2015.

Under the terms of the Operating Agreement, the liability of each member shall be limited to its capital contributions except as otherwise provided in the Operating Agreement. No member shall

14 Port Newark Container Terminal, LLC

Notes to Consolidated Financial Statements (continued)

For the Years Ended December 31, 2016 and 2015 have any individual liability to contribute money to PNCT or with respect to any liability or obligation of PNCT, except as otherwise provided in the Operating Agreement.

4. Property and Equipment

Property and equipment consisted of the following (in thousands):

December 31 2016 2015

Leasehold improvements $ 165,590 $ 159,445 Stevedoring equipment 173,308 165,964 Information technology - hardware and software 6,485 6,348 Construction in progress 35,747 25,638 381,130 357,395 Accumulated depreciation (128,094) (115,360) Property and equipment, net $ 253,036 $ 242,035

At December 31, 2016 and 2015, stevedoring equipment includes equipment under capital leases with a cost of approximately $69.2 million and $53.9 million and related accumulated amortization of approximately $16.1 million and $9.4 million, respectively.

Depreciation expense which includes amortization of assets under capital leases, was approximately $20.9 million and $19.8 million for the years ended December 31, 2016 and 2015, respectively. Depreciation expense for assets under capital lease was $6.7 million and $4.1 million for the years ended December 31, 2016 and 2015, respectively.

Approximately $0.1 million of the total depreciation expense is included in general and administrative expenses for each of the years ended December 31, 2016 and 2015.

15 Port Newark Container Terminal, LLC

Notes to Consolidated Financial Statements (continued)

For the Years Ended December 31, 2016 and 2015

5. Long-Term Debt and Capital Lease Obligations

Long-term debt consisted of the following (in thousands):

Maturity December 31 Date 2016 2015

Bonds payable (1) $ 125,000 $ 125,000 July 1, 2030 Capital leases (2) 50,724 49,343 Through 2026 Note payable (3) 27,209 29,565 April 30, 2023 202,933 203,908 Less: current portion 11,203 8,794 Long-term debt, less current portion $ 191,730 $ 195,114

(1) Bonds Payable: PNCT has an agreement with the New Jersey Economic Development Authority for a Special Facility Revenue Bond (the Bond) of $125 million. The terms of the Bond require no principal payments until the maturity date (July 1, 2030) upon which a lump-sum payment is due for the entire principal amount. The Bond has a variable interest rate based on the Securities Industry and Financial Markets Association (SIFMA), previously known as the Bond Market Association (BMA), index rate and is payable monthly to the bondholders. On February 7, 2012, as part of a mandatory tender and remarketing, the Bonds were bifurcated into Series 2003A and Series 2003B Bonds of $62.5 million each. The Series 2003A bonds are guaranteed by PATH II and Series 2003B Bonds are guaranteed by TIL through letters of credit. On April 25, 2014, the Series 2003A Bonds were subject to mandatory tender as a result of a change in financial institutions holding the letter of credit. Upon mandatory tender and remarketing, the terms of the 2003A Bonds remained the same as the original agreement.

The interest rate was 0.70 percent and 0.90 percent for Series 2003A Bonds and Series 2003B Bonds, respectively, at December 31, 2016. The interest rate was 0.01 percent and 0.50 percent for Series 2003A Bonds and Series 2003B Bonds, respectively, at December 31, 2015.

The payment of the principal and interest on the Series 2003A Bonds and Series 2003B Bonds, including any payment made with respect to optional or mandatory tender for purchase or optional or mandatory redemption corresponding to the principal of and interest on each bond series (exclusive of amounts corresponding to premium, if any), are secured by Series 2003A Letter of Credit and the Series 2003B Letter of Credit, respectively. The letters of credit securing the Series 2003A Bonds payable and Series 2003B Bonds payable expire on April 24, 2017 and May 23,

16 Port Newark Container Terminal, LLC

Notes to Consolidated Financial Statements (continued)

For the Years Ended December 31, 2016 and 2015

5. Long-Term Debt and Capital Lease Obligations (continued)

2017, respectively, and renew automatically. Fees associated with Series 2003A Bond and Series 2003B Bond letters of credit were 4.34 percent and 3.40 percent, respectively, at December 31, 2016.

(2) Capital Leases: PNCT has multiple capital lease arrangements for stevedoring equipment with terms expiring on various dates through April 2026.

(3) Note Payable: On November 1, 2012, PNCT entered into a contract for three ship-to-shore container gantry cranes for a cost of $34.6 million. During 2015 an amount of $30.7 million was financed by a note payable to the supplier. The note requires a quarterly payment of $1.2 million, which includes principal and interest, has a maturity date of April 30, 2023 and carries a 6.0 percent annual interest rate.

Principal Maturities

As of December 31, 2016, the principal maturities for each of the next five years and thereafter are as follows (in thousands):

Bonds Capital Note Payable Payable Leases Total

2017 $ – $ 6,599 $ 4,604 $ 11,203 2018 – 6,977 3,579 10,556 2019 – 7,123 3,799 10,922 2020 – 7,161 4,032 11,193 2021 – 6,670 4,279 10,949 Thereafter 125,000 16,194 6,916 148,110 Total payments $ 125,000 $ 50,724 $ 27,209 $ 202,933

17 Port Newark Container Terminal, LLC

Notes to Consolidated Financial Statements (continued)

For the Years Ended December 31, 2016 and 2015

5. Long-Term Debt and Capital Lease Obligations (continued)

Interest Expense, Net

Interest expense for the years ended December 31, 2016 and 2015 consists of the following (in thousands):

December 31, 2016 2015

Bonds payable $ 530 $ 588 Capital leases 2,078 1,470 Note payable 1,647 1,200 Letters of credit fees 6,053 5,865 10,308 9,123 Interest income (14) (23) $ 10,294 $ 9,100

6. Leases

Operating Lease

Effective June 14, 2011, PNCT entered into an amended and restated agreement of its lease (Agreement) with the Port Authority of New York and New Jersey (the Port Authority) for the right to operate the marine terminals in Port Newark, New Jersey, and other locations in the Port of New York and New Jersey. The Agreement, which is accounted for as a noncancelable operating lease, has an initial expiration date of November 30, 2030, and can be renewed and extended, at PNCT’s option, through November 30, 2050. Rental payments include a minimum rental plus contingent rentals based on container throughput volumes that exceed a threshold volume level based on the amount of acreage leased under the Agreement. PNCT pays all executory costs, such as maintenance and insurance costs.

Minimum rental payments are recognized on a straight-line basis over the term of the lease including any period of free rent.

18 Port Newark Container Terminal, LLC

Notes to Consolidated Financial Statements (continued)

For the Years Ended December 31, 2016 and 2015

6. Leases (continued)

In August 2014, the Company agreed to lease additional property that was under lease from the Port Authority to other tenants. The tenants were responsible for monthly rental payments as well as prior year rent payments for previous usage of the properties. All sublease rental income received by PNCT is recorded as a reduction of rental expense. PNCT recorded $1.2 million in sublease rental income in the year ended December 31, 2015. No sublease rental income related to these properties was received in the year ended December 31, 2016 as the properties had been vacated by the tenants.

Rent expense for the years ended December 31, 2016 and 2015 consist of the following (in thousands):

2016 2015

Minimum rentals $ 13,612 $ 13,446 Contingent rentals 9,913 8,420 Less: Sublease rental income – (1,154) Total rental expense, net $ 23,525 $ 20,712

PNCT’s members have two outstanding letters of credit of $13.0 million, of which $6.5 million is guaranteed by PATH II and $6.5 million is guaranteed by TIL as of December 31, 2016. These letters of credit that expire on February 28, 2017 and September 2017 meet the deposit requirement of the Agreement. The letters of credit renew automatically. Fees associated with PATH II’s letters of credit were 4.34 percent and 3.83 percent for the years ended December 31, 2016 and 2015, respectively, and are included in interest expense in the accompanying statements of operations. Fees associated with TIL’s letters of credit were 3.85 percent for each of the years ended December 31, 2016 and 2015, and are included in interest expense in the accompanying statements of operations.

19 Port Newark Container Terminal, LLC

Notes to Consolidated Financial Statements (continued)

For the Years Ended December 31, 2016 and 2015

6. Leases (continued) minimum aggregate amount of qualifying capital expenditures of $320 million on or before November 30, 2028. The Agreement contains cure provisions in the event the qualifying expenditures are not met as well as the ability to adjust the timing of such expenditures in the event the Port Authority has not delivered the necessary added parcels.

The Agreement requires compliance with certain provisions and covenants, such as payment of rent, abandonment, or discontinuance of operations, and bankruptcy. The Agreement prohibits a change in ownership control without the prior consent of the Port Authority. If PNCT defaults on its obligations and does not cure the default within the allowed period, the Port Authority would have the option of canceling the Agreement. Such cancellation by either party would have a material adverse effect on PNCT’s financial position and results of operations.

Customer Guaranty Agreement

Simultaneously with the execution of the Agreement, one of PNCT’s customers, a related party, entered into a Throughput Guaranty Agreement for the benefit of the Port Authority (Customer Guaranty Agreement) with a term consistent with the Agreement excluding any renewal or extension periods as defined in the Agreement. The Customer Guaranty Agreement requires the customer to transport to or from the Port a minimum number of qualified containers or otherwise pay a throughput fee as defined in the Customer Guaranty Agreement. The throughput fee is limited to the difference between the minimum number of qualified containers and the actual volume of qualified containers below the minimum multiplied by the throughput fee. In the event the customer becomes liable to the Port Authority and remains liable for a period of 105 calendar days, the amount of any unpaid customer liability on the 106th calendar day owed to the Port Authority will become rent due from PNCT. In the event the unpaid customer liability is added to PNCT’s rent, the Company may pursue collection directly from the customer; the Port Authority would then subrogate its rights against the customer for any unpaid amounts being sought by PNCT. The maximum amount of exposure under the Customer Guaranty Agreement as it relates to PNCT cannot be estimated due to the variable nature of future container volume projections or mitigating events. No unpaid customer liabilities exceeding 105 calendar days outstanding existed at December 31, 2016 or 2015.

20 Port Newark Container Terminal, LLC

Notes to Consolidated Financial Statements (continued)

For the Years Ended December 31, 2016 and 2015

6. Leases (continued)

Minimum lease payments

Future minimum payments under noncancelable operating leases and capital leases at December 31, 2016, are as follows (in thousands):

Operating Capital Leases Leases

2017 $ 14,583 $ 8,530 2018 15,034 8,690 2019 15,334 8,535 2020 15,616 8,271 2021 15,928 7,482 Thereafter 156,863 17,366 Total 233,358 58,874 Less: Imputed interest – (8,150) Present value of minimum lease payments $ 233,358 $ 50,724

7. Employee Benefit Plans

Multiemployer Pension Plan

PNCT, through its subsidiary PNMR, is a participant in the Metro ILA Pension Fund (EIN # 13- 1939129/001) and contributed $3.1 million and $3.3 million to the plan for the years ended December 31, 2016 and 2015, respectively. The Company’s contribution for the 2015 plan year was greater than 5.0 percent of the total contributions to the Metro Plan.

For the plan year ended December 2015, the plan was certified in compliance under the federal multiemployer plan funding laws pursuant to the Pension Protection Act of 2006.

The Company, as signatory to union collective bargaining arrangements, can be subject to pension withdrawal liabilities associated with certain under-funded multiemployer pension plans. The amount of contingent liability associated with these contracts, if any, has not been determined, and only applies if the Company were to cease doing business in the geographical areas covered by the contract, which the Company has no intention to do.

21 Port Newark Container Terminal, LLC

Notes to Consolidated Financial Statements (continued)

For the Years Ended December 31, 2016 and 2015

7. Employee Benefit Plans (continued)

Non-union Employee Benefits

PNCT, through an affiliate, provides a defined contribution plan (the Plan) for its non-union full- time employees. The Plan includes a deferred compensation arrangement under Section 401(k) of the Internal Revenue Code. These employees are eligible to participate in the Plan immediately upon employment with PNCT. PNCT provides a matching contribution of 100 percent of the employees’ contributions up to 6.0 percent of the employees’ salary. Total matching contribution to the plan amounted to $0.4 million for each of the years ended December 31, 2016 and 2015. PNCT has the right to amend or terminate the Plan at any time. Presently, the Company does not intend to terminate the Plan.

Collective Bargaining Agreement

Approximately 94 percent of PNCT’s labor costs for 2016 are paid pursuant to collective bargaining agreements with various unions. Two of these agreements were renewed through 2018 with the third renewed through December 31, 2017.

8. Pledge in Connection with Indebtedness of Affiliate

On January 27, 2014, in connection with a credit agreement, PATH II pledged its 50 percent interest in PNCT.

9. Related-Party Transactions

In the normal course of business, PNCT enters into numerous transactions with affiliates; Ports America Shared Services (PASS) and Ports America Group Inc (PAG) and other affiliated customers (Other). The balances in “receivables from affiliates” and “accounts payable to affiliates” on the accompanying consolidated balance sheets represent the net amounts due from and/or due to each unconsolidated related party.

PNCT provides and receives various administrative services, management services, insurance services, terminal operating system services, and labor services to affiliates under various agreements.

22 Port Newark Container Terminal, LLC

Notes to Consolidated Financial Statements (continued)

For the Years Ended December 31, 2016 and 2015

9. Related-Party Transactions (continued)

The table below indicates the due to/due from as well as the expenses incurred from these intercompany relationships as of December 31 (in thousands):

Due (to)/from PNCT

2016 2015 Affliated Customer Port & Labor Services $ 50,585 $ 25,076 Other Port & Labor Services (3,225) (2,735) PAG Insurance Services (2,374) (1,634) PASS Support Services (778) (638) PAG Support Services (83) (940) Other Support Services (1,634) (1,880) Total $ 42,491 $ 17,249

Financial Statement Presentation

2016 2015 Receivable from affiliates $ 51,730 $ 26,159 Accounts payable to affiliates (9,239) (8,910) Total $ 42,491 $ 17,249

Related Party Revenue/(Expense)

2016 2015 Affiliated Customer Port & Labor Services $ 158,795 $ 129,039 PASS Support Services (4,083) (4,003) Other Support Services (249) (174) PAG Support Services (3,398) (2,694) PAG Insurance Services (9,580) (10,369) Total $ 141,485 $ 111,799

23 Port Newark Container Terminal, LLC

Notes to Consolidated Financial Statements (continued)

For the Years Ended December 31, 2016 and 2015

9. Related-Party Transactions (continued)

Of the $141.5 million and $111.8 million in net related party revenue and expenses from the table above for the years ended December 31, 2016 and 2015, respectively, $159.0 million and $129.0 million, respectively are presented as revenue, $7.5 million and $6.7 million, respectively are presented as general and administrative, and $10.0 million and $10.5 million, respectively are presented as cost of services in the accompanying consolidated statements of operations.

10. Commitments and Contingencies

Various lawsuits, claims and proceedings are pending against PNCT out of the ordinary course of business. The resolution of these matters is not expected to have a material impact on PNCT’s financial position or results of operations.

C ONSOLIDATED F INANCIAL S TATEMENTS

Port Newark Container Terminal, LLC and Subsidiary For the Years Ended December 31, 2015 and 2014 With Report of Independent Auditors

Port Newark Container Terminal, LLC and Subsidiary

Consolidated Financial Statements

For the Years Ended December 31, 2015 and 2014

Contents

Report of Independent Auditors ...... 1

Audited Consolidated Financial Statements

Ernst & Young LLP Tel: +1 602 322 3000 Ernst & Young Tower Fax: +1 602 322 3023 One Renaissance Square ey.com Suite 2300 2 North Central Avenue Phoenix, AZ 85004

Report of Independent Auditors

The Members Port Newark Container Terminal, LLC

We have audited the accompanying consolidated financial statements of Port Newark Container Terminal, LLC and Subsidiary, which comprise the consolidated balance sheets as of December 31, 2015 and 2014, and the related consolidated statements of operations, members’ equity, and cash flows for the years then ended, and the related notes to the financial statements.

Management’s Responsibility for the Financial Statements

Auditor’s Responsibility

We believe that the audit evidence we have obtained is sufficient and appropriate to provide a basis for our audit opinion.

A member firm of Ernst & Young Global Limited

Opinion

In our opinion, the financial statements referred to above present fairly, in all material respects, the consolidated financial position of Port Newark Container Terminal, LLC and Subsidiary at December 31, 2015 and 2014, and the consolidated results of their operations and their cash flows for the years then ended in conformity with U.S. generally accepted accounting principles. January 31, 2016

A member firm of Ernst & Young Global Limited Port Newark Container Terminal, LLC and Subsidiary

Consolidated Balance Sheets (in thousands)

December 31, 2015 2014 Assets Current assets: Cash and cash equivalents $ 23,237 $ 16,828 Trade accounts receivable, net 16,447 8,460 Receivables from affiliates 26,159 43,836 Inventories 7,515 6,291 Prepaid expenses and other current assets 3,286 1,995 Total current assets 76,644 77,410

Property and equipment, net 242,035 184,986 Other assets 86 107 Total assets $ 318,765 $ 262,503

Liabilities and members’ equity Current liabilities: Accounts payable $ 11,300 $ 7,301 Accrued expenses 6,000 6,721 Accounts payable to affiliates 8,210 8,762 Current portion of notes payable 3,588 – Current portion of capital lease obligations 5,206 4,240 Total current liabilities 34,304 27,024

Bonds payable 125,000 125,000 Notes payable, net of current portion 25,977 – Capital lease obligations 44,137 21,938 Deferred rent 28,483 25,793 Total liabilities 257,901 199,755

Members’ equity 60,864 62,748 Total liabilities and members’ equity $ 318,765 $ 262,503

See accompanying notes.

3 Port Newark Container Terminal, LLC and Subsidiary

Consolidated Statements of Operations (in thousands)

Year Ended December 31, 2015 2014

Total revenue $ 260,751 $ 229,903

Cost of services: Labor 152,521 137,019 Insurance 10,311 10,077 Equipment 13,209 15,201 Facilities 25,860 22,563 Depreciation and amortization 19,718 16,061 Other 21,005 14,425 Insurance recoveries on equipment losses – ( 3,394) Total cost of services 242,624 211,952

General and administrative 10,911 10,175 Total operating costs 253,535 222,127

Operating income 7,216 7,776

Interest expense, net 9,100 8,062 Net loss $ (1,884) $ ( 286)

See accompanying notes.

4 Port Newark Container Terminal, LLC and Subsidiary

Consolidated Statements of Members’ Equity (in thousands)

Ports Terminal Member America, Investment Contribution Inc. Limited Receivable Total

Balance at December 31, 2013 $ 31,517 $ 31,517 $ – 63,034$ Net loss (143) (143) – (286) Balance at December 31, 2014 31,374 31,374 – 62,748 Net loss (942) (942) – (1,884) Balance at December 31, 2015 $ 30,432 $ 30,432 $ – 60,864$

See accompanying notes.

5 Port Newark Container Terminal, LLC and Subsidiary

Consolidated Statements of Cash Flows (in thousands)

Year Ended December 31, 2015 2014 Operating activities Net loss $ (1,884) $ (286) Adjustments to reconcile net loss to net cash provided by operating activities: Depreciation and amortization 19,844 16,148 Gain on sales of assets (59) (34) Non-cash interest (909) – Involuntary conversion of equipment, net of recovery – (3,394) Changes in operating assets and liabilities: Trade accounts receivable, net (7,987) (2,807) Accounts receivable and payable with affiliates, net 16,271 13,071 Prepaid expenses and other current assets (2,641) (2,478) Accounts payable and accrued expenses (537) (541) Deferred rent 2,690 2,180 Net cash provided by operating activities 24,788 21,859 Investing activities Purchases of property and equipment (11,953) (11,282) Proceeds on sale of property and equipment 59 55 Equipment insurance recoveries – 3,394 Net cash used in investing activities (11,894) (7,833) Financing activities Principal payments on capital lease obligations (6,072) (3,926) Principal payments on long term debt (413) – Net cash used in financing activities (6,485) (3,926) Net increase in cash and cash equivalents 6,409 10,100 Cash and cash equivalents at beginning of year 16,828 6,728 Cash and cash equivalents at end of year $ 23,237 $ 16,828 Supplemental disclosures of cash flow information Cash paid for interest $ 7,684 $ 4,323 Noncash investing and financing activities Acquired equipment under capital lease $ 29,492 $ 8,792 Acquired equipment under note payable $ 30,673 $ – Acquired equipment in accounts payable $ 5,370 1,555 Acquired equipment in due to and from affiliate $ 1,010 156 Netting of AR and Note Payable related to ZPMC Cranes $ 695 –

See accompanying notes.

6 Port Newark Container Terminal, LLC and Subsidiary

Notes to Consolidated Financial Statements

December 31, 2015

1. Nature of Operations

Port Newark Container Terminal, LLC and its subsidiary, Port Newark Maintenance & Repair, LLC (PNMR) (collectively, PNCT or the Company) was formed under the laws of the state of Delaware and incorporated on May 16, 2000. PNCT is owned equally by its two members, Ports America, Inc. (PAI) a wholly owned subsidiary of Ports America Terminal Holdings II, Inc. (PATH II), a Delaware corporation, and Terminal Investment Limited (TIL), a company originally incorporated in Guernsey, UK Crown dependency and redomiciled in Luxembourg in 2012. TIL acquired its 50 percent interest in the Company from PAI on October 12, 2011, in exchange for cash. Prior to that date, PNCT was a wholly owned subsidiary of PAI.

2. Summary of Significant Accounting Policies

Basis of Presentation

The accompanying consolidated financial statements present the financial position of PNCT, as of December 31, 2015 and 2014, and the related consolidated statements of operations, members’ equity, and cash flows for the years then ended. All significant intercompany accounts and transactions have been eliminated upon consolidating the financial statements.

Use of Estimates

Port Newark Container Terminal, LLC and Subsidiary

Notes to Consolidated Financial Statements

December 31, 2015

Cash and Cash Equivalents

Cash and cash equivalents consist of cash and temporary investments with maturities of three months or less when acquired.

Trade Accounts Receivable and Allowance for Doubtful Accounts

PNCT’s management determines the allowance for doubtful accounts based on the aging of accounts receivable balances, historical write-off experience, changes in customer creditworthiness, and industry trends. A review of the allowance for doubtful accounts is performed periodically by PNCT’s management. PNCT routinely assesses the financial strength of its customers and believes that credit risk exposure for trade accounts receivable is limited. A valuation allowance is provided for known and anticipated credit losses. Account balances are charged off against the allowance after all means of collection have been exhausted and the potential for recovery is considered remote. PNCT does not have any off-balance sheet credit exposure related to its customers. The allowance for doubtful accounts was $1.3 million and $1.9 million at December 31, 2015 and 2014, respectively. Bad debt expense was $0.3 million and $0.4 million for the years ended December 31, 2015 and 2014, respectively.

Inventory

Inventory is stated at weighted-average cost and consists principally of materials, supplies, parts and fuel used in operations.

Property and Equipment

Property and equipment is recorded at cost and depreciated on a straight-line basis over the estimated useful asset lives. Leasehold improvements are amortized over the shorter of the useful life of the leased asset or term of the lease. Maintenance and repairs are charged to expense as incurred while major remodels or improvements are capitalized. When items of property or equipment are sold or retired, the related cost and accumulated depreciation are removed from the accounts and any gain or loss is included in operating income.

8 Port Newark Container Terminal, LLC and Subsidiary

Notes to Consolidated Financial Statements

December 31, 2015

Depreciation lives are as follows:

Leasehold improvements 1 – 29 years Stevedoring equipment 2 – 19 years Information technology - hardware and software 2 – 7 years

Grants

When a submission of qualifying expenditures for reimbursement is made by PNCT, the amount is recorded as a receivable and a reduction of the value of the underlying asset. When the reimbursement is received from the government, such receivable is relieved.

As of December 31, 2015, PNCT incurred $0.9 million in costs related to the project with an expected reimbursement of $0.3 million included in prepaid expenses and other current assets in the accompanying consolidated balance sheets.

Impairment and Disposal of Long-Lived Assets

9 Port Newark Container Terminal, LLC and Subsidiary

Notes to Consolidated Financial Statements

December 31, 2015

Losses for damages to assets due to acts of nature, such as those attributed to Superstorm Sandy (Note 10) are recorded when the event occurs or becomes known. Recoveries are recognized in the same categories as the losses, at the greater of the amount of the actual funds received from the insurance company or the amounts both confirmed and committed by the insurer. Gains in excess of property damages and gain contingencies, such as those for business interruption, are recorded when no repayment obligation exists, which is generally when the funds are received and contractually settled with the insurer or payor. Long-lived assets to be disposed of are no longer depreciated and are presented separately in the consolidated balance sheets and reported at the lower of the carrying amount or fair value less costs to sell. The assets and liabilities of a disposal group classified as held-for-sale would be presented separately in the appropriate sections of the consolidated balance sheets. There were no material assets to be disposed of in the periods presented. Fair Value Measurements of Financial Instruments PNCT’s financial instruments consist principally of cash and cash equivalents, trade accounts receivable, trade accounts payable and bonds payable The fair values of cash and cash equivalents, trade accounts receivable and trade accounts payable approximate their carrying amounts due to their short-term natures and are considered Level 2 in the fair value hierarchy. The carrying value for the bond obligation approximates fair value, as the variable interest rate on the bond approximates interest rates for like instruments and are considered Level 3 in the fair value hierarchy. Fair value measurement establishes a hierarchy for inputs used in measuring fair value that maximizes the use of observable inputs and minimizes the use of unobservable inputs by requiring that observable inputs be used when available. Observable inputs are inputs that market participants would use in pricing the asset or liability based on market data obtained from independent sources. Unobservable inputs are inputs that reflect the Company’s assumptions about the inputs that market participants would use in pricing the asset or liability and are developed using the best information available in the circumstances. The fair value hierarchy is broken down into three levels based on the source of inputs as follows: Level 1 – Valuations based on unadjusted quoted prices in active markets that are accessible at the measurement date for identical, unrestricted assets or liabilities Level 2 – Valuations based on quoted prices in markets that are not active, or financial instruments for which all significant inputs are observable, either directly or indirectly Level 3 – Valuations based on prices or valuation techniques that require inputs that are both significant to the fair value measurement and unobservable, thus reflecting assumptions about the market participants.

10 Port Newark Container Terminal, LLC and Subsidiary

Notes to Consolidated Financial Statements

December 31, 2015

Commitments and Contingencies

Revenue Recognition

Cost of Services

Costs associated with services provided to customers are recognized when services are performed and obligations are incurred.

General and Administration

General and administrative expenses consist of salaries and benefits costs, occupancy and other related costs associated with corporate and regional support services.

Interest Expense

Interest is presented net of amounts capitalized. Interest costs related to construction of assets are capitalized and included with property and equipment. No interest was capitalized for the years ended December 31, 2015 and 2014.

11 Port Newark Container Terminal, LLC and Subsidiary

Notes to Consolidated Financial Statements

December 31, 2015

Income Taxes

Concentration of Credit Risk

As of December 31, 2015, and at various times during the year, PNCT maintained cash balances at financial institutions in excess of the federally insured limits. Given the economic environment and risks in the banking industry, there is risk that these deposits may not be readily available or covered by insurance. Excluding the related party customer, as of December 31, 2015 and 2014, four customers, whose aggregate balances totaled $15.0 million and $6.0 million, representing 98 percent and 89 percent of trade accounts receivable for the years ended December 31, 2015 and 2014, respectively. In the aggregate excluding the related party customer, revenue from those four customers was approximately $106.6 million and $46.5 million, representing 81 percent and 80 percent of total revenue of the Company for the years ended December 31, 2015 and 2014, respectively.

An additional customer, who is a related party to TIL due to common ownership, has an accounts receivable balance of $24.9 million and $43.6 million as of December 31, 2015 and 2014, respectively. This same customer accounted for $129.0 million and $172.1 million of revenue representing approximately 49 percent and 75 percent of total revenue for the years ended December 31, 2015 and 2014, respectively. The related-party customer is a container shipping company.

Subsequent Events

The Company performed an evaluation of subsequent events from the balance sheet date through January 31, 2016, the date these consolidated financial statements were available to be issued and determined there are no additional disclosure matters.

12 Port Newark Container Terminal, LLC and Subsidiary

Notes to Consolidated Financial Statements

December 31, 2015

New Accounting Pronouncements

In May 2014 the Financial Accounting Standards Board issued Auditing Standard Update (ASU) 2014-09, “Revenue Recognition - Revenue from Contracts with Customers” (ASU 2014-09) that requires companies to recognize revenue when a customer obtains control rather than when companies have transferred substantially all risks and rewards of a good or service. This update was revised by ASU 2015-14 on July 9, 2015, which delayed the effective date of the new standard by one year to December 15, 2018, for annual and interim reporting periods beginning after that date. The Company is currently assessing the impact that the adoption of ASU 2014-09 will have on its consolidated financial statements.

In August 2014, the Financial Accounting Standards Board issued ASU 2014-15, “Going Concern” (ASU 2014-15) which provides guidance on determining when and how reporting entities must disclose going-concern uncertainties in their financial statements. The new standard requires management to perform interim and annual assessments of an entity’s ability to continue as a going concern within one year of the date of issuance of the entity’s financial statements (or within one year after the date on which the financial statements are available to be issued, when applicable). Further, an entity must provide certain disclosures if there is “substantial doubt about the entity’s ability to continue as a going concern. The ASU 2014-15 is effective for annual periods ending after December 15, 2016. The adoption of ASU 2014-15 is expected to have no impact on the Company.

3. Members’ Operating Agreement

13 Port Newark Container Terminal, LLC and Subsidiary

Notes to Consolidated Financial Statements

December 31, 2015

Under the terms of the Operating Agreement, the liability of each member shall be limited to its capital contributions except as otherwise provided in the Operating Agreement. No member shall have any individual liability to contribute money to PNCT or with respect to any liability or obligation of PNCT, except as otherwise provided in the Operating Agreement.

4. Property and Equipment

Property and equipment consisted of the following (in thousands):

December 31 2015 2014

Leasehold improvements $ 159,445 $ 157,481 Stevedoring equipment 165,964 107,235 Information technology - hardware and software 6,348 4,082 Construction in progress 25,638 12,770 357,395 281,568 Accumulated depreciation (115,360) (96,582) Property and equipment, net $ 242,035 $ 184,986

At December 31, 2015 and 2014, stevedoring equipment includes equipment under capital leases (Note 6) with a cost of approximately $53.9 million and $34.5 million and related accumulated amortization of approximately $9.4 million and $8.6 million, respectively.

Depreciation expense which includes amortization of assets under capital leases, was approximately $19.8 million and $16.1 million for the years ended December 31, 2015 and 2014, respectively. Depreciation expense for assets under capital lease was $4.1 million and $3.4 million for the years ended December 31, 2015 and 2014, respectively.

Approximately $0.1 million of the total depreciation expense is included in general and administrative expenses for each of the years ended December 31, 2015 and 2014.

14 Port Newark Container Terminal, LLC and Subsidiary

Notes to Consolidated Financial Statements

December 31, 2015

5. Long-Term Debt and Capital Lease Obligations

Long-term debt consisted of the following (in thousands):

December 31, December 31, Maturity 2015 2014 Date

Bonds payable (1) $ 125,000 $ 125,000 July 1, 2030 Capital leases (2) 49,343 26,178 Through 2026 Note payable (3) 29,565 - April 30, 2023 203,908 151,178 Less: Current portion 8,794 4,240 Long-term debt, less current portion $ 195,114 $ 146,938

(1) Bonds Payable: PNCT has an agreement with the New Jersey Economic Development Authority for a Special Facility Revenue Bond (the Bond) of $125 million. The terms of the Bond require no principal payments until the maturity date (July 1, 2030) upon which a lump- sum payment is due for the entire principal amount. The Bond has a variable interest rate based on the Securities Industry and Financial Markets Association (SIFMA), previously known as the Bond Market Association (BMA), index rate and is payable monthly to the bondholders. On February 7, 2012, as part of a mandatory tender and remarketing the Bonds were bifurcated into Series 2003A and Series 2003B Bonds of $62.5 million each. The Series 2003A bonds are guaranteed by PATH II and Series 2003B Bonds are guaranteed by TIL through letters of credit. On April 25, 2014, the Series 2003A Bonds were subject to mandatory tender as a result of a change in financial institutions holding the letter of credit. Upon mandatory tender and remarketing, the terms of the 2003A Bonds remained the same as the original agreement.

The interest rate was 0.01 percent and 0.50 percent for Series 2003A Bonds and Series 2003B Bonds, respectively, at December 31, 2015. The interest rate was 0.07 percent and 0.75 percent for Series 2003A Bonds and Series 2003B Bonds, respectively, at December 31, 2014.

15 Port Newark Container Terminal, LLC and Subsidiary

Notes to Consolidated Financial Statements

December 31, 2015

(2) Capital Leases: PNCT has multiple capital lease arrangements for stevedoring equipment with terms expiring on various dates through April 2026.

PNCT’s members held four outstanding letters of credit on two capital leases totaling approximately $3.2 million that served as security for two of the stevedoring equipment capital leases. The leases secured by these letters of credit expired on February 1, 2015 and August 1, 2015 and the letters of credit were cancelled. The fee associated with the letters of credit secured by PATH II was 3.76 percent and 3.73 percent for the year ended December 31, 2015 and 2014, respectively. The fees associated with the letters of credit secured by TIL were 3.40 percent and 3.85 percent for the years ended December 31, 2015 and 2014, respectively. All fees were included in interest expense in the accompanying consolidated statements of operations by PNCT.

(3) Note Payable: On November 1, 2012, PNCT entered into a contract with Shanghai Zhenhua Heavy Industries Co., Ltd. (ZPMC) for three ship-to-shore container gantry cranes for a cost of $34.6 million. During 2015, these cranes were placed into service and an amount of $30.7 million was financed by a note payable to ZPMC. The note requires a quarterly payment of $1.2 million, which includes principal and interest, has a maturity date of April 30, 2023 and carries a 6.0 percent annual interest rate.

16 Port Newark Container Terminal, LLC and Subsidiary

Notes to Consolidated Financial Statements

December 31, 2015

Principal Maturities

As of December 31, 2015, the principal maturities for each of the next five years and thereafter are as follows (in thousands):

Bonds Capital Note Payable Leases Payable Total

2016 $ - $ 5,206 $ 3,588 $ 8,794 2017 - 6,278 3,372 9,650 2018 - 6,339 3,579 9,918 2019 - 6,458 3,799 10,257 2020 - 6,469 4,032 10,501 Thereafter 125,000 18,593 11,195 154,788 Total payments $ 125,000 $ 49,343 $ 29,565 $ 203,908

Interest Expense, Net

Interest expense for the years ended December 31, 3015 and 2014 consists of the following (in thousands):

December 31, 2015 2014

Bonds payable $ 588 $ 758 Capital leases 1,470 1,359 Note payable 1,200 - Letters of credit fees 5,865 5,960 9,123 8,077 Interest income (23) (15) $ 9,100 $ 8,062

17 Port Newark Container Terminal, LLC and Subsidiary

Notes to Consolidated Financial Statements

December 31, 2015

6. Leases

Operating Lease

Minimum rental payments are recognized on a straight-line basis over the term of the lease including any period of free rent.

In August 2014, the Company agreed to lease additional property that was under lease from the Port Authority to other tenants. The tenants were responsible for monthly rental payments as well as prior year rent payments for previous usage of the properties. All sublease rental income received by PNCT is recorded as a reduction of rental expense. PNCT recorded $1.2 million and $2.4 million in sublease rental income including $0.7 million and $1.3 million related to prior year rental amounts received in current year for 2015 and 2014, respectively. No future sublease rentals are expected.

Rent expense for the years ended December 31, 2015 and 2014 consist of the following (in thousands):

2015 2014

Minimum rentals $ 13,446 $ 13,387 Contingent rentals 8,420 7,598 Less: Sublease rental income (1,154) (2,444) Total rental expense, net $ 20,712 $ 18,541

18 Port Newark Container Terminal, LLC and Subsidiary

Notes to Consolidated Financial Statements

December 31, 2015

PNCT’s members have two outstanding letters of credit of $13.0 million, of which $6.5 million is guaranteed by PATH II and $6.5 million is guaranteed by TIL as of December 31, 2015. These letters of credit that expire on February 28, 2016 and March 30, 2016 meet the deposit requirement of the Agreement. The letters of credit renew automatically. Fees associated with PATH II’s letters of credit were 3.83 percent and 3.73 percent for the years ended December 31, 2015 and 2014, respectively, and are included in interest expense in the accompanying statements of operations. Fees associated with TIL’s letters of credit were 3.40 percent and 3.85 percent for each of the years ended December 31, 2015 and 2014, respectively, and are included in interest expense in the accompanying statements of operations.

The Agreement contains provisions for the increase in the amount of property leased based on the availability of property according to a development schedule from the Port Authority. The dates various properties will be made available extends out to January 1, 2019. The Agreement also includes minimum capital expenditure requirements for defined qualifying expenditures for property expansion of $500 million. $50 million of this requirement was to be expended prior to December 31, 2013 and an additional $450 million of this requirement was to be expended prior to November 30, 2029; the Company has spent approximately $177 million toward this commitment as of December 31, 2015. Notwithstanding the foregoing, the Agreement requires a minimum aggregate amount of qualifying capital expenditures of $320 million on or before November 30, 2028. The Agreement contains cure provisions in the event the qualifying expenditures are not met as well as the ability to adjust the timing of such expenditures in the event the Port Authority has not delivered the necessary added parcels.

19 Port Newark Container Terminal, LLC and Subsidiary

Notes to Consolidated Financial Statements

December 31, 2015

Customer Guaranty Agreement

Minimum lease payments

Future minimum payments under noncancelable operating leases and capital leases at December 31, 2015, are as follows (in thousands):

Operating Capital Leases Leases

2016 $ 12,608 $ 6,880 2017 14,583 8,010 2018 15,034 7,798 2019 15,334 7,643 2020 15,616 7,378 Thereafter 172,790 20,040 Total 245,965 57,749 Less: Imputed interest - (8,406) Present value of minimum lease payments $ 245,965 $ 49,343

20 Port Newark Container Terminal, LLC and Subsidiary

Notes to Consolidated Financial Statements

December 31, 2015

7. Employee Benefit Plans

Multiemployer Pension Plan

PNCT, through its subsidiary PNMR, is a participant in the Metro ILA Pension Fund (EIN # 13- 1939129/001) and contributed $3.3 million and $3.2 million to the plan for the years ended December 31, 2015 and 2014, respectively. The Company’s contribution for the 2015 plan year was greater than 5.0 percent of the total contributions to the Metro Plan.

For the plan year ended December 2014, the plan was certified in endangered status by the Fund’s actuary under the federal multiemployer plan funding laws pursuant to the Pension Protection Act of 2006.

Non-union Employee Benefits

PNCT, through an affiliate, provides a defined contribution plan (the Plan) for its non-union full- time employees. The Plan includes a deferred compensation arrangement under Section 401(k) of the Internal Revenue Code. These employees are eligible to participate in the Plan immediately upon employment with PNCT. PNCT provides a matching contribution of 100 percent of the employees’ contributions up to 6.0 percent of the employees’ salary. Total matching contribution to the plan amounted to $0.4 million for each of the years ended December 31, 2015 and 2014. PNCT has the right to amend or terminate the Plan at any time. Presently, the Company does not intend to terminate the Plan.

Collective Bargaining Agreement

Approximately 95 percent of PNCT’s labor costs for 2015 are paid pursuant to collective bargaining agreements with various unions. Two of these agreements were renewed through 2018 with the third renewed through December 31, 2016.

8. Pledge in Connection with Indebtedness of Affiliate

On January 27, 2014, in connection with a credit agreement, PATH II pledged its 50 percent interest in PNCT. Previously, the member interest in PNCT pledged under a credit agreement dated March 16, 2007, with PAI.

21 Port Newark Container Terminal, LLC and Subsidiary

Notes to Consolidated Financial Statements

December 31, 2015

9. Related-Party Transactions

PNCT provides and receives various administrative services, management services, insurance services, terminal operating system services, and labor services to affiliates under various agreements.

The table below indicates the due to/due from as well as the expenses incurred from these intercompany relationships as of December 31 (in thousands):

Due (to)/from PNCT

2015 2014 Affliated Customer Port & Labor Services $ 25,776 $ 43,572 Other Port & Labor Services (2,735) (2,160) PAG Insurance Services (1,634) (834) PASS Support Services (638) (779) PAG Support Services (940) (4,218) Other Support Services (1,880) (507) Total $ 17,949 $ 35,074

Related Party Revenue/(Expense)

2015 2014 Affiliated Customer Port & Labor Services $ 129,039 $ 172,122 PASS Support Services (4,003) (3,936) Other Support Services (174) (172) PAG Support Services (2,694) (1,000) PAG Insurance Services (10,369) (10,091) Total $ 111,799 $ 156,923

22 Port Newark Container Terminal, LLC and Subsidiary

Notes to Consolidated Financial Statements

December 31, 2015

Of the $111.8 million and $156.9 million in net related party revenue and expenses from the table above for the years ended December 31, 2015 and 2014, respectively, $129.0 million and $172.1 million are presented as revenue, $6.7 million and $4.9 million are presented as general and administrative, and $10.5 million and $10.3 million are presented as cost of services in the accompanying consolidated statement of operations.

10. Impact of Superstorm Sandy

On October 29, 2012, PNCT’s operations incurred significant wind and water damage from the effects of Superstorm Sandy (Sandy), a storm that affected much of the Eastern seaboard of the United States of America.

The Company was insured for damages to buildings, property, equipment, other assets, business interruption and clean-up expenses related to this storm. The total loss attributable to PNCT was $25.6 million. The insurance claim was comprised of the following components (in millions):

Building, equipment and property loss $ 12.4 Clean-up/Other expense 12.2 Business income loss 1.0 Total claim $ 25.6

Damaged assets were removed from service and shown as involuntary conversion of equipment, net of recovery, in the Company’s consolidated financial statements.

Recoveries were recognized when proceeds were received or confirmed and committed by the insurer.

23 Port Newark Container Terminal, LLC and Subsidiary

Notes to Consolidated Financial Statements

December 31, 2015

The following expenses and recoveries related to Superstorm Sandy are as follows (in millions):

Building, Equipment Clean- Business and Property up/Other (Income) Loss Expense Loss Total 2012: Expense $ 4.4 $ 5.9 $ - $ 10.3 Recoveries (0.1) (0.2) – (0.3) Net expense (recoveries) $ 4.3 $ 5.7 $ – $ 10.0

2013: Expense $ 0.5 $ 3.7 $ – $ 4.2 Recoveries (8.9) (9.7) (1.0) (19.6) Net recoveries $ (8.4) $ (6.0) $ (1.0) $ (15.4)

2014: Expense $ 0.2 $ – $ – $ 0.2 Recoveries (3.4) (2.3) – (5.7) Net recoveries $ (3.2) $ (2.3) $ – $ (5.5)

Clean up and other expense, property recoveries and business income (loss) expenses / (recoveries) are recorded in components of cost of services on the consolidated statements of operations.

11. Commitments and Contingencies

During 2015, PNCT entered into a capital lease arrangement for twenty straddle carriers and two empty container handlers for $18.0 million. As of December 31, 2015, only twelve straddle carriers have been accepted and placed into service with the remaining equipment expected to be placed into service in early 2016.

APPENDIX D

UNAUDITED FINANCIAL STATEMENTS OF THE COMPANY FOR THE NINE-MONTH PERIODS ENDED SEPTEMBER 30, 2016 AND 2017

[THIS PAGE INTENTIONALLY LEFT BLANK] Port Newark Container Terminal, LLC

Consolidated Balance Sheets (in thousands)

September December 31, 2017 2016 Assets Current assets: Cash and cash equivalents $ 26,242 $ 8,901 Trade accounts receivable, net 17,004 20,186 Receivables from affiliates 34,654 51,730 Inventories 7,749 7,547 Prepaid expenses and other current assets 1,977 2,820 Total current assets 87,626 91,184

Property and equipment, net 270,258 253,036 Other assets 86 416 Total assets $ 357,970 $ 344,636

Liabilities and members’ equity Current liabilities: Accounts payable $ 18,438 $ 12,806 Accrued expenses 6,012 6,664 Accounts payable to affiliates 8,256 9,239 Current portion of note payable and capital lease obligations 11,674 11,203 Total current liabilities 44,380 39,912

Bonds payable 124,998 125,000 Note payable and capital lease obligations, net of current portion 58,831 66,730 Deferred rent 30,201 30,084 Total liabilities 258,410 261,726

Members’ equity 99,560 82,910 Total liabilities and members’ equity $ 357,970 $ 344,636

D-1 Port Newark Container Terminal, LLC

Consolidated Statements of Operations (in thousands)

Nine Months Ended September 30, 2017 2016

Total revenue $ 221,696 $ 194,148

Cost of services: Labor 122,377 $ 113,980 Insurance 6,587 $ 7,147 Equipment 9,544 $ 8,887 Facilities 21,581 $ 19,825 Depreciation and amortization 15,447 $ 16,552 Other 12,843 $ 12,773 Total cost of services 188,379 179,164

General and administrative 8,655 $ 7,821 Total operating costs 197,034 186,985

Operating income 24,662 7,163

Interest expense, net 8,012 $ 7,992 Net income (loss) $ 16,650 $ (829)

D-2 Port Newark Container Terminal, LLC

Consolidated Statements of Members’ Equity (in thousands)

Ports Terminal America, Investment Inc. Limited Total

Balance at December 31, 2016 $ 41,455 $ 41,455 $ 82,910 Net income 8,325 8,325 16,650 Balance at September 30, 2017 $ 49,780 $ 49,780 $ 99,560

D-3 Port Newark Container Terminal, LLC

Consolidated Statements of Cash Flows (in thousands)

Nine Months Ended September 30, 2017 2016 Operating activities Net income (loss) $ 16,650 $ (829) Adjustments to reconcile net income (loss) to net cash provided by operating activities: Depreciation and amortization 16,088 16,642 Loss on sales of assets 2 47 Changes in operating assets and liabilities: Trade accounts receivable, net 3,182 (6,557) Accounts receivable and payable with affiliates, net 15,874 (2,638) Prepaid expenses and other current assets 971 1,337 Accounts payable and accrued expenses 3,689 3,300 Other current liabilities – (50) Deferred rent 117 1,201 Net cash provided by operating activities 56,573 12,453 Investing activities Purchases of property and equipment (31,804) (16,402) Proceeds on sale of property and equipment – 39 Net cash used in investing activities (31,804) (16,363) Financing activities Principal payments on capital lease obligations (5,534) (4,808) Principal payments on long term debt (1,894) (1,751) Net cash used in financing activities (7,428) (6,559) Net increase (decrease) in cash and cash equivalents 17,341 (10,469) Cash and cash equivalents at beginning of period 8,901 23,237 Cash and cash equivalents at end of period $ 26,242 $ 12,768 Supplemental disclosures of cash flow information Cash paid for interest $ 7,546 $ 8,399 Noncash investing and financing activities Acquired equipment under capital lease $ - $ 7,502 Acquired equipment in accounts payable $ 7,850 $ 4,094 Acquired equipment in due to and from affiliate $ 401 $ 96

D-4

APPENDIX E

FORMS OF CERTAIN PROVISIONS OF THE CERTAIN FINANCING DOCUMENTS AND COLLATERAL DOCUMENTS

[THIS PAGE INTENTIONALLY LEFT BLANK] Form of Indenture

INDENTURE OF TRUST

BETWEEN

NEW JERSEY ECONOMIC DEVELOPMENT AUTHORITY

AND

U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE

Dated as of December 1, 2017

NEW JERSEY ECONOMIC DEVELOPMENT AUTHORITY SPECIAL FACILITY REVENUE AND REFUNDING BONDS (PORT NEWARK CONTAINER TERMINAL L.L.C. PROJECT), SERIES 2017

ARTICLE I DEFINITIONS ...... 3 Section 1.1 Definitions of Certain Terms ...... 3

ARTICLE II SECURITY FOR BONDS ...... 15 Section 2.1 Grant of Trust Estate ...... 15 Section 2.2 Time of Pledge; Delivery of Trust Estate ...... 16 Section 2.3 Amounts Received Pursuant to the Collateral Agency Agreement ...... 17 Section 2.4 Discharge of Indenture ...... 17 Section 2.5 Bonds Secured on Equal and Proportionate Basis ...... 17 Section 2.6 Limited Obligations ...... 17 Section 2.7 Bonds Constitute a Contract ...... 18

ARTICLE III AUTHORIZATION, ISSUANCE AND DELIVERY OF BONDS ...... 18 Section 3.1 Authorization, Purpose, Name, Principal Amount, Interest Rates and Method and Place of Payment ...... 18 Section 3.2 Execution and Authentication of the Bonds ...... 19 Section 3.3 Delivery of Bonds ...... 19

ARTICLE IV TERMS OF BONDS ...... 20 Section 4.1 Form of Bond, Registered Form, Denominations and Numbering of Bonds ...... 20 Section 4.2 Registration of Bonds; Persons Treated as Owners; Transfer and Exchange of Bonds ...... 21 Section 4.3 Mutilated, Lost, Stolen or Destroyed Bonds ...... 22 Section 4.4 Payment of Debt Service and Redemption Price ...... 22 Section 4.5 Redemption of Bonds and Redemption Payments ...... 23 Section 4.6 Notice of Redemption ...... 26 Section 4.7 Book-Entry Registration ...... 26 Section 4.8 Delivery of New Bonds Upon Partial Redemption of Bonds ...... 27 Section 4.9 Nonpresentment of Bonds...... 27 Section 4.10 Cancellation of Bonds ...... 27 Section 4.11 Open Market Purchases/Purchase in Lieu of Redemptions ...... 27

ARTICLE V FUNDS AND ACCOUNTS ...... 28 Section 5.1 Establishment of Funds and Accounts ...... 28 Section 5.2 Series 2017 Debt Service Fund ...... 29 Section 5.3 Series 2017 Rebate Fund ...... 29 Section 5.4 Moneys to be Held in Trust ...... 30 Section 5.5 Investment of Moneys...... 30

ARTICLE VI COVENANTS OF THE AUTHORITY ...... 31 Section 6.1 Representations, Covenants and Warranties ...... 31 Section 6.2 Maintenance of Existence ...... 32 Section 6.3 No Superior or Parity Liens on Trust Estate ...... 32 Section 6.4 Tax Covenant ...... 32 Section 6.5 Compliance with Law ...... 33

Section 6.6 No Appointment of Receiver, Etc ...... 33 Section 6.7 Rights Under Agreement ...... 33 Section 6.8 Notices, Etc ...... 33 Section 6.9 Indebtedness ...... 34 Section 6.10 IRS Form 8038 ...... 34

ARTICLE VII DEFAULTS AND REMEDIES ...... 34 Section 7.1 Events of Default ...... 34 Section 7.2 Remedies Following and During the Continuance of an Event of Default...... 34 Section 7.3 Use of Moneys Received from Exercise of Remedies ...... 36 Section 7.4 Limitations on Rights of Owners Acting Individually ...... 36 Section 7.5 Trustee May Enforce Rights Without Bonds ...... 36 Section 7.6 Trustee to File Proofs of Claim in Receivership, Etc ...... 37 Section 7.7 Delay or Omission; No Waiver ...... 37 Section 7.8 Discontinuance of Proceedings on Event of Default; Position of Parties Restored ...... 37 Section 7.9 Waivers of Events of Default ...... 37 Section 7.10 Notice of Non-Compliance ...... 38

ARTICLE VIII CONCERNING THE TRUSTEE ...... 38 Section 8.1 Representations, Covenants and Warranties Regarding Execution, Delivery and Performance of Indenture ...... 38 Section 8.2 Duties of the Trustee ...... 38 Section 8.3 Compensation of Trustee ...... 41 Section 8.4 Resignation or Replacement of Trustee ...... 42 Section 8.5 Conversion, Consolidation or Merger of Trustee ...... 43 Section 8.6 Intervention by Trustee ...... 43 Section 8.7 Books and Records; Reports ...... 43

ARTICLE IX SUPPLEMENTAL INDENTURES ...... 44 Section 9.1 Supplemental Indentures Not Requiring Consent of Owners ...... 44 Section 9.2 Supplemental Indentures Requiring Consent of Owners ...... 45 Section 9.3 Conditions to Effectiveness of Supplemental Indentures ...... 45 Section 9.4 Consent of the Company ...... 46 Section 9.5 Execution of Supplemental Indentures by Trustee ...... 46

ARTICLE X AMENDMENT OF AND CERTAIN ACTIONS UNDER AGREEMENT AND GUARANTY ...... 46 Section 10.1 Amendments to Agreement or Guaranty Not Requiring Consent of Owners ...... 46 Section 10.2 Amendments to Agreement or Guaranty Requiring Consent of Owners ...... 47 Section 10.3 Actions of Trustee Requiring Owner Consent Pursuant to the Intercreditor Agreement, the Lease Agreement or the Guaranty ...... 48

ARTICLE XI DEFEASANCE ...... 48 Section 11.1 Discharge of Indenture ...... 48 Section 11.2 Defeasance of Bonds ...... 49 Section 11.3 Opinion of Bond Counsel ...... 50 Section 11.4 Defeasance of Less than all Bonds ...... 50

ARTICLE XII ADDITIONAL BONDS...... 50 Section 12.1 Authorization for Additional Bonds ...... 50 Section 12.2 Additional Bonds ...... 50

ARTICLE XIII MISCELLANEOUS ...... 51 Section 13.1 Table of Contents, Titles and Headings ...... 51 Section 13.2 Interpretation and Construction ...... 51 Section 13.3 Further Assurances and Corrective Instruments ...... 52 Section 13.4 Evidence of Signature of Owners and Ownership of Bonds ...... 53 Section 13.5 Authorization of Officers and Employees ...... 53 Section 13.6 Parties Interested Herein ...... 53 Section 13.7 Authority and Trustee Representatives ...... 53 Section 13.8 Reporting between the Trustee and Collateral Agent ...... 54 Section 13.9 Manner of Giving Notices ...... 54 Section 13.10 No Recourse; No Individual Liability ...... 54 Section 13.11 Events Occurring on Days that are not Business Days ...... 55 Section 13.12 Severability ...... 55 Section 13.13 Applicable Law ...... 55 Section 13.14 Execution in Counterparts ...... 55 Section 13.15 Effectiveness Date ...... 55 Section 13.16 Exculpation of Authority ...... 55 Section 13.17 Authority and Trustee Entitled to Indemnity ...... 56 Section 13.18 Authority Not Responsible for Insurance, Taxes, Execution of Indenture, or Application of Moneys Applied in Accordance with this Indenture ...... 56 Section 13.19 Authority May Rely on Certificates ...... 56 Section 13.20 Application of New Jersey Contractual Liability Act ...... 57

EXHIBIT A - Form of Series 2017 Bond

iii

INDENTURE OF TRUST

This INDENTURE OF TRUST (as amended, supplement, amended and restated or otherwise modified from time to time, the “Indenture”) is dated as of December 1, 2017, and is entered into between the NEW JERSEY ECONOMIC DEVELOPMENT AUTHORITY, a public body corporate and politic constituting an instrumentality of the State of New Jersey (the “State”) duly organized and existing under the Laws of the State (the “Authority”) solely with respect to its role as conduit issuer of the Bonds, and U.S. BANK NATIONAL ASSOCIATION, a national banking association organized and existing under and by virtue of the Laws of the United States of America, as trustee (together with any successor trustee duly appointed under this Indenture, the “Trustee”).

W I T N E S S E T H:

WHEREAS, capitalized terms used herein but not otherwise defined in the preamble or these recitals shall have the respective meanings ascribed to such terms in Section 1.1 of this Indenture;

WHEREAS, the Act declares it to be in the public interest and to be the policy of the State to foster and promote the economy of the State, increase opportunities for gainful employment and improve living conditions, assist in the economic development or redevelopment of political subdivisions of the State, and otherwise contribute to the prosperity, health and general welfare of the State and its inhabitants by inducing manufacturing, industrial, commercial, recreational, retail, service and other employment by promoting enterprises by making available financial assistance, to locate, remain or expand within the State;

WHEREAS, the Authority, to accomplish the purposes of the Act, is empowered to extend credit to such employment promoting enterprises in the name of the Authority, on such terms and conditions and in such manner as it may deem proper for such consideration and upon such terms and conditions as the Authority may determine to be reasonable;

WHEREAS, Port Newark Container Terminal L.L.C., a Delaware limited liability company (the “Company”) has applied to the Authority for financial assistance in the aggregate principal amount of up to $300,000,000, the proceeds to be used to finance a project (the “Project”) consisting of: (i) refunding the outstanding $125,000,000 New Jersey Economic Development Authority Special Facility Revenue Bonds (Port Newark Container Terminal LLC Project) Series 2003, consisting of the $62,500,000 Series 2003A and $62,500,000 Series 2003B (collectively, the “Series 2003 Bonds”); (ii) financing a portion of the costs of expansion, renovation, construction and equipping of the Port Newark Container Terminal at Port Newark, which is bordered on the east by Newark Bay; on the south by the Elizabeth Channel; on the west by Corbin Street; on the north by a series of streets beginning on Marsh Street east to Coastwise Street, south on Coastwise Street to Tyler Street, east on Tyler Street to Export Street, south on Export Street to Calcutta Street, east on Calcutta, south from Calcutta south to Starboard Street and east on Starboard Street to Newark Bay, in the City of Newark, County of Essex, New Jersey (the “Terminal”), including (a) construction and installation of new truck gate facilities and equipment, (b) acquisition and installation of new customs and security technology, (c) construction and installation of new comfort and customer service stations for truckers, (d)

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construction and installation of new back-up power generation facilities, (e) demolition of two existing warehouses, (f) expansion of the Terminal yard by 46 acres and renovation of approximately 34 acres of the Terminal yard, (g) expansion and improvements to the yard electrical and lighting systems, (h) expansion and improvements to the existing wharf and berths, (i) acquisition and installation of new gantry cranes and straddle carriers, (j) construction and equipping an offsite depot, and (k) various paving and improvements to existing facilities (collectively, the “2017 Facility”); (iii) paying certain costs incurred in connection with the issuance of the Series 2017 Bonds (as hereinafter defined); and (iv) funding a deposit to a debt service reserve fund securing the payment of principal and interest on the Series 2017 Bonds; and

WHEREAS, the 2017 Facility is to be located on the Leased Premises (as defined herein) located at the Terminal. Such Leased Premises (i) are subject to the terms of an Agreement of Lease dated October 22, 1947 (as amended and supplemented, the “Basic Lease”), between the City of Newark, New Jersey and the Port Authority of New York and New Jersey (the “Port Authority”); (ii) have been subleased by the Port Authority to the Company pursuant the Amended and Restated Agreement of Lease (Lease No. L-PN-264) dated as of June 14, 2011 (as the same may have been or may hereafter be amended and supplemented, the “Port Authority Lease”); and (iii) have been sub-subleased by the Company to the Authority and sub-sub- subleased by the Authority to the Company pursuant to the Lease Agreement, dated as of December 1, 2017 (the “Lease Agreement”); and

WHEREAS, in furtherance of the purposes of the Act and as an inducement to the Company to finance the Project, the Authority has duly accepted the Application (as defined in the Lease Agreement) of the Company for assistance in the financing of, among other things, the Project by preliminary resolution duly adopted on October 12, 2017; and

WHEREAS, the Authority has by further resolution adopted November 28, 2017 (the “Bond Resolution”) duly authorized the issuance of not to exceed $300,000,000 of its Special Facility Revenue and Refunding Bonds (Port Newark Container Terminal L.L.C. Project), Series 2017 (the “Series 2017 Bonds”) to provide funds to finance, among other things, the Project; and

WHEREAS, the Authority has determined that the issuance, sale and delivery of the Series 2017 Bonds as hereinafter provided is needed to finance the Costs of the Project, including necessary expenses incidental thereto; and

WHEREAS, concurrently with the execution hereof, the Company will enter into (i) a Guaranty Agreement of even date herewith (the “Guaranty”) with the Trustee pursuant to which the Company will guarantee the payment of the principal of, redemption premium, if any, and interest on the Series 2017 Bonds and (ii) an Administration Expense Guaranty Agreement of even date herewith (the “Administration Expense Guaranty”) with the Authority pursuant to which the Company will guarantee the payment of Administration Expenses; and

WHEREAS, the Authority has contracted for the sale and delivery of the Series 2017 Bonds in the aggregate principal amount of $[______] as herein provided; and

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WHEREAS, all Bonds issued under this Indenture will be secured by a pledge of the Trust Estate; and

WHEREAS, in the event that conditions set forth in Article XII of this Indenture are satisfied, the Authority may issue additional bonds pursuant to Article XII of this Indenture, which additional bonds shall be equally and ratably secured by the Trust Estate with all other then Outstanding Bonds, without preference, priority or distinction (the “Additional Bonds”); and

WHEREAS, all things necessary to make the Bonds, when authenticated by the Trustee and issued as provided in this Indenture, the valid, binding and legal special, limited obligations of the Authority according to the import thereof, and to constitute this Indenture a valid assignment and pledge of the amounts assigned and pledged to the payment of the principal of, premium, if any, and interest on the Bonds, and to constitute this Indenture a valid assignment of the rights of the Authority under the Company Sublease (except for such rights of the Authority retained by the Authority), have been done and performed, and the creation, execution and delivery of this Indenture and the creation, execution and issuance of the Bonds, subject to the terms hereof, have in all respects been duly authorized; and

WHEREAS, the Trustee has the power to enter into this Indenture and to execute the trusts hereby created and has accepted the trusts so created and in evidence thereof has joined in the execution hereof;

NOW, THEREFORE, for and in consideration of the mutual covenants, and the representations and warranties, set forth herein, the Authority and the Trustee agree as follows:

ARTICLE I

DEFINITIONS

Section 1.1 Definitions of Certain Terms. All capitalized terms used herein but not otherwise defined herein shall have the respective meanings ascribed to such terms in the Definitions in Exhibit A attached to the Collateral Agency Agreement (defined below). In addition, the following terms as used in this Indenture shall have the following meanings:

“Accounts” means, collectively, the accounts and sub-accounts established and created by this Indenture.

“Act of Bankruptcy” occurs immediately if and when (i) a petition in bankruptcy is filed by the relevant party under the Federal or state bankruptcy code or a receivership, conservatorship, insolvency, assignment for the benefit of creditors or other similar proceedings is commenced by the relevant party under the Federal or state bankruptcy code or (ii) a petition in bankruptcy is filed against the relevant party under the Federal or state bankruptcy code or a receivership, conservatorship, insolvency, assignment for the benefit of creditors or other similar

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proceedings is commenced against the relevant party under the Federal or state bankruptcy code which is (a) consented to or not timely contested by such party, (b) results in the entry of an order for relief or (c) is not dismissed within 60 days.

“Additional Bonds” has the meaning set forth in the recitals to this Indenture.

“Administration Expense Guaranty” has the meaning set forth in the recitals to this Indenture.

“Administration Expenses” means the reasonable expenses incurred with respect to the Lease Agreement, this Indenture and any transaction or event contemplated by the Lease Agreement or this Indenture, including, without limitation, the compensation and reimbursement of the reasonable expenses and advances (including reasonable counsel fees) payable to the Authority, the Trustee, the Paying Agent and the Registrar.

“Affirmative Action Program” means the provisions of the Act, the resolutions, rules and regulations of the Authority, as adopted, amended and supplemented from time to time to the Date of Issuance, requiring that the Company and all Contractors make every effort to hire minority workers or to cause minority workers to be hired for employment in performance of Construction Contracts in fulfillment of the minority employment goals fixed by the Authority, and that the Company and all Contractors file such certificates, reports and records and do other prescribed acts as are necessary to demonstrate or assure compliance.

“Arbitrage Certificate” means the Arbitrage Certificate dated as of the Date of Issuance and delivery of any series of Bonds, furnished by the Authority and based upon a certificate furnished by the Company.

“Authority” has the meaning set forth in the preamble to this Indenture.

“Authority Representative” means the Chairman, Vice Chairman, Chief Executive Officer, Chief Financial Officer, Director of Bonds and Incentives, Director of Closing Services, Secretary or Assistant Secretary of the Authority or any other person authorized to perform such act or sign such document.

“Authorized Company Representative” means the Person or Persons at the time designated to act on behalf of the Company. As of the date of issuance of the Series 2017 Bonds, the Authorized Company Representatives are the Chief Executive Officer, President and Chief Financial Officer of the Company.

“Authorized Denomination” means $100,000 and any integral multiple of $5,000 in excess of $100,000; provided, however, that in the event the Series 2017 Bonds achieve an Investment Grade Rating (as defined herein), the denominations shall be reduced to $5,000 and any integral multiple thereof.

“Basic Lease” has the meaning set forth in the recitals to this Indenture.

“Beneficial Owners” means purchasers of beneficial interests in the Series 2017 Bonds.

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“Bond Counsel” means McCarter & English, LLP, or other attorneys selected by the Authority, with the consent of the Company, which consent shall not be unreasonably withheld, who have nationally recognized expertise in the issuance of municipal securities, the interest on which is excluded from gross income for federal and state income tax purposes.

“Bond Documents” means this Indenture, the Lease Agreement, the Guaranty and the Administration Expense Guaranty.

“Bond Financing Documents” means the Bond Documents, any Supplemental Indenture executed with respect to the Bonds, the Series 2017 Bonds, any Additional Bonds, the Consent, the Collateral Documents, the Continuing Disclosure Agreement, the Arbitrage Certificate, the Representation Letter, the Line of Credit Agreement, the Intercreditor Agreement and any fee letter entered into by the Company with the Underwriter or the Authority, all as the same may from time to time be amended, modified, extended, renewed and/or restated.

“Bond Resolution” means the resolution of the Authority adopted on November 14, 2017, authorizing the issuance of the Series 2017 Bonds.

“Bonds” means the Series 2017 Bonds and any Additional Bonds.

“Business Day” means any day that is not a Saturday, a Sunday or day on which commercial banks in the State of New York, or the State of New Jersey are authorized or required by law, regulation or executive order to be closed (unless otherwise provided in a Supplemental Indenture).

“Code” means the Internal Revenue Code of 1986, as amended from time to time, or any successor legislation.

“Collateral” means, collectively, the “Collateral” as defined in the Intercreditor Agreement.

“Collateral Agency Agreement” means that certain Collateral Agency Agreement, dated as of December 1, 2017, by and among the Collateral Agent, the Trustee, U.S. Bank National Association, as Securities Intermediary and Parity Lien Agent, the Line Lender and the Company, as amended or supplemented from time to time.

“Collateral Agent” means U.S. Bank National Association, a national banking association, in its capacity as collateral agent on behalf of the Secured Creditors, and its successors and assigns pursuant to the Collateral Agency Agreement.

“Collateral Documents” has the meaning set forth in the Collateral Agency Agreement.

“Company” has the meaning set forth in the recitals to this Indenture.

“Company Sublease” means the Company Sublease as defined in the Lease Agreement.

“Consent” means the Consent to Subleases Agreement dated as of the date hereof entered into by and among the Port Authority, the Trustee, the Authority and the Company.

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“Construction Contracts” means, for purposes of the Prevailing Wage Provision, any contract or subcontract in the amount of $2,000 or more for construction, reconstruction, demolition, alteration, repair, or maintenance work, including painting, undertaken in connection with the 2017 Facility and shall mean, for purposes of the Affirmative Action Program, any contract or subcontract for construction, reconstruction, renovation or rehabilitation undertaken in connection with the 2017 Facility.

“Continuing Disclosure Agreement” means the Continuing Disclosure Agreement between the Company and U.S. Bank National Association, as the dissemination agent, dated the Date of Issuance, as the same may be amended or supplemented from time to time.

“Contractor’s Certificate and Agreement” means any instrument executed by a Contractor substantially in the form identified in the final sentence of this definition or otherwise in form and substance acceptable to the Authority, wherein such Contractor agrees to undertake or perform such obligations and certifies as to such matters as the Authority shall reasonably require, including, without limitation, that, for purposes of the Prevailing Wage Provision, all workers engaged in the performance of Construction Contracts shall be paid a wage rate not less than the Prevailing Wage Rate and that all Construction Contracts will so provide and that, for purposes of the Affirmative Action Program, the Contractor will make every effort to hire or cause to be hired minority workers so as to meet the minority employment goals of the Affirmative Action Program and that all Construction Contracts will so provide. An acceptable form of such Contractor’s Certificate and Agreement can be found at the Authority’s internet web page at: www.njeda.com/affirmativeaction; such form can also be obtained by sending a request: [email protected].

“Contractor’s Completion Certificate” means the certificate or certificates executed by the Contractor and any Subcontractors, upon substantial completion of construction of the 2017 Facility, if any, substantially in the form identified in the final sentence of this definition or otherwise in form and substance acceptable to the Authority, wherein the Contractor certifies as to such matters as the Authority shall reasonably require, including, without limitation, that the Contractor has made every effort to satisfy the minority employment goals established in the Affirmative Action Program and that the Contractor has submitted all certificates, reports and records required by the Authority as set forth herein. An acceptable form of such Contractor’s Completion Certificate can be found at the Authority’s internet web page at: www.njeda.com/affirmativeaction; such form can also be obtained by sending a request to: [email protected].

“Costs of Construction,” “Costs of the Project” or “Costs” with respect to the Project shall be deemed to include all items permitted to be financed under the provisions of the Act, including but not limited to:

(a) all amounts necessary to refund and redeem the Series 2003 Bonds;

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(b) all costs which the Authority or the Company shall be required to pay under the terms of any contract or contracts for the Construction of the 2017 Facility;

(c) obligations of the Company incurred for labor and materials (including obligations payable to the Company) in connection with the Construction of the 2017 Facility, including reimbursement to the Company for all advances and payments made in connection with the 2017 Facility, whether prior to or after delivery of the Series 2017 Bonds;

(d) the cost of performance or other bonds and any and all types of insurance that may be necessary or appropriate to have in effect during the course of Construction of the 2017 Facility;

(e) all costs of engineering, architectural and other professional services, including the costs of the Authority, the Port Authority or the Company for test borings, surveys, estimates, plans and specifications and preliminary investigations therefor, and for allocated overheads pertaining to Construction of the 2017 Facility and for supervising Construction of the 2017 Facility, as well as for the performance of all other duties required by or consequent to the proper Construction of the 2017 Facility, including related legal and accounting costs;

(f) the cost of acquiring any property, real, personal or mixed, tangible or intangible, by purchase, lease or otherwise (including transfer taxes, if any), or any interest therein, rights- of-way, franchises, easements and other interests in land, necessary or desirable in connection with the Construction or operation of the 2017 Facility, and all fees and expenses incident thereto, including, without limitation, the cost of abstracts of title, title insurance, title opinions, other legal fees and costs of surveys and reports;

(h) interest on the Series 2017 Bonds prior to the completion of Construction of the 2017 Facility and commencement of operation of the 2017 Facility;

(i) funding of reserves, including the accounts established under the Collateral Agency Agreement;

(j) Costs of Issuance; and

(k) payment of any other costs permitted by the Act which will not adversely affect the exclusion from gross income for federal income tax purposes of interest on the Series 2017 Bonds.

“Costs of Issuance” include the following:

(a) expenses necessary or incidental to determining the feasibility or practicability of the issuance and sale of the Bonds, the fees and expenses of management consultants for making studies, surveys and estimates of costs and revenues and other estimates necessary to the

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issuance of the Bonds (as opposed to such studies, surveys or estimates related to completion of the Project, but not to the issuance of the Bonds);

(b) Administration Expenses, any expenses of supervision and inspection properly chargeable to the issuance and sale of the Bonds, legal expenses and fees of the Authority or the Company in connection with the issuance and sale of the Bonds, other legal expenses and fees, fees and expenses of the Trustee, fees and expenses of the Intercreditor Agent, fees and expenses of the Underwriter, financial advisors or brokers arranging for the sale or placement of the Bonds, financing charges, remarketing fees, cost of audits, cost of preparing, issuing and selling the Bonds, abstracts and reports on titles to real estate, title insurance premiums, recording fees and taxes and all other items of expense, including those of the Authority or the Company not elsewhere specified herein incident to the issuance and sale of the Bonds;

(d) reimbursement to the Company for any costs described above paid by it, as applicable, whether before or after the execution of this Indenture or any Supplemental Indenture.

“Date of Issuance” with respect to the Series 2017 Bonds means December [__], 2017 and with respect to any series of Additional Bonds means such date as specified in the Supplemental Indenture pursuant to which such Additional Bonds are issued.

“Defeasance Escrow Account” means the “Defeasance Escrow Account” established and created pursuant to Section 11.2 hereof.

“Defeasance Securities” means to the extent permitted by Law: (a) cash, (b) non-callable direct obligations of the United States of America (“Treasuries”), (c) evidences of ownership of proportionate interests in future interest and principal payments on Treasuries held by a bank or trust company as custodian, under which the owner of the investment is the real party in interest and has the right to proceed directly and individually against the obligor and the underlying Treasuries are not available to any Person claiming through the custodian or to whom the custodian may be obligated, (d) pre-refunded municipal obligations rated no lower than the then- current rating on direct obligations of, or obligations the principal of and interest on which are unconditionally guaranteed by, the United States of America (or by any agency thereof to the extent such obligations are backed by the full faith and credit of the United States of America), (e) securities eligible for “AA+” defeasance under then existing criteria of S&P or (f) any combination thereof used to effect defeasance of the Bonds.

“Designated Payment Office of the Trustee” means the corporate trust office of U.S. Bank National Association, a national banking association, with an office located at U.S. Bank National Association, 21 South Street, 3rd Floor, Morristown, NJ 07960 Attention: Corporate Trust Services.

“Determination of Taxability” means the occurrence of one or more of the following events:

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(a) the delivery of written notice (the “Audit Notice”) to the Company by the Authority declaring that an examination of any of the Bonds has been undertaken by the IRS, such Audit Notice to be effective thirty (30) days after the giving of the same, unless prior thereto the Company files written notice with the Authority that it intends to participate in the audit process, at its own expense, to obtain a written determination from the IRS affirming that the interest on such Bonds is excluded from gross income, and agrees in writing to reimburse the Authority in accordance with Section 7.10 of the Lease Agreement. In the event the final IRS determination is adverse, the Audit Notice will be effective thirty (30) days after the receipt of such final determination.

(b) the delivery of written notice (the “Taxability Notice”) by an Owner of a Bond to the Authority and the Company declaring that the IRS has issued to such Owner a proposed deficiency, the effect of which (in the opinion of such Owner) is to assert that the interest on any of the Bonds is included in the gross income of such Owner, such Taxability Notice to be effective thirty (30) days after the giving of the same, subject to a stay of such 30-day period for the period of litigation if prior thereto the Company agrees in writing to participate in and defend a final judicial determination (including, at the Company’s discretion, any or all appeals) to affirm that the interest on such Bonds is excluded from gross income and agrees in writing to reimburse the Authority in accordance with Section 7.10 of the Lease Agreement. In the event the final judicial determination is adverse, the Taxability Notice will be effective thirty (30) days after the entry of such final judicial determination; or

(c) the delivery of written notice by the Company to the Authority declaring that a violation of one of the Tax Covenants has occurred or will occur on a specified date (other than by reason of any of the events described in the foregoing subparagraphs (a) and (b)), which the Company has determined (with the assistance of counsel) cannot be cured by appropriate remedial action under Treasury Regulation 1.141-12 or other IRS remedial relief, and describing the violation, such notice to become effective thirty (30) days after the giving of same.

“Dissemination Agent” means U.S. Bank National Association.

“DTC” has the meaning given to it in Section 4.7 hereof.

“Event of Default” means any event specified as such in Section 7.1 hereof.

“Facility” has the meaning ascribed to such term in the Lease Agreement.

“Favorable Opinion of Bond Counsel” means an unqualified opinion of Bond Counsel addressed to the Authority, the Trustee and the Company to the effect that the action proposed to be taken is permitted by the Act, this Indenture and the Lease Agreement, and will not for purposes of federal income taxation adversely affect the exclusion from gross income of interest on the series of Bonds for which action is proposed to be taken.

“Funds” means the funds created by this Indenture.

“GAAP” means such accepted accounting practice as conforms at the time to applicable generally accepted accounting principles in the United States of America, consistently applied; provided, however, that in applying GAAP non-cash adjustments shall not be made.

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“Gantry Cranes” means those certain gantry cranes included in the 2017 Facility, which are not or have not become a part of the premises under the Port Authority Lease.

“Governmental Authority” means any nation, state, sovereign or government, any federal, regional, state or local government or political subdivision thereof or other entity exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government and having jurisdiction over the Person or matters in question.

“Guaranty” has the meaning set forth in the recitals to this Indenture.

“Indebtedness” means with respect to any Person: (a) indebtedness of such Person for borrowed money, (b) all obligations of such Person evidenced by bonds, debentures, notes or other similar instruments, (c) all obligations of such Person to pay the deferred purchase price of property or services, other than current trade payables (and related accrued expenses) incurred in the ordinary course of business, (d) all indebtedness created or arising under any conditional sale or other title retention agreement with respect to property acquired by such Person, (e) any lease which in accordance with GAAP is required to be capitalized on the balance sheet of such Person (and the amount of these obligations shall be the amount so capitalized), (f) all unconditional obligations of such Person to purchase, redeem, retire, defease or otherwise acquire for value any capital stock or other equity interests of such Person or any warrants, rights or options to acquire such capital stock or other equity interests, (g) all net obligations of such Person pursuant to Hedge Agreements, (h) all guarantee obligations of such Person in respect of obligations of the kind referred to in clauses (a) through (g) above, and (i) all Indebtedness of the type referred to in clauses (a) through (g) above secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any lien on property (including accounts and contracts rights) owned by such Person, even though such Person has not assumed or become liable for the payment of such Indebtedness.

“Indenture” means this Indenture of Trust as amended, supplemented, amended and restated or otherwise modified from time to time.

“Intercreditor Agreement” has the meaning set forth in the Collateral Agency Agreement.

“Interest Payment Date” means each April 1 and October 1, or if such date is not a Business Day, then the Business Day succeeding such April 1 or October 1, commencing on April 1, 2018 and continuing for so long as the Bonds are Outstanding.

“Interest Payments” means, with respect to a payment date for the Bonds, the interest due on the Bonds on such date.

“Investment Grade Rating” means a rating in one of the four highest categories (without regard to subcategories within such rating categories) by a Nationally Recognized Rating Agency.

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“Lease Agreement” means the Lease Agreement, dated as of December 1, 2017, between the Authority and the Company, and any and all further modifications, alterations, amendments and supplements thereto.

“Leased Premises” means those certain premises more particularly described in Schedule A attached to the Lease Agreement (as the same may be amended or modified from time to time), together with all structures, buildings, foundations, related facilities, other improvements and fixtures now or at any time made, erected or situated thereon (including, without limitation, the Facility, exclusive of the Gantry Cranes any and all Personal Property) and all replacements, improvements, extensions, substitutions, restorations, repairs or additions thereto, which premises are the subject of the Lease Agreement; but excluding, however, any real property or Property Interests therein released pursuant to Section 8.03 or 9.04 of the Lease Agreement and any and all subsurface rights.

“Lien” has the meaning set forth in the Collateral Agency Agreement.

“Line of Credit” means the revolving line of credit from the Line Lender in the aggregate principal amount of $15,000,000, governed by the terms of the Line of Credit Agreement.

“Line Lender” means the Wells Fargo Bank, N.A.

“Line of Credit Agreement” means that certain Credit Agreement, dated December [__], 2017, between the Line Lender and the Company, as it may be amended, supplemented or modified from time to time.

“Line of Credit Obligations” means the obligations of the Company under the Line of Credit Agreement.

“Majority Holders” means the Owners owning a majority in the aggregate principal amount of the then Outstanding Bonds.

“Nationally Recognized Rating Agency” means any nationally-recognized securities rating agency that provides a rating on the Bonds at the request of the Company.

“Official Statement” means the Official Statement of the Authority dated December [__], 2017, used in connection with the sale of the Series 2017 Bonds.

“Opinion of Counsel” means a legal opinion in form and substance, and provided by an attorney or firm of attorneys, reasonably acceptable to the recipient(s) of such opinion.

“Outstanding” means, as of any date of determination, all Bonds that have been executed, authenticated and delivered under this Indenture, except, as applicable:

(a) any Bond, or portion thereof, on which all principal and interest due or to become due on or before maturity has been paid;

(b) any Bond, or portion thereof, on which the Redemption Price due or to become due has been paid in accordance with the redemption provisions applicable to such Bond;

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(c) Bonds in lieu of which other Bonds have been executed, authenticated and delivered pursuant to the provisions of this Indenture relating to the transfer and exchange of Bonds or the replacement of mutilated, lost, stolen or destroyed Bonds;

(d) Bonds that have been canceled by the Trustee or that have been surrendered to the Trustee for cancellation; and

(e) Bonds that have been defeased pursuant to and in accordance with Article XI hereof.

“Owner” or “Bondholder” of a Bond means the registered owner of such Bond as shown in the registration records of the Trustee.

“Payment Rights” mean the rights of the Authority to payment under Sections 3.02(c), 3.03, 7.04(b), (d) and (g), 7.09, 7.10, 7.21 and 10.06 of the Lease Agreement.

“Permitted Investments” means any of the following obligations or securities: (a) (i) direct obligations of, or obligations the payment of principal of and interest on which are unconditionally guaranteed as to full and timely payment by, the United States, the Federal National Mortgage Association, Government National Mortgage Association, or Federal Home Loan Mortgage Corporation and (ii) prefunded obligations rated AAA by Moody’s or Aaa by S&P of any state of the United States, any political subdivision thereof or any agency or instrumentality thereof, if such obligations are secured by direct obligations of, or obligations the principal and interest on which are fully or unconditionally guaranteed by, the United States, and the principal of and interest on which will be sufficient to pay as due the principal of and interest on such obligations (collectively referred to herein as “Government Obligations”); (b) interest bearing deposit accounts (which may be represented by certificates of deposit) in national, state or foreign commercial banks whose outstanding long term debt is rated at least A by S&P and at least A by Moody’s; (c) bankers’ acceptances drawn on and accepted by any domestic or foreign commercial banks whose outstanding long term debt is rated at least A by S&P and at least A by Moody’s; (d)(i) direct obligations of, (ii) obligations the principal of and interest on which are unconditionally guaranteed by, and (iii) any other obligations the interest on which is excluded from gross income for federal income tax purposes issued by, any state of the United States, the District of Columbia or the Commonwealth of Puerto Rico, or any political subdivision, agency, authority or other instrumentality of any of the foregoing, which are rated at least A or the equivalent by S&P and Moody’s; (e) commercial paper issued by any corporation which is rated at least A-2 or the equivalent by S&P or at least P-2 or the equivalent by Moody’s; (f) instruments issued by investment companies having a portfolio consisting of 95% or more of the securities described in (a) through (e) above; (g) repurchase agreements with banking institutions and securities dealers recognized as primary dealers by the Federal Reserve Bank of New York whose outstanding long term and short term debt is rated at least A or the equivalent by S&P or Moody’s; (h) money market funds (including, without limitation, those for which the Trustee or any Affiliate thereof receives compensation with respect to such investment), the assets of which are obligations of or guaranteed by the United States of America or which funds are rated in one of the two highest rating categories of money market funds at the time of purchase; and (i) corporate bonds which are rated at least A or the equivalent by S&P and Moody’s and mature within 2 years from the date of acquisition; provided, that each of the investments described in

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clauses (g) and (i) above shall contain a provision for the immediate unwinding of such investment if the long term or short term debt rating of the bank, primary dealer or other financial institution, as the case may be, providing such investment falls below A or the equivalent by S&P or Moody’s or such entity defaults on the payment of any of its obligations to the Company, unless such investment is immediately collateralized with Governmental Obligations in an amount equal to 102% of the face amount of such investments.

“Permitted Liens” has the meaning set forth in the Security Agreement.

“Port Authority” has the meaning set forth in the recitals to this Indenture.

“Port Authority Lease” has the meaning set forth in the recitals to this Indenture.

“Prevailing Wage Provision” means the provisions of the Act and the resolutions, rules and regulations of the Authority, as adopted, amended and supplemented from time to time, requiring that workers engaged in Construction Contracts be paid a wage rate not less than the Prevailing Wage Rate, and that the Company and all Contractors file such certificates, reports and records and do other prescribed acts as are necessary to demonstrate or assure compliance.

“Prevailing Wage Rate” means the prevailing wage rate established by the Commissioner of the New Jersey Department of Labor and Industry from time to time in accordance with the provisions of N.J.S.A. 34:11-56.30 for the locality or localities in which the Facility is located.

“Principal Payments” means, with respect to a payment date, the principal (including the principal component of the Redemption Price due in connection with any mandatory redemption payment on any Bond) due or to become due prior to the next succeeding Principal Payment Date.

“Project” has the meaning set forth in the recitals to this Indenture.

“Property Interests” has the meaning ascribed to such term in the Lease Agreement.

“Rebate Amount” means the amount required to be rebated to the United States pursuant to Section 148(f)(2) of the Code or successor provisions applicable to the Bonds.

“Record Date” has the meaning given to it in Exhibit A hereto.

“Redemption Price” means the principal, interest and premium, if any due on a Bond on the date on which it is redeemed pursuant to the redemption provisions applicable to such Bond.

“Representation Letter” means the Tax Representation Letter dated as of the Date of Issuance, executed by the Company in connection with the issuance of the Series 2017 Bonds.

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“Reserved Rights” mean the rights of the Authority to enforce the public purpose covenants set forth in Sections 3.05, 5.01(c), 5.01(d), 5.02, 5.06, 6.03, 6.06, 6.11, 6.12, 7.01, 7.02, 7.04, 7.05, 7.06, 7.08, 7.09, 7.10, 7.11, 7.14, 7.19, 7.20, 7.24, 7.27, 7.28, 9.02, 9.03, 10.03, 10.08 and 11.16 of the Lease Agreement.

“Rule” or “Rule 15c2-12” means SEC Rule 15c2-12, as amended from time to time.

“SEC” means the United States Securities and Exchange Commission.

“Secured Creditors” has the meaning set forth in the Collateral Agency Agreement.

“Security Agreement” means the Security Agreement dated as of December 1, 2017 between the Company and the Collateral Agent.

“Series 2003 Bonds” has the meaning set forth in the recitals to this Indenture.

“Series 2017 Bonds” 2017 has the meaning set forth in the recitals to this Indenture.

“Series 2017 Debt Service Fund” means the Series 2017 Debt Service Fund created and designated as such in Section 5.1(a) hereof.

“Series 2017 Debt Service Reserve Account” means the Series 2017 Debt Service Reserve Account established and created in the name of the Collateral Agent under the Collateral Agency Agreement.

“Series 2017 Interest Account” means the “Series 2017 Interest Account” created by and designated as such in Section 5.1(a)(i) hereof.

“Series 2017 Principal Account” means the “Series 2017 Principal Account” created by and designated as such in Section 5.1(a)(ii) hereof.

“Series 2017 Rebate Fund” means the Series 2017 Rebate Fund created and designated as such in Section 5.1(b) hereof.

“Series 2017 Redemption Account” means the “Series 2017 Redemption Account” created by and designated as such in Section 5.1(a)(iii) hereof.

“Sinking Fund Installment” means, as of any date of calculation, the amount of money required hereby to be paid on a single future date for the retirement of any Outstanding Bonds, but does not include any amount payable by the Authority by reason only of the maturity of a Bond, and said future date is deemed to be the date when a Sinking Fund Installment is payable and the date of such Sinking Fund Installment and said Outstanding Bonds are deemed to be Bonds entitled to such Sinking Fund Installment.

“Special Record Date” means a special date fixed to determine the names and addresses of Owners of Bonds for purposes of paying defaulted interest on Bonds in accordance with Section 4.4 hereof.

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“State” has the meaning set forth in the preamble to this Indenture.

“Supplemental Indenture” means any indenture supplementing or amending this Indenture that is adopted pursuant to Article IX hereof.

“Tax Covenants” means the covenants of the Company contained in Section 7.04 of the Lease Agreement.

“Taxes” means any and all present or future taxes, levies, imposts, duties, deductions, charges or withholdings imposed by any Governmental Authority, including any interest, penalties or additions thereto.

“Terminal” has the meaning set forth in the recitals to this Indenture.

“Treasury Regulations” means the temporary, proposed or final federal income tax regulations promulgated by the U.S. Department of the Treasury, together with the other published written guidance thereof as applicable to the Bonds under the Code.

“Trust Estate” means the property and rights granted to the Trustee pursuant to Section 2.1 hereof.

“Trustee” has the meaning given to it in the first paragraph to this Indenture.

“Trustee Representative” means any officer of the Trustee assigned to the corporate trust department or any other officer of the Trustee customarily performing functions similar to those performed by any such officer, with respect to matters related to the administration of this Indenture.

“2017 Facility” has the meaning set forth in the recitals to this Indenture.

“Underwriter” means Wells Fargo Securities LLC.

ARTICLE II

SECURITY FOR BONDS

Section 2.1 Grant of Trust Estate. The Authority, in consideration for the purchase of the Bonds by the Owners and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, in order to secure the payment of the Bonds and to secure the performance and observance of all the covenants and conditions set forth in the Bonds and this Indenture, has executed and delivered this Indenture and has granted, pledged and assigned or has required to be granted, pledged and assigned, and by these presents does grant, pledge and assign unto the Trustee and to its successors and assigns forever and, subject to the Collateral Documents and the Intercreditor Agreement, for the benefit of the Owners, all of the following described property, franchises, rights and income, including any title or interest therein acquired after the date hereof (collectively, the “Trust Estate”):

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(a) all right, title and interest of the Authority (except for Reserved Rights) in and to the Company Sublease and the Administration Expense Guaranty, including, but not limited to, the present and continuing right to make claim for, collect, receive and receipt for any of the rents, sums, amounts and revenues and any other sums of money payable or receivable under the Lease Agreement (except for Payment Rights and the payment of the Authority’s Administration Expenses under the Administration Expense Guaranty), any rights of the Authority to receive notices, certificates, requests, requisitions, directions and other communications thereunder, the rights expressly reserved hereinafter, the right to bring actions and proceedings thereunder or for the enforcement thereof, and the right to do any and all things which the Authority is or may become entitled to do under the Company Sublease or the Administration Expense Guaranty; provided, however, that the Authority has not assigned to the Trustee the right to grant or withhold consent pursuant to Sections 7.11 and 7.15 of the Lease Agreement or the additional remedies set forth in Section 10.03 of the Lease Agreement; and provided further no Property Interests are hereby assigned, pledged or granted;

(b) all moneys from time to time held by the Trustee under this Indenture in any Fund or Account other than (i) the Series 2017 Rebate Fund and (ii) any Defeasance Escrow Account;

(c) any security interest granted to the Collateral Agent for the benefit of the Trustee (as a Secured Creditor) on behalf of the Owners of the Bonds under the Collateral Documents, including without limitation in respect of the Collateral pledged thereunder, and the present and continuing right of the Collateral Agent on behalf of the Trustee (as a Secured Creditor) to make claim for, collect, receive and receipt for any of the sums, amounts, income, revenues, issues and profits and any other sums of money payable or receivable under the Collateral Documents, to bring actions and proceedings thereunder or for the enforcement thereof, and to do any and all things which the Collateral Agent on behalf of the Trustee (as a Secured Creditor) is entitled to do under such Security Documents; and

(d) subject to the Collateral Agency Agreement and the Intercreditor Agreement, all funds deposited from time to time and earnings thereon in Project Accounts under the Collateral Agency Agreement and any and all sub-accounts created thereunder, each to the extent constituting Collateral and held by the Collateral Agent under the Collateral Agency Agreement; and

(e) any and all other property, revenues, rights or funds from time to time hereafter by delivery or by writing of any kind specifically granted, assigned or pledged as and for additional security for any of the Bonds, the Lease Agreement or the Guaranty in favor of the Trustee (as a Secured Creditor) or the Collateral Agent on behalf of the Trustee (as a Secured Creditor), including any of the foregoing granted, assigned or pledged by the Company or any other Person on behalf of the Company, and the Trustee (as a Secured Creditor) and/or the Collateral Agent on behalf of the Trustee (as a Secured Creditor) is hereby authorized to receive any and all such property at any and all times and to hold and apply the same subject to the terms hereof.

Section 2.2 Time of Pledge; Delivery of Trust Estate. The creation, perfection, enforcement, and priority of the pledge of the Trust Estate by the Authority to secure or pay the Bonds as provided herein shall be governed by the Act, the Bond Resolution and this Indenture.

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The Trust Estate pledged for the payment of the Bonds, as received by or otherwise credited to the Authority, shall immediately be subject to the lien of such pledge without any physical delivery, filing, or further act. The lien of such pledge shall be valid, binding, and enforceable as against all Persons having claims of any kind in tort, contract, or otherwise against the Authority irrespective of whether such Persons have notice of such liens.

Section 2.3 Amounts Received Pursuant to the Collateral Agency Agreement. All funds provided pursuant to the Collateral Agency Agreement for deposit into any Fund or Account of this Indenture will be available together with other moneys then on deposit in such Funds and Accounts to be used for the applicable purposes as set forth in this Indenture.

Section 2.4 Discharge of Indenture. If this Indenture is discharged in accordance with Section 11.1 hereof, the right, title and interest of the Trustee and each Owner in and to the Trust Estate shall terminate and be discharged.

Section 2.5 Bonds Secured on Equal and Proportionate Basis. The Trust Estate shall be held by the Trustee for the equal and proportionate benefit of the Owners and any of them, without preference, priority or distinction as to lien or otherwise.

Section 2.6 Limited Obligations. When the Bonds are issued, executed and delivered in accordance with the provisions of this Indenture, the Bonds will have been duly authorized, executed and delivered and will constitute the valid special, limited obligations of the Authority, payable solely from and secured exclusively by the Trust Estate (including the Collateral), including the payments to be made by the Company under the Lease Agreement and the Guaranty, and nothing in the Bonds or this Indenture shall be construed as assigning or pledging therefor any other funds or assets of the Authority.

THE STATE OF NEW JERSEY IS NOT OBLIGATED TO PAY, AND NEITHER THE FULL FAITH AND CREDIT NOR THE TAXING POWER OF THE STATE OF NEW JERSEY IS PLEDGED TO THE PAYMENT OF, THE PRINCIPAL OR REDEMPTION PRICE, IF ANY, OF OR INTEREST ON THE BONDS. THE BONDS ARE A SPECIAL, LIMITED OBLIGATION OF THE AUTHORITY, PAYABLE SOLELY OUT OF THE REVENUES OR OTHER RECEIPTS, FUNDS OR MONEYS OF THE AUTHORITY PLEDGED UNDER THIS INDENTURE AND THE COLLATERAL DOCUMENTS FROM ANY AMOUNTS OTHERWISE AVAILABLE UNDER THIS INDENTURE AND THE COLLATERAL DOCUMENTS FOR THE PAYMENT OF THE BONDS. THE BONDS DO NOT NOW AND SHALL NOT EVER CONSTITUTE A CHARGE AGAINST THE GENERAL CREDIT OF THE AUTHORITY. THE AUTHORITY HAS NO TAXING POWER.

The Act provides that neither the members of the Authority nor any person executing the Bonds for the Authority shall be liable personally on said Bonds by reason of the issuance thereof.

All covenants, stipulations, promises, agreements and obligations of the Authority set forth herein shall be deemed to be the covenants, stipulations, promises, agreements and obligations of the Authority and not of any member, officer or employee of the Authority in his or her individual capacity, and no recourse shall be had for the prepayment or Redemption Price,

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if any, of or interest on the Bonds or for any claim based thereon or hereunder against any member, officer or employee of the Authority or any person executing the Bonds in his or her individual capacity.

Section 2.7 Bonds Constitute a Contract. The Bonds shall constitute a contract between the Authority and the Owners of the Bonds for their benefit.

ARTICLE III

AUTHORIZATION, ISSUANCE AND DELIVERY OF BONDS

Section 3.1 Authorization, Purpose, Name, Principal Amount, Interest Rates and Method and Place of Payment.

(a) Authorization and Amount. There shall be issued under and secured by this Indenture a series of bonds designated as the “New Jersey Economic Development Authority Special Facility Revenue and Refunding Bonds (Port Newark Container Terminal L.L.C. Project), Series 2017 (the “Series 2017 Bonds”), in the aggregate principal amount of $[______] for the purpose of providing funds to finance the Project.

(b) Date, Maturity and Interest. The Bonds shall be dated the date of their original issuance and delivery, and shall bear interest from their date or from the most recent Interest Payment Date to which interest has been paid or duly provided for, on the basis of a 360-day year comprised of twelve 30-day months, payable on each Interest Payment Date as herein provided until payment of the principal or Redemption Price thereof is made or provided for, whether at maturity, upon redemption, acceleration or otherwise. Interest on the Bonds shall be payable in arrears on each Interest Payment Date, commencing on the first Interest Payment Date after the Date of Issuance.

The Series 2017 Bonds shall bear interest and, subject to prior redemption as provided in Article IV hereof and in Exhibit A hereto, mature on October 1 in each of the years as follows:

Series 2017 Bonds

Maturity Principal Interest Date Amount Rate $ %

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(c) Method and Place of Payment. The Trustee shall act as paying agent for the purpose of effecting payment of the principal of, redemption premium, if any, and interest on the Bonds. The principal of, redemption premium, if any, and interest on the Bonds shall be payable in any coin or currency of the United States of America which on the respective dates of payment thereof is legal tender for the payment of public and private debts.

The principal of and the redemption premium, if any, on all Bonds shall be payable by check or draft or by such other method as mutually agreed in writing between the Owner of the Bonds and the Trustee at maturity or upon earlier redemption to the Owners in whose names such Bonds are registered in the bond register maintained by the Trustee at the maturity date or redemption date thereof, upon the presentation and surrender of such Bonds at the Designated Payment Office of the Trustee.

The interest payable on each Bond on any Interest Payment Date shall be paid (i) by check or draft sent on or prior to the appropriate date of payment, by the Trustee to the address of the Owner appearing in the bond register on the Record Date or (ii) by such other method as mutually agreed in writing between the Owner of the Bonds and the Trustee.

Section 3.2 Execution and Authentication of the Bonds.

(a) Execution of the Bonds. The Bonds shall be executed in the name of the Authority by the manual or facsimile signature of its Chairman, Chief Executive Officer, Director of Bonds and Incentives, Director of Closing Services or any other Authority Representative and the seal of the Authority, or a facsimile thereof, shall be affixed, impressed or imprinted thereon and attested by the manual or facsimile signature of the Secretary or Assistant Secretary of the Authority. In case any one or more of the officers who shall have signed or sealed any of the Bonds shall cease to be such officer before the Bonds so signed and sealed shall have been authenticated and delivered by the Trustee, such Bonds may, nevertheless, be authenticated and delivered as herein provided, and may be issued as if the persons who signed or sealed such Bonds had not ceased to hold such offices.

(b) Authentication of the Bonds. No Bond shall be secured hereby or entitled to the benefit hereof, nor shall any Bond be valid or obligatory for any purpose, unless a certificate of authentication, substantially in such form as set forth in Exhibit A hereto, has been duly executed by the Trustee; and such certificate of the Trustee upon any Bond shall be conclusive evidence and the only competent evidence that such Bond has been authenticated and delivered hereunder. The Trustee’s certificate of authentication shall be deemed to have been duly executed by the Trustee if manually signed by a Trustee Representative, but it shall not be necessary that the same officer or employee sign the certificate of authentication on all of the Bonds. By authenticating any of the Bonds delivered pursuant to this Indenture, the Trustee shall be deemed to have assented to the provisions of this Indenture.

Section 3.3 Delivery of Bonds.

(a) Delivery. The Bonds shall be executed in the manner set forth herein and delivered to the Trustee for authentication, but prior to or simultaneously with the authentication

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and delivery of the Series 2017 Bonds on the Date of Issuance by the Trustee the following documents shall be provided to the Trustee:

(1) a copy, certified by an Authority Representative, of the Bond Resolution adopted by the Authority authorizing the issuance of the Series 2017 Bonds and the execution and delivery of this Indenture, the Administration Expense Guaranty, the Consent and the Lease Agreement;

(2) a copy, certified by an Authorized Company Representative, of the resolutions adopted by the governing body of the Company authorizing the execution and delivery of the Lease Agreement, the Consent, the Guaranty, the Administration Expense Guaranty, the Representation Letter and any other Bond Financing Documents to which it is a party, and approving this Indenture and the issuance of the Series 2017 Bonds;

(3) an original executed counterpart of this Indenture, the Lease Agreement, the Arbitrage Certificate, the Representation Letter, Line of Credit Agreement, the Guaranty, the Administration Expense Guaranty, the Consent and the other Bond Financing Documents by the Authority and/or the Company, as applicable;

(4) an Opinion of Counsel to the Authority addressed to the Trustee stating that this Indenture has been duly executed by the Authority in accordance with the provisions of the Bond Resolution, is authorized or permitted by the Bond Resolution, and is a valid and binding obligation of the Authority; provided, that such Opinion of Counsel may take exception as to the effect of, or for restrictions or limitations imposed by or resulting from, bankruptcy, insolvency, reorganization, arrangement, fraudulent conveyance, moratorium and other Laws relating to or affecting creditors’ rights, to the application of equitable principles, to the exercise of judicial discretion in appropriate cases and to the limitations on legal remedies against public entities such as the Authority; and

(5) a request and authorization of the Authority to the Trustee to authenticate the Series 2017 Bonds and deliver said Series 2017 Bonds to the Underwriter, upon payment to the Collateral Agent (for the benefit of the Company), of the purchase price thereof. The Trustee shall be entitled to rely conclusively upon such request and authorization as to the Underwriter and the amount of such purchase price.

(b) When the documents specified in Section 3.3(a) above have been provided to the Trustee, and when the Series 2017 Bonds shall have been executed and authenticated as required by this Indenture, the Trustee shall deliver the Series 2017 Bonds to or upon the order of the Underwriter, but only upon payment to the Collateral Agent of the purchase price of the Series 2017 Bonds pursuant to the terms of the Collateral Agency Agreement.

ARTICLE IV

TERMS OF BONDS

Section 4.1 Form of Bond, Registered Form, Denominations and Numbering of Bonds. The Bonds shall be issuable only as fully registered Bonds in Authorized Denominations - 20 -

(provided that no individual Bond may be issued for more than one maturity), without coupons, in substantially the form set forth in Exhibit A attached to this Indenture, with such necessary or appropriate variations, omissions and insertions as are permitted or required by this Indenture. The Bonds may have endorsed thereon such legends or text as may be necessary or appropriate to conform to any applicable rules and regulations of any Governmental Authority or any custom, usage or requirement of Law with respect thereto. The Bonds shall be numbered from R-1 consecutively upward in order of issuance or in such other manner as the Trustee shall designate, and shall bear appropriate “CUSIP” identification numbers (if then generally in use).

Section 4.2 Registration of Bonds; Persons Treated as Owners; Transfer and Exchange of Bonds.

(a) Records for the registration and transfer of the Bonds shall be kept by the Trustee which is hereby appointed the registrar for the Bonds. The principal of and interest on and Redemption Price of any Bond shall be payable only to or upon the order of the Owner or the Owner’s legal representative (except as otherwise herein provided with respect to Record Dates and Special Record Dates for the payment of interest). Upon surrender for transfer of any Bond at the Designated Payment Office of the Trustee, duly endorsed for transfer or accompanied by an assignment duly executed by the Owner or the Owner’s attorney duly authorized in writing, the Trustee shall enter such transfer on the registration records and shall execute and deliver in the name of the transferee or transferees a new fully registered Bond or Bonds of a like maturity, aggregate principal amount and interest rate, bearing a number or numbers not previously assigned.

(b) Fully registered Bonds may be exchanged at the Designated Payment Office of the Trustee for an equal aggregate principal amount of Bonds of the same maturity and interest rate but of other Authorized Denominations. The Trustee shall execute and deliver Bonds which the Owner making the exchange is entitled to receive, bearing numbers not previously assigned.

(c) All Bonds issued upon any transfer or exchange of Bonds shall be the valid obligations of the Authority, evidencing the same debt, and entitled to the same benefits under this Indenture, as the Bonds surrendered upon transfer or exchange.

(d) The Trustee may require the payment, by the Owner of any Bond requesting exchange or transfer, of any reasonable charges as well as any taxes, transfer fees or other governmental charges required to be paid with respect to such exchange or transfer.

(e) The Trustee shall not be required to transfer or exchange (i) all or any portion of any Bond during the period beginning at the opening of business fifteen (15) days before the day of the mailing by the Trustee of notice calling any of the Bonds for prior redemption and ending at the close of business on the day of such mailing or (ii) all or any portion of a Bond after the mailing of notice calling such Bond or any portion thereof for prior redemption.

(f) Except as otherwise herein provided with respect to Record Dates and Special Record Dates for the payment of interest, the Person in whose name any Bond shall be registered shall be deemed and regarded as the absolute Owner thereof for all purposes, and payment of or on account of the principal of and interest on or Redemption Price of any Bond shall be made

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only to or upon the written order of the Owner thereof or the Owner’s legal representative, but such registration may be changed as herein provided. All such payments shall be valid and effectual to satisfy and discharge such Bond to the extent of the sum or sums paid.

Section 4.3 Mutilated, Lost, Stolen or Destroyed Bonds. In the event that any Bond is mutilated, lost, stolen or destroyed, a new Bond of like series, date, maturity, interest rate and denomination as that mutilated, lost, stolen or destroyed shall be executed, authenticated and delivered in accordance with the terms and conditions of this Indenture to the Owner of such Bond upon receipt by the Trustee of such evidence, information and/or indemnity from the Owner of the Bond as the Trustee or the Company may reasonably require and, in case of any mutilated Bond, upon the surrender of the mutilated Bond to the Trustee. If any such Bond shall have matured, instead of issuing a replacement Bond, the Trustee may pay the same without surrender thereof. The Trustee may charge the Owner of the Bond for its reasonable fees and expenses in this connection and require payment of such fees and expenses as a condition precedent to the delivery of a new Bond. Every new Bond issued pursuant to this Section 4.3 by reason of any Bond being mutilated, lost, stolen or destroyed (a) shall constitute, to the extent of the outstanding principal amount of the Bond, mutilated, lost, stolen or destroyed, an additional contractual obligation of the Authority, regardless of whether the mutilated, lost, stolen or destroyed Bond shall be enforceable at any time by anyone, and (b) shall be entitled to all of the benefits of this Indenture equally and proportionately with any and all other Outstanding Bonds.

Section 4.4 Payment of Debt Service and Redemption Price.

(a) The principal and Redemption Price of each Bond shall be paid to the Owner thereof as shown on the registration records of the Trustee upon maturity or prior redemption thereof in accordance with this Indenture and upon presentation and surrender at the Designated Payment Office of the Trustee.

(b) Interest on the Bonds (other than interest paid as part of the Redemption Price of a Bond) shall be paid (i) by check, wire transfer or draft of the Trustee mailed, on or before each Interest Payment Date, to the Owner thereof at his or her address as it last appears on the registration records of the Trustee at the close of business on the Record Date or (ii) by such other method as mutually agreed in writing between the Owner of the Bond and the Trustee. Any such interest not so timely paid shall cease to be payable to the Person who is the Owner thereof at the close of business on the Record Date and shall be payable to the Person who is the Owner thereof at the close of business on a Special Record Date for the payment of such defaulted interest. Such Special Record Date shall be fixed by the Trustee whenever moneys become available for payment of the defaulted interest. Notice of the Special Record Date shall be given by the Trustee to the Owners of the Bonds, not less than ten (10) days prior to the Special Record Date, by certified or first-class mail to each such Owner as shown on the Trustee’s registration records on a date selected by the Trustee, stating the date of the Special Record Date and the date fixed for the payment of such defaulted interest. Alternative means of payment of interest may be used if mutually agreed to in writing between the Owner of any Bond and the Trustee.

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Section 4.5 Redemption of Bonds and Redemption Payments.

(a) Optional Redemption. The Series 2017 Bonds are subject to redemption prior to maturity, at the option of the Authority, at the direction of the Company, on or after October 1, 2027, from amounts deposited in the Series 2017 Redemption Account (excluding accrued interest, which is payable from the Series 2017 Interest Account), in whole or in part from time to time, on any date, at a Redemption Price equal to 100% of the principal amount of Series 2017 Bonds to be redeemed, plus accrued interest thereon to the date of redemption, without penalty or make-whole premium.

(b) Extraordinary Mandatory Redemption with respect to Port Authority Lease and Lease Agreement. The Series 2017 Bonds are subject to extraordinary mandatory redemption at a Redemption Price equal to 100% of the unpaid principal amount together with interest accrued thereon to the date of redemption, as a whole, on or as soon as practicable, but in no event later than 90 days, after the effective date of any expiration, termination or surrender of the Port Authority Lease and/or the Basic Lease in its entirety. The Series 2017 Bonds are also subject to extraordinary mandatory redemption, at a Redemption Price equal to 100% of the unpaid principal amount together with interest accrued thereon to the date of redemption, as a whole, on or as soon as practicable, but in no event later than 90 days, after the effective date of any expiration, termination or surrender of the Lease Agreement. Notwithstanding the foregoing, the Series 2017 Bonds will not be subject to extraordinary mandatory redemption in whole in the event of (i) the expiration, surrender or termination of the Port Authority Lease as a result of the expiration, surrender or termination of the Basic Lease so long as the Company continues to have permitted occupancy of the Leased Premises (including occupancy as a result of a permitted holdover tenancy) or (ii) the expiration, surrender or termination of the Lease Agreement so long as the Company continues to have permitted occupancy of the Leased Premises (including occupancy as result of a permitted holdover tenancy). Any series of Additional Bonds may be subject to extraordinary mandatory redemption as set forth in the Supplemental Indenture authorizing such series of Additional Bonds.

(c) Extraordinary Mandatory Redemption by the Authority. The Bonds shall be subject to mandatory redemption prior to maturity at any time at a Redemption Price of 100% of the unpaid principal amount thereof plus accrued interest thereon, if any, to the redemption date, (i) as a whole, upon receipt by the Trustee and the Company of a notice from the Authority that (A) the Company has ceased to operate the Facility or to cause the Facility to be operated as an authorized project under the Act for twelve (12) consecutive months, without first obtaining the written consent of the Authority, (B) any representation or warranty of the Company in the Lease Agreement or in any other document furnished in connection with the Lease Agreement proves to have been false or misleading in any material respect when made, (C) the Company has failed to maintain or cause to be maintained the liability insurance required pursuant to the Lease Agreement for the benefit of the Authority for thirty (30) consecutive days and for an additional three Business Days after notice by the Authority to the Company of such failure or (D) the Authority is unable to exercise its right to specific performance pursuant to Section 10.03(b) of the Lease Agreement due to the fact that such specific performance would constitute a breach or default of or would conflict with or violate the Port Authority Lease or involve the specific enforcement of any covenant of the Company under the Bond Documents relating to or of a Property Interest if the performance of such covenant would constitute a breach of the Port

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Authority Lease; or (ii) as a whole, or in part if such partial redemption will preserve the exclusion from gross income as set forth in a Favorable Opinion of Bond Counsel, if the whole or a part of the Facility is damaged or destroyed, condemned or taken by eminent domain, and the Company elects not to rebuild, replace, repair or restore the Facility; provided, however that the Bonds are not subject to mandatory redemption pursuant to clause (ii) above if the Company receives an opinion of McCarter & English, LLP (or if McCarter & English, LLP ceases to exist, from any successor firm to McCarter & English, LLP, or if there is no successor firm, any Bond Counsel) to the effect that the Facility would still constitute a dock and wharf that is an exempt facility within the meaning of Section 142(a)(1) of the Code or that failure to rebuild, replace, repair or restore would not cause the interest on the Bonds to be includable in gross income for federal income tax purposes.

(d) Special Redemption of Bonds Upon a Determination of Taxability. The Bonds are subject to special redemption prior to maturity in the event of a Determination of Taxability, at a Redemption Price equal to 100% of the unpaid principal amount thereof plus accrued interest thereon to the date of redemption on a date selected by the Company, but in no event later than 180 days following such Determination of Taxability. Any such redemption shall be in whole unless the Trustee receives an opinion of Bond Counsel that redemption of a portion of the Outstanding Bonds would have the result that interest payable on the Bonds remaining Outstanding after such redemption would not be included in the gross income for federal income tax purposes of any Owners of the Bonds (other than a Person who is a “substantial user” of the Project or a “related person” within the meaning of Section 147(a) of the Code), in which event only such portion of the Outstanding Bonds shall be redeemed.

(e) Extraordinary Optional Redemption. The Bonds are subject to extraordinary optional redemption by the Authority, at the written direction of the Company (which shall be delivered to the Trustee in writing or by facsimile confirmed in writing by notice delivered by first class mail), at a Redemption Price equal to 100% of the unpaid principal amount of the Bonds to be redeemed, plus accrued interest thereon to the date of redemption at any time upon the occurrence of the following: (i) in whole or in part, if the Company determines in its sole discretion as evidenced by a certificate of an Authorized Company Representative, that the continued operation of the Terminal or a substantial portion of the Terminal is impractical, uneconomical or undesirable for any reason, including, without limitation, the imposition upon the Company with respect thereto of unreasonable burdens or excessive liabilities, which will be deemed to include, without limitation, the imposition or substantial increase of ad valorem property taxes or taxes on the leasing or use of the Terminal or a substantial portion thereof or on amounts payable with respect thereto; (ii) in whole or in part, if all or a portion of the Terminal is damaged, destroyed, condemned, taken by eminent domain or sold under a reasonably apprehended threat of condemnation or such portion of the Terminal or the use or control thereof is condemned or taken by eminent domain or sold under a reasonably apprehended threat of condemnation as to render the Terminal or a substantial portion of the Terminal unsatisfactory for its intended use as determined by the Company in its sole discretion; (iii) in whole or in part, if the operation of the Terminal or a substantial portion of the Terminal is enjoined or prevented or is otherwise prohibited by, or conflicts with, any order, decree, rule or regulation of any court or of any federal, State or local regulatory body, administrative agency or other governmental body; or (iv) in part, on any date, at the direction of the Company after the filing of the Company Completion Certificate pursuant to Section 7.24 of the Lease Agreement, with funds remaining

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in the Construction Fund, not reserved pursuant to such Section 7.24 of the Lease Agreement for punch-list items, Costs of Construction, deposits to the Rebate Fund, or amounts to be used for additional capital projects.

(f) Mandatory Sinking Fund Redemption. The Series 2017 Bonds maturing on October 1, 20[__] and October 1, 20[__] are subject to mandatory redemption prior to maturity, in part, on each October 1 (or, if such date is not a Business Day, then the Business Day succeeding such date) of the years and in the respective principal amounts set forth below, at 100% of the principal amount thereof, plus accrued interest to the date of redemption, through mandatory Sinking Fund Installments which are required to be made in amounts sufficient to redeem on October 1 of each year the principal amount of the Series 2017 Bonds specified for each of the dates shown below:

Series 2017 Bonds Series 2017 Bonds Maturing on October 1, 20[__] Maturing on October 1, 20[__] Principal Principal Date Amount Date Amount $ $ † †

† Final Maturity

There will be credited against and in satisfaction of all or a portion of the Sinking Fund Installment payable on any date the principal amount of Series 2017 Bonds of a particular maturity redeemed or purchased with money in the Series 2017 Redemption Account (excluding accrued interest, which is payable from the Series 2017 Interest Account) and the principal amount of such Series 2017 Bonds so redeemed or purchased shall be applied against and in fulfillment of the applicable required Sinking Fund Installment of the applicable maturity of such Series 2017 Bonds in accordance with Section 5.2(c) hereof. In addition, there shall be credited against and in satisfaction of the applicable Sinking Fund Installments of the applicable maturity of Series 2017 Bonds (A) Series 2017 Bonds redeemed at the election of the Company pursuant to paragraphs (a) and (e) above, (B) Series 2017 Bonds purchased by the Company and delivered to the Trustee for cancellation or (C) Series 2017 Bonds deemed to have been paid in accordance with Article XI, and the principal amount of such Series 2017 Bonds shall be applied against and in fulfillment of the applicable required Sinking Fund Installments thereafter payable on such Series 2017 Bonds, as nearly as practicable pro rata, taking into consideration the Authorized Denominations.

(g) Selection of Bonds to Be Redeemed. If less than all of a single maturity of the Bonds are to be redeemed, the Trustee shall select Bonds for redemption (i) in any manner that is customary in the industry a portion of each such maturity, which selection shall be as nearly as practicable, taking into consideration the Authorized Denominations, a pro rata portion of each such Bond. The Trustee shall promptly provide the Company with a notice of redemption which shall state the Bonds selected for redemption or purchase and, in the case of any Bonds selected for partial redemption or purchase, the principal amount thereof to be redeemed or purchased.

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(h) Partial Redemption of Bonds. Upon surrender of any Bond redeemed in part only, the Authority shall execute (but need not prepare) and the Trustee shall prepare or cause to be prepared, authenticate and deliver to the Owner thereof, a new Bond or Bonds of Authorized Denominations, equal in aggregate principal amount to the unredeemed portion of the Bond surrendered.

Section 4.6 Notice of Redemption. Whenever Bonds are to be redeemed, the Trustee shall give notice of the redemption of the Bonds in the name of the Authority which notice shall specify: (i) the Bonds to be redeemed which shall be identified by the designation of the Bonds given in accordance with Exhibit A hereof, the maturity dates and interest rates of the Bonds to be redeemed and the date such Bonds were issued; (ii) the numbers and other distinguishing marks of the Bonds to be redeemed, including CUSIP numbers; (iii) the redemption date; (iv) the Redemption Price; (v) the principal amount of each Bond to be redeemed; (vi) the date of publication, if any, of the notice of redemption; (vii) that, except in the case of Book–Entry Bonds, such Bonds will be redeemed at a corporate trust office of the Trustee giving the address thereof and the name and telephone number of a representative of the Trustee to whom inquiries may be directed; (viii) that no representation is made as to the correctness of the CUSIP number either as printed on the Bonds or as contained in such notice and that an error in a CUSIP number as printed on such Bond or as contained in such notice shall not affect the validity of the proceedings for redemption; and (ix) if the Authority’s obligation to redeem the Bonds is subject to conditions, a statement that describes the condition to such redemption. Such notice shall further state that on such date there shall become due and payable upon each Bond to be redeemed the Redemption Price thereof, together with interest accrued and unpaid thereon to the redemption date, and that, from and after such date, payment having been made or provided for, interest thereon shall cease to accrue. Such notice shall be given by mailing a copy of such notice not less than thirty (30) days nor more than forty–five (45) days prior to the redemption date. Such notice shall be sent by first class mail, postage prepaid, to the registered owners of the Bonds which are to be redeemed, at their last known addresses, if any, appearing on the registration books not more than ten (10) Business Days prior to the date such notice is given. Upon giving such notice, the Trustee shall promptly notify the Authority that it has mailed or caused to be mailed such notice to the Bondholders of the Bonds to be redeemed in the manner provided herein. Such notification shall be conclusive evidence that such notice was given in the manner required hereby. The failure of any Bondholder of a Bond to be redeemed to receive such notice shall not affect the validity of the proceedings for the redemption of the Bonds.

Section 4.7 Book-Entry Registration. Notwithstanding any other provision hereof, the Bonds shall be delivered only in book-entry form registered in the name of Cede & Co., as nominee of The Depository Trust Company (“DTC”), New York, New York, acting as the securities depository of the Bonds and the principal of and interest on and Redemption Price of the Bonds shall be paid by wire transfer to DTC; provided, however, if at any time DTC is no longer able to act as, or is no longer satisfactorily performing its duties as, securities depository for the Bonds, the Trustee may, at its discretion, either (a) designate a substitute securities depository for DTC and re-register the Bonds as directed by such substitute securities depository or (b) terminate the book-entry registration system and re-register the Bonds in the names of the Beneficial Owners thereof provided to it by DTC. Neither the Authority nor the Trustee shall have any liability to DTC, Cede & Co., any substitute securities depository, any Person in whose name the Bonds are reregistered at the direction of any substitute securities depository, any

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Beneficial Owner of the Bonds or any other Person for (i) any determination made by the Trustee pursuant to the proviso at the end of the immediately preceding sentence or (ii) any action taken to implement such determination and the procedures related thereto that is taken pursuant to any direction of or in reliance on any information provided by DTC, Cede & Co., any substitute securities depository or any Person in whose name the Bonds are reregistered.

Section 4.8 Delivery of New Bonds Upon Partial Redemption of Bonds. Upon surrender and cancellation of a Bond for redemption in part only, a new Bond or Bonds of the same maturity and interest rate and in an Authorized Denomination equal to the unredeemed portion of the original partially redeemed Bond, shall be executed on behalf of and delivered by the Authority and the Trustee in accordance with Sections 3.2, 3.3 and 4.1 hereof.

Section 4.9 Nonpresentment of Bonds. In the event any Bond shall not be presented for payment on any date when the principal thereof becomes due, either at maturity, or at the date fixed for redemption thereof, or as set forth in any Supplemental Indenture regarding deemed tenders or redemptions or otherwise, and if funds sufficient to pay such Bond shall have been made available to the Trustee for the benefit of the Owner thereof, all liability of the Authority to the Owner thereof for the payment of such Bond shall forthwith cease, terminate and be completely discharged, except as hereinafter provided. Thereafter, the Owners shall be restricted exclusively to the funds so deposited for any claim of whatsoever nature with respect to such Bonds, and the Trustee shall hold such funds in trust for such Owners. Thereupon, it shall be the duty of the Trustee to comply with the Uniform Unclaimed Property Act, N.J.S.A. 46:30B-1 et. seq., with respect to such funds. The Owner shall thereafter be restricted exclusively to such funds for any claim of whatever nature on his or her part under this Indenture or on, or with respect to, such Bond.

Section 4.10 Cancellation of Bonds. Whenever any Outstanding Bonds have been paid or redeemed or are otherwise delivered to the Trustee for cancellation, upon payment or redemption thereof or before or after replacement, the respective Bonds shall be promptly cancelled by the Trustee. The Authority may not issue new Bonds to replace Bonds it has paid or delivered to the Trustee for cancellation for any reason other than in connection with a transfer or exchange in accordance with the terms of this Indenture.

Section 4.11 Open Market Purchases/Purchase in Lieu of Redemptions.

(a) Open Market Purchases. The Company may, to the extent permitted by applicable Law, at any time and from time to time purchase Bonds in the open market, on an exchange or by tender or by private agreement at any price. Any purchase of Bonds by tender shall be made available to all Owners of such Bonds. Any Bonds so purchased may be held by or for the account of the Company, and the Company may surrender such Bonds to the Trustee for cancellation.

(b) Purchase in Lieu of Redemptions. Without prejudice to the rights of the Company pursuant to clause (a) above, the Series 2017 Bonds maturing after October 1, 2027 are eligible to be purchased prior to maturity, at the election of the Authority, upon the written request of the Company, on or after October 1, 2027, in any order, in whole or in part at any time, at a purchase price equal to one hundred percent (100%) of the principal amount thereof (the “Purchase

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Price”), plus accrued interest to the date set for purchase (the “Purchase Date”) set forth in the notice of purchase to the registered owners of the Series 2017 Bonds to be so purchased.

If the Authority, upon written request of the Company, elects to purchase Series 2017 Bonds, the Trustee shall give notice of the purchase of Series 2017 Bonds in the name of the Authority to the registered owners of the Series 2017 Bonds to be purchased by first-class mail, postage prepaid, not less than thirty (30) days nor more than sixty (60) days prior to the Purchase Date specified in such notice. The Series 2017 Bonds to be purchased are required to be tendered on the Purchase Date to the Trustee. The Series 2017 Bonds to be purchased that are not so tendered will be deemed to have been properly tendered for purchase. Such purchase will not operate to extinguish the indebtedness of the Authority evidenced thereby or modify the terms of the Series 2017 Bonds and such Series 2017 Bonds need not be cancelled, but will remain Outstanding under this Indenture and continue to bear interest.

The Authority’s obligation to purchase a Series 2017 Bond is conditioned upon the availability of sufficient money to pay the Purchase Price for all of the Series 2017 Bonds to be purchased on the Purchase Date. If sufficient money is available on the Purchase Date to pay the Purchase Price of the Series 2017 Bonds to be purchased, the former registered owners of such Series 2017 Bonds will have no claim thereunder or under this Indenture or otherwise for payment of any amount other than the Purchase Price. If sufficient money is not available on the Purchase Date for payment of the Purchase Price, the Series 2017 Bonds tendered or deemed tendered for purchase will continue to be registered in the name of the registered owners on the Purchase Date, who will be entitled to the payment of the principal of and interest on such Series 2017 Bonds in accordance with their respective terms.

ARTICLE V

FUNDS AND ACCOUNTS

Section 5.1 Establishment of Funds and Accounts.

There is hereby created and established with the Trustee the following Funds and Accounts:

(a) The Series 2017 Debt Service Fund (the “Series 2017 Debt Service Fund”), and within the Series 2017 Debt Service Fund, three accounts designated (i) the “Series 2017 Interest Account” (the “Series 2017 Interest Account”), (ii) the “Series 2017 Principal Account” (the “Series 2017 Principal Account”), and (iii) the “Series 2017 Redemption Account” (the “Series 2017 Redemption Account”); and

(b) The Series 2017 Rebate Fund (the “Series 2017 Rebate Fund”).

Notwithstanding anything herein to the contrary, the Trustee may from time to time hereafter establish and maintain additional funds, accounts or subaccounts necessary or useful in connection with any other provision of this Indenture or any Supplemental Indenture or to the extent deemed necessary by the Trustee at the written direction of the Authority or the Company.

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Section 5.2 Series 2017 Debt Service Fund.

(a) There shall be deposited into the appropriate Account of the Series 2017 Debt Service Fund: (i) amounts remitted or transferred to such Account from the applicable sub- account of the Series 2017 Debt Service Fund pursuant to Section 5.04 of the Collateral Agency Agreement and from the Series 2017 Debt Service Reserve Account pursuant to Section 5.06(d) of the Collateral Agency Agreement; (ii) any moneys paid to the Trustee pursuant to Section 4.5 hereof with respect to the Redemption Price of the Series 2017 Bonds; (iii) any amounts remitted or moneys transferred to such Account from the Construction Fund pursuant to Section 5.02(g) of the Collateral Agency Agreement; (iv) any moneys deposited into such Account pursuant to Section 7.3 hereof and Section 6.06(b) of the Collateral Agency Agreement; and (v) all other moneys received by the Trustee that are accompanied by directions that such moneys are to be deposited into such Account.

(b) If on any Interest Payment Date the funds on deposit in the Series 2017 Interest Account (during the Construction of the 2017 Facility) are not sufficient to pay the Interest Payment in full on such Interest Payment Date, the Trustee shall transfer moneys from the Series 2017 Principal Account sufficient to make such payment. If on any Interest Payment Date there exists both (i) funds on deposit in the Series 2017 Interest Account in excess of the amount necessary to pay the Interest Payment due on such date, and (ii) insufficient funds on deposit in the Series 2017 Principal Account to make the Principal Payment due on such date in full, the Trustee shall transfer all or such portion of such excess funds on deposit in the Series 2017 Interest Account to the Series 2017 Principal Account as necessary to provide for such Principal Payment in full.

(c) Moneys in each Account of the Series 2017 Debt Service Fund shall be used solely for the payment (within each Account) of the principal of and interest on and the Redemption Price of the Series 2017 Bonds; provided, that (i) moneys paid by the Authority pursuant to Section 4.5 hereof shall be used to pay the Redemption Price of the Series 2017 Bonds and (ii) moneys held in such Account of the Series 2017 Debt Service Fund following an acceleration of the Series 2017 Bonds upon the occurrence of and during the continuance of an Event of Default shall be used as provided in Section 7.3 hereof and Section 6.06(b) of the Collateral Agency Agreement.

Section 5.3 Series 2017 Rebate Fund.

(a) The Series 2017 Rebate Fund shall be for the sole benefit of the United States of America and shall not be subject to the claim of any other Person, including without limitation, the Owners. The Series 2017 Rebate Fund is established for the purpose of complying with Section 148 of the Code and the Treasury Regulations promulgated pursuant thereto. There shall be deposited into the Series 2017 Rebate Fund all amounts transferred to such Fund pursuant to Section 5.05 of the Collateral Agency Agreement. The money deposited in the Series 2017 Rebate Fund, together with all investments thereof and investment income therefrom, shall be held in trust and applied solely as provided in the Arbitrage Certificate. The Series 2017 Rebate Fund is not a portion of the Trust Estate and is not subject to any lien under this Indenture. Notwithstanding the foregoing, the Trustee with respect to the Series 2017 Rebate Fund is afforded all the rights, protections and immunities otherwise accorded to it hereunder.

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Notwithstanding anything contained in this Indenture to the contrary, neither the Authority nor the Trustee shall be responsible or liable for any loss, liability or expense incurred as a result of the failure of the Company to fulfill its obligation with respect to the calculation and payment of the Rebate Amount. The Authority and the Trustee shall be entitled to rely conclusively upon the calculations provided by the Company.

(b) The Trustee, at the written direction of the Company given in accordance with the Lease Agreement, shall apply or cause to be applied the amounts in the Series 2017 Rebate Fund at the times and in the amounts required by Section 148 of the Code solely for the purpose of paying the United States of America in accordance with Section 148 of the Code.

(c) Moneys held in the Series 2017 Rebate Fund shall be invested and reinvested upon the written direction of the Company by the Trustee in Permitted Investments that mature at such times specified in such written direction, which times shall not be later than such times as shall be necessary to provide money when needed for payments to be made from such Series 2017 Rebate Fund and in accordance with the provisions hereof. The interest earned on moneys or investments in the Series 2017 Rebate Fund shall be retained in the Series 2017 Rebate Fund. Moneys held in the Series 2017 Rebate Fund shall be held by the Trustee for a period of not less than seventy-five (75) days following the redemption or final maturity of the Bonds, after which time the Trustee shall disburse any funds remaining in the Series 2017 Rebate Fund at the written direction of the Company.

Section 5.4 Moneys to be Held in Trust. The Series 2017 Debt Service Fund and any other Fund or Account created hereunder (excluding the Series 2017 Rebate Fund and any Defeasance Escrow Account), shall be held by the Trustee, for the benefit of the Owners of the Bonds as specified in this Indenture. The Series 2017 Rebate Fund shall be held by the Trustee for the purpose of making payments to the United States pursuant to Section 6.4 hereof. Any Defeasance Escrow Account shall be held solely for the benefit of the Owners of the Bonds to be paid therefrom as provided in the agreement governing such Defeasance Escrow Account.

Section 5.5 Investment of Moneys.

(a) All moneys held as part of any Fund or Account shall be deposited or invested and reinvested by the Trustee, at the written direction of the Company, in Permitted Investments; provided, however, that moneys in the Series 2017 Debt Service Fund shall be invested solely in direct obligations of, or obligations the principal of and interest on which are unconditionally guaranteed by, the United States of America (or by any agency thereof to the extent such obligations are backed by the full faith and credit of the United States of America), in each case maturing within one year from the date of acquisition thereof; and provided further, however, that moneys in any Defeasance Escrow Account may only be invested in Defeasance Securities.

(b) Earnings from the investment of moneys held in any Fund or Account and losses from the investment of moneys held in any Fund or Account shall be charged against the Fund or Account in which they were realized.

(c) The Trustee shall sell and reduce to cash a sufficient amount of the investments held in any Fund or Account whenever the cash balance therein is insufficient to make any

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payment to be made therefrom and the Trustee shall not be liable or responsible for any loss or tax resulting from such sale.

(d) The Authority and the Company (by its execution of the Lease Agreement) acknowledges that to the extent regulations of the Comptroller of the Currency or other applicable regulatory entity grant the Authority or the Company the right to receive brokerage confirmations of security transactions as they occur, the Authority and the Company specifically waive receipt of such confirmations to the extent permitted by Law. The Trustee will furnish the Authority and the Company with monthly cash transaction statements which shall include detail for all investment transactions made by the Trustee hereunder.

ARTICLE VI

COVENANTS OF THE AUTHORITY

Section 6.1 Representations, Covenants and Warranties. The Authority represents, covenants and warrants that:

(a) The execution, delivery and performance of this Indenture by the Authority is authorized by the Act and upon the execution and delivery of this Indenture by the Trustee and the Authority, this Indenture will constitute a legal, valid and binding obligation of the Authority and be enforceable against the Authority in accordance with its terms, limited only by applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors’ rights generally, by equitable principles, whether considered at law or in equity, subject to the valid exercise of the constitutional powers of the State and the United States of America.

(b) The Authority has not, except pursuant to this Indenture, pledged, granted or created in any manner any security interest on, or rights with respect to, the Trust Estate.

(c) The execution, delivery and performance of its obligations under this Indenture by the Authority do not and will not conflict with or result in a violation or a breach of any Law or the terms, conditions or provisions of any restriction under any Law, contract, agreement or instrument to which the Authority is now a party or by which the Authority is bound, or constitute a default under any of the foregoing. All consents, approvals, authorizations and orders of governmental or regulatory authorities which are required to be obtained by the Authority for the consummation of the transaction contemplated hereby have been obtained. No authority or proceedings for issuance of the Series 2017 Bonds or documents in connection therewith have been repealed, revoked or rescinded or superseded.

(d) To the best knowledge of the Authority there is no action, suit or proceeding at law or in equity, pending or threatened against the Authority to restrain or enjoin the issuance or sale of the Series 2017 Bonds or in any way contesting the validity or affecting the power of the Authority with respect to the issuance and sale of the Series 2017 Bonds or the documents or instruments executed by the Authority in connection therewith or the existence of the Authority or the power or the right of the Authority to finance the Project.

(e) Any certificate signed by the Chairman, Vice-Chairman, Chief Executive Officer, or any other authorized Authority Representative duly authorized by the by-laws of the Authority - 31 -

shall be deemed a representation and warranty by the Authority to the respective parties as to the statements made therein.

(f) The Authority makes no representation as to (i) the financial position or business condition of the Company, (ii) the value of the Facility or its suitability for any particular purpose, or (iii) the correctness, completeness or accuracy of any of the statements, materials (financial or otherwise), representations or certifications furnished or to be made by the Company in connection with the sale or transfer of the Series 2017 Bonds, the execution and delivery of this Indenture or the consummation of the transactions contemplated hereby; provided, however, for the avoidance of doubt, that the Authority represents and warrants as to the correctness, completeness and accuracy of the statements, information (financial or otherwise), representations or certifications made or provided by the Authority in the Preliminary Official Statement and the Official Statement under the headings “THE AUTHORITY” and “NO LITIGATION” (as it relates to the Authority) in connection with the sale or transfer of the Series 2017 Bonds, the execution and delivery of this Indenture or the consummation of the transactions contemplated hereby.

(g) The Authority agrees that it will cooperate with the Company in connection with their obligation to cause all documents, statements, memoranda or other instruments to be registered, filed or recorded in such manner and at such places as may be required by Law to fully protect the security of the registered owners and the right, title and interest of the Trustee and Collateral Agent in and to the security interests (whether now existing or hereafter arising) and any moneys or securities held hereunder or any part thereof (including any re-filings, continuation statements or such other documents as may be required). The Authority shall have no responsibilities for such filings whatsoever, other than executing the documents requested by the Company. The Authority’s approval shall not be required prior to the release of liens that have been properly discharged.

Section 6.2 Maintenance of Existence. Pursuant to the Act, the State pledges and agrees with the Owners of the Bonds that the State will not limit or alter the rights vested in the Authority to fulfill the terms of the agreements made with such Owners or in any way impair the rights or remedies of such Owners until the Bonds, together with the interest, the interest on any unpaid installments of interest, and all costs and expenses in connection with any action or proceeding by or on behalf of such Owners, are fully met and discharged.

Section 6.3 No Superior or Parity Liens on Trust Estate. The Authority shall not create or permit the creation of any pledge, lien or other encumbrance upon the Trust Estate while any of the Bonds are Outstanding, except for Permitted Liens and such other pledges, liens and other encumbrances on the Trust Estate that are (a) created in connection with the Indenture, the Lease Agreement or any other Bond Document or Collateral Document, (b) created for purposes contemplated by hereby or by the Lease Agreement or any other Bond Document or other Financing Document (c) subordinate to the rights of the Owners of the Bonds under this Indenture or (d) not otherwise prohibited hereby.

Section 6.4 Tax Covenant. The Authority shall not take any action or omit to take any action with respect to the Series 2017 Bonds or Additional Bonds, if any, the proceeds of the Series 2017 Bonds or the Additional Bonds, if any, the Trust Estate, the Facility, the Project or

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any other funds or property of the Authority, and it will not permit, to the extent of its control, any other Person to take any action or omit to take any action with respect to the Series 2017 Bonds or the Additional Bonds, if any, the Trust Estate, the Facility, the Project or any other funds or property of the Authority if such action or omission would cause interest on any of the Series 2017 Bonds or the Additional Bonds, if any, to be included in gross income for federal income tax purposes. In furtherance of this covenant, the Authority agrees to comply with the procedures set forth in the Arbitrage Certificate for the Series 2017 Bonds or the Additional Bonds, if any. The covenants set forth in this Section shall remain in full force and effect notwithstanding the payment in full or defeasance of the Series 2017 Bonds or the Additional Bonds, if any, until the date on which all of the Authority obligations in fulfilling such covenants have been satisfied. Pursuant to the Lease Agreement, all investments of the proceeds of the Bonds will be at the direction of the Company.

Section 6.5 Compliance with Law. The Authority shall comply with all Laws and regulations, the State Constitution, the Act and all other State Laws relating to the Bonds, the organization and operation of the Authority and the subject matter of this Indenture.

Section 6.6 No Appointment of Receiver, Etc. The Authority agrees that it will not apply for or consent to the appointment of a receiver, trustee, liquidator or custodian (or the like) of the Authority.

Section 6.7 Rights Under Agreement. The Lease Agreement, a duly executed counterpart of which will be filed with the Trustee, sets forth the covenants and obligations of the Authority and the Company with respect to the respect to the Company’s obligations related to the Bonds, and reference is hereby made to the Lease Agreement for a detailed statement of such covenants and obligations of the Company thereunder, and the Authority agrees that the Trustee (subject to the terms of the Collateral Agency Agreement and Intercreditor Agreement) in its name or in the name of the Authority may enforce all rights of the Authority (other than Reserved Rights) and all obligations of the Company under and pursuant to the Lease Agreement and on behalf of the Owners, whether or not the Authority is in default hereunder.

Section 6.8 Notices, Etc.

(a) Subject to the provisions of Section 8.2(a) of this Indenture, the Trustee shall promptly deliver to the Authority, the Company, the Collateral Agent and the Intercreditor Agent:

(i) any notice provided to it by the Company under the terms of the Lease Agreement and the Guaranty;

(ii) written notice of the occurrence of any Event of Default under this Indenture (with a description of any action being taken or proposed to be taken with respect thereto), including any payment defaults under Section 7.1(a) or (b) hereof and any “Event of Default” under the Lease Agreement or any other Bond Document; and

(iii) written notice of any security interest placed on, or any claim against, the Trust Estate (other than the security interests created under this Indenture or the other Bond Financing Documents). - 33 -

Section 6.9 Indebtedness. The Authority shall not create, incur, assume or permit to exist any Indebtedness of the Authority with respect to the Trust Estate pledged under this Indenture, other than the Bonds, unless the Company shall request the Authority to issue the Additional Bonds pursuant to Article XII hereof.

Section 6.10 IRS Form 8038. The Authority shall prepare and submit, or cause to be prepared and submitted, to the IRS a Form 8038 (or other applicable information reporting statement) at the time and in the form required by the Code.

ARTICLE VII

DEFAULTS AND REMEDIES

Section 7.1 Events of Default. Any of the following shall constitute an “Event of Default” under this Indenture with respect to any Outstanding Bonds:

(a) Failure to pay any portion of the principal of or Redemption Price, on any Outstanding Bond when due and payable;

(b) Failure to pay any portion of interest on any Outstanding Bond within ten (10) Business Days after such interest payment is due and payable;

(d) Failure by the Authority to cure any noncompliance with any other provision of this Indenture within sixty (60) days after receiving written notice of such noncompliance from the Trustee or the Collateral Agent (with a copy to the Company, the Intercreditor Agent and the Collateral Agent or Trustee, as applicable) with respect to the Bonds;

(e) An “Event of Default” under the Lease Agreement or any other Bond Document shall have occurred and be continuing; or

(f) The occurrence and continuance, with respect to the Authority, of an Act of Bankruptcy.

Section 7.2 Remedies Following and During the Continuance of an Event of Default.

(a) Upon the occurrence and during the continuance of an Event of Default, any Owner or the Authority can deliver to the Trustee a written notice, with a copy to the Authority, the Collateral Agent, the Intercreditor Agent and the Company, that an Event of Default has occurred and is continuing. The Trustee shall not be deemed to have any knowledge of the occurrence of an Event of Default, except with respect to an “Event of Default” described in Section 7.1(a), (b) or (c) hereof or if such Event of Default is a result of an Act of Bankruptcy pursuant to the Lease Agreement, unless and until it has received such a notice from the relevant party.

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(b) At any time during which an Event of Default has occurred and is continuing commencing on the date of delivery to the Trustee of the notice described in Section 7.2(a) above (except with respect to an Event of Default described in Section 7.1(a), (b) or (c) hereof in which no notice shall be required), the Owners of not less than a majority of the aggregate principal amount of Outstanding Bonds shall have the right to give the Trustee one or more enforcement directions directing the Trustee, upon being indemnified to its satisfaction, to exercise all remedies available to it at law or in equity, including the following actions on behalf of the Bondholders:

(i) if such Event of Default as described in Section 7.1(a), (b) or (c) has occurred and is continuing, without further demand or notice, request the Collateral Agent to transfer moneys to the Series 2017 Interest Account or the Series 2017 Principal Account, as applicable, as provided in the Collateral Agency Agreement; and

(ii) for all Events of Default, subject to paragraph (c) immediately below, subject to the Intercreditor Agreement and the Collateral Agency Agreement, take whatever action at law or in equity may appear necessary or desirable to enforce the rights of the Owners (including in respect of the Trust Estate), and the Trustee shall deposit any moneys received as a result of such action in the Series 2017 Interest Account or the Series 2017 Principal Account, as applicable.

(c) Upon the occurrence and during the continuance of an Event of Default, if so instructed by the Owners of not less than a majority of the aggregate principal amount of Outstanding Bonds, the Trustee, subject to the immediately succeeding provisos, and subject to it being indemnified to its satisfaction, shall declare all Bonds, all interest accrued and unpaid thereon, and all other amounts payable in respect thereof to be due and payable, whereupon the same shall become immediately due and payable without presentment, demand, protest or further notice of any kind, all of which are waived by the Authority; provided that the Bonds may be accelerated pursuant to this clause (c) only to the extent the payment obligations under the Lease Agreement or Guaranty shall have been accelerated.

(d) The Majority Holders may, by written notice to the Trustee, on behalf of all of the Owners, rescind any acceleration and its consequences if such rescission would not conflict with any judgment or decree and if all existing Events of Default (except nonpayment of principal, interest or premium that has become due solely because of the acceleration) have been cured or waived and the Authority has paid or deposited, or caused to be paid or deposited, with the Trustee a sum sufficient to pay all sums paid or advanced by the Trustee hereunder and the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel. In case of any such rescission, then and in every such case the Authority, the Trustee and the Owners shall be restored to their former positions and rights.

(e) All rights and actions and claims under this Indenture may be prosecuted and enforced by the Trustee on behalf of the Owners of the Bonds. In the case of pendency of any receivership, insolvency, liquidation, bankruptcy, reorganization or other similar judicial proceeding relative to the Authority or the Trust Estate, the Trustee, subject to the Collateral Agency Agreement, shall be entitled to file and prove a claim for the amount of the Authority’s and the Company’s obligations to the Owners of the Bonds owing and unpaid and to file such

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other papers or documents as may be necessary in order to have the claims of the Owners allowed in such judicial proceeding and, to the extent permitted by Law, to collect and receive any moneys or other property payable or deliverable on any such claims and to distribute the same in accordance with the terms hereof and of the Collateral Agency Agreement.

Section 7.3 Use of Moneys Received from Exercise of Remedies. After an acceleration pursuant to Section 7.2(c) hereof, moneys received by the Trustee from the Collateral Agent pursuant to and in accordance with the Collateral Agency Agreement, this Indenture, the Intercreditor Agreement and the other Collateral Documents in respect of the Authority’s obligations hereunder shall be applied first to pay the reasonable and proper fees, costs and expenses (including the reasonable fees and expenses of counsel) of and indemnification payments owing to the Trustee pursuant to and in accordance with the Bond Financing Documents, including those incurred in connection with the exercise of remedies following such Event of Default, and thereafter remaining amounts shall be applied promptly by the Trustee as follows:

First, to the payments then due and payable by the Company to the Series 2017 Rebate Fund;

Second, ratably, to all accrued and unpaid interest on the Bonds;

Third, ratably, to the outstanding principal amount on the Bonds; and

Fourth, to the Company, upon termination, expiration or payment in full of all commitments, any surplus to be applied at the Company’s discretion in accordance with the Collateral Agency Agreement and the other Bond Financing Documents.

Section 7.4 Limitations on Rights of Owners Acting Individually. Subject to the Collateral Agency Agreement and the Intercreditor Agreement, no Owner shall have any right to institute any suit, action or proceeding at law or in equity for the enforcement of any remedy hereunder or for the enforcement of the terms of this Indenture, unless an Event of Default under this Indenture has occurred and is continuing and the Owner has made a written request to the Trustee, and has given the Trustee sixty (60) days to take such action in its capacity as Trustee and has indemnified the Trustee to its satisfaction. Nothing in this Section shall affect or impair the right of the Owner to enforce the payment of the principal of and interest on or the Redemption Price of any Bond at and after the date such payment is due, subject, however, to the limitations on remedies set forth in Section 7.2 hereof. In addition, any action by any Owner taken with respect to the Trust Estate shall only be taken in accordance with the provisions of Section 7.2 hereof.

Section 7.5 Trustee May Enforce Rights Without Bonds. All rights of action and claims under this Indenture or any of the Outstanding Bonds may be enforced by the Trustee without the possession of any of the Bonds or the production thereof in any trial or proceedings relative thereto; any suit or proceeding instituted by the Trustee shall be brought in its name as Trustee, without the necessity of joining as plaintiffs or defendants any Owners; and any recovery of judgment shall be for the ratable benefit of the Owners, subject to the provisions hereof and the Collateral Agency Agreement. The Authority agrees that the Trustee, subject to

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the provisions of the Lease Agreement and this Indenture reserving certain Reserved Rights, as assignee of the Authority (but not in the name of the Authority), may enforce all rights of the Authority and all obligations of the Company under and pursuant to the Lease Agreement for and on behalf of the Owners of the Bonds whether or not the Authority is in default hereunder.

Section 7.6 Trustee to File Proofs of Claim in Receivership, Etc. In the case of any receivership, insolvency, bankruptcy, reorganization, arrangement, adjustment, composition or other judicial proceedings affecting the Trust Estate, the Trustee shall, subject to the Collateral Agency Agreement and the Intercreditor Agreement, to the extent permitted by law, be entitled to file such proofs of claim and other documents as may be necessary or advisable in order to have claims of the Trustee and of the Owners allowed in such proceedings for the entire amount due on the Bonds under this Indenture, at the date of the institution of such proceedings and for any additional amounts which may become due by it after such date, without prejudice, however, to the right of any Owner to file a claim on its own behalf, to the extent permitted hereunder.

Section 7.7 Delay or Omission; No Waiver. No delay or omission of the Trustee or of any Owner to exercise any remedy, right or power accruing upon any Event of Default or otherwise shall exhaust or impair any such remedy, right or power or be construed to be a waiver of any such Event of Default, or acquiescence therein; and every remedy, right and power given by this Indenture may be exercised from time to time and as often as may be deemed expedient.

Section 7.8 Discontinuance of Proceedings on Event of Default; Position of Parties Restored. In case the Trustee or any Owner shall have proceeded to enforce any right under this Indenture and such proceedings shall have been discontinued or abandoned for any reason, or shall have been determined adversely to the Trustee or such Owner, then and in every such case the Authority, the Trustee and the Owners shall be restored to their former positions and rights, and all rights, remedies and powers of the Trustee, the Authority and the Owner shall continue as if no such proceedings had been taken.

Section 7.9 Waivers of Events of Default. The Trustee, notwithstanding anything else to the contrary contained in this Indenture, shall waive any Event of Default upon the written direction of Owners of not less than a majority of the aggregate principal amount of Outstanding Bonds; provided, however, that there shall not be waived any Event of Default in the payment of the principal of or interest on any Outstanding Bonds, unless, prior to such waiver or rescission, all arrears of principal and interest (other than principal of or interest on the Bonds which became due and payable by declaration of acceleration), and all fees and expenses of the Trustee in connection with such Event of Default shall have been paid or provided for. In case of any such waiver, then and in every such case the Authority, the Trustee and the Owners shall be restored to their former positions and rights hereunder, but no such waiver shall extend to any subsequent or other Event of Default, or impair any right consequent thereon. Notwithstanding anything in herein to the contrary, neither the Trustee nor the Owners of the Bonds shall have the right to waive any Event of Default under this Indenture that arises out of a violation of a Reserved Right without the prior written consent of the Authority, which consent shall not be unreasonably withheld or delayed. Notwithstanding anything herein or in any other Bond Financing Document to the contrary, nothing herein shall affect the Authority’s unconditional right to enforce its Reserved Rights.

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Section 7.10 Notice of Non-Compliance. Upon receipt of notice by or actual knowledge of any officer of the Trustee of any breach of any covenant or any Event of Default by the Company under the Lease Agreement or any other Bond Document, the Trustee shall promptly notify the Authority of such breach or Event of Default.

ARTICLE VIII

CONCERNING THE TRUSTEE

Section 8.1 Representations, Covenants and Warranties Regarding Execution, Delivery and Performance of Indenture. The Trustee represents, covenants and warrants that:

(a) The Trustee is a national banking association and is authorized, under its articles of association and bylaws, action of its board of directors and applicable law, to own and manage its properties, to conduct its affairs in the State, to accept the grant of the Trust Estate hereunder and to execute, deliver and perform its obligations under this Indenture.

(b) The execution, delivery and performance of this Indenture by the Trustee has been duly authorized by the Trustee.

(c) This Indenture is enforceable against the Trustee in accordance with its terms, limited only by bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors’ rights generally and by equitable principles, whether considered at law or in equity.

(d) The execution, delivery and performance of the terms of this Indenture by the Trustee does not and will not conflict with or result in a violation or a breach of any law or the terms, conditions or provisions of any restriction or any agreement or instrument to which the Trustee is now a party or by which the Trustee is bound, nor constitute a default under any of the foregoing nor, except as specifically provided in this Indenture, result in the creation or imposition of any lien or encumbrance whatsoever upon the Trust Estate or any of the property or assets of the Trustee.

(e) There is no litigation or proceeding pending or to its knowledge threatened against the Trustee affecting the right of the Trustee to execute, deliver or perform its obligations under this Indenture.

Section 8.2 Duties of the Trustee. The Trustee hereby accepts the trusts imposed upon it by this Indenture, the Intercreditor Agreement and the other Bond Financing Documents to which it is a party and agrees to perform said trusts, but only upon and subject to the following express terms and conditions:

(a) The Trustee undertakes to perform such duties and only such duties as are specifically set forth in this Indenture and the other Bond Financing Documents to which it is a party. No implied duties shall be read into this Indenture against the Trustee.

(b) The Trustee may execute any of the trusts or powers hereof and perform any of its duties by or through attorneys, agents, receivers or employees and shall not be responsible for

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the conduct of any agent appointed with due care, except to the extent such conduct constitutes bad faith, gross negligence or willful misconduct. Any reasonable, documented and invoiced out- of-pocket expenses of hiring such agent shall be reimbursed by the Company, in accordance with the terms of the Lease Agreement and any agreement between the Company and the Trustee with respect thereto. The Trustee may act upon the opinion or advice of any attorney (who may be the attorney or attorneys for the Authority or the Company). The Trustee shall not be responsible for any loss or damage resulting from any action or inaction in good faith in reliance upon such opinion or advice.

(c) The Trustee shall not be responsible for any recital herein or in the Bonds (except with respect to the certificate of authentication endorsed on the Bonds), or for collecting any insurance moneys or for ensuring that insurance policies comply with this Indenture or any other document related thereto, or for the validity of the execution by the Authority of this Indenture or any instruments of further assurance or for the sufficiency of the security for the Bonds issued hereunder or intended to be secured hereby, for the validity or perfection of the lien on the Trust Estate or for the value of the Trust Estate. The Trustee shall have no obligation to perform any of the duties of the Authority under this Indenture nor shall the Trustee be liable or responsible for the failure of the Authority to perform any action hereunder or under the related documents; and the Trustee shall not be responsible or liable for any loss suffered in connection with any investment of funds made, withdrawn or transferred by it pursuant to instructions from the Company in accordance with Section 5.5 hereof, or for the loss of any moneys arising through the insolvency or the act or default or omission of any depositary other than itself in which moneys shall have been deposited under this Indenture, the Collateral Agency Agreement or any document related hereto or in furtherance thereof.

(d) The Trustee shall not be accountable for the use of any Bonds delivered to the Underwriter pursuant to this Indenture.

(e) The Trustee shall be protected in acting upon any notice, request, opinion of counsel, consent, certificate, order, affidavit, letter, telegram or other paper or document which it in good faith believes to be genuine and correct as well as signed or sent by the proper Person or Persons and the Trustee shall be under no duty to make any investigation as to any statement contained in any such document. Any action taken by the Trustee pursuant to (and as permitted by) this Indenture or the other Bond Financing Documents upon the request or instruction or consent of any Person who at the time of making such request or giving such instruction or consent is the Owner of any Bond shall be conclusive and binding upon any Bonds issued in place or exchange thereof.

(f) The Trustee may employ or retain such counsel, accountants, appraisers or other experts or advisors as it may reasonably require for the purpose of determining and discharging its rights and duties hereunder and, in the absence of the Trustee’s gross negligence, bad faith or willful misconduct in employing or retaining any such counsel, accountants, appraisers, experts or advisors, may act and rely, and shall be protected in acting and relying, in good faith on the opinion or advice of, or information obtained from, any counsel, accountant, appraiser or other expert or advisor, whether retained or employed by the Company, the Authority or the Trustee, in relation to any matter arising in the administration hereof, and shall not be responsible for any act or omission on the part of any of them. In addition, the Trustee shall not be liable for any

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acts or omissions of its nominees, correspondents, designees, agents, subagents or subcustodians except to the extent of its gross negligence, bad faith or willful misconduct in nominating or appointing such persons and so long as such persons are permitted to act hereunder.

(g) As to the existence or nonexistence of any fact, or as to the sufficiency or validity of any instrument, paper or proceeding, the Trustee shall be entitled to rely upon a certificate signed by an Authority Representative or Authorized Company Representative as sufficient evidence of the facts therein contained.

(h) The Trustee shall not be required to take notice, or be deemed to have notice, of any Event of Default hereunder or under any Bond Financing Document to which it is a party, except failure to pay the principal of and interest on, or Redemption Price of, any Bond, unless the Trustee shall be specifically notified in writing of such Event of Default by the Authority, the Collateral Agent, the Company or an Owner of a Bond.

(i) All moneys received by the Trustee shall, until used or applied or invested as herein provided, be held in trust in the manner and for the purposes for which they were received and shall be segregated from all other funds held by the Trustee.

(j) The Trustee shall not be required to give any bond or surety in respect of the execution of the said trusts and powers or otherwise in respect of the premises.

(k) Notwithstanding anything to the contrary in this Indenture, the Intercreditor Agreement or any Bond Financing Document to which the Trustee is a party, the Trustee shall have the right, but shall not be required, to demand in respect of the authentication and delivery of any Bonds, the withdrawal of any cash, or any action whatsoever within the purview of this Indenture, the Intercreditor Agreement or any Bond Financing Document to which it is a party, any showings, certificates, opinions, appraisals or other information, or corporate or limited liability company action or evidence thereof, in addition to that by the terms hereof required, as a condition of such action by the Trustee.

(l) [Reserved].

(m) The permissive right of the Trustee to do the things enumerated hereunder, under the Intercreditor Agreement or under other Bond Financing Documents shall not be construed as a duty unless so specified herein or therein, and in doing or not doing so, the Trustee shall not be answerable for other than its own gross negligence or willful misconduct.

(n) Before taking any action or refraining from taking any action under this Indenture, the Intercreditor Agreement or any other Bond Financing Document to which it is a party, the Trustee may require that indemnity satisfactory to it be furnished for the reimbursement of all reasonable, documented and invoiced fees and expenses (including those of its counsel) to which it may be put and to protect itself against all liability, including environmental liability, including costs incurred in defending itself against any and all charges, claims, complaints, allegations, assertions, or demands of any nature whatsoever, except liability which is adjudicated to a result of the Trustee’s bad faith, gross negligence or willful misconduct in connection with any such action. The Trustee may not require indemnity prior to making

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payment on the Bonds when due or declaring the principal amount of all Outstanding Bonds and the interest accrued thereon to be immediately due and payable.

(o) The Trustee agrees to furnish the Company and the Authority with notice of the Company’s obligations to file its report with the Authority pursuant to the Lease Agreement and to file its rebate calculation and make its rebate payment, if any, to the IRS. Such reminder notice shall be furnished to the Company and the Authority at least ninety (90) days prior to the fifth anniversary of the issuance of the Bonds pursuant to the Lease Agreement and within thirty (30) days following the redemption or final payment of the Bonds. The Trustee shall have no further obligation for the computation of the Rebate Amount or the filing or payment thereof

(p) The Trustee shall have no responsibility with respect to any information, statement or recital in any official statement, offering memorandum or any other disclosure material prepared or distributed with respect to the Bonds.

(q) No provision of this Indenture, any Bond Financing Document or any other documents related thereto shall require the Trustee to risk or expend its own funds or otherwise incur any financial liability in the performance of its duties and obligations hereunder or thereunder.

(r) In accordance with the terms hereof, the Trustee shall not be liable for any action taken or not taken by it in accordance with the direction of the Owners of a majority (or other percentage provided for herein) in aggregate principal amount of Bonds outstanding relating to the exercise of any right or remedy available to it or the exercise of any trust or power available to the Trustee hereunder or under any Bond Financing Document. The Trustee and the Paying Agent shall not be bound to recognize any person as a Bondholder or to take any action at such holder’s request unless such holder’s Bond shall be deposited with such entity or satisfactory evidence of the ownership of such Bond shall be furnished to such entity.

(s) The immunities extended to the Trustee also extend to its directors, officers, employees and agents.

(t) The Trustee is authorized and directed to enter into the Bond Financing Documents and any other documents related thereto to which the Trustee is a party. In entering into and performing any duties and obligations of the Trustee under the Bond Financing Documents and any other documents related thereto, the Trustee shall be entitled to the provisions of this Indenture, including without limitation, the protections, immunities, limitations from liability and indemnification accorded to the Trustee under this Indenture.

Section 8.3 Compensation of Trustee. The Trustee shall be entitled to compensation and indemnification in accordance with its agreement with the Company, which shall not be limited by any provision of law in regard to compensation of the trustee of an express trust, and which, notwithstanding any other provision hereof, may be amended at any time by agreement of the Company and the Trustee without the consent of or notice to the Owners. In no event shall the Trustee be obligated to advance its own funds in order to take any action hereunder. The Authority shall not be responsible for payment of any such fees and expenses.

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Section 8.4 Resignation or Replacement of Trustee.

(a) The present Trustee or any future Trustee may resign by giving written notice to the Authority and the Collateral Agent (with a copy to the Company) not less than sixty (60) days before such resignation is to take effect. Such resignation shall take effect only upon the appointment of and acceptance by a successor qualified as provided in subsection (c) of this Section. If no successor is appointed within sixty (60) days following the date designated in the notice for the Trustee’s resignation to take effect, the resigning Trustee may petition a court of competent jurisdiction for the appointment of a successor. The present or any future Trustee may be removed at any time by the Authority in the event the Authority reasonably determines that the Trustee is not duly performing its obligations hereunder or that such removal is in the best interests of the Authority or the Owners.

(b) In case the present or any future Trustee shall at any time resign or be removed or otherwise become incapable of acting, a successor may be appointed by the Authority, with the written consent of the Company (such consent not to be unreasonably withheld, delayed or conditioned). Upon making any such appointment, the Authority shall forthwith give notice thereof to each Owner, which notice may be given concurrently with the notice of resignation given by any resigning Trustee.

(c) Every successor Trustee shall be a bank or trust company in good standing, qualified to do business in the State, duly authorized to exercise trust powers and subject to examination by federal or state authority, qualified to act hereunder and having a capital and surplus of not less than $500,000,000. Any successor Trustee appointed hereunder shall execute, acknowledge and deliver to the Authority (with a copy to the Company and Collateral Agent) an instrument accepting such appointment hereunder, and thereupon such successor shall, without any further act, deed or conveyance, become vested with all the estates, properties, rights, powers and trusts of its predecessor in the trust hereunder with like effect as if originally named as Trustee herein; but the Trustee retiring shall, nevertheless, on the written demand of its successor, execute and deliver an instrument conveying and transferring to such successor, upon the trusts herein expressed, all the estates, properties, rights, powers and trusts of the predecessor, which shall duly assign, transfer and deliver to the successor all properties and moneys held by it under this Indenture. Should any instrument in writing from the Authority be required by any successor for more fully and certainly vesting in and confirming to it, such instrument in writing shall, at the reasonable discretion of the Authority, be made, executed, acknowledged and delivered by the Authority on request of such successor.

(d) Every successor Trustee appointed hereunder shall execute, acknowledge and deliver to its predecessor, and also to the Authority and the Company an instrument in writing accepting such appointment hereunder, and thereupon such successor, without any further act, deed or conveyance, shall become fully vested with all the estates, properties, rights, powers, trusts, duties and obligations of its predecessor; but such predecessor shall, nevertheless, on the written request of the Authority or the Company, or any respective successor thereof, execute and deliver an instrument transferring to such successor all the estates, properties, rights, powers and trusts of such predecessor hereunder; and every predecessor Trustee shall deliver all securities and moneys held by it as the Trustee hereunder to its successor. Should any instrument in writing from the Authority be required by any successor Trustee for more fully and

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certainly vesting in such successor Trustee the Trust Estate, rights, powers and duties hereby vested or intended to be vested in the predecessor, any and all such instruments in writing shall, on request, be executed, acknowledged and delivered by the Authority. The instruments evidencing the resignation or removal of the Trustee and the appointment of a successor hereunder, together with all other instruments provided for in this Section 8.4 shall be filed and/or recorded by the successor Trustee in each recording office, if any, where this Indenture shall have been filed and/or recorded.

Section 8.5 Conversion, Consolidation or Merger of Trustee. Any bank, trust company, corporation or association into which the Trustee or its successor may be sold, transferred, converted or merged, or with which it may be consolidated, or to which it may sell or transfer its trust business as a whole, or substantially as a whole, shall be the successor of the Trustee under this Indenture with the same rights, powers, duties and obligations, and subject to the same restrictions, limitations and liabilities, as its predecessor, all without the execution or filing of any papers or any further act on the part of any of the parties hereto or thereto (except to notify the Authority and the Company within thirty (30) days of such conversion, merger or consolidation), anything herein or therein to the contrary notwithstanding provided that so long as no Event of Default has occurred and is continuing, the Authority may appoint a successor trustee other than the entity into which the Trustee may be converted or merged. In case any of the Bonds shall have been authenticated, but not delivered, any successor Trustee may adopt the signature of any predecessor Trustee, and deliver the same as authenticated; and, in case any of such Bonds shall not have been authenticated, any successor Trustee may authenticate such Bonds in the name of such successor Trustee.

Section 8.6 Intervention by Trustee. In any judicial proceeding to which the Authority is a party relating to the Lease Agreement, the Intercreditor Agreement, the Collateral Documents or this Indenture and which in the reasonable opinion of the Trustee and its counsel has a substantial bearing on the interests of the Owners, the Trustee may, subject to the Collateral Agency Agreement and the Intercreditor Agreement, intervene on behalf of the Owners. In addition, the Trustee shall be entitled to the same protections, indemnification and reimbursement for fees and expenses as set forth herein in connection with the Collateral Documents and all actions taken by the Trustee pursuant to the Collateral Documents.

Section 8.7 Books and Records; Reports.

(a) The Trustee shall at all times keep, or cause to be kept, proper books of record and accounts in which complete and accurate entries shall be made of all transactions of the Trustee relating to the Bonds and all Funds and Accounts established pursuant to this Indenture. Such books of record and accounts shall be available for inspection by any Owner or its agents or representatives duly authorized in writing, at reasonable hours and under reasonable circumstances and upon reasonable prior written request.

(b) The Trustee shall maintain records of all receipts, disbursements, and investments of funds with respect to the Funds and Accounts until the fifth anniversary of the date on which all of the Bonds shall have been paid in full.

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(c) The Trustee hereby agrees to provide a monthly report or statement to the Collateral Agent setting forth, among other things, the balance for each Fund and Account, including any sub-accounts, established and created pursuant to this Indenture.

ARTICLE IX

SUPPLEMENTAL INDENTURES

Section 9.1 Supplemental Indentures Not Requiring Consent of Owners. The Authority and the Trustee may, without the consent of, or notice to, the Owners, but with the written consent of the Company, enter into a Supplemental Indenture for any one or more or all of the following purposes:

(a) to provide for the issuance by the Authority of the Additional Bonds in accordance with Article XII hereof;

(b) to add additional covenants to the covenants and agreements of the Authority set forth herein;

(d) to cure any ambiguity, or to cure, correct or supplement any defect, omission or inconsistent provision contained herein;

(e) to amend any existing provision hereof or to add additional provisions which, in the opinion of Bond Counsel, are necessary or advisable (i) to qualify, or to preserve the qualification of, the interest on any Bonds for exclusion from gross income for federal income tax purposes; (ii) to qualify, or to preserve the qualification of, this Indenture or any Supplemental Indenture under the federal Trust Indenture Act of 1939, as amended; or (iii) to qualify, or preserve the qualification of, any Bonds for an exemption from registration or other limitations under the laws of any state or territory of the United States and under any federal law of the United States;

(f) to amend any provision hereof relating to the Series 2017 Rebate Fund if, in the opinion of Bond Counsel, such amendment does not adversely affect the excludability of the interest on the Bonds from gross income for federal income tax purposes;

(g) to provide for or eliminate book-entry registration of any of the Bonds;

(h) to obtain or maintain a rating (but not a particular rating level) of the Bonds by a Nationally Recognized Rating Agency;

(i) to facilitate the receipt of moneys;

(j) To enter into an amendment or amendments to the Lease Agreement or the Guaranty as provided in Section 10.01 hereof;

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(k) to establish additional funds, accounts or subaccounts necessary or useful in connection with any other provision of this Section; or

(l) in connection with any other change which does not materially adversely affect the rights of the Owners.

Section 9.2 Supplemental Indentures Requiring Consent of Owners. The Authority and the Trustee may enter into a Supplemental Indenture for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Indenture or modifying the rights of the Owners in any way under this Indenture (other than as contemplated in Section 9.1 hereof) with the written consent of the Owners of a majority in the aggregate principal amount of the then Outstanding Bonds or of any series of Bonds affected by the proposed amendment and with the written consent of the Company; provided, that no Supplemental Indenture modifying this Indenture in the way described below may be entered into without the written consent of the Owner of each Bond affected thereby:

(a) a reduction of the interest rate, principal of or interest on or Redemption Price payable on any Bond, a change in the maturity date of any Bond, a change in any Interest Payment Date for any Bond or a change in the redemption provisions applicable to any Bond;

(b) the release of a portion of the Trust Estate granted by this Indenture (other than in connection with (i) the sale, transfer, lease, assignment or other disposition thereof or (ii) a merger, liquidation, dissolution, consolidation, amalgamation or analogous arrangement, in each case to the extent not prohibited under the Lease Agreement);

(c) the creation of a priority right in the Trust Estate of another Bond over the right of the affected Bond, except as permitted herein; or

(d) a reduction in the percentage of the aggregate Outstanding Bonds required for consent to any Supplemental Indenture or the parties whose consent is required.

Section 9.3 Conditions to Effectiveness of Supplemental Indentures.

(a) No Supplemental Indenture shall be effective until (i) it has been executed by the Authority and the Trustee and, when applicable, the Company and (ii) Bond Counsel has delivered a written opinion to the effect that the Supplemental Indenture complies with and is authorized by the provisions of this Article and the Consent and that will not adversely affect the excludability from gross income for federal income tax purposes of interest on any series of Outstanding Bonds where the interest on such Bonds was excludable from gross income for federal income tax purposes on the original date of issuance of such Bonds.

(b) No Supplemental Indenture entered into pursuant to Section 9.2 hereof shall be effective until, in addition to the conditions set forth in subsection (a) of this Section, (i) a notice at the expense of the Company has been mailed to each Owner, which notice describes the nature of the proposed Supplemental Indenture and states that copies of it are on file at the Designated Payment Office of the Trustee for inspection by the Owners and (ii) subject to the provisions of any Supplemental Indenture, Owners of the required percentage of the Bonds have consented to the Supplemental Indenture; provided, that prior to the delivery of such notice and consent(s),

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Bond Counsel has delivered a written opinion to the effect that such amendment, change or modification complies with the provisions of this Indenture and will not adversely affect the excludability of interest on the Bonds from gross income for federal income tax purposes.

(c) Anything herein to the contrary notwithstanding, if an Owner does not respond (in any way) to a request with respect to any Supplemental Indenture requiring consent of a majority of the Owners, but not requiring consent from greater than a majority of the Owners, pursuant to Section 9.2 hereof, within twenty (20) Business Days of delivery of such request, then any Bonds registered to such Owner shall not be counted for the purpose of calculating the consent of a majority of the Owners. For the avoidance of doubt, this provision (i) shall not apply to Section 9.2(a)-(d) hereof, (ii) shall not be utilized to effectuate a Supplemental Indenture that materially adversely affects the interests of Owners and (iii) requires a Favorable Opinion of Bond Counsel confirming the continued tax-exempt status of the Bonds.

Section 9.4 Consent of the Company. Anything herein to the contrary notwithstanding, a Supplemental Indenture under this Article shall not become effective unless and until the Company shall have consented to the execution and delivery of such Supplemental Indenture; provided however that if the Company is in default with respect to a payment required under the Lease Agreement, the consent of the Company shall not be required. In this regard, the Trustee shall cause notice of the proposed execution of any such Supplemental Indenture, together with a copy of the proposed Supplemental Indenture, to be mailed to the Company at least fifteen (15) Business Days prior to the proposed date of execution and delivery of any such Supplemental Indenture.

Section 9.5 Execution of Supplemental Indentures by Trustee. The Trustee shall not be obligated to sign any Supplemental Indenture pursuant to this Article if the amendment or supplement, in the judgment of the Trustee, could adversely affect the rights, duties, liabilities, protections, privileges, indemnities or immunities of the Trustee. In signing a Supplemental Indenture, the Trustee shall be entitled to receive, and shall be fully protected in relying on, an opinion of Bond Counsel stating that such Supplemental Indenture is authorized by this Indenture, will not adversely affect the excludability of the interest on the Bonds from gross income for federal income tax purposes and that it will not materially adversely affect the rights of the Owners.

ARTICLE X

AMENDMENT OF AND CERTAIN ACTIONS UNDER LEASE AGREEMENT AND GUARANTY

Section 10.1 Amendments to Lease Agreement or Guaranty Not Requiring Consent of Owners. The Authority and the Trustee, as applicable, may, subject to Article II of the Intercreditor Agreement and the Consent, (i) upon receipt of an opinion of Bond Counsel to the effect that the proposed amendment will not adversely affect the excludability of interest on the Bonds from gross income for federal income tax purposes and is authorized by this Indenture and the Consent and (ii) upon the receipt of the written consent of the Company, consent to any amendment, change or modification of the Lease Agreement or the Guaranty, without the consent of, or notice to, the Owners, for any one or more or all of the following purposes:

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(a) to add additional covenants to the covenants and agreements of the Company set forth therein;

(b) to cure any ambiguity, or to cure, correct or supplement any defect or omission or inconsistent provision contained therein;

(c) to amend any existing provision thereof or to add additional provisions which, in the opinion of Bond Counsel, are necessary or advisable (i) to qualify, or to preserve the qualification of, the interest on any Bonds for exclusion from gross income for federal income tax purposes (other than with respect to a Person who is a “substantial user” of the Project or a “related person” within the meaning of Section 147(a) of the Code) or (ii) to qualify, or to preserve the qualification of, any Bonds for an exemption from registration or other limitations under the laws of any state or territory of the United States;

(d) to facilitate the receipt of moneys;

(e) to enter into any Supplemental Indenture as provided in Section 9.1 hereof

(f) to establish additional funds, accounts or subaccounts necessary or useful in connection with any other provision of this Section; or

(g) in connection with any other change which does not materially adversely affect the rights of the Owners.

Section 10.2 Amendments to Lease Agreement or Guaranty Requiring Consent of Owners. Except for the amendments, changes or modifications as provided in Section 10.1 hereof, the Authority and the Trustee, as applicable, may, subject to Article II of the Intercreditor Agreement and the Consent, consent to any other amendment, change or modification of the Lease Agreement or Guaranty with the prior written consent of the Majority Holders and with the written consent of the Company; provided, that no amendment, change or modification of the Lease Agreement or the Guaranty may be entered into in respect of the matters contemplated below unless the prior written consent of the Owner of each Series 2017 Bond affected thereby and the Company has been obtained:

(a) a change to any provision of the Lease Agreement or the Guaranty the result of which will cause a reduction of the interest rate, principal of or interest on or Redemption Price payable on any Bond, a change in the maturity date of any Bond, a change in any Interest Payment Date for any Bond or a change in the redemption provisions applicable to any Bond; or

(b) the release of any Lien granted in favor of the Collateral Agent on Collateral representing 25% or more of aggregate fair market value of all Collateral (the “Collateral Threshold”); provided that the Trustee shall be entitled to rely on a certificate from an Authorized Company Representative as conclusive evidence of whether the Collateral Threshold will be exceeded as a result of any such release.

The Trustee shall, upon notice of the same from the Authority and upon satisfactory indemnification with respect to reasonable, documented and invoiced out-of-pocket expenses, cause notice of such proposed amendment, change or modification to be given in the same

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manner as provided by Section 9.3 hereof with respect to Supplemental Indentures; provided, that prior to the delivery of such notice or request, the Trustee may require that an opinion of Bond Counsel be furnished to the effect that such amendment, change or modification complies with the provisions of this Indenture and the Consent and will not adversely affect the excludability of interest on the Bonds from gross income for federal income tax purposes. Such notice shall briefly set forth the nature of such proposed amendment, change or modification and shall state that copies of the instrument embodying the same are on file at the Designated Payment Office of the Trustee for inspection by all Owners.

Section 10.3 Actions of Trustee Requiring Owner Consent Pursuant to the Intercreditor Agreement, the Lease Agreement or the Guaranty. In the event that the Intercreditor Agreement, the Lease Agreement or the Guaranty requires certain actions by the Trustee at the direction of a designated portion of the Owners of the applicable Bonds, the Trustee hereby agrees as follows:

(a) if the Company requests consent of the Trustee to be provided at the direction of a designated portion of the Owners of the applicable Bonds, the Trustee shall, upon notice of the same from the Company, and upon being satisfactorily indemnified as provided in Section 8.2(n) hereof, cause notice of such requested consent or action to be given in the same manner as provided by Section 9.3 hereof with respect to Supplemental Indentures; provided, that prior to the delivery of such notice or request, the Trustee shall be furnished with an opinion of Bond Counsel to the effect that such consent or action complies with the provisions of this Indenture and the Consent, will not adversely affect the excludability of the interest on the Bonds from gross income for federal income tax purposes and will not materially adversely affect the rights of the Owners. Such notice shall briefly set forth the nature of such requested consent or action and shall state that any copies of such request from the Company are on file at the Designated Payment Office of the Trustee for inspection by all Owners; and/or

(b) upon direction from Owners of not less than the required percentage in aggregate principal amount of the Outstanding Bonds, the Trustee shall, upon being satisfactorily indemnified and subject to the Trustee’s rights, protections and immunities in Article VIII hereof, take any such directed action in accordance with the Intercreditor Agreement, the Lease Agreement or the Guaranty; provided, that prior to the delivery of such notice or request, the Trustee shall be furnished with an opinion of Bond Counsel to the effect that such consent or action complies with the provisions of this Indenture and the Consent and will not adversely affect the excludability of the interest on the Bonds from gross income for federal income tax purposes.

ARTICLE XI

DEFEASANCE

Section 11.1 Discharge of Indenture. If 100% of the principal of and interest on and Redemption Price due, or to become due, on all the Bonds, fees and expenses due to the Trustee and all other amounts payable hereunder have been paid, or if provision shall have been made for the payment thereof in accordance with Section 11.2 hereof and the opinion of Bond Counsel required by Section 11.3 hereof has been delivered, then, subject to the rights, protections, immunities and indemnities of the Trustee under Article VIII hereof and under the Lease

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Agreement, (a) the right, title and interest of the Trustee in and to the Trust Estate shall terminate and be discharged (referred to herein as the “discharge” of this Indenture); (b) the Trustee shall transfer and convey to, or to the order of the Authority, all property that was part of the Trust Estate, including but not limited to any moneys held in any Fund or Account hereunder, except any Defeasance Escrow Account created pursuant to Section 11.2 hereof (which Defeasance Escrow Account shall continue to be held in accordance with the agreement governing the administration thereof, and, consistent with Section 4.9 hereof, subject to any applicable abandoned property law, the Trustee shall pay the Company, upon request any money held by it for the payment of the principal of or interest on the Redemption Price that remains unclaimed for three years, and, thereafter, Owners entitled to the money must look to the Company for payment); and (c) the Trustee shall execute and deliver to the Authority any instrument reasonably requested by the Authority to evidence such discharge, transfer and conveyance.

Section 11.2 Defeasance of Bonds.

(a) All or any portion of the Outstanding Bonds shall be deemed to have been paid (referred to herein as “defeased”) prior to their maturity or redemption if:

(i) the defeased Bonds are to be redeemed prior to their maturity, the Authority has irrevocably instructed the Trustee to give notice of redemption of such Bonds in accordance with this Indenture;

(ii) there has been irrevocably deposited in trust in a Defeasance Escrow Account established at the direction of the Authority either moneys in an amount which shall be sufficient, or Defeasance Securities, to pay the principal of and the interest on which when due, and without any reinvestment thereof, which will provide moneys which, together with the moneys, if any, deposited into or held in the Defeasance Escrow Account, shall be sufficient to pay when due the principal of and interest on or Redemption Price, as applicable, due and to become due on the defeased Bonds on and prior to the redemption date or maturity date thereof, as the case may be;

(iii) a verification agent, acceptable to the Bond Counsel, has delivered a verification report addressed to the Authority and the Trustee verifying the deposit described in paragraph (ii) of this subsection; and

(iv) the opinion of Bond Counsel required by Section 11.3 hereof has been delivered.

(b) The Defeasance Securities and moneys deposited in a Defeasance Escrow Account pursuant to this Section 11.2 and the principal and interest payments on such Defeasance Securities shall not be withdrawn or used for any purpose other than, and shall be held in trust solely for, the payment of the principal of and interest on and Redemption Price of the defeased Bonds; provided, however, that (i) any moneys received from principal and interest payments on such Defeasance Securities that are not required to pay the principal of and interest on or Redemption Price of the defeased Bonds on the date of receipt shall, to the extent practicable, be reinvested in Defeasance Securities in accordance with the agreement governing the administration thereof maturing at the times and in amounts sufficient to pay when due the

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principal of and interest on and Redemption Price to become due on the defeased Bonds on or prior to the redemption date or maturity date thereof, as the case may be; and (ii) any moneys or Defeasance Securities may be withdrawn from a Defeasance Escrow Account if (A) the moneys and Defeasance Securities that are on deposit in the Defeasance Escrow Account, including any moneys or Defeasance Securities that are substituted for the moneys or Defeasance Securities that are withdrawn from the Defeasance Escrow Account, satisfy the conditions stated in subsection (a)(ii) of this Section and (B) a verification report and opinion of Bond Counsel are delivered that comply with subsections (a)(iii) and (a)(iv) of this Section.

(c) Any Bonds that are defeased shall no longer be secured by or entitled to any right, title or interest in or to the Trust Estate, and the principal of and interest on and Redemption Price thereof shall be paid solely from the Defeasance Securities and money held in the Defeasance Escrow Account.

Section 11.3 Opinion of Bond Counsel. Prior to any discharge of this Indenture pursuant to Section 11.1 hereof or the defeasance of any Bonds pursuant to Section 11.2 hereof, Bond Counsel must have delivered a written opinion to the Authority and the Trustee to the effect that all requirements of this Indenture for such discharge or defeasance have been complied with and that such discharge or defeasance will not adversely affect the tax-exempt status of interest on any series of Bonds where the interest on such Bonds was excludable from gross income for federal income tax purposes on the original date of issuance of such Bonds.

Section 11.4 Defeasance of Less than all Bonds. If less than all of the Bonds, any particular maturity or any Bonds with a particular interest rate within a maturity are defeased, the Trustee shall institute a system to preserve the identity of the individual Bonds or portions thereof that are defeased, regardless of changes in Bond numbers attributable to transfers and exchanges of Bonds.

ARTICLE XII

ADDITIONAL BONDS

Section 12.1 Authorization for Additional Bonds. Subject to the restrictions set forth in this Article XII, Section 4.01 of the Collateral Agency Agreement and upon request by the Company, the Authority may issue Additional Bonds, which shall be ratably and equally secured by the Trust Estate, upon execution of a Supplemental Indenture without consent of the Owners of the Bonds pursuant to Section 9.1 hereof. Except to the extent inconsistent with the express terms of the Additional Bonds issued and the related Supplemental Indenture executed pursuant to this Article XII, all of the provisions, terms, covenants and conditions of this Indenture shall be applicable to any Additional Bonds issued hereunder.

Section 12.2 Additional Bonds.

(a) The Authority may issue Additional Bonds in accordance with Section 4.01 of the Collateral Agency Agreement.

(b) All Additional Bonds must be issued on the same terms and conditions then applicable to the then Outstanding Bonds, unless otherwise approved by the Authority; and the - 50 -

Company, except that the interest rate on such Additional Bonds and the amortization applicable to any such Additional Bonds would be subject to then-current market conditions and on terms acceptable to the Company.

(c) To the extent that any or all of the Series 2017 Bonds (or any Additional Bonds) are outstanding at the time the Additional Bonds are proposed to be incurred, the additional financing documents entered into in connection therewith (i) shall not prohibit the Company from incurring new indebtedness to refinance such Bonds (at least to the extent permitted hereunder and under the Lease Agreement and the Collateral Agency Agreement) and (ii) shall provide that all principal and interest payment dates with respect to such Additional Bonds will be the same principal and interest payment dates as for the Bonds to remain Outstanding through maturity of such Additional Bonds.

(d) Prior to the issuance of any Additional Bonds, the Company must deliver to the Trustee and the Collateral Agent the following:

(i) a certificate of the Company, signed by an Authorized Company Representative, dated as of the date of issuance of such proposed Additional Bonds stating that no Event of Default has occurred and is continuing or will result from the issuance of such Additional Bonds; and

(ii) executed counterparts of all financing documents related to the Additional Bonds including, without limitation, (A) a certified copy of the executed counterpart of any amendments to the Lease Agreement or the other Bond Document necessary for such issuance of Additional Bonds, and (B) an original executed counterpart of the Supplemental Indenture under which the Additional Bonds have been issued.

ARTICLE XIII

MISCELLANEOUS

Section 13.1 Table of Contents, Titles and Headings. The table of contents, titles and headings of the Articles and Sections of this Indenture have been inserted for convenience of reference only, are not to be considered a part hereof, shall not in any way modify or restrict any of the terms or provisions hereof and shall never be considered or given any effect in construing this Indenture or any provision hereof or in ascertaining intent, if any question of intent should arise.

Section 13.2 Interpretation and Construction. This Indenture and all terms and provisions hereof shall be liberally construed to effectuate the purposes set forth herein to sustain the validity of this Indenture. For purposes of this Indenture, except as otherwise expressly provided or unless the context otherwise requires:

(a) All references in this Indenture to designated “Articles,” “Sections,” “subsections,” “paragraphs,” “clauses” and other subdivisions are to the designated Articles, Sections, subsections, paragraphs, clauses and other subdivisions of this Indenture. The words “herein,” “hereof,” “hereto,” “hereby,” “hereunder” and other words of similar import refer to

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this Indenture as a whole and not to any particular Article, Section or other subdivision. If this Indenture has been amended, then such words shall refer to this Indenture as so amended.

(b) The terms defined in Article I hereof have the meanings assigned to them in that Article or in the applicable documents referenced thereby and include the plural as well as the singular.

(d) A reference to a Person shall be construed to include its successors and permitted assigns (subject to any restrictions on assignment set forth herein) and, in the case of any Governmental Authority, any other Governmental Authority that shall have succeeded to any or all functions thereof.

(e) The word “will” shall be construed to have the same meaning and effect as the word “shall”.

(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, including cash, securities, accounts and contract rights.

(g) All accounting terms not otherwise defined herein have the meanings assigned to them in accordance with GAAP for governmental entities similar to the Authority as in effect from time to time.

(h) The term “money” includes any cash, check, deposit, investment security or other form in which any of the foregoing are held hereunder.

(i) In the computation of a period of time from a specified date to a later specified date, the word “from” means “from and including” and each of the words “to” and “until” means “to but excluding.”

(j) All references to any contract or agreement in this Indenture or in Section 1.1 hereof shall include all amendments, supplements and modifications thereto.

(k) This Indenture and all terms and provisions hereof shall be liberally construed to effectuate the purposes set forth herein to sustain the validity of this Indenture.

Section 13.3 Further Assurances and Corrective Instruments. The Authority and the Trustee agree that, so long as this Indenture is in full force and effect, the Authority and the Trustee shall have full power to carry out the acts and agreements provided herein and they will from time to time, execute, acknowledge and deliver, or cause to be executed, acknowledged and delivered, at the Company’s expense and subject to its rights under Article VIII, such supplements hereto and such further instruments as may be reasonably required for correcting any inadequate or incorrect description of the Trust Estate, or for otherwise carrying out the intention or facilitating the performance of this Indenture.

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Section 13.4 Evidence of Signature of Owners and Ownership of Bonds.

(a) Any request, consent or other instrument which this Indenture may require or permit to be signed and executed by the Owners may be in one or more instruments of similar tenor, and shall be signed or executed by such Owners in person or by their attorneys or other representatives appointed in writing, and proof of the execution of any such instrument or of an instrument appointing any such attorney, or the ownership of Bonds, shall be sufficient (except as otherwise herein expressly provided) if made in the following manner, but the Trustee may, nevertheless, in its discretion require further or other proof in cases where it deems the same desirable:

(i) the fact and date of the execution by any Owner or his attorney of such instrument may be proved (A) by the certificate of any officer authorized to take acknowledgments in the jurisdiction in which he purports to act that the person signing such request or other instrument acknowledged to him the execution thereof, or (B) by an affidavit of a witness of such execution, duly sworn to before a notary public; and

(ii) the fact of the ownership by any person of Bonds and the amounts, numbers and date of ownership of such Bonds may be proved by the registration records of the Trustee.

(b) Any request or consent of the Owner of any Bond shall bind all transferees of such Bond in respect of anything done or suffered to be done by the Authority or the Trustee in accordance therewith.

Section 13.5 Authorization of Officers and Employees. The officers and employees of the Authority are hereby authorized and directed to take all actions that are necessary, convenient and in conformity with the Constitution and other laws of the State, federal law and this Indenture, to carry out the provisions of this Indenture.

Section 13.6 Parties Interested Herein. This Indenture shall be for the sole and exclusive benefit of the Authority and the Owners and their respective successors and assigns. Nothing in this Indenture expressed or implied is intended or shall be construed to confer upon, or to give to, any person other than the Authority or the Owners, any right, remedy or claim under or by reason of this Indenture or any terms hereof. To the extent that the Indenture confers upon or gives or grants to the Company or the Collateral Agent any right, remedy or claim under or by reason of the Indenture, the Company and the Collateral Agent are hereby explicitly recognized as third-party beneficiaries hereunder and they may enforce any such right, remedy or claim conferred, given or granted hereunder.

Section 13.7 Authority and Trustee Representatives. Whenever, under the provisions hereof or of any Supplemental Indenture, the approval of the Authority or the Trustee is required, or the Authority or the Trustee is required to take some action at the request of the other, unless otherwise provided, such approval or such request shall be given for the Authority by an Authority Representative and for the Trustee by a Trustee Representative, and the Authority and the Trustee shall be authorized to act on any such approval or request.

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Section 13.8 Reporting between the Trustee and Collateral Agent. Any reports or notices required to be given hereunder or pursuant to any Supplemental Indenture from the Trustee to the Collateral Agent, shall be deemed delivered to the Collateral Agent without any further action on the part of the Trustee, as long as the Trustee and the Collateral Agent are the same entity.

Section 13.9 Manner of Giving Notices. Unless otherwise expressly provided herein, all notices, directions, certificates or other communications provided for herein or under any Supplemental Indenture shall be in writing and shall be delivered by hand or by overnight courier service, mailed by certified or registered mail or sent by telecopy or email, as follows:

Authority: New Jersey Economic Development Authority 36 West State Street P.O. Box 990 Trenton, New Jersey 08625 Attention: Director, Finance & Bond Portfolio Management

Trustee: U.S. Bank National Association Corporate Trust Services 21 South Street, 3rd Floor Morristown, New Jersey 07960

Company: Port Newark Container Terminal L.L.C. 241 Calcutta Street Newark, New Jersey 07114 Attention: Markus Braun

With a copy to: Cleary Gottlieb Steen & Hamilton LLP One Liberty Plaza New York, New York 10006 Attn: Richard Lincer

Any party hereto may change its address or telecopy number for notices and other communications hereunder by notice to the other parties hereto. All notices or other communications required or permitted to be given pursuant to this Indenture shall be in writing and, if given in accordance with this Section, unless otherwise expressly provided herein, shall be deemed to have been duly given or made when delivered by hand or, in the case of notice given by mail, private courier, overnight delivery service, international shipping service or facsimile.

Section 13.10 No Recourse; No Individual Liability. No recourse shall be had for the payment of, or premium if any, or interest on any of the Bonds or for any claim based thereon or upon any obligation, covenant or agreement in this Indenture contained, against any past, present or future officer, director, member, trustee, employee or agent of the Authority or any officer, director, member, trustee, employee or agent or any successor entity, as such, either directly or through the Authority or any successor entity, under any rule of law or equity, statute or constitution or by enforcement by any assessment or penalty or otherwise. The members of the

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Authority, the officers and employees of the Authority, and any other agents of the Authority are not subject to personal liability or accountability by reason of any action authorized by the Act, including without limitation, the issuance of bonds, the failure to issue bonds, the execution of bonds and the making of guarantees. All covenants, stipulations, promises, agreements and obligations of the Authority or the Trustee, as the case may be, contained herein, in any Supplemental Indenture or in the Bonds shall be deemed to be the covenants, stipulations, promises, agreements and obligations of the Authority or the Trustee, as the case may be, and not of any member, director, officer, employee, servant or other agent of the Authority or the Trustee in his or her individual capacity, and no recourse shall be had on account of any such covenant, stipulation, promise, agreement or obligation, or for any claim based thereon or hereunder, against any member, director, officer, employee, servant or other agent of the Authority or the Trustee or any natural person executing this Indenture, any Supplemental Indenture, the Bonds or any related document or instrument.

Section 13.11 Events Occurring on Days that are not Business Days. If the date for making any payment or the last day for the performance of any act or the exercising of any right under this Indenture or the Bonds is a day that is not a Business Day, such payment may be made, such act may be performed or such right may be exercised on the next succeeding Business Day, with the same force and effect as if done on the nominal date provided in such instrument.

Section 13.12 Severability. Whenever possible, each provision of this Indenture shall be interpreted in such a manner as to be effective and valid under applicable law, but if any provision of this Indenture, other than the grant of the Trust Estate to the Trustee, shall be prohibited by or invalid under applicable law, such provision shall be ineffective only to the extent of such prohibition or invalidity, without invalidating the remainder of such provisions or the remaining provisions of this Indenture.

Section 13.13 Applicable Law. The laws of the State shall be applied in the interpretation, execution and enforcement of this Indenture. Exclusive jurisdiction and venue for any actions brought hereunder shall be brought in the federal and state courts located in Trenton, New Jersey.

Section 13.14 Execution in Counterparts. This Indenture may be executed in any number of counterparts, all of which taken together shall constitute one and the same instrument and any of the parties hereto may execute this Indenture by signing any such counterpart.

Section 13.15 Effectiveness Date. This Indenture shall be deemed to be executed by the parties hereto and effective on the Date of Issuance.

Section 13.16 Exculpation of Authority. In the exercise of the powers of the Authority and its members, officers, employees or agents under this Indenture and the Lease Agreement, and including without limitation the application of moneys, the investment of funds, or the assignment or other disposition of the Trust Estate in the Event of Default by the Company, neither the Authority nor its members, officers, employees or agents shall be accountable, except in the case of acts or omissions of gross negligence or willful misconduct of such parties, to the Owners of the Bonds, the Trustee or the Company for any action taken or omitted by it or them

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in good faith and believed by it or them to be authorized or within the discretion or rights or powers conferred thereto. The Authority and its members, officers, employees and agents shall be protected in acting upon any paper or document believed by it or them to be genuine, they may conclusively rely upon the advice of counsel and they may (but need not) require further evidence of any fact or matter before taking any action.

Section 13.17 Authority and Trustee Entitled to Indemnity.

(a) Pursuant to and as provided in Section 7.10 of the Lease Agreement, the Company shall indemnify the Authority, any Person who “controls” the Authority within the meaning of Section 15 of the Securities Act of 1933, as amended, or Section 20 of the Securities Exchange Act of 1934, as amended, the Trustee and any member, principal, director, officer, official, agent, attorney and employee of the Authority, the Trustee or the State (herein the “Indemnified Parties”).

(b) To secure the indemnification payment obligation of the Company, the Indemnified Parties shall have a lien prior to the lien, if any, created by this Indenture for the benefit of the Owners of the Bonds on all money or property held or collected by the Trustee other than money held for the payment of the principal, purchase price or Redemption Price of any Bonds, and interest on any Bonds previously matured or called for redemption in accordance with this Indenture, which shall be held for the benefit of the Owners of such Bonds only. Such obligations shall survive the satisfaction and discharge of this Indenture and resignation and removal of the Trustee.

(c) When an Indemnified Party incurs expenses or renders services after an Event of Default, the expenses and compensation for the services are intended to constitute expenses of administration under any applicable bankruptcy law.

Section 13.18 Authority Not Responsible for Insurance, Taxes, Execution of Indenture, or Application of Moneys Applied in Accordance with this Indenture.

(a) The Authority is not under any obligation to effect or maintain insurance or to renew any policies of insurance or to inquire as to the sufficiency of any policies of insurance carried by the Company, or to report, or make or file claims or proof of loss for, any loss or damage insured against or which may occur, or to keep itself informed or advised as to the payment of any taxes or assessments, or to require any such payment to be made. The Authority shall have no responsibility in respect of the sufficiency of the security provided by this Indenture. The Authority shall not be under any obligation to see that any duties herein imposed upon any party other than itself, or any covenants herein contained on the part of any party other than itself to be performed, shall be done or performed, and the Authority shall not be under any liability for failure to see that any such duties or covenants are so done or performed

(b) The immunities and exemptions from liability of the Authority hereunder shall extend to its directors, members, attorneys, officers, employees and agents.

Section 13.19 Authority May Rely on Certificates. The Authority shall be protected and shall incur no liability in acting or proceeding, or in not acting or not proceeding, in good faith, in a reasonable manner and in accordance with the terms of this Indenture, upon any resolution, - 56 -

order, notice, request, consent, waiver, certificate, statement. affidavit, requisition, bond or other paper or document which it shall in good faith reasonably believe to be genuine and to have been adopted or signed by the proper board or Person or to have been prepared and furnished pursuant to any of the provisions of the Lease Agreement or this Indenture, or upon the written opinion of any attorney, engineer, accountant or other expert reasonably believed by it to be qualified in relation to the subject matter and otherwise permitted hereunder, and the Authority shall not be under any duty to make any investigation or inquiry as to any statements contained or matters referred to in any such instrument.

Section 13.20 Application of New Jersey Contractual Liability Act. Notwithstanding anything to the contrary contained herein, this Indenture and the Lease Agreement are subject to the limitations of the provisions of the New Jersey Contractual Liability Act, N.J.S.A. 59:13-1 et seq. and the New Jersey Tort Claims Act, N.J.S.A. 59:2-1 et seq. While the New Jersey Contractual Liability Act, N.J.S.A. 59:13-1, et seq. is not applicable by its terms to claims arising under contracts with the Authority, the Trustee hereby agrees that such statute (except N.J.S.A. 59:13-9) shall be applied to all claims arising against the Authority under this Indenture.

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IN WITNESS WHEREOF, the Authority has caused this Indenture to be executed on its behalf by its Director of Closing Services, and the Trustee, to evidence its acceptance of the trusts created hereunder, has caused this Indenture to be executed in its name by its duly authorized officers, all as of the Date of Issuance.

NEW JERSEY ECONOMIC DEVELOPMENT AUTHORITY

By: Arlene M. Clark Director of Closing Services

U.S. BANK NATIONAL ASSOCIATION, as Trustee

By: Name: Title:

[Signature page to Indenture of Trust]

EXHIBIT A to the Indenture

FORM OF SERIES 2017 BOND

THE STATE OF NEW JERSEY IS NOT OBLIGATED TO PAY, AND NEITHER THE FULL FAITH AND CREDIT NOR TAXING POWER OF THE STATE OF NEW JERSEY IS PLEDGED TO THE PAYMENT OF, THE PRINCIPAL, OR REDEMPTION PRICE, IF ANY, OF OR INTEREST ON THIS BOND. THIS BOND IS A SPECIAL, LIMITED OBLIGATION OF THE AUTHORITY, PAYABLE SOLELY OUT OF THE REVENUES OR OTHER RECEIPTS, FUNDS OR MONEYS OF THE AUTHORITY PLEDGED UNDER THE INDENTURE AND THE COLLATERAL DOCUMENTS FROM ANY AMOUNTS OTHERWISE AVAILABLE UNDER THE INDENTURE AND THE COLLATERAL DOCUMENTS FOR THE PAYMENT OF THIS BOND. THIS BOND DOES NOT NOW AND SHALL NEVER CONSTITUTE A CHARGE AGAINST THE GENERAL CREDIT OF THE AUTHORITY. THE AUTHORITY HAS NO TAXING POWER.

NEW JERSEY ECONOMIC DEVELOPMENT AUTHORITY SPECIAL FACILITY REVENUE AND REFUNDING BONDS (Port Newark Container Terminal L.L.C. Project), Series 2017

INTEREST RATE MATURITY DATE DATED DATE CUSIP

% ______, 20__ December __, 2017 ______

[R-___]

REGISTERED OWNER:********************CEDE & CO.*************************

PRINCIPAL AMOUNT:**********************************************************

New Jersey Economic Development Authority (the “Authority”), a public body corporate and politic constituting an instrumentality of the State of New Jersey (the “State”), organized and existing under the New Jersey Economic Development Authority Act, constituting Chapter 80 of the Pamphlet Laws of 1974 of the State, approved August 7, 1974, as amended and supplemented (the “Act”), for value received, promises to pay to the registered owner named above, or registered assigns, but solely from the Trust Estate, on the Maturity Date specified above, unless this Bond shall have been previously called for redemption or purchase in lieu of redemption in whole or in part and payment of the redemption price or purchase price, as applicable, shall have been duly made or provided for, the principal sum shown above and to pay (but only out of the Trust Estate) interest thereon at the interest rate shown above, from the most recent Interest Payment Date (as hereinafter defined) to which interest has been paid or duly provided for or from the Dated Date specified above if no interest has been paid, such payments of interest to be made on April 1, 2018 and on each April 1 and October 1 thereafter (each, an “Interest Payment Date”) until the principal, purchase price, or redemption price hereof has been paid or provided for as aforesaid. The principal, purchase price or redemption price of and

Exhibit A-1

interest on this Bond may be paid 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 or private debts.

Interest. The Bonds shall bear interest from their date or from the most recent Interest Payment Date to which interest has been paid or duly provided for, on the basis of a 360-day year comprised of twelve 30-day months, payable on each Interest Payment Date until payment of the principal, purchase price or redemption price thereof is made or provided for, whether at maturity, upon redemption, acceleration or otherwise. Interest on the Bonds shall be payable in arrears on each Interest Payment Date, commencing on the first Interest Payment Date after the Date of Issuance.

The principal, purchase price or redemption price of any Bond shall be paid to the Owner thereof as shown on the registration records of the Trustee upon maturity or prior redemption thereof in accordance with the Indenture and upon presentation and surrender at the Corporate Trust Office of U.S. Bank National Association, 21 South Street, 3rd Floor, Morristown, NJ 07960. The principal, purchase price and the redemption premium, if any, on all Bonds shall be payable by check or draft or by such other method as mutually agreed in writing between the Owner of the Bonds and the Trustee at maturity or upon earlier redemption to the Owners in whose names such Bonds are registered on the bond register maintained by the Trustee at the maturity date or redemption date thereof, upon the presentation and surrender of such Bonds at the Designated Payment Office of the Trustee.

The interest payable on each Bond on any Interest Payment Date shall be paid (i) by check, wire transfer or draft sent on or prior to the appropriate date of payment, by the Trustee to the address of the Owner appearing in the registration books on the Record Date or (ii) by such other method as mutually agreed in writing between the Owner of the Bonds and the Trustee. If any payment of the principal of, redemption price, if any, or interest on, this Bond is due on a day that is not a Business Day, such payment will be made on the immediately succeeding Business Day, and no interest will accrue on the amount of such payment during the intervening period.

The record date for any Interest Payment Date (each, a “Record Date”) shall be the fifteenth (15th) day (whether or not such day is a Business Day) immediately preceding such Interest Payment Date. Any interest not so timely paid shall cease to be payable to the person who is the Owner thereof at the close of business on the Record Date and shall be payable to the person who is the Owner thereof at the close of business on a Special Record Date for the payment of such defaulted interest. Such Special Record Date shall be fixed by the Trustee whenever moneys become available for payment of the defaulted interest, and notice of the Special Record Date shall be given by the Trustee to the Owners of the Bonds, not less than ten (10) days prior to the Special Record Date, by certified or first-class mail to each such Owner as shown on the Trustee’s registration records on a date selected by the Trustee, stating the date of the Special Record Date and the date fixed for the payment of such defaulted interest. Alternative means of payment of interest may be used if mutually agreed to in writing between the Owner of any Bond and the Trustee.

The Act provides that neither the members of the Authority nor any person executing this Bond for the Authority shall be liable personally on this Bond by reason of the issuance hereof. Exhibit A-2

No recourse shall be had for the payment of principal of, redemption price, if any, or interest on the Bonds or for any claim based thereon or upon any indenture, against any past, present or future official, officer or employee of the Authority or any successor corporation, as such, either directly or through the Authority, or any successor corporation, under any rule of law or equity, statute or constitution, or by the enforcement of any assessment or penalty or otherwise; and all such liability of any such official, officer or employee, as such, is hereby expressly waived and released as a condition of and in consideration for the execution of the Indenture and the issuance of this Bond.

This Bond is one of the Authority’s Special Facility Revenue and Refunding Bonds (Port Newark Container Terminal L.L.C. Project), Series 2017 (the “Initial Bonds”), issued in the aggregate principal amount of $[______] pursuant to an Indenture of Trust (the “Indenture”) dated as of December 1, 2017, between the Authority and the Trustee. Reference is made to the Indenture and to the Lease Agreement therein mentioned (the “Agreement”) between the Authority and Port Newark Container Terminal L.L.C. for a statement of the purposes for which the Initial Bonds and Additional Bonds (collectively, the “Bonds”) are or may be issued, and for provisions concerning, inter alia, the application of the proceeds of the Initial Bonds; the Collateral assigned and pledged for the security of the Bonds which may be issued under the Indenture; the issuance of Additional Bonds under the Indenture; and the liens and security interests which may be granted to secure such Additional Bonds on a parity basis; the rights and obligations of the Authority and the Trustee; provisions relating to the rights of the registered owners of the Bonds; and amendments to the Indenture and the Lease Agreement. Executed counterparts of the Indenture and the Lease Agreement are on file at the principal corporate trust office of the Trustee. By acceptance of this Bond, the registered owner hereof consents to all of the terms, conditions and provisions of the Indenture and the Lease Agreement. Reference is made to the Indenture for information concerning the security for the Initial Bonds.

Redemption. The Bonds are subject to redemption and purchase in lieu of redemption as provided in the Indenture.

If the Authority deposits with the Trustee funds sufficient to pay the principal or redemption price of any Bond becoming due at maturity, by call for redemption or otherwise, together with interest accrued to the due date, interest on such Bond will cease to accrue on the due date, and thereafter the registered owners will be restricted to the funds so deposited as provided in the Indenture.

The Authority, pursuant to recommendations promulgated by the Committee on Uniform Security Identification Procedures, has caused CUSIP numbers to be printed on the Bonds and has directed the Trustee to use CUSIP numbers in notices of redemption as a convenience to bondholders. No representation is made as to the accuracy of such numbers, either as printed on the Bonds or as contained in any notice of redemption, and the Authority shall have no liability with respect thereto.

In case a payment Event of Default, as defined in the Indenture, shall have occurred, the principal of all Bonds then Outstanding under the Indenture may become due and payable before their maturity dates.

Exhibit A-3

No recourse shall be had for the payment of the principal, purchase price or redemption price of or interest on this Bond, or for any claim based hereon or on the Indenture or any document or instrument executed and delivered by the Authority in connection therewith, against any member, officer, employee, agent or attorney, past, present or future, of the Authority or of any successor body, as such, either directly or through the Authority or any such successor body, under any constitutional provision, statute or rule of law, or by the enforcement of any assessment or by any legal or equitable proceeding or otherwise, all such liability of such members, officers or employees being released as a condition of and as consideration for the execution of the Indenture and the issuance of this Bond.

Records for the registration and transfer of the Bonds shall be kept by the Trustee which is appointed the registrar for the Bonds. The principal of and interest on and redemption price of any Bond shall be payable only to or upon the order of the Owner or his legal representative (except as otherwise provided in the Indenture with respect to Record Dates and Special Record Dates for the payment of interest). Upon surrender for transfer of any Bond at the Designated Payment Office of the Trustee, duly endorsed for transfer or accompanied by an assignment duly executed by the Owner or his attorney duly authorized in writing, the Trustee shall enter such transfer on the registration records and shall execute and deliver in the name of the transferee or transferees a new fully registered Bond or Bonds of a like maturity, aggregate principal amount and interest rate, bearing a number or numbers not previously assigned.

The Trustee shall not be required to transfer or exchange (i) all or any portion of any Bond during the period beginning at the opening of business fifteen (15) days before the day of the mailing by the Trustee of notice calling any of the Bonds for prior redemption and ending at the close of business on the day of such mailing or (ii) all or any portion of a Bond after the mailing of notice calling such Bond or any portion thereof for prior redemption.

The Registrar is not required to register the transfer or exchange of any Bond during (a) the period between any Regular Record Date and the next succeeding Interest Payment Date or (b) the fifteen (15) days immediately preceding the date of mailing of any notice of redemption or at any time following the mailing of any such notice, if the Bond to be transferred or exchanged has been called for such redemption. The Authority and the Trustee may treat the registered owner of this Bond as the absolute owner hereof for all purposes except as provided in the Indenture with respect to Record Dates and Special Record Dates, whether or not this Bond shall be overdue, and shall not be affected by any notice to the contrary.

This Bond is not valid unless the Trustee’s Certificate of Authentication printed hereon is duly executed.

Exhibit A-4

IN WITNESS WHEREOF, the Authority has caused this Bond to be executed in its name by the facsimile or manual signature of its [Chief Executive Officer] and a facsimile of its corporate seal to be affixed hereon and attested by the facsimile or manual signature of its Assistant Secretary.

[SEAL]

ATTEST: NEW JERSEY ECONOMIC DEVELOPMENT AUTHORITY

By: ______By: ______Assistant Secretary [Chief Executive Officer]

Exhibit A-5

CERTIFICATE OF AUTHENTICATION

This Bond is one of the Bonds described in the within-mentioned Indenture. Attached hereto is the complete text of the opinion of McCarter & English, LLP, Newark, New Jersey, Bond Counsel, dated the date of initial delivery of and payment for, the Initial Bonds, a signed copy of which is on file with the undersigned.

U.S. BANK NATIONAL ASSOCIATION, as Trustee

By: ______Authorized Officer

Exhibit A-6

ASSIGNMENT

For value received ______hereby sells, assigns and transfers unto ______(Tax I.D. No. ______) the within Initial Bond issued by the New Jersey Economic Development Authority, and all rights thereunder, hereby irrevocably appointing ______, Attorney to transfer said Initial Bond on the bond register, with full power of substitution in the premises.

By: ______

Dated: ______

Signature Guaranteed:

Notice: The Assignor’s signature to this Assignment must correspond with the name as it appears upon the face of the within Bond in every particular without alteration or any change whatever.

Exhibit A-7

[THIS PAGE INTENTIONALLY LEFT BLANK] Form of Lease Agreement

NEW JERSEY ECONOMIC DEVELOPMENT AUTHORITY

AND

PORT NEWARK CONTAINER TERMINAL L.L.C.

LEASE AGREEMENT

Dated as of December 1, 2017

The interest of the New Jersey Economic Development Authority in the Company Sublease (as defined herein) and all amounts receivable under this Lease Agreement (except the Payment Rights (as defined herein) of the New Jersey Economic Development Authority, the right of the Authority, at its option, to enforce its Reserved Rights (as defined herein), without limiting the right of the Trustee (as defined herein) with respect thereto and the concurrent right of the Authority to receive any and all notices, reports, surveys, certificates and evidences of performance which the Company may be required to furnish pursuant to the terms of this Lease Agreement) has been assigned to the Trustee under the Indenture of Trust dated as of December 1, 2017 from the New Jersey Economic Development Authority; provided, however that the Authority has not assigned to the Trustee the right to grant or withhold consent pursuant to Sections 7.11 and 7.15 of this Lease Agreement or the additional remedies set forth in Section 10.03 of this Lease Agreement; and provided further that no Property Interests (as defined herein) have been pledged, assigned or granted.

TABLE OF CONTENTS

PAGE

ARTICLE I - DEFINITIONS ...... 5 SECTION 1.01. DEFINED TERMS AND INCORPORATION OF DEFINITIONS BY REFERENCE ...... 5 SECTION 1.02. CONSTRUCTION OF TERMS ...... 11 SECTION 1.02. CONSTRUCTION OF TERMS ...... 11 ARTICLE II – LEASE TERMS ...... 12 SECTION 2.01. LEASED PREMISES ...... 12 SECTION 2.02. TERM OF THIS AGREEMENT ...... 12 ARTICLE III – RENTAL PROVISIONS ...... 14 SECTION 3.01. ASSIGNMENT TO TRUSTEE ...... 14 SECTION 3.02. RENTAL PAYMENTS ...... 14 SECTION 3.03. ADDITIONAL AMOUNTS PAYABLE BY THE COMPANY ...... 15 SECTION 3.04. PAYMENTS UNCONDITIONAL; NO DEFENSE OR SET-OFF ...... 16 SECTION 3.05. LIMITATION OF LIABILITY ...... 16 SECTION 3.06. NATURE OF OBLIGATIONS HEREUNDER ...... 16 ARTICLE IV - PREPAYMENT ...... 18 SECTION 4.01. PREPAYMENT ...... 18 SECTION 4.02. NOTICE OF PREPAYMENT ...... 18 SECTION 4.03. REDEMPTION OR REPURCHASE OF BONDS WITH ADVANCE RENTAL PAYMENTS ...... 18 ARTICLE V – COMPLETION OF THE PROJECT; APPLICATION OF BOND PROCEEDS ...... 19 SECTION 5.01. CONSTRUCTION OF 2017 FACILITY AND REFUNDING OF SERIES 2003 BONDS; PAYMENT OF COST OF PROJECT ...... 19 SECTION 5.02. COMPANY REQUIRED TO PAY IF BOND PROCEEDS INSUFFICIENT ...... 19 SECTION 5.03. GOVERNMENTAL APPROVALS...... 20 SECTION 5.04. COMPLETION OF PROJECT ...... 20 SECTION 5.05. AGREEMENT TO ISSUE SERIES 2017 BONDS; APPLICATION OF PROCEEDS OF THE SERIES 2017 BONDS...... 20 SECTION 5.06. AGREEMENT NOT TO CHANGE THE PROJECT...... 20 SECTION 5.07. TITLE TO GANTRY CRANES AND PERSONAL PROPERTY FINANCED WITH PROCEEDS OF SERIES 2017 BONDS...... 20 SECTION 5.08. LIMIT ON PERSONAL PROPERTY FINANCED WITH PROCEEDS OF SERIES 2017 BONDS...... 20 ARTICLE VI - REPRESENTATIONS AND WARRANTIES OF THE COMPANY ...... 22 SECTION 6.01. ORGANIZATION, POWERS, ETC...... 22 SECTION 6.02. EXECUTION OF DOCUMENTS ...... 22 SECTION 6.03. ACCURACY AND COMPLETENESS OF DISCLOSURE ...... 22 SECTION 6.04. LITIGATION ...... 22 SECTION 6.05. NO MATERIAL ADVERSE CHANGE ...... 23 SECTION 6.06. PROJECT AUTHORIZED BY ACT ...... 23 SECTION 6.07. PORT AUTHORITY LEASE ...... 23 SECTION 6.08. TAX STATUS OF SERIES 2017 BONDS ...... 23 SECTION 6.09. NO FEDERAL GUARANTEE ...... 23 SECTION 6.10. NECESSARY APPROVALS ...... 23 SECTION 6.11. INDUCEMENT ...... 24 SECTION 6.12. AFFIRMATIVE ACTION AND PREVAILING WAGE ...... 24

-i- ARTICLE VII - COVENANTS OF THE COMPANY ...... 25 SECTION 7.01. CONDITION OF TERMINAL ...... 25 SECTION 7.02. COMPLIANCE WITH LAWS ...... 26 SECTION 7.03. CERTAIN COVENANTS WITH RESPECT TO THE PORT AUTHORITY LEASE ...... 26 SECTION 7.04. TAX COVENANTS ...... 26 SECTION 7.05. INSPECTION ...... 30 SECTION 7.06. PUBLIC PURPOSE COVENANTS ...... 30 SECTION 7.07. DISPOSITION OF GANTRY CRANES AND PERSONAL PROPERTY FINANCED WITH PROCEEDS OF THE SERIES 2017 BONDS ...... 30 SECTION 7.08. CERTIFICATES OF NO DEFAULT AND OTHER INFORMATION ...... 31 SECTION 7.09. COSTS AND EXPENSES ...... 31 SECTION 7.10. INDEMNIFICATION ...... 31 SECTION 7.11. MAINTAIN EXISTENCE; COVENANT AGAINST SALE AND REMOVAL ...... 33 SECTION 7.12. CERTAIN ACKNOWLEDGMENTS ...... 33 SECTION 7.13. PROHIBITED FACILITIES ...... 33 SECTION 7.14. BOOKS AND RECORDS ...... 34 SECTION 7.15. NO ASSIGNMENT BY THE COMPANY ...... 34 SECTION 7.16. QUALIFIED EXEMPT FACILITY ...... 35 SECTION 7.17. COMPLIANCE WITH AUTHORITY REQUESTS ...... 36 SECTION 7.18. SECONDARY MARKET DISCLOSURE ...... 36 SECTION 7.19. PROJECT OCCUPANT APPLICATIONS ...... 36 SECTION 7.20. PROJECT SIGN ...... 36 SECTION 7.21. ADVANCES BY AUTHORITY ...... 36 SECTION 7.22. FINANCING STATEMENTS ...... 37 SECTION 7.23. CONSTRUCTION ...... 37 SECTION 7.24. AFFIRMATIVE ACTION AND PREVAILING WAGE REGULATIONS; COMPLETION DATE ...... 37 SECTION 7.25. NOTICE UNDER CONSENT ...... 40 SECTION 7.26. REPRESENTATION LETTER ...... 40 SECTION 7.27. RELOCATION OF THE FACILITY ...... 40 SECTION 7.28. NO UNTRUE STATEMENTS ...... 40 SECTION 7.29. FIDUCIARY INDEMNITY ...... 40 SECTION 7.30. COMPANY’S IRREVOCABLE WAIVER WITH RESPECT TO DEPRECIATION AND INVESTMENT TAX CREDIT ...... 41 SECTION 7.31. NATIONALLY RECOGNIZED RATING AGENCIES ...... 41 SECTION 7.32. TAXES ...... 41 ARTICLE VIII - REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE AUTHORITY ...... 42 SECTION 8.01. ORGANIZATION, POWERS, ETC ...... 42 SECTION 8.02. APPROVAL OF BOND ISSUANCE, ETC...... 42 SECTION 8.03. NO ASSIGNMENT BY THE AUTHORITY ...... 43 SECTION 8.04. FINDINGS AND DETERMINATIONS ...... 44 SECTION 8.05. TAX-EXEMPTION COVENANT ...... 44 SECTION 8.06. RIGHT OR RESPONSIBILITY FOR LEASED PREMISES ...... 45 SECTION 8.07. LIMITATION ON INTERESTS, RIGHTS AND REMEDIES ...... 45 ARTICLE IX - INSURANCE REQUIREMENTS, DAMAGE, DESTRUCTION, CONDEMNATION AND OTHER PAYMENTS ...... 46 SECTION 9.01. PROPERTY INSURANCE REQUIRED ...... 46 SECTION 9.02. LIABILITY COVERAGES REQUIRED...... 46 SECTION 9.03. GENERAL INSURANCE PROVISIONS ...... 46 SECTION 9.04. DAMAGE, DESTRUCTION OR CONDEMNATION ...... 47 ARTICLE X - DEFAULTS AND REMEDIES ...... 49 SECTION 10.01. EVENTS OF DEFAULT ...... 49 SECTION 10.02. REMEDIES ...... 50

-ii- SECTION 10.03. ADDITIONAL AUTHORITY REMEDIES ON DEFAULT ...... 51 SECTION 10.04. SERVICE OF PROCESS ...... 52 SECTION 10.05. NO REMEDY EXCLUSIVE ...... 52 SECTION 10.06. AGREEMENT TO PAY ATTORNEYS’ FEES AND EXPENSES ...... 5 2 SECTION 10.07. NO WAIVER IMPLIED ...... 52 SECTION 10.08. DEFAULT BY AUTHORITY - LIMITED LIABILITY ...... 52 SECTION 10.09. NO OBLIGATION OR RIGHT TO RE-LET ...... 53 SECTION 10.10. NO RIGHT TO CURE DEFAULT ...... 54 ARTICLE XI - MISCELLANEOUS ...... 55 SECTION 11.01. NOTICES ...... 55 SECTION 11.02. SURVIVAL OF COVENANTS - CONCERNING SUCCESSORS AND ASSIGNS ...... 56 SECTION 11.03. GOVERNING LAW ...... 56 SECTION 11.04. MODIFICATIONS IN WRITING ...... 56 SECTION 11.05. CAPTIONS ...... 56 SECTION 11.06. SEVERABILITY ...... 56 SECTION 11.07. PRIOR AGREEMENTS SUPERSEDED ...... 56 SECTION 11.08. COUNTERPARTS ...... 56 SECTION 11.09. SURVIVAL OF AUTHORITY RESERVED RIGHTS ...... 56 SECTION 11.10. AUTHORIZED COMPANY REPRESENTATIVE ...... 56 SECTION 11.11. INTENTION OF PARTIES ...... 57 SECTION 11.12. COMPANY TO PERFORM CERTAIN COVENANTS UNDER INDENTURE ...... 57 SECTION 11.13. AMENDMENTS TO LAW ...... 57 SECTION 11.14. RIGHT TO CURE DEFAULTS UNDER INDENTURE ...... 57 SECTION 11.15. NO MERGER OR WASHOUT OF THIS AGREEMENT ...... 57 SECTION 11.16. APPLICATION OF NEW JERSEY CONTRACTUAL LIABILITY ACT ...... 58 SECTION 11.17. NO OBLIGATION TO ACT ...... 58 SECTION 11.18. THIRD-PARTY BENEFICIARY; NO IMPOSITION OF LIABILITY ...... 58 SCHEDULE A ...... 1

EXHIBIT A – IRREVOCABLE ELECTION ...... 1

EXHIBIT B – TAX COMPLETION CERTIFICATE ...... 1

EXHIBIT C – ANNUAL COMPLIANCE CERTIFICATE AS TO TAX COVENANTS ...... 1

-iii-

LEASE AGREEMENT

THIS LEASE AGREEMENT, made as of December 1, 2017 (the “Agreement”) between NEW JERSEY ECONOMIC DEVELOPMENT AUTHORITY (the “Authority”), a public body corporate and politic duly organized and existing under the laws of the State of New Jersey and PORT NEWARK CONTAINER TERMINAL L.L.C. (the “Company”), a limited liability company duly organized and existing under the laws of the State of Delaware,

W I T N E S S E T H:

WHEREAS, the New Jersey Economic Development Authority Act, constituting Chapter 80 of the Pamphlet Laws of 1974 of the State of New Jersey, approved August 7, 1974, as amended and supplemented prior to the date hereof (the “Act”), declares that the Legislature has determined that Department of Commerce and Economic Development statistics of recent years indicate a continuing decline in manufacturing employment within the State of New Jersey (the “State”) which is a contributing factor to the drastic unemployment existing within the State, which far exceeds the national average, thus adversely affecting the economy of the State and the prosperity, safety, health and general welfare of its inhabitants and their standard of living; and that the availability of financial assistance and suitable facilities are important inducements to new and varied employment promoting enterprises to locate in the State, and to existing enterprises to remain and expand in the State; and

WHEREAS, the Authority was created to aid in remedying the aforesaid conditions and further to implement the purposes of the Act, and the Legislature has determined and declared as a matter of express legislative determination that the authority and powers conferred upon the Authority under the Act and the expenditure of moneys pursuant thereto constitutes a serving of a valid public purpose and that the enactment of the provisions set forth in the Act is in the public interest and for the public benefit and good; and

WHEREAS, the Authority, to accomplish the purposes of the Act, is empowered to extend credit or make loans to any person for the planning, designing, acquiring, constructing, reconstructing, improving, equipping and furnishing of a project for which credits or loans may be secured by loan agreements, security agreements, mortgages, leases, contracts and any other instruments, upon such terms and conditions as the Authority shall deem reasonable, and to require the inclusion in any loan agreement, security agreement, mortgage, lease, contract, and any other instrument, such provisions for the construction, use, operation and maintenance and financing of a project as the Authority may deem necessary or desirable and to enter into contracts with respect to the planning, designing, financing, constructing, reconstructing, improving, equipping, furnishing, operating and maintaining of a project, for such consideration and upon such terms and conditions as the Authority may determine to be reasonable; and

WHEREAS, the Company has determined to finance a project (the “Project”) consisting of: (i) refunding the outstanding $125,000,000 New Jersey Economic Development Authority Special Facility Revenue Bonds (Port Newark Container Terminal LLC Project) Series 2003, consisting of the $62,500,000 Series 2003A and $62,500,000 Series 2003B (collectively, the “Series 2003 Bonds”); (ii) financing a portion of the costs of expansion, renovation, construction and equipping of the Port Newark Container Terminal at Port Newark, which is bordered on the east by Newark Bay; on the south by the Elizabeth Channel; on the west by Corbin Street; on the north by a series of streets beginning on Marsh Street east to Coastwise Street, south on Coastwise Street to Tyler Street, east on Tyler Street to Export Street, south on Export Street to Calcutta Street, east on Calcutta, south from Calcutta south to Starboard Street and east on Starboard Street to Newark Bay, in the City of Newark, County of Essex, New Jersey (the “Terminal”), including (a) construction and installation of new truck gate facilities and equipment, (b) acquisition and installation of new customs and security technology, (c) construction and installation of new comfort and customer service stations for truckers, (d) construction and installation of new back-up power generation facilities, (e) demolition of two existing warehouses, (f) expansion of the Terminal yard by 46 acres and renovation of approximately 34 acres of the Terminal yard, (g) expansion and improvements to the yard electrical and lighting systems, (h) expansion and improvements to the existing wharf and berths, (i) acquisition and installation of new gantry cranes and straddle carriers, (j) construction and equipping an offsite depot, and (k) various paving and improvements to existing facilities (collectively, the “2017 Facility”); (iii) paying certain costs incurred in connection with the issuance of the Series 2017 Bonds (as hereinafter defined); and (iv) funding a deposit to a debt service reserve fund securing the payment of principal and interest on the Series 2017 Bonds; and

WHEREAS, the proceeds of the Series 2003 Bonds were used to finance: (i) the costs of the renovation, construction and equipping of the Terminal consisting of (a) the upgrading of the waterside crane beam, extension of the landside crane beam, and installation of new crane rails; (b) the removal, repair and/or upgrading of the existing pavement and the construction of new heavy duty pavement; (c) the construction of a new entry complex; (d) the construction or renovation of administration buildings and other ancillary buildings; (e) the removal or demolition of buildings and other structures not required by the Company; (f) the strengthening of berths; (g) the dredging of berths; (h) the upgrading of the container yard utilities, reefer racks and conduits; (i) the installation of security systems for the entire Terminal; (j) the purchase and installation of additional piling; (k) the construction of new substations for the new high voltage system; (l) the installation of rail switches and removal and replacement of railroad tracks and ties; (m) the installation of traffic improvements; and (n) improvements to the Company’s rail yard (the “2003 Facility” and, together with the 2017 Facility, the “Facility”); (ii) paying interest accruing on the Series 2003 Bonds during construction of the 2003 Facility; and (iii) paying a portion of the costs incurred in connection with issuing the Series 2003 Bonds; and

WHEREAS, the 2017 Facility is to be located on the Leased Premises (as defined herein) located at the Terminal. Such Leased Premises (i) are subject to the terms of an Agreement of Lease dated October 22, 1947 (as amended and supplemented, the “Basic Lease”), between the City of Newark, New Jersey and the Port Authority of New York and New Jersey (the “Port Authority”) and (ii) have been subleased by the Port Authority to the Company pursuant the Amended and Restated Agreement of Lease (Lease No. L-PN-264) dated as of June 14, 2011, (as amended and supplemented, the “Port Authority Lease”); and

-2-

WHEREAS, the Company desires to sub-sublease the Leased Premises to the Authority pursuant to this Agreement (the “Authority Sublease”); and

WHEREAS, the Authority desires to sub-sub-sublease the Leased Premises to the Company pursuant to this Agreement (the “Company Sublease”); and

WHEREAS, in furtherance of the purposes of the Act and as an inducement to the Company to finance the Project, the Authority has duly accepted the Application (as hereinafter defined) of the Company for assistance in the financing of, among other things, the Project by preliminary resolution duly adopted on October 12, 2017; and

WHEREAS, concurrently with the execution and delivery of this Agreement, the Authority is issuing the Series 2017 Bonds pursuant to an Indenture of Trust to be dated as of the date hereof and to be executed at the time of issuance of the Series 2017 Bonds (the “Indenture”) between the Authority and U.S. Bank National Association, as Trustee (the “Trustee”); and

WHEREAS, contemporaneously with the issuance of the Series 2017 Bonds, the Authority will assign its rights under the Company Sublease to the Trustee (except for the Reserved Rights as hereinafter provided and the Payment Rights, without limiting the right of the Trustee with respect thereto); provided, however that the Authority has not assigned to the Trustee the right to grant or withhold consent pursuant to Sections 7.11 and 7.15 hereof or the additional remedies set forth in Section 10.03 hereof; and provided further that no Property Interests have been pledged, assigned or granted; and

WHEREAS, the Bonds shall be special, limited obligations of the Authority, payable solely from the rent, revenues or other receipts, funds or moneys to be derived by the Authority under this Agreement, from the unexpended proceeds of the Bonds, from the earnings on all of the amounts held by the Trustee under the Indenture (except the Series 2017 Rebate Fund), and from any amounts received by the Trustee under the Guaranty; and

WHEREAS, the execution and delivery of this Agreement have been duly authorized by the Authority and the Company and all conditions, acts and things necessary and required by the Constitution and statutes of the State or otherwise, to exist, to have happened, or to have been

-3- performed precedent to and in the execution and delivery of this Agreement and in the issuance of the Series 2017 Bonds authorized in the Indenture, do exist, have happened and have been performed in regular form, time and manner.

NOW, THEREFORE, for and in consideration of the premises and of the mutual representations, covenants and agreements herein set forth, the Authority and the Company, each binding itself, its successors and assigns, do mutually promise, covenant and agree as follows provided that in the performance of the agreements of the Authority herein contained, any obligation it may incur for the payment of money shall not be an obligation, debt or liability of the State or any political subdivision thereof and neither the State nor any such political subdivision shall be liable on any obligation so incurred, but any such obligation shall be payable solely out of the rents, revenues or other receipts, funds or moneys to be derived by the Authority under this Agreement, from the unexpended proceeds of the Bonds and from the earnings on all amounts held by the Trustee under the Indenture (except the Series 2017 Rebate Fund), and from any amounts received by the Trustee under the Guaranty:

-4-

ARTICLE I

DEFINITIONS

Section 1.01. Defined Terms and Incorporation of Definitions by Reference

(a) Certain terms used in this Agreement are hereinafter defined in this Section 1.01. When used herein, such terms shall have the meanings given to them by the language employed in this Article I defining such terms, unless the context clearly indicates otherwise. As used in this Agreement, unless the context clearly requires otherwise, all capitalized terms used herein and not defined herein shall have the meanings assigned to such terms in the Indenture.

(b) The following terms shall have the meanings set forth in the Recitals hereto:

Act Indenture Administration Expense Guaranty Port Authority Agreement Port Authority Lease Authority Project Authority Sublease Series 2003 Bonds Bank Series 2017 Bonds Basic Lease State Bond Resolution Terminal Company Trustee Company Sublease 2003 Facility Facility 2017 Facility Guaranty

“Administration Expenses” means the reasonable expenses incurred with respect to this Agreement, the Indenture and any transaction or event contemplated by this Agreement or the Indenture, including, without limitation, the compensation and reimbursement of the reasonable expenses and advances (including reasonable counsel fees) payable to the Authority, the Trustee, the Port Authority, the Paying Agent, any Co-Paying Agent and the Registrar.

-5-

“Application” means, collectively, the Company’s Bond Application for Financial Assistance and Refunding Bond Application submitted to the Authority, as amended.

“Bonds” means the Series 2017 Bonds and any Additional Bonds.

“Bond Documents” means the Indenture, this Agreement, the Guaranty and the Administration Expense Guaranty.

“Business Day” means any day that is not a Saturday, a Sunday or day on which commercial banks in the State of New York or the State of New Jersey are authorized or required by law, regulation or executive order to be closed.

“Change Order” shall have the meaning ascribed to such term in Section 5.01(c) hereof.

“Code” means the Internal Revenue Code of 1986, as amended from time to time, and any successor legislation.

“Collateral Agency Agreement” means that certain Collateral Agency Agreement, dated as of December 1, 2017, by and among the Collateral Agent, the Trustee, U.S. Bank National Association as Securities Intermediary, the Line Lender and the Company as amended or supplemented from time to time.

-6-

“Company Completion Certificate” shall have the meaning ascribed to such term in Section 7.24(e) of this Agreement.

“Company Rent” means all amounts due under Sections 3.02 and 3.03 hereof.

“Completion Date” shall have the meaning ascribed to such term in Section 7.24 hereof.

“Consent” means the Consent to Subleases Agreement dated as of the date hereof entered into by and among the Port Authority, the Trustee, the Authority and the Company.

“Construction Period” means the period between the beginning of construction or the date on which the Series 2017 Bonds are first delivered to the purchaser thereof, whichever is earlier, and the Completion Date.

“Construction Fund” means the “Construction Fund” established under Section 5.01 of the Collateral Agency Agreement.

“Contractor” means the principal or general contractor or contractors engaged by the Company in the performance of a Construction Contract.

“Contractor’s Certificate and Agreement” means an instrument executed by a Contractor substantially in the form identified in the final sentence of this definition or otherwise in form and substance acceptable to the Authority, wherein such Contractor agrees to undertake or perform such obligations and certifies as to such matters as the Authority shall reasonably require, including, without limitation, that, for purposes of the Prevailing Wage Provision, all workers engaged in the performance of Construction Contracts shall be paid a wage rate not less than the Prevailing Wage Rate and that all Construction Contracts will so provide and that, for purposes of the Affirmative Action Program, the Contractor will make every effort to hire or cause to be hired minority workers so as to meet the minority employment goals of the Affirmative Action Program and that all Construction Contracts will so provide. An acceptable form of such Contractor’s Certificate and Agreement can be found at the Authority’s internet

-7- web page: www.njeda.com/affirmativeaction; such form can also be obtained by sending a request to: [email protected].

“Contractor’s Completion Certificate” means the certificate or certificates executed by the Contractor and any Subcontractors, upon substantial completion of construction of the 2017 Facility, if any, substantially in the form identified in the final sentence of this definition or otherwise in form and substance acceptable to the Authority, wherein the Contractor certifies as to such matters as the Authority shall reasonably require, including, without limitation, that the Contractor has made every effort to satisfy the minority employment goals established in the Affirmative Action Program and that the Contractor has submitted all certificates, reports and records required by the Authority as set forth herein. An acceptable form of such Contractor’s Completion Certificate can be found at the Authority's internet web page: www.njeda.com/affirmativeaction; such form can also be obtained by sending a request to: [email protected].

“ERISA” means the Employment Retirement Income Security Act of 1974, as amended from time to time, and all rules and regulations from time to time promulgated thereunder.

“Event of Default” shall have the meaning ascribed to such term in Section 10.01 hereof.

“Final Approval Date” means November 28, 2017.

“Financial Parties” means collectively each Person who shall be a Bondholder (by the purchase or transfer and acceptance of any Bond), the Trustee (by the acceptance of the rights and duties under the Trust Indenture) and the Authority.

“Financing Transaction” means this Agreement and the financing transaction of which it is a part.

“Fiscal Year” means the Company’s fiscal year, which currently begins on January 1 and ends on December 31 of each calendar year.

“Gantry Cranes” means those certain gantry cranes included in the 2017 Facility, which are not or have not become a part of the premises under the Port Authority Lease.

“Indemnified Party” shall have the meaning ascribed to such term in Section 7.10 hereof.

“Leased Premises” means those certain premises more particularly described in Schedule A attached hereto (as the same may be amended or modified from time to time), together with all structures, buildings, foundations, related facilities, other improvements and fixtures now or at any time made, erected or situated thereon (including, without limitation, the Facility, exclusive of the Gantry Cranes and any and all Personal Property) and all replacements, improvements,

-8- extensions, substitutions, restorations, repairs or additions thereto, which premises are the subject of this Agreement; but excluding, however, any real property or Property Interests therein released pursuant to Section 8.03 or 9.04 hereof and any and all subsurface rights.

“Letter of Instructions” means the letter of instructions attached to the Arbitrage Certificate as Exhibit A provided by Bond Counsel in connection with the issuance of the Series 2017 Bonds as such letter may be amended from time to time as a source of guidance for compliance with the Code.

“Loss Event” shall have the meaning ascribed to such term in Section 9.04 hereof.

“Payment Rights” mean the rights of the Authority to payment under Sections 3.02(c), 3.03, 7.04(b), (d) and (g), 7.09, 7.10, 7.21 and 10.06 hereof.

“Plan” means any employee benefit plan or other plan for the Company’s employees which is covered by Title IV of ERISA.

“Prohibited Person” means

(a) any Person (i) that is in default or in breach, beyond any applicable grace period, of its obligations under any written agreement with the Authority or (ii) that directly or indirectly controls, is controlled by, or is under common control with, a Person that is in default or in breach, beyond any applicable grace period, of its obligations under any written agreement with the Authority, unless such default or breach has been waived in writing by the Authority;

(b) any Person (i) that has been convicted in criminal proceedings for a felony or any crime involving moral turpitude or that is an organized crime figure or is reputed to have substantial business or other affiliations with an organized crime figure or (ii) that directly or indirectly controls, is controlled by, or is under common control with, a Person that has been convicted in criminal proceedings for a felony or any crime involving moral

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turpitude or that is an organized crime figure or is reputed to have substantial business or other affiliations with an organized crime figure; or

(c) any government, or any Person that is directly or indirectly controlled (rather than only regulated) by a government, that is finally determined to be in violation of (including, but not limited to, any participant in an international boycott in violation of) the Export Administration Act of 1979, or its successor, or the regulations issued pursuant thereto, or any government that is, or any Person that, directly or indirectly, is controlled (rather than only regulated) by a government that is subject to regulations or controls thereof; or

(d) any government, or any Person that is directly or indirectly controlled (rather than only regulated) by a government, the effects of the activities of which are regulated or controlled pursuant to regulations issued of the United States Treasury Department or executive orders of the President of the United States of America issued pursuant to the Trading with the Enemy Act of 1917, as amended.

“Properties” means collectively the whole or any portion of the Leased Premises, the Basic Lease, the Port Authority Lease and the premises thereunder.

“Property Interests” means collectively all legal, equitable, security and other interests in and all legal, equitable and other rights and remedies with respect to or against the Properties or any part thereof or any rights created thereby or the letting thereof or thereunder including, without limitation, any pledge of, mortgage on or security interest in the Properties, the right to the appointment of a receiver, any rights of use, occupancy, entry, re-entry, redemption, eviction, ejectment, reversion, possession, regaining or resumption of possession, letting, reletting, subletting, sale, conveyance, transferring, mortgaging, pledging, assigning, or any similar rights or any rights with respect to the use, occupancy, entry, re-entry, redemption, eviction, ejectment, reversion, possession, regaining or resumption of possession, letting, reletting, subletting, sale, conveyance, transferring, mortgaging, pledging or assigning of the Properties or the rentals and other revenues and income derived from or in connection therewith except for the amounts payable by the Company pursuant to this Agreement. The term “redemption” as used in this definition does not refer to the redemption of the Bonds.

“Rebatable Arbitrage” means with respect to any series of Bonds, the amount required to be rebated to the United States pursuant to Section 148(f)(2) of the Code or successor provisions applicable to the Bonds.

“Representation Letter” means the Company’s certificate delivered on the Date of Issuance and delivery of the Series 2017 Bonds to enable Bond Counsel to determine that interest on the Series 2017 Bonds is excluded from gross income for federal income tax purposes.

“Reserved Rights” mean the rights of the Authority to enforce the public purpose covenants set forth in Sections 3.05, 5.01(c), 5.01(d), 5.02, 5.06, 6.03, 6.06, 6.11, 6.12, 7.01,

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7.02, 7.04, 7.05, 7.06, 7.08, 7.09, 7.10, 7.11, 7.14, 7.19, 7.20, 7.24, 7.27, 7.28, 9.02, 9.03, 10.03, 10.08 and 11.16 hereof.

“Series 2017 Debt Service Fund” means the “Series 2017 Debt Service Fund” created and designated as such in the Indenture.

“Series 2017 Rebate Fund” means the “Series 2017 Rebate Fund” created and designated as such in the Indenture.

“Surplus” shall have the meaning ascribed to such term in Section 7.24 of this Agreement.

“Surviving Entity” shall have the meaning ascribed to such term in Section 7.11 hereof.

“Tax Completion Certificate” shall have the meaning ascribed to such term in Section 7.24 of this Agreement.

“Taxes” means any and all present or future taxes, levies, imposts, duties, deductions, charges or withholdings imposed by any Governmental Authority

“Trustee” means the Trustee and/or co-trustee at the time serving as such under the Indenture and any assigns or successors thereto.

Section 1.02. Construction of Terms. Unless the context clearly requires otherwise, the singular shall include the plural and the masculine the feminine, and vice versa. The words “hereof”, “herein”, “hereunder”, and other words of similar import refer to this Agreement as a whole. Unless otherwise specified, references to Articles, Sections, and other subdivisions of this Agreement are to the designated Articles, Sections, and other subdivisions of this Agreement as originally executed.

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ARTICLE II

LEASE TERMS

Section 2.01. Leased Premises.

(a) The Company does hereby sub-sublease to the Authority and the Authority hereby sub-subleases from the Company, subject to the Basic Lease and the Port Authority Lease, the Leased Premises for the term provided in Section 2.02(a) hereof.

(b) The Authority hereby (i) sub-sub-subleases the Leased Premises to the Company and the Company hereby sub-sub-subleases from the Authority, subject to the Basic Lease and the Port Authority Lease, the Leased Premises and (ii) leases to the Company the Gantry Cranes and the Personal Property financed with the proceeds of the Series 2017 Bonds and the investment earnings thereon, for and during the term provided in Section 2.02(b) and upon and subject to the terms and conditions herein set forth. The Company hereby agrees to pay the Company Rent. The parties hereto acknowledge that, pursuant to the terms of the Basic Lease and the Port Authority Lease, the 2017 Facility, exclusive of the Gantry Cranes and any Personal Property, is owned by the City of Newark and that the Gantry Cranes and any Personal Property financed with the proceeds of the Series 2017 Bonds and investment earnings thereon is owned by the Authority.

(c) The Authority and the Company hereby acknowledge and agree that the Authority’s interest in the Leased Premises has been transferred to the Company pursuant to the Company Sublease and that the Authority has no reversionary or any other Property Interest therein. It is agreed and understood by the parties hereto that the Company’s use, occupancy, possession and right to quiet enjoyment of the Leased Premises is pursuant to the Port Authority Lease.

(d) Notwithstanding anything contained herein to the contrary or at law or in equity, the Authority and the Company acknowledge and agree that there has been no assignment of the Port Authority Lease from the Company to the Authority.

Section 2.02. Term of this Agreement.

(a) The term of the Authority Sublease shall commence on the Date of Issuance and shall, unless earlier terminated pursuant to the terms hereof, terminate on the earliest of: (i) 12:01 a.m. on [______], 20[__]; (ii) the date on which no Bonds are Outstanding under the Indenture; (iii) the expiration or earlier surrender or termination of the Port Authority Lease in its entirety; (iv) the expiration or earlier surrender or termination of the Basic Lease; (v) 12:01 a.m. on the day after the date of the expiration of the Company Sublease; (vi) the surrender or termination of the Company Sublease; (vii) the rejection of the Company Sublease pursuant to Section 365 of the Federal Bankruptcy Code or similar provision of any state bankruptcy code upon or following the occurrence of an Act of Bankruptcy with respect to the Company; or (viii) the termination or revocation of the Consent by the Port Authority pursuant to the terms thereof.

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(b) The term of the Company Sublease shall commence on the Date of Issuance and shall, unless earlier terminated pursuant to the terms hereof, terminate on the earliest of: (i) 11:59 p.m. on [______], 20[__]; (ii) the date on which no Bonds are Outstanding under the Indenture; (iii) 11:59 p.m. on the date prior to the expiration of the Port Authority Lease in its entirety; (iv) the earlier surrender or termination of the Port Authority Lease in its entirety; (v) the expiration or earlier termination or surrender of the Basic Lease; (vi) the expiration or earlier termination or surrender of the Authority Sublease; (vii) the rejection of the Company Sublease pursuant to Section 365 of the Federal Bankruptcy Code or similar provision of any state bankruptcy code upon or following the occurrence of an Act of Bankruptcy with respect to the Company; or (viii) the termination or revocation of the Consent by the Port Authority pursuant to the terms thereof.

(c) Notwithstanding the terms and provisions of Section 2.02(a) and (b) hereof, the term of this Agreement with respect to the Leased Premises covered by the Port Authority Lease shall expire with respect to such Leased Premises under the Authority Sublease at 12:01 a.m. one day prior to the expiration of the Port Authority Lease in its entirety and immediately upon the earlier termination or surrender thereof and the term of this Agreement with respect to the Leased Premises covered by the Port Authority Lease shall expire with respect to such Leased Premises under the Company Sublease at 11:59 p.m. two days prior to the expiration of the Port Authority Lease in its entirety and immediately upon the earlier termination or surrender thereof.

(d) Notwithstanding the terms and provisions of Section 2.02(a) and (b) hereof or Section 7.12 hereof, the term of the Company Sublease with respect to the Personal Property and the Gantry Cranes shall not expire in the event of (i) the expiration, surrender or termination of the Port Authority Lease in its entirety as a result of the expiration, surrender or termination of the Basic Lease so long as the Company continues to have permitted occupancy of the related portion of the Leased Premises (including occupancy as a result of a permitted holdover tenancy) or another area of land at the Terminal at which the Company may operate the Personal Property and the Gantry Cranes or (ii) the expiration, surrender or termination of the Port Authority Lease in its entirety so long as the Company continues to have permitted occupancy of the premises leased pursuant thereto (including occupancy as a result of a permitted holdover tenancy) or another area of land at the Terminal at which the Company may operate the Personal Property and the Gantry Cranes.

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ARTICLE III

RENTAL PROVISIONS

Section 3.01. Assignment to Trustee. The Authority hereby notifies the Company and the Company acknowledges that the Authority’s rights in the Company Sublease (except the Payment Rights and the right of the Authority, at its option, to enforce its Reserved Rights, without limiting the right of the Trustee with respect thereto) and the Administration Expense Guaranty (except the payment of its Administration Expenses thereunder) are being assigned to the Trustee to provide a source of payment of all interest and principal owing by the Authority to the Holders of the Bonds pursuant to the terms of the Indenture; provided, however that the Authority has not assigned to the Trustee the right to grant or withhold consent pursuant to Sections 7.11 and 7.15 hereof or the additional remedies set forth in Section 10.03 hereof; and provided further that no Property Interests have been pledged, assigned or granted. The Company hereby consents to such assignment and agrees that the Trustee, as assignee of the Authority, shall have the right to enforce all of the covenants, agreements, obligations and duties of the Company contained therein. The Authority hereby directs the Company to make all payments (except the Payment Rights due to the Authority, if any) due hereunder to the Trustee instead of to the Authority, and the Company hereby agrees to do so. All such payments shall be made in lawful money of the United States directly to the Trustee, as assignee of the Authority, at the location specified by the Trustee and shall be applied in accordance with the provisions of the Indenture. The Company acknowledges that the Reserved Rights (except the right of the Authority to receive certain payments) are also held and retained by the Authority on a parity with the Trustee.

Section 3.02. Rental Payments.

(a) The Company covenants to make rental payments in immediately available funds directly to the Trustee on or prior to 3:00 p.m. New York City time on each Interest Payment Date, date of acceleration, principal payment date (whether principal is due by scheduled maturity, acceleration or otherwise) or redemption date for deposit in the Series 2017 Debt Service Fund (in each case to the extent amounts then on deposit in the Series 2017 Interest Account and the Series 2017 Principal Account shall not be available and sufficient therefor) in an amount equal to the sum of (i) with respect to interest due and payable on the Bonds, an amount equal to the interest due and payable on the Bonds on such Interest Payment Date or other date, (ii) the principal amount of the Bonds due on such Interest Payment Date or other date (whether at maturity or by redemption or acceleration or otherwise as provided in the Indenture), (iii) the sinking fund installments due on the Bonds on such Interest Payment Date, if any, and (iv) the Redemption Price of the Bonds to be redeemed which will become due on any such date together with accrued interest to the date of redemption.

(b) The Company agrees to pay to the Trustee until the principal of, premium, if any, and interest on the Bonds shall have been fully paid or provision for the payment thereof shall have been made in accordance with the provisions of the Indenture, (i) a reasonable amount due to the Trustee for its services and its expenses incurred under the Indenture, including reasonable attorney’s fees and expenses as and when the same become due and (ii) the

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reasonable fees, charges and expenses, including attorney’s fees and expenses, of the Registrar and Paying Agent as provided in the Indenture, as and when the same become due.

(c) The Company also agrees to pay to the Authority such reasonable costs and expenses as may be incurred by the Authority related to the issuance of the Bonds and the transactions contemplated by this Agreement and any advances made by the Authority pursuant to Section 7.21 hereof. The Company further agrees to pay all reasonable Administration Expenses.

(d) Notwithstanding anything in the foregoing to the contrary, including any of the provisions of Section 3.02 hereof, if by 3:00 p.m. (New York City time) on any Interest Payment Date, principal payment date, sinking fund installment payment date or redemption date the amount on deposit and available in the Series 2017 Debt Service Fund is not sufficient to pay the principal of, sinking fund installments, if any, or redemption premium, if any, and interest on Bonds then due (whether at maturity or by redemption or acceleration or otherwise as provided in the Indenture), and such payment shall constitute rental payments under this Section 3.02.

(e) In the event the Company should fail to make any of the payments required in this Section 3.02, the item or installment so in default shall continue as an obligation of the Company until the amount in default shall have been fully paid, and the Company agrees to pay the same with interest on all outstanding amounts due hereunder at the corresponding rate of interest per annum then borne by the Bonds until paid; provided, however, that if the Company successfully contests such payment in a court of competent jurisdiction, no such additional interest shall be due hereunder.

(f) The Company shall have the option to prepay its rental obligations under this Section 3.02 in whole or in part at the times and in the manner provided in Article IV hereof.

(g) No further rental payments need be made by the Company to the Authority or the Trustee during the term of this Agreement to the extent that the sum of cash and/or Government Obligations on deposit in the Series 2017 Debt Service Fund is sufficient to satisfy and discharge the payment obligations of the Authority under the Indenture and to pay the Bonds as provided in Article VII of the Indenture.

Section 3.03. Additional Amounts Payable by the Company. Notwithstanding any other provision of this Agreement, the Company shall make payments or cause payments to be made at such times and in such amounts as will enable the Authority to meet all of its payment obligations under this Agreement, the Bonds and the Indenture, including any payment required to be made to the Series 2017 Rebate Fund under the Indenture or to any other funds under the Indenture and any payment due on any acceleration of the Bonds’ maturity pursuant to the terms thereof, the fees and expenses and indemnity of the Authority required to be made pursuant hereto and the fees and expenses and indemnity of the Trustee required to be made pursuant to the Indenture (excluding any indemnity that Bondholders are required to post for remedial action). Accordingly, the Company agrees (but such agreement shall not limit the generality of the preceding sentence) that if any additional amounts become payable by the Authority to the Holders of the Bonds pursuant to the terms thereof then additional amounts shall be due and

-15-

payable by the Company as rent to the Authority hereunder equal to any additional amounts that may be so payable by the Authority, whether before or after payment of principal on the Bonds, all of which amounts shall be paid by the Company on the date that the comparable amounts are due by the Authority to the Holders of the Bonds. In addition, the Company’s obligation to pay the Company Rent shall survive any termination of this Agreement for so long as any such Company Rent remains unpaid.

Section 3.04. Payments Unconditional; No Defense or Set-Off. The obligations of the Company to pay the Company Rent and all other amounts payable hereunder shall be absolute and unconditional without defense or set-off by reason of any default by the Authority under this Agreement or any default under any other agreement between the Company and the Trustee, the Port Authority, the Authority or any other person or for any other reason, including, without limitation, any acts or circumstances that may constitute failure of consideration or failure to perform and observe any agreement, whether express or implied, or any duty, liability or obligation arising out of or connected with this Agreement, the Basic Lease or the Port Authority Lease, it being the intention of the parties that all payments due hereunder will be paid in full when due without any delay and will be received by the Authority or the Trustee, as the case may be, as a net sum without deductions, abatements, diminution or set-off of any kind whatsoever. Until such time as the principal of, premium, if any, and interest on the Bonds shall have been fully paid, or provision for the payment thereof shall have been made in accordance with the Indenture, the Company: (i) will not suspend or discontinue any payments provided for in Section 3.02 hereof; (ii) will perform and observe all of its other agreements contained in this Agreement; and (iii) will not terminate this Agreement for any cause, including, without limiting the generality of the foregoing, failure to complete the 2017 Facility, the occurrence of any act or circumstance that may constitute failure of consideration, destruction of or damage to the 2017 Facility, commercial frustration of purpose, any change in the tax laws of the United States or of the State or any political subdivision of either of these or any failure of the Authority or the Trustee to perform and observe any agreement, whether express or implied, or any duty, liability or obligation arising out of or connected with this Agreement or the Indenture, except to the extent permitted by this Agreement. This section is not intended to limit the right of the Company to commence a separate action against any party for breach of its obligations.

Section 3.05. Limitation of Liability. The Authority shall have no obligation, responsibility or liability in the performance of this Agreement or otherwise to the Company or any other person and no claim shall be made against the properties of the Authority generally, or against its properties in respect of any other of its projects. This Agreement does not pledge the general credit of the Authority, nor the general credit or taxing powers of the State or any political subdivision thereof. No recourse shall be had for any claim based on this Agreement against any member, officer or employee, past, present or future, of the Authority or of any successor body as such, either directly or through the Authority or any successor body, under any constitutional provision, statute or rule of law or by the enforcement of any assessment or penalty or otherwise.

Section 3.06. Nature of Obligations Hereunder. All payments and other obligations of the Company are and shall be general obligations of the Company to which its full faith and credit are hereby pledged. This Agreement and the covenants and agreements contained herein

-16- shall not be deemed to be for the benefit of any person other than the parties hereto, the Trustee and the Bondholders.

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ARTICLE IV

PREPAYMENT

Section 4.01. Prepayment. The Company has the option and is required to make advance rental payments at the times and under the circumstances as the Authority has the option (in certain instances, at the Company’s direction) or is required to redeem the Series 2017 Bonds under the terms of Article IV of the Indenture. The Company has the option to make advance rental payments and may cause the Authority to exercise the Authority’s option to prepay or repurchase the Bonds as provided in the Indenture.

Section 4.02. Notice of Prepayment. To exercise an option granted in or to fulfill an obligation required by this Article IV, the Company shall give written notice to the Authority and the Trustee which shall specify therein the date upon which prepayment of the Company Rent will be made, which date shall be not less than 45 nor more than 60 days after the date the notice is mailed. The Authority has directed the Trustee, upon receipt of such notice from the Company, to forthwith take all steps (other than the payment of the money required for such redemption or repurchase) necessary under the applicable provisions of the Indenture to effect redemption or repurchase of all or part of the then Outstanding Bonds, as may be the case, on the date set for redemption or repurchase in accordance with Article IV of the Indenture.

Section 4.03. Redemption or Repurchase of Bonds with Advance Rental Payments. By virtue of the assignment of the rights of the Authority under this Agreement to the Trustee as is provided in Section 3.01 hereof, the Company agrees to and shall pay any amount required to be paid by it under this Article IV directly to the Trustee. The Trustee shall use the moneys so paid to it by the Company to redeem or repurchase the Bonds in accordance with Article IV of the Indenture.

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ARTICLE V

COMPLETION OF THE PROJECT; APPLICATION OF BOND PROCEEDS

Section 5.01. Construction of 2017 Facility and Refunding of Series 2003 Bonds; Payment of Cost of Project.

(a) The Company shall cause the refunding of the Series 2003 Bonds and construction of the 2017 Facility, and to that end will enter into contracts providing for completion of all work and improvements included in the 2017 Facility. Payments shall be made by the Trustee under the Indenture for the Costs of the Project, and all such payments shall be made at the times, to the persons, subject to the conditions and in accordance with the procedures set forth in the Indenture. The proceeds of the Bonds which are deposited in the Construction Fund shall be expended only for the Cost of Construction or for payment of the Bonds as provided in the Indenture. No part of the Authority’s funds for the Project shall be subject to attachment or levy in the suit of any creditor of the Company or any agent, manufacturer, supplier, contractor or subcontractor.

(b) The Company shall cause the Project to be undertaken and completed in all material respects in compliance with all present and future laws, acts, rules, regulations, orders and requirements made and applicable thereto. In connection with the Project, the Company further agrees that: (i) it has entered into or shall enter into the Construction Contracts as it deems necessary or advisable for any acquisition, installation, construction, renovations and conversions relating to the 2017 Facility; and (ii) it shall cause the 2017 Facility to be completed in accordance with the Construction Contracts, if any, therefor and shall enforce all such Construction Contracts in a commercially reasonable manner.

(c) The Company further agrees that it shall not permit or consent to any material amendments, modifications, supplements, changes and deletions (each a “Change Order”) relating to the 2017 Facility which are included in the Construction Contracts or any estimate, schedule or plans and specifications therefor if such Change Order will adversely affect the exclusion of interest on the Series 2017 Bonds from gross income for federal income tax purposes or the Project from qualifying as an “authorized project” under the Act or will conflict with the provisions hereof.

(d) The Company further agrees during the term of the Construction Contract to maintain or cause the contractor or its subcontractors to maintain the insurance coverages required by the Port Authority Lease. To the extent construction is not complete, the Company shall request the contractor or its subcontractor to name each of the Authority and the Trustee as additional insured under each such policy.

Section 5.02. The Company Required to Pay if Bond Proceeds Insufficient. In the event the proceeds of the Series 2017 Bonds are not sufficient to pay all costs in full, the Company agrees to complete the Project and to pay that portion of the cost in excess of the aforesaid moneys available therefor. No warranty, either express or implied, is made by the Authority or

-19- the Trustee that the Series 2017 Bond proceeds available for payment of the Costs of the Project will be sufficient to pay all of the Costs of the Project. The Company agrees that if the Company should pay any portion of the Costs of the Project pursuant to the provisions of this Section 5.02, it shall not be entitled to any reimbursement or credit therefor from the Authority or the Trustee or from the owners of any of the Series 2017 Bonds, nor shall it be entitled to any diminution of the rent payable under Section 3.02 hereof.

Section 5.03. Governmental Approvals. The Company covenants that it will obtain or cause to be obtained all necessary approvals and permits from any and all governmental agencies requisite to the acquisition, renovation, construction, installation and operation of the 2017 Facility, and that the 2017 Facility will be acquired, renovated, constructed, installed and operated in all material respects in compliance with all federal, state and local laws, ordinances and regulations applicable thereto.

Section 5.04. Completion of Project. The Company shall with all reasonable dispatch proceed to construct the 2017 Facility and will use reasonable efforts to cause the construction of the 2017 Facility and the completion of the Project, which shall be evidenced by the Company Completion Certificate provided in accordance with Section 7.24 of this Agreement.

Section 5.05. Agreement to Issue Series 2017 Bonds; Application of Proceeds of the Series 2017 Bonds. In order to provide funds to finance the Costs of Construction as provided in Section 5.01 hereof and otherwise complete the Project, the Authority agrees that upon reimbursement to the Authority of its reasonable legal fees and other costs remaining unreimbursed, it will issue under the Indenture, sell and cause to be delivered to the purchasers thereof, the Series 2017 Bonds, in the aggregate principal amount of not more than $[______], bearing interest and maturing as set forth in the Indenture. The Authority hereby directs the proceeds received from the sale of the Series 2017 Bonds to be delivered to the Trustee for deposit or disbursed as provided in the Collateral Agency Agreement.

Section 5.06. Agreement Not to Change the Project. The Company agrees that it will not change the Project if any such change would make inaccurate, in any material respect, the description of the Project set forth in the fourth WHEREAS clause hereof unless (a) the Authority and the Trustee receive a Favorable Opinion of Bond Counsel with respect to such change and (b) the Project as changed will continue to be a “project” authorized to be financed by the Act as evidenced in writing by the Authority.

Section 5.07. Title to Gantry Cranes and Personal Property Financed with Proceeds of the Series 2017 Bonds. The Company agrees that the Authority shall acquire title to the Gantry Cranes and the Personal Property financed with the proceeds of the Series 2017 Bonds and any investment earnings thereon and any replacement property acquired pursuant to clause (iii) of Section 7.07(a) hereof at the time of the acquisition or installation thereof, subject to the terms and provisions of this Agreement and the leasehold estate of the Company herein created and such title shall automatically vest in the Authority immediately upon such acquisition or installation without further notice or action.

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Section 5.08. Limit on Personal Property Financed with Proceeds of the Series 2017 Bonds. The Company agrees that in no event shall more than $50 million of the proceeds of the Series 2017 Bonds be used for the acquisition of Personal Property.

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ARTICLE VI

REPRESENTATIONS AND WARRANTIES OF THE COMPANY

The Company represents and warrants to the Authority and the Trustee as follows as of the date of execution hereof:

Section 6.01. Organization, Powers, Etc. The Company (a) is a limited liability company duly organized under the laws of the State of Delaware and is qualified to conduct its business in the State, (b) has the power and authority to own and/or lease its properties and assets and to carry on its business as now being conducted and (c) has the power to execute this Agreement and perform all of its obligations hereunder, to borrow hereunder and to execute and deliver all other documents required hereunder.

Section 6.02. Execution of Documents. The execution, delivery and performance of this Agreement and all other instruments required pursuant to this Agreement by the Company (a) have been duly authorized by the Company, (b) will not violate or conflict with any material provision of any law, rule or regulation, any order of any court or other agency or governmental body applicable to the Company or any provision of the Company’s limited liability certificate or its operating agreement, (c) is not prevented, limited by or in conflict with, and will not result in a material breach of or default under, any relevant indenture, agreement or other instrument to which the Company is a party or by which it or any of its property are bound, and (d) will not result in the creation or imposition of any charge or encumbrance of any nature on all or any portion of the Project or the assets of the Company under the terms of any instrument or agreement to which the Company is now a party or by which it is bound, except as otherwise contemplated by this Agreement or such other instruments.

Section 6.03. Accuracy and Completeness of Disclosure. No written information heretofore or contemporaneously furnished, relating to the Company, the Project, the Facility, the Port Authority Lease or the Bond Documents, which have been supplied by or on behalf of the Company to the Trustee, the Authority, the underwriters or any purchaser of the Series 2017 Bonds, including without limitation the Application, the Preliminary Official Statement dated [______], 2017 (except to the extent amended, modified or supplemented in the Official Statement) and the Official Statement dated [______], 2017, (a) is untrue, incorrect or incomplete in any material respect, (b) contains any untrue statement of a material fact or omits to state a material fact necessary to make the statements therein not misleading in light of the circumstances under which they were made and (c) omits to state a material fact necessary to make the statements contained therein not misleading or incomplete. The Company acknowledges that the Trustee, the Authority, the Underwriter and the purchasers of the Series 2017 Bonds are relying on such information. The Company understands that all such information has been relied upon as an inducement by the Authority to issue the Series 2017 Bonds.

Section 6.04. Litigation. There is no action, suit, or proceeding at law or in equity by or before any court, governmental instrumentality or other agency now pending, or, to the knowledge of the Company threatened against or affecting it or any of its properties or rights, wherein an unfavorable decision, ruling or finding would materially impair its right to carry on

-22- its business substantially as now conducted or would materially adversely affect its financial condition or ability to carry out its obligations hereunder, or the validity or enforceability of this Agreement, the Port Authority Lease and the Bond Documents.

Section 6.05 No Material Adverse Change. There has been no material adverse change in the financial condition of the Company from the date of the latest financial statements of the Company, if any, which have been submitted to the Authority.

Section 6.06. Project Authorized by Act. The acquisition, financing and use of the Project, as provided under this Agreement, will promote employment opportunities in the County of Essex in the State.

Section 6.07. Port Authority Lease. The Port Authority Lease continues in full force and effect as a legal, valid and binding obligation of the Company without material default by the Company, or to the knowledge of the Company, by the Port Authority thereunder; the Company has not received any notice of default or termination under the Port Authority Lease; and the initial term of the Port Authority Lease expires on November 30, 2030 (subject to extension through November 30, 2050).

Section 6.08. Tax Status of Series 2017 Bonds. The Company has not taken and does not intend to take any action or omit to take any action, and knows of no action that any other person, firm or corporation has taken or intends to take, which would cause interest on the Series 2017 Bonds to be includable in the gross income of the recipients thereof for federal income tax purposes (except any Series 2017 Bond for any period during which such Series 2017 Bond is held by a “substantial user” of a facility financed with the proceeds of the Series 2017 Bonds or a “related person” to such “substantial user” as such terms are defined in Section 147(a) of the Code).

Section 6.09. No Federal Guarantee. Interest with respect to the Series 2017 Bonds is not guaranteed (in whole or in part) by the United States (or any agency or instrumentality thereof); no portion of the proceeds of the Series 2017 Bonds are to be (a) used in making loans the payment of principal or interest with respect to which is to be guaranteed (in whole or in part) by the United States (or any agency or instrumentality thereof), or (b) invested (directly or indirectly) in federally insured deposits or accounts except to the extent permitted under Section 149(b)(3) of the Code, which provides exceptions that include (i) investments during any initial temporary period permitted under Section 148 of the Code, such as for certain construction periods, until such proceeds are needed for the purpose for which the Series 2017 Bonds were issued; (ii) investments in a bona fide debt service fund, within the meaning of Section 149(b)(3) of the Code; (iii) investments in a reasonably required reserve or replacement fund, within the meaning of Section 148(d) of the Code; or (iv) investments in bonds issued by the United States Treasury; and the payment of principal of or interest on the Series 2017 Bonds is not otherwise indirectly guaranteed (in whole or in part) by the United States or any agency or instrumentality thereof.

Section 6.10. Necessary Approvals. The Company represents that it has obtained all necessary approvals, licenses and permits from any and all governmental agencies requisite to

-23- the construction and use of the 2017 Facility except for such approvals, permits and licenses as the Company has no reason to believe will not be obtained in due course so as not to delay scheduled completion of construction or use of the 2017 Facility for the purposes contemplated by the Company.

Section 6.11. Inducement. The availability of the financial assistance from the Authority as provided for herein has been an important inducement to the Company to undertake the Project and to locate the Project in the State.

Section 6.12. Affirmative Action and Prevailing Wage. With respect to any Construction Contract that was entered into prior to and not complete on the Final Approval Date, the Company represents (a) that the Port Authority Lease or other applicable agreement with the Port Authority contains affirmative action requirements of the Port Authority applicable to such Construction Contract and to the best of the Company’s knowledge, the Company is in compliance with the same and (b) that, to the best of its knowledge, the Company is in compliance with the Authority’s Prevailing Wage Provisions. The Company shall provide the Authority with any and all reports provided to the Port Authority and any information reasonably requested by the Authority regarding affirmative action and prevailing wage requirements for Construction Contracts entered into prior to, but not complete on, the Final Approval Date.

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ARTICLE VII

COVENANTS OF THE COMPANY

The Company covenants and agrees, so long as this Agreement remains in effect or the Bonds are outstanding, as follows:

Section 7.01. Condition of Terminal.

(a) The Company shall at all times preserve and protect the Terminal in good repair, working order and safe condition, and from time to time will make, or will cause to be made, all needed and proper repairs, renewals, replacements, betterments and improvements thereto including those required after a casualty loss, to the extent required by the Port Authority Lease or this Agreement. The Company shall pay or cause to be paid all operating costs, utility charges and other costs and expenses arising out of the possession, use or operation of the Terminal.

(b) The Authority shall have no obligation and makes no warranties respecting the condition or operation of the Terminal. THE AUTHORITY HAS MADE AND MAKES NO REPRESENTATION OR WARRANTY WHATSOEVER, EITHER EXPRESS OR IMPLIED, WITH RESPECT TO THE MERCHANTABILITY, CONDITION, FITNESS, DESIGN, OPERATION OR WORKMANSHIP OF ANY PART OF THE TERMINAL OR THE PROJECT, ITS FITNESS FOR ANY PARTICULAR PURPOSE, THE QUALITY OR CAPACITY OF THE MATERIALS IN THE TERMINAL OR THE PROJECT, OR THE SUITABILITY OF THE TERMINAL FOR THE PURPOSES OR NEEDS OF THE COMPANY, OR THE EXTENT TO WHICH PROCEEDS DERIVED FROM THE SALE OF THE SERIES 2017 BONDS WILL BE SUFFICIENT TO PAY THE COST OF COMPLETION OF THE PROJECT. THE COMPANY IS SATISFIED THAT THE PROJECT IS SUITABLE AND FIT FOR ITS PURPOSES. THE AUTHORITY SHALL NOT BE LIABLE IN ANY MANNER WHATSOEVER TO THE COMPANY OR ANY OTHER PERSON FOR ANY LOSS, DAMAGE OR EXPENSE OF ANY KIND OR NATURE CAUSED, DIRECTLY OR INDIRECTLY, BY THE PROPERTY OR THE TERMINAL OR THE USE OR MAINTENANCE THEREOF OR THE FAILURE OF OPERATION THEREOF, OR THE REPAIR, SERVICE OR ADJUSTMENT THEREOF, OR BY ANY DELAY OR FAILURE TO PROVIDE ANY SUCH MAINTENANCE, REPAIRS, SERVICE OR ADJUSTMENT, OR BY ANY INTERRUPTION OF SERVICE OR LOSS OF USE THEREOF OR FOR ANY LOSS OF BUSINESS HOWEVER CAUSED.

(c) The Company will not use as a basis for contesting any assessment or levy of any tax the financing under this Agreement or the issuance of the Series 2017 Bonds by the Authority and, if any administrative body or court of competent jurisdiction shall hold for any reason that the Facility is exempt from taxation by reason of the financing under this Agreement or issuance of the Series 2017 Bonds by the Authority or other Authority action in respect thereto, the Company covenants to make payments in lieu of all such taxes in an amount equal to such taxes and, if applicable, interest and penalties. Notwithstanding the foregoing, the

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Company reserves any other defenses available to it in connection with any such tax matters, including, without limitation, the fact that the Facility is governmentally owned.

Section 7.02. Compliance with Laws. The Company shall operate or cause the Facility to be operated as an authorized project for a purpose and use as provided for under the Act until the expiration or earlier termination of this Agreement.

Unless otherwise directed by the Port Authority pursuant to the express provisions of the Port Authority Lease, the Company shall comply in all material respects with all laws, ordinances and regulations, including, without limitation, all zoning and environmental laws (except to the extent such compliance is the responsibility of the Port Authority pursuant to the terms of the Port Authority Lease), ordinances and regulations, of any duly constituted authority which if not complied with, could reasonably be expected to materially adversely affect the Facility or the use thereof. The Company shall have the right in good faith to contest or appeal from such laws, ordinances and regulations and any decision adverse to the Company based thereon, but all costs, fees and expenses incurred in connection with such proceedings shall be borne by the Company; provided, however, the Company must give the Authority written notice of any such contest. The Company agrees that it shall not discriminate or permit any discrimination in the use of the Facility against any person on the grounds of race, color, religion, gender, age or national origin in any manner prohibited by the laws of the United States or the State, and shall provide the State with all information required by law concerning employment practices and procedures. The Company specifically acknowledges that the indemnification granted pursuant to Section 7.10 hereof applies to any failure to comply with such laws, ordinances and regulations as directed by the Port Authority.

Section 7.03. Certain Covenants with Respect to the Port Authority Lease.

(a) Promptly following the execution by the Company of any material amendment, supplement or modification to the Port Authority Lease, the Company shall deliver a true copy of such material amendment, supplement or modification to the Authority and the Trustee.

(b) The Company shall promptly transmit to the Authority and the Trustee copies of any termination or default notice it shall receive or deliver under the Port Authority Lease.

(c) The Company agrees to comply in all material respects with and perform all of its covenants and obligations set forth in the Port Authority Lease.

Section 7.04. Tax Covenants. The Company will not take any action or fail to take any action which would cause the interest on the Series 2017 Bonds to be included in gross income for federal income tax purposes under the Code (except any Series 2017 Bond for any period during which such Series 2017 Bond is held by a “substantial user” of a facility financed with the proceeds of the Series 2017 Bonds or a “related person” to such “substantial user” as such terms are defined in Section 147(a) of the Code). The Company agrees that it shall at all times do and perform all acts and things necessary on its part under the Code in order to assure that interest

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paid on the Series 2017 Bonds (except any Series 2017 Bond for any period during which such Series 2017 Bond is held by a “substantial user” of a facility financed with the proceeds of the Series 2017 Bonds or a “related person” to such “substantial user” as such terms are defined in Section 147(a) of the Code) shall, for purposes of federal income taxation, be excludable from the gross income of the recipients thereof under the Code and that it will refrain from doing or performing any act or thing that will cause such interest not to be so excludable. Notwithstanding anything contained in this paragraph to the contrary, the Company shall not have any liability to the Owners, the Trustee or otherwise as a result of its failure to comply with the provisions of this paragraph except to redeem the Series 2017 Bonds as provided in Section 4.5(d) of the Indenture.

The Company hereby covenants that it will not make any investment or other use of the proceeds (as that term is defined in Section 148 of the Code and all applicable regulations promulgated thereunder) of the Series 2017 Bonds which would cause the Series 2017 Bonds to be “arbitrage bonds” (as that term is defined in Section 148 of the Code and all applicable regulations promulgated thereunder), and that it will comply with the requirements of such Code section and regulations throughout the term of the Series 2017 Bonds.

Without limiting the generality or application of the covenants contained in the foregoing paragraphs of this Section 7.04, the Company hereby agrees to comply with and be bound by the following additional covenants:

(a) The Company hereby covenants that at least 95% of the “net proceeds” of the Series 2017 Bonds and investment earnings thereon will be used to (I) pay Costs of Construction that consist of property that is chargeable to the capital account of the Project, or Costs of Construction that would be so chargeable either with a proper election by the Company or but for the election of the Company to deduct such amounts on its federal income tax return, other than (i) costs that are attributable to profits received by the Company or any related entity within the meaning of Section 144(a)(3) of the Code; (ii) costs that were paid or incurred before August 13, 2017; (iii) Costs of Issuance of the Series 2017 Bonds; and (iv) costs for any office, unless (A) (1) such office is located on the premises of the 2017 Facility and (2) not more than a de minimis amount of the functions to be performed at such office is not directly related to the day-to-day operations of the 2017 Facility or (B) such office is an off-site construction office, or (II) to refund Series 2003 Bonds. Further, the Company represents that the net proceeds of the Series 2003 Bonds were expended for the purposes described in the Representation Letter executed by the Company in connection with the issuance of the Series 2003 Bonds. For purposes of this paragraph, “net proceeds” means the net proceeds as defined in Section 150(a)(3) of the Code, i.e., proceeds of the Series 2017 Bonds, reduced by amounts deposited in any reasonably required reserve or replacement fund for the Series 2017 Bonds.

(b) The Company hereby covenants in connection with the Series 2017 Bonds that it will comply with the requirement for payment of Rebatable Arbitrage to the United States set forth in the Letter of Instructions. The Company acknowledges and agrees that the calculation of Rebatable Arbitrage and the payment of the Rebatable Arbitrage to the United States shall be the responsibility of the Company and that neither the Authority nor the Trustee shall have obligation therefor. The Company agrees to indemnify and hold harmless the

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Authority and the Trustee against any loss, liability or expense incurred in connection with the Company’s failure to pay the Rebatable Arbitrage to the United States as required by this Section.

(c) The Company hereby covenants that within forty-five (45) days subsequent to the end of each fifth Bond Year applicable to the Series 2017 Bonds and the retirement of the last obligation of the Series 2017 Bonds, the Company shall compute, or caused to be computed, the Rebatable Arbitrage with respect to the Series 2017 Bonds for the period ending on the last day of the Bond Year completed, or the retirement of the last obligation of the Series 2017 Bonds occurring, within forty-five (45) days thereof. Within such forty-five (45)-day period, the Company shall deliver to the Trustee and Authority a certification concerning its conclusions with respect to the amount of such Rebatable Arbitrage together with a written report providing a summary of the calculations relating thereto. In connection with each such determination of the Rebatable Arbitrage by the Company, the Trustee, pursuant to the Indenture, shall report to the Authority and the Company (i) the amount, if any, theretofore paid to the United States with respect to the Series 2017 Bonds by the Trustee on behalf of the Authority pursuant to Section 5.3 of the Indenture, (ii) the amount in the account of the Series 2017 Rebate Fund established for the payment of Rebatable Arbitrage with respect to the Series 2017 Bonds at the end of the Bond Year, or at the time of the computation, in the case of the retirement of the Series 2017 Bonds, (iii) the balance to be added to the account of the Series 2017 Rebate Fund established for the payment of Rebatable Arbitrage with respect to the Series 2017 Bonds pursuant to Section 5.3 of the Indenture, and (iv) if additional amounts are required to be added to the amount in the account of the Series 2017 Rebate Fund established for the payment of Rebatable Arbitrage with respect to the Series 2017 Bonds, the amount in the Construction Fund and the balance, if any, to be paid by the Company.

(d) The Company hereby covenants that in the event the amount in the Construction Fund shall be insufficient to fund the account in the Series 2017 Rebate Fund established for the payment of Rebatable Arbitrage with respect to the Series 2017 Bonds in the manner specified in subsection 7.04(c) hereof, the Company shall, within five (5) days of receipt of the report furnished by the Trustee pursuant to subsection 7.04(c) hereof, pay or cause to be paid to the Trustee for deposit into the account in the Series 2017 Rebate Fund established for the payment of Rebatable Arbitrage with respect to the Series 2017 Bonds, the difference between the amount required to be added to such account in the Series 2017 Rebate Fund and the amount then available for such purpose in the Construction Fund. If the Company fails to make or cause to be made any payment required pursuant to this subsection 7.04(d) when due, the Authority shall have the right, but shall not be required, to make such payment to the Trustee on behalf of the Company. Any amount advanced by the Authority pursuant to this subsection 7.04(d) shall be added to the moneys owing by the Company under this Agreement and shall be payable on demand with interest as provided in Section 7.21 of this Agreement.

(e) The Company hereby covenants that it shall specifically direct in writing the Trustee to withdraw from the Series 2017 Rebate Fund and pay over to the United States the Rebatable Arbitrage with respect to the Series 2017 Bonds in installments as follows: The first payment shall be made not later than 60 days after the end of the fifth Bond Year of the Series 2017 Bonds. Each subsequent payment shall be made not later than 60 days after the succeeding

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fifth Bond Year of the Series 2017 Bonds. Each installment shall be in an amount which ensures that at least 90 percent of the amount of the Rebatable Arbitrage with respect to the Series 2017 Bonds as of the close of the period ending on the last day of the most recent fifth Bond Year of the Series 2017 Bonds will have been paid to the United States. Not later than 60 days after the retirement of the last obligation of the Series 2017 Bonds, the United States shall be paid the remaining balance of the Rebatable Arbitrage with respect to the Series 2017 Bonds.

(f) The Company hereby covenants that it shall request the Authority to direct the Trustee to file the payments to the United States of Rebatable Arbitrage with respect to the Series 2017 Bonds at the Internal Revenue Service Center, Ogden, Utah or such other Internal Revenue Service office authorized to receive payments of Rebatable Arbitrage. All payments of Rebatable Arbitrage shall be accompanied by Form 8038-T or such other form prescribed by the Internal Revenue Service to accompany payments of Rebatable Arbitrage prepared by the Company, together with any other information which the Company requests the Authority to instruct the Trustee to accompany such payments. The Authority agrees to so instruct the Trustee provided that it is requested to do so by the Company.

(g) The Company hereby covenants that the Authority shall have the right at any time and in the sole and absolute discretion of the Authority to obtain from the Company and the Trustee the information necessary to determine the amount required to be paid to the United States pursuant to Section 148(f) of the Code; provided, however, that the Trustee shall not be required to perform any calculations. Additionally, the Authority may (i) review or cause to be reviewed any determination of the amount to be paid to the United States made by or on behalf of the Company and (ii) make the determination of the amount to be paid to the United States. The Company hereby agrees to be bound by any such review or determination, to pay the costs of such review, including without limitation the reasonable fees and expenses of counsel retained by the Authority, and to pay to the Trustee any additional amounts for deposit in the Series 2017 Rebate Fund required as the result of any such review or determination.

(h) The Company hereby covenants that it will comply with its covenants set forth in the Company’s Representation Letter, and all of the representations and warranties the Company contained in the Representation Letter are incorporated herein by reference with the same force and effect as if set out in full herein.

(i) The Company hereby covenants that it will adopt and implement written tax compliance procedures to assure compliance with the Tax Covenants of this Section 7.04 sufficient (i) to monitor the requirements of Section 148 of the Code and (ii) to ensure that all nonqualified bonds are remediated in accordance with requirements of the Code and the regulations thereunder. The Company shall follow such tax procedures upon adoption in order to satisfy the Tax Covenants of this Section 7.04.

(j) At the time of filing its annual certification pursuant to Section 7.08 of this Agreement, the Company shall file with the Authority and the Trustee a certification to the effect that it is in compliance with its Tax Covenants in this Section 7.04 in the form attached hereto as Exhibit C.

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(k) The Company shall notify the Authority and the Trustee of a Determination of Taxability by reason of an Audit Notice as soon as practicable after the determination that a violation of a tax covenant in this Section 7.04 has occurred. If, pursuant to its post-issuance compliance procedures, the Company determines that it must take remedial action to cure a violation of a tax covenant, it will promptly notify the Authority as to the action to be taken. In the event the Authority becomes aware of a possible violation of a tax covenant, the Authority shall have the right, upon notice the Company, to conduct its own investigation, and at the sole cost of expense of the Company, to retain Bond Counsel to determine any and all actions required to remediate such violation.

Section 7.05. Inspection. The Trustee and the Authority and their duly authorized representatives shall have the right at all reasonable times upon reasonable notice to enter upon the Facility solely for the purpose of assuring that the Facility is being constructed and operated as a qualified “project” under the Act consistent with the purposes set forth herein and in accordance with the provisions of the Act.

Section 7.06. Public Purpose Covenants. The Company covenants that it will throughout the term of this Agreement operate and maintain the Facility in the manner provided in this Agreement, and will maintain and preserve the Facility as an authorized project under the Act.

Section 7.07. Disposition of Gantry Cranes and Personal Property Financed with Proceeds of the Series 2017 Bonds.

(a) The Authority hereby authorizes the Company to dispose of Personal Property and the Gantry Cranes from time to time upon written notice to the Authority provided that in the event that the Company disposes of any such Personal Property or Gantry Cranes purchased with the proceeds received from the sale of the Series 2017 Bonds or investment earnings thereon in exchange for cash or cash equivalents, the Company shall either (i) exercise its option to redeem the Series 2017 Bonds pursuant to Section 4.5(a) or (e) of the Indenture in an amount at least equal to the disposition proceeds, (ii) purchase the Series 2017 Bonds in the open market for delivery to the Paying Agent for cancellation in the amount that will retire all nonqualified bonds within the meaning of Treasury Regulations Section 1.142-2(e) or (iii) expend such disposition proceeds within six months of the date of the disposition to acquire similar replacement or other property that will constitute property that is part of a port terminal or property that is functionally related and subordinate thereto within the meaning of Section 142 of the Code and continue to operate the Project as an "authorized project" under the Act.

(b) After the retirement of all Series 2017 Bonds, the Company shall have the option to purchase from the Authority for fair market value any Personal Property and Gantry Cranes financed with the proceeds of the Series 2017 Bonds and investment earnings thereon and all replacement property acquired pursuant to clause (iii) of Section 7.11(a) hereof which shall not have previously been disposed of in accordance with the terms of this Agreement. In the event that the Company chooses not to purchase such Personal Property, Gantry Cranes and replacement property, the Company shall dispose of such Personal Property, Gantry Cranes and replacement property, at its sole cost and expense, on behalf of the Authority. Upon any disposition of such Personal Property, Gantry Cranes or replacement property, the Company

-30- shall pay any amounts (net of reasonable sale expenses) received as a result of such disposition to the Authority.

(c) In the event that the Port Authority acquires any Gantry Cranes pursuant to Section 59 of the Port Authority Lease, the Company shall pay any disposition proceeds from the sale of such Gantry Cranes to the Authority.

Section 7.08. Certificates of No Default and Other Information. The Company shall deliver within 120 days after the close of every Fiscal Year throughout the term of this Agreement to the Authority and the Trustee the following:

(a) a certificate executed by an Authorized Company Representative to the effect that it is not aware of (A) any condition, event or act which constitutes an Event of Default or (B) any condition, event or act which, with notice or lapse of time, or both, would constitute such an Event of Default, or, if any such condition, event or act exists, specifying the same.

(b) a written description of the present use of the Facility and a description of any anticipated material change in the use of the Facility or in the number of employees employed at the Facility by the Company.

The Company also hereby agrees to furnish to the Authority all material information and materials related to the public purposes of the Project or the Company, including, without limitation, by way of example, changes in ownership and/or possession of the Facility, changes in the nature of the Facility and employment related matters, that the Authority reasonably requests from time to time.

Section 7.09. Costs and Expenses. All reasonable, documented and invoiced fees and expenses incurred in connection with (i) the preparation, execution, delivery, recording and filing of the Indenture, this Agreement, the Series 2017 Bonds and any other documents in connection therewith, and (ii) the preparation, issuance and delivery of the Series 2017 Bonds, including such fees and expenses of the Authority, McCarter & English, LLP, the Trustee (which shall not be limited by any law on the compensation of a trustee of an express trust) and Trustee’s counsel, which shall in each case be paid directly by the Company. The Company shall also pay throughout the term of the Series 2017 Bonds the Authority’s fees and expenses incurred pursuant to the terms of the Bond Documents and the Trustee’s annual and special fees and expenses under the Indenture and this Agreement, including, but not limited to, reasonable, documented and invoiced attorney’s fees and expenses and all costs of issuing, marketing, collecting payment on and redeeming the Series 2017 Bonds thereunder.

Section 7.10. Indemnification. The Company agrees to and does hereby indemnify and hold harmless the Authority, any person who “controls” the Authority (within the meaning of Section 15 of the Securities Act of 1933, as amended), the Trustee, the Paying Agent, the Registrar and any member, principal, officer, director, official, employee, agent and attorney thereof or of the Authority or the State (each an “Indemnified Party” and collectively, the “Indemnified Parties”) against any and all losses, claims, damages or liabilities (including all costs, expenses and reasonable counsel fees incurred in investigating or defending such claim)

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suffered by any of the Indemnified Parties caused by, relating to, arising out of, resulting from, or in any way connected with (a) the condition, use, ownership, possession, conduct, management, planning, design, acquisition, construction, installation, sale or financing (except with respect to information provided by the Authority under the captions “THE AUTHORITY” and “NO LITIGATION” (as it relates to the Authority) in the Preliminary Official Statement and the Official Statement) of the Project or any part thereof, including the violation of any environmental laws, disputes between the Company on one hand and architects, contractors and suppliers on the other hand, and the payment of Rebatable Arbitrage to the United States; or (b) any untrue statement of a material fact contained in information provided by the Company with respect to the transactions contemplated hereby; or (c) any omission of any material fact necessary to be stated therein in order to make any such statement not misleading or incomplete (except with respect to information provided by the Authority under the captions “THE AUTHORITY” and “NO LITIGATION” (as it relates to the Authority) in the Preliminary Official Statement and the Official Statement); (d) the acceptance or administration by the Authority of its duties under the Bond Financing Documents, except to the extent caused by the Indemnified Party’s own gross negligence or willful misconduct; or (e) the acceptance or administration by the Trustee of its duties under the Indenture, except to the extent caused by the Indemnified Party’s own gross negligence or willful misconduct.

In case any action shall be brought against one or more of the Indemnified Parties based upon any of the above and in respect to which indemnity may be sought against the Company, such Indemnified Party shall promptly notify the Company in writing, and the Company shall assume the defense thereof, including the employment of counsel reasonably satisfactory to the Indemnified Party, the payment of all costs and expenses and the right to negotiate and consent to settlement. Any one or more of the Indemnified Parties shall have the right to employ separate counsel at the Company’s expense to the extent that there are legal defenses available to them that are different from or in addition to those available to other of the Indemnified Parties and representation of such Indemnified Parties by counsel representing the Company or other Indemnified Parties would present a conflict under applicable standards of professional conduct. The Company shall not be liable for any settlement of any such action effected without the Company’s consent, but if settled with the consent of the Company, or if there is a final judgment for the claimant on any such action, the Company agrees to indemnify and hold harmless the Indemnified Parties from and against any loss or liability by reason of such settlement or judgment. Notwithstanding anything in this Agreement to the contrary which may limit recourse to the Company or may otherwise purport to limit the Company’s liability, the provisions of this Section 7.10 shall control the Company’s obligations and shall survive repayment of the Bonds and the resignation or removal of the Trustee.

The Company agrees to and does hereby indemnify and hold harmless the Indemnified Parties against any and all losses, claims, damages or liabilities (including all costs, expenses, and reasonable counsel fees and expenses incurred in investigating or defending such claim) suffered by any of the Indemnified Parties and caused by, relating to, arising out of, resulting from, or in any way connected to an examination, investigation or audit of the Bonds by the Internal Revenue Service. In the event of such examination, investigation or audit, the Indemnified Parties shall have the right to employ counsel at the Company’s expense. In such event, the Company shall assume the primary role in responding to and negotiating with the

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Internal Revenue Service, but shall inform the Indemnified Parties of the status of the investigation. In the event the Company fails to respond adequately and promptly to the Internal Revenue Service, the Authority shall have the right to assume the primary role in responding to and negotiating with the Internal Revenue Service and shall have the right to enter into a closing agreement, for which the Company shall be liable.

Notwithstanding anything in this Agreement to the contrary which may limit recourse to the Company or may otherwise purport to limit the Company’s liability, the provisions of this Section 7.10 shall control the Company’s obligations and shall survive repayment of the Bonds and the resignation or removal of the Trustee.

Section 7.11. Maintain Existence; Covenant Against Sale and Removal. The Company shall maintain its existence as a limited liability company and shall not sell, assign, transfer or otherwise dispose of (whether in one transaction or in a series of transactions) substantially all of its assets without the prior written consent of the Authority, which consent shall not be unreasonably withheld, delayed or conditioned; provided however that the Company may merge with or into or consolidate with another entity or sell, assign, transfer or otherwise dispose of (whether in one transaction or in a series of transactions) substantially all of its assets, and this Agreement may be transferred pursuant to such merger, consolidation, sale, assignment, transfer or other disposition without obtaining such consent and without violating this Section 7.11 provided (a) the Company causes the proposed surviving, resulting or transferee company (the “Surviving Entity”) to furnish the Authority and the Trustee with a Change of Ownership Information Form; (b) the net worth of the Surviving Entity following the merger, consolidation or transfer is at least 95% of the net worth of the Company immediately preceding the merger, consolidation or transfer; (c) any litigation or investigation in which the Surviving Entity or its officers and directors are involved, and any court, administrative or other orders to which the Surviving Entity or its officers and directors are subject, relate to matters assumed from the Company or arising in the ordinary course of business; (d) the Authority receives a Favorable Opinion of Bond Counsel and an opinion of Bond Counsel that the merger, consolidation or transfer will not cause a reissuance of the Bonds; (e) the Surviving Entity assumes in writing the obligations of the Company under this Agreement, the Consent and the Port Authority Lease; (f) after the merger, consolidation or transfer, the Facility shall be operated as an authorized project under the Act; (g) no event of default by the Company under any Bond Document or the Port Authority Lease has occurred and is continuing; and (h) such merger, consolidation or transfer will not cause the Company to be in default under the Port Authority Lease.

Section 7.12. Certain Acknowledgments. The Company, the Authority, the Trustee (by its acceptance of the Trust Estate) and all Bondholders (by the purchase and acceptance of a Series 2017 Bond) hereby acknowledge and agree that this Agreement is subject in all respects to the terms of the Basic Lease and the Port Authority Lease and (a) the termination, surrender or expiration of the Basic Lease or (b) the termination, surrender or expiration of the Port Authority Lease in its entirety having occurred, shall automatically result in the termination of this Agreement.

Section 7.13. Prohibited Facilities. No proceeds of the Series 2017 Bonds shall be used to provide any airplane, sky box or other private luxury box, any health club facility, any facility

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primarily used for gambling, or any store the principal business of which is the sale of alcoholic beverages for consumption off premises.

Section 7.14. Books and Records. The Company shall keep proper books, records and accounts in which complete and correct entries shall be made of its transactions relating to the Project under this Agreement and the Indenture. The Authority and the Trustee shall have the right to inspect such books, records and accounts during reasonable business hours upon reasonable notice to the Company.

Section 7.15. No Assignment by the Company. Subject to the requirements of Section 7.19 hereof and except as otherwise permitted herein, the Company shall not assign this Agreement in whole or in part or sublease its interest in the Facility in whole without the prior written consent of the Authority, which consent shall not be unreasonably withheld, delayed or conditioned; provided further that the following conditions shall apply:

(a) No consent of the Authority shall be required for any assignment or transfer by operation of, and effected in accordance with the requirements of, Section 7.11 hereof;

(b) No consent of the Authority shall be required for any assignment to an Affiliate of the Company; provided however, that the Company remains jointly and severally liable under this Agreement and any other Bond Document with the proposed assignee;

(c) With respect to any subletting in whole or in part of the Facility, the Company shall nevertheless remain liable to the Authority for the payment of all rent and for the full performance of all of the terms, covenants and conditions of this Agreement and of any other Bond Document to which it is a party;

(d) With respect to any assignment of this Agreement for which no consent of the Authority is required as provided above, or for which consent of the Authority shall be both required and has been given, the Company shall nevertheless remain liable to the Authority for the payment of all rent and for the full performance of all of the terms, covenants and conditions of this Agreement and of any other Bond Documents to which it was originally a party;

(e) Any sublessee in whole of the Facility and any assignee of this Agreement shall in each case be subject to service of process in the State, and, if a corporation, shall be qualified to do business in the State;

(f) There shall be delivered to the Authority and the Trustee (i) an opinion of counsel to the Company addressed to the Authority and the Trustee to the effect that this Agreement continues in full force and effect as the legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms except as such enforceability may be limited by bankruptcy, insolvency, moratorium or other similar laws affecting or relating to the enforcement of creditors’ rights generally and to general equitable principles and (ii) a Favorable Opinion of Bond Counsel;

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(g) The assignee of this Agreement or any sublessee of the Facility agrees in writing to use, occupy and operate, as applicable, the Facility as an authorized “project” under the Act; and

(h) In the case of any subletting in whole of the Facility or any assignment in whole or in part of this Agreement, there shall have been delivered to the Trustee written evidence from any Nationally Recognized Rating Agency that is then rating the Bonds, that such action will not result in the reduction or withdrawal of the then applicable rating(s) on the Bonds.

In addition to the conditions set forth above for any assignment of this Agreement, or any subletting in whole of the Facility, the following conditions, as applicable, shall also apply:

(a) any assignment or sublease shall not violate any provision of the Basic Lease, the Port Authority Lease, this Agreement or any Bond Document;

(b) such assignment or sublease shall in no way diminish or impair the Company’s obligation to carry or cause to be carried the insurance required under Article IX hereof; and

(c) at least ten (10) Business Days prior to the execution of any proposed assignment or sublease, the Company shall furnish to the Authority a substantially final draft of same and after execution thereof, shall then furnish a copy of such executed document together with a certificate of an Authorized Company Representative that such proposed assignment or sublease shall not have been to a Prohibited Person.

Any consent by the Authority to any act of assignment or sublease shall be held to apply only to the specific transaction thereby authorized. Such consent shall not be construed as a waiver of the duty of the Company or the successors or assigns of the Company, to obtain from the Authority, to the extent required hereunder, consent to any other or subsequent assignment or sublease, or as modifying or limiting the rights of the Authority under the foregoing covenant by the Company.

Section 7.16. Qualified Exempt Facility. Subject to Section 7.07 hereof with respect to Personal Property and Gantry Cranes, the Company covenants that in the event all or a portion of the Facility shall no longer qualify as a dock and wharf which is an exempt facility within the meaning of Section 142(a)(1) of the Code, the Company shall within ninety (90) days either (a) cause the Series 2017 Bonds to be redeemed pursuant to Section 4.5(e) of the Indenture in an amount that will retire all nonqualified bonds within the meaning of Treasury Regulations Section 1.142-2(e), (b) establish a defeasance escrow within the meaning of Treasury Regulations Section 1.142-2(c) and deposit therein sufficient funds to defease all nonqualified bonds or (c) purchase the Series 2017 Bonds in the open market for delivery to the Paying Agent for cancellation in the amount that will retire all nonqualified bonds within the meaning of Treasury Regulations Section 1.142-2(e). For purposes of this Section 7.16, Facility shall have the meaning ascribed to such term on the Date of Issuance.

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Section 7.17. Compliance with Authority Requests. The Company acknowledges that the Indenture requires the Authority to cause the Company to take certain actions in various situations and the Company shall take the required actions upon notice from either the Authority or the Trustee that any such action is required; provided however that the Company shall not be required to take any action that shall cause the Company to be in breach of its obligations under the Basic Lease, the Port Authority Lease or the Consent.

Section 7.18. Secondary Market Disclosure. The Company hereby covenants and agrees that it will comply with and carry out all of the provisions of the Continuing Disclosure Agreement in all material respects. Notwithstanding any other provision of this Agreement, failure of the Company to comply with the Continuing Disclosure Agreement in all material respects shall not be considered an Event of Default hereunder or under the Indenture; however, the Trustee may (and, at the request of the Owners of at least 30% aggregate principal amount in Outstanding Bonds, and upon being indemnified to its satisfaction, shall) take such actions as may be necessary and appropriate, including seeking specific performance by court order, to cause the Company to comply with its obligations under this Section 7.18. For purposes of this Section 7.18, “Beneficial Owner” means any person which (a) has the power, directly or indirectly, to vote or consent with respect to, or to dispose of ownership of, any Series 2017 Bonds (including persons holding Series 2017 Bonds through nominees, depositories or other intermediaries), or (b) is treated as the owner of any Series 2017 Bonds for federal income tax purposes.

Section 7.19. Project Occupant Applications. Prior to leasing, subleasing or consenting to the subleasing or assignment of any lease of all or any part of the Facility, during the period commencing on the date hereof and terminating three years after the Company has completed the acquisition, renovation, installation and construction of all or substantially all of the Facility, and upon the request of the Authority from time to time thereafter, the Company shall cause a Project Occupant Information Form to be submitted to the Authority by every lessee, sublessee or lease assignee of the Facility. The Company shall not permit any such leasing, subleasing or assigning of leases that would impair the excludability of interest paid on the Series 2017 Bonds from gross income for purposes of federal income taxation, or that would impair the ability of the Company to operate the Facility or cause the Facility not to be operated as an authorized project under the Act.

Section 7.20. Project Sign. If requested by the Authority (but subject to governmental rules and regulations applicable thereto) and permitted by the Port Authority Lease, the Company shall cause to be posted and maintained at the site of the Facility a sign, three feet in width and five feet in length, reading as follows:

FINANCIAL ASSISTANCE FOR THIS PROJECT PROVIDED BY THE NEW JERSEY ECONOMIC DEVELOPMENT AUTHORITY Chris Christie, Governor Thomas P. Scrivo, Chairman

Section 7.21. Advances by Authority. Subject to Section 10.10 hereof, in the event the Company fails to take out or maintain the full insurance coverage required by Section 9.02 of

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this Agreement or fails to pay the charges required to be paid hereunder at or prior to the time they are required to be paid, the Authority may (but shall not be obligated to) take out such required policies of insurance and pay the premiums on the same or pay such charges or such other amounts as are necessary to perform the Company’s obligations hereunder. In the event that the Authority takes any of the foregoing actions, the Authority shall notify the Company and the Trustee in writing. All amounts so advanced therefor by the Authority shall become an additional rental obligation of the Company to the Authority and secured by this Agreement, which amounts, together with interest thereon at the rate equal to the interest rate on the Bonds from the date advanced, the Company agrees to pay on demand. Any remedy vested in the Authority for the collection of rent payments hereunder shall also be available to the Authority for the collection of all such amounts so advanced.

Section 7.22. Financing Statements. The security interest of the Trustee shall be perfected by the filing and re-filing of financing statements by the Company which fully comply with the State Uniform Commercial Code. The Company agrees to perform all acts and pay all costs necessary in connection therewith. The Company shall, within ten (10) days after such filing, furnish to the Authority and the Trustee an opinion of counsel as to the adequacy and reciting the details of such filing or re-filing. The parties hereto shall execute, at the request of the Company, and the Company shall file or cause to file financing statements, continuation statements, notices and such other documents necessary to perfect all security interests created pursuant to the terms of the Bond Documents and to preserve and protect the rights of the Trustee in the granting by the Authority of certain rights of the Authority, pursuant to the Indenture, under this Agreement, and neither the Authority nor the Trustee shall bear any responsibilities for such filings whatsoever, other than executing the documents requested by the Company. The Authority’s approval shall not be required prior to the release of liens that have been properly discharged.

Section 7.23. Construction. The Company will proceed with due diligence to complete the 2017 Facility pursuant to this Agreement and in accordance with Section 7.24 hereof. In the event of a material default of any Contractor or subcontractor under any contract made by it in connection with any repair or improvement or in the event of a material breach of warranty with respect to any materials, workmanship or performance guaranty, the Company will, to the extent commercially reasonable, promptly proceed either separately or in conjunction with others, to exhaust the remedies against the Contractor or subcontractor so in default and against each such surety for the performance of such contract. The Company agrees to advise the Authority of the steps it intends to take in connection with any such default.

Section 7.24. Affirmative Action and Prevailing Wage Regulations; Completion Date. To the extent of any Construction Contracts entered into after the Final Approval Date and for any project financed with Additional Bonds, the Company shall comply with the Authority’s Affirmative Action Program and Prevailing Wage Rate Provisions, which regulations, forms, and guidance documents (including an Affirmative Action and Prevailing Wage program summary) are available at www.njeda.com/affirmativeaction; contacting: New Jersey Economic Development Authority - Internal Process Management - Gateway One, Suite 900, Newark, New Jersey 07102 Phone (973) 648-4130; or e-mail: [email protected], including the following:

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(a) Insert in all construction bid specifications for any such Construction Contract for which proceeds of the Bonds will be used to pay for work done in the performance of any Construction Contract the following provisions:

(i) Construction of this project is subject to an Affirmative Action Program of the New Jersey Economic Development Authority which program establishes hiring goals for minority and female workers. Any Contractor or subcontractor must agree to make every effort to meet the established goals and to submit certified reports and records required by the Authority; and

(ii) Submission of a bid signifies that the bidder knows the requirements of the Affirmative Action Program and signifies the bidder’s intention to comply therewith. Construction of this project is subject to N.J.A.C. 19:30-3.1 et seq. Workers employed in construction of this project must be paid at a rate not less than the Prevailing Wage Rate established by the New Jersey Commissioner of Labor;

(b) [Reserved]

(c) Obtain from all Contractors and submit to the Authority a Contractor’s Certificate and Agreement within 3 days of the execution of any such Construction Contract for which proceeds of the Bonds will be used to pay for work done in the performance of any Construction Contract;

(d) Create an office of Company Affirmative Action and maintain in that office until the Completion Date an individual having responsibility to coordinate compliance by the Company with the Authority’s Affirmative Action Program and to act as liaison with the Authority’s Office of Affirmative Action;

(e) Submit to the Authority and the Trustee on the Completion Date, a Contractor’s Completion Certificate and a Tax Completion Certificate, a form of which is attached hereto as Exhibit B (the “Tax Completion Certificate”);

(f) Furnish to the Authority all other reports and certificates required under the Authority’s Affirmative Action Program and Prevailing Wage Rate Provisions; and

(g) Include or cause to be included in all such Construction Contracts for the Facility or any other project financed by Additional Bonds for which proceeds of the Bonds will be used to pay for work done in the performance of any Construction Contract, a provision, term or condition authorizing and allowing a holdback equal to ten per centum (10%) of the total amount agreed to be paid to the contractor for the work done pursuant to any such Construction Contract and subject to the Affirmative Action Program which amount is to represent the retainage for the purpose of assuring Contractor compliance with the Affirmative Action Program of the Authority, said sum to be disbursed to the Contractor only upon compliance with the terms and conditions of this Section 7.24 and (i) the execution and filing of the Contractor’s Completion Certificate; and (ii) receipt by the Company of a written notice issued by the

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Authority’s Office of Affirmative Action that the Contractor has complied with the requirements of the Affirmative Action Program.

The Company agrees that it shall not direct the Collateral Agent to withdraw moneys from the Construction Fund without compliance with the provisions of this Section 7.24. Prior to the first disbursement from the Construction Fund, the Company will supply to the Trustee a certificate of an Authorized Company Representative stating that, for purposes of the Prevailing Wage Rate Regulation and the Affirmative Action Program, none of the moneys disbursed at any time from the Construction Fund will be used to pay or reimburse a payment for work done in performance of any Construction Contract unless prior thereto there shall be submitted to the Trustee an executed Contractor's Certificate and Agreement and evidence of the acceptability thereof to the Authority in the form of a certificate signed by an Authority Representative. Nevertheless, prior to the initial disbursement from the Construction Fund for payment of any Construction Contract for the 2017 Facility, if not theretofore furnished, a Contractor’s Certificate and Agreement shall be submitted and written evidence of the acceptability thereof to the Authority shall be delivered to the Trustee.

The Completion Date, as hereinafter defined, shall be evidenced by a certificate signed by an Authorized Company Representative and filed with the Authority and the Trustee (the “Company Completion Certificate”) stating that, as of the date specified therein (the “Completion Date”), except for punch-list items, amounts retained by the Collateral Agent for any Costs of Construction which are not then due and payable or if due and payable not then paid, amounts on deposit in the Construction Fund, amounts to be deposited in the Series 2017 Rebate Fund, and amounts to be used for additional capital projects selected by the Company and eligible to be financed with the proceeds of the Series 2017 Bonds (i) the 2017 Facility has been substantially completed, (ii) all labor, services, materials and supplies used in the Facility have been paid for, (iii) the equipment necessary for the 2017 Facility has been installed to the Company’s satisfaction, such equipment so installed is suitable and sufficient for the efficient operation of the 2017 Facility for the intended purposes and all costs and expenses incurred in the acquisition and installation of such equipment have been paid, (iv) any permissions required of governmental authorities for the use of the 2017 Facility for the purposes contemplated by this Agreement have been obtained, and (v) the 2017 Facility is being operated as an authorized project under the Act. The Company Completion Certificate shall also set forth the sum to be deposited in the Series 2017 Rebate Fund (if any), the sum to be reserved in the Construction Fund for the payment of any unpaid Costs of Construction and additional capital project costs. In the event that the Company will use proceeds of the Series 2017 Bonds for additional capital projects which are not within the definition of the Project, the Company shall deliver to the Authority and the Trustee a Favorable Opinion of Bond Counsel that such use of the Series 2017 Bonds proceeds will not adversely affect the exclusion of interest on the Series 2017 Bonds from the gross income for federal income tax purposes of any Owners of the Series 2017 Bonds (other than a Person who is a “substantial user” of the Project or a “related person” within the meaning of Section 147(a) of the Code).

Within ninety (90) days after the Completion Date, any proceeds of the Series 2017 Bonds and any investment earnings thereon remaining in the Construction Fund (except for punch-list items, amounts retained by the Collateral Agent for any Costs of Construction not then

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due and payable or if due and payable not then paid, amounts to be deposited in the Series 2017 Rebate Fund, and amounts to be used for additional capital projects selected by the Company and eligible to be financed with the proceeds of the Series 2017 Bonds) (the “Surplus”) shall be used (a) by the Company to purchase Series 2017 Bonds in the open market for delivery to the Paying Agent for cancellation in the amount that will retire all nonqualified bonds within the meaning of Treasury Regulations Section 1.142-2(e) or (b) to cause an extraordinary optional redemption of the Series 2017 Bonds pursuant to Section 4.5(e)(iv) hereof. Pending use of the Surplus in the manner described above, the Company shall direct the Trustee to invest such Surplus at a yield (within the meaning of Section 148 of the Code) that does not exceed the yield on the Series 2017 Bonds. The Trustee shall have no liability for any such investments directed by the Company, including for any loss incurred, tax imposed or otherwise.

Notwithstanding the above provisions of this Section 7.24, in the event that a court of competent jurisdiction finally determines that the Affirmation Action Program or any provision thereof or the Prevailing Wage Rate Provisions or any provision thereof is legally invalid or unenforceable, the Company shall have no obligation to comply with the invalid or unenforceable provision or provisions.

Section 7.25. Notice Under Consent. The Company shall give prompt written notice to the Authority and the Trustee of the termination or revocation of the consent of the Port Authority under the Consent.

Section 7.26. Representation Letter. All representations of the Company made in the Representation Letter are true and correct and accurately represent the facts, as known to the Company on the date hereof. The Company agrees to comply with all terms and conditions set forth in such Representation Letter.

Section 7.27. Relocation of the Facility. The Company shall not relocate the Facility or any part thereof out of the State.

Section 7.28. No Untrue Statements. All information hereafter furnished by or on behalf of the Company, to the Trustee, the Authority or any Holder of any Bonds, will be true, accurate and complete in every material respect on the date as of which such information is dated or certified and such information shall not be incomplete by omitting to state any material information necessary to make such information not misleading in light of the circumstances under which they were made.

Section 7.29. Fiduciary Indemnity. The Company further agrees to indemnify and hold harmless the Trustee, the Paying Agent and the Registrar for, and to hold each of them harmless against, any loss, liability (including but not limited to environmental liability) or expense incurred without negligence, willful misconduct, breach of contract or bad faith on the part of the Trustee, Paying Agent and/or Registrar, arising out of or in connection with its acceptance or administration of its powers and duties under the Indenture and the other Bond Financing Documents 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 and duties under the Indenture and the other Bond Financing Documents. Notwithstanding anything in this Agreement to the

-40- contrary which may limit recourse to the Company or may otherwise purport to limit the Company’s liability, the provisions of this Section 7.29 shall control the Company’s obligations and shall survive repayment of the Bonds and the resignation or removal of the Trustee, Paying Agent and/or Registrar.

Section 7.30. Company’s Irrevocable Waiver with Respect to Depreciation and Investment Tax Credit.

(a) Attached hereto as Exhibit A is a form of election pursuant to Section 142(b)(1)(B) of the Code. Upon the execution of this Agreement by the Company, the Company shall execute three counterparts of such form of election and deliver one fully executed form to each of the Authority and the Port Authority, with its delivery of this Agreement, and the Company shall keep the executed counterpart with its records for the entire term of the Port Authority Lease.

(b) The Company hereby irrevocably elects not to claim for purposes of federal, state or local taxation of income any depreciation deductions or investment tax credits, for which it may be eligible with respect to the Facility. The Company further agrees that this irrevocable election shall be made binding upon its successors in interest, if any, under the Port Authority Lease, and as a condition of any permitted sale or assignment of the Company’s interest under the Port Authority Lease any successor in interest shall furnish an irrevocable election in the form of the immediately preceding sentence to the Authority and the Port Authority. The foregoing shall not grant or be deemed to grant to the Company the right to sell or assign, in any manner, its interest under the Port Authority Lease.

(c) In the event the Company records any document in lieu of recording this Agreement, said document shall incorporate the substance of paragraph (b) of this section.

Section 7.31. Nationally Recognized Rating Agencies.

(a) The Company shall use commercially reasonable efforts to cooperate with each Nationally Recognized Rating Agency rating any Bonds in connection with any review which may be undertaken by such Nationally Recognized Rating Agency.

(b) The Company shall enter into and comply with reasonable and customary “ratings surveillance” agreements with at least one Nationally Recognized Rating Agency with respect to the Bonds and will ensure that at all times that there are outstanding Series 2017 Bonds or Additional Bonds, if any, that at least one Nationally Recognized Rating Agency maintains a rating on such Bonds.

Section 7.32. Taxes. The Company shall timely pay and discharge all material Taxes and other assessments and governmental charges or levies imposed upon the Company or the Terminal prior to the date on which penalties, fines or interest attach thereto, provided that the Company may permit any such Tax, assessment, charge or levy to remain unpaid if it is being contested in good faith and adequate reserves have been provided and are maintained.

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ARTICLE VIII

REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE AUTHORITY

The Authority represents, warrants and covenants as follows:

Section 8.01. Organization, Powers, Etc. The Authority is a public body corporate and politic and is authorized under the Act to enter into the transactions contemplated by this Agreement and the Indenture and to carry out its obligations herein and therein. The Authority has duly authorized the execution and delivery of this Agreement, the Indenture and all other documents and instruments to be delivered by the Authority in connection with the transactions contemplated hereby and will do or cause to be done all things necessary to preserve and keep such authorizations in full force and effect. The Project constitutes a “project” within the meaning of the Act. To the best knowledge of the Authority, the Authority has duly complied with the provisions of the Act in connection with the authorization and issuance of the Series 2017 Bonds.

Section 8.02. Approval of Bond Issuance, Etc.

(a) To finance the Costs of the Project, the Authority proposes to issue $[______] aggregate principal amount of the Series 2017 Bonds which will be in the series and in the principal amounts, and will mature and bear interest as set forth in Article III of the Indenture and which will be subject to redemption as set forth in Article IV of the Indenture. The Series 2017 Bonds will be issued under the Indenture and secured pursuant to the terms thereof, pursuant to which the Authority’s interest in the Company Sublease (except its Payment Rights and the right of the Authority at its option to enforce its Reserved Rights, without limiting the right of the Trustee with respect thereto) will be pledged and assigned to the Trustee in order to provide for the payment of the principal of and interest and premium, if any, on the Series 2017 Bonds; provided, however that the Authority has not assigned to the Trustee the right to grant or withhold consent pursuant to Sections 7.11 and 7.15 hereof or the additional remedies set forth in Section 10.03 hereof; and provided further that no Property Interests are being pledged, assigned or granted to the Trustee. The issuance of the Series 2017 Bonds and the execution of this Agreement and the Indenture have been approved by the Authority at duly constituted meetings.

(b) The execution and delivery of this Agreement and the Series 2017 Bonds, and compliance with the provisions thereof, will not conflict with or constitute on the part of the Authority a violation of the Constitution of the State or a violation, breach of or default under its by-laws or any statute, indenture, mortgage, deed of trust, note agreement or other agreement or instrument to which the Authority is a party or by which the Authority is bound, or to the best knowledge of the Authority, any order, rule or regulation of any court or governmental agency or body having jurisdiction over the Authority or any of its activities or properties, and to the best knowledge of the Authority, all consents, approvals, authorizations and orders of governmental or regulatory authorities which are required to be obtained by the Authority for the consummation of the transactions contemplated thereby have been obtained. No authority or

-42- proceedings for issuance of the Series 2017 Bonds or documents executed in connection therewith have been repealed, revoked, rescinded or superseded.

(c) There is no action, suit or proceeding at law or in equity, pending or threatened against the Authority, to restrain or enjoin the issuance or sale of the Series 2017 Bonds or in any way contesting the validity or affecting the power of the Authority with respect to the issuance and sale of the Series 2017 Bonds or the documents or instruments executed by the Authority in connection therewith or the existence of the Authority or the power or the right of the Authority to finance the Project.

(d) Any Certificate signed by the Chairman, Vice-Chairman, Chief Executive Officer, or any other authorized officer of the Authority duly authorized by the by-laws of the Authority shall be deemed a representation and warranty by the Authority to the respective parties as to the statements made therein.

(e) The Authority makes no representation as to (i) the financial position or business condition of the Company or (ii) the correctness, completeness or accuracy of any of the statements, materials (financial or otherwise), representations or certifications furnished or to be made by the Company in connection with the sale or transfer of the Series 2017 Bonds, the execution and delivery of this Agreement or the consummation of the transactions contemplated hereunder or in connection with the sale of the Series 2017 Bonds.

Section 8.03. No Assignment by the Authority.

(a) Except as provided herein and in the Indenture, the Authority has not and shall not assign, encumber, convey or otherwise dispose of its rights hereunder.

(b) The Authority shall not sell, assign, encumber (other than pursuant to the granting clauses of the Indenture), convey or otherwise dispose of its interest in this Agreement and in the rent payable hereunder during the term of this Agreement, except as set forth in this Section, without the prior specific written consent of the Company and the Trustee and any purported disposition without such consent shall be void.

The Authority and Trustee will, however, at the specific written direction of the Company so long as there exists no uncured Event of Default hereunder, or if specifically directed in writing by the Port Authority, with the consent of the Company, grant such rights of way or easements over, across, or under, the Leased Premises, or grant such permits or licenses with respect to the use thereof, free from the terms and conditions of this Agreement as shall be necessary or convenient for the operation or use of the Facility (or as shall be desirable for the use of another parcel of property at the Terminal or for use by the Port Authority or a public utility), provided that the Authority and the Trustee receive a Favorable Opinion of Bond Counsel and a certificate from an Authorized Company Representative that such leases, rights- of-way, easements, permits or licenses shall not materially adversely affect the use or operation of the Facility. The Authority and the Trustee agree, at the sole cost and expense of the Company, to execute and deliver any and all instruments reasonably necessary or appropriate to confirm and grant any such right of way or easement or any such permit or license.

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Notwithstanding any other provision of this Agreement, so long as there exists no uncured Event of Default hereunder, or if directed by the Port Authority, the Company may from time to time direct in writing to the Authority and the Trustee to release and remove from this Agreement any unimproved part of the Leased Premises (on which none of the improvements, including the buildings, structures, improvements, related facilities, fixtures or other property comprising the Facility are situated; provided, that for purposes of this Section 8.03, the foregoing “improvements” shall not include roadways, parking areas, curbs, gutters, landscaping, pump station, water tank and utility facilities) provided that the Authority and the Trustee receive a Favorable Opinion of Bond Counsel and a certificate from an Authorized Company Representative that such release and removal will not materially adversely affect the use or operation of the Facility. Upon any such request by the Company, the Authority and the Trustee shall, at the sole cost and expense of the Company, execute and deliver any and all instruments reasonably necessary or appropriate to so release and remove such portion of the Leased Premises; provided, that no such release shall be effected unless there shall be deposited with the Trustee a certificate of an Authorized Company Representative, stating that the portion of the Leased Premises and the release so proposed to be made is not needed for the operation of the Facility, will not materially adversely affect the use or operation of the Facility and will not destroy the means of ingress thereto and egress therefrom.

No conveyance or release effected under the provisions of this Section 8.03 shall entitle the Company to any abatement or diminution of the rents payable under Section 3.02 hereof or the other payments required to be made by the Company under this Agreement.

Section 8.04. Findings and Determinations. Based upon the information provided to the Authority, the Authority hereby finds and determines that the financing of the Project through the issuance of the Series 2017 Bonds will further the public purposes of the Act.

Section 8.05. Tax-Exemption Covenant. Except as otherwise expressly permitted by the Bond Documents, the Authority hereby covenants not to take any action or fail to take any action which would cause the interest on the Series 2017 Bonds to lose the exclusion from gross income for purposes of federal income taxation (except any Series 2017 Bond for any period during which such Series 2017 Bond is held by a “substantial user” of a facility financed with the proceeds of the Series 2017 Bonds or a “related person” as such terms are defined in Section 147(a) of the Code). The Authority agrees that it shall at all times do and perform all acts and things necessary under the Code in order to assure that interest paid on the Series 2017 Bonds (except any Series 2017 Bond for any period during which such Series 2017 Bond is held by a “substantial user” of a facility financed with the proceeds of the Series 2017 Bonds or a “related person” as such terms are defined in Section 147(a) of the Code) shall, for purposes of federal income taxation, be and remain excludable from the gross income of the recipients thereof under the Code and that it will refrain from doing or performing any act or thing that will cause such interest not to be so excludable. Notwithstanding anything contained in this Section to the contrary, the Authority shall not have any liability to the Owners, the Trustee or otherwise as a result of its failure to comply with the provisions of this Section except to redeem the Series 2017 Bonds as provided in Section 3.04(d) of the Indenture.

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Section 8.06. Right or Responsibility for Leased Premises. Notwithstanding anything contained herein to the contrary, the Authority shall have no right or responsibility for the operation, maintenance, management, control, care or repair of the Leased Premises.

Section 8.07. Limitation on Interests, Rights and Remedies.

(a) The Company and each of the Financial Parties hereby acknowledges and agrees that notwithstanding this Agreement, the Indenture or any of the other Bond Documents or any of the provisions hereof or thereof or any other facts or circumstances to the contrary, that the only Property Interest that the Authority shall have had in the Properties is to have subleased the Leased Premises to the Company and imposed upon the Company the obligations set forth herein and that upon such subleasing to the Company, all Property Interests of the Authority were forever extinguished, and except for such limited Property Interest which no longer exists and cannot be revived, none of the Financial Parties has had nor shall have any Property Interests nor any rights to perform the promises and covenants of the Company under the Port Authority Lease nor any rights to enforce the rights and remedies of the Company against the Port Authority under the Port Authority Lease or otherwise or any right to sell, convey, transfer, mortgage, acquire, pledge or resublet the Properties, or to in any way or by any means disturb the Company’s use, occupancy, possession or quiet enjoyment of the Properties. The Company and each of the Financial Parties, to the extent permitted by law, hereby waives and shall waive at all times in the future all legal, security and equitable (i) interests, rights and remedies, if any, claimed under the Consent or otherwise in law or in equity in, with respect to or against the Properties and the Port Authority in connection with the Bond Documents and the Financing Transaction (other than the enforcement of the consent of the Port Authority under the Consent and in the case of the Company, the rights under the Port Authority Lease), (ii) interests, rights and remedies, if any, in, with respect to or against the Properties under this Agreement, the Indenture, any other Bond Documents or otherwise in connection with the Financing Transaction, (iii) interests, rights and remedies under Title 46 of the New Jersey Statutes Annotated and under all other laws of the State in, with respect to or against the Properties and (iv) all Property Interests, if any, not set forth in (i), (ii) and (iii) above.

(b) The Company and each of the Financial Parties further understands and agrees nothing contained in this Agreement shall affect the Authority’s (i) right to cause a mandatory redemption of the Bonds pursuant to Section 4.5(c) of the Indenture or (ii) right to specific performance pursuant to Section 10.03(b) hereof; provided, however, the Authority shall not exercise such right of specific performance if such performance would constitute a breach or default of or would conflict or violate the Port Authority Lease nor shall the Financial Parties or any of them have the right to specifically enforce any covenant of the Company under the Bond Documents relating to or of a Property Interest if the performance of such covenant would constitute a breach of the Port Authority Lease.

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ARTICLE IX

INSURANCE REQUIREMENTS, DAMAGE, DESTRUCTION, CONDEMNATION AND OTHER PAYMENTS

Section 9.01. Property Insurance Required. The Company agrees to maintain property insurance in respect of the Facility in the minimum amounts set forth in the Port Authority Lease as required on the date hereof. In the event that the amount of property insurance required by the Port Authority Lease in respect of the Facility shall be increased, the amounts required hereunder shall increase to the same amount. In the event that the amount of property insurance required by the Port Authority Lease in respect of the Facility shall be decreased, the amounts required hereunder shall decrease to the same amount provided that such amount shall never decrease below the amount required on the date hereof. In addition to the foregoing, the Company agrees to maintain property insurance in respect of the Personal Property and the Gantry Cranes for the full replacement cost thereof. Notwithstanding the insurance requirements of the Port Authority Lease, until the payment of the Bonds in full shall have occurred, the Company will, at a minimum, maintain commercial property insurance insuring by reason of casualty of any kind to the Facility in a minimum amount equal to the greater of (a) the combined outstanding principal amount of the Bonds, and (b) the replacement value of the Facility and shall name the Authority and the Trustee as an additional insured.

Section 9.02. Liability Coverages Required. The Company agrees to maintain liability insurance in respect of the Facility in the minimum amounts set forth in the Port Authority Lease as required on the date hereof. In the event that the amount of liability insurance required by the Port Authority Lease in respect of the Facility shall be increased, the amounts required hereunder shall increase to the same amount. In the event that the amount of liability insurance required by the Port Authority Lease in respect of the Facility shall be decreased, the amounts required hereunder shall decrease to the same amount provided that such amount shall never decrease below the amount required on the date hereof. Notwithstanding the insurance requirements of the Port Authority Lease, until the payment of the Bonds in full shall have occurred, the Company will, at a minimum, maintain commercial general liability insurance against for bodily injury, death or property damage occurring on, in or about the Facility in amounts not less than $1,000,000 with respect to bodily injury and property damage per occurrence and $3,000,000 in the aggregate and shall name the Authority and the Trustee as an additional insured.

The proceeds of all public liability insurance shall be applied to the payment of any judgment, settlement or liability incurred for risks covered by such insurance.

Section 9.03. General Insurance Provisions. All policies of insurance required under this Agreement shall contain provisions complying with the requirements of the Port Authority Lease. Except as otherwise provided in the Port Authority Lease, all liability policies shall require that no less than thirty (30) days’ written notice of cancellation or material change will be given to the Trustee. All cost of insurance shall be borne by the Company. At least thirty (30) days before the expiration of any insurance policy required to be maintained by this Agreement, the Company shall provide evidence to the Trustee of such renewal. All insurance is required commencing from the date hereof and is to be continued throughout the term of this Agreement.

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All property insurance with respect to the Personal Property and Gantry Cranes shall be used by the Company for one of the permitted uses of disposition under subsections (i), (ii) or (iii) of Section 7.07(a) hereof. The Company shall not violate or permit to be violated any of the conditions of the policies of insurance required to be maintained hereunder.

With respect to all policies of insurance which the Company is hereinabove required to carry:

(a) If any insurance shall expire, be withdrawn, lapse, become void or unsecured by reason of the Company’s breach of any condition thereof or by reason of the failure or impairment of the capital of any carrier thereof, the Company shall replace such insurance with new insurance which conforms to the insurance requirements herein set forth;

(b) In the event of a material loss, or an event which would constitute a material loss, under any policy, the Company shall give immediate notice thereof to the Authority and the Trustee.

Section 9.04. Damage, Destruction or Condemnation.

(a) Unless provided otherwise in the Port Authority Lease, in the event that at any time during the term of this Agreement the whole or part of the Facility shall be damaged or destroyed, or taken or condemned by a competent authority for any public use or purpose, or by agreement between the Port Authority and/or the Company and those authorized to exercise such right, or if the temporary use of the Facility shall be so taken by condemnation or agreement (a “Loss Event”):

(i) the Authority shall have no right or obligation to rebuild, replace, repair or restore the Facility,

(ii) the Company shall have no obligation to rebuild, replace, repair or restore the Facility,

(iii) there shall be no abatement, postponement or reduction in the rent or other amounts payable by the Company under this Agreement, and

(iv) the Company will promptly give written notice of such Loss Event to the Authority and the Trustee, generally describing the nature and extent thereof.

(b) In the event that the whole or a part of the Facility is damaged or destroyed or taken or condemned by a competent authority and the Company does not rebuild, replace, repair or restore the Facility, the Company shall cause the Series 2017 Bonds to be redeemed in whole or in part, as the case may be, pursuant to and in accordance with Section 4.5(c) of the Indenture unless it receives an opinion of McCarter & English, LLP so long as McCarter & English, LLP is still in existence or if McCarter & English, LLP ceases to exist, from any successor firm to McCarter & English, LLP, or if there is no successor firm, any Bond Counsel, that the Facility would still constitute a dock and wharf which is an exempt facility

-47- within the meaning of Section 142(a)(1) of the Code or that failure to rebuild would not cause the interest on the Series 2017 Bonds to be includable in gross income for Federal income tax purposes.

In the event that the whole or a part of the Facility is damaged or destroyed or taken or condemned by a competent authority and the Company rebuilds, replaces, repairs or restores the Facility, the Company shall do so at its own cost and expense and in accordance with the terms of the Port Authority Lease. The Company shall not by reason of payment of any such excess costs be entitled to any reimbursement from the Authority, the Trustee or any Bondholder, nor shall the rent or other amounts payable by the Company under this Agreement be abated, postponed or reduced. Any such rebuilding, replacement, repair, restoration or substitution shall

(i) to the extent the Company rebuilds, replaces, repairs, restores or substitutes for the Facility as a result of such Loss Event, such rebuilding, replacement, repair, restoration or substitution on the Leased Premises shall automatically be deemed a part of the Facility and be made subject to this Agreement;

(ii) not change the nature of the Facility as an authorized project as defined in and as contemplated by the Act, nor change the nature of the Facility so that it would not constitute a dock and wharf which is an exempt facility within the meaning of Section 142(a)(1) of the Code; and

(iii) be effected with due diligence in a good and workmanlike manner, in compliance with all applicable legal requirements and be promptly and fully paid for by the Company in accordance with the terms of the applicable contract(s) therefor.

(c) The Authority and the Company shall cooperate and consult with each other in all matters pertaining to the settlement, compromise, arbitration or adjustment of any claim or demand on account of any Loss Event, but the settlement, compromise, arbitration or adjustment of any such claim or demand shall be subject to the approval only of the Company.

(d) Any proceeds received by or payable to the Company or the Authority as a result of a Loss Event (whether from insurance, as a condemnation award or otherwise) shall be paid to the Company and applied in accordance with the terms of the Port Authority Lease.

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ARTICLE X

DEFAULTS AND REMEDIES

Section 10.01. Events of Default. Any one or more of the following events shall constitute an event of default hereunder (an “Event of Default”):

(a) Any material representation or warranty by or on behalf of the Company made herein or in any report, certificate, financial statement or other instrument furnished in connection with this Agreement shall prove to have been false or misleading in any material respect when made; or

(b) Default in the payment of principal of, premium, if any, or interest on the Bonds when due; or

(c) Except as provided in Section 10.01(b), default in the due payment of any other amounts or in the due observance or performance of any other covenants, conditions or agreements on the part of the Company required to be observed or performed pursuant to the terms hereof or pursuant to any certificate or other instrument furnished in connection with this Agreement, including the Administration Expense Guaranty, and such default shall continue unremedied for thirty (30) days after written notice thereof to the Company from the Authority or the Trustee, provided that if said default is such that it cannot be corrected within such period it shall not constitute an Event of Default if corrective action is instituted by the Company within such period and diligently pursued until the default is corrected, and provided further that in no event shall the failure of the Company to comply with its secondary market disclosure obligations under Section 7.18 hereof be deemed to constitute an Event of Default hereunder; or

(d) The occurrence of any event of default under the Indenture; or

(e) The occurrence of an Act of Bankruptcy of the Company; or

(f) If the Company voluntarily abandons the Terminal or otherwise ceases operations at the Terminal and, without reasonable cause, fails, for sixty (60) consecutive days, to take reasonable action to end such abandonment or cessation; provided that this clause shall not apply if the Company abandons the Terminal or ceases operations at the Terminal in connection with any strike, boycott, labor dispute, embargo, shortage of materials, act of God, act of a public enemy, act of governmental authority, weather condition, tide, riot, rebellion, sabotage or any other circumstance that is not within the Company’s control; or

(g) A final, non-appealable judgment is entered against the Company for the payment of money in excess of $15,000,000 (to the extent not paid or covered by insurance or indemnities as to which the insurer or indemnity has been, or promptly will be, notified of such judgment and the applicable insurance company or indemnity has not denied coverage thereof) as a result of the possession, ownership, control, operation or financing of the Terminal, if such

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judgement remains unsatisfied without any procurement of a stay of execution or is not otherwise vacated or discharged within sixty (60) days from the date of entry thereof; or

(h) Any Collateral Document, except in accordance with its terms or as permitted pursuant to the terms of the Bond Documents, ceases to be effective to grant a perfected lien on a material portion of the Collateral (as defined therein), or any Bond Document to which the Company is a party ceases to be in full force and effect, and such event continues for thirty (30) days after the Company receives notice of such event from the Trustee or the Collateral Agent.

Section 10.02. Remedies. Upon the occurrence and during the continuance of an Event of Default, the Authority can deliver to the Trustee a written notice, with a copy to the Company, that an Event of Default has occurred and is continuing. The Trustee shall not be deemed to have any knowledge of the occurrence of an Event of Default, except with respect to an “Event of Default” described in Section 10.1(b) hereof, unless and until it has received such a notice from the Authority. Upon the provision of written notice, as applicable, the Authority shall have the right to give the Trustee one or more written enforcement directions directing the Trustee to exercise all remedies available to it at law or in equity, including the following actions:

(a) Subject to Section 7.2 of the Indenture, in the case of a default in the payment of principal of or interest on the Bonds when due, declare the entire unpaid amount payable hereunder to be immediately due and payable forthwith, whereupon such amount shall become forthwith due and payable, without presentment, demand, protest, or other notice of any kind, all of which are hereby expressly waived, anything contained herein or elsewhere to the contrary notwithstanding; or

(b) Subject to Section 8.07 hereof and the terms of the Indenture, take any action at law or in equity to collect the payments then due and thereafter to become due hereunder or to enforce performance and observance of any obligation, agreement or covenant of the Company under this Agreement; or

(c) Pursuant to the terms of the Intercreditor Agreement and the Collateral Agency Agreement, direct the Collateral Agent to take or cause to be taken any and all actions necessary to implement any available remedies with respect to the Collateral under any of the Collateral Documents; or

(d) Have reasonable access to and inspect, examine and make copies of the books and records and any and all accounts, data and income tax and other tax returns of the Company during regular business hours of the Company and following prior reasonable notice; or

(e) Take on behalf of the Bondholders whatever other action at law or in equity as may appear necessary or desirable to collect the amounts then due and thereafter to become due, or to enforce performance and observance of any obligation, agreement or covenant of the Company under this Agreement or the rights of the Bondholders-, in each case subject to the terms of the Intercreditor Agreement; or

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(f) Discontinue disbursement of any portion of the Bond proceeds.

If any party shall have proceeded to enforce this Agreement and such proceedings shall have been discontinued or abandoned for any reason or shall have been determined adversely to such party, then the Company, the Authority and the Trustee shall be restored, respectively, to their several positions and rights hereunder, and all rights, remedies and powers of the Company, the Authority and the Trustee shall continue as though no such proceedings had taken place.

Section 10.03. Additional Authority Remedies on Default. Subject to Section 10.09 hereof, in addition to other remedies permitted by Section 10.02 hereof and by law, the following shall constitute additional and exclusive remedies of the Authority:

(a) upon the occurrence of any of the following, the Company shall, at the direction of the Authority, prepay all amounts due hereunder in full together with interest accrued and to accrue to the redemption date: (i) the Company ceases to operate the Terminal or ceases to cause the Terminal to be operated as an authorized project under the Act, in either case, for twelve (12) consecutive months, without first obtaining the written consent of the Authority, or (ii) an Event of Default under Section 10.01(a) hereof or (iii) the Company ceases to maintain or cause to be maintained the liability insurance required by this Agreement for the benefit of the Authority for thirty (30) consecutive days after notice of such failure by the Authority and three (3) Business Days to cure or (iv) the Authority is unable to exercise its right to specific performance pursuant to Section 10.03(b) hereof due to the fact that such specific performance would constitute a breach or default of or be in conflict with or violate the Port Authority Lease or involve the specific enforcement of any covenant of the Company under the Bond Documents relating to or of a Property Interest if the performance of such covenant would constitute a breach of the Port Authority Lease. The Authority shall give notice to the Company and the Trustee of any such occurrence whereupon the Trustee shall give notice to the Bondholders of the redemption of the Series 2017 Bonds pursuant to the terms of the Indenture and will set a redemption date pursuant to the terms of the Indenture, but in no event later than sixty (60) days after the Authority gives notice to the Trustee of the occurrence. The prepayment of all amounts due hereunder shall be due and payable on the second Business Day next preceding the redemption date for the Series 2017 Bonds. Prepayment by the Company pursuant to this Section shall be in an amount sufficient, together with other funds on deposit with the Trustee which are available for such purpose, to redeem the Series 2017 Bonds then Outstanding and to pay (i) all other amounts due hereunder, (ii) all Administration Expenses accrued and to accrue through the redemption date and (iii) any other expenses and fees required to satisfy and discharge the Indenture.

(b) in addition to the remedy specified in paragraph (a) above, if the Company commits a breach or threatens to commit a breach of any of the provisions of this Agreement or of any of the other Bond Documents, the Authority shall have the right and remedy, without posting bond or other security, to have the provisions of this Agreement specifically enforced by any court having equity jurisdiction, it being acknowledged and agreed that any such breach or threatened breach will cause immediate and irreparable injury to the Authority and that money damages will not provide an adequate remedy therefor; provided, however, the Authority shall not exercise any right of specific performance if such performance would constitute a breach or

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default of or be in conflict with or violate the Port Authority Lease nor shall the Authority have any right to specifically enforce any covenant of the Company under the Bond Documents relating to or of a Property Interest if the performance of such covenant would constitute a breach of the Port Authority Lease.

The exercise of rights under Section 10.03(b) shall not preclude the Authority’s exercise of rights under Section 10.03(a) above and shall not diminish the Trustee’s right to enforce specific performance, if appropriate, of the Bond Documents.

Section 10.04. Service of Process. If any service upon the Company is or may hereafter be required in connection with any suit or exercise of other remedies against it hereunder, the Company does hereby appoint Company Services Corporation as its agent to receive such service with written notice sent to the Company at the address specified in this Agreement. The Company does hereby consent to jurisdiction to any such suit brought in the State and does waive any objection to the venue of any such suit, action or proceeding on this Agreement in any of the courts of the State.

Section 10.05. No Remedy Exclusive. Except as set forth in Section 10.03 hereof, no remedy herein conferred or reserved is intended to be exclusive of any other available remedy or remedies, but each and every such remedy shall be cumulative and shall be in addition to every other remedy given under this Agreement or now or hereafter existing at law or in equity. No delay or omission to exercise any right or power accruing upon any default shall impair any such right or power or shall be construed to be a waiver thereof, but any such right or power may be exercised from time to time and as often as may be deemed expedient. No notice, other than such notice as may be required in this Agreement, shall be required precedent to the exercise of any remedy hereunder or at law, in equity or pursuant to statute. Subject to Section 3.01 hereof, such rights and remedies as are given the Authority hereunder shall also extend to the Trustee, and the Trustee and the Owners of the Bonds shall be deemed third party beneficiaries of all covenants and agreements herein contained.

Section 10.06. Agreement to Pay Attorneys’ Fees and Expenses. In the event the Company should default under any of the provisions of this Agreement and either the Authority or the Trustee shall require and employ attorneys or incur other expenses for the collection of payments due or to become due or for the enforcement or performance or observance of any obligation or agreement on the part of the Company herein contained, the Company agrees that it will on demand therefor pay to the Authority or the Trustee the reasonable fees and expenses of such attorneys and such other expenses so incurred.

Section 10.07. No Waiver Implied. No waiver of any breach by the Company of any of its obligations, agreements or covenants hereunder shall be a waiver of any subsequent breach or of any other obligation, agreement or covenant, nor shall any forbearance to seek a remedy for any breach by the Company be a waiver of any rights and remedies with respect to such breach or any subsequent breach.

Section 10.08. Default by Authority - Limited Liability. Notwithstanding any provision to the contrary set forth in this Agreement, no provision of this Agreement shall be construed so

-52- as to give rise to a pecuniary liability of the Authority or its members or to give rise to a charge upon the general credit of the Authority or such members; the liability of the Authority hereunder shall be limited to its interest in this Agreement and the lien of any judgment shall be restricted thereto. There shall be no other recourse against the Authority or any other property now or hereafter owned by it. No recourse shall be had or any claim based on this Agreement or the Bonds or any document delivered pursuant to this Agreement or the Bonds against any member, officer or employee, past, present or future, of the Authority or of any successor body, either directly or through the Authority or any such successor body, under any constitutional provision, statute or rule of law or by the enforcement of any assessment or penalty or otherwise. This Section 10.08 shall not relieve the Company of any liability or obligation under any instrument relating to this Agreement, the Indenture, any other Bond Document or the Port Authority Lease. In the performance of the agreements of the Authority herein contained, any obligation it may incur for the payment of money shall not be a debt or obligation of the State or any political subdivision thereof. The Authority does not assume general liability for the repayment of the Bonds or for the costs, fees, penalties, taxes, interest, charges, insurance or any other payments recited herein, but shall be obligated to pay the same only out of the amounts payable by the Company hereunder. The Authority shall not be required to do any act whatsoever or exercise any diligence whatsoever to mitigate the damages to the Company if an Event of Default shall occur hereunder.

THE STATE IS NOT OBLIGATED TO PAY, AND NEITHER THE FAITH AND CREDIT NOR TAXING POWER OF THE STATE IS PLEDGED TO THE PAYMENT OF, THE PRINCIPAL OR REDEMPTION PRICE, IF ANY, OF OR INTEREST ON THE BONDS. THE BONDS ARE SPECIAL, LIMITED OBLIGATIONS OF THE AUTHORITY, PAYABLE SOLELY OUT OF THE REVENUES OR OTHER RECEIPTS, FUNDS OR MONEYS OF THE AUTHORITY PLEDGED UNDER THE INDENTURE AND FROM ANY AMOUNTS OTHERWISE AVAILABLE UNDER THE INDENTURE FOR THE PAYMENT OF THE BONDS. THE BONDS DO NOT NOW AND SHALL NEVER CONSTITUTE A CHARGE AGAINST THE GENERAL CREDIT OF THE AUTHORITY. THE AUTHORITY HAS NO TAXING POWER.

The Act provides that neither the members of the Authority nor any person executing the Bonds for the Authority shall be personally liable on the Bonds by reason of the issuance thereof. All covenants, stipulations, promises, agreements and obligations of the Authority set forth herein shall be deemed to be the covenants, stipulations, promises, agreements and obligations of the Authority and not of any member, officer or employee of the Authority in his or her individual capacity, and no recourse shall be had for the principal or Redemption Price, if any, of or interest on the Bonds or for any claim based thereon or hereunder against any member, officer or employee of the Authority or any person executing the Bonds.

Section 10.09. No Obligation or Right to Re-Let. Notwithstanding anything contained herein to the contrary, upon the occurrence of an Event of Default by the Company hereunder, the Authority shall have no obligation or right to re-let the Leased Premises or otherwise be required to mitigate any damages to the Company as a result of such Event of Default.

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Section 10.10. No Right to Cure Default. Notwithstanding anything contained herein to the contrary, the Authority and the Trustee shall have no right to cure a default, breach or performance obligation on behalf of the Company under the Port Authority Lease.

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ARTICLE XI

MISCELLANEOUS

Section 11.01. Notices. Any notice, request, complaint, demand, communication, or other paper shall be sufficiently given and shall be deemed given when delivered or mailed by registered or certified mail, postage prepaid, or sent by telegram, addressed as follows:

If to the Authority:

New Jersey Economic Development Authority 36 West State Street P.O. Box 990 Trenton, New Jersey 08625 Attention: Director, Finance & Bond Portfolio Management

If to the Company:

Port Newark Container Terminal L.L.C. 241 Calcutta Street Newark, New Jersey 08625 Attention: Markus Braun

With a copy to:

Cleary Gottlieb Steen & Hamilton LLP One Liberty Plaza New York, New York 10006 Attn: Richard Lincer

If to the Trustee, Paying Agent or Registrar:

U.S. Bank National Association 21 South Street, 3rd Floor Morristown, New Jersey 07960 Attention: Corporate Trust Services

With a copy to:

Riker Danzig Scherer Hyland Perretti LLP Headquarters Plaza One Speedwell Avenue Morristown, New Jersey 07962 Attention: Linda Prentiss

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The above parties may, by notice given hereunder, designate any further or different addresses to which subsequent notices, certificates or other communications shall be sent.

Section 11.02. Survival of Covenants - Concerning Successors and Assigns. All covenants, agreements, representations and warranties made herein and in the certificates delivered pursuant hereto shall survive the execution hereof and shall continue in full force and effect so long as the obligations hereunder are outstanding and unpaid; provided however that all covenants, agreements, representations and warranties as to all matters affecting the exclusion of the interest on the Series 2017 Bonds from gross income for federal income tax purposes and indemnification shall survive the termination of this Agreement. Whenever in this Agreement any of the parties hereto is referred to, such reference shall be deemed to include the successors and assigns of such party; and all covenants, promises and agreements by or on behalf of the Company which are contained in this Agreement shall bind its successors and assigns and inure to the benefit of the successors and assigns of the Authority.

Section 11.03. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State.

Section 11.04. Modifications in Writing. Amendments, modifications or waivers of any provisions of this Agreement or the documents delivered hereunder or consent to any departure by the Company therefrom shall in no event be effective unless the same shall be in writing, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given and only in accordance with Article X of the Indenture.

Section 11.05. Captions. The section headings in this Agreement are for reference purposes only and shall not affect the meaning or interpretation of any provisions of this Agreement.

Section 11.06. Severability. If any provision of this Agreement shall be held or deemed to be illegal, invalid or unenforceable by any court of competent jurisdiction, such holding shall not affect any other provision or provisions hereof.

Section 11.07. Prior Agreements Superseded. This Agreement shall completely and fully supersede all other prior understandings or agreements, both written and oral, between the Authority and the Company relating to the Project.

Section 11.08. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be an original and all of which shall constitute but one and the same instrument.

Section 11.09. Survival of Authority Reserved Rights. The Reserved Rights and the Authority’s ability to enforce the Reserved Rights will survive the termination of this Agreement so long as the Bonds are Outstanding.

Section 11.10. Authorized Company Representative. Whenever under the provisions of this Agreement the approval of the Company is required or the Authority or the Trustee is

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required to take some action at the request of the Company, such approval or such request shall be given for the Company by the Authorized Company Representative, and the Authority or Trustee may rely upon the approval of such Authorized Company Representative or act upon such request and neither party hereto shall have any complaint against the other or against the Trustee as a result of any such action taken.

Section 11.11. Intention of Parties. It is the express intention of the parties hereto that the purchase, sale or transfer of any Bonds, as provided in the Indenture, shall not constitute or be construed to be the extinguishment of any Bonds or the indebtedness represented thereby (except to the extent any such Bonds may be canceled pursuant to the Indenture) or the reissuance of any Bonds or the refunding of any indebtedness represented thereby.

Section 11.12. Company to Perform Certain Covenants Under Indenture. The Company acknowledges that it has received an executed copy of the Indenture, and that it is familiar with its provisions, and agrees to be bound to the fullest extent permitted by law to all provisions thereof relating to it, and that, as the lessee under this Agreement, it will take all such actions as are required or contemplated of it under the Indenture to preserve and protect the rights of the Trustee and of the Bondholders thereunder and that it will not take or effect any action which would cause a default thereunder or jeopardize such rights; provided however that the Company shall not be required to take any action that shall cause the Company to be in breach of its obligations under the Basic Lease, the Port Authority Lease or the Consent. It is agreed by the Company and the Authority that any redemption of Bonds prior to maturity shall be effected as provided in the Indenture.

Section 11.13. Amendments to Law. A reference herein to a statute or to a regulation issued by a governmental authority includes the statute or regulation in force as of the date hereof, together with all amendments and supplements thereto and any statute or regulation substituted for such statute or regulation, unless the specific language or the context of the reference herein clearly includes only the statute or regulation in force as of the date hereof. A reference herein to a governmental authority, department, board, commission or other public body or to a public officer includes an entity or officer which or who succeeds to substantially the same functions as those performed by such public body or officer as of the date hereof, unless the specific language or the context of the reference herein clearly includes only such public body or public officer as of the date hereof.

Section 11.14. Right to Cure Defaults Under Indenture. With regard to any default under the Indenture concerning which notice is given to the Authority and the Company under the provisions of the Indenture, the Authority hereby grants the Company full authority for the account of the Authority to perform any covenant or obligation alleged in said notice to constitute such default, in the name and stead of the Authority with full power to do any and all things and acts to the same extent that the Authority could do and perform any such things and acts and with power of substitution.

Section 11.15. No Merger or Washout of this Agreement. As an explicit and material part of the consideration of both the Authority and the Company in entering into this Agreement, the Authority Sublease and the Company Sublease shall not be deemed to be “mutual” or

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“washout” leases and no merger of said leases shall be deemed to occur. The parties to this Agreement hereby waive the right to claim that there is a merger of the Company Sublease and the Authority Sublease.

Section 11.16. Application of New Jersey Contractual Liability Act. Notwithstanding anything to the contrary contained herein, the foregoing is subject to the limitations of the provisions of the New Jersey Contractual Liability Act, N.J.S.A. 59:13-1 et seq. and the New Jersey Tort Claims Act, N.J.S.A. 59:2-1 et seq. While the New Jersey Contractual Liability Act, N.J.S.A. 59:13-1 et seq. is not applicable by its terms to claims arising under contracts with the Authority, the Company and the Trustee hereby agree that such statute (except N.J.S.A. 59:13-9) shall be applied to all claims arising against the Authority under this Agreement.

Section 11.17. No Obligation to Act. Notwithstanding anything to the contrary, the permissive rights of the Trustee to do things enumerated in this Agreement, on account of assignment, shall not be construed as duties.

Section 11.18. Third-Party Beneficiary; No Imposition of Liability. The Trustee is an intended third-party beneficiary under this Agreement, however, nothing contained herein is intended to, nor shall be deemed or construed to, impose any liability or obligation on the Trustee under this Agreement that is in conflict with its obligations as Trustee under the Indenture.

[The balance of this page has been intentionally left blank.]

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

[Authority Seal] NEW JERSEY ECONOMIC DEVELOPMENT AUTHORITY

Attest:______By:______Richard T. LoCascio Arlene M. Clark Assistant Secretary Director of Closing Services

[Company Seal] PORT NEWARK CONTAINER TERMINAL L.L.C.

Witness:______By:______

[Signature page to Lease Agreement]

SCHEDULE A

The Leased Premises (i) include the real property and all improvements located thereon which are leased by the Port Authority of New York and New Jersey to Port Newark Container Terminal L.L.C. pursuant to an Amended and Restated Agreement of Lease (Lease No. L-PN- 264) dated as of June 14, 2011, as the same may have been amended and supplemented, (ii) but specifically excludes any and all subsurface conditions at or beneath the real property, including but not limited to soils, groundwater or any other subsurface personal property or fixtures (which include but are not limited to storage tanks, lines, piping or other structures of any kind).

Schedule A-1

EXHIBIT A

ELECTION PURSUANT TO SECTION 142(b)(1)(B) OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED

1. Port Newark Container Terminal L.L.C. (the “Company”), pursuant to the Amended and Restated Agreement of Lease (Lease No. L-PN-264) dated as of June 14, 2011, as the same may have been or may hereafter be amended and supplemented (the “Port Authority Lease”), with the Port Authority of New York and New Jersey (the “Port Authority”), has leased the sites and the structures, improvements, additions, building and facilities located or to be located thereon at Port Newark Container Terminal as described in the Port Authority Lease (the “Leased Premises”).

2. The Company has determined to finance a project (the “Project”) consisting of: (i) refunding the outstanding $125,000,000 New Jersey Economic Development Authority Special Facility Revenue Bonds (Port Newark Container Terminal LLC Project) Series 2003, consisting of the $62,500,000 Series 2003A and $62,500,000 Series 2003B (collectively, the “Series 2003 Bonds”); (ii) financing a portion of the costs of expansion, renovation, construction and equipping of the Port Newark Container Terminal at Port Newark, which is bordered on the east by Newark Bay; on the south by the Elizabeth Channel; on the west by Corbin Street; on the north by a series of streets beginning on Marsh Street east to Coastwise Street, south on Coastwise Street to Tyler Street, east on Tyler Street to Export Street, south on Export Street to Calcutta Street, east on Calcutta, south from Calcutta south to Starboard Street and east on Starboard Street to Newark Bay, County of Essex, New Jersey (the “Terminal”), including (a) construction and installation of new truck gate facilities and equipment, (b) acquisition and installation of new customs and security technology, (c) construction and installation of new comfort and customer service stations for truckers, (d) construction and installation of new back-up power generation facilities, (e) demolition of two existing warehouses, (f) expansion of the Terminal yard by 46 acres and renovation of approximately 34 acres of the Terminal yard, (g) expansion and improvements to the yard electrical and lighting systems, (h) expansion and improvements to the existing wharf and berths, (i) acquisition and installation of new gantry cranes and straddle carriers, (j) construction and equipping an offsite depot, and (k) various paving and improvements to existing facilities (collectively, the “2017 Facility”); (iii) paying certain costs incurred in connection with the issuance of the Series 2017 Bonds (as hereinafter defined); and (iv) fund a deposit to a debt service reserve fund securing the payment of principal and interest on the Series 2017 Bonds.

3. The Port Authority’s principal office is at 225 Park Avenue South, New York, New York 10003 and its taxpayer identification number is 13-6400654.

4. The Authority’s principal office is at 36 West State Street, Trenton, New Jersey 08625 and its taxpayer identification number is 22-2045817.

5. The Company’s principal office is at 241 Calcutta Street, Port Newark, New Jersey 07114 and its taxpayer identification number is 22-3730069.

A-1

6. The Company hereby irrevocably elects not to claim for purposes of federal, state or local taxation of income any depreciation deductions or investment tax credits, for which it may be eligible with respect to the 2017 Facility. The Company further agrees that this irrevocable election shall be made binding upon its successors in interest, if any, under the Port Authority Lease, and as a condition of any permitted sale or assignment of the Company’s interest under the Port Authority Lease any successor in interest shall furnish an irrevocable election in the form of the immediately preceding sentence to the Authority and the Port Authority. The foregoing shall not grant or be deemed to grant to the Company the right to sell or assign, in any manner, its interest under the Port Authority Lease.

Dated:______PORT NEWARK CONTAINER TERMINAL L.L.C.

By:______Title: ______

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EXHIBIT B

FORM OF TAX COMPLETION CERTIFICATE

The undersigned, [Name], [Title] of Port Newark Container Terminal L.L.C. (the “Company”), on behalf of the Company and pursuant to Section 7.24(e) of the Lease Agreement dated as of December 1, 2017 (the “Agreement”), by and between the New Jersey Economic Development Authority (the “Authority”) and the Company, relating to the Authority’s $[______] Special Facility Revenue and Refunding Bonds (Port Newark Container Terminal L.L.C. Project), Series 2017 (the “Bonds”) DOES HEREBY CERTIFY to the Authority as follows:

1. This certificate constitutes the Company’s Tax Completion Certificate, as provided pursuant to Section 7.24(e) of the Agreement. Capitalized terms used and not otherwise defined herein shall have the respective meanings ascribed thereto in the Agreement or the Company’s Representation Letter dated the date of issuance of the Bonds and delivered as part of the record of proceedings for the Bonds. The undersigned has consulted with its accountants and Bond Counsel to the extent necessary to complete this Certificate and the accompanying Schedule.

2. The Project was substantially completed on ______for purposes of determining the final date on which remedial action can be taken with respect to Bond proceeds that have not been spent. With the final requisition, all of the Bond proceeds on deposit in the Construction Fund have been expended on the Project[, other than the amount of $______which we have directed to be applied to the redemption or defeasance of a portion of the Bonds].

3. Attached hereto is a Completion Schedule summarizing the allocation of Net Proceeds of the Bonds and Unexpended Proceeds to the Project Costs. This Schedule demonstrates that: (a) Investment Proceeds were earned from the investment of the Sale Proceeds of the Bond during the construction of the Project in the amount of $______and were included in Net Proceeds.

(b) The Costs of Issuance financed by the Bond Proceeds of the Bond did not exceed 2 percent of the Sale Proceeds of the Bond.

(c) At least 95 percent of the Net Proceeds of the Bond were spent on Qualified Costs of the Project. For purposes of this provision, “Qualified Costs” means costs that are Capital Expenditures, within the meaning of Treasury Reg. §1.148-6(d)(3)(ii), with respect to the Project. Unless the cost was a Preliminary Expenditure, no amount of Net Proceeds used to reimburse a cost paid before the date of issue of the Bond will be treated as a Qualified Cost if (i) the cost was paid more than (A) 60 days before the adoption by the Authority of a declaration of intent to reimburse Project Costs, or (B) 3 years before the date of issue of the Bonds; or (ii) the cost relates to a Project that was placed in service more than 18-months before the date of issuance of the Bonds.

(d) Interest was paid with the Net Proceeds of the Bonds for a period not longer than the construction period for the Project.

B-1

4. There has been no change in the scope or nature of the Project from that which was described in the notice of hearing published in connection with the Authority’s public approval hearing.

5. There has been no change in the components of the Project that would result in a reduction of the average economic life for the Project from what was described in the Representation Letter.

6. There is no change in the expected use of the Project or in the exempt purpose of the Company from what was expected at the date of issuance of the Bonds, as described in the Representation Letter.

[7. The Bonds met the [6-month/18-month/2-year] spending exception to rebate. Therefore no deposit is required to the Series 2017 Rebate Fund.]

[8. The Bonds did not meet an exception to Rebate. The Series 2017 Rebate Fund is fully funded and no deposit to the Series 2017 Rebate Fund is required.]

WITNESS my hand this __ day of ______, ______.

PORT NEWARK CONTAINER TERMINAL L.L.C.

By: ______Name: Title:

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COMPLETION SCHEDULE

New Jersey Economic Development Authority $[______] Special Facility Revenue and Refunding Bonds (Port Newark Container Terminal L.L.C. Project), Series 2017

[Date] Sale Proceeds of the Bonds ...... $______Plus Investment Earnings ...... ______Total Proceeds ...... $______Net Proceeds ...... $______

Allocation of Net Proceeds Cost Qualified Cost Non-Qualified Costs

Refunding Costs Architect & Engineering Construction Costs Furniture or Equipment Other (specify) Interest During Construction Post-Construction Interest1 Costs of Issuance Total

Total Qualified Costs, $______, are equal to ___% of Net Proceeds.

1 In the case of a qualified 501(c)(3) bond, Post-Construction Interest allocable to the Bonds that financed Qualified Costs for a period of not more than one year after completion of the Project is a Qualified Cost.

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EXHIBIT C

FORM OF ANNUAL COMPLIANCE CERTIFICATE AS TO TAX COVENANTS

The undersigned, [Name], [Title] of Port Newark Container Terminal L.L.C. (the “Company”), on behalf of the Company and pursuant to Section 7.04(j) of the Lease Agreement, dated as of December 1, 2017 (the “Agreement”), by and between the New Jersey Economic Development Authority (the “Authority”) and the Company, relating to the Authority’s $[______] Special Facility Revenue and Refunding Bonds (Port Newark Container Terminal L.L.C. Project), Series 2017 (the “Bonds”) DOES HEREBY CERTIFY to the Authority as follows:

1. I have reviewed the Agreement executed by the Company and am familiar with the Tax Covenants contained in Section 7.04 of such Agreement and the Company’s Representation Letter.

2. I am familiar with the use and operation of Project financed with the proceeds of the Bonds and I have undertaken such examination and investigation as is necessary for purposes of making this certification.

3. To the best of my knowledge, I confirm that the Company is in compliance with all the Tax Covenants contained in Section 7.04 the Agreement.

WITNESS my hand this __ day of ______, ______.

PORT NEWARK CONTAINER TERMINAL L.L.C.

By: ______Name: Title:

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COLLATERAL AGENCY AGREEMENT

Dated as of December 1, 2017

by and among

PORT NEWARK CONTAINER TERMINAL L.L.C., as the Company,

WELLS FARGO BANK NATIONAL ASSOCIATION, as the Working Capital Loan Provider,

U.S. BANK NATIONAL ASSOCIATION, as the Trustee,

U.S. BANK NATIONAL ASSOCIATION, as the Parity Lien Agent,

and

U.S. BANK NATIONAL ASSOCIATION, as the Collateral Agent and the Securities Intermediary

TABLE OF CONTENTS Page

ARTICLE I DELIVERY OF DOCUMENTS ...... 3

ARTICLE II THE COLLATERAL AGENT AND OTHER AGENTS ...... 3 Section 2.01 Duties and Responsibilities ...... 3 Section 2.02 Authorization ...... 5 Section 2.03 Administrative Actions ...... 5 Section 2.04 Force Majeure ...... 6 Section 2.05 Employment of Agents ...... 6 Section 2.06 Reliance of Collateral Agent and Other Agents ...... 7 Section 2.07 Knowledge ...... 7 Section 2.08 Non Reliance on Collateral Agent and Other Agents ...... 7 Section 2.09 Collateral Agent and Other Agents in Individual Capacity ...... 8 Section 2.10 Collateral Agent and Other Agents Under No Obligation ...... 8 Section 2.11 Resignation and Removal of Collateral Agent; Successor Collateral Agent; Individual Collateral Agent ...... 8 Section 2.12 Books and Records; Reports ...... 10 Section 2.13 No Consequential Damages ...... 11 Section 2.14 Merger of the Collateral Agent ...... 11 Section 2.15 Reasonable Care ...... 11

ARTICLE III COMPANY REMAINS LIABLE ...... 11

ARTICLE IV SPECIAL COVENANTS ...... 12 Section 4.01 Additional Obligations ...... 12 Section 4.02 Subordinate Obligations and Shareholder Loans ...... 13 Section 4.03 Rate Covenant ...... 13 Section 4.04 Annual Forecast and Maintenance Plan ...... 14 Section 4.05 No Encumbrances ...... 14 Section 4.06 Capital Expenditure Plan ...... 14

ARTICLE V THE PROJECT ACCOUNTS ...... 14 Section 5.01 Establishment of the Project Accounts ...... 14 Section 5.02 Construction Fund...... 16 Section 5.03 Construction Fund Requisition Procedures ...... 17 Section 5.04 Revenue Fund ...... 18 Section 5.05 Debt Service Fund ...... 21 Section 5.06 Debt Service Reserve Fund ...... 23 Section 5.07 Operating Reserve Fund ...... 24 Section 5.08 Major Maintenance Reserve Fund ...... 25 Section 5.09 Subordinate Obligations Fund ...... 26 Section 5.10 Residual Fund ...... 26 Section 5.11 Loss Proceeds Fund ...... 28 Section 5.12 Operating Account ...... 28 Section 5.13 Other Deposit Accounts ...... 29 Section 5.14 Tax Reporting ...... 29 Section 5.15 Funds as Collateral ...... 29 Section 5.16 Change of Deposit Account Bank...... 29

Section 5.17 Investment ...... 30 Section 5.18 Withdrawal and Application of Funds; Priority of Transfers from Funds; Event of Default ...... 31 Section 5.19 Termination of Funds ...... 32 Section 5.20 Securities Intermediary ...... 33 Section 5.21 Inadequately Identified Amounts ...... 35

ARTICLE VI COLLATERAL AND REMEDIES ...... 35 Section 6.01 Administration of Collateral ...... 35 Section 6.02 Notice of Event of Default ...... 35 Section 6.03 Enforcement of Remedies ...... 36 Section 6.04 Remedies of the Secured Creditors ...... 36 Section 6.05 Secured Party Information ...... 36 Section 6.06 Application of Proceeds and Other Amounts ...... 36 Section 6.07 Reliance on Information ...... 39

ARTICLE VII COMPENSATION, INDEMNITY AND EXPENSES ...... 39 Section 7.01 Compensation; Fees and Expenses ...... 39 Section 7.02 Company Indemnification ...... 39

ARTICLE VIII TERMINATION ...... 40

ARTICLE IX MISCELLANEOUS PROVISIONS ...... 40 Section 9.01 Further Assurances ...... 40 Section 9.02 Amendments; Waivers ...... 41 Section 9.03 Successors and Assigns ...... 42 Section 9.04 Notices ...... 42 Section 9.05 Counterparts ...... 44 Section 9.06 Governing Law; Consent to Jurisdiction; Waiver of Jury Trial ...... 44 Section 9.07 Captions ...... 44 Section 9.08 Severability ...... 44 Section 9.09 Collateral Agent’s Rights ...... 44 Section 9.10 Amendments for Additional Obligations ...... 45

Exhibit A Definitions And Rules Of Interpretation Exhibit B Form of Funds Transfer Certificate Exhibit C Form of Certificate as to Debt Service Coverage Ratio Exhibit D Accounts Exhibit E Form of Restoration Requisition Certificate Exhibit F Form of Restoration Requisition Certificate of the Independent Consultant Exhibit G Form of Construction Fund Requisition Certificate Exhibit H Series 2017 Bonds Debt Service Schedule

COLLATERAL AGENCY AGREEMENT

This COLLATERAL AGENCY AGREEMENT (this “Agreement”), dated as of December 1, 2017, is made by and among PORT NEWARK CONTAINER TERMINAL L.L.C., a Delaware limited liability company (the “Company”); U.S. BANK NATIONAL ASSOCIATION, a national banking association organized and existing under and by virtue of the Laws of the United States of America, as trustee (together with any successor trustee duly appointed under the Indenture, the “Trustee”); WELLS FARGO BANK, NATIONAL ASSOCIATION, as the lender under the Working Capital Loan Documents (the “Working Capital Loan Provider”); U.S. BANK NATIONAL ASSOCIATION, as the parity lien agent (the “Parity Lien Agent”); and U.S. BANK NATIONAL ASSOCIATION, a national banking association organized and existing under the laws of the United States of America, in its capacity as collateral agent (in such capacity, the “Collateral Agent”) and in its capacity as securities intermediary on behalf of the other Secured Parties (in such capacity, the “Securities Intermediary”). All capitalized terms used herein but not otherwise defined herein shall have the respective meanings given to such terms in Exhibit A hereto. The rules of interpretation set forth in Exhibit A hereto shall apply to this Agreement

R E C I T A L S

A. Pursuant to that certain Trust Indenture, dated as of December 1, 2017 (as amended, supplemented and/or otherwise modified from time to time, the “Indenture”), the New Jersey Economic Development Authority, a public body corporate and politic constituting an instrumentality of the State pursuant to the Act (the “Issuer”) proposes to issue $300,000,000 New Jersey Economic Development Authority Special Facility Revenue and Refunding Bonds (Port Newark Container Terminal L.L.C. Project), Series 2017 (the “Series 2017 Bonds”), to provide funds, and to loan the proceeds thereof to Port Newark Container Terminal L.L.C. (the “Company”) pursuant to the terms of that certain Lease Agreement (as amended, supplemented and/or otherwise modified from time to time, the “Lease Agreement”), dated as of December 1, 2017, between the Issuer and the Company.

B. The proceeds of the Series 2017 Bonds will be used to finance a project (the “Project”) consisting of: (i) refunding the outstanding $125,000,000 New Jersey Economic Development Authority Special Facility Revenue Bonds (Port Newark Container Terminal LLC Project) Series 2003, consisting of the $62,500,000 Series 2003A and $62,500,000 Series 2003B (collectively, the “Series 2003 Bonds”); (ii) financing a portion of the costs of expansion, renovation, construction and equipping of the Port Newark Container Terminal at Port Newark (the “Terminal”), including (a) construction and installation of new truck gate facilities and equipment, (b) acquisition and installation of new customs and security technology, (c) construction and installation of new comfort and customer service stations for truckers, (d) construction and installation of new back-up power generation facilities, (e) demolition of two existing warehouses, (f) expansion of the Terminal yard by 46 acres and renovation of approximately 34 acres of the Terminal yard, (g) expansion and improvements to the yard electrical and lighting systems, (h) expansion and improvements to the existing wharf and berths, (i) acquisition and installation of new gantry cranes and straddle carriers, (j) construction and equipping an offsite depot, and (k) various paving and improvements to existing facilities (collectively, the “2017 Facility”); (iii) paying certain costs incurred in connection with the issuance of the Series 2017 Bonds (as hereinafter defined); and (iv) funding a deposit to a debt service reserve fund securing the Series 2017 Bonds.

C. The Company may enter into one or more credit agreements, indentures or other agreements pursuant to which the Company may incur or issue debt and the Company’s obligations thereunder may constitute Additional Obligations.

D. Pursuant to that certain Security Agreement, dated as of December [__], 2017 (as amended, supplemented, restated and/or otherwise modified and in effect from time to time, the “Security

Agreement”), between the Company and the Collateral Agent, the Company has granted a security interest in, to and under the Collateral (as defined therein) (subject to Permitted Liens).

E. The Company, the Collateral Agent and the Securities Intermediary wish to establish certain accounts and provide for the terms and conditions that will apply to such accounts; and the Collateral Agent wishes to set forth the terms on which it shall accept its appointment as Collateral Agent and Securities Intermediary and shall undertake to perform certain duties on behalf of such Secured Parties with respect thereto and hereto.

NOW, THEREFORE, in consideration of the foregoing premises and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereby agree as follows:

ARTICLE I DELIVERY OF DOCUMENTS

True and correct copies of the Financing Documents have been furnished to the Collateral Agent by the Company, and the Company agrees to furnish to the Collateral Agent prompt notice of any amendments or modifications thereto. The Company hereby agrees to furnish copies of all Additional Financing Documents and any amendments or modifications thereto to the Collateral Agent promptly following the execution and delivery thereof.

ARTICLE II THE COLLATERAL AGENT AND OTHER AGENTS

Section 2.01 Duties and Responsibilities.

(a) The Trustee (on behalf of the owners of the Bonds), the Working Capital Loan Provider and the Parity Lien Agent (on behalf of the Parity Lien Claimholders) hereby appoint U.S. Bank National Association, as “Collateral Agent” for the benefit of the Secured Parties with respect to the Liens on the Collateral and the rights and remedies granted pursuant to this Agreement and the other Collateral Documents. Further, any Acceding Party, on such date as such Acceding Party becomes a party to the Intercreditor Agreement, directly or through its respective agent, via execution of an Accession Agreement, in each case, by virtue of such party’s execution of such Accession Agreement, shall appoint U.S. Bank National Association, as “Collateral Agent” for the benefit of the Secured Parties with respect to the Liens on the Collateral and the rights and remedies granted pursuant to this Agreement and the other Collateral Documents. U.S. Bank National Association hereby accepts such appointment to act as Collateral Agent in accordance with the terms of this Agreement and the other Collateral Documents. The Trustee (on behalf of the owners of the Bonds), the Working Capital Loan Provider and the Parity Lien Agent (on behalf of the Parity Lien Claimholders) and, on such date as an Acceding Party becomes a party to the Intercreditor Agreement, directly or through its respective agent, such Acceding Party, hereby authorize and direct the Collateral Agent to act in strict accordance with the terms of this Agreement notwithstanding any contrary provision in the other Collateral Documents, but subject to the terms of the Intercreditor Agreement, with respect to Enforcement Actions, and the application of any Collateral or proceeds thereof. The Collateral Agent hereby accepts and agrees to, and the Company hereby acknowledges and consents to, the foregoing authorization and direction of the Trustee (on behalf of the owners of the Bonds), the Working Capital Loan Provider and the Parity Lien Agent (on behalf of the Parity Lien Claimholders) and, on and after the date on which an Acceding Party becomes a party to the Intercreditor Agreement, directly or through its respective agent, such Acceding Party.

(b) Except to the extent expressly provided to the contrary in this Agreement or any other Document, any action to be taken by the Collateral Agent under any of the Documents requiring instruction shall be taken only at the written direction of the Required Agent (acting in accordance with the Intercreditor Agreement (other than as to, until the Discharge of the Working Capital Loan Obligations, the Working Capital Collateral)) or the Working Capital Loan Provider (acting in accordance with the Intercreditor Agreement but solely with respect to the Working Capital Collateral).

(c) Subject to the terms hereof, including Sections 2.01(b) and (d), the Collateral Agent agrees, for the benefit of the Secured Parties, to administer and enforce this Agreement and the other Collateral Documents, and, among other remedies, to foreclose upon, collect and dispose of the Collateral and to apply the proceeds therefrom, for the benefit of the Secured Parties, as provided in this Agreement and the Intercreditor Agreement, and otherwise to perform its duties and obligations as the Collateral Agent hereunder and under the Intercreditor Agreement in accordance with the terms hereof and thereof; provided, however, that the Collateral Agent shall have no duties or responsibilities except

those expressly set forth herein or in the other Documents to which it is a party, and no implied covenants or obligations shall be read into this Agreement or any such other Documents against the Collateral Agent.

(d) Notwithstanding anything contained herein to the contrary, the Collateral Agent shall not be required to exercise any discretion or take any discretionary action but shall only be required to act or refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the written instructions of the Required Agent (acting in accordance with the Intercreditor Agreement (other than as to, until the Discharge of the Working Capital Loan Obligations, the Working Capital Collateral)) or the Working Capital Loan Provider (acting in accordance with the Intercreditor Agreement but solely with respect to the Working Capital Collateral), in each case, as specified herein and in such instructions, and such instructions shall be binding upon the Collateral Agent and each of the Secured Creditors; except as otherwise expressly provided for herein and in the Intercreditor Agreement; provided, however, that neither the Collateral Agent nor any other Agent shall be required to take any action which is contrary to any provision hereof or of the Intercreditor Agreement or the Documents or applicable law.

(e) Notwithstanding any other provision of the Collateral Documents, and unless the Required Agent (acting in accordance with the Intercreditor Agreement (other than as to, until the Discharge of the Working Capital Loan Obligations, the Working Capital Collateral)) or the Working Capital Loan Provider (acting in accordance with the Intercreditor Agreement but solely with respect to the Working Capital Collateral) provides written instructions to the Collateral Agent, in no event shall the Collateral Agent be required to foreclose on, or take possession of, the Collateral or take any other Enforcement Action, and in any event, the Collateral Agent shall not be required to take any action, if, in the reasonable judgment of the Collateral Agent, any such action would be in violation of (i) this Agreement or any other Document or (ii) any applicable law, rule or regulation pertaining thereto, or if the Collateral Agent reasonably believes that such action would result in the incurrence of liability by the Collateral Agent for which it is not fully indemnified by the Company pursuant to Sections 2.10 and 7.02 or by the Secured Parties.

(f) Neither the Collateral Agent nor any other Agent shall be responsible to the other Secured Parties for (i) any recitals, statements, representations or warranties by the Company or any of the Secured Parties (other than its own) contained in this Agreement or the other Documents, or any certificate or other document delivered by the Company or any of the other Secured Parties thereunder, (ii) the value, validity, effectiveness, genuineness, enforceability (other than as to the Collateral Agent or any Agent with respect to such documents to which the Collateral Agent or any Agent is a party) or sufficiency of this Agreement or any other document referred to or provided for herein or therein or of the Collateral held by the Collateral Agent hereunder or thereunder, (iii) the performance or observance by the Company or any of the Secured Parties (other than as to itself) of any of their respective agreements contained herein or therein, nor shall the Collateral Agent nor any other Agent be liable because of the invalidity or unenforceability of any provisions of this Agreement or any other Document (other than as to itself) or (iv) the validity, perfection (except as otherwise expressly provided herein), priority or enforceability of the Liens on any of the Collateral, whether impaired by operation of law or by reason of any action or omission to act on its part hereunder (except to the extent such action or omission constitutes bad faith, gross negligence or willful misconduct on the part of the Collateral Agent or any other Agent) or the payment of Taxes, charges, assessments on the Collateral or otherwise as to the maintenance of the Collateral.

(g) Except when an action is expressly required by the Collateral Agent or any other Agent under the Intercreditor Agreement or the Collateral Documents, whenever reference is made in this Agreement or any of the Collateral Documents to any discretionary action by, consent, designation, specification, requirement or approval of, notice, request or other communication from, or other direction

given or action to be undertaken or to be (or not to be) suffered or omitted by the Collateral Agent or any other Agent or to any election, decision, opinion, acceptance, use of judgment, expression of satisfaction or other exercise of discretion, rights or remedies to be made (or not to be made) by the Collateral Agent or any other Agent, it is understood that in all cases (i) the Collateral Agent shall be fully justified in failing or refusing to take any such action if it shall not have received such written instruction, advice or concurrence of the Required Agent (acting in accordance with the Intercreditor Agreement), as it deems appropriate and (ii) each Agent shall be fully justified in failing or refusing to take any such action if it shall not have received such written instruction, advice or concurrence of the required claimholders in accordance with the terms of the Intercreditor Agreement and in all events, indemnity satisfactory to it. This provision is intended solely for the benefit of the Collateral Agent and the other Agents and their respective successors and permitted assigns and is not intended to and will not entitle the other parties hereto to any defense, claim or counterclaim, or confer any rights or benefits on any other party hereto.

(h) Notwithstanding any provision of the Bond Documents or the Collateral Documents to the contrary, none of the Collateral Agent, the Securities Intermediary, any other Agent or any of their respective directors, officers, employees or agents shall be liable or responsible for any action taken or omitted to be taken by the Collateral Agent or such Agent or them hereunder or in connection herewith, except to the extent such action or omission constitutes bad faith, gross negligence or willful misconduct.

Section 2.02 Authorization. By appointing the Collateral Agent pursuant to the terms hereof, the Trustee (on behalf of the owners of the Bonds), the Working Capital Loan Provider and the Parity Lien Agent (on behalf of the Parity Lien Claimholders) (and any Acceding Party) have authorized the Collateral Agent (in its capacity as such) to: (a) execute, deliver and perform in such capacity under this Agreement and each other Document to which the Collateral Agent is or is intended to be a party, (b) exercise and enforce any and all rights, powers and remedies provided to the Collateral Agent by this Agreement and any other Document to which the Collateral Agent is a party in accordance with the terms thereof or any applicable law, and (c) take any other action under and in accordance with this Agreement and any other Document to which the Collateral Agent is a party reasonably incidental to the foregoing. Notwithstanding the foregoing, the Collateral Agent shall not commence an Enforcement Action except in accordance with instructions given by the Required Agent (acting in accordance with the Intercreditor Agreement (other than as to, until the Discharge of the Working Capital Loan Obligations, the Working Capital Collateral)) or the Working Capital Loan Provider (acting in accordance with the Intercreditor Agreement but solely with respect to the Working Capital Collateral), in each case in accordance with the terms of the applicable Collateral Document. All decisions with respect to the type of Enforcement Action which is to be commenced shall be made by, and all actions with respect to prosecution and settlement of such Enforcement Action shall require the written consent of the Required Agent (acting in accordance with the Intercreditor Agreement (other than as to, until the Discharge of the Working Capital Loan Obligations, the Working Capital Collateral)) or the Working Capital Loan Provider (acting in accordance with the Intercreditor Agreement but solely with respect to the Working Capital Collateral), and the Collateral Agent shall not be required to take any Enforcement Action in the absence of any such written consent. Subject to the provisions of this Agreement, the Collateral Agent will pursue the prosecution of any Enforcement Action, which the Collateral Agent is so directed to initiate pursuant to this Agreement. The Collateral Agent shall deliver copies of all notices it receives on behalf of any of the Secured Parties or in connection with the Documents or the 2017 Facility to each Agent promptly upon receipt and each Agent shall deliver such copies to the Parity Lien Claimholders in accordance with the Intercreditor Agreement and the other Documents.

Section 2.03 Administrative Actions. The Collateral Agent may, but shall not be obligated to (except as to the obligation set forth in Section 2.12(d)), take such action as it reasonably deems necessary or advisable to continue the perfection of the Liens on the Collateral held for the benefit of the Secured

Parties at the Company’s reasonable expense. The Collateral Agent shall not release any of the Collateral held by the Collateral Agent for the benefit of such Secured Parties, except: (a) upon the written direction of the Required Agent (acting in accordance with the Intercreditor Agreement (other than as to, until the Discharge of the Working Capital Loan Obligations, the Working Capital Collateral)) or the Working Capital Loan Provider (acting in accordance with the Intercreditor Agreement but solely with respect to the Working Capital Collateral); (b) upon payment in full of (i) the Parity Lien Obligations, as certified to the Collateral Agent by the Trustee (with respect to the Bonds) and any other Designated Representative, as the case may be, with respect to the other Parity Lien Obligations and (ii) the Working Capital Loan Obligations, as certified to the Collateral Agent by the Working Capital Loan Provider; or (c) in connection with the disposition of any assets of the Company made in accordance with the terms of the Financing Documents or where such release is not prohibited under the Intercreditor Agreement and the Collateral Documents. Upon the written request by the Collateral Agent or the Company at any time, the Trustee (and any other Designated Representative), at the Company’s reasonable expense, will confirm in writing the Collateral Agent’s authority to release particular types or items of Collateral pursuant to this Section and the Trustee (on behalf of the owners of the Bonds), the Working Capital Loan Provider and any other Designated Representative hereby agrees to provide such confirmations and releases of Collateral promptly (including UCC releases and terminations). At the Company’s reasonable expense, the Collateral Agent will take all actions necessary, including executing Additional Financing Documents or other Documents to which it is intended to be a party (and any UCC releases and terminations reasonably requested), and amendments, modifications and supplements to the Documents to which it is a party, in each case, to preserve, protect and accept additional Collateral for the benefit of the Secured Creditors, including Parity Lien Claimholders.

Section 2.04 Force Majeure. Neither the Collateral Agent nor any other Agent shall incur any liability for not performing any act or fulfilling any duty, obligation or responsibility under the Intercreditor Agreement and any of the Collateral Documents by reason of any occurrence beyond the control of the Collateral Agent or such Agent resulting from any act or provision of any present or future Law, any act of God or war, civil unrest, local or national disturbance or disaster, any act of terrorism, or the unavailability of the Federal Reserve Bank wire or facsimile or other wire or communication facility and the Collateral Agent and such Agent shall give notice as soon as practicable thereof to the Company.

Section 2.05 Employment of Agents. The Collateral Agent and any other Agent may employ or retain such counsel, accountants, appraisers, agents or other experts or advisers as it may reasonably require for the purpose of determining and discharging its rights and duties hereunder, and, in the absence of the Collateral Agent’s or any other Agent’s bad faith, gross negligence or willful misconduct in retaining such counsel, accountants, appraisers, agents or other experts or advisers, the Company shall pay the reasonable and documented and invoiced out of pocket costs and expenses of such counsel, accountants, appraisers, agents or other experts or advisers (limited, in the case of (i) legal fees and expenses, to the reasonable, documented and invoiced fees, disbursements and other charges of one counsel and, if necessary, one firm of local counsel in each relevant material jurisdiction (and, in the case of a conflict of interest, where the Agent affected by such conflict notifies the Company of the existence of such conflict and thereafter retains its own counsel, one additional counsel) for all Agents (which may include a single special counsel acting in multiple jurisdictions) and (ii) the fees and of any other counsel, accountants, appraisers, agents or other experts or advisers, to the reasonable, documented and invoiced fees, disbursements and other charges of such person; provided, however, that in the absence of an Event of Default that has occurred and is continuing, the Collateral Agent shall not be entitled to incur any costs or expenses of the scope contemplated in this Section 2.05 (other than retaining counsel in clause (i) above) in excess of $10,000 without the prior approval of the Company; provided that such approval (i) shall not be unreasonably withheld, delayed or conditioned and (ii) shall be deemed to have been given in respect of any reasonable costs and expenses if not denied by the Company within ten (10) Business Days of the Company’s receipt of any written request for such approval.

Section 2.06 Reliance of Collateral Agent and Other Agents. In connection with the performance of its duties hereunder, the Collateral Agent shall be entitled to rely conclusively upon, and shall be fully protected in acting, or refraining from acting, in accordance with any written certification, notice, instrument, opinion, request, consent, order, approval, direction or other written communication (including any thereof by facsimile or electronic communication) of the Required Agent (acting in accordance with the Intercreditor Agreement (other than as to, until the Discharge of the Working Capital Loan Obligations, the Working Capital Collateral)), the Working Capital Loan Provider (acting in accordance with the Intercreditor Agreement but solely with respect to the Working Capital Collateral) or of any other Secured Party (to the extent in accordance with the terms hereof or the other Documents to which the Collateral Agent is a party), which the Collateral Agent in the absence of bad faith, gross negligence or willful misconduct reasonably believes to be genuine and to have been signed or sent by or on behalf of the proper Person or Persons, and it shall be entitled to rely conclusively upon the due execution, validity and effectiveness, and the truth, correctness and acceptability of, any provisions contained therein. In connection with the performance of its duties hereunder and under the Intercreditor Agreement, any Agent shall be entitled to rely conclusively upon, and shall be fully protected in acting, or refraining from acting, in accordance with any written certification, notice, instrument, opinion, request, consent, order, approval, direction or other written communication (including any thereof by facsimile or electronic communication) of any Secured Party (to the extent not in violation of the terms hereof or the other Documents to which such Agent is a party), which such Agent in the absence of gross negligence or willful misconduct reasonably believes to be genuine and to have been signed or sent by or on behalf of the proper Person or Persons, and it shall be entitled to rely conclusively upon the due execution, validity and effectiveness, and the truth, correctness and acceptability of, any provisions contained therein. Neither the Collateral Agent nor any other Agent shall have any responsibility to make any investigation into the facts or matters stated in any notice, certificate, instrument, demand, request, direction, instruction, or other communication furnished to it. Whenever this Agreement specifies that any instruction or consent by the Required Agent or the Working Capital Loan Provider, as applicable, is to be given in accordance with the Intercreditor Agreement, the Collateral Agent shall be entitled to rely upon any such instruction or consent by the Required Agent or the Working Capital Loan Provider, as applicable, and the Collateral Agent may presume without investigation that any such instruction or consent by such Agent has been given in accordance with the terms of the Intercreditor Agreement.

Section 2.07 Knowledge. Neither the Collateral Agent nor any other Agent shall be charged with any knowledge held by or imputed to any of the Secured Parties (other than the Collateral Agent) or the Company. Neither the Collateral Agent nor any other Agent shall be deemed to have knowledge of any Default or Event of Default under the Documents, unless an Authorized Officer of the Collateral Agent or such Agent has actual knowledge thereof or the Collateral Agent has received notice from the Trustee or any other appropriate Secured Party or the Company specifying such Default or Event of Default. In the event that the Collateral Agent receives such a notice, the Collateral Agent shall give prompt notice thereof to each Agent and each other Secured Party and upon receipt by each Agent, such Agent shall give prompt notice thereof to the Parity Lien Claimholders.

Section 2.08 Non Reliance on Collateral Agent and Other Agents. The Trustee and the other Agents (on behalf of the owners of the Bonds and the holders of the Parity Lien Obligations, respectively) hereby expressly acknowledge that none of the Collateral Agent and the other Agents, or any of their officers, directors, employees, agents, attorneys in fact or Affiliates has made any representations or warranties to it and that no act by the Collateral Agent or any other Agent (other than any explicit representation or warranty made by the Collateral Agent or such Agent) hereafter taken shall be deemed to constitute any representation or warranty by the Collateral Agent or any other Agent, to any other Secured Party. Except for any notices, reports and other documents expressly required to be maintained by the Collateral Agent or any other Agent, or required to be furnished to the other Secured Parties by the Collateral Agent or any other Agent, hereunder or under the Intercreditor Agreement, the

Collateral Agent and the other Agents, shall not have any duty or responsibility to provide any other Secured Party with any credit or other information concerning the business, operations, property, condition (financial or other), prospects or creditworthiness of the Company or any other Person which may come into the possession of the Collateral Agent or the other Agents, or any of their respective officers, directors, employees, agents, attorneys in fact or Affiliates. U.S. Bank National Association is entering into this Agreement, the Intercreditor Agreement and the other Collateral Documents solely in its capacity as Collateral Agent, as Securities Intermediary, as Trustee and as Parity Lien Agent (as applicable) and not in its individual capacity and in no case shall U.S. Bank National Association (or any Person acting as its successor to any or all of its various capacities set forth above) be personally liable for or on account of any of the statements, representations, warranties, covenants or obligations of the Company hereunder or under the Intercreditor Agreement, all such liability, if any, being expressly waived by the parties hereto and any person claiming by, through or under such party. This Section shall survive the payment of all Parity Lien Obligations (other than contingent indemnification and any other contingent surviving obligations) payable to the Secured Parties. Except as provided in Section 2.12(d) hereof, neither the Collateral Agent, nor any other Agent, shall have any obligation and shall incur no obligation for its failure to monitor or verify the filing of financing statements (or amendments or continuations thereto) and the information contained therein.

Section 2.09 Collateral Agent and Other Agents in Individual Capacity. The Collateral Agent and the other Agents and their respective Affiliates may make loans to, issue letters of credit in favor of, accept deposits from and generally engage in any kind of business with the Company, and its Affiliates as though the Collateral Agent and the other Agents were not the Collateral Agent or the Parity Lien Agent, as applicable, hereunder and under the Intercreditor Agreement and the Collateral Documents. With respect to Parity Lien Obligations made or renewed by it and any note issued to it, if any, the Collateral Agent or the Parity Lien Agent, as applicable, shall have the same rights and powers under this Agreement, the Intercreditor Agreement and the Documents as any other Secured Party and may exercise the same as though it were not the Collateral Agent or the Parity Lien Agent, as applicable, and the term “Secured Party” shall include the Collateral Agent or the Parity Lien Agent, as applicable, in its individual capacity.

Section 2.10 Collateral Agent and Other Agents Under No Obligation. None of the provisions of the Intercreditor Agreement and the Collateral Documents shall be construed to require the Collateral Agent or any other Agent to expend or risk its own funds or otherwise to incur any personal liability, financial or otherwise, in the performance of any of its duties hereunder or thereunder. The Collateral Agent and the other Agents shall be under no obligation to exercise any of the rights or powers vested in them by the Intercreditor Agreement and the Collateral Documents, as applicable, unless the Collateral Agent or such other Agent, shall have been offered and accepted security or indemnity from the Company or the Secured Parties directing the exercise of such rights or powers satisfactory to it (provided nothing in this Agreement requires the Secured Parties to provide such indemnity), against the costs, expenses and liabilities which might be incurred by it in compliance with such request or direction (including interest thereon from the time incurred until reimbursed); provided, however, that for purposes of this Section 2.10, the indemnification provided to the Collateral Agent and the other Agents by the Company pursuant to Section 7.02 is hereby acknowledged as acceptable solely as to the Company.

Section 2.11 Resignation and Removal of Collateral Agent; Successor Collateral Agent; Individual Collateral Agent.

(a) Subject to the appointment and acceptance of a successor Collateral Agent as provided below, the Collateral Agent may resign at any time by giving at least sixty (60) days’ prior written notice thereof to the other Secured Parties and the Company, and the Collateral Agent may be removed at any time with or without cause by the Required Agent upon thirty (30) days’ written notice

thereof to the Collateral Agent, the other Secured Parties and the Company, and in the absence of any Event of Default that has occurred and is continuing, with the consent of the Company, such consent not be unreasonably withheld or delayed; provided such resignation will not be effective until a successor Collateral Agent has been appointed. Upon any such resignation or removal, the Required Agent shall have the right to appoint a successor Collateral Agent which, so long as no Event of Default has occurred and is continuing, shall be reasonably acceptable to the Company. If no successor Collateral Agent shall have been so appointed by the Required Agent within sixty (60) days after the retiring Collateral Agent’s giving of notice of resignation or the removal of the retiring Collateral Agent by the Required Agent, then the retiring Collateral Agent may, on behalf of the Secured Parties, apply to a court of competent jurisdiction (with notice to the Trustee, the Required Agent, the Working Capital Loan Provider and the Company) for the appointment of a successor Collateral Agent, which appointment shall be in accordance with the terms of the Indenture for appointment of a successor Trustee (which terms are incorporated herein by reference, mutatis mutandis, in their entirety). In all such cases, the successor Collateral Agent shall be a bank or trust company organized under the laws of the United States of America or any state thereof that has an office in the State of New York and which agrees to administer the Collateral in accordance with the terms hereof and of the Intercreditor Agreement and the other Collateral Documents and shall have a reported capital and surplus of not less than $150,000,000 and, so long as no Event of Default has occurred and is continuing, shall be reasonably acceptable to the Company. U.S. Bank National Association hereby represents and confirms that it meets the qualifications provided in the preceding sentence. Any fees payable to the successor Collateral Agent shall be agreed to in writing by the Company. Upon the acceptance of any appointment as Collateral Agent hereunder by a successor Collateral Agent, such successor Collateral Agent shall thereupon succeed to and become vested with all the rights, powers, privileges, obligations and duties of the retiring Collateral Agent, and the retiring Collateral Agent shall be discharged from its duties and responsibilities hereunder arising thereafter. After any retiring Collateral Agent’s resignation or removal hereunder as Collateral Agent, the provisions of this Agreement (including Sections 7.01 and 7.02) 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 the Collateral Agent.

(b) If at any time the Collateral Agent shall reasonably determine that it shall be required under applicable law or necessary in order to permit any action to be taken hereunder in accordance with the terms hereof, the Collateral Agent and the Company (with written notice to each Agent) shall execute and deliver all instruments necessary to appoint any Person as a co-collateral agent (“Co-Collateral Agent”) or substitute Collateral Agent, with respect to all or any portion of the Collateral, and all powers, rights, duties, obligations and immunities conferred upon the Collateral Agent hereunder as may be specified therein (but not in excess of or different from those set forth herein for the Collateral Agent). If the Company shall nevertheless refuse to join in the execution of any such instrument within ten (10) Business Days of any written request therefor by the Collateral Agent and if at such time any Event of Default shall have occurred and be continuing, the Collateral Agent may act under the foregoing provisions without the concurrence of the Company and the Company hereby irrevocably makes, constitutes and appoints the Collateral Agent as the agent and attorney-in-fact for the same to act for it under the provisions of (and in accordance with) this clause (b).

Every Co-Collateral Agent shall, to the extent permitted by law, be appointed and act subject to the following provisions and conditions:

(i) all rights and powers, conferred or imposed upon the Collateral Agent may be conferred or imposed upon and may be exercised or performed by such Co-Collateral Agent as specified in the instrument appointing such Co-Collateral Agent;

(ii) notwithstanding any provision of the Bond Documents or the Collateral Documents to the contrary, no Collateral Agent shall be personally liable by reason of any act or

omission of any other Collateral Agent or Co-Collateral Agent hereunder, except any act or omission resulting from its bad faith, gross negligence or willful misconduct; and

(iii) all Co-Collateral Agents shall be subject to the same restrictions or limitations on liability (to the extent applicable) that apply to the Collateral Agent hereunder.

A Co-Collateral Agent shall not be required to meet the conditions of eligibility under Section 2.11(a) if such Co-Collateral Agent holds only an insubstantial amount of the Collateral, as determined by the Required Agent (acting reasonably).

Section 2.12 Books and Records; Reports.

(a) The Collateral Agent shall at all times keep, or cause to be kept, proper books of record and accounts in which complete and accurate entries shall be made of all transactions relating to the Parity Lien Obligations, Revenues and all Project Accounts established pursuant to this Agreement. Such books of record and accounts shall be available for inspection by the Issuer and Trustee or a Designated Representative, or their agents or representatives duly authorized in writing, at reasonable hours and under reasonable circumstances and upon reasonable prior written request. Nothing in this Section 2.12 shall be interpreted to limit the Company’s access to information regarding any Project Accounts or sub-account that is provided by the Collateral Agent online or in another format customarily provided by the Collateral Agent to its clients. Upon request, subject to the Company providing any reasonable information to the Collateral Agent needed to establish such Person with access to such online system, the Collateral Agent will furnish the Company with online access to view all account activity.

(b) Within fifteen (15) days after the end of each month, the Collateral Agent shall furnish to the Company, the Trustee, the Working Capital Loan Provider, the Independent Consultant and each Designated Representative, a bank statement of activity that shall set forth in reasonable detail the account balances, receipts, disbursements (including amounts disbursed, the date of disbursement and the person to whom each payment was made), transfers, investment transactions, and accruals for each of the Project Accounts (including any accounts or subaccounts within the Construction Fund) during such month. Upon reasonable request, and at the expense of the Company, the Collateral Agent shall make copies of all bills and invoices in its possession available to the Company, the Trustee, the Independent Consultant and each Designated Representative.

(c) The Collateral Agent shall maintain records of all receipts, disbursements, and investments of funds with respect to the Project Accounts until the fifth (5th) anniversary of the date on which all of the Parity Lien Obligations (other than contingent indemnification and any other contingent surviving obligations) shall have been paid in full.

(d) On or prior to the date that is six (6) months prior to the expiration date of any UCC financing statement that has been filed with respect to the Collateral for which Collateral Agent is secured party, the Collateral Agent shall provide each Agent and the Company notice of the impending expiration date. Within sixty (60) days following receipt of the notice from the Collateral Agent, the Company shall provide the Collateral Agent and each Agent with evidence that the required continuation statement has been properly filed, provided that if the Collateral Agent does not receive such written evidence within the applicable sixty (60) day period, the Collateral Agent shall cause the required continuation statement to be filed, at the expense of the Company; provided, further, that failure by the Company to provide such written evidence within the applicable sixty (60) day period shall not constitute an Event of Default.

Section 2.13 No Consequential Damages. In no event shall the Collateral Agent or any other Agent be liable under or in connection with this Agreement, the Intercreditor Agreement or the other Documents for indirect, special, incidental, punitive or consequential losses or damages of any kind whatsoever, including but not limited to lost profits, whether or not foreseeable, even if the Collateral Agent or any other Agent has been advised of the possibility thereof and regardless of the form of action in which such damages are sought.

Section 2.14 Merger of the Collateral Agent. Any corporation or company into which the Collateral Agent shall be merged or converted, or with which it shall be consolidated, or any corporation or company resulting from any merger, conversion or consolidation to which the Collateral Agent shall be a party, shall be the Collateral Agent under this Agreement, without the execution or filing of any paper or any further act on the part of the parties hereto, provided that such resulting corporation or company shall meet the requirements of Section 2.11(a). Upon the occurrence of any such event the Collateral Agent shall promptly provide written notice thereof to each Agent and the Company.

Section 2.15 Reasonable Care. The powers conferred on the Collateral Agent hereunder are being conferred solely to protect its interest in the Collateral and shall not impose any duty upon it to exercise any such powers unless otherwise expressly provided. Except for the safe custody and preservation of the Collateral in its possession and the accounting for monies actually received by it hereunder, the Collateral Agent shall have no other duty as to the Collateral, whether or not the Collateral Agent or any of the other Secured Parties has or is deemed to have knowledge of any matters, or as to the taking of any necessary steps to preserve rights against any parties or any other rights pertaining to the Collateral. The Collateral Agent hereby agrees to exercise reasonable care in respect of the custody and preservation of the Collateral. The Collateral Agent shall be deemed to have exercised reasonable care in the custody and preservation of the Collateral in its possession if such Collateral is accorded treatment substantially equal to that which the Collateral Agent accords its own property and the Collateral Agent shall not be liable for any loss or dimunition in value of any Collateral except as a result of its gross negligence or willful misconduct.

ARTICLE III COMPANY REMAINS LIABLE

Anything herein to the contrary notwithstanding, (a) the Company shall remain liable under its contracts and agreements (including the Documents) to the extent set forth therein to perform all of its duties and obligations thereunder to the same extent as if this Agreement had not been executed, (b) the exercise by the Collateral Agent or any other Agent of any of the rights hereunder shall not release the Company from any of its duties or obligations under its contracts and agreements, and (c) none of the Collateral Agent, any other Agent or any of the other Secured Parties shall have any obligation or liability under the contracts and agreements of the Company by reason of this Agreement, nor shall the Collateral Agent or any other Agent be obligated to perform any of the obligations or duties of the Company thereunder or to take any action to collect or enforce any claim for payment assigned thereunder. Notwithstanding the foregoing, the Collateral Agent may (but shall not be obligated to) itself perform, or cause performance of, any agreement of the Company contained herein relating to the perfection or preservation of the Collateral, and the reasonable expenses of the Collateral Agent incurred in connection therewith shall be payable by the Company under Article VII hereof.

ARTICLE IV SPECIAL COVENANTS

Section 4.01 Additional Obligations.

(a) The Company shall not incur any obligations or indebtedness, having a Lien on the Collateral except for Additional Obligations. Additional Obligations may only be issued for the following purposes:

(i) to pay costs of completing and equipping the 2017 Facility in an amount not to exceed 10% of the Costs of the Project subject to receipt by the Collateral Agent of a certification from the Independent Consultant that the proceeds of such Additional Obligations will be sufficient to complete the Project;

(ii) to pay costs of acquiring additional equipment for use at the Terminal;

(iii) to pay costs of repairs, replacements, additions and improvements to the Terminal facilities;

(iv) to refund outstanding Series 2017 Bonds, provided, that in the case where only a portion of the outstanding Series 2017 Bonds is refunded, (A) the Maximum Annual Debt Service with respect to Parity Obligations (after giving effect to the issuance of Additional Obligations) is no greater than the Maximum Annual Debt Service before the issuance of such Additional Obligations and (B) the final maturity of the Additional Obligations is no later than the final maturity of the Series 2017 Bonds;

(v) to refund outstanding Parity Obligations (other than the Series 2017 Bonds), provided, that in the case where only a portion of such outstanding Parity Obligations is refunded, (A) the Maximum Annual Debt Service with respect to Parity Obligations (after giving effect to the issuance of Additional Obligations) is no greater than the Maximum Annual Debt Service before the issuance of such Additional Obligations and (B) the final maturity of the Additional Obligations is no earlier than the final maturity of the existing Parity Obligations;

(vi) to pay costs of terminating Interest Hedging Agreements; and

(vii) to pay costs of issuing such Additional Obligations, to make deposits to the applicable Debt Service Reserve Accounts and to pay capitalized interest and other costs reasonably related to such Additional Obligations.

(b) As a condition to the issuance of an Additional Obligation, there shall first be delivered to the Collateral Agent a certificate, dated as of a date between the date of pricing the Additional Obligations being issued and the date of delivery of such Additional Obligations (both dates inclusive), prepared in good faith by a financial officer of the Company showing that either:

(c) The terms and provisions relating to any Additional Obligations, shall be as set forth in the Additional Financing Document providing for the issuance of such Additional Obligations, provided, however, that the final maturity of any Additional Obligations shall not be later than the date that the Port Authority Lease is scheduled to expire.

(d) For the avoidance of doubt, Additional Obligations shall not include, at any time, Shareholder Loans or any other unsecured obligations owed to an affiliate of the Company.

Section 4.02 Subordinate Obligations and Shareholder Loans. Nothing in this Agreement shall prohibit the incurrence by the Company, of (A) Subordinate Obligations payable from available funds in the Subordinate Obligations Fund, provided that (i) such Subordinate Obligations may only be issued to refund Parity Obligations or Subordinate Obligations or to finance capital projects at the Terminal; (ii) the Subordinate Obligations provide that they may not be accelerated unless and until the then-outstanding Parity Obligations have been accelerated; and (iii) so long as any Parity Obligations are outstanding, no remedies may be exercised by the holders of the Subordinate Obligations or by a trustee for the benefit of such holders (and if a default or Event of Default has occurred and is continuing, no payments may be made to such holders until the Parity Obligations are paid), except that the Subordinate Obligations may be accelerated if the Parity Obligations have been accelerated and the holders thereof or trustee may make a claim in any bankruptcy or similar proceeding or (B) any Shareholder Loans.

Section 4.03 Rate Covenant.

(a) The Company covenants to (a) establish, fix, set and collect rates, fees, rentals and charges in connection with the Terminal and for services rendered by the Company in connection with the Terminal and (b) conduct and maintain its operations so that (1) the Company has funds to pay all Operating Expenses and (2) the Debt Service Coverage Ratio, calculated at the end of each Fiscal Year, beginning with the Fiscal Year ending December 31, 2018, will not be less than 1.10 to 1.00 as certified by the Company in substantially the form of Exhibit C attached hereto and delivered to the Collateral Agent not later than five days after the delivery of the Annual Report (as defined in the Continuing Disclosure Agreement) pursuant to the Continuing Disclosure Agreement.

(b) Failure to achieve the Debt Service Coverage Ratio set forth in clause (a) in any Fiscal Year shall not constitute an Event of Default as long as in the event the Debt Service Coverage Ratio is not achieved in any Fiscal Year, the Company will retain and direct an Independent Consultant to make recommendations as to the revision of the Company’s business operations and its schedule of rates, fees, rentals and charges for the use of the Terminal and for services rendered by the Company in connection with the Terminal, and after receiving such recommendations or giving reasonable opportunity for such recommendations to be made the Company shall take all commercially reasonable measures to revise the schedule of rates, fees, rentals and charges as may be necessary to achieve such Debt Service Coverage Ratio or, if in the opinion of the Independent Consultant the attainment of such Debt Service Coverage Ratio is impracticable, to the highest Debt Service Coverage Ratio attainable. The Company shall be obligated to implement such recommendations to the extent such

recommendations are commercially reasonable and are not prohibited or restricted by applicable Law, accounting policies or contractual obligations (so long as such contractual obligations were not entered into in contemplation of such recommendation).

Section 4.04 Annual Forecast and Maintenance Plan. On or prior to December 20 of each Fiscal Year beginning with the first full Fiscal Year after the Closing Date, the Company shall submit the Annual Forecast and the Maintenance Plan for the next succeeding Fiscal Year to the Trustee and the Collateral Agent, provided, however, that the Company shall submit the initial Annual Forecast and a Maintenance Plan on the Closing Date. The Company will use commercially reasonable efforts, consistent with normal operations and maintenance requirements, to operate and maintain the Project, or cause the Project to be operated and maintained, substantially in accordance with the Annual Forecast and the Maintenance Plan; provided, that the Collateral Agent shall have no duty to monitor such operations and maintenance; provided, further that the Company may, from time to time, revise the Annual Forecast and/or the Maintenance Plan, as applicable, as may be reasonably necessary to address changes to (i) in the case of the Annual Budget, the projected Revenues and Operating Expenses for the Fiscal Year and (ii) in the case of the Maintenance Plan, the projected major capital expenditures and repairs for the next succeeding five Fiscal Years. Any such revised Annual Forecast or revised Maintenance Plan shall be submitted to the Trustee and the Collateral Agent promptly after completion thereof, and any reference to Annual Forecast or Maintenance Plan in this Agreement or in any other Document shall refer to such Annual Forecast or Maintenance Plan as so revised.

Section 4.05 No Encumbrances. The Company shall not create, incur, assume or permit to exist or be created or permit any Lien with respect to the Collateral or assign, pledge or in any way transfer or encumber its rights to receive income from the Terminal, while any Parity Obligation or Subordinate Obligation is outstanding, except for Permitted Liens. For the avoidance of doubt, the Company shall not grant any leasehold mortgage to any Person while the Series 2017 Bonds are outstanding.

Section 4.06 Capital Expenditure Plan. On or prior to November 30, 2029 (or such later date as specified in the Port Authority Lease), the Company shall have made an aggregate amount of at least $500,000,000 (or such lesser amount as the Port Authority may elect to accept without reducing the Extended Term (as defined in the Port Authority Lease) of Qualifying Expenditures (as defined in the Port Authority Lease) for the construction of capital improvements and the acquisition and installation or placement of capital fixtures, equipment or other capital items at the Premises (as defined in the Port Authority Lease), and reasonably promptly after making such Qualifying Expenditures in such amount, the Company shall exercise the option to extend the Term (as defined in the Port Authority Lease) for the Extended Term. Each of the parties hereto acknowledge and agree that as of the Closing Date, the Company has made an aggregate amount of $[370],000,000 of such Qualifying Expenditures.

ARTICLE V THE PROJECT ACCOUNTS

Section 5.01 Establishment of the Project Accounts.

(a) The following Project Accounts are hereby established and created in the name of the Collateral Agent (the Project Accounts set forth below, including any additional accounts or sub- accounts established and created pursuant to the terms hereof therein, collectively, the “Securities Accounts”):

(i) the Construction Fund, and within the Construction Fund:

(1) the Bonds Construction Account;

(2) the Equity Construction Account;

(ii) the Revenue Fund;

(iii) the Debt Service Fund, and within the Debt Service Fund:

(1) the Interest Payment Account;

(2) the Capital Lease Payment Account;

(3) the Principal Payment Account; and

(4) the Purchase Money Payment Account;

(iv) the Debt Service Reserve Fund, and within the Debt Service Reserve Fund, the Series 2017 Debt Service Reserve Account;

(v) the Operating Reserve Fund;

(vi) the Major Maintenance Reserve Fund;

(vii) the Subordinate Obligations Fund;

(viii) the Residual Fund; and

(ix) the Loss Proceeds Fund.

Each such account, and any other Project Accounts and accounts established under the Indenture as of the Closing Date, shall be identified in the manner set forth in Exhibit D attached hereto. To the extent that the Company requests the deposit of funds therein, the applicable account shall include the sub-accounts (each of which shall be a separately identified account with a separate and distinct name and account number) so requested and described or contemplated herein. In addition, upon the written request of the Company, the Collateral Agent shall establish and maintain additional Project Accounts, or sub- accounts within the Project Accounts (each of which shall be a separately identified account with a separate and distinct name and account number and, upon establishment, each of which shall be deemed a “Project Account” hereunder, subject to the terms and conditions of this Agreement) for the deposit of funds received by the Company not otherwise required to be deposited hereunder or under the Indenture to be used for the purposes and under the requisition procedures solely specified in any such request; provided, that the Company may at any time direct the Collateral Agent to transfer to the Revenue Fund any remaining funds therein not required for the specified purpose to which such additional account or sub-account pertains. Exhibit D shall be updated from time to time upon the establishment of any accounts or sub-accounts after the Closing Date by the Company and the Collateral Agent hereunder, by the Company and the Deposit Account Bank subject to a Control Agreement and permitted hereunder and by the Trustee under the Indenture, and thereafter, promptly delivered to the Required Agent; such updated Exhibit D shall be deemed effective for all purposes hereunder without further action by the parties.

(b) The Company hereby confirms that it has established an operating account (the “Operating Account”) subject to a Control Agreement with the Deposit Account Bank. The Operating Account shall also constitute a Project Account (but not one of the Securities Accounts).

(c) All of the Project Accounts either shall be held under this Agreement or under the control of the Collateral Agent, pursuant to a Control Agreement. The Company hereby irrevocably authorizes the Collateral Agent to credit funds to or deposit funds in, and to withdraw and transfer funds from, each of the Project Accounts in accordance with the terms of this Agreement (and the Control Agreements) and without further consent of the Company.

Section 5.02 Construction Fund.

(a) Bonds Construction Account. On the Closing Date, the proceeds of the Series 2017 Bonds, net of (i) all Costs of Issuance incurred in connection with the issuance thereof, (ii) the amounts to be deposited in connection with the redemption of the Series 2003 Bonds (as defined in the Indenture) and (iii) the amounts to be deposited into the Series 2017 Debt Service Reserve Account, shall be deposited into the Bonds Construction Account and thereafter, any interest earned on such proceeds shall be deposited into the Bonds Construction Account. Amounts on deposit in the Bonds Construction Account shall be used to pay Costs of the Project or to reimburse the Company or any affiliate of the Company for any Costs of the Project actually paid by the Company or on behalf of the Company and eligible for reimbursement pursuant to the Tax Certificate. The Collateral Agent shall from time to time withdraw funds from the Bonds Construction Account in accordance with a Requisition delivered by the Company pursuant to Section 5.03. The Bonds Construction Account is created solely for the benefit of the Trustee on behalf of the owners of the Series 2017 Bonds and shall not be subject to any Lien in favor of any Person other than the Collateral Agent solely for the benefit of the Trustee on behalf of the owners of the Series 2017 Bonds and shall be held by the Collateral Agent for the exclusive benefit of only such parties.

(b) Equity Construction Account. From time to time, the proceeds of any equity contributions or Shareholder Loans may be deposited into the Equity Construction Account or into a new sub-account of the Construction Fund pursuant to the terms hereof at the sole option of the Company. Amounts on deposit in the Equity Construction Account shall be used to pay Costs of the Project or to reimburse the Company or any affiliate of the Company for any Costs of the Project actually paid by the Company or on behalf of the Company. The Collateral Agent shall from time to time withdraw funds from the Equity Construction Account in accordance with a Requisition delivered by the Company pursuant to Section 5.03.

(c) Fund Transfer After Completion Date. Subject to Section 5.02(g) below, as soon as practicable after the Completion Date and in any event not more than sixty (60) days from the date of receipt by the Collateral Agent of the Tax Completion Certificate and the Contractor’s Completion Certificate signed by an Authorized Company Representative, any balance remaining in the Construction Fund shall without further authorization, instruction or delivery by the Company of a Requisition to the Collateral Agent be transferred by the Collateral Agent to the Revenue Fund.

(d) Closing Date Costs. Notwithstanding anything herein to the contrary, any disbursements requested to be made from the Construction Fund for Costs of Issuance and other payments to be made on or in connection with the Closing Date shall be made pursuant to a Requisition delivered on or within ninety (90) days after the Closing Date.

(e) Proceeds of Additional Obligations or Subordinate Obligations. Net proceeds of Additional Obligations or Subordinate Obligations issued to finance Costs of the Project prior to the

Completion Date (but not refinancing proceeds which may be deposited under the Indenture to facilitate such refinancing) shall be remitted to the Collateral Agent, for deposit into additional sub-accounts of the Construction Fund as provided in Section 5.01(a) and Section 5.02(f).

(f) Sub-Accounts. In accordance with the terms of Section 5.01(a), the Collateral Agent, upon direction from the Company, shall open new sub-accounts of the Construction Fund as specified by the Company (including the name of any such sub-account) for the purpose of (i) depositing the proceeds of any Additional Obligations or Subordinate Obligations (but not refinancing proceeds which may be deposited under the Indenture or as provided in Section 5.02(e) to facilitate such refinancing) permitted to be incurred by the Financing Documents in accordance with Section 5.02(e), (ii) accounting for and payment of Costs of Issuance or otherwise thereof, or (iii) any other purpose permitted by the Financing Documents. To the extent that such a sub-account of the Construction Fund is established for Debt pursuant to this Section 5.02(f), such proceeds may be used for the purposes for which such Debt is incurred and requisitioned solely as set forth in any related Additional Financing Document or other agreement evidencing such Debt; provided, that the Company may, at any time, (x) open such sub-accounts, (y) direct the Collateral Agent to retain any necessary amounts therein and (z) transfer any remaining funds therein to the Revenue Fund; provided, further, that, for the avoidance of doubt, amounts on deposit in the other Project Accounts or the accounts under the Indenture may not be transferred to such new sub-accounts unless such transfers are expressly permitted herein or therein.

(g) Funds Transfer Required Pursuant to the Lease Agreement. Notwithstanding anything in this Section 5.02 to the contrary, on or after the earlier of the third anniversary of the issuance date of the Series 2017 Bonds or the Completion Date, the Collateral Agent shall transfer all amounts on deposit in the Construction Fund representing any remaining proceeds of Series 2017 Bonds (other than amounts (x) retained by the Collateral Agent for any costs of Construction not then due and payable or if due and payable, not then paid, (y) to be deposited in the Rebate Fund and (z) to be used to finance the costs of additional capital projects selected by the Company upon receipt of a Favorable Opinion of Bond Counsel) to the Trustee for the purpose of redeeming Series 2017 Bonds in accordance with Section 7.24 of the Lease Agreement.

Section 5.03 Construction Fund Requisition Procedures.

(a) Withdrawals from all sub-accounts of the Construction Fund, collectively, may be made from time to time, subject to the terms and conditions of Section 5.02 and this Section 5.03 (to the extent applicable).

(b) Subject to the last sentence of this clause (b) and other than as expressly provided in Sections 5.02(c) and 5.02(f), the Company shall request disbursements from monies on deposit in the Construction Fund (and any sub-account thereof) by delivering to the Collateral Agent (with a copy to each Agent), not later than the second (2nd) Business Day prior to the proposed date of disbursement, a withdrawal certificate (the “Company Withdrawal Certificate”) signed by an Authorized Company Representative in the form of Exhibit G attached hereto (collectively, a “Requisition”). Upon receipt of each Requisition, the Collateral Agent shall make the payments set forth in such Requisition out of money in the Construction Fund (and each sub-account thereof) as set forth in such Requisition. For the avoidance of doubt, the Collateral Agent is not prevented by the two (2) Business Day notice requirement from paying the obligations set forth in the Requisition prior to the date of disbursement proposed in the Requisition. In making such payments the Collateral Agent may conclusively rely upon the Requisition without further inquiry. Except as provided in Sections 5.02(c), 5.02(f) and 5.02(g), any payments from the Construction Fund shall be made by the Collateral Agent solely based on Requisitions received from time to time pursuant to this Section 5.03. The opening of or requisitioning of amounts on deposit in any

new sub-accounts pursuant to Section 5.02(f) shall be made by the Collateral Agent solely based on instructions received by the Collateral Agent from the Company.

(c) Each Company Withdrawal Certificate shall set forth the funds requested to be withdrawn and the applicable accounts and payees to which such funds shall be transferred (with a description of the purpose therefor), referencing customary invoices, to the extent required. Subject to Section 5.03(e) and Section 5.03(e) hereof, each Company Withdrawal Certificate shall include the following certifications of the Company as of the date of proposed requisition:

(ii) No Event of Default has occurred and is continuing.

Section 5.04 Revenue Fund.

(a) Revenue Fund.

(i) All Revenues received by the Company will be promptly deposited by the Company (or transferred by the Collateral Agent, as applicable) into the Revenue Fund, except for specific amounts required or expressly permitted to be deposited into other accounts under this Agreement or the Indenture as described herein and therein, provided, however that following the acceleration of Working Capital Loan Obligations and termination of lending commitments upon the occurrence and during the continuance of an event of default under the related Working Capital Loan Document, until the Discharge of the Working Capital Loan Obligations, all Revenues constituting Working Capital Collateral and other amounts constituting Working Capital Collateral that are identified to the Collateral Agent in writing by the Company or a Working Capital Loan Provider as such shall be applied in accordance with Section [___] of the Intercreditor Agreement prior to being deposited to the Revenue Fund.

(ii) Subject to the foregoing, the Company will promptly, but no later than [five (5)] Business Days after receipt, deposit or cause to be deposited into the Revenue Fund (A) all Revenues received by the Company, (B) all other amounts received by the Company from any source whatsoever, unless deposited in one of the other Project Accounts as required or permitted by the terms of this Agreement, including, at the option of the Company, additional equity contributions, which may be deposited in any of the Project Accounts as directed by the Company, and (C) transfers from other accounts (including the Project Accounts and any interest earnings thereon) required by the terms of this Agreement or the Indenture. Pending such deposit, the Company shall hold all such amounts coming into its possession in trust for the benefit of the Secured Parties.

(b) Payments out of Revenue Fund. Commencing on the Monthly Funding Date on or immediately after the Closing Date, subject to Section 5.18 hereof, including the delivery of a Funds Transfer Certificate by the Company (to the extent required by such Section 5.18) and subject to Section 6.06 hereof, the Collateral Agent shall make the following withdrawals, transfers and payments from the Revenue Fund (after payment of any fees, administrative costs and other expenses then due and payable to the Collateral Agent, the Trustee, any Agent, the Issuer, or any other Secured Party, or their respective agents or trustees, as applicable, and payment of any costs due to any Nationally Recognized Rating Agencies then rating the Bonds) in the amounts, at the times and only for the purposes specified below

and in the following order of priority (it being agreed that (i) no amount shall be withdrawn on any date pursuant to any clause below until amounts sufficient as of that date for all the purposes specified under the prior clauses shall have been withdrawn or set aside and (ii) the obligation with respect to the amounts required to be transferred pursuant to any clause below is only to the extent there are sufficient amounts on deposit in the Revenue Fund on such Monthly Funding Date to make any such transfer):

First, on each Monthly Funding Date, to the Operating Account an amount equal to the Operating Expenses projected pursuant to the Annual Forecast to be due and payable prior to the next succeeding Monthly Funding Date;

Second, on each Monthly Funding Date, an amount equal to any payments then due and payable by the Company to the Series 2017 Rebate Fund or any similar rebate fund established with respect to the Bonds and any future tax-exempt borrowing transaction;

Third, on each Monthly Funding Date, pro rata to the applicable sub-accounts of the Interest Payment Account for the payment of interest on Parity Obligations, the sum of (a) the total aggregate amount of interest to be paid in respect of such Parity Obligations on the next applicable Interest Payment Date divided by the number of months in the relevant interest period, plus (b) without duplication, any deficiency from a prior Monthly Funding Date then existing; provided, that the deposit on the Monthly Funding Date occurring on or immediately before an applicable Interest Payment Date will equal the amount required, taking into account the amount then on deposit in the applicable sub-accounts of the Interest Payment Account, to pay the interest payment due with respect to such Parity Obligations on such Interest Payment Date;

Fourth, on each Monthly Funding Date, commencing on (x) for payments in respect of principal, sinking fund payments, mandatory prepayment or mandatory redemption, the Monthly Funding Date that is twelve months before the applicable first Principal Payment Date (including any mandatory sinking fund redemption date or any other mandatory prepayment or mandatory redemption date) and (y) for payments in respect of Capital Lease Obligations and Purchase Money Obligations, the first Monthly Funding Date to occur after the Closing Date, pro rata to (1) the applicable sub-accounts of the Capital Lease Payment Account for the payment of any Capital Lease Obligations, the sum of (a) the total aggregate amount to be paid in respect of such Capital Lease Obligations on the next applicable Capital Lease Payment Date plus (b) any deficiency from a prior Monthly Funding Date then existing; (2) the applicable sub-accounts of the Principal Payment Account for the payment of principal, sinking fund payments, mandatory prepayment or mandatory redemption, as applicable, on Parity Obligations (other than Capital Lease Obligations and Purchase Money Obligations), the sum of (a) the total aggregate amount of such principal, sinking fund payments, mandatory prepayment or mandatory redemption, as applicable, to be paid in respect of such Parity Obligations on the next applicable Principal Payment Date divided by the number of months between the immediately prior applicable Principal Payment Date and the next applicable Principal Payment Date, plus (b) any deficiency from a prior Monthly Funding Date then existing; and (3) the applicable sub-accounts of the Purchase Money Payment Account for the payment of any Purchase Money Obligations, the sum of (a) the total aggregate amount to be paid in respect of such Purchase Money Obligations on the next applicable Purchase Money Payment Date plus (b) any deficiency from a prior Monthly Funding Date then existing; provided, that the deposit on the Monthly Funding Date occurring on or immediately before an applicable Principal Payment Date, Capital Lease Payment Date or Purchase Money Payment Date, as applicable, will equal the amount required, taking into account the amount then on deposit in the applicable sub-accounts of the Principal Payment Account, the Capital Lease Payment Account and the Purchase Money Payment Account, as applicable, to pay

such payments due with respect to such Parity Obligations on such Principal Payment Date, Capital Lease Payment Date and Purchase Money Payment Date, as applicable;

Fifth, on each Monthly Funding Date, to the applicable sub-accounts of the Debt Service Reserve Fund in respect of the Bonds an amount to the extent necessary to fund such sub-account so that the balance therein (taking into account amounts then on deposit therein) plus the aggregate amount available to be drawn on any Debt Service Reserve Letters of Credit on deposit therein equals the applicable Debt Service Reserve Required Balance;

Sixth, on each Monthly Funding Date, to the Operating Reserve Fund, to the extent that the amounts in the Operating Reserve Fund are less than the Operating Reserve Required Balance, an amount equal to the lesser of: (i) $500,000 and (ii) the amount necessary so that the balance in the Operating Reserve Fund plus the aggregate amount available to be drawn on any Operating Reserve Letters of Credit on deposit therein equals the Operating Reserve Required Balance;

Seventh, on each Monthly Funding Date after the Completion Date, to the Major Maintenance Reserve Fund, to the extent that the amounts in the Major Maintenance Reserve Fund are less than the Major Maintenance Reserve Required Balance, an amount equal to the Major Maintenance Reserve Deposit Requirement;

Eighth, on each Monthly Funding Date, to the Subordinate Obligations Fund, an amount equal to the amount necessary to pay Debt Service in respect of Subordinate Obligations that will become due and payable prior to the next succeeding Monthly Funding Date;

Ninth, on each Monthly Funding Date, to the Residual Fund, all remaining amounts, if any.

(c) For the purposes of any transfers with regards to a particular series of Bonds pursuant to clauses Third, Fourth and Fifth of Section 5.04(b), Section 5.04(e), Section 5.04(f), Section 5.04(g), Section 5.05(a)(ii), Section 5.05(b)(ii), Section 5.09(b) and Section 5.10(d), all determinations of the applicable amount of interest payable or principal due on each such series of Bonds on any applicable Payment Date (including any mandatory sinking fund redemption date) shall be made in accordance with Exhibit C attached to the Indenture, as such exhibit may be updated from time to time by the Company (including in connection with any supplemental indenture with respect to the issuance of Additional Bonds) and delivered to the Collateral Agent; such updated exhibit shall be deemed effective without any further action upon receipt by the Collateral Agent.

(d) To the extent that on any date of determination amounts on deposit in any Reserve Fund created hereunder are in excess of such Reserve Fund’s respective Reserve Required Balance, as applicable, such excess amounts shall be transferred to the Revenue Fund in accordance with a Funds Transfer Certificate delivered by the Company pursuant to Section 5.17; provided that, prior to any such transfer of funds from any Reserve Fund pursuant to this Section 5.04(d), the Company may, at its option, reduce such excess amounts on deposit in such Reserve Fund by reducing the stated amount of any Debt Service Reserve Letters of Credit, Major Maintenance Reserve Letters of Credit or Operating Reserve Letters of Credit, as applicable, on deposit therein by the amount of any such excess.

(e) (i) To the extent there are insufficient amounts in the Revenue Fund to make the transfers required by any or all of clauses First through Seventh of Section 5.04(b) on any Monthly Funding Date, amounts shall be withdrawn from the following Project Accounts in the following priority in an amount up to the amount of such shortfall in the priority set forth in Section 5.04(b): first, from the Residual Fund; and second, the Subordinate Obligations Fund; and (ii) after application of the funds available pursuant to clause (i) of this Section 5.04(e), to the extent there are insufficient amounts in the

Revenue Fund to make the transfers required by any or all of clauses First through Fifth of Section 5.04(b) on any Monthly Funding Date, amounts shall be withdrawn from the following Project Accounts in the following priority in an amount up to the amount of such shortfall in the priority set forth in Section 5.04(b): first, the Major Maintenance Reserve Fund; and second, the Operating Reserve Fund.

(f) In the event funds on deposit in the Revenue Fund are insufficient to fund at the times required thereby, the transfers required by clauses Third and Fourth of Section 5.04(b):

(i) only with respect to the Series 2017 Bonds, after application of the funds available pursuant to Section 5.04(e), amounts shall be withdrawn from the Series 2017 Debt Service Reserve Account and transferred in accordance with Sections 5.05(a) and (b) in that order of priority in an amount up to the amount of such shortfall; and

(ii) only with respect to any other Bonds to the extent such Bonds require a sub-account of the Debt Service Reserve Fund, after application of the funds available pursuant to Section 5.04(e), amounts shall be withdrawn from such other sub-account of the Debt Service Reserve Fund with respect to such other Bonds and transferred in accordance with Sections 5.05(a) and (b) in that order of priority in an amount up to the amount of such shortfall.

(g) If at any time the total amounts held by the Trustee available for the payment of a particular series of Bonds in the applicable interest account and principal account under the Indenture plus the amount held by the Collateral Agent available for the payment of such series of Bonds in the applicable sub-accounts of the Debt Service Fund and the Debt Service Reserve Fund are sufficient to pay all of the principal of and interest and premium, if any, on such series of Bonds on the applicable scheduled Payment Dates, as applicable, the Company may elect to instruct the Collateral Agent to transfer such amounts as are in the Collateral Agent’s control to the Trustee for deposit into the applicable sub-accounts of the Series 2017 Debt Service Fund for payment of Debt Service on the Series 2017 Bonds; in which case, notwithstanding clauses Third and Fourth of Section 5.04(b), any transfer of funds into the applicable sub-accounts of the Debt Service Fund to the extent required to be made or otherwise on each applicable Monthly Funding Date for the payment of such Debt Service on such series of Bonds shall be deemed to have occurred on each such Monthly Funding Date. Further, if at any time, so long as a particular series of Bonds are the only outstanding Parity Obligations, the aggregate amount available for the payment of Debt Service on such series of Bonds in any Project Accounts and in the Series 2017 Interest Account and the Series 2017 Principal Account under the Indenture are sufficient to pay all of the principal of and interest and premium, if any, on such series of Bonds on the applicable scheduled Payment Dates, as applicable, the Company may elect to instruct the Collateral Agent to transfer such amounts as are in the Collateral Agent’s control to the Trustee for deposit into the applicable sub-accounts of the Series 2017 Debt Service Fund for payment of Debt Service on such series of Bonds; in which case, notwithstanding clauses Third and Fourth of Section 5.04(b), any transfer of funds into the applicable sub-accounts of the Debt Service Fund to the extent required to be made or otherwise on each applicable Monthly Funding Date for the payment of such Debt Service on such series of Bonds shall be deemed to have occurred on each such Monthly Funding Date.

Section 5.05 Debt Service Fund.

(a) Interest Payment Account.

(i) Funds will be deposited in the Interest Payment Account, or any sub- account established therein, in accordance with Sections 5.04(b), 5.04(e) and 5.04(f) and withdrawn for the payment of the interest portion of Debt Service on the Parity Obligations in accordance with this Section 5.05(a), subject to Section 5.04(g) and Section 6.06.

(ii) On the Business Day immediately prior to each applicable Payment Date when the interest portion of Debt Service on the Parity Obligations shall be due and payable, the Collateral Agent shall transfer monies on deposit in the applicable sub-account of the Interest Payment Account, pro rata to the payment of the interest portion of all of the Parity Obligations until the interest portion of all such Parity Obligations has been transferred (A) to the Trustee, without further authorization or instruction, with respect to transfers to the Series 2017 Interest Account of the Series 2017 Debt Service Fund for the payment of interest of Bonds and (B) for all other Parity Obligations to the applicable Parity Secured Creditor in accordance with a Funds Transfer Certificate delivered by the Company pursuant Section 5.18.

(b) Capital Lease Payment Account; Principal Payment Account; and Purchase Money Payment Account.

(i) Funds will be deposited in the Capital Lease Payment Account, the Principal Payment Account and the Purchase Money Payment Account, or any sub-account established therein, in accordance with Sections 5.04(b), 5.04(e) and 5.04(f) and withdrawn for the payment of Debt Service (including sinking fund payments, mandatory prepayment or mandatory redemption, as applicable) on Capital Lease Obligations, the principal portion of other Parity Obligations (other than Capital Lease Obligations and Purchase Money Obligations) and Purchase Money Obligations, each in accordance with this Section 5.05(b), subject to Section 5.04(g) and Section 6.06.

(ii) On the Business Day immediately prior to each applicable Payment Date for Debt Service (including sinking fund payments, mandatory prepayment or mandatory redemption, as applicable) on Capital Lease Obligations, the principal portion of Parity Obligations (other than Capital Lease Obligations and Purchase Money Obligations) and Purchase Money Obligations shall be due and payable, the Collateral Agent shall transfer monies on deposit (x) in the applicable sub-account of the Principal Payment Account (to the extent funds have been transferred to a sub-account of the Principal Payment Account that may only be used hereunder for the principal portion (including sinking fund payments, mandatory prepayment or mandatory redemption, as applicable) of Debt Service for a specific series of Bonds) to the applicable principal account of the applicable Series 2017 Debt Service Fund relating to such series of Bonds and (y) in the Capital Lease Payment Account, any sub-account of the Principal Payment Account for the payment of Parity Obligations (other than Capital Lease Obligations and Purchase Money Obligations) and the Purchase Money Payment Account, pro rata to the payment of the applicable Capital Lease Obligations, the principal portion (including sinking fund payments, mandatory prepayment or mandatory redemption, as applicable) of such Parity Obligations and the applicable Purchase Money Obligations, until such amounts as are due and payable have been transferred, without further authorization or instruction to the Trustee with respect to transfers to the Series 2017 Principal Account of the Series 2017 Debt Service Fund for the payment of principal (including sinking fund payments, mandatory prepayment or mandatory redemption, as applicable) on such Bonds and, for all other Parity Obligations in accordance with a Funds Transfer Certificate delivered by the Company pursuant Section 5.18.

(iii) To the extent on any date upon which a transfer pursuant to Section 5.05(b)(ii) is to be made with respect to the Series 2017 Bonds there are insufficient funds on deposit in the applicable sub-account of the Principal Payment Account to make any such required transfer with respect to the Series 2017 Bonds, after application of all such deposited funds pursuant to the terms of Section 5.05(b)(ii), the Collateral Agent is hereby authorized and instructed to determine the amount of such shortfall with respect to the Series 2017 Bonds by reference to the amount set forth for such applicable Payment Date on the then-effective schedule

of Debt Service on the Series 2017 Bonds attached to the most recent Funds Transfer Certificate and to transfer to the Trustee on such date such shortfall from the accounts, and in the priority, set forth in Sections 5.04(d) and (e) hereof without further authorization or instruction of the Company.

Section 5.06 Debt Service Reserve Fund.

(a) Each sub-account of the Debt Service Reserve Fund, when established, will be established solely for the benefit of the Trustee on behalf of the Holder of Bonds and shall not be subject to any Lien in favor of any Person other than the Collateral Agent solely for the benefit of the Trustee on behalf of the Holders of Bonds and shall be held by the Collateral Agent for the exclusive benefit of only such parties.

(b) (i) On the Closing Date, the Series 2017 Debt Service Reserve Account shall be initially funded from the proceeds of the Series 2017 Bonds in an amount equal to $[______]. Thereafter, the Collateral Agent shall cause amounts in the Revenue Fund, to the extent available, to be deposited in accordance with, and at the times specified by, Section 5.04(b) into the Series 2017 Debt Service Reserve Account as shall be necessary to maintain the Series 2017 Debt Service Reserve Required Balance. Any amounts on deposit in (i) the Series 2017 Debt Service Reserve Account in excess of the Series 2017 Debt Service Reserve Required Balance as of such date shall be deposited into the Revenue Fund in accordance with the requirements of Section 5.04(b); and (ii) any other sub-account of the Debt Service Reserve Fund shall be established and initially funded at the time and in the amount set forth in the applicable Additional Financing Documents pursuant to which Additional Obligations are issued. Thereafter, the Collateral Agent shall cause amounts in the Revenue Fund, to the extent available, to be deposited in accordance with, and at the times specified by, Section 5.04(b) into the applicable sub- accounts of the Debt Service Reserve Fund. Any amounts on deposit in any sub-account of the Debt Service Reserve Fund in excess of its applicable Debt Service Reserve Required Balance shall be applied in accordance with the requirements of Section 5.04(b).

(c) So long as any outstanding Bonds that are being rated by a Nationally Recognized Rating Agency have an Investment Grade Rating, on not less than ten (10) Business Days’ notice to the Collateral Agent, the Company may deposit Debt Service Reserve Letters of Credit with the Collateral Agent for deposit into the Debt Service Reserve Fund, and at the direction of the Company, at time of such deposit, the Collateral Agent shall release and transfer to such accounts or payees as the Company directs, an amount of cash from the Debt Service Reserve Fund up to the amount (if any) by which the balance of the Debt Service Reserve Fund plus the amounts available to be drawn on any Debt Service Reserve Letters of Credit on deposit therein exceeds the Debt Service Reserve Required Balance. The Company hereby agrees and directs the Collateral Agent to execute and deliver to the issuer of the applicable Debt Service Reserve Letter of Credit (i) promptly, upon ten (10) Business Days’ prior written notice from the Company, a fully completed drawing certificate in the amount set forth in such written notice and (ii) on the thirtieth (30th) day prior to the expiration date of the Debt Service Reserve Letter of Credit, a fully completed drawing certificate in an amount equal to the Debt Service Reserve Letter of Credit’s then-current stated amount (as determined in accordance with the terms thereof), but only in the case of clause (ii), only to the extent that the Company has not provided to the Collateral Agent prior to such date a substantially similar (in all material respects) letter of credit, or other letter of credit issued by an Acceptable Letter of Credit Bank with a stated amount equal to the undrawn amount of the Debt Service Reserve Letter of Credit that such letter of credit replaces. The Collateral Agent shall promptly execute and deliver a fully completed drawing certificate under such Debt Service Reserve Letter of Credit to the issuer thereof, when so instructed by the Required Agent (acting in accordance with Section 6.06 hereof and the Intercreditor Agreement) pursuant to a Direction Notice. All amounts drawn on any Debt Service Reserve Letter of Credit shall be deposited into the Debt Service Reserve Fund and all

amounts available under any such Debt Service Reserve Letter of Credit shall be deemed to be on deposit in the Debt Service Reserve Fund for all purposes hereunder.

(d) Monies on deposit in each sub-account of the Debt Service Reserve Fund shall be used by the Trustee (without the requirement of a Funds Transfer Certificate) as follows:

(i) In the event funds on deposit in the Revenue Fund are insufficient to fund the transfers contemplated by Sections 5.05(a) and/or (b) for the payment of Debt Service on the Series 2017 Bonds and any other Bonds to the extent the terms of such Bonds require a sub- account of the Debt Service Reserve Fund, at the times required thereby, after application of the funds available pursuant to, first, Section 5.04(d) and second, Section 5.04(e), funds on deposit in the applicable sub-accounts of the Debt Service Reserve Fund shall be transferred and applied to the applicable sub-accounts of the Debt Service Fund in accordance with, and in the priority set forth in, clauses Third, Fourth and/or Fifth of Section 5.04(b) in accordance with Section 5.04(f).

(ii) Notwithstanding the foregoing, following the taking of an Enforcement Action by the Collateral Agent, monies in each sub-account of the Debt Service Reserve Fund shall be applied in the manner set forth in Section 6.06 hereof.

Section 5.07 Operating Reserve Fund.

(a) On the Closing Date, the Company shall fund the Operating Reserve Fund in an amount equal to $[17,407,811]. Thereafter, the Collateral Agent shall cause amounts in the Revenue Fund to be, to the extent available, deposited into the Operating Reserve Fund in accordance with Section 5.04(b).

(b) So long as any outstanding Parity Obligations that are being rated by a Nationally Recognized Rating Agency have an Investment Grade Rating, on not less than ten (10) Business Days’ notice to the Collateral Agent, the Company may deposit Operating Reserve Letters of Credit with the Collateral Agent for deposit into the Operating Reserve Fund, and at the direction of the Company, at time of such deposit, the Collateral Agent shall release and transfer to such accounts or payees as the Company directs, an amount of cash from the Operating Reserve Fund up to the amount (if any) by which the balance of the Operating Reserve Fund plus the amounts available to be drawn on any Operating Reserve Letters of Credit on deposit therein exceeds the Operating Reserve Required Balance. The Company hereby agrees and directs the Collateral Agent to execute and deliver to the issuer of the applicable Operating Reserve Letter of Credit (i) promptly, upon ten (10) Business Days’ prior written notice from the Company, a fully completed drawing certificate in the amount set forth in such written notice and (ii) on thirty (30) days prior to the expiration date of the Operating Reserve Letter of Credit, a fully completed drawing certificate in an amount equal to the Operating Reserve Letter of Credit’s then- current stated amount (as determined in accordance with the terms thereof), but only in the case of clause (ii), only to the extent that the Company has not provided to the Collateral Agent prior to such date a substantially similar (in all material respects) letter of credit, or other letter of credit in form reasonably acceptable to and at the direction of the Required Agent (acting in accordance with the Intercreditor Agreement), issued by an Acceptable Letter of Credit Bank with a stated amount equal to the undrawn amount of the Operating Reserve Letter of Credit that such letter of credit replaces. The Collateral Agent shall promptly execute and deliver a fully completed drawing certificate under such Operating Reserve Letter of Credit to the issuer thereof, when so instructed by the Required Agent (acting in accordance with Section 6.06 hereof and the Intercreditor Agreement) pursuant to a Direction Notice. All amounts drawn on any Operating Reserve Letter of Credit shall be deposited into the Operating Reserve Fund and all amounts available under any such Operating Reserve Letter of Credit shall be deemed to be on deposit in the Operating Reserve Fund for all purposes hereunder.

(c) All amounts on deposit in the Operating Reserve Fund shall be available for the funding, or reimbursement of the funding, of Operating Expenses (except for Major Maintenance Expenditures prior to the Completion Date) incurred in the ordinary course of business, and as otherwise permitted under the Financing Documents, including as provided by Section 5.04(e), Section 5.04(g) or Section 6.06 hereof. Any amounts on deposit in the Operating Reserve Fund in excess of the Operating Reserve Required Balance shall be applied in accordance with the requirements of Section 5.04(d) hereof.

(d) On any date on which funds are required for the purposes set forth in Section 5.07(c), monies on deposit in the Operating Reserve Fund shall be transferred to the Operating Account (or otherwise as directed by the Company) in accordance with a Funds Transfer Certificate delivered by the Company pursuant to Section 5.18 and used by the Company as provided in this Section 5.07.

(e) In the event funds on deposit in the Revenue Fund are insufficient to fund the transfers contemplated by any or all of clauses First through Fifth of Section 5.04(b) at the times required thereby, funds on deposit in the Operating Reserve Fund shall be transferred and applied by the Collateral Agent in accordance with Section 5.04(e).

(f) A draw on the Operating Reserve Fund shall not constitute an Event of Default so long as amounts are deposited to the Operating Reserve Fund in accordance with Section 5.04(b) so that the balance therein plus the aggregate amount available to be drawn on any Operating Reserve Letters of Credit on deposit therein equal the Operating Reserve Required Balance within the later of (i) 180 days after such draw and (ii) the period as is required to replenish, at the rate of $500,000 per month, the Operating Reserve Fund to the Operating Reserve Required Balance.

Section 5.08 Major Maintenance Reserve Fund.

(a) After the Completion Date, the Collateral Agent shall cause amounts in the Revenue Fund, to the extent available, to be deposited into the Major Maintenance Reserve Fund in accordance with Section 5.04(b).

(b) So long as any outstanding Parity Obligations that are being rated by a Nationally Recognized Rating Agency have an Investment Grade Rating, on not less than ten (10) Business Days’ notice to the Collateral Agent, the Company may deposit Major Maintenance Reserve Letters of Credit with the Collateral Agent for deposit into the Major Maintenance Reserve Fund, and at the direction of the Company, at time of such deposit, the Collateral Agent shall release and transfer to such accounts or payees as the Company directs, an amount of cash from the Major Maintenance Reserve Fund up to the amount (if any) by which the balance of the Major Maintenance Reserve Fund plus the amounts available to be drawn on any Major Maintenance Reserve Letters of Credit on deposit therein exceeds the Major Maintenance Reserve Required Balance. The Company hereby agrees and directs the Collateral Agent to execute and deliver to the issuer of the applicable Major Maintenance Reserve Letter of Credit (i) promptly, upon ten (10) Business Days’ prior written notice from the Company, a fully completed drawing certificate in the amount set forth in such written notice and (ii) on thirty (30) days prior to the expiration date of the Major Maintenance Reserve Letter of Credit, a fully completed drawing certificate in an amount equal to the Major Maintenance Reserve Letter of Credit’s then-current stated amount (as determined in accordance with the terms thereof), but only in the case of clause (ii), only to the extent that the Company has not provided to the Collateral Agent prior to such date a substantially similar (in all material respects) letter of credit, or other letter of credit in form reasonably acceptable to and at the direction of the Required Agent (acting in accordance with the Intercreditor Agreement), issued by an Acceptable Letter of Credit Bank with a stated amount equal to the undrawn amount of the Major Maintenance Reserve Letter of Credit that such letter of credit replaces. The Collateral Agent shall promptly execute and deliver a fully completed drawing certificate under such Major Maintenance

Reserve Letter of Credit to the issuer thereof, when so instructed by the Required Agent (acting in accordance with Section 6.06 hereof and the Intercreditor Agreement) pursuant to a Direction Notice. All amounts drawn on any Major Maintenance Reserve Letter of Credit shall be deposited into the Major Maintenance Reserve Fund and all amounts available under any such Major Maintenance Reserve Letter of Credit shall be deemed to be on deposit in the Major Maintenance Reserve Fund for all purposes hereunder.

(c) All amounts on deposit in the Major Maintenance Reserve Fund shall be available exclusively for funding Major Maintenance Expenditures and shall not be available for any other purpose, except as provided by Section 5.04(e), Section 5.04(g) and Section 6.06 hereof. On any date on which funds in the Residual Fund are not sufficient to pay for then scheduled Major Maintenance Expenditures (if any), monies on deposit in the Major Maintenance Reserve Fund shall be transferred to the Operating Account (or otherwise as directed by the Company) in accordance with a Funds Transfer Certificate delivered by the Company pursuant to Section 5.18 and used by the Company to pay such Major Maintenance Expenditures. Any amounts on deposit in the Major Maintenance Reserve Fund in excess of the Major Maintenance Reserve Required Balance shall be applied in accordance with the requirements of Section 5.04(d) hereof.

(d) In the event funds on deposit in the Revenue Fund are insufficient to fund the transfers contemplated by any or all of clauses First through Fifth of Section 5.04(b) at the times required thereby, funds on deposit in the Major Maintenance Reserve Fund shall be transferred and applied by the Collateral Agent in accordance with Section 5.04(e).

(e) A draw on the Major Maintenance Reserve Fund shall not constitute an Event of Default so long as amounts are deposited to the Major Maintenance Reserve Fund in accordance with Section 5.04(b) so that the balance therein plus the aggregate amount available to be drawn on any Major Maintenance Reserve Letters of Credit on deposit therein equal the Major Maintenance Reserve Required Balance within the later of (i) 180 days after such draw and (ii) the period as is required to replenish the Major Maintenance Reserve Fund at a rate of $500,000 per month.

Section 5.09 Subordinate Obligations Fund.

(a) Funds will be deposited in the Subordinate Obligations Fund, or any sub-account established therein, in accordance with clause Eighth of Section 5.04(b) and withdrawn for the payment of Debt Service on any Subordinate Obligations in accordance with this Section 5.09.

(b) On the Business Day immediately prior to each applicable Payment Date when Debt Service on the Subordinate Obligations shall be due and payable, the Collateral Agent shall transfer monies on deposit in the Subordinate Obligations Fund to the Subordinate Lender for the payment of Debt Service on the Subordinate Obligations.

(c) In the event funds on deposit in the Revenue Fund are insufficient to fund the transfers contemplated by any or all of clauses First through Seventh of Section 5.04(b) at the times required thereby, funds on deposit in the Subordinate Obligations Fund shall be transferred and applied by the Collateral Agent in accordance with Section 5.04(e) and may also be transferred and applied pursuant to Section 5.04(g).

Section 5.10 Residual Fund.

(a) The Residual Fund shall be funded in accordance with and subject to clause Ninth of Section 5.04(b).

(b) The following conditions comprise, collectively, the “Restricted Payment Conditions.” As of the applicable date of distribution:

(i) all transfers and distributions required to be made pursuant to clauses First through Eighth of Section 5.04(b) on the Monthly Funding Date that is on or immediately preceding such date of distribution shall have been satisfied in full on such Monthly Funding Date;

(ii) the Debt Service Reserve Fund is funded at the Debt Service Reserve Required Balance, the Major Maintenance Reserve Fund is funded at the Major Maintenance Reserve Required Balance, the Operating Reserve Fund is funded at the Operating Reserve Required Balance and each of the Debt Service Fund and the Subordinate Obligations Fund are funded at their respective required amounts;

(iii) amounts on deposit in the Debt Service Fund are equal to the Debt Service due on the next applicable Monthly Funding Date;

(iv) no Event of Default has occurred and is continuing, or would occur as a direct result of the proposed distribution;

(v) for the twelve (12) month period ending on the applicable Calculation Date, the Debt Service Coverage Ratio as of such Calculation Date exceeded 1.25 to 1.00, as certified by the Company in substantially the form of Exhibit C attached hereto;

(vi) for the six (6) month period commencing on the most recent Calculation Date, the Debt Service Coverage Ratio is projected to exceed 1.25 to 1.00, based on reasonable projections made by the Company and as certified by the Company in substantially the form of Exhibit C attached hereto; and

(vii) the Completion Date has occurred.

(c) Subject to Section 5.10(d) and (e), funds on deposit in the Residual Fund may be distributed to an account (or to such Person) as directed by the Company in writing in its sole discretion on any date within ten (10) Business Days after the date on which financial statements for the fiscal quarter ending on the most recent Calculation Date have been delivered pursuant to the Continuing Disclosure Agreement, provided, that an Authorized Company Representative certifies in writing to the Collateral Agent that the Restricted Payment Conditions are satisfied on or as of such Calculation Date.

(d) In the event funds on deposit in the Revenue Fund are insufficient to fund the transfers contemplated by any or all of clauses First through Seventh of Section 5.04(b) at the times required thereby, funds on deposit in the Residual Fund shall be transferred and applied by the Collateral Agent in accordance with Section 5.04(e), without having to satisfy at such times any of the Restricted Payment Conditions.

(e) Notwithstanding the requirements in this Section 5.10(b), the Company may, from time to time, withdraw funds from the Residual Fund (i) for the payment of any Capital Expenditures or Major Maintenance Expenditures pursuant to a Funds Transfer Certificate in accordance with Section 5.18 and (ii) to make Voluntary Prepayments, in each case without having to satisfy any of the Restricted Payment Conditions.

Section 5.11 Loss Proceeds Fund.

(a) Except as set forth in the last sentence of Section 5.11(b)(ii) below, all Loss Proceeds received by the Company shall be deposited by the Company into the Loss Proceeds Fund and shall be used as set forth in clause (b) of this Section 5.11, subject to Section 6.06 hereof.

(b) (i) If (A) a Loss Event occurs and (B) the Company determines that it is not commercially feasible to Restore the Terminal, then the Loss Proceeds received in connection with such Loss Event shall be used to redeem or prepay, as applicable, the Bonds on a pro rata basis among the Bonds, based upon the then outstanding principal amounts of each of the Bonds, at the prices for redemption or prepayment set forth in the applicable Financing Document, and the Company shall provide the Collateral Agent a certificate as to such amounts to be so allocated and the account or accounts into which each Bond’s allocable share shall be deposited in accordance with the terms of the applicable Financing Document. Within three (3) Business Days of its receipt of such certificate, the Collateral Agent shall make the transfers specified therein. The Company hereby instructs the Collateral Agent to make any payments in respect of the Series 2017 Bonds directly to the Trustee for deposit into the Series 2017 Redemption Account in accordance with the terms of Section 4.5(e) of the Indenture.

(ii) If (A) a Loss Event occurs in an amount greater than $1,000,000 in the aggregate, (B) the Company receives Loss Proceeds in respect of such Loss Event and (C) the Company (or, to the extent such Loss Proceeds received by the Company are in an amount greater than $10,000,000, the Independent Consultant) determines that it is commercially feasible to Restore the Terminal, the Company shall deliver to the Collateral Agent an officer’s certificate of the Company certifying to the foregoing and, in the case of a Loss Event in an amount greater than $10,000,000, a certificate signed by an authorized representative of the Independent Consultant, concurring with such officer’s certificate of the Company, and such Loss Proceeds shall be applied as set forth in paragraph (iii) of this Section 5.11(b). If the Company receives Loss Proceeds in respect of such Loss Event in an amount less than or equal to $1,000,000, the Company shall apply such Loss Proceeds to the Restoration of the Terminal (and the Company shall have no obligation to deliver an officer’s certificate pursuant to this Section 5.11(b)(ii)).

(iii) The Company shall request disbursements of monies on deposit in the Loss Proceeds Fund by delivering to the Collateral Agent (with a copy to each Agent), not later than the fifth (5th) Business Day prior to the proposed date of disbursement, a requisition signed by an Authorized Company Representative in the form of Exhibit E attached hereto (and, to the extent required pursuant to Section 5.11(b)(ii), a certificate of the Independent Consultant in the form of Exhibit F attached hereto (collectively, a “Restoration Requisition”)) and the Collateral Agent shall comply with any Restoration Requisition received in compliance herewith.

Section 5.12 Operating Account.

(a) The Operating Account, and any sub-account thereof, shall be a special deposit account maintained with the Deposit Account Bank, subject to a Control Agreement, on which checks may be written by the Company without further notice or requisition.

(b) On the Closing Date, the Company shall transfer $[______] to the Operating Account, to pay projected Operating Expenses due and payable prior to the first Monthly Funding Date.

(c) The Company may transfer to and deposit in the Operating Account, or any sub- account thereof, (i) any amounts available to pay any fees, administrative costs and other expenses then due and payable to the Collateral Agent, the Trustee, the Issuer, any other Secured Party or any Nationally

Recognized Rating Agency, or their respective agents or trustees, as applicable, pursuant to Section 5.04(b), (ii) any amounts available under clause First of Section 5.04(b), Section 5.04(e), Section 5.07(d) and Section 5.08(c), and (iii) proceeds of any Working Capital Loans and, in each case, shall thereafter apply such funds in the Operating Account, or any sub-account thereof, for the payment of Operating Expenses or as otherwise provided herein in accordance with the terms of this Agreement.

Section 5.13 Other Deposit Accounts. The Company may maintain (a) one or more deposit accounts used solely to fund payroll, payroll Taxes and similar employee Taxes and other employee benefits in the ordinary course of business (the “Payroll Accounts”) and such Payroll Accounts shall not be required to be subject to a Control Agreement; and (b) one or more deposit accounts for the purpose of depositing the proceeds of any equity contribution or any Shareholder Loans (the “Shareholder Loan Accounts”), and such proceeds may be used for the purposes for which such equity contributions are made or Shareholder Loans are incurred, as applicable, and requisitioned as set forth in any documentation in connection with such equity contributions or Shareholder Loans, and such Shareholder Loan Accounts shall not be required to be subject to a Control Agreement. Neither the Payroll Accounts nor the Shareholder Loan Accounts shall constitute Project Accounts and the Company may write checks on each of the Payroll Accounts and the Shareholder Loan Accounts without further notice or requisition.

Section 5.14 Tax Reporting. All interest or other earnings, if any, relating to the Project Accounts shall be reported to the Internal Revenue Service under the name and taxpayer identification number of the Company. The Company shall prepare or cause to be prepared any tax returns or other forms or information required to be filed in connection with any such earnings. The Collateral Agent does not have any interest in the Collateral deposited hereunder but is serving as collateral agent only and having only possession thereof. The Company shall pay or reimburse the Collateral Agent upon request for any transfer taxes or other Taxes relating to the Collateral incurred in connection herewith and shall indemnify and hold harmless the Collateral Agent from any amounts that it is obligated to pay in the way of such Taxes to the extent paid by the Collateral Agent in respect of the Collateral; provided, however, that with respect to transfer taxes, the Collateral Agent shall have no duty to determine whether any transfer taxes are payable or to deduct, withhold or report any transfer taxes that may be required. The Company will provide the Collateral Agent with appropriate W-9 forms for taxpayer identification numbers, number certifications, or W-8 forms for non-resident alien certifications. This Section 5.14 shall survive notwithstanding any termination of this Agreement or the resignation or removal of the Collateral Agent.

Section 5.15 Funds as Collateral. Any deposit made into the Project Accounts hereunder (except through clerical or other manifest error or in a manner that is otherwise inconsistent with this Agreement) shall be irrevocable and all cash, cash equivalents, instruments, investments and other securities on deposit in the Project Accounts shall be subject to the Lien of the Security Agreement and shall be held by the Collateral Agent as collateral for the benefit of the Secured Parties as provided herein and therein.

Section 5.16 Change of Deposit Account Bank.

(a) Unless an Event of Default has occurred and is continuing (or if an Event of Default has occurred and is continuing, upon consent of the Required Agent, acting in accordance with the terms of the Intercreditor Agreement), the Deposit Account Bank may be changed to another bank by the Company; provided that such bank shall be organized under the laws of the United States of America or any state thereof with an office in the State of New York having a combined capital and surplus of not less than $150,000,000. If the Deposit Account Bank at any time gives notice that it no longer wishes to act as a Deposit Account Bank or that it will no longer be subject to the terms of a Control Agreement, or that it will no longer act upon the instructions of the Company or the Collateral Agent in accordance with

the applicable Control Agreement as a result of its determination that such action would result in the violation of any applicable law, rule or regulation (a “Termination Notice”), the Company shall promptly (and, to the extent possible, prior to the effective date of such Termination Notice) appoint a replacement Deposit Account Bank; provided that such bank shall be organized under the laws of the United States of America or any state thereof with an office in the State of New York having a combined capital and surplus of not less than $75,000,000. The Operating Account shall at all times be maintained with a single Deposit Account Bank. The Company shall notify the Collateral Agent (with a copy to each Agent) of a Termination Notice promptly upon receipt thereof by the Company.

(b) The new Deposit Account Bank shall be required, prior to becoming the Deposit Account Bank, to (i) enter into one or more Control Agreements, in such form as may be approved by the Required Agent (acting in accordance with the terms of the Intercreditor Agreement) and the Collateral Agent (such approval not to be unreasonably withheld, delayed or conditioned), with the Company and the Collateral Agent and carry out such further acts as the Company or the Required Agent may reasonably request in order to perfect the security interest of the Collateral Agent in the Operating Account and (ii) agree to provide the reports similar to the reports required to be provided pursuant to Sections 2.12(b) and (c).

Section 5.17 Investment.

(a) Funds in the Project Accounts may be invested and reinvested only in Permitted Investments (at the risk and expense of the Company) in accordance with written instructions given to the Collateral Agent by the Company (prior to the occurrence of an Event of Default and, thereafter, so long as such Event of Default shall be continuing, as directed by the Required Agent) and, unless an Event of Default has occurred and is continuing, the Company is entitled to instruct the Collateral Agent to liquidate Permitted Investments for purposes of effecting any such investment or reinvestment or for any other purpose permitted hereunder; provided, however, that the maturity on any investment of funds in the Debt Service Reserve Fund shall not exceed ten (10) years unless such investment provides for withdrawals of the invested amount without penalty at any time required under this Agreement in an amount equal to the invested amount (or portion thereof withdrawn) plus accrued interest. The Collateral Agent shall not be required to take any action with respect to investing the funds in any of the Project Accounts in the absence of written instructions by the Company or the Required Agent (to the extent provided in accordance with the terms hereof) and shall hold the cash uninvested. The Collateral Agent shall not be liable for any loss resulting from any Permitted Investment or the sale or redemption thereof made in accordance with the terms hereof. If and when cash is required for disbursement in accordance with this Article or Section 6.06 hereof, the Collateral Agent is authorized, without instructions from the Company, to the extent necessary to make payments required pursuant to this Article or Section 6.06 hereof, in the event the Company fails to direct the Collateral Agent to do so in a timely manner, to cause Permitted Investments to be sold or otherwise liquidated into cash (without regard to maturity). All funds in the Project Accounts and all Permitted Investments made in respect thereof shall be held by the Collateral Agent and the interests of the Company therein shall constitute part of the security subject to the pledge and security interest created by the Collateral Documents.

(b) The Collateral Agent shall have no obligation to invest or reinvest the funds unless all or a portion of the funds are received by (or instructions with respect to the same are received by) the Collateral Agent by 11:00 a.m., New York City time, on the day of deposit. Instructions to invest or reinvest that are received after 11:00 a.m., New York City time, will be treated as if received on the following Business Day.

(c) In the event the Collateral Agent does not receive investment instructions, the amounts held by the Collateral Agent pursuant to the provisions of this Agreement shall not be invested and the Collateral Agent shall not incur any liability for interest or income thereon.

(d) The parties hereto each acknowledge that non-deposit investment products are not obligations of, or guaranteed by, U.S. Bank National Association nor any of its affiliates; are not FDIC insured; and are subject to investment risks, including the possible loss of principal amount invested in one of the money market funds made available by the Collateral Agent and initially selected by the Company.

(e) Any investment direction contained herein may be executed through an affiliated broker or dealer of the Collateral Agent and any such affiliated broker or dealer shall be entitled to such broker’s or dealer’s usual and customary fees for such execution, and so long as no Event of Default shall have occurred and be continuing, as agreed to by the Company. It is agreed and understood that the Collateral Agent may earn fees associated with the investments outlined above to the extent previously agreed with the Company.

(f) Investments may be held by the Collateral Agent directly or through any clearing agency or depository (collectively, the “Clearing Agency”) including, without limitation, the federal reserve/treasury book-entry system for United States and federal agency securities, and The Depository Trust Company. The Collateral Agent shall not have any responsibility or liability for the actions or omissions to act on the part of any Clearing Agency.

(g) The Company acknowledges that to the extent that regulations of the Comptroller of the Currency or other applicable regulatory agency grant the Company the right to receive brokerage confirmations of security transactions as they occur, the Company specifically waives receipt of such confirmations on its own behalf. The Company and its agents shall have the right to inspect all such records at all reasonable times during regular business hours and upon reasonable notice and to make such copies and extracts, at their expense, as they may desire.

Section 5.18 Withdrawal and Application of Funds; Priority of Transfers from Funds; Event of Default.

(a) Except as provided in clause (d) of this Section 5.18 or otherwise as expressly set forth herein, each withdrawal or transfer of funds from the Project Accounts, including the Revenue Fund, the Major Maintenance Reserve Fund, the Operating Reserve Fund, the Residual Fund, each new account or sub-account created hereunder that does not specify a required alternate requisition procedure, and excluding only such Project Accounts that authorize and require an alternative requisition procedure hereunder, by the Collateral Agent on behalf of the Company in accordance herewith shall be made pursuant to an executed Funds Transfer Certificate or otherwise pursuant to written instructions of the Authorized Company Representative, which certificate or instruction shall be provided and prepared by the Company in accordance with the terms hereof and shall contain a certification by the Authorized Company Representative that such withdrawal or transfer complies with the requirements of this Agreement. Each Funds Transfer Certificate executed and delivered with respect to a transfer of funds from the Residual Fund (other than to fund a shortfall pursuant to Section 5.04(e) and to pay Debt Service on the any series of Bonds pursuant to Section 5.04(g)).

(b) Unless a shorter period is acceptable to both the Collateral Agent and the Required Agent (acting in accordance with the terms of the Intercreditor Agreement), such Funds Transfer Certificate or other instructions relating to the transfer or deposit of funds from the Project Accounts required to use the requisition procedure set forth in this Section 5.18 shall be received by the

Collateral Agent (with a copy to each Agent) no later than two (2) Business Days prior to each date on which funds are proposed to be withdrawn from the applicable Project Accounts or transferred from one of the Project Accounts to another of the Project Accounts in accordance with this Agreement. The Collateral Agent shall comply with any such Funds Transfer Certificate or other instructions; provided, that if the Required Agent (acting in accordance with the Intercreditor Agreement) provides written notice to the Collateral Agent, the Company and the Secured Parties that any payment, withdrawal or transfer of funds is not in compliance with this Agreement or the other Documents, as applicable, prior to the time the Collateral Agent makes the transfer and specifies such non-compliance in such notice, the Company shall not be entitled to cause such proposed withdrawal until such time as it has submitted a revised Funds Transfer Certificate which complies with the terms hereof or thereof; and provided, further, that the failure to give any such notice shall not be deemed to be an approval of the proposed withdrawal or transfer or to be a waiver of any rights of the Secured Parties with respect thereto. For the avoidance of doubt, the Required Agent (acting in accordance with the Intercreditor Agreement) shall at all times have the right to give the notice contemplated by the second sentence of this clause if a Funds Transfer Certificate does not comply with the terms of this Agreement.

(c) For the avoidance of doubt, subject to clause (d) of this Section 5.18, the Company shall have the right to withdraw or cause to be transferred funds from the Operating Account, solely for the purpose of payment of Operating Expenses and other purposes permitted by this Agreement, solely for the purpose of payment of Costs of the Project and other purposes permitted by this Agreement, solely for the purposes set forth in Section 5.12 and other purposes permitted by this Agreement, at any time without any approval or consent of the Required Agent (acting in accordance with the terms of the Intercreditor Agreement), the Collateral Agent or any other Person, so long as such withdrawal is effected in accordance with the terms of this Agreement and the applicable Control Agreement.

(d) Notwithstanding anything to the contrary contained herein, upon receipt of a notice of an Event of Default (and during the continuance of the related Event of Default) the Required Agent (acting in accordance with the terms of the Intercreditor Agreement) may, as a form of Enforcement Action, without consent of the Company, instruct the Collateral Agent in writing to apply amounts in the Project Accounts in accordance with the terms hereof, including Section 6.06 hereof, and of the Intercreditor Agreement and in the order set forth in Section 6.06 hereof, so long as such payments are on account of (i) amounts due under the Financing Documents or (ii) any amounts pursuant to Section 6.06(c), and the Collateral Agent shall comply therewith. The Collateral Agent shall not be obligated to monitor or verify that any such payments are applied to amounts due under the Financing Documents.

(e) The Collateral Agent shall not be obligated to monitor or verify (i) the accuracy of any Funds Transfer Certificate or other written instructions provided to the Collateral Agent for the transfer or deposit of funds with respect to any of the Project Accounts, or (ii) the use of amounts withdrawn from the Project Accounts pursuant to written instructions given by the Company, provided that the transfers are in the order of priority set forth herein.

Section 5.19 Termination of Funds. Upon the Discharge of (i) the Bonds as confirmed in writing by the Trustee to the Collateral Agent and (ii) the Working Capital Loan Obligations, as confirmed in writing by the Working Capital Loan Provider to the Collateral Agent, this Agreement shall terminate, and the Collateral Agent shall, promptly after receipt of a request from the Company and at the reasonable expense of the Company, close the Project Accounts and/or liquidate any investments credited thereto and/or transfer the funds deposited therein or credited thereto, as directed by the Company. From and after such termination but without limiting any obligations of the Collateral Agent under this Section 5.19, the Collateral Agent shall be released from any further obligation to (a) comply with entitlement orders originated by the Required Agent to the extent that any of the Project Accounts is a “securities

account” under the applicable provision of the Uniform Commercial Code or (b) comply with instructions originated by the Required Agent to the extent that any of the Project Accounts is a “deposit account” under the applicable provision of the Uniform Commercial Code or (c) comply with any obligation under any Financing Document except as specifically provided therein. Nothing contained in this Section 5.19 shall be construed to modify or otherwise affect the Collateral Agent’s security interest in and Lien on the Project Accounts and the funds therein prior to such transfer.

Section 5.20 Securities Intermediary. (a) The Securities Accounts shall be established and maintained as securities accounts (within the meaning of Section 8-501(a) of the UCC) with a securities intermediary. Each of the parties to this Agreement (and the parties to the Intercreditor Agreement and any Acceding Party, upon becoming party to the Intercreditor Agreement, directly or through its respective agent) hereby appoints U.S. Bank National Association (or any successor thereto) as the securities intermediary (in such capacity, the “Securities Intermediary”) under and for the purposes of this Agreement and for so long as U.S. Bank National Association (or any successor thereto) is the Collateral Agent.

(a) The Securities Intermediary hereby accepts and agrees to act as such under this Agreement and represents and warrants that it is as of the Closing Date, and shall be for so long as it is the Securities Intermediary hereunder, a banking corporation or a national bank that in the ordinary course of its business maintains securities accounts for others, meets the requirements and qualifications set forth in the first sentence of Section 5.20(e) and is acting in that capacity hereunder. The Securities Intermediary agrees with the parties hereto that each of the Securities Accounts shall be an account to which financial assets may be credited and undertakes to treat the Collateral Agent as entitled to exercise the rights that comprise such financial assets. The Securities Intermediary agrees with the parties hereto that each item of property (including a security, security entitlement, investment property, instrument or obligations, share, participation, interest or other property whatsoever) credited to each Securities Account shall be treated as a financial asset. Each of the Collateral Agent and the Securities Intermediary represents and warrants that it has not entered into any agreement or taken any other action that gives any Person other than the Collateral Agent control over any of the Securities Accounts or that is otherwise inconsistent with this Agreement. Each of the Collateral Agent and the Securities Intermediary agrees that it shall not become a party to any agreement or take any action that gives any Person other than the Collateral Agent control over any of the Securities Accounts or that is otherwise inconsistent with this Agreement. The Securities Intermediary agrees that any financial assets credited to such Securities Accounts, or any “securities entitlement” (as defined in Section 8-102(a)(17) of the UCC or, with respect to book-entry securities, in the applicable Federal Book-Entry Regulations) with respect thereto, shall not be subject to any security interest, lien, encumbrance, or right of setoff in favor of the Securities Intermediary or anyone claiming through the Securities Intermediary (other than the Collateral Agent).

(b) It is the intent of the Collateral Agent and the Company that the Collateral Agent (for the benefit of the Secured Parties) be the entitlement holder with respect to the Securities Accounts. In any event, the Securities Intermediary hereby agrees that it will comply with entitlement orders with respect to the Securities Accounts originated by the Collateral Agent without further consent by the Company or any other Person. The Securities Intermediary covenants that it will not agree with any Person other than the Collateral Agent to comply with entitlement orders with respect to the Securities Accounts originated by any Person or entity other than the Collateral Agent. Notwithstanding the foregoing, the Collateral Agent authorizes the Securities Intermediary to follow instructions, registrations and entitlement orders issued by the Company unless and until the Securities Intermediary receives an entitlement order from the Collateral Agent (as directed by the Required Agent), after which the Securities Intermediary shall no longer follow instructions, registrations and entitlement orders issued by the Company. Without limiting the Securities Intermediary’s ability to comply with entitlement orders

originated by the Collateral Agent, the Collateral Agent covenants with the Company that it shall not provide any such entitlement order unless an Event of Default shall have occurred and be continuing.

(c) The Securities Intermediary shall not change the name or account number of any Securities Account without the prior written consent of the Collateral Agent, acting at the direction of the Required Agent (acting in accordance with the Intercreditor Agreement) and the Company and at least five (5) Business Days’ prior notice to the Trustee, the Required Agent and the Company, and shall not change the entitlement holder. The Securities Intermediary shall at all times act as a “securities intermediary” (within the meaning of Section 8-102(a)(14) of the UCC or, with respect to book-entry securities, in the applicable Federal Book-Entry Regulations) in maintaining the Securities Accounts and shall credit to each Securities Account each financial asset to be held in or credited to each Securities Account pursuant to this Agreement. To the extent, if any, that the Collateral Agent is deemed to hold directly, as opposed to having a security entitlement in, any financial asset held by the Securities Intermediary for the Collateral Agent, the Securities Intermediary hereby agrees that it is holding such financial asset as the agent of the Collateral Agent and hereby expressly acknowledges and agrees that it has received notification of the Collateral Agent’s security interest in such financial asset and that it is holding possession of such financial asset for the benefit of the Collateral Agent.

(d) Each Securities Account shall remain at all times with a “securities intermediary” (within the meaning of Section 8-102(a)(14) of the UCC or, with respect to book-entry securities, in the applicable Federal Book-Entry Regulations) that is a bank organized under the laws of the United States of America or any state thereof that has offices in the State of New York and that has a total capital stock and unimpaired surplus of not less than $150,000,000. The Securities Intermediary shall give written notice to the Collateral Agent and the Company of the location of the Securities Accounts and of any change thereof prior to the use or change thereof.

(e) Any income received by the Collateral Agent with respect to the balance from time to time on deposit in each Securities Account, including any interest or capital gains on investments in overnight securities made with amounts on deposit in each Securities Account, shall be credited to the applicable Securities Account and applied as provided herein. All right, title and interest in and to the cash amounts on deposit from time to time in each Securities Account together with any investments in overnight securities from time to time made pursuant to this Section 5.20 shall constitute part of the Collateral for the Parity Lien Obligations and shall be held for the benefit of the Secured Parties and the Company as their interests shall appear hereunder and shall not constitute payment of the Parity Lien Obligations (or any other obligations to which such funds are provided hereunder to be applied) until applied thereto as provided in this Agreement.

(f) In the event that, notwithstanding the last sentence of Section 5.20(b), the Securities Intermediary has or subsequently obtains by agreement, operation of law or otherwise a security interest in any of the Securities Accounts, or any financial asset credited thereto, or any “securities entitlement” (as defined in Section 8-102(a)(17) of the UCC or, with respect to book-entry securities, in the applicable Federal Book-Entry Regulations) with respect thereto, the Securities Intermediary hereby agrees that such security interest shall be subordinate to the security interest of the Collateral Agent.

(g) The “securities intermediary’s jurisdiction” of the Securities Intermediary for purposes of the UCC (or the Uniform Commercial Code of any other jurisdiction to the extent applicable) is the State of New York.

(h) Terms used in this Section 5.20 that are defined in the UCC shall have the meaning set forth in the UCC. Without limiting the foregoing, the term “securities intermediary” shall,

with respect to book-entry securities, have the meaning given to it under 31 C.F.R. Part 357 (sale and issue of marketable book-entry Treasury bills, notes and bonds); 12 C.F.R. Part 615 (book-entry securities of the Farm Credit Administration and related conditions); 12 C.F.R. 987 (book-entry securities of the Financial Federal Housing Board), 12 C.F.R. Part 1511 (book-entry securities of the Resolution Funding Corporation); 24 C.F.R. Part 81 (book-entry securities of the Federal National Mortgage Association and the Federal Home Loan Mortgage Corporation); 31 C.F.R. Part 354 (book-entry securities of the Student Loan Marketing Association); 18 C.F.R. Part 1314 (book-entry securities of Tennessee Valley Authority); and 24 C.F.R. Part 350 (book-entry securities of Government National Mortgage Association).

(i) To the extent that the Project Accounts are not considered “securities accounts” (within the meaning of Section 8-501(a) of the UCC), the Project Accounts shall be deemed to be “deposit accounts” (as defined in Section 9-102(a)(29) of the UCC), which the Collateral Agent shall maintain with the Securities Intermediary acting not as a securities intermediary but as a “bank” (within the meaning of Section 9-102(a)(8) of the UCC) and, in such circumstances, the “bank’s jurisdiction” of the Securities Intermediary for purposes of the UCC (or the Uniform Commercial Code of any other jurisdiction to the extent applicable) is the State of New York. The Securities Intermediary hereby agrees to comply with any and all instructions originated by the Collateral Agent directing disposition of funds in the Project Accounts without any further consent of the Company.

Section 5.21 Inadequately Identified Amounts. In the event that the Collateral Agent receives any amount which is inadequately or incorrectly identified as to the appropriate account into which such amount is to be credited, the Collateral Agent shall notify the Company (with a copy to each Agent) of such event and shall request instructions as to the appropriate account into which such amount should be credited. The Collateral Agent shall credit such amount to the Revenue Fund until such time as the Collateral Agent receives instructions from the Company in accordance herewith stating that such amount shall be credited to another account in accordance with the Financing Documents, in which case the Collateral Agent shall credit such amount to the account designated by the Company.

ARTICLE VI COLLATERAL AND REMEDIES

Section 6.01 Administration of Collateral. The Collateral shall be held by the Collateral Agent for the benefit of the Secured Parties pursuant to the terms hereof and of the Security Agreement and shall be administered by the Collateral Agent in the manner contemplated hereby and by the other Collateral Documents.

Section 6.02 Notice of Event of Default. Notwithstanding anything to the contrary contained in this Agreement or any document executed in connection with any of the Parity Obligations, the Collateral Agent, unless an Authorized Officer thereof shall have actual knowledge thereof, shall not be deemed to have any knowledge of any Event of Default unless and until it shall have received written notice from the Company, the Required Agent (acting in accordance with the Intercreditor Agreement (other than as to, until the Discharge of the Working Capital Loan Obligations, the Working Capital Collateral)), the Working Capital Loan Provider (acting in accordance with the Intercreditor Agreement but solely with respect to the Working Capital Collateral)or any other Secured Party describing such Event of Default in reasonable detail. If the Collateral Agent receives any such notice from a Person other than the Required Agent (acting in accordance with the terms of the Intercreditor Agreement) or the Working Capital Loan Provider (acting in accordance with the terms of the Intercreditor Agreement), the Collateral Agent shall deliver a copy thereof to the Required Agent, the Working Capital Loan Provider and the Company and, if the Collateral Agent receives any such notice from a person other than the Company, the Collateral Agent shall deliver a copy thereof to the Required Agent, the Working Capital Loan Provider and the Company.

Section 6.03 Enforcement of Remedies. Upon the occurrence and during the continuance of any Event of Default, the Collateral Agent shall, subject to the other provisions of this Agreement and the other Collateral Documents, take such Enforcement Action with respect to such Event of Default as shall be directed in writing by the Required Agent (acting in accordance with the Intercreditor Agreement and the other Documents (other than as to, until the Discharge of the Working Capital Loan Obligations, the Working Capital Collateral)) or the Working Capital Loan Provider (acting in accordance with the Intercreditor Agreement but solely with respect to the Working Capital Collateral) (a “Direction Notice”). Upon receipt by the Collateral Agent of a Direction Notice, the Collateral Agent shall seek to enforce the Collateral Documents (with prior notice thereof to the Issuer and the Company) and to realize upon the Collateral in accordance with such Direction Notice and otherwise in accordance with the terms hereof and of the other Collateral Documents and applicable law; provided, however, that the Collateral Agent shall not be obligated to follow any Direction Notice if the Collateral Agent reasonably determines that such Direction Notice is in conflict with any provisions of any applicable Law or any Collateral Document, and the Collateral Agent shall not, under any circumstances except in the event of bad faith, gross negligence or willful misconduct, be liable to any Secured Party, the Company or any other Person for following a Direction Notice.

Section 6.04 Remedies of the Secured Creditors. Unless otherwise consented to in writing by the Required Agent (acting in accordance with the terms of the Intercreditor Agreement) and the Working Capital Loan Provider (with respect to the Working Capital Collateral), no Secured Creditor, individually or together with any other Secured Creditors, shall have the right to exercise any Enforcement Action, nor shall it, exercise or enforce any of the other rights, powers or remedies which the Collateral Agent is authorized to exercise or enforce under this Agreement or any of the other Collateral Documents.

Section 6.05 Secured Party Information. In the event that the Collateral Agent proceeds to foreclose upon, collect, sell or otherwise dispose of or take any other action with respect to any or all of the Collateral or to enforce any provisions of the Collateral Documents or takes any other action pursuant to this Agreement or any provision of the other Collateral Documents or requests directions from the Required Agent (acting in accordance with the Intercreditor Agreement (other than as to, until the Discharge of the Working Capital Loan Obligations, the Working Capital Collateral)) or the Working Capital Loan Provider (acting in accordance with the Intercreditor Agreement but solely with respect to the Working Capital Collateral) as provided herein, upon the request of the Collateral Agent, the Required Agent (acting in accordance with the Intercreditor Agreement (other than as to, until the Discharge of the Working Capital Loan Obligations, the Working Capital Collateral)) or the Working Capital Loan Provider (acting in accordance with the Intercreditor Agreement but solely with respect to the Working Capital Collateral) shall promptly deliver a written notice to the Collateral Agent setting forth (a) the aggregate amount owed to such Secured Party under the applicable Document as of the date specified by the Collateral Agent in such request and (b) such other information as the Collateral Agent may reasonably request.

Section 6.06 Application of Proceeds and Other Amounts.

(a) Subject to clause (b) below, after the application of any amounts on deposit in the various accounts held by the Trustee under the Indenture for the payment of Debt Service on the Bonds pursuant to and in accordance with Section 7.3 of the Indenture, all amounts and Proceeds received by the Collateral Agent derived from the funds set forth below shall be applied by the Collateral Agent as follows:

(i) amounts and Proceeds attributable to the Bonds Construction Account of the Construction Fund to the Trustee for deposit into the appropriate sub-account of the Series

2017 Debt Service Fund, first to the pro rata payment of all accrued and unpaid interest (including default interest, if any) on all Series 2017 Bonds, and second, if any unpaid principal of any Series 2017 Bonds has become due (by acceleration or otherwise), to the pro rata payment of such unpaid principal amounts;

(ii) amounts and Proceeds attributable to any additional sub-account of the Construction Fund established pursuant to the terms hereof for the deposit of proceeds from the issuance of Additional Obligations to the appropriate Designated Representative or Additional Parity Creditor for deposit into the appropriate account or payee pursuant to the applicable Additional Financing Document, first to the pro rata payment of all accrued and unpaid interest (including default interest, if any) on such Additional Obligations, and second, if any unpaid principal of any such Additional Obligations has become due (by acceleration or otherwise), to the pro rata payment of such unpaid principal amounts; and

(iii) amounts and Proceeds attributable to any sub-account of the Debt Service Reserve Fund shall be transferred by the Collateral Agent to the relevant Secured Parties (or representatives thereof) for deposit into the appropriate sub-account of the Debt Service Fund relating to such Bonds, first to pay for the pro rata payment of all accrued and unpaid interest (including default interest, if any) on the relevant Bonds, and second, if any unpaid principal of any such Bonds has become due (by acceleration or otherwise), to the pro rata payment of such unpaid principal amounts.

(b) Notwithstanding anything to the contrary herein, from and after the taking of an Enforcement Action, the Collateral Agent, as directed by the Required Agent (acting in accordance with the Intercreditor Agreement (other than as to, until the Discharge of the Working Capital Loan Obligations, the Working Capital Collateral)) or the Working Capital Loan Provider (acting in accordance with the Intercreditor Agreement but solely with respect to the Working Capital Collateral), shall have the right to direct the application of all amounts on deposit in or credited to or available for draw under a letter of credit in the Project Accounts (including with respect to the investment of such amounts), and to otherwise deal with the Collateral, in each case in accordance herewith and with the Intercreditor Agreement, without the need for consent of, or any other action by, the Company. Subject to (i) the prior application of certain funds as provided for in clause (a) hereof and (ii) the application of the Working Capital Collateral (which is set forth in Section 4.1 of the Intercreditor Agreement), following the taking of an Enforcement Action and subject to the Intercreditor Agreement, all amounts and Proceeds received by the Collateral Agent pursuant to the exercise of any rights or remedies accorded to the Collateral Agent, including proceeds from the sale or disposition of Collateral or other Enforcement Action (other than the Working Capital Collateral), shall be applied promptly by the Collateral Agent as directed by the Required Agent (acting in accordance with the Intercreditor Agreement (other than as to, until the Discharge of the Working Capital Loan Obligations, the Working Capital Collateral)) or the Working Capital Loan Provider (acting in accordance with the Intercreditor Agreement but solely with respect to the Working Capital Collateral), as follows; provided, that any such Proceeds or amounts which are to be used to pay any amounts to the owners of Bonds shall be paid to the Trustee for deposit into the applicable sub-account of the Series 2017 Debt Service Fund:

first, to the payment of all reasonable, documented and invoiced out-of-pocket fees, costs and other expenses (including the reasonable, documented and invoiced out-of-pocket fees, costs and expenses of counsel in accordance with Section 7.01 hereof) owed to the Collateral Agent and the Trustee, the Parity Lien Agent and then to any other Parity Secured Creditors (and/or a representative thereof) for payment of the reasonable costs and expenses of the Enforcement Action and in connection with the performance of their

obligations under the Documents to which they are a party and the consummation of the transactions contemplated thereby (in each case to the extent not previously satisfied);

second, to the pro rata payment of all accrued and unpaid interest (including default interest, if any) on all Parity Lien Obligations;

third, to the pro rata payment of (A) if any unpaid principal of any Parity Lien Obligations has become due (other than by acceleration) to the pro rata payment of such unpaid principal amounts or (B) if any of the Parity Lien Obligations have been accelerated, to the pro rata payment of such unpaid principal amounts;

fourth, to the pro rata payment of all accrued and unpaid redemption or prepayment premium then due, if any, with respect to any Parity Lien Obligations pro rata in the order of their due dates, or, if the Parity Lien Obligations have been accelerated, to the pro rata payment of such unpaid redemption or prepayment premiums without regard to due dates;

fifth, to the pro rata payment of all other amounts, if any, due and payable under any Financing Document with respect to any Parity Lien Obligations; and

sixth, to the pro rata payment of all accrued and unpaid interest (including default interest, if any) on all Subordinate Obligations;

seventh, to the pro rata payment of (A) if any unpaid principal of any Subordinate Obligations has become due (other than by acceleration) to the pro rata payment of such unpaid principal amounts or (B) if any of the Subordinate Obligations have been accelerated, to the pro rata payment of such unpaid principal amounts;

eighth, to the Company and its successors and assigns, or as may be directed by the Company and its successors and assigns, or as a court of competent jurisdiction may direct, any Proceeds or other amounts then remaining.

(c) Notwithstanding the foregoing, following the taking of an Enforcement Action, at the written direction of the Required Agent (acting in accordance with the Intercreditor Agreement (other than as to, until the Discharge of the Working Capital Loan Obligations, the Working Capital Collateral)) or the Working Capital Loan Provider (acting in accordance with the Intercreditor Agreement but solely with respect to the Working Capital Collateral) from time to time, the Collateral Agent shall apply any amount specified by the Required Agent or the Working Capital Loan Provider, as applicable, at any priority level after item first of Section 6.06(b) as designated by the Required Agent or the Working Capital Loan Provider to pay or prepay any other specifically designated amounts of specifically designated Operating Expenses, as set forth in the Required Agent’s or Working Capital Loan Provider’s applicable Direction Notice to the Collateral Agent.

(d) If at any time any Secured Party shall for any reason obtain any payment or distribution upon or with respect to the Parity Lien Obligations contrary to the terms of this Agreement, whether as a result of the Collateral Agent’s exercise of any Enforcement Action in respect of the Collateral or otherwise, such Secured Party agrees that it shall have received such amounts in trust, and shall promptly remit such amount so received in error to the Collateral Agent to be applied in accordance with the terms of this Agreement.

Section 6.07 Reliance on Information. For purposes of applying payments received in accordance with this Article, the Collateral Agent shall be entitled to rely upon the information received by, and upon the request of, the Collateral Agent or the Working Capital Loan Provider, as applicable, for such purpose, pursuant to Sections 2.05 and 6.05, with respect to the amounts of the outstanding Parity Lien Obligations owed to the Secured Parties and the amount of any proceeds distributed from the Project Accounts. In the event that the Collateral Agent, in its sole discretion, determines that it is unable to determine the amount or order of payments that should be made hereunder, the parties hereto agree that the Collateral Agent shall have the right, at its option, to deposit with, or commence an interpleader proceeding in respect of, such funds in a court of competent jurisdiction for a determination by such court as to the correct application of such funds hereunder.

ARTICLE VII COMPENSATION, INDEMNITY AND EXPENSES

Section 7.01 Compensation; Fees and Expenses. The Company hereby agrees to pay to the Collateral Agent or each Agent, as applicable, for its own account compensation in such amount as separately agreed upon in writing between the Company and the Collateral Agent or each Agent, as applicable. In addition, the Company shall pay as Operating Expenses on the next Monthly Funding Date falling at least ten (10) Business Days after written demand from the Collateral Agent or any Agent the amount of any and all other reasonable, documented and invoiced out-of-pocket expenses incurred by the Collateral Agent or any Agent, including the reasonable and customary fees, charges and disbursements of any counsel for the Collateral Agent or any Agent (limited, in the case of (i) legal fees and expenses, to the reasonable, documented and invoiced fees, disbursements and other charges of one counsel and, if necessary, one firm of local counsel in each relevant material jurisdiction (which may include a single special counsel acting in multiple jurisdictions) for all Agents (and, in the case of a conflict of interest, where the Agent affected by such conflict notifies the Company of the existence of such conflict and thereafter retains its own counsel, one additional counsel) and (ii) the fees and of any other counsel, accountants, appraisers, agents or other experts or advisers, to the reasonable, documented and invoiced fees, disbursements and other charges of such person, but only to the extent the Company has consented to the retention of such person (such consent not to be unreasonably withheld or delayed)), in connection with (a) the preparation of amendments and waivers hereunder and under the other Documents and the Intercreditor Agreement; (b) the enforcement of the rights or remedies of the Collateral Agent or any Agent under this Agreement, the Intercreditor Agreement, or any other Documents, including all reasonable, documented and invoiced out-of-pocket expenses incurred during any workout, restructuring or negotiations in respect of the Parity Lien Obligations; (c) the sale of, collection from or other realization upon, the Collateral; and (d) lien and security interest searches and filings in connection with this Agreement or any other Documents.

Section 7.02 Company Indemnification. Without duplication of the expense reimbursement obligations pursuant to Section 7.01 above and notwithstanding any other provision of the Bond Documents or the Collateral Documents to the contrary, the Company shall indemnify each of the Collateral Agent, the Securities Intermediary, any Co-Collateral Agent, and each other Agent, and each of their respective officers, directors, employees, agents and attorneys-in-fact (each such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and related out-of-pocket expenses, including the reasonable, documented and invoiced fees, charges and disbursements of any counsel for any Indemnitee (limited, in the case of (x) legal fees and expenses, to the reasonable, documented and invoiced fees, disbursements and other charges of one counsel and, if necessary, one firm of local counsel in each relevant material jurisdiction (which may include a single special counsel acting in multiple jurisdictions) for all Indemnitees (and, in the case of a conflict of interest, where the Indemnitee affected by such conflict notifies the Company of the existence of such conflict and thereafter retains its own counsel, one additional counsel) and (y) the fees and

expenses of any other advisor or consultant, to the reasonable and documented and invoiced fees, charges and disbursements of such advisor or consultant, but solely to the extent that such consultant or advisor has been retained with the Company’s consent in writing (such consent not to be unreasonably withheld or delayed)), incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of (i) the execution or delivery of the Intercreditor Agreement and any Documents or any agreement or instrument contemplated thereby, the performance by the parties hereto of their respective obligations hereunder or the consummation of the transactions contemplated thereby, (ii) any actual or alleged presence or Release of Hazardous Materials by the Company on or from the Terminal or any property owned or operated by the Company, or (iii) any actual claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses (x) resulted from the gross negligence, bad faith or willful misconduct of such Indemnitee or its related parties (as determined by a court of competent jurisdiction in a final and non-appealable judgment), (y) arise from disputes between or among Indemnitees (other than disputes involving claims against the Collateral Agent in its capacity as such) that do not involve an act or omission by the Company or (z) resulted from any settlement effected without the Company’s prior written consent (such consent not to be unreasonably withheld or delayed), but if settled with the Company’s prior written consent, the Company will indemnify and hold harmless each Indemnitee from and against any and all losses, claims, damages, liabilities and expenses by reason of such settlement in accordance with this paragraph; provided further that to the extent of any amounts paid to an Indemnitee in respect of this Section 7.02, such Indemnitee, by its acceptance of the benefits hereof, agrees to refund and return any and all amounts paid by the Company to it if, pursuant to the operation of any of the foregoing clauses (w) through (z), such Indemnitee was not entitled to receipt of such amount. The obligations of the Company under this Section shall survive the payment in full of the Parity Lien Obligations, any resignation or removal of the Collateral Agent and the Securities Intermediary pursuant to Section 2.11, any resignation or removal of any other Agent pursuant to the Documents, and the termination of this Agreement pursuant to Article VIII.

ARTICLE VIII TERMINATION

Upon termination of this Agreement, all rights to the Collateral as shall not have been sold or otherwise applied in accordance with the terms hereof, in each case, pursuant to the terms hereof shall revert to the Company, its successors or assigns, or otherwise as a court of competent jurisdiction may direct. Upon any such termination, the Collateral Agent will, at the Company’s direction and expense, execute and deliver to the Company such documents as the Company shall reasonably request to evidence such termination.

ARTICLE IX MISCELLANEOUS PROVISIONS

Section 9.01 Further Assurances. The Company agrees that from time to time, at its expense, it will promptly execute and deliver all further instruments and documents, and take all further action as may be required by applicable Law or as the Required Agent (acting in accordance with the Intercreditor Agreement (other than as to, until the Discharge of the Working Capital Loan Obligations, the Working Capital Collateral)) or the Working Capital Loan Provider (acting in accordance with the Intercreditor Agreement but solely with respect to the Working Capital Collateral) shall otherwise reasonably request to perfect and maintain perfected the Liens granted hereunder and under the other Documents.

Section 9.02 Amendments; Waivers.

(a) Any term, covenant, agreement or condition of this Agreement may be amended or waived only by an instrument in writing signed by each of the Collateral Agent (acting upon the instruction of the Required Agent, acting in accordance with the terms of the Intercreditor Agreement), the Company, the Working Capital Loan Provider and the Securities Intermediary; provided that:

(i) only the Parity Lien Agent (acting in accordance with the terms of the Intercreditor Agreement), may waive any rights of the Parity Lien Claimholders under any provision of this Agreement or consent to an amendment that is adverse to the interests of the Parity Lien Claimholders pursuant to Article II of the Intercreditor Agreement; no consent to any departure by the Company from this Agreement (or the Collateral Documents) shall be effective unless in writing signed by the applicable parties specified herein, subject to the Intercreditor Agreement, and each such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given; and

(ii) only the Working Capital Loan Provider (acting in accordance with the terms of the Intercreditor Agreement) may waive any rights of the Working Capital Loan Provider under any provision of this Agreement or consent to an amendment that is adverse to the interests of the Working Capital Loan Provider pursuant to Article II of the Intercreditor Agreement; no consent to any departure by the Company from this Agreement (or the Collateral Documents) shall be effective unless in writing signed by the applicable parties specified herein, subject to the Intercreditor Agreement, and each such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given; and

(iii) the consent of the Securities Intermediary shall be required for any amendment to Section 5.20 or any other amendment that would modify the rights or obligations of the Securities Intermediary.

(b) The waiver (whether express or implied) by the Collateral Agent of any breach of the terms or conditions of this Agreement, and the consent (whether express or implied) of any Secured Party shall not prejudice any remedy of the Collateral Agent or any Secured Party in respect of any continuing or other breach of the terms and conditions hereof, and shall not be construed as a bar to any right or remedy which the Collateral Agent or any other Secured Party would otherwise have on any future occasion under this Agreement.

(c) No failure to exercise nor any delay in exercising, on the part of the Collateral Agent or any other Secured Party, of any right, power or privilege under this Agreement shall operate as a waiver thereof; further, no single or partial exercise of any right, power or privilege under this Agreement shall preclude any other or further exercise thereof or the exercise of any other right, power or privilege available to it. All remedies hereunder and under the other Collateral Documents are cumulative and are not exclusive of any other remedies that may be available to the Collateral Agent, whether at law, in equity or otherwise.

(d) The Collateral Agent shall be entitled to receive, and shall be fully protected in relying upon, the opinion of any counsel, selected by it with reasonable care at the expense of the Company, approved by and addressed to it as conclusive evidence that any proposed amendment or waiver is authorized or permitted by this Agreement, and complies with the provisions of this Agreement. That counsel may be counsel for the Issuer or the Company.

Section 9.03 Successors and Assigns.

(a) This Agreement and the other Collateral Documents shall be binding upon and inure to the benefit of the Collateral Agent, the Securities Intermediary, the Company, the Trustee, the Secured Creditors and their respective successors and permitted assigns. Subject to Section 6.04 hereof, each Secured Creditor, including, without limitation, the Trustee, shall be an express third party beneficiary of this Agreement.

(b) Nothing contained in this Agreement or any other Collateral Document is intended to limit the right of any Secured Party to assign, transfer or grant participations in its rights in its respective Parity Lien Obligations and Documents.

Section 9.04 Notices.

(a) Unless otherwise expressly provided herein, all notices, instructions, consents, requests, directions and other communications provided for herein shall be in writing and shall be delivered by hand or courier service, mailed by United States mail with first-class postage prepaid and properly addressed or sent by Electronic Means, as follows:

(i) if to the Company:

Port Newark Container Terminal L.L.C. 241 Calcutta Street Newark, NJ 07114 Attn: Markus Braun

With a copy to:

Cleary Gottlieb Steen & Hamilton LLP One Liberty Plaza New York, NY 10006 Attn: Richard Lincer

(ii) if to the Trustee, the Parity Lien Agent, the Collateral Agent and the Securities Intermediary:

U.S. Bank National Association 21 South Street, 3rd Floor Morristown, NJ 07960 Attn: Corporate Trust Services

(iii) if to the Issuer:

New Jersey Economic Development Authority P.O. Box 990 36 West State Street Trenton, NJ 08625 Attn: [______]

(b) Notwithstanding anything to the contrary contained herein, each such notice, instruction, direction, request or other communication so given to the Collateral Agent shall be effective only upon actual receipt. The Collateral Agent shall provide written confirmation via Electronic Means of its receipt of all such notices. All instructions required under this Agreement will be delivered to the Collateral Agent in writing, in either original or by Electronic Means, executed by an Authorized Officer or Authorized Company Representative, as the case may be. If either the Company, the Working Capital Loan Provider or the Required Agent (individually and collectively, the “Sender”) elects to give the Collateral Agent instructions using Electronic Means (“Instructions”) and the Collateral Agent in its discretion elects to act upon such Instructions, the Collateral Agent’s understanding of such Instructions shall be deemed controlling. The Sender hereto understands and agrees that the Collateral Agent cannot determine the identity of the actual sender of such Instructions and that the Collateral Agent shall conclusively presume that directions that purport to have been sent by an Authorized Officer of the Required Agent, an Authorized Officer of the Working Capital Loan Provider or Authorized Company Representative listed on the incumbency certificate provided to the Collateral Agent have been sent by such Authorized Officer of the Required Agent, such Authorized Officer of the Working Capital Loan Provider or Authorized Company Representative. The Sender shall be responsible for ensuring that only Authorized Officers of the Required Agent or the Working Capital Loan Provider or Authorized Company Representative transmit such Instructions to the Collateral Agent and that the Authorized Officers of the Required Agent or the Working Capital Loan Provider or Authorized Company Representative are solely responsible to safeguard the use and confidentiality of applicable user and authorization codes, passwords and/or authentication keys upon receipt by the Sender. The Collateral Agent shall not be liable for any losses, costs or expenses arising directly or indirectly from the Collateral Agent’s reliance upon and compliance with such Instructions notwithstanding such directions conflict or are inconsistent with a subsequent written instruction. The Sender agrees: (i) to assume all risks arising out of the use of Electronic Means to submit instructions to the Collateral Agent, including without limitation the risk of the Collateral Agent acting on unauthorized instructions, and the risk of interception and misuse by third parties; (ii) that it is fully informed of the protections and risks associated with the various methods of transmitting Instructions to the Collateral Agent and that there may be more secure methods of transmitting instructions than the method(s) selected by the Sender; (iii) that the security procedures (if any) to be followed in connection with its transmission of instructions provide to it a commercially reasonable degree of protection in light of its particular needs and circumstances; and (iv) to notify the Collateral Agent immediately upon learning of any compromise or unauthorized use of the security procedures. Further to this procedure, the Collateral Agent reserves the right to telephone an Authorized Officer of the Required Agent or the Working Capital Loan Provider or the Authorized Company Representative to confirm the details of such instructions or documents if they are not already on file with it as standing instructions, and the Collateral Agent agrees that it will promptly telephone an Authorized Officer of the Required Agent or the Working Capital Loan Provider or the Authorized Company Representative, as applicable, if the Collateral Agent has determined that it will refuse to accept any instructions or documents which fail, or appear to fail, to comply. The Collateral Agent and the parties hereto agree that the above constitutes a commercially reasonable security procedure.

(c) Any party hereto may change its address or facsimile number for notices and other communications hereunder by notice to the Company and each Agent. All notices or other communications required or permitted to be given pursuant to this Agreement shall be in writing and, if given in accordance with this Section, unless otherwise expressly provided herein, shall be deemed to have been duly given or made when delivered by hand or, in the case of notice given by mail, private courier, overnight delivery service, international shipping service or facsimile.

Section 9.05 Counterparts. This Agreement may be executed in any number of counterparts, all of which taken together shall constitute one and the same instrument and any of the parties hereto may execute this Agreement by signing any such counterpart.

Section 9.06 Governing Law; Consent to Jurisdiction; Waiver of Jury Trial. This Agreement shall be governed and construed in accordance with the substantive laws of the State of New York. Each of the parties hereto hereby irrevocably (a) consents and submits to the non exclusive jurisdiction of any New York state court sitting in New York County, New York or any federal court of the United States sitting in the Southern District of New York, as any party may elect, in any suit, action or proceeding arising out of or relating to this Agreement, provided, that any suit seeking enforcement against any collateral or other property may be brought, at the Collateral Agent’s option, in the courts of any jurisdiction where such collateral or other property may be found; and (b) WAIVES THE RIGHT TO TRIAL BY JURY WITH RESPECT TO ANY ACTION IN WHICH ANY OF THE PARTIES HERETO ARE PARTIES RELATING TO OR ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT. For the avoidance of all doubt, nothing herein shall be construed as requiring any obligations, rights and duties of the Issuer to be subject to the laws of any jurisdiction other than the State of New Jersey or as requiring the Issuer to submit to jurisdiction in any state or federal court not located within the State of New Jersey.

Section 9.07 Captions. The headings of the several articles and sections and clauses of this Agreement are inserted for convenience only and shall not in any way affect the meaning or construction of any provision of this Agreement.

Section 9.08 Severability. Whenever possible, each provision of this Agreement shall be interpreted in such a manner as to be effective and valid under applicable law, but if any provision of this Agreement shall be prohibited by or invalid under applicable law, such provision shall be ineffective only to the extent of such prohibition or invalidity, without invalidating the remainder of such provisions or the remaining provisions of this Agreement.

Section 9.09 Collateral Agent’s Rights.

(a) If at any time the Collateral Agent is served with any judicial or administrative order, judgment, decree, writ or other form of judicial or administrative process which in any way affects the Collateral (including but not limited to orders of attachment or garnishment or other forms of levies or injunctions or stays relating to the transfer of such property), the Collateral Agent is authorized to comply therewith in any manner it or legal counsel of its own choosing reasonably deems appropriate at the Company’s expense but shall give the Company notice of any such judicial or administrative order, judgment, decree, writ or other form of judicial or administrative process; and if the Collateral Agent complies with any such judicial or administrative order, judgment, decree, writ or other form of judicial or administrative process, the Collateral Agent shall not be liable to any of the parties hereto or to any other person or entity even though such order, judgment, decree, writ or process may be subsequently modified or vacated or otherwise determined to have been without legal force or effect.

(b) [In the event of any dispute between or conflicting claims by or among the Company, the Secured Parties and/or any other person or entity with respect to any property being held by the Collateral Agent in connection with this Agreement or the other Collateral Documents, the Collateral Agent shall be entitled, in its sole discretion, to refuse to comply with any and all claims, demands or instructions with respect to such property so long as such dispute or conflict shall continue, and the Collateral Agent shall not be or become liable in any way to the Company, the Secured Parties or any other party for failure or refusal to comply with such conflicting claims, demands or instructions. The Collateral Agent shall provide prompt written notice to the Secured Parties regarding any such dispute or

conflict. The Collateral Agent shall be entitled to refuse to act until, in its sole discretion, either (i) such conflicting or adverse claims or demands shall have been determined by a final order, judgment or decree of a court of competent jurisdiction, which order, judgment or decree is not subject to appeal, or settled by agreement between the conflicting parties as evidenced in a writing reasonably satisfactory to the Collateral Agent or (ii) the Collateral Agent shall have received security or an indemnity by one or more of the Secured Parties reasonably satisfactory to it sufficient to hold it harmless from and against any and all losses which it may incur by reason of so acting. Any court order, judgment or decree shall be accompanied by a legal opinion by counsel for the presenting party, reasonably satisfactory to the Collateral Agent, to the effect that said order, judgment or decree represents a final adjudication of the rights of the parties by a court of competent jurisdiction, and that the time for appeal from such order, judgment or decree has expired without an appeal having been perfected. The Collateral Agent shall act on such court order and legal opinions without further question.]

(c) For so long as the Trustee under the Indenture is the same entity as the Collateral Agent hereunder, (i) if the Trustee under the Indenture is removed or resigns pursuant to Section 8.4 of the Indenture and a successor trustee is appointed thereunder, the Collateral Agent under this Agreement shall, ipso facto, be such successor trustee, and (ii) the applicable and necessary provisions of Article VIII of the Indenture are incorporated herein by reference, including the rights, protections and immunities afforded the Collateral Agent in its capacity as the Trustee under the Indenture.

Section 9.10 Amendments for Additional Obligations. The Parties recognize and acknowledge that Additional Obligations may require amending this Agreement pursuant to Section 9.02 hereof, it being expressly agreed and understood that any such amendments shall not require the consent of the Bondholders.

[Signature page follows]

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

PORT NEWARK CONTAINER TERMINAL L.L.C., as Company

By: Name: Title:

U.S. BANK NATIONAL ASSOCIATION, as the Collateral Agent and the Securities Intermediary

By: Name: Title:

Signature Page

EXHIBIT A to Collateral Agency Agreement

DEFINITIONS AND RULES OF INTERPRETATION

Defined Terms

All capitalized terms used herein (including the recitals) but not otherwise defined herein shall have the respective meanings given to such terms in Section 1.1 of the Indenture or Section 1.01 of the Lease Agreement, as of the date of this Agreement, without giving effect to any subsequent amendment of such documents, unless the amendment has been consented to in accordance with Section 9.02 or Article II of the Intercreditor Agreement as and to the extent applicable. In addition, the terms set forth below shall have the following meanings:

“2017 Facility” has the meaning specified in the recitals of this Agreement.

“Acceding Party” has the meaning set forth in the Intercreditor Agreement.

“Acceptable Letter of Credit” means a letter of credit issued by an Acceptable Letter of Credit Bank.

“Acceptable Letter of Credit Bank” means any bank or other legally authorized Person, provided that at the time of the delivery of the Acceptable Letter of Credit, such entity shall have a minimum credit rating of at least “A” or its equivalent from at least one Nationally Recognized Rating Agency.

“Accession Agreement” has the meaning set forth in the Intercreditor Agreement.

“Accrued Debt Service” means for any period of time and in respect of any Bonds and Parity Obligations, the amount on such Bonds and Parity Obligations accrued and to accrue during such period.

“Additional Bonds” means additional bonds issued pursuant to Article XII of the Indenture, which additional bonds shall be equally and ratably secured with the Series 2017 Bonds, without preference, priority or distinction.

“Additional Obligations” means any Parity Obligation issued from time to time satisfying the conditions of Section 4.01, subject to the terms of the Intercreditor Agreement and the Collateral Documents.

“Additional Parity Creditor” means a holder or creditor of any Additional Obligation.

“Agents” means, collectively, the Collateral Agent, the Required Agent and the Working Capital Loan Provider.

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“Agreement” has the meaning specified in the preamble of this Agreement.

“Authority” means the New Jersey Economic Development Authority.

“Authorized Company Representative” means the Person or Persons at the time designated to act on behalf of the Company. As of the Date of Issuance for the Series 2017 Bonds the Authorized Company Representatives are the Chief Executive Officer, President and Chief Financial Officer of the Company.

“Authorized Officer” means, when used with respect to the Collateral Agent, the Trustee or each Agent, any officer within the corporate trust department thereof, including any vice president, assistant vice president, treasurer, assistant treasurer, trust officer or any other officer thereof who customarily performs functions similar to those performed by the persons who at the time shall be such officers, respectively, or to whom any corporate trust matter is referred because of such person’s knowledge of and familiarity with the particular subject and who shall have direct responsibility for the administration of this Agreement. Any document or certificate delivered under the Financing Documents that is signed by an Authorized Officer shall be conclusively presumed to have been authorized by all necessary corporate, limited liability company or other action on the part of the relevant Person, and such Authorized Officer shall be conclusively presumed to have acted on behalf of such Person.

“Bond Documents” has the meaning set forth in the Indenture.

“Bond Purchase Agreement” means the Bond Purchase Agreement, dated December [__], 2017 by and among the Issuer, the Company and Well Fargo Bank, National Association.

“Bonds” means the Series 2017 Bonds and any Additional Bonds.

“Bonds Construction Account” means the “Bonds Construction Account” established and created in the name of the Collateral Agent pursuant to Section 5.01(a).

“Business Day” means a day of the year other than (a) a Saturday or Sunday, (b) a day on which commercial banks located in the New York City and New Jersey are required or authorized to remain closed or (c) a day on which the New York Stock Exchange is closed.

“Calculation Date” means each March 31 and September 30 of each calendar year.

“Capital Expenditure” means any capital expenditure incurred by the Company in connection with the Terminal.

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“Capital Lease Debt Service Account” means the “Capital Lease Debt Service Account” established and created in the name of the Collateral Agent pursuant to Section 5.01(a).

“Capital Lease Obligation” means any payment obligation of the Company pursuant to a Capital Lease.

“Capital Lease Payment Date” means the lease payment date set forth in the applicable Financing Document with respect to the relevant Capital Lease Obligation.

“Capital Lease Provider” means any provider of a Capital Lease.

“Casualty Event” means an event that causes all or a portion of the Terminal to be damaged, destroyed or rendered unfit for normal use for any reason whatsoever, other than a Condemnation Event.

“Clearing Agency” has the meaning specified in Section 5.17(f).

“Closing Date” means December [__], 2017.

“Co-Collateral Agent” has the meaning specified in Section 2.11(b).

“Code” means the Internal Revenue Code of 1986, as amended.

“Collateral” has the meaning set forth in the Security Agreement.

“Company” has the meaning specified in the preamble of this Agreement.

“Company Withdrawal Certificate” has the meaning specified in Section 5.03(b).

“Completion Date” means the date of substantial completion of the Construction of the 2017 Facility, as that date shall be certified as provided in Section 7.24 of the Lease Agreement.

“Condemnation Event” means any action (or series of related actions) by any Governmental Authority (i) by which such Governmental Authority appropriates, confiscates, condemns, expropriates, nationalizes, seizes or otherwise takes all or any portion of the Collateral or the Terminal or (ii) by which such Governmental Authority assumes custody or control of all or any portion of the Terminal, in each case that is reasonably anticipated to last for more than one hundred twenty (120) consecutive days.

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“Construction Fund” means the “Construction Fund” established and created in the name of the Collateral Agent pursuant to Section 5.01(a).

“Continuing Disclosure Agreement” has the meaning specified in the Indenture.

“Contractor’s Completion Certificate” has the meaning specified in the Indenture.

“Costs of Issuance” has the meaning set forth in the Indenture.

“Costs of the Project” has the meaning set forth in the Indenture.

“Date of Issuance” has the meaning set forth in the Indenture.

“Debt Service Coverage Ratio” means with respect to any period of time, (a) the Net Cash Flow for such period, divided by (ii) Total Debt Service for such period.

“Debt Service Fund” means the “Debt Service Fund” established and created in the name of the Collateral Agent pursuant to Section 5.01.

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“Debt Service Reserve Fund” means the “Debt Service Reserve Fund” established and created in the name of the Collateral Agent pursuant to Section 5.01.

“Debt Service Reserve Letter of Credit” means an Acceptable Letter of Credit meeting the requirements of Section 5.06 hereof, which is issued by an Acceptable Letter of Credit Bank in favor of the Collateral Agent, delivered to the Collateral Agent for deposit into the Debt Service Reserve Fund, and which may be substituted for cash on deposit in the Debt Service Reserve Fund at the instruction of the Company, or any substantially similar letter of credit issued by an Acceptable Letter of Credit Bank.

“Debt Service Reserve Required Balance” means, respectively and as the case may be (1) the Series 2017 Debt Service Reserve Required Balance and (2) any other reserve required balance associated with any other sub-account of the Debt Service Reserve Fund created in connection with any Additional Bonds.

“Default” means for so long as any Parity Obligations are outstanding, a “default” or similar term as defined in any other Additional Financing Document with respect to Additional Obligations.

“Deposit Account Bank” means the financial institution with which the Operating Account is established meeting the requirements of Section 5.16, and any Person appointed to replace such Person pursuant to Section 5.16.

“Direction Notice” has the meaning specified in Section 6.03.

“Discharge” has the meaning specified in the Intercreditor Agreement.

“Documents” means

(a) the Lease Agreement and the other Bond Documents,

(b) the Additional Financing Documents and instruments evidencing the Additional Obligations,

(d) each other agreement, document, or instrument securing, providing for, or evidencing a Parity Obligation or a Subordinate Obligation, and

“Electronic Means” means the following communications methods: e-mail, facsimile transmission, secure electronic transmission containing applicable authorization codes, passwords and/or authentication keys issued by the Collateral Agent, or another method or system specified the Collateral Agent for use in connection with its services hereunder.

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“Enforcement Action” has the meaning set forth in the Intercreditor Agreement.

“Environmental Law” means all Laws in effect from time to time regulating or imposing liability or standards of conduct relating to the regulation, use or protection of the environment or to emissions, discharges, Releases or threatened Releases of Hazardous Materials into the environment, including, without limitation, ambient air, soil, surface water, groundwater, wetlands, coastal waters, land or subsurface strata, or otherwise relating to the generation, manufacture, processing, distribution, use, treatment, storage, disposal, transport or handling of Hazardous Materials or, to the extent relating to exposure to Hazardous Materials, to the protection or safety of the health of human beings or other living organisms and natural resources related to the environment, as now are.

“Equipment” has the meaning set forth in the Security Agreement.

“Equity Construction Account” means the “Equity Construction Account” established and created in the name of the Collateral Agent pursuant to Section 5.01(a).

“Event of Default” means (x) “Event of Default” as defined in the Lease Agreement, (y) “Event of Default” under any other existing Financing Document and (z) an “event of default” or similar term reflecting a breach or default and expiration of all applicable cure or grace periods as defined in any other Additional Financing Document with respect to Additional Obligations having an aggregate principal amount in excess of $20,000,000.

“Excluded Collateral” has the meaning set forth in the Security Agreement.

“Favorable Opinion of Bond Counsel” means an unqualified opinion of Bond Counsel addressed to the Authority, the Trustee and the Company to the effect that the action proposed to be taken is permitted by the Act, the Indenture and the Lease Agreement, and will not for purposes of federal income taxation adversely affect the exclusion from gross income of interest on the series of Bonds for which action is proposed to be taken.

“FDIC” means the Federal Deposit Insurance Corporation.

“Federal Book-Entry Regulations” means (i) the United States Department of the Treasury’s regulations governing “Securities” (as defined in 31 C.F.R. § 357.2) issued by the United States Treasury and maintained in the form of entries in the federal reserve banks’ book-entry system known as the Treasury/Reserve Automated Debt Entry System (TRADES), as such regulations are set forth in 31 C.F.R. Part 357 and (ii) regulations analogous and substantially similar to the regulations described in clause (i) above governing any other automated book-entry system operated by the United States federal reserve banks in which securities issued by government sponsored enterprises are issued, recorded, transferred and maintained in book-entry form.

“Financial Officer” means the chief financial officer, principal accounting officer, treasurer or corporate controller.

“Financing Documents” means the Bond Documents, the Financing Documents (as defined in the Indenture), the Additional Financing Documents, the Capital Leases, the Working Capital Loan Document, the Port Authority Consent, any Interest Hedging Agreements, this Agreement, the Security Agreement, any other Document (including any Document in respect of any Purchase Money Obligation), and each other document or instrument required to be executed and delivered by the aforementioned agreements.

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“Fiscal Year” means the Company’s fiscal year, which currently begins on January 1 and ends on December 31 of each calendar year.

“Fitch” means Fitch, Inc., Fitch Ratings Ltd. and its subsidiaries, and any successor thereto.

“Funds Transfer Certificate” means a certificate prepared by the Company in accordance with the terms of this Agreement substantially in the form of Exhibit B attached hereto containing the certifications by the Company required by this Agreement with respect to a requested transfer of funds from and/or to any of the Project Accounts.

“Indemnitee” has the meaning specified in Section 7.02.

“Indenture” has the meaning specified in the recitals of this Agreement.

“Intercreditor Agreement” means the Intercreditor Agreement dated as of December [__], 2017 among U.S. Bank National Association, as Trustee, Parity Lien Agent, and Collateral Agent, the Company, the Working Capital Loan Provider and the other Acceding Parties from time to time party thereto.

“Interest Hedging Agreement” has the meaning set forth in the Intercreditor Agreement.

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“Interest Hedging Bank” has the meaning set forth in the Intercreditor Agreement.

“Interest Hedging Obligation” has the meaning set forth in the Intercreditor Agreement.

“Interest Hedging Termination Obligation” has the meaning set forth in the Intercreditor Agreement.

“Interest Payment Account” means the “Interest Payment Account” established and created in the name of the Collateral Agent pursuant to Section 5.01(a).

“Insolvency Proceeding” has the meaning set forth in the Intercreditor Agreement.

“Investment Grade” means a rating in one of the four highest categories (without regard to subcategories within such rating categories) by a Nationally Recognized Rating Agency.

“Issuer” means the New Jersey Economic Development Authority, a public body corporate and politic constituting an instrumentality of the State of New Jersey.

“Lease Agreement” has the meaning specified in the recitals of this Agreement.

“Loss Event” means a Casualty Event or an Condemnation Event.

“Loss Proceeds” means Casualty Proceeds and Condemnation Proceeds.

“Loss Proceeds Fund” means the “Loss Proceeds Fund” established and created in the name of the Collateral Agent pursuant to Section 5.01(a).

“Maintenance Plan” means the maintenance plan setting forth in reasonable detail the major capital expenditures and repairs for the next succeeding five Fiscal Years, including the amount of any

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deposits to be made into the Major Maintenance Reserve Fund in accordance with the terms of the Financing Documents.

“Major Maintenance Expenditures” means any expenditure for Major Maintenance.

“Major Maintenance Reserve Deposit Requirement” means during any 12-month period, 1/12 of the amount required, if deposited each month and taking into account amounts then credited to the Major Maintenance Reserve Fund plus the aggregate amount available to be drawn on any Major Maintenance Reserve Letters of Credit on deposit therein and amounts scheduled to be withdrawn therefrom during such month, to make the balance credited to the Major Maintenance Reserve Fund at the end of such 12- month period equal to the Major Maintenance Reserve Required Balance for the following 12 months.

“Major Maintenance Reserve Fund” means the “Major Maintenance Reserve Fund” established and created in the name of the Collateral Agent pursuant to Section 5.01(a).

“Major Maintenance Reserve Letter of Credit” means an Acceptable Letter of Credit meeting the requirements of Section 5.08 hereof, which is issued by an Acceptable Letter of Credit Bank in favor of the Collateral Agent, delivered to the Collateral Agent for deposit into the Major Maintenance Reserve Fund, and which may be substituted for cash on deposit in the Major Maintenance Reserve Fund at the instruction of the Company, or any substantially similar letter of credit issued by an Acceptable Letter of Credit Bank.

“Major Maintenance Reserve Required Balance” means, as of each Monthly Funding Date after the Completion Date, an amount equal to all projected Major Maintenance Expenditures for the next 12- month period as set forth in the Maintenance Plan (taking into account amounts on deposit in the Major Maintenance Reserve Fund); provided, however, that the Major Maintenance Reserve Required Balance shall not exceed $25,000,000.

“Monthly Funding Date” means the twenty-fifth (25th) day of each calendar month.

“Moody’s” means Moody’s Investor Service, Inc., a Delaware corporation, and its successors and assigns.

“Nationally Recognized Rating Agency” means (x) S&P, Moody’s, Fitch or any successor to its rating agency business or (y) any other nationally-recognized securities rating agency that provides a rating for a relevant Person or on the Parity Lien Obligations of the Company at the request of the Company, unless otherwise required by the Bond Documents.

“Net Cash Flow” means, for any period, consolidated net income of the Company for such period, plus:

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(a) without duplication and to the extent already deducted (and not added back) in arriving at such consolidated net income, the sum of the following amounts for such period: (i) Net Interest;

(iii) non-cash charges;

(iv) depreciation and amortization expense;

(v) unusual, extraordinary or non-recurring losses, charges or expenses to the extent that such losses, charges or expenses are non-cash;

(vi) losses on asset sales, disposals or abandonments (other than asset sales, disposals or abandonments in the ordinary course of business);

(vii) any loss relating to amounts paid in cash prior to the stated settlement date of any hedging obligation that has been reflected in consolidated net income for such period;

(ii) non-cash gains;

(iv) gains on asset sales, disposals or abandonments (other than asset sales, disposals or abandonments in the ordinary course of business);

(v) any gain relating to amounts received in cash prior to the stated settlement date of any hedging obligation that has been reflected in consolidated net income in such period; and

(vi) any loss relating to hedging obligations associated with transactions realized in the current period that has been reflected in consolidated net income in prior

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periods and excluded from Net Cash Flow pursuant to clauses (a)(vii) and (a)(viii) above;

“Operating Account” means the bank account established by the Company with the Deposit Account Bank for the purposes set forth in Section 5.15(a) or any replacement account therefor established pursuant to the terms of this Agreement and subject to a Control Agreement.

“Operating Expenses” means all actual cash expenses incurred by or for the account of the Company for operation and maintenance of the Terminal, including without limitation, payments for costs of labor, energy and supplies relating to the operation of the Terminal and including any payments under operating leases for equipment or other personal property to be used in operating the Terminal; costs of management and advisory services; fees and expenses of obtaining and renewing government licenses and services; commissions and other costs of marketing the services provided at the Terminal; taxes, assessments and similar charges; fees and expenses of independent engineers, independent consultants and insurance consultants and legal and other engineering costs and expenses related to operation and maintenance of the Terminal (other than charges in connection with the issuance of Parity Obligations). Operating Expenses do not include costs for any Capital Expenditures or costs of extraordinary, nonrecurring major repairs or replacements, amounts payable as bonuses under construction contracts or reserves therefor, amounts payable as Debt Service on any Parity Obligations or Subordinate Obligations or reserves therefor or any other costs that are capitalized on the books of the Company.

“Operating Reserve Fund” means the “Operating Reserve Fund” established and created in the name of the Collateral Agent pursuant to Section 5.01(a).

“Operating Reserve Letter of Credit” means an Acceptable Letter of Credit meeting the requirements of Section 5.07 hereof, which is issued by an Acceptable Letter of Credit Bank in favor of the Collateral Agent, delivered to the Collateral Agent for deposit into the Operating Reserve Fund, and which may be substituted for cash on deposit in the Operating Reserve Fund at the instruction of the Company, or any substantially similar letter of credit issued by an Acceptable Letter of Credit Bank.

“Parity Lien Agent” has the meaning set forth in the recitals of this Agreement.

“Parity Lien Claimholders” has the meaning set forth in the Intercreditor Agreement.

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“Parity Lien Obligations” has the meaning set forth in the Intercreditor Agreement.

“Parity Secured Creditors” means, collectively, (i) the Trustee, (ii) any Additional Parity Creditor, (iii) any Interest Hedging Bank party to an Interest Hedging Agreement with respect to Parity Obligations and (iv) the Working Capital Loan Provider.

“Partial Requisition” has the meaning set forth in Section 5.03(e).

“Payment Date” means each Interest Payment Date, Capital Lease Payment Date, Purchase Money Payment Date and Principal Payment Date, as applicable.

“Payroll Accounts” has the meaning set forth in Section 5.13.

“Permitted Investments” means any Permitted Investment under the Indenture, or any of the following other investments, or any combination thereof, so long as such investments at the time of investment are legal investments under the laws of the State for the moneys proposed to be invested therein:

(a) Government Securities;

(b) Qualified Investments;

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weekly basis, of at least 102% of the principal amount invested under the investment contract or such rating is reinstated to the highest short-term category by at least one Nationally Recognized Rating Agency on or prior to such termination date;

(g) commercial paper rated in the highest short-term rating category by any Nationally Recognized Rating Agency;

“Permitted Liens” has the meaning set forth in the Security Agreement.

“Port Authority” means the Port Authority of New York and New Jersey, a body corporate and politic created by compact between the States of New Jersey and New York.

“Port Authority Consent” means the Consent to Subleases Agreement dated as of December 1, 2017 by and among the Port Authority, the Company, the Issuer and the Trustee.

“Port Authority Lease” means that certain Amended and Restated Agreement of Lease identified by Port Authority Lease No. L-PN-264 made as of July 14, 2011 (as supplemented, amended and extended).

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“Principal Payment Account” means the “Principal Payment Account” established and created in the name of the Collateral Agent pursuant to Section 5.01(a).

“Proceeds” means “proceeds” as such term is defined in the UCC.

“Project” has the meaning specified in the recitals of this Agreement.

“Purchase Money Obligation Provider” means a provider of any Purchase Money Obligation.

“Purchase Money Payment Date” means the payment date set forth in the applicable Financing Document with respect to the relevant Purchase Money Obligation.

“Qualified Investments” means (a) any of the following: bonds, debentures, notes or other evidence of indebtedness, other than subordinated or junior bonds, debentures, notes or other evidence of indebtedness, issued or guaranteed, other than on a subordinated or junior basis, by any of the following federal agencies, and any other agency or other instrumentality subsequently created by an act of the United States Congress, which are not backed by the full faith and credit of the United States of America: U.S. Export-Import Bank (Eximbank) direct obligations or fully guaranteed certificates of beneficial ownership; Farmers Home Administration certificates of beneficial ownership; securities of the Federal Financing Bank; Federal Housing Administration debentures; General Services Administration participation certificates; Federal National Mortgage Association senior debt obligations and mortgage- backed securities; Federal Home Loan Mortgage Corporation senior debt obligations and mortgage- backed securities; Federal Farm Credit Bank senior debt obligations and mortgage-backed securities; Government National Mortgage Association guaranteed mortgage-backed bonds and guaranteed pass- through obligations; Student Loan Marketing Association senior debt obligations; U.S. Maritime Administration guaranteed Title XI financing obligations; and U.S. Department of Housing and Urban Development project notes, local authority bond, new communities debentures-U.S. government guaranteed debentures and U.S. public housing notes and bonds-U.S. government guaranteed public

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housing notes and bonds and (b) securities evidencing ownership of the right to payment of specific principal or interest payments on an obligation described in (a) above, provided that such securities were created by or on behalf of the issuer of the applicable obligation and are held in the custody of a bank or trust company having a reported capital, surplus and undivided profits of at least $25,000,000 and a rating on its unsecured, unenhanced short-term obligations in the highest short-term category by at least one Nationally Recognized Rating Agency, in a special account separate from the general assets of such custodian.

“Releases” means with respect to any Hazardous Material, any release, spill, emission, emanation, leaking, pumping, injection, deposit, disposal, discharge, dispersal, leaching or migration of such Hazardous Material into the indoor or outdoor environment, including, without limitation, the movement of such Hazardous Material through ambient air, soil, surface water, ground water, wetlands, land or subsurface strata, except (a) emissions from the engine exhaust of a motor vehicle or (b) the application of fertilizer and pesticides in accordance with all labeling instructions and applicable law, including Environmental Laws.

“Required Agent” means the Parity Lien Agent, as determined pursuant to the Intercreditor Agreement.

“Requisition” has the meaning specified in Section 5.03(b).

“Reserve Funds” means (1) the Debt Service Reserve Fund, (2) the Major Maintenance Reserve Fund, and (3) the Operating Reserve Fund.

“Reserve Required Balance” means, respectively and as the case may be, (1) the Debt Service Reserve Required Balance, (2) the Major Maintenance Reserve Required Balance, and (3) the Operating Reserve Required Balance.

“Residual Fund” means the “Residual Fund” established and created in the name of the Collateral Agent pursuant to Section 5.01.

“Restoration,” “Restore” or “restoring” means repairing, rebuilding or otherwise restoring the Terminal.

“Restoration Requisition” has the meaning specified in Section 5.11(b)(iii).

“Restricted Payment Conditions” has the meaning specified in Section 5.10(b).

“Revenue Fund” means the “Revenue Fund” established and created in the name of the Collateral Agent pursuant to Section 5.01(a).

“Revenues” means, for any period (without duplication), all revenue received by or on behalf of the Company during such period, including but not limited to (a) interest paid in respect of any Project Accounts, (b) proceeds from any business interruption insurance and/or delayed opening insurance, (c) revenue derived from any third-party concession, lease or contract, (d) any other receipts otherwise arising or derived from or paid or payable in respect of the Terminal, (e) liquidated damages payable by or for the account of construction contractors and (f) any net cash payments received by the Company under or in connection with any Interest Hedging Agreement, but excluding proceeds of borrowings, equity contributions or Shareholder Loans to the Company, Loss Proceeds, and asset sales to the extent that such asset sale proceeds are reinvested in replacement property.

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“S&P” means Standard & Poor’s Ratings Services, a division of The McGraw-Hill Companies, Inc., and any successor thereto.

“Secured Creditors” means, collectively, (i) Parity Secured Creditors and (ii) any Subordinate Lenders.

“Secured Parties” means, collectively, the Issuer, the Collateral Agent and the Secured Creditors.

“Securities Accounts” has the meaning specified in Section 5.01.

“Securities Intermediary” means U.S. Bank National Association, in its capacity as securities intermediary under this Agreement, provided that at the time of any change in the identity of the Collateral Agent, the Person serving as the new Collateral Agent shall become the securities intermediary under this Agreement instead of U.S. Bank National Association or any other Person previously serving in such capacity, and such replacement securities intermediary shall have the authority to exercise and perform the rights and duties of the Securities Intermediary under this Agreement.

“Security Agreement” has the meaning specified in the recitals of this Agreement.

“Series 2003 Bonds” has the meaning specified in the recitals of this Agreement.

“Series 2017 Bonds” has the meaning specified in the recitals of this Agreement.

“Series 2017 Debt Service Fund” means the “Series 2017 Debt Service Fund” created under the Indenture.

“Series 2017 Debt Service Reserve Account” means the “Series 2017 Debt Service Reserve Account” established and created in the name of the Collateral Agent pursuant to Section 5.01(a).

“Series 2017 Debt Service Reserve Required Balance” means an amount equal to the Maximum Annual Debt Service calculated with respect to the Series 2017 Bonds.

“Series 2017 Interest Account” means the “Series 2017 Interest Account” created under the Indenture.

“Series 2017 Principal Account” means the “Series 2017 Principal Account” created under the Indenture.

“Series 2017 Rebate Fund” means the “Series 2017 Rebate Fund” created under the Indenture.

“Series 2017 Redemption Account” means the “Series 2017 Redemption Account” created under the Indenture.

“Shareholder Loan Accounts” has the meaning set forth in Section 5.13

“Subordinate Lender” means the issuer of a Subordinate Obligation.

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“Subordinate Obligations Fund” means the “Subordinate Obligations Fund” established and created in the name of the Collateral Agent pursuant to Section 5.01.

“Tax Certificate” means, with respect to the Series 2017 Bonds and any other tax-exempt bonds, (a) the certificate that sets forth the Issuer’s and the Company’s expectations and covenants regarding the investment and use of proceeds of such bonds, the use of projects financed or refinanced with proceeds of such bonds, and other matters relating to Bond Counsel’s opinion regarding the federal income tax treatment of interest on such bonds; and (b) any amendment or modification of any such certificate that is accompanied by an opinion of Bond Counsel stating that the amendment or modification will not adversely affect the exclusion of interest on such bonds from gross income for federal income tax purposes.

“Tax Completion Certificate” has the meaning set forth in the Lease Agreement.

“Taxes” means any and all present or future taxes, levies, imposts, duties, deductions, charges or withholdings imposed by any Governmental Authority.

“Terminal” has the meaning set forth in the recitals of this Agreement.

“Termination Notice” has the meaning specified in Section 5.16(a).

“Trustee” has the meaning set forth in the recitals of this Agreement.

“Voluntary Prepayment” means any voluntary prepayment, in whole or in part, made in respect of any Parity Obligations of the Company.

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“Working Capital Collateral” has the meaning set forth in the Intercreditor Agreement.

“Working Capital Loan” means any indebtedness incurred under one or more working capital facilities (and any modification, refinancing, refunding, renewal or extension thereof), provided that (i) the aggregate outstanding principal amount thereunder shall not exceed the greater of (x) $15,000,000 and (y) such larger amount to the extent such Additional Obligations in excess of $15,000,000 are permitted to be incurred as of the date of incurrence pursuant to the terms hereof and the Collateral Documents and (ii) the proceeds of any such loans are used for working capital or other short-term liquidity purposes of the Company.

“Working Capital Loan Documents” has the meaning set forth in the Intercreditor Agreement.

“Working Capital Loan Obligation” means any payment obligation of the Company pursuant to any Working Capital Loan.

“Working Capital Loan Provider” means any provider of a Working Capital Loan.

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Rules of Interpretation

1. Definitions of terms shall apply equally to the singular and plural forms of the terms defined.

2. The words “include,” “includes” and “including” shall be deemed to be followed by the phrase “without limitation”

3. The word “will” shall be construed to have the same meaning and effect as the word “shall.”

4. A reference to a Person shall be construed to include its successors and permitted assigns (subject to any restrictions on assignment set forth herein) and, in the case of any Governmental Authority, any other Governmental Authority that shall have succeeded to any or all functions thereof.

5. Except as otherwise expressly specified, all accounting terms have the meanings assigned to them by GAAP, as in effect from time to time.

6. A reference in a document to an Article, Section, Exhibit, Schedule, Annex or Appendix is to the Article, Section, Exhibit, Schedule, Annex or Appendix of such document unless otherwise indicated. Exhibits, Schedules, Annexes or Appendices to any document shall be deemed incorporated by reference in such document.

7. Unless the context requires otherwise, 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, amended and restated, supplemented and/or otherwise modified (subject to any restrictions on such amendments, supplements or modifications set forth in the Documents).

8. The words “hereof,” “herein” and “hereunder” and words of similar import when used in any document shall refer to this Agreement as a whole and not to any particular provision hereof.

9. References to “days” means calendar days, unless the term “Business Days” shall be used. References to a time of day means such time in New York, New York, unless otherwise specified.

10. 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.

11. Unless the context requires otherwise, any reference to “delivered by the Company” shall be construed to mean “delivered by an Authorized Company Representative.”

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EXHIBIT B to Collateral Agency Agreement

FORM OF FUNDS TRANSFER CERTIFICATE

No. _____

FUNDS TRANSFER CERTIFICATE

U.S. Bank National Association, as Collateral Agent, Trustee and Parity Lien Agent 21 South Street, 3rd Floor Morristown, NJ 07960 Attn: Corporate Trust Phone: (973) 898-7169

Ladies and Gentlemen:

This Funds Transfer Certificate is delivered by the Company (as hereinafter defined) pursuant to, and in accordance with all requirements set forth in, the Collateral Agency Agreement, dated as of December 1, 2017 (the “Collateral Agency Agreement”), by and among Port Newark Container Terminal L.L.C. (the “Company”) and U.S. Bank National Association, in its capacity as Collateral Agent (the “Collateral Agent”) and in its capacity as Securities Intermediary (the “Securities Intermediary”). All capitalized terms used herein but not defined herein shall have the meanings specified with respect to such terms in the Collateral Agency Agreement.

I. Certifications and Attachments

The Company hereby certifies to the Collateral Agent that:

A. the withdrawals and transfers below comply with the requirements of the Collateral Agency Agreement with respect to such withdrawals and transfers;

B. [delete this certification if not required] to the extent any transfers requested herein are subject to the Restricted Payment Conditions, such Restricted Payment Conditions will be satisfied as of the proposed date(s) of transfer set forth herein and the Certificate as to Restricted Payment Conditions related to such transfers has been attached to this Funds Transfer Certificate No. ___ as Annex 2;

C. [delete this certification if not required] the Series 2017 Debt Service Reserve Required Balance equals $______as of the date hereof and the amounts on deposit in the Series 2017 Debt Service Reserve Account, taking into account any transfers to and from the Series 2017 Debt Service Reserve Account requested below, if any, equals at least such amount.

Invoices or other appropriate evidence of the incurrence of each obligation described in Annex 1 are on file with the Company.

Annex 1 is comprised of excel spreadsheets (in .pdf format) with appropriate detail, divided by Parts A through N, as applicable to this Funds Transfer Certificate No. ___, setting forth the withdrawals and transfers referenced in paragraph II below.

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Annex 2 is the Certificate as to Restricted Payment Conditions related to any transfers subject to the Restricted Payment Conditions set forth in this Funds Transfer Certificate No. ___, to the extent required.

Annex 3 is a copy of the currently effective Exhibit H to the Collateral Agency Agreement setting forth the Debt Service for the Payment Dates for the Series 2017 Bonds.

II. Withdrawals and Transfers1

A. Revenue Fund Flow of Funds. After payment of any fees, administrative costs and other expenses then due and payable to the Collateral Agent, the Trustee, any other Secured Creditor, the Issuer or any rating agency, or their respective agents or trustees, as applicable, as set forth in greater detail in Part A of the attached Annex 1, the Company hereby instructs the Collateral Agent to make the following transfers from the Revenue Fund (and certain other referenced Project Accounts) on ______, 20__ as set forth in greater detail in Part A of the attached Annex 1, in each case, pursuant to, and determined in accordance with, the applicable numbered clause of Section 5.04(b) of the Collateral Agency Agreement:

1. [For Monthly Funding Dates.] To the Operating Account, an aggregate amount of $[______].

2. [For Monthly Funding Dates.] To the Rebate Fund for payment of any payments then due and payable by the Company to the Rebate Fund or any similar rebate fund established with respect to an additional tax-exempt borrowing transaction, an aggregate amount of $[______].

3. [For Monthly Funding Dates.] To the applicable sub-account(s) of the Interest Payment Account for the payment of interest payable pro rata to the respective Parity Obligations (excluding any Interest Hedging Obligations), if any, an aggregate amount of $[______].2

4. [For Monthly Funding Dates.] For the payment of Capital Lease Obligations, an aggregate amount of $[______] which shall be transferred to the applicable sub-account(s) of the Capital Lease Payment Payment Account.

5. [For Monthly Funding Dates.] For the payment of principal, sinking fund payments, mandatory prepayment or mandatory redemption, as applicable, due on Parity Obligations (including any Interest Hedging Termination Obligations but excluding Capital Lease Obligations and Purchase Money Obligations), an

1 NOTE: Each of paragraph II(A), (B), etc., only to be included in any Funds Transfer Certificate solely to the extent withdrawals and transfers are then to be made from the referenced Project Account for the referenced purpose on the proposed transfer date. 2 Pursuant to Sections 5.02(h) and 5.10, notwithstanding any instructions to the contrary contained herein or the omission of any instructions herefrom, the Collateral Agent shall determine and transfer the amounts payable with respect to the Series 2017 Bonds in accordance with Exhibit H attached to the Collateral Agency Agreement.

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aggregate amount of $[______]3, of which $[______] shall be transferred to the applicable sub-account(s) of the Principal Payment Account.

6. [For Monthly Funding Dates.] For the payment of Purchase Money Obligations, an aggregate amount of $[______], which shall be transferred to the applicable sub-account(s) of the Purchase Money Payment Account.

7. [For Monthly Funding Dates.] To the applicable sub-accounts of the Debt Service Reserve Fund in respect of any Parity Obligations, an aggregate amount of $[______], which shall be apportioned among such sub-accounts as set forth in Part A of the attached Annex 1, to fund any shortfall in the applicable Debt Service Reserve Required Balance.

8. [For Monthly Funding Dates.] To the Operating Reserve Fund, an aggregate amount of $[______].

9. [For Monthly Funding Dates.] To the Major Maintenance Reserve Fund, an aggregate amount of $[______].

10. [For Monthly Funding Dates.] To the Subordinate Obligations Fund, an amount equal to the amount necessary to pay Debt Service on Subordinate Obligations then due and payable.

11. [For Monthly Funding Dates.] To the Residual Fund, all remaining amounts on deposit in the Revenue Fund, after application of the foregoing.

B. Special Transfer to Trustee for Payment of Bonds. [For any date when such special transfer is to be made.] The Company hereby instructs the Collateral Agent to make the transfers from certain Project Accounts as set forth in greater detail in Part B of the attached Annex 1 on ______, 20__, to the applicable sub-account(s) of the Debt Service Fund for payment of Debt Service on all outstanding [______], a series of Bonds, in each case, pursuant to, and determined in accordance with, Section 5.04(g) of the Collateral Agency Agreement.

C. Major Maintenance Reserve Fund Disbursements. [For any date when such withdrawals may be made.] The Company hereby instructs the Collateral Agent to transfer from the Major Maintenance Reserve Fund (including, to the extent cash is not available therein, by drawing on any Major Maintenance Reserve Letters of Credit on deposit therein) on ______, 20__, which is a date on which funds may be transferred from the Major Maintenance Reserve Fund an aggregate amount of $[______] for deposit to the Operating Account for the payment of Major Maintenance Expenditures, as set forth in greater detail in Part C of the attached Annex 1, pursuant to, and determined in accordance with, Section 5.08 of the Collateral Agency Agreement.

D. Operating Reserve Fund Disbursements. [For any date when such withdrawals may be made] The Company hereby instructs the Collateral Agent to transfer from the

3 Pursuant to Sections 5.02(h) and 5.11, notwithstanding any instructions to the contrary contained herein or the omission of any instructions herefrom, the Collateral Agent shall determine and transfer the amounts payable with respect to the Series 2017 Bonds in accordance with Exhibit H attached to the Collateral Agency Agreement.

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Operating Reserve Fund (including, to the extent cash is not available therein, by drawing on any Operating Reserve Letters of Credit on deposit therein) on ______, 20__, which is a date on which funds may be transferred from the Operating Reserve Fund, an aggregate amount of $[______] for deposit to the Operating Account (or otherwise as directed by the Company) for the funding, or reimbursement of the funding, of Operating Expenses incurred in the ordinary course of business, as set forth in greater detail in Part D of the attached Annex 1, pursuant to, and determined in accordance with, Section 5.07 of the Collateral Agency Agreement.

E. Certain Residual Fund Disbursements.

1. [For any date within ten (10) Business Days after the date on which financial statements for the fiscal quarter ending on the most recent Calculation Date have been delivered pursuant to the Continuing Disclosure Agreement] The Company hereby instructs the Collateral Agent to make the transfers from the Residual Fund to the accounts and/or payees as set forth in greater detail in Part E of the attached Annex 1 on ______, 20__, which is a date upon which such transfer(s) may be made in accordance with Section 5.10(c) of the Collateral Agency Agreement.

2. [For any date when such withdrawals may be made] The Company hereby instructs the Collateral Agent to make the transfers from the Residual Fund for the payment of Major Maintenance Expenditures to the accounts and/or payees as set forth in greater detail in Part F of the attached Annex 1 on ______, 20__, which is a date upon which such transfer(s) may be made in accordance with Section 5.10(e) of the Collateral Agency Agreement.

3. [For any date when such withdrawals may be made] The Company hereby instructs the Collateral Agent to make the transfers from the Residual Fund for the payment of Capital Expenditures to the accounts and/or payees as set forth in greater detail in Part G of the attached Annex 1 on ______, 20__, which is a date upon which such transfer(s) may be made in accordance with Section 5.10(e) of the Collateral Agency Agreement.

Dated: ______, 20__4

______Authorized Company Representative

4 Date of delivery of the Fund Transfer Certificate to be no later than two (2) Business Days prior to any proposed date of withdrawal or transfer, unless a shorter period is acceptable to the Collateral Agent and the Required Agent pursuant to Section 5.18(b) of the Collateral Agency Agreement.

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ANNEX 1 to the Funds Transfer Certificate

[Company to attach excel spreadsheets (in .pdf format) with appropriate detail, divided by Parts A through F]

Part A: Disbursements from the Revenue Account

Part B: Disbursements for Prepayments of the Bonds

Part C: Disbursements from the Major Maintenance Reserve Fund

Part D: Disbursements from the Operating Reserve Fund

Part E: Discretionary Disbursements from the Residual Fund

Part F: Disbursements from the Residual Fund for the Payment of Major Maintenance Expenditures

Part G: Disbursements from the Residual Fund for the Payment of Capital Expenditures

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ANNEX 2 to the Funds Transfer Certificate

CERTIFICATE AS TO RESTRICTED PAYMENT CONDITIONS

Reference is made to Section 5.10(b) of the Collateral Agency Agreement. Any capitalized term used herein but not defined in this Certificate shall have the respective meanings assigned to such terms in that certain Collateral Agency Agreement (as defined in the attached Funds Transfer Certificate No. ___).

The Company hereby certifies as of the date(s) of distribution to which Funds Transfer Certificate No. ___ relates:

1. All transfers and distributions required to be made pursuant to clauses First through Eighth of Section 5.04(b) of the Collateral Agency Agreement on the Monthly Funding Date on or immediately preceding such date of distribution, have been satisfied in full on such Monthly Funding Date.

2. The Debt Service Reserve Fund is funded at the Debt Service Reserve Required Balance, the Major Maintenance Reserve Fund is funded at the Major Maintenance Reserve Required Balance, the Operating Reserve Fund is funded at the Operating Reserve Required Balance and each of the Debt Service Fund and the Subordinate Obligations Fund are funded at their respective required amounts.

3. Amounts on deposit in the Debt Service Fund are equal to the Debt Service due on the next applicable Monthly Funding Date

4. No Event of Default has occurred and is continuing, or would occur as a direct result of the proposed distribution.

5. For the twelve (12) month period ending on the applicable Calculation Date, the Debt Service Coverage Ratio as of such Calculation Date exceeded 1.25 to 1.00, as certified by the Company in the attached Certificate as to Debt Service Coverage Ratio.

6. For the six (6) month period commencing on the applicable Calculation Date, the Debt Service Coverage Ratio is projected to exceed 1.25 to 1.00, based on reasonable projections made by the Company and as certified by the Company in the attached Certificate as to Debt Service Coverage Ratio.

7. The Completion Date has occurred.

Dated: ______

______Authorized Company Representative

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ANNEX 3 to the Funds Transfer Certificate

SERIES 2017 BONDS

DEBT SERVICE SCHEDULE

[To come]

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EXHIBIT C to Collateral Agency Agreement

FORM OF CERTIFICATE AS TO DEBT SERVICE COVERAGE RATIO OR NET CASH FLOW

Ladies and Gentlemen:

This Certificate as to Debt Service Coverage Ratio is delivered by the Company (as hereinafter defined) pursuant to, and in accordance with all requirements set forth in the Collateral Agency Agreement, dated as of December 1, 2017 (the “Collateral Agency Agreement”), by and among Port Newark Container Terminal L.L.C. (the “Company”) and U.S. Bank National Association, in its capacity as Collateral Agent (the “Collateral Agent”) and in its capacity as Securities Intermediary (the “Securities Intermediary”). All capitalized terms used herein but not defined herein shall have the meanings specified with respect to such terms in the Collateral Agency Agreement.

The Company hereby certifies:

(1) [For certificate delivered in connection with the Rate Covenant] [The Debt Service Coverage Ratio is not less than 1.10 to 1.00.]

(2) [For certificate delivered in connection with any distribution from the Residual Fund] [For the twelve (12) month period ending on the applicable Calculation Date, the Debt Service Coverage Ratio as of such Calculation Date exceeded 1.25 to 1.00. For the six (6) month period commencing on the applicable Calculation Date, the Debt Service Coverage Ratio is projected to exceed 1.25 to 1.00, based on reasonable projections made by the Company.]

(3) [For certificate delivered in connection with any Additional Obligations][ Net Cash Flow for any twelve (12) consecutive months of the 18 months immediately preceding the date of issuance of the Additional Obligations was at least 1.50 times the Maximum Annual Debt Service with respect to all existing Parity Obligations and Subordinate Obligations and any Additional Obligations being issued; or (A) Net Cash Flow for the twelve (12) months immediately preceding the date of issuance of the Additional Obligations was at least 1.20 times the Maximum Annual Debt Service with respect to all existing Parity Obligations and Subordinate Obligations and any Additional Obligations being issued; and (ii) Net Cash Flow in any of the first five (5) years after the issuance of the Additional Obligations as projected by the Independent Consultant will be at least 1.60 times the projected Maximum Annual Debt Service on all existing Parity Obligations and Subordinate Obligations and any Additional Obligations being issued.

The Company also certifies that the calculations made are included as Annex 1 hereto and are derived and calculated based upon financial statements prepared in accordance with GAAP, which in fairly present in all material respects the financial position and results of operations and cash flows of the Company in accordance with GAAP, as certified by Company’s independent auditor (in the case of audited financial statements) and books and records of the Company.

Dated: ______

______Authorized Company Representative

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ANNEX 1 to the Debt Service Coverage Ratio Certificate

CALCULATIONS DEMONSTRATING DEBT SERVICE COVERAGE RATIO

[See attached.]

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EXHIBIT D to Collateral Agency Agreement

ACCOUNTS

Part I: Accounts Maintained at U.S. Bank National Association

Defined Term Full Account Name Account Number Revenue Fund Construction Fund Bonds Construction Account Equity Construction Account Debt Service Fund Interest Payment Account Capital Lease Payment Account Principal Payment Account Purchase Money Payment Account Debt Service Reserve Fund Series 2017 Debt Service Reserve Account Major Maintenance Reserve Fund Operating Reserve Fund Loss Proceeds Fund Subordinate Obligations Fund Residual Fund Series 2017 Interest Account1 Series 2017 Principal Account2 Series 2017 Redemption Account3 Series 2017 Rebate Fund4

Wiring Instructions:

U.S. Bank National Association ABA [______]

1 Account established and maintained under the Indenture. 2 Account established and maintained under the Indenture. 3 Account established and maintained under the Indenture. 4 Account established and maintained under the Indenture.

D-1

SWIFT: [______] Cr: [______] A/C #: [______] FFC: A/C # (Reference Account # from above list) Ref: [______]

Part II: Accounts Maintained at [ ]

Defined Term Full Account Name Account Number

Operating Account

Wiring Instructions:

[______] ABA [______] SWIFT: [______] Cr: [______] A/C #: [______] FFC: A/C # (Reference Account # from above list) Ref: [______]

D-2

EXHIBIT E to Collateral Agency Agreement

FORM OF RESTORATION REQUISITION CERTIFICATE

No. ____

RESTORATION REQUISITION

U.S. Bank National Association, as Collateral Agent, Trustee and Parity Lien Agent 21 South Street, 3rd Floor Morristown, NJ 07960 Attn: Corporate Trust Phone: (973) 898-7169

Ladies and Gentlemen:

On behalf of Port Newark Container Terminal L.L.C. (the “Company”), I hereby requisition, pursuant to Section 5.11 of that certain Collateral Agency Agreement, dated as of December 1, 2017, (the “Collateral Agency Agreement”), by and among the Company and U.S. Bank National Association, in its capacity as collateral agent (in such capacity, the “Collateral Agent”) and in its capacity as securities intermediary (in such capacity, the “Securities Intermediary”), from the Loss Proceeds Fund the sums identified in Exhibit A attached hereto to be paid to the persons listed in Exhibit A, in the amounts and at the addresses and for the purposes set forth therein. All capitalized terms used herein but not defined herein shall have the meanings specified with respect to such terms in the Collateral Agency Agreement.

Invoices or other appropriate evidence of the incurrence of each obligation described in Exhibit A are on file with the Company.

I hereby certify that:

1. [A Loss Event has occurred in an amount greater than $1,000,000 in the aggregate, the Company has received Loss Proceeds in respect of such Loss Event]1

2. [A Loss Event has occurred in an amount greater than $10,000,000 and the Independent Consultant determines that it is commercially feasible to Restore the Terminal. Enclosed pleased find the Certificate of the Independent Consultant.]2

3. This is Restoration Requisition number ___ for such Loss Event and such Restoration Requisition requisitions funds from the Loss Proceeds Fund created by the Collateral Agency Agreement.

4. The requested date of disbursement of funds under this Requisition number ___ is ______, 20[__].

1 This certification is to be included only on the first Restoration Requisition delivered with respect to a Loss Event in an amount greater than $1,000,000 in the aggregate to requisition funds for the Restoration of the Project. 2 This certification is to be included only on the first Restoration Requisition delivered with respect to a Loss Event in an amount greater than $10,000,000 in the aggregate to requisition funds for the Restoration of the Project.

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5. The name(s), address(es) and wire instruction(s), as applicable, of the person(s), firm(s) or corporation(s) to whom payment is due are reflected on Exhibit A attached hereto.

6. The total amount to be disbursed from the Loss Proceeds Fund pursuant to this Requisition is $______.

7. The purpose(s) (in reasonable detail) of each payment (and if payee is the Company or an affiliate thereof for reimbursement of certain Restoration costs previously paid by the Company or such affiliate, the basis for the reimbursement) is as set forth on Exhibit A hereto.

Date of Requisition: ______

______Authorized Company Representative

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Exhibit A to Restoration Requisition

[Company to attach excel spreadsheets (in .pdf format) with appropriate detail]

E-3

EXHIBIT F to Collateral Agency Agreement

FORM OF RESTORATION REQUISITION CERTIFICATE OF THE INDEPENDENT CONSULTANT

CERTIFICATE OF THE INDEPENDENT CONSULTANT IN RELATION TO RESTORATION REQUISITION NO. ___1

Ladies and Gentlemen:

Any capitalized term used herein but not defined in this Certificate shall have the respective meanings assigned to such terms in that certain Collateral Agency Agreement (as defined in the attached Requisition No. ___).

We hereby certify that we concur with the Company’s determination that it is commercially feasible to Restore the Terminal, namely that:

1. The Loss Proceeds, together with any other amounts available to the Company through irrevocable commitments of the affiliates of the Company, will be sufficient to permit the Restoration of the Project;

2. Sufficient funds are or will be available to the Company in the Project Accounts, the accounts maintained under the Indenture, through irrevocable commitments from affiliates of the Company and/or projected Revenues during the estimated period of the Restoration, to pay all Total Debt Service during such period of Restoration; and

Date: ______

______Authorized Company Representative

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EXHIBIT G to Collateral Agency Agreement

FORM OF COMPANY WITHDRAWAL CERTIFICATE

No. ____

COMPANY WITHDRAWAL CERTIFICATE

U.S. Bank National Association, as Collateral Agent, Trustee and Parity Lien Agent 21 South Street, 3rd Floor Morristown, NJ 07960 Attn: Corporate Trust Phone: (973) 898-7169

Ladies and Gentlemen:

On behalf of Port Newark Container Terminal L.L.C. (the “Company”), I hereby requisition, pursuant to Section 5.03 of that certain Collateral Agency Agreement, dated as of December 1, 2017, (the “Collateral Agency Agreement”), by and among the Company and U.S. Bank National Association, in its capacity as collateral agent (in such capacity, the “Collateral Agent”) and in its capacity as securities intermediary (in such capacity, the “Securities Intermediary”), from certain sub-accounts of the Construction Fund the sums identified in Exhibit A attached hereto to be paid to the persons listed in Exhibit A, in the amounts and at the addresses and for the purposes set forth therein. All capitalized terms used herein but not defined herein shall have the meanings specified with respect to such terms in the Collateral Agency Agreement.

Invoices or other appropriate evidence of the incurrence of each obligation described in Exhibit A are on file with the Company.

I hereby certify that:

1. This is Company Withdrawal Certificate No. ___ and such Company Withdrawal Certificate requisitions funds from the [Bonds Construction Account][Equity Construction Account][and][list any other applicable sub-account of the Construction Fund subject to the requisition procedures of Section 5.03 of the Collateral Agency Agreement, as the case may be,] of the Construction Fund created by the Collateral Agency Agreement.

2. The requested date of disbursement of funds under this Company Withdrawal Certificate No. ___ is ______, 20[__].

3. The name(s), address(es) and wire instruction(s), as applicable, of the person(s), firm(s) or corporation(s) to whom payment is due are reflected on Exhibit A attached hereto.

4. The total amount to be disbursed from the [Bonds Construction Account][Equity Construction Account][and][list any other applicable sub-account of the Construction Fund subject to the requisition procedures of Section 5.03 of the Collateral Agency Agreement, as the case may be,] of the Construction Fund, pursuant to this Requisition is $______.

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5. [(i)] The purpose(s) (in reasonable detail) of the payment (and if payee is the Company or an affiliate thereof for reimbursement of Costs of the Project previously paid by the Company or such affiliate, the basis for the reimbursement) and drawing instructions under any letter of credit deposited in the Construction Fund are as set forth on Exhibit A hereto.

[(ii)] The purpose of this Requisition is to instruct the Collateral Agent to retain in the Construction Fund or its sub-accounts, as set forth on Exhibit A hereto, [certain amounts necessary for the payment of Costs of the Project reasonably expected to become due and payable on or prior to the Completion Date][any necessary amounts pursuant to Section 5.02(d) of the Collateral Agency Agreement].]1

6. As of the proposed disbursement date, the following conditions to disbursements will have been satisfied:

(i) Delivery to the addressees listed above of this duly executed Company Withdrawal Certificate No. ___.

(ii) No Event of Default has occurred and is continuing.

(iii) All amounts previously requisitioned pursuant to prior Requisitions for the payment or reimbursement of Costs of the Project have been applied solely to pay or reimburse Costs of the Project.

(iv) All amounts requisitioned pursuant to this Company Withdrawal Certificate relate to Costs of the Project that have been or are reasonably projected to be incurred in connection with the Project and none have been the basis for a prior Requisition that has been paid.

Date of Requisition:

Authorized Company Representative

1 Item 5(ii) to be included solely to the extent such Company Withdrawal Certificate requests that certain amounts be retained in a Project Account, or sub-account thereof, as permitted by the Collateral Agency Agreement.

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Exhibit A to Company Withdrawal Certificate

[Company to attach excel spreadsheets (in .pdf format) with appropriate detail]

G-3

INTERCREDITOR AGREEMENT,

Dated as of December 1, 2017,

among

U.S. BANK NATIONAL ASSOCIATION, as Parity Lien Agent,

U.S. BANK NATIONAL ASSOCIATION, as Trustee,

U.S. BANK NATIONAL ASSOCIATION, as Collateral Agent,

WELLS FARGO BANK, NATIONAL ASSOCIATION, as Working Capital Loan Provider,

and

PORT NEWARK CONTAINER TERMINAL L.L.C., as the Grantor,

TABLE OF CONTENTS Page ARTICLE I LIEN PRIORITIES ...... 2 SECTION 1.1 Priority of Liens Securing Obligations ...... 2 SECTION 1.2 Parity Lien Obligations; Working Capital Loan Obligations ...... 3 SECTION 1.3 Collateral to Be Identical ...... 4 SECTION 1.4 Subordination of Subordinate Obligations ...... 4 SECTION 1.5 Limitations on Duties and Obligations ...... 5 SECTION 1.6 Prohibition on Contesting Liens; No Marshaling ...... 6 SECTION 1.7 Confirmation of Intercreditor Agreement in Collateral Documents ...... 6 SECTION 1.8 Terms of Interest Hedge Agreements ...... 6 SECTION 1.9 Class and Intercreditor Voting ...... 7 SECTION 1.10 Acceleration ...... 7 ARTICLE II MODIFICATION OF OBLIGATIONS ...... 7 SECTION 2.1 Permitted Modifications ...... 7 SECTION 2.2 Modifications Requiring Consent ...... 7 SECTION 2.3 Notice of Modifications ...... 8 ARTICLE III ENFORCEMENT ...... 8 SECTION 3.1 Exercise of Remedies ...... 8 SECTION 3.2 Manner of Exercise ...... 9 SECTION 3.3 Specific Performance ...... 11 SECTION 3.4 Working Capital Loan Provider’s Inspection and Access Rights ...... 11 SECTION 3.5 Turnover; Set-off ...... 11 SECTION 3.6 Release of Collateral ...... 12 ARTICLE IV PAYMENTS ...... 12 SECTION 4.1 Application of Proceeds ...... 12 SECTION 4.2 Insurance ...... 12 SECTION 4.3 Additional Obligations Incurred to Refinance Parity Lien Obligations ...... 13 ARTICLE V APPOINTMENT OF AGENTS, RESIGNATION AND REMOVAL OF AGENTS; INDEMNIFICATION OF AGENTS ...... 13 SECTION 5.1 Appointment of the Parity Lien Agent ...... 13 SECTION 5.2 Resignation and Removal of Agents ...... 14 SECTION 5.3 Indemnification ...... 15 ARTICLE VI INSOLVENCY PROCEEDINGS...... 15 SECTION 6.1 Avoidance; Reinstatement of Obligations ...... 15 SECTION 6.2 Reorganization Securities ...... 15 SECTION 6.3 Effectiveness in Insolvency Proceedings ...... 16 SECTION 6.4 No Contest ...... 16 SECTION 6.5 Asset Sales...... 16 ARTICLE VII ACCESSION; APPOINTMENT OF COLLATERAL AGENT ...... 17 SECTION 7.1 Accession ...... 17 SECTION 7.2 Authorization for the Collateral Agent to Execute Accession Agreement .... 17 SECTION 7.3 Appointment of Collateral Agent and Securities Intermediary ...... 17 ARTICLE VIII MISCELLANEOUS ...... 18

SECTION 8.1 Conflicts ...... 18 SECTION 8.2 No Waivers; Remedies Cumulative; Integration ...... 18 SECTION 8.3 Effectiveness; Severability; Termination ...... 18 SECTION 8.4 Modifications of this Agreement, Collateral Agency Agreement ...... 18 SECTION 8.5 Information Concerning Financial Condition of Grantors ...... 19 SECTION 8.6 [Reserved] ...... 20 SECTION 8.7 No Warranties; Independent Action ...... 20 SECTION 8.8 Applicable Law; Jurisdiction; Service ...... 20 SECTION 8.9 WAIVER OF JURY TRIAL ...... 20 SECTION 8.10 Notices ...... 21 SECTION 8.11 Further Assurances ...... 22 SECTION 8.12 Successors and Assigns ...... 22 SECTION 8.13 Authorization ...... 22 SECTION 8.14 No Third Party Beneficiaries ...... 22 SECTION 8.15 No Indirect Actions ...... 22 SECTION 8.16 Counterparts ...... 23 SECTION 8.17 Original Grantors, Additional Grantors ...... 23 SECTION 8.18 Amendments for Additional Obligations ...... 23 ARTICLE IX DEFINITIONS ...... 23 SECTION 9.1 Defined Terms ...... 23 SECTION 9.2 Usages ...... 29

Exhibit 1 – Form of Accession Agreement

THIS INTERCREDITOR AGREEMENT, dated as of December 1, 2017 (as amended, supplemented, amended and restated, or otherwise modified, this “Agreement”), is among U.S. BANK NATIONAL ASSOCIATION, in its capacity as agent (in such capacity, the “Parity Lien Agent”) for the holders of the Parity Lien Obligations (such capitalized term, and other terms used in this preamble and the recitals, to have the meanings set forth in Article IX), U.S. BANK NATIONAL ASSOCIATION, in its capacity as trustee under the Indenture defined below (in such capacity, together with any successors thereto in such capacity, the “Trustee”), U.S. BANK NATIONAL ASSOCIATION, as collateral agent pursuant to the terms of the Collateral Agency Agreement (in such capacity, the “Collateral Agent”), each other Acceding Party hereto, WELLS FARGO BANK NATIONAL ASSOCIATION, as the initial Working Capital Loan Provider (the “Working Capital Loan Provider”) and PORT NEWARK CONTAINER TERMINAL L.L.C., a Delaware limited liability company (the “Company”).

WITNESSETH

WHEREAS, the New Jersey Economic Development Authority (the “Issuer”) and the Trustee have entered into the Trust Indenture dated as of December 1, 2017 (as amended, supplemented, amended and restated, or otherwise modified from time to time, the “Indenture”), pursuant to which the Issuer shall issue the New Jersey Economic Development Authority Special Facility Revenue and Refunding Bonds (Port Newark Container Terminal L.L.C. Project), Series 2017 (the “Series 2017 Bonds”) in the original principal amount of $300,000,000;

WHEREAS, pursuant to the Lease Agreement dated as of December 1, 2017 (as amended, supplemented, amended and restated, or otherwise modified from time to time, the “Lease Agreement”), the Issuer shall lend the proceeds of the Series 2017 Bonds to the Company;

WHEREAS, pursuant to that certain Collateral Agency Agreement dated as of December 1, 2017 by and among the Company, the Working Capital Loan Provider, the Trustee, the Parity Lien Agent, the Collateral Agent and the Securities Intermediary (as amended, supplemented, amended and restated, or otherwise modified from time to time, the “Collateral Agency Agreement”), the Trustee (on behalf of the owners of the Series 2017 Bonds), the Parity Lien Agent (on behalf of the Parity Lien Claimholders), appointed, and pursuant to this Agreement, each Acceding Party wishes to direct the Parity Lien Agent to appoint, U.S. Bank National Association, as Collateral Agent and Securities Intermediary for the benefit of the Secured Parties, under the Collateral Agency Agreement and the other Collateral Documents;

WHEREAS, the Company retains the ability to incur Additional Obligations pursuant to the Collateral Agency Agreement;

WHEREAS, pursuant to that certain Credit Agreement dated as of December [__], 2017 (as amended, supplemented, amended and restated, or otherwise modified from time to time, the “Working Capital Credit Agreement”) and the other Working Capital Loan Documents, the Working Capital Loan Provider has agreed to provide a revolving credit facility in an aggregate original principal amount not to exceed $15,000,000 for the purposes enumerated in such Working Capital Credit Agreement;

WHEREAS, the Parity Lien Obligations are secured by Liens on substantially all the assets of the Company and on other Collateral pledged under the Collateral Documents;

WHEREAS, the Working Capital Loan Obligations are secured by Liens on the Working Capital Collateral pledged under the Collateral Documents; and

WHEREAS, the Parties desire to set forth in this Agreement their rights and remedies with respect to the Collateral securing the Parity Lien Obligations and the Working Capital Loan Obligations.

NOW, THEREFORE, in consideration of the premises and of the mutual covenants herein contained, the Parties hereto agree as follows:

ARTICLE I LIEN PRIORITIES

SECTION 1.1 Priority of Liens Securing Obligations

(a) A Lien or purported Lien on Collateral (other than Working Capital Collateral) securing, or purportedly securing, any Parity Lien Obligation will at all times rank (i) senior in right of payment, in right of security and in all other respects to a Lien on such Collateral securing, or purportedly securing, any Subordinate Obligation and (ii) pari passu in right of payment, in right of security and in all other respects to a Lien on such Collateral securing, or purportedly securing, any other Parity Lien Obligation, without any preference or priority among the Parity Lien Claimholders except as expressly provided in this Agreement.

(b) A Lien or purported Lien on Collateral (other than Working Capital Collateral) securing, or purportedly securing, any Subordinate Obligation will at all times rank (i) junior and subordinate in right of payment, in right of security and in all other respects to a Lien on such Collateral securing, or purportedly securing, any Parity Lien Obligation and (ii) pari passu in right of payment, in right of security and in all other respects to a Lien on such Collateral securing, or purportedly securing, any other Subordinate Obligation, without any preference or priority among the Subordinate Claimholders except as expressly provided in this Agreement.

(c) A Lien or purported Lien on Working Capital Collateral securing, or purportedly securing, any Working Capital Loan Obligation will at all times rank (i) senior in right of payment, in right of security and in all other respects to a Lien on such Working Capital Collateral securing, or purportedly securing, any Parity Lien Obligation or Subordinate Obligation and (ii) pari passu in right of payment, in right of security and in all other respects to a Lien on such Working Capital Collateral securing, or purportedly securing, any other Working Capital Loan Obligation, without any preference or priority among the Working Capital Loan Claimholders except as expressly provided in this Agreement.

(d) A Lien or purported Lien on Working Capital Collateral securing, or purportedly securing, any Parity Lien Obligation will at all times rank (i) junior and subordinate in right of payment, in right of security and in all other respects to a Lien on such Working Capital Collateral securing, or purportedly securing, any Working Capital Loan Obligation, (ii) pari passu in right of payment, in right of security and in all other respects to a Lien on such Collateral securing, or purportedly securing, any other Parity Lien Obligation, without any preference or priority among the Parity Lien Claimholders except as expressly provided in this Agreement and (iii) senior in right of payment, in right of security and in all other respects to a Lien on such Working Capital Collateral securing, or purportedly securing, any Subordinate Obligation.

(e) Except as otherwise expressly provided herein, the priority of the Liens securing Obligations, and the rights and obligations of the Parties, will remain in full force and effect irrespective of

(i) how a Lien was acquired (whether by grant, possession, statute, operation of law, subrogation, or otherwise),

(ii) the time, manner, method, or order of the grant, attachment, recording, or perfection of a Lien,

(iii) any conflicting provision of the UCC or other applicable law,

(iv) any defect in, or non-perfection, setting aside, deficiency, or avoidance of, a Lien or purported Lien,

(v) the modification of an Obligation (to the extent not prohibited hereunder),

(vi) the modification of a Parity Lien Document, Subordinate Document or Working Capital Loan Document (to the extent not prohibited hereunder),

(vii) the subordination of a Lien on Collateral securing an Obligation to a Lien securing another obligation of a Grantor or other Person,

(viii) the exchange of a security interest in any Collateral for a security interest in other Collateral,

(ix) the commencement of an Insolvency Proceeding, or

(x) any other circumstance whatsoever (other than the payment in full of the Obligations), including a circumstance that might be a defense available to, or a discharge of, a Grantor in respect of such Obligation, or any holder of such Obligation.

SECTION 1.2 Parity Lien Obligations; Working Capital Loan Obligations

(a) As used herein:

(i) “Parity Lien Obligations” means (x) the Bonds and (y) all Parity Obligations (other than Working Capital Loan Obligations) of the Company arising under or in connection with:

(1) the Lease Agreement and the other Parity Lien Documents, including any Interest Hedging Agreement as permitted under the Financing Documents, and

(2) any agreement or instrument granting or providing for the perfection of a Lien securing any of the foregoing.

Parity Lien Obligations will also include interest, fees, expenses, costs, premiums (deferred or otherwise), collateral funding obligations, termination payments, and other charges incurred in connection with the foregoing, whether incurred before or after commencement of an Insolvency Proceeding and whether or not allowed by an Insolvency Proceeding.

(ii) “Working Capital Loan Obligations” means all Parity Obligations of the Company arising under or in connection with:

(1) the Working Capital Credit Agreement and the other Working Capital Loan Documents; and

(2) any agreement or instrument granting or providing for the perfection of a Lien securing any of the foregoing.

Working Capital Loan Obligations will also include interest, fees, expenses, costs, premiums (deferred or otherwise), collateral funding obligations, termination payments, and other charges incurred in connection with the foregoing, whether incurred before or after commencement of an Insolvency Proceeding and whether or not allowed by an Insolvency Proceeding.

(b) To the extent that any payment with respect to the Parity Lien Obligations (whether by or on behalf of any Grantor, as proceeds of security, enforcement of any right of set-off, or otherwise) is declared to be fraudulent or preferential in any respect, set aside, or required to be paid to a debtor in possession, trustee, receiver, or similar Person, then the obligation or part thereof originally intended to be satisfied will be deemed to be reinstated and outstanding as if such payment had not occurred.

(c) To the extent that any payment with respect to the Working Capital Loan Obligations (whether by or on behalf of any Grantor, as proceeds of security, enforcement of any right of set-off, or otherwise) is declared to be fraudulent or preferential in any respect, set aside, or required to be paid to a debtor in possession, trustee, receiver, or similar Person, then the obligation or part thereof originally intended to be satisfied will be deemed to be reinstated and outstanding as if such payment had not occurred.

SECTION 1.3 Collateral to Be Identical

(a) The Parties intend that the Collateral (other than the Excluded Collateral) securing the Parity Lien Obligations and the Subordinate Obligations be identical, subject to the terms of the Security Agreement. Accordingly, subject to the other provisions of this Agreement, the Parties will cooperate:

(i) to determine the specific items included in the Collateral, the steps taken or to be taken to perfect the Liens thereon, and the identity of the Persons having Obligations, and

(ii) to make the forms, documents, and agreements creating or evidencing the Collateral, the Liens thereon and the guaranties (if any) of the Obligations materially the same.

(b) Whether or not an Insolvency Proceeding has commenced, no Grantor will grant, and each Grantor will use all commercially reasonable efforts to prevent any other Person from granting, a Lien on any property in favor of any Claimholder to secure an Obligation unless such Grantor or such other Person grants (or offers to grant with a reasonable opportunity for the Lien to be accepted) (i) the Parity Lien Agent a pari passu Lien on such property (except to the extent such property constitutes Excluded Collateral) to secure the other Parity Lien Obligations and (ii) if such property constitutes Working Capital Collateral, the Working Capital Loan Provider a senior Lien on such property to secure the Working Capital Loan Obligations.

(c) Subject to Section 1.1, and except for Excluded Collateral, if a Party hereafter acquires a Lien on property to secure an Obligation (other than any Working Capital Loan Obligation), where the property is not also subject to a Lien securing all other Obligations, then such Party will give each other Party written notice of such Lien no later than five Business Days after acquiring such Lien. If an additional Party also obtains a Lien on such property or if a Party fails to provide such timely notice to the other Parties, then such property will be deemed to be Collateral for all purposes hereunder.

SECTION 1.4 Subordination of Subordinate Obligations

(a) Each Subordinate Claimholder hereby agrees that the payment of all Subordinate Obligations hereunder is subordinated in right of payment, to the extent and in the manner provided in this Section 1.4, to the prior payment in full in cash of all Senior Obligations (whether outstanding on the Closing Date or thereafter created, incurred, assumed or guaranteed), and that the subordination is for the benefit of and enforceable by each Senior Claimholder.

(b) Upon any payment or distribution of the assets of any Grantor to Claimholders in an Insolvency Proceeding involving such Grantor or its property:

(i) Each Senior Claimholder will be entitled to receive payment in full in cash of all Senior Obligations owing to such Senior Claimholder before the Subordinate Claimholders will be entitled to receive any payment with respect to Subordinate Obligations;

(ii) until the Discharge of all Senior Obligations, any distribution (other than pursuant to clause (i) above) to which any Subordinate Claimholder would be entitled but for this Section 1.4 will be made pro rata to the Senior Claimholders, and following the Discharge of all Senior Obligations, each Subordinate Claimholder may retain any distribution to which it is entitled;

(iii) if a distribution is made to any Subordinate Claimholder that, due to the subordination provisions of this Section 1.4 should not have been made to it, such Subordinate Claimholder will be required to hold it in trust for the Senior Claimholders and pay it over pro rata to Senior Claimholders; and

(iv) Notwithstanding any provision of this Agreement to the contrary (A) the failure of any Grantor to make any distribution with respect to any Subordinate Obligation or to comply with any other provision of the Subordinate Obligation documentation by reason of the operation of this Agreement shall not be construed as preventing a breach of such document or the occurrence of a default under such Subordinate Obligation documentation and (B) this Section 1.4 shall not be deemed to (x) prohibit the accrual of interest on the Subordinate Obligations, including at the default rate in accordance with the terms thereof, (y) prohibit the accrual or capitalization of fees, interest or other amounts pursuant to the Subordinate Obligations or (z) Discharge amounts owing to a Subordinate Claimholder under any Subordinate Obligations.

(c) Until the Discharge of Senior Obligations has occurred, no Grantor may make, and no Subordinate Claimholder may sue for, demand, receive, accept or retain, any payment or distribution in respect of Subordinate Obligations. Notwithstanding the immediately preceding sentence, each Subordinate Claimholder may retain Permitted Subordinate Payments; provided, however, that each such Subordinate Claimholder further agrees that no Permitted Subordinate Payment may be retained by such Subordinate Claimholder if, either at the time of such payment or after giving effect thereto, a default or event of default under the Senior Obligations has occurred and is continuing; provided, further, that the Subordinate Claimholders may resume receipt of Permitted Subordinate Payments (including any Permitted Subordinate Payments missed due to the application of the immediately preceding proviso unless such payments have been previously capitalized as part of the Subordinate Obligations) in respect of any Subordinate Obligations and the Subordinate Claimholders may retain such payments, so long as no default or event of default under the Senior Obligations exists or following the discharge of the Senior Obligations.

(d) No right of any Senior Claimholder to enforce the subordination of the Subordinate Obligations hereunder may be impaired by any act or failure to act by any Grantor, any Subordinate Claimholder or any other Senior Claimholder, or by the failure of any Grantor, any Subordinate Claimholder or any other Senior Claimholder to comply with this Agreement.

SECTION 1.5 Limitations on Duties and Obligations

(a) Except for the Collateral Agent’s obligations under the Collateral Documents and except as directed pursuant to this paragraph, the Parity Lien Agent and the Collateral Agent will not be responsible for perfecting and maintaining the perfection of Liens on the Collateral held for the benefit of the Secured Parties and each of the Claimholders shall direct the Parity Lien Agent to direct the Collateral Agent to maintain the perfection of Liens on the Collateral held for the benefit of the Secured Parties, or

to cause the Company and/or the Grantor, as applicable to perfect and maintain the perfection of Liens on the Collateral held for the benefit of the Secured Parties.

(b) This Agreement is intended solely to govern the respective Lien priorities as among Claimholders, and does not impose on the Parity Lien Agent any obligations in respect of the disposition of Proceeds of foreclosure on any Collateral that would conflict with a prior perfected claim in favor of another Person, an order or decree of a court or other Governmental Authority, or applicable law.

(c) Except for obligations expressly provided for herein, the Collateral Agent and the Claimholders will have no liability to one another for any action by the Parity Lien Agent or any Claimholder, as applicable, with respect to any Obligations or Collateral, including

(i) the maintenance, preservation, or collection of Obligations or any Collateral, and

(ii) the foreclosure upon, or the sale, liquidation, maintenance, preservation or other disposition of, any Collateral.

(d) The Parity Lien Agent will not have by reason of this Agreement or any other document any fiduciary relationship with any Claimholder.

SECTION 1.6 Prohibition on Contesting Liens; No Marshaling

No Secured Party will object to or contest, or support any other Person in objecting to or contesting, in any proceeding (including an Insolvency Proceeding) the validity, enforceability, perfection, or priority of any Lien securing any Obligation or any or all provisions of this Agreement. Nothing in this Section will impair the rights of any Claimholder to enforce the provisions of this Agreement, including the priority of the Liens securing the Obligations or the provisions for exercise of remedies.

SECTION 1.7 Confirmation of Intercreditor Agreement in Collateral Documents

The Company will cause each Collateral Document entered into on or after the Closing Date to include the following language (or language to similar effect approved by Parity Lien Agent and Working Capital Loan Provider):

“Notwithstanding anything herein to the contrary, the Lien and security interest granted to Collateral Agent pursuant to this Agreement and the exercise of any right or remedy by the Collateral Agent hereunder are subject to the provisions of the Intercreditor Agreement, dated as of December 1, 2017 (as amended, supplemented, amended and restated, or otherwise modified from time to time, the “Intercreditor Agreement”), among U.S. Bank National Association, as Parity Lien Agent, U.S. Bank National Association, as Trustee, U.S. Bank National Association, as Collateral Agent and Wells Fargo Bank, National Association, as Working Capital Loan Provider and Port Newark Container Terminal from time to time party thereto and other persons party or that may become party thereto from time to time. If there is a conflict between the terms of the Intercreditor Agreement and this Agreement, the terms of the Intercreditor Agreement will control.”

SECTION 1.8 Terms of Interest Hedge Agreements

The Company will ensure that each Interest Hedging Agreement entered into on or after the Closing Date shall not include (a) any cross-default to other Senior Obligations; provided that Interest Hedging Agreements may include provisions for cross-acceleration as provided in Section 1.10 and Interest Hedging Agreement may provide for additional termination events in the event that a payment default occurs with respect to any Senior Obligation regardless of whether an Event of Default or

acceleration has occurred with respect to such Senior Obligation or (b) any financial covenants or maintenance tests applicable to the Company; provided that, for the avoidance of doubt, Interest Hedging Agreements may provide for cross-acceleration to other Senior Obligations.

SECTION 1.9 Class and Intercreditor Voting

(a) With respect to any Parity Lien Obligations, a “class” under this Agreement means all Parity Lien Obligations that arise pursuant to the same Parity Lien Documents. The Parity Lien Document for each class of Parity Lien Obligations shall set forth the requisite percentage of Secured Parties under such class of Parity Lien Obligations whose approval or consent shall be required for an affirmative vote by such class with respect to any matters specified in this Agreement to be subject to class voting as well as the procedures governing any such approval or consent process.

(b) In connection with any vote of the Required Parity Lien Claimholders, (i) any Parity Lien Obligations held by an Affiliate of the Company shall not be entitled to vote and shall be excluded from both the numerator and denominator of the calculation described in the definition of Required Parity Lien Claimholders and (ii) any outstanding Parity Lien Obligations constituting a bond or similar security that does not vote affirmatively or negatively in connection with any decision within the prescribed period for such vote in accordance with the procedure set forth in this Agreement shall be excluded from both the numerator and the denominator of the calculation described in the definition of Required Parity Lien Claimholders.

SECTION 1.10 Acceleration

(a) The Parity Lien Document for each class of Parity Lien Obligations shall set forth the requisite percentage of Secured Parties (which in all cases shall be not less than fifty percent (50%)) under such class that may, during the continuance of any Event of Default under such Parity Lien Document, accelerate such class of Parity Lien Obligations in accordance with the terms thereof.

(b) Notwithstanding anything in this Agreement to the contrary, no rights of the Parity Lien Claimholders under any class of Parity Lien Obligations to accelerate such class of Parity Lien Obligations following an Event of Default shall be limited by this Agreement to the extent such acceleration is otherwise permitted under the applicable Parity Lien Document.

ARTICLE II MODIFICATION OF OBLIGATIONS

SECTION 2.1 Permitted Modifications

Except as otherwise expressly provided in this Article, Obligations may be modified in accordance with their respective terms, and their aggregate amount increased or Refinanced, without notice to or consent by any other Claimholder, provided that, to the extent such Refinancing debt is secured by any of the Collateral, the holders of any such Refinancing debt (or their agent) bind themselves in a writing addressed to the other Claimholders to the terms of this Agreement, provided further that no such modification may alter or otherwise affect Sections 1.1 or 1.6.

SECTION 2.2 Modifications Requiring Consent

Except as otherwise provided herein, the Parity Lien Documents, the Working Capital Loan Documents or the Subordinate Documents (other than this Agreement, the Collateral Agency Agreement or any Collateral Document) may be amended, restated, supplemented or otherwise modified in accordance with their terms from time to time, and an Obligation may be Refinanced at any time, without the consent of any of the other Secured Parties, all without affecting the lien priority and subordination or

other provisions of this Agreement. In connection therewith, the Senior Claimholders agree:

(i) that no such amendment, restatement, supplement, modification or Refinancing shall contravene any provision of this Agreement; and

(ii) that, in the case of a Refinancing, the holders (or an agent or trustee thereof) of such Refinancing debt secured by any of the Collateral shall have entered into an Accession Agreement at the time of such Refinancing unless such holders (or an agent or trustee thereof) are already bound by the terms of this Agreement.

SECTION 2.3 Notice of Modifications

The Senior Claimholders will promptly notify the Parity Lien Agent and the other Parties hereto in writing of each material modification to the applicable Senior Obligations within ten Business Days after such modification’s effective date and, if requested by the Parity Lien Agent in writing, promptly provide copies of any documents executed and delivered in connection with the modification. Notice and copies will not be required to the extent any Grantor has provided the same to the Parity Lien Agent.

ARTICLE III ENFORCEMENT

SECTION 3.1 Exercise of Remedies

(a) Until the Discharge of the Parity Lien Obligations, the Parity Lien Agent (acting at the direction of the Required Parity Lien Claimholders) will have the exclusive right to instruct the Collateral Agent with regards to (and the Collateral Agent shall take any of the following actions only after receipt of such written direction except as otherwise expressly provided herein or in any Collateral Document):

(i) commencing and maintaining an Enforcement Action (other than an Enforcement Action with respect to the Working Capital Collateral),

(ii) subject to Section 3.6, making determinations regarding the release or Disposition of, or restrictions with respect to, the Collateral (other than the Working Capital Collateral),

(iii) otherwise enforcing the rights and remedies of a secured creditor under the UCC and the Bankruptcy Laws of any applicable jurisdiction with respect to the Collateral (other than the Working Capital Collateral), and

(iv) any instructions required to be made by the “Required Agent” under the Collateral Documents with respect to the actions set forth in the foregoing subclauses (i), (ii) and (iii).

Any Proceeds received by Parity Lien Agent in excess of those necessary to achieve Discharge of the Parity Lien Obligations shall be distributed in accordance with the UCC and applicable law, subject to the terms and conditions of this Agreement and the Collateral Agency Agreement.

(b) Until the Discharge of the Working Capital Loan Obligations, the Working Capital Loan Provider will have the exclusive right to instruct the Collateral Agent with regards to (and the Collateral Agent shall take any of the following actions only after receipt of such written direction except as otherwise expressly provided herein or in any Collateral Document):

(i) commencing and maintaining an Enforcement Action with respect to the Working Capital Collateral,

(ii) subject to Section 3.6, making determinations regarding the release or Disposition of, or restrictions with respect to, the Working Capital Collateral,

(iii) otherwise enforcing the rights and remedies of a secured creditor under the UCC and the Bankruptcy Laws of any applicable jurisdiction with respect to the Working Capital Collateral, and

(iv) any instructions required to be made by the “Required Agent” under the Collateral Documents with respect to the actions set forth in the foregoing subclauses (i), (ii) and (iii).

Any Proceeds received by the Working Capital Loan Provider in excess of those necessary to achieve Discharge of the Working Capital Loan Obligations shall be distributed in accordance with the UCC and applicable law, subject to the terms and conditions of this Agreement and the Collateral Agency Agreement.

(c) Except as otherwise permitted by this Agreement, no Claimholder may commence, or join with any other Person in commencing, any Insolvency Proceedings or other proceedings against any of the Collateral or the Company.

(d) Notwithstanding anything to contrary in this Section 3.1, all Claimholders may exercise rights and remedies they would otherwise have as unsecured creditors against the Company; provided that no Secured Party may exercise its rights as an unsecured creditor to (i) oppose, contest or otherwise object to matters or claims that such Secured Party has agreed not to oppose, contest or object to pursuant to this Agreement or (ii) take other actions expressly prohibited by the terms of this Agreement; provided further that, in connection with the exercise of any such right as an unsecured creditor, in the event any Secured Party becomes a judgment lien creditor in respect of Collateral, then such judgment lien shall be subordinate to the liens on the Collateral securing the Obligations.

(e) Until the Discharge of all Senior Obligations, no Subordinate Claimholder shall: (i) initiate any Enforcement Action (whether with respect to any Collateral or otherwise) or (ii) initiate or join any involuntary Insolvency Proceeding against any Grantor unless a Senior Claimholder shall have initiated an Enforcement Action or joined any involuntary Insolvency Proceeding, as applicable.

SECTION 3.2 Manner of Exercise

(a) Upon obtaining knowledge (whether by receipt of notice or otherwise) of the occurrence of an Event of Default under a Parity Lien Document, the Parity Lien Claimholders party to such Parity Lien Document (or their designated representative, trustee or other agent) shall promptly provide notice thereof to the Parity Lien Agent. Following the receipt of notice of an Event of Default, the Parity Lien Agent shall notify the Parity Lien Claimholders and the Collateral Agent of such Event of Default. Each such notice of an Event of Default under this Section 3.2(a) shall describe the Event of Default in reasonable detail, including the date of occurrence of such Event of Default (if determinable). Concurrently with or following the delivery of a Parity Lien Claimholders’ notice of an Event of Default, each other Parity Lien Claimholder for which such Event of Default would also constitute an Event of Default under the Parity Lien Document to which it is party may deliver a notice to the Parity Lien Agent which, inter alia, (x) refers to the relevant Event of Default and (y) describes the enforcement action that such Parity Lien Claimholder wishes the Collateral Agent to pursue.

(b) Except as otherwise provided in this Section 3.2, the Parity Lien Agent shall be the only Person permitted to instruct the Collateral Agent to take Enforcement Actions on behalf of Parity Lien Claimholders with respect to the Collateral (excluding the Working Capital Collateral). Subject to Section 3.2(f), within 30 days following the Parity Lien Agent’s delivery of notice of an Event of Default

to the Collateral Agent and the Parity Lien Claimholders, the Parity Lien Agent shall convene a vote of the Parity Lien Claimholders in accordance with Section 1.9 in respect of any proposed Enforcement Actions (other than any Enforcement Actions with respect to the Working Capital Collateral), and, at and upon the direction of the Required Parity Lien Claimholders, instruct the Collateral Agent to take any such Enforcement Action. Upon receipt of such direction, such Enforcement Action may be taken by the Collateral Agent

(i) in any manner in its sole discretion in compliance with applicable law, and

(ii) regardless of whether an Insolvency Proceeding has been commenced.

(c) Except as otherwise provided in this Section 3.2, the Working Capital Loan Provider shall be the only Person permitted to instruct the Collateral Agent to take Enforcement Actions with respect to the Working Capital Collateral. Upon the receipt of an instruction from Working Capital Loan Provider to take any Enforcement Action with respect to the Working Capital Collateral, the Collateral Agent shall take such action: (i) in accordance with applicable law, and (ii) regarding of whether an Insolvency Proceeding has been commenced.

(d) Upon receipt of any direction pursuant to the foregoing clause (b) or (c), the rights of the Collateral Agent to enforce any provision of this Agreement or any Senior Document will not be prejudiced or impaired by

(i) any act or failure to act of any Grantor or any other Senior Claimholder, or

(ii) noncompliance by any Person with any provision of this Agreement or any Senior Document, regardless of any knowledge thereof that any Senior Claimholder or the Collateral Agent may have or otherwise be charged with. No Secured Party shall oppose or otherwise contest any lawful exercise by the Collateral Agent, acting at the direction of the Parity Lien Agent (acting at the direction of the Required Parity Lien Claimholders) or the Working Capital Loan Provider, as applicable, of the right to credit bid the Senior Obligations, on a pro rata basis, at any sale in foreclosure of the Liens granted to the Collateral Agent for the benefit of the Secured Parties.

(e) Notwithstanding the foregoing, nothing shall impair the rights of any beneficiary of any guaranty delivered in connection with any Obligation to exercise the rights and remedies of such beneficiary pursuant to any such guaranty.

(f) Notwithstanding anything to the contrary in this Agreement or any Senior Document, following any Event of Default for the failure to pay any principal of, interest on or other amounts in respect of the Bonds that are due and payable pursuant to the Bond Documents or any Additional Financing Documents, prior to the final maturity date thereof, in the event that, during the 150-day period following the notice of such Event of Default being given to the other Parties, the Parity Lien Agent (at the direction of the Required Parity Lien Claimholders) or the Working Capital Loan Provider, as applicable, has not directed the Collateral Agent with respect to any Enforcement Action (including advising the Collateral Agent of a failure to obtain an affirmative vote of the Required Parity Lien Claimholders in favor of any Enforcement Action), then the owners of the Bonds holding more than 50% of the aggregate outstanding principal amount of the Bonds shall be entitled, in their discretion, to the extent such Event of Default is continuing at the time of such instruction, to direct the Collateral Agent to take any Enforcement Actions with respect to the Collateral upon the conclusion of such 150-day period.

(g) Each Secured Party agrees that, in the event that the Collateral Agent takes an Enforcement Action on any of the Collateral pursuant to a public or private sale or other Disposition, the

Collateral Agent or any other Secured Party may be the purchaser or licensor of any or all of such Collateral at any such sale or other Disposition and the Collateral Agent, as agent for and representative of all of the Secured Parties shall be entitled, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold at any such public sale, to use and apply any of the Obligations as a credit on account of the purchase price for any Collateral payable by the Collateral Agent at such sale or other Disposition and may thereafter Dispose of such Collateral as directed by the Required Parity Lien Claimholders or the Working Capital Loan Provider, as applicable.

(h) The Parity Lien Agent will provide reasonable prior notice to each Claimholder of the commencement of any Enforcement Action which it is permitted to take pursuant to the terms of this Agreement.

SECTION 3.3 Specific Performance

Each of the Parity Lien Agent, on behalf of the Parity Lien Claimholders, and Working Capital Loan Provider may demand specific performance of this Agreement, and each Grantor 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 brought by the Parity Lien Agent, on behalf of the Parity Lien Claimholders, or Working Capital Loan Provider, as applicable.

SECTION 3.4 Working Capital Loan Provider’s Inspection and Access Rights

Without limiting any rights the Working Capital Loan Provider may otherwise have under applicable law or by agreement, in the event of any liquidation of the Working Capital Collateral (or any other exercise of secured creditor remedies by the Working Capital Loan Provider with respect to the Working Capital Collateral), the Working Capital Loan Provider or any other Person acting with the consent, or on behalf, of the Working Capital Loan Provider, shall have the right in connection with the conducting of audits and appraisals in the ordinary course, during normal business hours on any Business Day, to access Working Capital Collateral that (i) is stored or located in or on, or (ii) has become an accession with respect to (within the meaning of Section 9A-335 of the Uniform Commercial Code), or (iii) has been commingled with (within the meaning of Section 9-336 of the Uniform Commercial Code), the other Collateral.

SECTION 3.5 Turnover; Set-off

(a) Any recovery by or distribution to any Secured Party (other than with respect to Excluded Collateral or other Collateral held exclusively for the benefit of such Secured Party pursuant to the Collateral Agency Agreement) with respect to the Collateral shall be paid to the Collateral Agent and applied by the Collateral Agent in accordance with Section 4.1.

(b) If any Secured Party shall exercise any right of set-off against any Grantor, the proceeds thereof shall be subject to this Section 3.5 and the sharing provisions set forth in this Agreement. No Secured Party shall be required to share any amounts received or deemed received by it in respect of any Obligations owed to it from separate insurance, credit default swap protection or other protection against loss arranged by such Secured Party for its own account in respect of the Obligations owed to such Secured Party (which amounts shall be for the sole benefit of such Secured Party).

(c) Any recovery by or distribution to any Subordinate Claimholder of any payments on account of Subordinate Obligations shall be held in trust by such Subordinate Claimholder for the benefit of Senior Claimholders and promptly forwarded to the Collateral Agent for application pursuant to this Agreement. Each Grantor acknowledges that any amounts received by a Claimholder shall only be applied in accordance with this Agreement.

SECTION 3.6 Release of Collateral

(a) The Collateral shall be released automatically from any Liens securing any Obligations upon any Disposition of such Collateral (a) pursuant to an exercise of an Enforcement Action by the Collateral Agent in accordance with this Agreement and applicable Collateral Documents, (b) pursuant to Section 363 of the U.S. Bankruptcy Code or (c) permitted by the terms of the Financing Agreements.

(b) Except as set forth in Section 3.6(a) or as otherwise expressly provided in any Collateral Document, releases of any Lien encumbering (i) any Collateral (other than the Working Capital Collateral) shall be made by the Collateral Agent at the direction of the Parity Lien Agent at the direction of the Required Parity Lien Claimholders and (ii) any Working Capital Collateral shall be made by the Collateral Agent at the direction of the Working Capital Loan Provider.

ARTICLE IV PAYMENTS

SECTION 4.1 Application of Proceeds

(a) Until the Discharge of Parity Lien Obligations, and regardless of whether an Insolvency Proceeding has been commenced, Collateral (other than Working Capital Collateral) or Proceeds thereof received in connection with an Enforcement Action (other than an Enforcement Action with respect to the Working Capital Collateral) will be applied:

(i) Prior to the Discharge in full of the Series 2017 Bonds and all amounts payable with respect thereto, as set forth in paragraphs first through fifth in Section 6.06 of the Collateral Agency Agreement, and

(ii) thereafter, to the payment in full, in cash, of all Parity Lien Obligations, as specified in the Parity Lien Documents or as otherwise determined by the relevant Parity Lien Claimholders.

(b) Until the Discharge of Senior Obligations, and regardless of whether an Insolvency Proceeding has been commenced, Working Capital Collateral or Proceeds thereof received in connection with an Enforcement Action with respect thereto will be applied:

(i) Prior to the Discharge in full of the Working Capital Loan Obligations, to the payment in full in cash of all Working Capital Loan Obligations as specified in the Working Capital Loan Documents; and

(ii) thereafter, after reimbursement of the Collateral Agent and the Parity Lien Agent for payment of any reasonable fees and expenses (including reasonable attorneys’ fees and expenses) in accordance with the terms of the Security Agreement and the Collateral Agency Agreement, to the payment in full, in cash, of all Parity Lien Obligations, as specified in the Parity Lien Documents or as otherwise determined by the relevant Senior Claimholders.

(c) Notwithstanding the foregoing, any non-cash Collateral or non-cash Proceeds will be held by the Collateral Agent as Collateral.

SECTION 4.2 Insurance

Until the Discharge of Parity Lien Obligations in their entirety, and subject to the rights of the Company under the Parity Lien Documents, any amounts payable under any such insurance policies shall be paid to the Loss Proceeds Fund or the Revenue Fund, as applicable, under the Collateral Agency

Agreement[, and in connection therewith the Collateral Agent shall be named as an additional insured and/or loss payee, as applicable, under any insurance policies the proceeds of which are required to be paid to the Loss Proceeds Fund or the Revenue Fund, as applicable].

SECTION 4.3 Additional Obligations Incurred to Refinance Parity Lien Obligations

If the Company issues or incurs Additional Obligations for the purpose of Refinancing in whole the Parity Lien Obligations, then, after giving effect to such refinancing (and the Discharge of the Parity Lien Obligations being refinanced), such Parity Lien Obligations will automatically be deemed to have been discharged for all purposes of this Agreement and, subject to compliance with Section 2.2(ii) of this Agreement, the Obligations under such Refinancing debt will automatically be treated as Parity Lien Obligations for all purposes of this Agreement, including for purposes of the Lien priorities and rights in respect of Collateral set forth herein.

ARTICLE V APPOINTMENT OF AGENTS, RESIGNATION AND REMOVAL OF AGENTS; INDEMNIFICATION OF AGENTS

SECTION 5.1 Appointment of the Parity Lien Agent

(a) The Trustee (on behalf of the owners of the Series 2017 Bonds) hereby appoints U.S. Bank National Association, and any successor thereto as Trustee, as “Parity Lien Agent” for the benefit of the Parity Lien Claimholders, and U.S. Bank National Association hereby accepts such appointment to act as Parity Lien Agent, in accordance with the terms of this Agreement, the Collateral Agency Agreement and the other Parity Lien Documents. The Trustee (on behalf of the owners of the Series 2017 Bonds) hereby authorizes and directs the Parity Lien Agent to act in strict accordance with the terms of this Agreement and the Collateral Agency Agreement notwithstanding any contrary provision in the other Parity Lien Documents. The Parity Lien Agent hereby accepts and agrees to, and the Company hereby acknowledges and consents to, the foregoing authorization and direction of the Trustee (on behalf of the owners of the Series 2017 Bonds).

(b) On such date as any Acceding Party becomes a party to this Agreement via execution of an Accession Agreement, by virtue of such party’s execution of such Accession Agreement, such Acceding Party shall appoint the Parity Lien Agent for the benefit of such party. On such date, such Acceding Party hereby authorizes and directs the Parity Lien Agent to act in strict accordance with the terms of this Agreement and the Collateral Agency Agreement notwithstanding any contrary provision in the other Parity Lien Documents. On and after the date on which any Acceding Party becomes a party to this Agreement, the Parity Lien Agent for such Acceding Party hereby accepts and agrees to, and the Company hereby acknowledges and consents to, the foregoing authorization and direction of such Acceding Party.

(c) Except to the extent expressly provided to the contrary in this Agreement or any other Collateral Documents, any action to be taken or omitted to be taken by the Parity Lien Agent under any of the Parity Lien Documents shall be made or taken, or omitted from being taken, only at the written direction of the Required Parity Lien Claimholders (acting in accordance with the terms hereof).

(d) Subject to the terms hereof, the Parity Lien Agent agrees to administer and enforce this Agreement, the Collateral Agency Agreement and the other Parity Lien Documents to which it is a party and otherwise to perform its duties and obligations as Parity Lien Agent hereunder and under the Collateral Agency Agreement in accordance with the terms hereof and thereof; provided, that the Parity Lien Agent shall not have duties or responsibilities except those expressly set forth herein or in the other

Parity Lien Documents to which it is a party, and no implied covenants or obligations shall be read into this Agreement or any such other Parity Lien Documents against the Parity Lien Agent.

(e) Notwithstanding anything contained in this Agreement to the contrary, the Parity Lien Agent shall not be required to exercise any discretion or take any action but shall only be required to act or refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the written instructions of the Required Parity Lien Claimholders (acting in accordance with the terms hereof), as specified therein, and such instructions shall be binding upon the Parity Lien Agent and each of the Parity Lien Claimholders; provided, that the written instructions of one or more of the Secured Parties, as the case may be, shall be required where expressly provided for herein and in the Collateral Agency Agreement; provided, further, that the Parity Lien Agent shall not be required or permitted to take any action which is contrary to any provision hereof or of the Collateral Agency Agreement or the other Parity Lien Documents or applicable law or until it shall be indemnified to its satisfaction against any and all reasonable compensation for services, costs and expenses, outlays, and counsel fees and other disbursements.

(f) By appointing a Parity Lien Agent pursuant to the terms hereof, the Parity Lien Claimholders (and any Acceding Party) have authorized the Parity Lien Agent to (i) execute, deliver and perform in such capacity under this Agreement and each other Parity Lien Document to which the Parity Lien Agent is a party, and (ii) take any other action under this Agreement and any other Parity Lien Document to which the Parity Lien Agent is a party reasonably incidental to the foregoing.

(g) The Parity Lien Claimholders (and any Acceding Party) hereby acknowledge and agree that the Parity Lien Agent shall be afforded all of the rights, protections, immunities and benefits given to the Parity Lien Agent under the Collateral Agency Agreement.

SECTION 5.2 Resignation and Removal of Agents

Subject to the appointment and acceptance of a successor Parity Lien Agent as provided below, the Parity Lien Agent may resign at any time by giving at least sixty (60) days’ prior written notice thereof to the Parity Lien Claimholders and the Company, and the Parity Lien Agent may be removed at any time with or without cause by the Required Parity Lien Claimholders upon thirty (30) days’ written notice thereof to the Parity Lien Agent and the Company. Upon any such resignation or removal, the Required Parity Lien Claimholders shall have the right to appoint a successor Parity Lien Agent which, so long as no Event of Default has occurred and is continuing under the applicable Parity Lien Documents, shall be reasonably acceptable to the Company. If no successor Parity Lien Agent shall have been so appointed by the Required Parity Lien Claimholders within sixty (60) days after the retiring Parity Lien Agent’s giving of notice of resignation or within thirty (30) days after the removal of the retiring Parity Lien Agent by the Required Parity Lien Claimholders, then the retiring Parity Lien Agent may, on behalf of the Parity Lien Claimholders, apply to a court of competent jurisdiction (with notice to the Company, and at the sole expense of the Company) for the appointment of a successor Parity Lien Agent. In all such cases, the successor Parity Lien Agent shall be a bank organized under the laws of the United States of America or any state thereof that has an office in the State of New York and which agrees to administer the Collateral in accordance with the terms hereof and the other Collateral Documents and shall have a reported capital and surplus of not less than $150,000,000 and, so long as no Event of Default has occurred and is continuing under the applicable Parity Lien Documents, shall be reasonably acceptable to the Company. Upon the written acceptance of any appointment as Parity Lien Agent hereunder, and the written agreement to be bound by this Agreement by a successor Parity Lien Agent, such successor Parity Lien Agent shall thereupon succeed to and become vested with all the rights, powers, privileges, obligations and duties of the retiring Parity Lien Agent, and the retiring Parity Lien Agent shall be discharged from its duties and responsibilities hereunder arising thereafter. After any retiring Parity Lien Agent’s resignation or removal hereunder as Parity Lien Agent, the provisions of this Agreement

(including Section 5.3) and of the Collateral Agency Agreement (including Sections 7.01 and 7.02 thereof) 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 Parity Lien Agent.

SECTION 5.3 Indemnification

Each of the Parity Lien Claimholders shall severally indemnify the Parity Lien Agent, the Trustee and the Collateral Agent and each of their respective officers, directors, employees, agents and attorneys- in-fact (each such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and related expenses, including the reasonable fees, charges and disbursements of any counsel for any Indemnitee, incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of (i) the execution or delivery of this Agreement, the Collateral Agency Agreement and any other Parity Lien Document or any agreement or instrument contemplated thereby, the performance by the parties hereto or thereto of their respective obligations hereunder or thereunder or the consummation of the transactions contemplated hereby or thereby, in each instance, as such Indemnitee reasonably believes that such performance or consummation is pursuant to the terms hereof or thereof, or (ii) any actual claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses are determined by a court of competent jurisdiction by final and non-appealable judgment to have resulted from the gross negligence or willful misconduct of such Indemnitee. The obligations of the Parity Lien Claimholders under this Section shall survive the payment in full of the Parity Lien Obligations, any resignation or removal of the Parity Lien Agent pursuant to this Agreement, any resignation or removal of the Collateral Agent pursuant to the Collateral Agency Agreement, and the termination of this Agreement pursuant to Section 8.3.

In no event shall the Parity Lien Agent, the Trustee or the Collateral Agent be responsible or liable for special, indirect, punitive or consequential loss or damage of any kind whatsoever (including, but not limited to, loss of profit) irrespective of whether the Parity Lien Agent, the Trustee or the Collateral Agent has been advised of the likelihood of such loss or damage and regardless of the form of action.

ARTICLE VI INSOLVENCY PROCEEDINGS

SECTION 6.1 Avoidance; Reinstatement of Obligations

If a Claimholder receives payment or property on account of an Obligation, and the payment is subsequently invalidated, avoided, declared to be fraudulent or preferential, set aside, or otherwise required to be transferred to a trustee, receiver, or the estate of any Grantor (a “Recovery”), then, to the extent of the Recovery, the Obligations intended to have been satisfied by the payment will be reinstated as Obligations on the date of the Recovery, and no Discharge of Obligations will be deemed to have occurred for all purposes hereunder. If this Agreement is terminated prior to a Recovery, this Agreement will be reinstated in full force and effect, and such prior termination will not diminish, release, discharge, impair, or otherwise affect the obligations of the Parties from the date of reinstatement.

SECTION 6.2 Reorganization Securities

If, in any Insolvency 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 Obligations, then, to the extent the debt Obligations are

secured by Liens upon the same property, 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.

SECTION 6.3 Effectiveness in Insolvency Proceedings

The Parties acknowledge that this Agreement is a “subordination agreement” under Section 510(a) of the Bankruptcy Code, which will be effective before, during, and after the commencement of an Insolvency Proceeding. All references in this Agreement to any Grantor will include such Person as a debtor-in-possession and any receiver or trustee for such Person in an Insolvency Proceeding.

SECTION 6.4 No Contest

(a) The Working Capital Loan Provider and the Subordinate Claimholders each agree that none of them shall contest (or support any other Person in contesting) (A) any request by a Parity Lien Claimholder for adequate protection with respect to any Collateral (that is not Working Capital Collateral) or (B) any objection by a Parity Lien Claimholder to any motion, relief, action or proceeding based on such Parity Lien Claimholder claiming a lack of adequate protection with respect to such Collateral. The Parity Lien Agent (on behalf of each Parity Lien Claimholder) agrees that neither it nor any Parity Lien Claimholder shall contest (or support any other Person in contesting) (1) any required by Working Capital Loan Provider for adequate protection with respect to any Working Capital Collateral or (2) any objection by Working Capital Loan Provider to any motion, relief, action or proceeding based on Working Capital Loan Provider claiming a lack of adequate protection with respect to any Working Capital Collateral.

(b) Until the Discharge of Senior Obligations has occurred, each Subordinate Claimholder agrees that it will not assert or enforce any claim under Section 506(c) of the Bankruptcy Code or any similar provision of any other Bankruptcy Law senior to or on a parity with the Liens securing the Senior Obligations for costs or expenses of preserving or disposing of any Collateral, unless the Senior Claimholders or a representative authorized by the Senior Claimholders shall make such an assertion or enforcement claim.

(c) No Subordinate Claimholder shall oppose or seek to challenge any claim by any Senior Claimholder for allowance in any Insolvency Proceeding of Obligations consisting of claims for post- petition interest, fees, costs, expenses, and/or other charges, under Section 506(b) of the Bankruptcy Code or otherwise unless the Senior Claimholders or a representative authorized by the Senior Claimholders shall oppose or seek to challenge any such claim.

SECTION 6.5 Asset Sales

(a) Each of the Working Capital Loan Provider and the Subordinate Claimholders agree that it will not oppose any sale consented to by the Parity Lien Agent (acting at the direction of the Required Parity Lien Claimholders) of any of the Collateral (other than the Working Capital Collateral) pursuant to Section 363(f) of the Bankruptcy Code so long as the Liens of the parties attach to the proceeds of such sale consistent with the lien priority on the assets sold and such proceeds are otherwise applied in accordance with this Agreement. Each of the Parity Lien Agent (on behalf of each Parity Lien Claimholder) and the Subordinate Claimholders agree that it will not oppose any sale consented to by Working Capital Loan Provider of any Working Capital Collateral pursuant to Section 363(f) of the Bankruptcy Code so long as the Liens of the parties attach to the proceeds of such sale consistent with the lien priority on the assets sold and such proceeds are otherwise applied in accordance with this Agreement.

(b) Each of the Parties hereto hereby agrees that any Subordinate Claimholder and the Working Capital Loan Provider may credit bid their respective Obligations in accordance with

Section 363(k) of the Bankruptcy Code (or any similar provision), only so long as the Parity Lien Obligations have each been paid in cash in full in conjunction with any such credit bid. The Parity Lien Claimholders agree not to object to a credit bid of the Working Capital Loan Obligations or the Subordinate Obligations in accordance with Section 363(k) of the Bankruptcy Code (or any similar provision) only so long as the Parity Lien Obligations are paid in cash in full in conjunction with any such credit bid.

(c) Each of the Parties hereto hereby agrees that any Parity Lien Claimholder may credit bid its Obligations in accordance with Section 363(k) of the Bankruptcy Code (or any similar provision), only so long as the Working Capital Loan Obligations have been paid in cash in full in conjunction with any such credit bid. Working Capital Loan Provider agrees not to object to a credit bid of the Parity Lien Obligations or the Subordinate Obligations in accordance with Section 363(k) of the Bankruptcy Code (or any similar provision) only so long as the Working Capital Loan Obligations are paid in cash in full in conjunction with any such credit bid.

(d) Each of the Parties hereto hereby agrees that, in accordance with Section 363(k) of the Bankruptcy Code (or any similar provision): (1) the Parity Lien Claimholders may credit bid the Parity Lien Obligations; and (2) Working Capital Loan Provider may credit bid the Working Capital Loan Obligations. The Parties hereto agree not to object to any such credit bid of the Parity Lien Obligations or the Working Capital Loan Obligations in accordance with Section 363(k) of the Bankruptcy Code (or any similar provision).

ARTICLE VII ACCESSION; APPOINTMENT OF COLLATERAL AGENT

SECTION 7.1 Accession

Any Person (or its designated representative, trustee or other agent) that is to provide secured credit to the Company (with respect to the Project and Costs of the Project) and/or the Company, any Person that replaces any of the Secured Creditors, and any Additional Parity Creditor or Subordinate Lender (each of the foregoing, an “Acceding Party”), shall accede to this Agreement by delivering to the Collateral Agent (with a copy to the Parity Lien Agent and the Company) an Accession Agreement in substantially the same form as Exhibit 1, duly executed by that Acceding Party; provided, that no Person that provides or has, prior to the Closing Date provided, secured credit to the Company in the form of Capital Lease Obligations or Purchase Money Obligations shall be required to become an Acceding Party. Upon the execution of such Accession Agreement by an Acceding Party and the Collateral Agent, such Acceding Party shall be a Secured Creditor and shall be bound by and subject to the terms and conditions hereof and the covenants, stipulations and agreements contained herein.

SECTION 7.2 Authorization for the Collateral Agent to Execute Accession Agreement

Each party hereto (other than the Collateral Agent) irrevocably authorizes and directs the Collateral Agent to execute on its behalf and the Collateral Agent shall execute, any Accession Agreement which has been duly completed and executed by an Acceding Party.

SECTION 7.3 Appointment of Collateral Agent and Securities Intermediary

Pursuant to Section 2.01(a) of the Collateral Agency Agreement, each of the Trustee (on behalf of the owners of the Series 2017 Bonds) and the Parity Lien Agent (on behalf of the Parity Lien Claimholders) has appointed U.S. Bank National Association as “Collateral Agent” for the benefit of the Secured Parties and as “Securities Intermediary” pursuant to Section 5.20(a) of the Collateral Agency Agreement under and for the purposes of the Collateral Agency Agreement. Any successor Collateral Agent under the Collateral Agency Agreement shall automatically become the “Collateral Agent” for all

purposes thereunder and hereunder. Any successor Securities Intermediary under the Collateral Agency Agreement shall automatically become the “Securities Intermediary” for all purposes thereunder and hereunder. The Trustee and any Acceding Party, by executing and delivering an Accession Agreement and thereby becoming party hereto, hereby direct the Parity Lien Agent to (a) appoint U.S. Bank National Association as “Collateral Agent” for the benefit of the Secured Parties pursuant to Section 2.01(a) of the Collateral Agency Agreement, (b) authorize and direct the Collateral Agent to act in strict accordance with the terms of the Collateral Agency Agreement, notwithstanding any contrary provision in the other Collateral Documents with respect to Enforcement Actions, the application of any Collateral, or proceeds thereof, and (c) appoint U.S. Bank National Association(or any successor thereto), as “Securities Intermediary” pursuant to Section 5.20(a) of the Collateral Agency Agreement under and for the purposes of the Collateral Agency Agreement.

ARTICLE VIII MISCELLANEOUS

SECTION 8.1 Conflicts

If this Agreement conflicts with the other Collateral Documents, then this Agreement will control to the extent of such conflict.

SECTION 8.2 No Waivers; Remedies Cumulative; Integration

(a) A Party’s failure or delay in exercising a right under this Agreement will not waive the right, nor will a Party’s single or partial exercise of a right preclude it from any other or further exercise of that or any other right.

(b) The rights and remedies provided in this Agreement will be cumulative and not exclusive of other rights or remedies provided by law.

(c) This Agreement constitutes the entire agreement between the Parties and supersedes all prior agreements, oral or written, relating to its subject matter.

SECTION 8.3 Effectiveness; Severability; Termination

(a) This Agreement will become effective when executed and delivered by the Parties.

(b) Each Party waives any right it may have under applicable law to revoke this Agreement or any provision of this Agreement.

(d) If a provision of this Agreement is prohibited or unenforceable in a jurisdiction, the prohibition or unenforceability will not invalidate the remaining provisions hereof, or invalidate or render unenforceable that provision in any other jurisdiction.

(e) Subject to Sections 4.1, 4.3 and 6.1, this Agreement will terminate and be of no further force and effect, upon the Discharge of all Obligations.

SECTION 8.4 Modifications of this Agreement, Collateral Agency Agreement

(a) Subject to Section 8.4(c), a modification or waiver of any provision of this Agreement, the Collateral Agency Agreement or any Collateral Document, to the extent provided for therein, will only be effective, in each case, if in writing signed on behalf of each Party hereto or its authorized agent

(in the case of the Parity Lien Agent, acting at the direction of the Required Parity Lien Claimholders), except in the case of a modification or waiver to the Collateral Agency Agreement, the written approval of a Party shall only be required to the extent such Party is expressly entitled thereby to approve, consent or direct the applicable modification or waiver, and a waiver will be a waiver only for the specific instance involved and will not impair the rights of the Parties making the waiver or the obligations of the other Parties to such Party in any other respect or at any other time.

(b) Notwithstanding anything in Section 8.4(a) to the contrary, the affirmative vote of the Required Parity Lien Claimholders and

(i) the affirmative vote of each class of Claimholders adversely affected by a proposed amendment, waiver, supplement or other action shall be required for any amendment, waiver, supplement or other action that would modify (A) the priority of payments in the Collateral Agency Agreement, (B) Section 6.06 of the Collateral Agency Agreement or (C) the provisions of this Section 8.4;

(ii) the affirmative vote of each class of Claimholders shall be required for any amendment, waiver, supplement or other action other than the occurrence of the Discharge of the Obligations that would release all or substantially all of the Collateral; and

(iii) the affirmative vote of each class of Claimholders whose rights would be disproportionately and adversely impacted as compared to the other classes of Claimholders by a proposed amendment, waiver, supplement or other action shall be required for any amendment, waiver, supplement or other action that would so modify a Collateral Document.

(c) Notwithstanding anything in this Section 8.4 to the contrary, the Collateral Agent, the Working Capital Loan Provider and the Parity Lien Agent may, at the request of the Company (in the case of amendments or supplements to any Collateral Document only) or any Senior Claimholder (subject to the consent rights of the Company set forth in Section 8.4(a)), agree to amend or supplement this Agreement or any Collateral Document (which amendments or supplements, except as provided in this Section 8.4(c), shall not require the consent of any other Person other than the Company): (i) to cure any ambiguity, defect or inconsistency; (ii) to make any change that would provide any additional rights or benefits to the Claimholders; (iii) to make, complete or confirm any grant of Collateral or guaranty for the benefit of all Claimholders permitted or required by this Agreement or any of the Collateral Documents or any release of Collateral or guaranty that is otherwise permitted to be released under the terms of this Agreement; (iv) to correct any typographical errors or other similar mistakes that do not modify the intended rights and obligations of the parties hereto; (v) to provide for Additional Obligations or Liens on the Collateral securing such Additional Obligations; and (vi) and to implement any amendment expressly provided for under this Agreement or any Collateral Document. Before executing any amendment or supplement pursuant to this Section 8.4, the Collateral Agent, the Parity Lien Agent and/or Working Capital Loan Provider may request an opinion of counsel stating that such amendment or supplement does not conflict with this Agreement or any Collateral Document being so amended or supplemented, and that upon execution of such amendment or supplement, as the case may be, such amendment or supplement will be valid and binding upon the Company in accordance with its terms.

SECTION 8.5 Information Concerning Financial Condition of Grantors

Each of the holders of Parity Lien Obligations, the Working Capital Loan Provider and the Subordinate Claimholders will be responsible for keeping themselves informed of:

(a) the financial condition of the Grantors, and

(b) all other circumstances bearing upon the risk of nonpayment of the Obligations.

SECTION 8.6 [Reserved]

SECTION 8.7 No Warranties; Independent Action

Except as otherwise expressly provided herein,

(i) no Claimholder has made any express or implied representation or warranty to any other Claimholder, including with respect to the execution, validity, legality, completeness, collectability, or enforceability of any document to which it is a party, the ownership of any Collateral or the perfection or priority of any Liens thereon, and

(ii) each Claimholder may manage and supervise its Obligations under the documents to which it is a party in accordance with applicable law and as it may otherwise, in its sole discretion, deem appropriate.

SECTION 8.8 Applicable Law; Jurisdiction; Service

THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.

EACH PARTY HERETO IRREVOCABLY CONSENTS THAT ANY SUIT, LEGAL ACTION OR PROCEEDING AGAINST IT OR ANY OF ITS PROPERTY WITH RESPECT TO ANY OF THE RIGHTS OR OBLIGATIONS ARISING DIRECTLY OR INDIRECTLY UNDER OR RELATING TO THIS AGREEMENT MAY BE BROUGHT IN ANY STATE COURT SITTING IN NEW YORK COUNTY, NEW YORK OR UNITED STATES FEDERAL COURT SITTING IN THE SOUTHERN DISTRICT OF NEW YORK, AS THE PARTIES HERETO MAY ELECT, PROVIDED THAT ANY SUIT SEEKING ENFORCEMENT AGAINST ANY COLLATERAL OR OTHER PROPERTY MAY BE BROUGHT, AT THE COLLATERAL AGENT’S OPTION, IN THE COURTS OF ANY JURISDICTION WHERE SUCH COLLATERAL OR OTHER PROPERTY MAY BE FOUND, PROVIDED FURTHER THAT NOTHING HEREIN SHALL BE CONSTRUED AS REQUIRING ANY OBLIGATIONS, RIGHTS AND DUTIES OF THE ISSUER TO BE SUBJECT TO THE LAWS OF ANY JURISDICTION OTHER THAN THE STATE OF NEW JERSEY OR AS REQUIRING THE ISSUER TO SUBMIT TO JURISDICTION IN ANY STATE OR FEDERAL COURT NOT LOCATED WITHIN THE STATE OF NEW JERSEY. BY EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH PARTY HERETO HEREBY IRREVOCABLY SUBMITS TO AND ACCEPTS WITH REGARD TO ANY SUCH SUIT, LEGAL ACTION OR PROCEEDING, FOR ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, THE JURISDICTION OF THE AFORESAID COURTS.

Each party hereto hereby irrevocably waives any objection that it may now or hereafter have to the laying of the venue of any suit, action or proceeding arising out of or relating to this Agreement brought in or removed to New York City (and courts of appeals therefrom) and hereby further irrevocably waives any claim that any such suit, action or proceeding brought in any such court has been brought in an inconvenient forum. A final judgment (in respect of which time for all appeals has elapsed) in any such suit, action or proceeding shall be conclusive and may be enforced by suit upon judgment in any court in any jurisdiction to which the applicable Person is or may be subject.

SECTION 8.9 WAIVER OF JURY TRIAL

EACH OF THE PARTIES HERETO KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ITS RIGHTS TO A TRIAL BY JURY OF ANY CLAIM OR CAUSE OF ACTION BASED UPON, ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY, IN ANY ACTION,

LITIGATION OR OTHER PROCEEDING OF ANY TYPE BROUGHT BY ANY OF THE PARTIES AGAINST ANY OTHER PARTY OR ANY OTHER PERSON, WHETHER WITH RESPECT TO CONTRACT CLAIMS, TORT CLAIMS OR OTHERWISE. EACH OF THE PARTIES HERETO AGREES THAT ANY SUCH CLAIM OR CAUSE OF ACTION SHALL BE TRIED IN A COURT TRIAL WITHOUT A JURY. WITHOUT LIMITING THE FOREGOING, THE PARTIES FURTHER AGREE THAT THEIR RESPECTIVE RIGHT TO A TRIAL BY JURY IS WAIVED BY OPERATION OF THIS SECTION AS TO ANY ACTION, COUNTERCLAIM OR OTHER PROCEEDING THAT SEEKS, IN WHOLE OR IN PART, TO CHALLENGE THE VALIDITY OR ENFORCEABILITY OF THE FINANCING DOCUMENTS TO WHICH IT IS A PARTY OR ANY PROVISION THEREOF. THE AGREEMENT OF EACH PARTY HERETO TO THIS PROVISION IS A MATERIAL INDUCEMENT FOR EACH OF THE OTHER PARTIES HERETO TO ENTER INTO THIS AGREEMENT.

SECTION 8.10 Notices

(a) Any notice to a Party under this Agreement must also be given to each other Party, respectively. Unless otherwise expressly provided herein, notices must be in writing and will be deemed to have been given (i) when delivered in person or by courier service and signed for against receipt thereof, (ii) upon receipt of direction given by Electronic Means, and (iii) upon receipt, if delivered by United States mail with first-class postage prepaid and properly addressed. For the purposes hereof, the address of each Party will be as set forth below the Party’s name on the signature pages hereto, or at such other address as the Party may designate by notice to the other Parties.

(b) Failure to give a notice or copies as required by this Section, or Sections 2.3 or 3.2, will not affect the effectiveness or validity of any modification or enforcement of this Agreement, impose any liability on any Claimholder, or waive any rights of any Party.

(c) The Parity Lien Agent, the Trustee and the Collateral Agent shall have the right to accept and act upon instructions, including funds transfer instructions (“Instructions”) given pursuant to this Agreement and delivered using Electronic Means; provided that the other Parties hereto shall provide to the Parity Lien Agent, the Trustee and the Collateral Agent an incumbency certificate listing officers with the authority to provide such Instructions (“Authorized Officers”) and containing specimen signatures of such Authorized Officers, which incumbency certificate shall be amended by the other Parties, respectively, whenever a person is to be added or deleted from the listing. If the other Parties elect to give the Parity Lien Agent, the Trustee or the Collateral Agent Instructions using Electronic Means and the Parity Lien Agent, the Trustee or the Collateral Agent in their respective discretion elects to act upon such Instructions, the Parity Lien Agent, the Trustee or the Collateral Agent’s understanding of such Instructions shall be deemed controlling. The other Parties understand and agree that the Parity Lien Agent, the Trustee and the Collateral Agent cannot determine the identity of the actual sender of such Instructions and that the Parity Lien Agent, the Trustee and the Collateral Agent shall conclusively presume that directions that purport to have been sent by an Authorized Officer listed on the incumbency certificate provided to the Parity Lien Agent, the Trustee or the Collateral Agent have been sent by such Authorized Officer. The other Parties shall be responsible for ensuring that only Authorized Officers transmit such Instructions to the Parity Lien Agent, the Trustee and the Collateral Agent and that the other Parties and all Authorized Officers are solely responsible to safeguard the use and confidentiality of applicable user and authorization codes, passwords and/or authentication keys upon receipt by the Parties. None of the Parity Lien Agent, the Trustee or the Collateral Agent shall be liable for any losses, costs or expenses arising directly or indirectly from the Parity Lien Agent, the Trustee or the Collateral Agent’s reliance upon and compliance with such Instructions notwithstanding such directions conflict or are inconsistent with a subsequent written instruction. The Parties agree: (i) to assume all risks arising out of the use of Electronic Means to submit Instructions to the Parity Lien Agent, the Trustee and the Collateral Agent, including without limitation the risk of the Parity Lien Agent, the Trustee and the Collateral Agent

acting on unauthorized Instructions, and the risk of interception and misuse by third parties; (ii) that it is fully informed of the protections and risks associated with the various methods of transmitting Instructions to the Parity Lien Agent, the Trustee and the Collateral Agent and that there may be more secure methods of transmitting Instructions than the method(s) selected by such Party; (iii) that the security procedures (if any) to be followed in connection with its transmission of Instructions provide to it a commercially reasonable degree of protection in light of its particular needs and circumstances; and (iv) to notify the Parity Lien Agent, the Trustee and the Collateral Agent immediately upon learning of any compromise or unauthorized use of the security procedures.

SECTION 8.11 Further Assurances

The Claimholders and each Grantor will each take such further action and will execute and deliver such additional documents and instruments (in recordable form, if requested) as any Claimholder may reasonably request to effectuate the terms of and the Lien priorities contemplated by this Agreement.

SECTION 8.12 Successors and Assigns

This Agreement is binding upon and inures to the benefit of each Claimholder, the Collateral Agent, and their respective successors and permitted assigns. However, no provision of this Agreement will inure to the benefit of any Grantor or any trustee, debtor-in-possession, creditor trust or other representative of an estate or any creditor (other than a Claimholder) of any Grantor, including where such estate or creditor representative is the beneficiary of a Lien securing Collateral by virtue of the avoidance of such Lien in an Insolvency Proceeding.

If the Parity Lien Agent resigns or is replaced pursuant to Section 5.2 or otherwise, its successor will be a Party to this Agreement with all the rights, and subject to all the obligations of this Agreement. Notwithstanding any other provision of this Agreement, this Agreement may not be assigned to any Person except as expressly contemplated herein.

SECTION 8.13 Authorization

By its signature hereto, each Person signing this Agreement on behalf of a Party represents and warrants to the other Parties that it is duly authorized to execute this Agreement.

SECTION 8.14 No Third Party Beneficiaries

Except as provided in Section 5.3 hereof with respect to Indemnitees, no Person is a third-party beneficiary of this Agreement and no trustee in bankruptcy for, or bankruptcy estate of, or unsecured creditor of, any Grantor will have or acquire or be entitled to exercise any right of a Claimholder under this Agreement, whether upon an avoidance or equitable subordination of a Lien of Claimholder, or otherwise. No Grantor, or any other creditor thereof (other than a Claimholder), has any rights hereunder, and no Grantor may rely on the terms hereof. Except to the extent expressly provided in this Agreement, no Person will have a right to notice of a modification to, or action taken under, this Agreement or any Collateral Document (including the release or impairment of any Collateral) other than as a lender, bondholder or beneficial owner of bonds under the applicable documents, and then only to the extent expressly provided in such documents.

SECTION 8.15 No Indirect Actions

Unless otherwise expressly stated, if a Party may not take an action under this Agreement, then it may not take that action indirectly, or support any other Person in taking that action directly or indirectly. “Taking an action indirectly” means taking an action that is not expressly prohibited for the Party but is intended to have substantially the same effects as the prohibited action.

SECTION 8.16 Counterparts

This Agreement may be executed in counterparts (and by different parties hereto in different counterparts), each of which will constitute an original, but all of which when taken together will constitute a single contract. Delivery of an executed counterpart of a signature page of this Agreement or any document or instrument delivered in connection herewith by telecopy or PDF or other electronic means will be effective as delivery of a manually executed counterpart of this Agreement or such other document or instrument, as applicable, and each Party utilizing telecopy, PDF or other electronic means for delivery will deliver a manually executed original counterpart to each other Party on request.

SECTION 8.17 Original Grantors, Additional Grantors

The Grantors on the date of this Agreement will constitute the original Grantors party hereto. The original Grantors will cause each additional party to any Collateral Document which becomes a Grantor under such document after the Closing Date to contemporaneously become a party hereto (as a Grantor) by executing and delivering a joinder agreement (in form and substance satisfactory to the Parity Lien Agent and the Working Capital Loan Provider) to the Parity Lien Agent. The Parties further agree that, notwithstanding any failure to take the actions required by the immediately preceding sentence, each Person that becomes a Grantor at any time (and any security granted by any such Person) will be subject to the provisions hereof as fully as if it constituted a Grantor party hereto and had complied with the requirements of the immediately preceding sentence.

SECTION 8.18 Amendments for Additional Obligations

The Parties recognize and acknowledge that Additional Obligations may require amending this Agreement pursuant to Section 8.4 hereof, it being expressly agreed and understood that any such amendments shall not require the consent of the Bondholders.

ARTICLE IX DEFINITIONS

SECTION 9.1 Defined Terms

All capitalized terms used herein (including the recitals) but not otherwise defined herein shall have the respective meanings given to such terms in the Collateral Agency Agreement. Unless otherwise stated or the context otherwise clearly requires, the following terms have the following meanings:

“Acceding Party” is defined in Section 7.1.

“Accession Agreement” means an Accession Agreement substantially in the form attached as Exhibit 1 hereto.

“Additional Bonds” is defined in the Indenture.

“Additional Financing Documents” is defined in the Collateral Agency Agreement.

“Additional Obligations” is defined in the Collateral Agency Agreement.

“Agreement” is defined in the preamble.

“Bankruptcy Code” means the federal Bankruptcy Code as currently in effect and as amended from time to time, as well as any replacement statute therefor.

“Bankruptcy Law” means the Bankruptcy Code and any similar federal, state, or foreign bankruptcy, insolvency, receivership, or similar law affecting creditors’ rights generally.

“Bond Documents” has the meaning set forth in the Indenture.

“Bonds” means the Series 2017 Bonds and any Additional Bonds.

“Business Day” means a day of the year other than (a) a Saturday or Sunday, (b) a day on which commercial banks located in the city or cities in which the principal corporate trust office of the Trustee or Collateral Agent or the principal corporate trust operations office of the Trustee or Collateral Agent, are located are required or authorized to remain closed or (c) a day on which the New York Stock Exchange is closed.

“Claimholder” means any Parity Lien Claimholder, the Working Capital Loan Provider and any Subordinate Claimholder.

“Closing Date” means December [__], 2017.

“Collateral” has the meaning set forth in the Security Agreement.

“Collateral Agency Agreement” is defined in the recitals.

“Collateral Agent” is defined in the preamble.

“Collateral Documents” means the collective reference to the Security Agreement, the Collateral Agency Agreement, each Control Agreement entered into with a Deposit Account Bank and any other agreement or instrument hereafter entered into by the Company or any other Person which secures payment of Obligations of the Company under the Financing Documents.

“Company” is defined in the preamble.

“Debt” of any Person at any date means, without duplication, (a) all obligations of such Person for borrowed money, (b) all obligations of such Person evidenced by bonds, debentures, notes or other similar instruments, (c) all obligations of such Person to pay the deferred purchase price of property or services (excluding (x) trade accounts payable arising in the ordinary course of business, (y) any earn-out obligation until such obligation becomes a liability on the balance sheet of such Person in accordance with GAAP and if not paid after being due and payable and (z) expenses accrued in the ordinary course of business), (d) all Capital Lease Obligations (as defined in the Collateral Agency Agreement), (e) all unconditional obligations of such Person to purchase, redeem, retire, defease or otherwise acquire for value any capital stock or other equity interests of such Person or any warrants, rights or options to acquire such capital stock or other equity interests, (f) all deferred obligations of such Person to reimburse any bank or other Person in respect of amounts paid or advanced under a letter of credit or other similar instrument, (g) all Debt of the kind described in clauses (a) through (f) of others secured by a Lien on any asset of such Person, whether or not such Debt is assumed by such Person, and (h) obligations in respect of any interest rate swap agreement, interest rate cap agreement, interest rate collar agreement or other similar agreements or arrangements which is designed to protect against fluctuations in interest rates; provided that the term “Debt” shall not include (i) deferred or prepaid revenue, (ii) purchase price holdbacks in respect of a portion of the purchase price of an asset to satisfy warranty, indemnity or other unperformed obligations of the seller, (iii) any obligations attributable to the exercise of appraisal rights and the settlement of any claims or actions (whether actual, contingent or potential) with respect thereto or (iv) Debt of any Person that is a direct or indirect parent of the Company appearing on the balance sheet of the Company, or solely by reason of push down accounting under GAAP.

“Disposition” (or similar words such as “Dispose”) means any sale, transfer, lease, contribution or other conveyance (including by way of merger) of, or the granting of options, warrants or other rights to, any of the Company’s assets (including accounts receivable) to any other Person in a single transaction or series of transactions.

“Electronic Means” means the following communications methods: e-mail, facsimile transmission, secure electronic transmission containing applicable authorization codes, passwords and/or authentication keys issued by the Parity Lien Agent, the Trustee and the Collateral Agent, as appropriate, or another method or system specified by the Trustee as available for use in connection with its services hereunder.

“Enforcement Action” means an action under applicable law to:

(b) solicit bids from third Persons to conduct the liquidation or Disposition of Collateral or to engage or retain sales brokers, marketing agents, investment bankers, accountants, appraisers, auctioneers, or other third Persons for the purposes of valuing, marketing, promoting, and selling Collateral,

(e) effect the Disposition of Collateral (other than in the ordinary course of business) by any Grantor after the occurrence and during the continuation of an Event of Default under the Senior Documents with the consent of the Parity Lien Agent, provided that, “Enforcement Action” will not be deemed to include the commencement of, or joinder in filing of a petition for commencement of, an Insolvency Proceeding against the owner of Collateral.

“Event of Default” means an event of default under any Parity Lien Documents.

“Excluded Collateral” is defined in the Security Agreement.

“Financing Documents” is defined in the Collateral Agency Agreement.

“Grantors” means, collectively, the Company, and each other Person that executes and delivers a Collateral Document as a “mortgagor”, “grantor” or “pledgor” (or the equivalent).

“Indemnitee” is defined in Section 5.3.

“Indenture” is defined in the recitals.

“Insolvency Proceeding” means an “Act of Bankruptcy,” as defined in the Indenture.

“Interest Hedging Agreement” means any agreement entered into after the Closing Date by the Company and an Interest Hedging Bank in form and substance reasonably satisfactory to the Required Agent (acting in accordance with the terms of this Agreement) and the Company, for an Interest Hedging Transaction.

“Interest Hedging Banks” means any entity having a rating of “BBB” or its equivalent from a Nationally Recognized Rating Agency that becomes a party to an Interest Hedging Agreement and which has become a party to this Agreement by joinder or otherwise, and their respective successors and assigns.

“Issuer” is defined in the recitals.

“Lease Agreement” is defined in the recitals.

foregoing, and the filing of any financing statement or similar instrument under the Uniform Commercial Code or comparable law.

“modify” as applied to any document or obligation, includes

(a) modification by amendment, supplement, amendment and restatement, termination (other than on a stated, scheduled date), or replacement of the document or obligation,

(b) any waiver of a provision (including waivers by course of conduct), and

(c) the settlement or release of any claim, whether oral or written, and regardless of whether the modification is in conformity with the provisions of the document or obligation governing modifications.

“Obligations” means any Parity Lien Obligation, Working Capital Loan Obligation or Subordinate Obligation.

“Parity Lien Agent” is defined in the preamble.

“Parity Lien Claimholders” means, collectively, the Parity Lien Agent and the holders of Parity Lien Obligations.

“Parity Lien Documents” means

(a) the Lease Agreement and the other Bond Financing Documents,

(b) the Additional Financing Documents and instruments evidencing the Additional Obligations,

“Parity Lien Obligations” is defined in Section 1.2.

“Parity Obligations” is defined in the Collateral Agency Agreement.

“Parity Secured Creditors” is defined in the Collateral Agency Agreement.

“Party” means a party to this Agreement.

“Permitted Subordinate Payments” shall mean (x) regularly scheduled, non-accelerated payments of interest on the Subordinate Obligations at the applicable non-default interest rate, as and when due and payable and all in accordance with the terms of the Subordinate Obligations documentation and (y) payments and distributions in respect of Shareholder Loans (as defined in the Collateral Agency Agreement) in accordance with the terms of the Shareholder Loan documentation and to the extent such payments and distributions are permitted under the Collateral Agency Agreement.

“Possessory Collateral” means Collateral in possession or control of the Parity Lien Agent.

“Proceeds” means “proceeds” as such term is defined in the UCC or under other relevant law and, in any event, shall include, but shall not be limited to, (i) any and all proceeds of, or amounts (in whatsoever form, whether cash, securities, property or other assets) received under or with respect to, any insurance, indemnity, warranty or guaranty payable to the Company from time to time, and claims for insurance, indemnity, warranty or guaranty effected or held for the benefit of the Company, in each case with respect to any of the Collateral, (ii) any and all payments (in any form whatsoever, whether cash, securities, property or other assets) made or due and payable to the Company from time to time in connection with any requisition, confiscation, condemnation, seizure or forfeiture of all or any part of the Collateral by any Governmental Authority (or any person acting under color of Governmental Authority), and (iii) any and all other amounts (in any form whatsoever, whether cash, securities, property or other assets) from time to time paid or payable under or in connection with any of the Collateral (whether or not in connection with the sale, lease or other disposition of the Collateral).

“Recovery” is defined in Section 6.1.

“Refinance” means, for any Debt, to refinance, replace, refund, or to issue other Debt in exchange or replacement for, such Debt in whole or in part. “Refinanced” and “Refinancing” have correlative meanings.

“Required Parity Lien Claimholders” means Parity Lien Claimholders holding more than 50% of the Parity Outstanding Exposure.

“Secured Creditors” means, collectively, (i) the Parity Secured Creditors and (ii) any Subordinate Lenders.

“Security Agreement” means that certain Security Agreement, dated as of December 1, 2017, between the Company and the Collateral Agent.

“Senior Claimholder” means any Parity Lien Claimholder and the Working Capital Loan Provider.

“Senior Documents” means any Parity Lien Document and any Working Capital Loan Document.

“Senior Obligations” means the Parity Lien Obligations and the Working Capital Loan Obligations.

“Series 2017 Bonds” is defined in the recitals.

“Subordinate Claimholder” means any Subordinate Lender.

“Subordinate Documents” means any agreement, document, or instrument securing, providing for, or evidencing a Subordinate Obligation.

“Subordinate Lender” means the issuer of a Subordinate Obligation.

“Trustee” is defined in the preamble.

“UCC” means the Uniform Commercial Code (or any similar legislation) as in effect in any applicable jurisdiction.

“Working Capital Collateral” means, collectively, with respect to each Grantor: (a) all “accounts” (as that term is defined in the Uniform Commercial Code), whether now owned or hereafter acquired by each such Person (or in which such Person now or hereafter has rights or the power to transfer rights to a secured party); (b) all Proceeds of the foregoing; and (c) all “Records” (as that term is defined in the Security Agreement) of each such Person relating to any of the foregoing.

“Working Capital Loan” is defined in the Collateral Agency Agreement.

“Working Capital Loan Documents” means (i) initially, the Credit Agreement, dated as of December [__], 2017 between Wells Fargo Bank, National Association and the Company and (ii) thereafter, any additional loan documents between Working Capital Loan Provider and the Company in connection with a Working Capital Loan.

“Working Capital Loan Obligation” is defined in Section 1.2.

“Working Capital Loan Provider” means (i) initially, Wells Fargo Bank, National Association, and (ii) thereafter, any provider of a Working Capital Loan.

SECTION 9.2 Usages

Unless otherwise stated or the context clearly requires otherwise:

Singular and plural. Definitions of terms apply equally to the singular and plural forms.

Masculine and feminine. Pronouns will include the corresponding masculine, feminine, and neuter forms.

Will and shall. “Will” and “shall” have the same meaning.

Time periods. In computing periods from a specified date to a later specified date, the words “from” and “commencing on” (and the like) mean “from and including,” and the words “to,” “until” and “ending on” (and the like) mean “to but excluding.”

When action may be taken. Any action permitted under this Agreement may, unless otherwise expressly stated, be taken at any time and from time to time.

Time of day. All indications of time of day mean New York City time.

Including. “including” means “including, but not limited to.”

Or. “A or B” means “A or B, or both.”

Statutes and regulations. References to a statute refer to the statute and all regulations promulgated under or implementing the statute as in effect at the relevant time. References to a specific provision of a statute or regulation include successor provisions. References to a Section of the Bankruptcy Code also refer to any similar provision of Bankruptcy Law.

Agreements. References to an agreement (including this Agreement) refer to the agreement as amended, supplemented, amended and restated, or otherwise modified from time to time in accordance with its terms, and shall also include an agreement resulting from or evidencing the Refinancing of such original agreement, as at the relevant time.

Governmental agencies and self-regulatory organizations. References to a governmental or quasi-governmental agency or authority or a self-regulatory organization include any successor agency, authority, or self-regulatory organization.

Section and Article references. Clause, Section and Article references refer to Clauses, Sections or Articles of this Agreement. References to a numbered Article refer to all Sections in such Article. For example, a reference to Article 6 also refers to Sections 6.1, 6.1(a), etc. References to a Section or Article in an agreement, statute or regulation include successor and renumbered sections and articles of that or any successor agreement, statute, or regulation.

Successors and assigns. References to a Person include the Person’s permitted successors and assigns, and in the case of a Grantor, shall also include such Grantor as a debtor-in-possession and any receiver or trustee for such Grantor in any Insolvency Proceeding

Herein, etc. “Herein,” “hereof,” “hereunder,” and words of similar import refer to this Agreement in its entirety and not to any particular provision.

Assets and property. “Asset” and “property” have the same meaning and refer to both real and personal, tangible and intangible assets and property, including cash, securities, accounts, and general intangibles.

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SIGNATURES

Parity Lien Agent:

U.S. BANK NATIONAL ASSOCIATION, as Parity Lien Agent

By: ______Name: Title:

Collateral Agent:

U.S. BANK NATIONAL ASSOCIATION, as Collateral Agent

By: ______Name: Title:

Trustee:

U.S. BANK NATIONAL ASSOCIATION, as Trustee

By: ______Name: Title:

Collateral Agent, Trustee, Parity Lien Agent

ADDRESS:

U.S. BANK NATIONAL ASSOCIATION ______

Working Capital Loan Provider:

WELLS FARGO BANK, NATIONAL ASSOCIATION, as Working Capital Loan Provider

By: ______Name: Title:

ADDRESS: ______

ACKNOWLEDGED AND AGREED TO BY:

PORT NEWARK CONTAINER TERMINAL L.L.C.

By: ______Name: Title:

ADDRESS:

PORT NEWARK CONTAINER TERMINAL L.L.C.

______

EXHIBIT 1

FORM OF ACCESSION AGREEMENT

[Date]

To: U.S. Bank National Association, as Collateral Agent

Re: Intercreditor Agreement, dated as of December 1, 2017 (as amended, supplemented, amended and restated, or otherwise modified from time to time, the “Intercreditor Agreement”) by and among U.S. Bank National Association, as Parity Lien Agent, U.S. Bank National Association, as Trustee, U.S. Bank National Association, as Collateral Agent, Wells Fargo Bank, National Association, as the initial Working Capital Loan Provider, Port Newark Container Terminal L.L.C., as Company, and the other Acceding Parties from time to time party thereto.

Ladies and Gentlemen:

The undersigned, as [DESCRIPTION OF ACCEDING PARTY], acknowledges receipt of the Intercreditor Agreement and the other Parity Lien Documents to which it is or is to become a party and agrees to be bound by the terms of the Intercreditor Agreement, the Collateral Agency Agreement, and such other [DESCRIBE RELEVANT DOCUMENTS] in its capacity as [INSERT CAPACIT[Y][IES] OF ACCEDING PARTY]. The undersigned further agrees to (i) the appointment of the Collateral Agent and the Securities Intermediary as agents for the undersigned in accordance with the terms of the Intercreditor Agreement and the Collateral Agency Agreement and (ii) the appointment of [APPLICABLE AGENT] as agent for the undersigned in accordance with the terms of the Intercreditor Agreement. U.S. Bank National Association hereby accepts such appointment to act as the Collateral Agent and the Securities Intermediary as the agents for the undersigned and [NAME OF APPLICABLE AGENT] hereby accepts such appointment to act as the [INSERT CAPACIT[Y][IES] OF APPLICABLE AGENT] as the agent for the undersigned. Capitalized terms used but not defined in this Accession Agreement have the meanings given to them (by reference or otherwise) in the Intercreditor Agreement. By its signature hereto, each Person signing this Accession Agreement on behalf of a Party represents and warrants to the other Parties that it is duly authorized to execute this Accession Agreement.

Very truly yours, [Name of Acceding Party], as [INSERT CAPACIT[Y][IES] OF ACCEDING PARTY]

By:

ADDRESS: [______] [______]

Agreed and Acknowledged:

U.S. BANK NATIONAL ASSOCIATION, not in its individual capacity, but as Collateral Agent and Securities Intermediary

By: Name: Title:

APPENDIX F

FORM OF CONTINUING DISCLOSURE AGREEMENT

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CONTINUING DISCLOSURE AGREEMENT

This Continuing Disclosure Agreement, dated December 1, 2017 (the “Continuing Disclosure Agreement”), by and between Port Newark Container Terminal L.L.C. (the “Company”) and U.S. Bank National Association, as dissemination agent (the “Dissemination Agent”), is delivered in connection with the issuance and sale by the New Jersey Economic Development Authority (the “Issuer”) of its $286,260,000 Special Facility Revenue and Refunding Bonds (Port Newark Container Terminal L.L.C. Project), Series 2017 (the “Series 2017 Bonds”) pursuant to the terms of the Indenture of Trust dated as of December 1, 2017 (as the same may be amended and supplemented from time to time, the “Indenture”), between the Issuer and U.S. Bank National Association, as trustee (the “Trustee”).

SECTION 1. Purpose of the Continuing Disclosure Agreement. This Continuing Disclosure Agreement is being executed and delivered by the Company and the Dissemination Agent for the benefit of the Beneficial Owners of the Bonds in order to assist the Participating Underwriter in complying with the Rule. The Company acknowledges that the Issuer and the Dissemination Agent have undertaken no responsibility with respect to any reports, notices or disclosures provided or required under this Continuing Disclosure Agreement, and the Issuer and the Dissemination Agent have no liability to any person, including any Beneficial Owner, with respect to any such reports, notices or disclosures.

SECTION 2. Definitions. In addition to the definitions set forth in the Bond Documents, which apply to any capitalized term used in this Continuing Disclosure Agreement, unless otherwise defined in this Section, the following capitalized terms shall have the following meanings:

“Annual Reports” shall mean the filings described in Section 3(b) hereof.

“Beneficial Owner” shall mean, while the Series 2017 Bonds are held in a book-entry only system, the actual purchaser of each Bond, the ownership interest of which is to be recorded on the records of the direct and indirect participants of The Depository Trust Company, and otherwise shall mean the Holder.

“Bond Documents” shall mean the Indenture, the Lease Agreement, the Guaranty and the Administration Expense Guaranty.

“Commission” shall mean the Securities and Exchange Commission or any successor body thereto.

“EMMA” shall mean the Electronic Municipal Market Access facility for municipal securities disclosure of the MSRB.

“Exchange Act” shall mean the Securities Exchange Act of 1934, as amended from time to time.

“GAAP” means generally accepted accounting principles as prescribed by the Financial Accounting Standards Board, as in effect from time to time in the United States.

"Holder" shall mean either the registered owners of the Bonds, or, if the Bonds are registered in the name of The Depository Trust Company or another recognized depository, any applicable participant in such depository system.

“Lease Agreement” shall mean the Lease Agreement dated as of December 1, 2017, between the Issuer and the Company.

“Listed Events” shall mean any of the events listed in Section 4(a) of this Continuing Disclosure Agreement. “MSRB” means the Municipal Securities Rulemaking Board established pursuant to the provisions of Section 15B(b)(1) of the Exchange Act, as amended, or any successor thereto or to the functions of the MSRB contemplated by this Continuing Disclosure Agreement.

“Official Statement” shall mean the Official Statement dated December [__], 2017 used in connection with the sale of the Bonds.

“Participating Underwriter” shall mean the underwriter of the Bonds that is required to comply with the Rule in connection with the offering of the Bonds.

“Quarterly Reports” shall mean the filings described in the Section 3(c) hereof.

“Rule” shall mean Rule 15c2-12 adopted by the Commission under the Exchange Act, as the same may be amended from time to time.

“Securities Act” shall mean the Securities Act of 1933, as amended from time to time.

SECTION 3. Provision of Annual Reports and Quarterly Reports.

(a) The Company shall, or shall cause the Dissemination Agent to, provide to EMMA in an electronic format as prescribed by the MSRB (i) not later than one hundred eighty (180) days after the close of its fiscal year, an Annual Report, and (ii) not later than seventy-five (75) days after the close of each of the Company’s first three fiscal quarters, a Quarterly Report.

(b) The Annual Report shall consist of:

(i) a copy of the annual audited financial statements of the Company (including a balance sheet, income statement and statement of cash flows), setting forth in comparative form the respective audited figures as of the end of and for the previous fiscal year, if available, in each case prepared in accordance with GAAP and certified by a nationally recognized accounting firm, together with a certificate of a duly authorized officer of the Company stating whether to such authorized officer’s actual knowledge, any Event of Default under the Indenture or the Lease Agreement has occurred and is continuing (and, if any Event of Default shall have occurred and be continuing, a statement setting forth the nature thereof and the steps being taken by the Company to remedy the same); provided, however that if annual audited financial statements of the Company are not available on the applicable due date, the Annual Report shall include unaudited financial statements of the Company, which shall be followed by audited financial statements upon their availability;

(ii) certain financial information and annual operating data, including updates to the information (not including any projections) relating to the Company and the Terminal provided in the Official Statement under the headings “THE TERMINAL - Customers” and “HISTORICAL OPERATING RESULTS”; and

(iii) a management’s discussion and analysis of results of operations, to the extent to not included in Section 3(b)(i) above.

(i) a copy of the Company’s quarterly unaudited financial statements (including a balance sheet, income statement and statement of cash flows), prepared in accordance with

F-2 GAAP and setting forth in comparative form the respective figures as of the corresponding period in the previous fiscal year;

(ii) the total amount of Revenues and Operating Expenses for such fiscal quarter and the total Major Maintenance Expenditures and Capital Expenditures, if any, incurred during such fiscal quarter;

(iii) notice of any threatened termination of any license, permit or other official approval which is material to the activities of the Company, or of the commencement of any litigation or other governmental or judicial proceeding in which an outcome adverse to the Company could result in a judgment in excess of available insurance coverage or otherwise have a material adverse effect on the operations or financial condition of the Company, and any other event which reasonably could be expected to have a material adverse effect on the operations or financial condition of the Company; and

(iv) such other matters as determined by the Company.

(d) Not later than five (5) Business Days prior to the dates specified in subsection (a) above for providing the Annual Report or the Quarterly Report to EMMA, the Company shall either provide the Annual Report or the Quarterly Report, as applicable, in PDF format, word-searchable, to the Dissemination Agent with instructions to file such report as specified in subsection (a) above and in accordance with Section 5 herein or provide a written certification to the Dissemination Agent that the Company has provided the Annual Report or the Quarterly Report, as applicable, to EMMA.

(e) If the Dissemination Agent is unable to verify that an Annual Report or a Quarterly Report has been provided to EMMA by the date specified in subsection (a) above, the Dissemination Agent shall send to EMMA timely notice of such failure to file in substantially the same form as Exhibit A hereto.

(f) The Dissemination Agent shall have no obligation to disclose information except as expressly provided herein.

SECTION 4. Reporting of Listed Events and Certain Other Events.

(a) The Company shall, or shall cause the Dissemination Agent to, provide in a timely manner (not more than ten Business Days from the occurrence of the following events), notice to the MSRB of the occurrence of any of the following events:

(i) principal and interest payment delinquencies;

(ii) non-payment related defaults, if material;

(iii) unscheduled draws on debt service reserves reflecting financial difficulties;

(iv) unscheduled draws on credit enhancements reflecting financial difficulties;

(v) substitution of credit or liquidity providers, or their failure to perform;

(vi) 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, or other material events affecting the tax status of the Bonds;

(vii) modifications to rights of Beneficial Owners, if material;

F-3 (viii) bond calls, if material, and tender offers;

(ix) defeasances;

(x) release, substitution, or sale of property securing repayment of the Bonds, if material;

(xi) rating changes;

(xii) bankruptcy, insolvency, receivership or similar event of the Company;1

(xiii) the consummation of a merger, consolidation, or acquisition involving the Company or the sale of all or substantially all of the assets of the Company, other than in the ordinary course of business, the entry into 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

(xiv) appointment of a successor or additional trustee or the change of name of a trustee, if material.

(b) The Company shall, or shall cause the Dissemination Agent to, provide in a timely manner to the MSRB, notice of the occurrence of any of the following events with respect to the Bonds:

(i) if the Terminal is damaged, destroyed or rendered unfit for normal use and such damage is in excess of $10,000,000 in value individually or in aggregate, or any series of such events or circumstances during any 12-month period is in excess of $10,000,000, such amounts to be adjusted annually by the increase in the Consumer Price Index from the prior year since the Date of Issuance;

(ii) except as set forth in (iii) below, any litigation or similar proceeding affecting the Terminal or the Company reasonably expected to materially and adversely affect the use or operation of the Terminal or result in a material adverse change in the financial condition of the Company (a “Material Adverse Effect”);

(iii) any dispute, litigation, investigation or proceeding which may exist at any time between any Governmental Authority and the Company or, to the actual knowledge of the Company, any party to a Bond Financing Document or Construction Contract, to the extent such dispute, litigation, investigation or proceeding involves the Project and is reasonably expected to result in a Material Adverse Effect;

(iv) a general description of the recommendations received during such fiscal quarter from any consultant engaged by the Company in accordance with the Collateral Agency Agreement as a result of its failure to maintain the required Debt Service Coverage Ratio (it being understood that the Company shall not be required to disclose its rates, fees, rentals and charges

1 For the purpose of the event specified in (xii), the event is considered to occur when any of the following occur: The appointment of a receiver, fiscal agent or similar officer for the Company in a proceeding under the U.S. Bankruptcy Code or in any other proceeding under the U.S. 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 Company, 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 Company.

F-4 for the use of the Terminal and services rendered by the Company due to the commercial sensitivity of such items);

(v) any written notice of the occurrence of any event giving rise (or that could reasonably be expected to give rise) to a material claim under any insurance policy that is reasonably expected to result in a Material Adverse Effect;

(vi) any written notice indicating that any material permits will not be granted or renewed, or will be granted or renewed on terms materially more burdensome than proposed; or

(vii) any event or circumstance affecting the Company that could reasonably be expected to materially impair its ability to perform its obligations under the Bond Documents.

SECTION 5. Format of Filing. Unless otherwise required by the MSRB, or otherwise provided herein, all notices, documents and information provided to the MSRB pursuant to this Continuing Disclosure Agreement shall be provided to the MSRB’s EMMA system, the current Internet Web address of which is www.emma.msrb.org. All notices, documents and information provided to the MSRB shall be provided in an electronic format as prescribed by the MSRB (currently, portable document format (pdf) which must be word-searchable except for non-textual elements) and shall be accompanied by identifying information as prescribed by the MSRB.

SECTION 6. Termination of Reporting Obligation. The Company’s obligations under this Continuing Disclosure Agreement shall terminate upon the defeasance, prior redemption or payment in full of all of the Bonds. If the Company’s obligations under the Lease Agreement and this Continuing Disclosure Agreement are assumed in full by some other entity, such person shall be responsible for compliance with this Continuing Disclosure Agreement in the same manner as if it were the Company and the Company shall have no further responsibility hereunder. The Company shall, or shall cause the Dissemination Agent to, provide timely notice to the MSRB of the termination of the Company’s obligations under this Continuing Disclosure Agreement pursuant to an assumption of its obligations hereunder.

SECTION 7. Amendment and Waiver. Notwithstanding any other provision of this Continuing Disclosure Agreement, the Company and the Dissemination Agent may amend this Continuing Disclosure Agreement (and the Dissemination Agent shall agree to any amendment so reasonably requested by the Company) in connection with a change in circumstances that arises from a change in legal requirements, change in law, or change in the identity, nature or status of the obligor with respect to the Bonds or the type of business conducted by said obligor, provided that (x) this Continuing Disclosure Agreement, as amended or following such waiver, would have complied with the requirements of the Rule on the date of issuance of the Bonds, after taking into account any amendments to the Rule as well as any change in circumstances, and (y) the amendment or waiver does not materially impair the interests of the Holders in the opinion of counsel who is an expert in federal securities laws acceptable to both the Company and the Dissemination Agent, or is approved by not less than the Beneficial Owners of a majority in aggregate principal amount of the outstanding Bonds.

SECTION 8. Additional Information. Nothing in this Continuing Disclosure Agreement shall be deemed to prevent the Company from disseminating any other information, using the means of dissemination set forth in this Continuing Disclosure Agreement or any other means of communication, or including any other information in any Annual Report or notice of occurrence of a Listed Event, in addition to that which is required by this Continuing Disclosure Agreement. If the Company chooses to include any information in any Annual Report or notice of occurrence of a Listed Event, in addition to that which is specifically required by this Continuing Disclosure Agreement, the Company shall have no obligation under this Continuing Disclosure Agreement to update such information or include it in any future Annual Report or notice of occurrence of a Listed Event.

F-5 SECTION 9. Default. In the event of a failure of the Company to comply with any provision of this Continuing Disclosure Agreement, the Trustee may, upon obtaining actual knowledge or notice of the same, (and, at the request of the Beneficial Owners of at least 30% aggregate principal amount of outstanding Bonds and upon receiving satisfactory indemnity, shall) subject to the same conditions, limitations and procedures that would apply under the Indenture if the breach were an Event of Default, or any Beneficial Owner may, take such actions as may be necessary and appropriate, including seeking mandamus or specific performance by court order, to cause the Company to comply with its obligations under this Continuing Disclosure Agreement. A default under this Continuing Disclosure Agreement, in itself, shall not be deemed an Event of Default under the Indenture or the Lease Agreement, and the sole remedy under this Continuing Disclosure Agreement in the event of any failure of the Company to comply with this Continuing Disclosure Agreement shall be an action to compel performance. The Dissemination Agent shall be entitled to rely conclusively upon any written evidence provided by the Company regarding the provision of information to it pursuant to the terms hereof.

SECTION 10. The Dissemination Agent. For so long as the Trustee is acting as the Dissemination Agent hereunder, Article VIII of the Indenture is hereby made applicable to this Continuing Disclosure Agreement as if this Continuing Disclosure Agreement were (solely for this purpose) contained in the Indenture. The Dissemination Agent shall have only such duties as are specifically set forth in this Continuing Disclosure Agreement, and the Company agrees to indemnify and hold the Dissemination Agent, its officers, directors, employees and agents harmless against any loss, expense and liabilities which it may incur arising out of or in the exercise or performance of its powers and duties hereunder, including the costs and expenses (including reasonable attorneys’ fees) of defending against any claim of liability, but excluding liabilities due to the Dissemination Agent’s gross negligence or willful misconduct. The obligations of the Company under this section shall survive resignation or removal of the Dissemination Agent and payment of the Bonds. The Company covenants that whenever it is serving as Dissemination Agent, it shall take any action required of the Dissemination Agent under this Continuing Disclosure Agreement.

SECTION 11. Beneficiaries. This Continuing Disclosure Agreement shall inure solely to the benefit of the Issuer, the Company, the Trustee, the Participating Underwriter and the Beneficial Owners of the Bonds, and shall create no rights in any other person or entity.

SECTION 12. Notices. Any notices or communications between the parties to this Continuing Disclosure Agreement may be given by registered or certified mail, return receipt requested, or by confirmed facsimile, or delivered in person, or by overnight courier, and will be deemed given on the third day following the date on which the notice or communication is so mailed, as follows:

To the Company: Port Newark Container Terminal L.L.C. 241 Calcutta Street Newark, New Jersey 07114 Attention: Markus Braun Telephone: (973) 522-2249 Facsimile: [______]

To the Dissemination Agent: U.S. Bank National Association Corporate Trust Services 21 South Street, 3rd Floor Morristown, New Jersey 07960 Telephone: (973) 898-7169 Facsimile: (973) 682-4540

F-6 Any person may, by written notice to the other persons listed above, designate a different address, telephone number(s) or facsimile number(s) to which subsequent notices or communications should be sent.

SECTION 13. Counterparts. This Continuing Disclosure Agreement may be executed in several counterparts, each of which shall be an original and all of which shall constitute one and the same instrument. Any of the parties hereto may execute this agreement by signing any such counterpart.

SECTION 14. Governing Law. This Continuing Disclosure Agreement shall be governed and construed in accordance with the laws of the State of New Jersey.

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IN WITNESS WHEREOF, the parties hereto, intending to be legally bound, have caused this Continuing Disclosure Agreement to be executed as of the date first above written.

PORT NEWARK CONTAINER TERMINAL L.L.C.

By: Name: Title:

U.S. BANK NATIONAL ASSOCIATION, as Dissemination Agent

By: Name: Title:

F-8 Signature Page to Continuing Disclosure Agreement

EXHIBIT A

NOTICE OF FAILURE TO FILE [ANNUAL][QUARTERLY] REPORT

Name of Issuer: New Jersey Economic Development Authority

Name of Obligor: Port Newark Container Terminal L.L.C. (the “Company”)

Name of Bonds: New Jersey Economic Development Authority Special Facility Revenue and Refunding Bonds (Port Newark Container Terminal L.L.C. Project), Series 2017 (the “Bonds”)

Date of Issuance: December [__], 2017

NOTICE IS HEREBY GIVEN that the Company has not filed [an Annual][a Quarterly] Report with respect to the Bonds as required by the Continuing Disclosure Agreement dated December 1, 2017, between the Company and U.S. Bank National Association, as Dissemination Agent. The Company has notified the Dissemination Agent that it anticipates that the [Annual][Quarterly] Report will be filed by the following date: ______.

Dated: ______, ____

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EXHIBIT B

FORM OF QUARTERLY REPORT

Port Newark Container Terminal L.L.C.

Quarterly Report – [______]

New Jersey Economic Development Authority Special Facility Revenue and Refunding Bonds (Port Newark Container Terminal L.L.C. Project), Series 2017 This quarterly report provides a summary of [ ] by Port Newark Container Terminal L.L.C. through the quarter ending [______]. Below is an outline of the four sections in this report:

1. Financial Statements for Quarter ended [______] 2. Revenues, Operating Expenses, Major Maintenance Expenditures and Capital Expenditures for Quarter ended [______] 3. Notice of Adverse Events 4. Other Matters

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APPENDIX G

FORM OF APPROVING OPINION OF BOND COUNSEL

December __, 2017

New Jersey Economic Development Authority 36 West State Street P.O. Box 990 Trenton, New Jersey 08625

Re: New Jersey Economic Development Authority Special Facility Revenue and Refunding Bonds (Port Newark Container Terminal L.L.C. Project), Series 2017

Ladies and Gentlemen:

We have acted as bond counsel to the New Jersey Economic Development Authority (the “Authority”) in connection with the issuance by the Authority of its Special Facility Revenue and Refunding Bonds (Port Newark Container Terminal Project, L.L.C.), Series 2017 in the aggregate principal amount set forth in the Indenture (as defined below) (the “Bonds”). The Bonds are dated, mature, bear interest and are subject to redemption prior to maturity upon the terms and conditions stated therein and in the Indenture of Trust dated as of December 1, 2017 (the “Indenture”) between the Authority and U.S. Bank National Association, as trustee. All capitalized terms used herein and not defined herein shall have the meaning ascribed to such terms in the Indenture. The Bonds are issued under and pursuant to the New Jersey Economic Development Authority Act, constituting Chapter 80 of the Pamphlet Laws of 1974 of the State of New Jersey, approved August 7, 1974, as amended and supplemented (the “Act”), resolutions adopted by the members of the Authority on October 12, 2017 and November 28, 2017, authorizing, among other things, the issuance of the Bonds, and the Indenture. Concurrently with the issuance of the Bonds, the Authority and Port Newark Container Terminal L.L.C., a Delaware limited liability company (the “Company”) have entered into a Lease Agreement dated as of December 1, 2017 (the “Lease Agreement”) which provides for, inter alia, the sub-sublease of the Leased Premises from the Company to the Authority, the sub-sub-sublease of the Leased Premises from the Authority to the Company, the proceeds of the Bonds to be used by the Company to finance the costs of the Project (as defined below), and for the lease of the personal property and Gantry Cranes financed with the proceeds of the Bonds from the Authority to the Company. Pursuant to the Indenture, the Authority has transferred and assigned to the Trustee certain of its right, title and interest in the Company Sublease (as defined in the Lease Agreement), subject to certain reserved rights as described therein. The Bonds are also secured by (i) the Collateral (as defined in the Security Agreement), and (ii) a Guaranty Agreement dated as of December 1, 2017 from the Company to the Trustee for the benefit of the Owners of the Bonds (the “Guaranty”). The Bonds are being issued for the purpose of financing a project (the “Project”) consisting of: (i) refunding the outstanding $125,000,000 New Jersey Economic Development Authority Special Facility Revenue Bonds (Port Newark Container Terminal LLC Project) Series 2003, consisting of the $62,500,000 Series 2003A and $62,500,000 Series 2003B; (ii) financing a portion of the costs of expansion, renovation, construction and equipping of the Port Newark Container Terminal at Port Newark, New Jersey, including (a) construction and installation of new truck gate facilities and equipment, (b) acquisition and installation of new customs and security technology, (c) construction and

G-1

installation of new comfort and customer service stations for truckers, (d) construction and installation of new back-up power generation facilities, (e) demolition of two existing warehouses, (f) expansion of the Terminal yard by 46 acres and renovation of approximately 34 acres of the Terminal yard, (g) expansion and improvements to the yard electrical and lighting systems, (h) expansion and improvements to the existing wharf and berths, (i) acquisition and installation of new gantry cranes and straddle carriers, (j) construction and equipping an offsite depot, and (k) various paving and improvements to existing facilities (collectively, the “2017 Facility”); (iii) paying certain costs incurred in connection with the issuance of the Bonds; and (iv) funding a deposit to a debt service reserve fund securing the payment of principal and interest on the Bonds. In our capacity as bond counsel to the Authority, we have examined the Act and the proceedings relating to the authorization and issuance of the Bonds including, among other things: (i) certified copies of the resolutions of the Authority authorizing the issuance of the Bonds, execution and delivery of the Indenture, the Lease Agreement and other necessary action; (ii) an executed Bond; (iii) original counterparts or certified copies of the executed Indenture and Lease Agreement; (iv) the opinion of Cleary Gottlieb Steen & Hamilton, LLP, counsel to the Company, dated the date hereof and addressed to McCarter & English, LLP, on which we have relied with your permission, as to the matters set forth therein; (v) the opinion of Ballard Spahr LLP dated the date hereof and addressed to the Company, on which we have relied with your permission, as to the matters set forth therein; (vi) the opinion of Riker Danzig Scherer Hyland & Perretti, LLP, counsel to the Trustee, dated the date hereof and addressed to McCarter & English, LLP, on which we have relied with your permission, as to the matters set forth therein; (vii) the Tax Representation Letter of the Company, on which we have relied in expressing the opinion set forth in the following paragraph 5; (viii) such matters of law, including, inter alia, the Act and the Internal Revenue Code of 1986, as amended (the “Code”); (ix) various certificates executed by the Authority and the Company, including a certificate pursuant to Section 148 of the Code; and (x) such other opinions, agreements, proceedings, certificates, records, approvals, resolutions and documents as to various matters with respect to the issuance of the Bonds as we have deemed necessary. For purposes of rendering the opinions set forth below, we have assumed, with your permission: (i) the accuracy and genuineness of all representations of fact made by the Authority in the Indenture and the Lease Agreement; (ii) the genuineness of the signatures of all persons (other than the officers of the Authority on the Indenture and the Lease Agreement) and the authenticity of all documents submitted to us purporting to be originals and conformity with the originals of all documents submitted to us as copies and the legal capacity of all natural persons; and (iii) the proper authorization and due execution and delivery by, and enforceability against, all parties, other than the Authority, of the documents and other instruments that we have examined. The Code imposes certain requirements which must be met on the date of issuance of the Bonds and on a continuing basis subsequent to the issuance of the Bonds in order for interest on the Bonds to be excluded from gross income for federal income tax purposes under Section 103 of the Code, including, among other things, requirements relating to rebate of arbitrage, investment limitations, use of proceeds for qualifying dock and wharf facilities, limitations with respect to payment of issuance costs and acquisition of land, used property and prohibited facilities. Failure of the Authority or the Company to comply with such requirements may cause interest on the Bonds to be included in gross income for federal income tax purposes, retroactive to the date of issuance of the Bonds. The Authority and the Company have provided written representations of their officers and agents with respect to certain material facts that are solely within their knowledge relating to the use of the proceeds of the Bonds, and the construction, use and management of the 2017 Facility. The Authority and the Company have covenanted not to take any action or fail to take any action which would cause the interest on the Bonds to be included in gross income under Section 103 of the Code. We have assumed, with your permission, continuing compliance by the Authority and the Company with the above covenants in rendering our federal income tax opinion with respect to the exclusion of interest on the Bonds from gross income for federal income tax purposes.

G-2

Based upon and subject to the foregoing and the further assumptions and qualifications set forth below, we are of the opinion that: 1. The Authority is a public body corporate and politic and an instrumentality of the State of New Jersey, duly and legally organized and validly existing under the Act, and is authorized to issue the Bonds for the purpose of financing, among other things, the Project. The Project is authorized to be financed under the Act. 2. The Bonds have been duly authorized, issued and sold by the Authority, are valid and binding special, limited obligations of the Authority, enforceable in accordance with their terms and payable as to principal, interest and all other obligations thereunder solely from, and enforceable only against, amounts payable by the Company under the Lease Agreement and the other revenues and rights assigned or pledged to the Trustee pursuant to the Indenture as security for the debt evidenced by the Bonds. 3. The Authority has the power to enter into and perform its obligations under the Indenture and Lease Agreement, which have been duly authorized or permitted by the Bond Resolution, executed in accordance with the provisions of the Bond Resolution and delivered by the Authority and are valid and binding obligations of the Authority, enforceable in accordance with their respective terms. 4. The Authority has duly and validly assigned to the Trustee, as security for the Bonds, its rights and benefits under the Company Sublease, as and to the extent provided in the Indenture. 5. Based upon existing law, interest on the Bonds is excluded from the gross income of the owners of the Bonds for federal income tax purposes pursuant to Section 103 of the Code, except as to interest on any Bond for any period during which such Bond is held by a person who is either a “substantial user” of the facilities financed with the proceeds of the Bonds or a “related person” of such “substantial user,” within the meaning of Section 147(a) of the Code. The Bonds are “specified private activity bonds” under Section 57(a)(5) of the Code and, therefore, interest on the Bonds will be taken into account as an item of tax preference, for purposes of computing alternative minimum taxable income under Section 55(a)(2) of the Code. We express no opinion regarding any federal income tax consequences arising with respect to the Bonds other than the exclusion of interest on the Bonds for federal income tax purposes and the treatment of interest on the Bonds as an item of tax preference. We also express no opinion as to the treatment for purposes of federal income taxation of interest on the Bonds upon (i) a Determination of Taxability or (ii) the occurrence of any change to the requirements contained in or referred to in the documents relevant to the Bonds or the taking of any action, subject to the terms and conditions set forth in such documents, upon the advice of bond counsel other than McCarter & English, LLP. 6. Under existing law, the interest on the Bonds and any gain on the sale thereof are exempt from the tax imposed by the existing New Jersey Gross Income Tax Act. 7. All consents, approvals and authorizations of any governmental or regulatory authority which are required to be obtained by the Authority in connection with the issuance or delivery of the Bonds or its entering into and performing its obligations under the Bonds, the Lease Agreement and the Indenture have been obtained, except that no opinion is expressed concerning compliance with state or federal securities law. The foregoing opinions are qualified to the extent that the enforceability of the Bonds, the Lease Agreement, the Indenture and the other documents mentioned herein may be limited by any applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws or equitable principles affecting rights or remedies of creditors and secured parties, from time to time in effect relating to the enforcement of creditors’ rights generally, and that the availability of specific enforcement, injunctive relief or other equitable remedies is subject to the discretion of the court before which any proceeding therefor may be brought.

G-3

The opinions expressed herein are based upon, and limited to, the laws and judicial decisions of the State of New Jersey, exclusive of conflicts of law provisions, and the federal laws and judicial decisions of the United States as of the date hereof and are subject to any amendment, repeal or other modification of the applicable laws or judicial decisions that served as the basis for our opinions, or laws or judicial decisions hereafter enacted or rendered. Our engagement by the Authority with respect to the opinions expressed herein does not require, and shall not be construed to constitute, a continuing obligation on our part to notify or otherwise inform the addressee hereof of the amendment, repeal or other modification of the applicable laws or judicial decisions that served as the basis for this opinion letter or of laws or judicial decisions hereafter enacted or rendered which impact on this opinion letter. This opinion letter is being furnished solely to the party to whom it is addressed and may not be relied upon by any other person or quoted in whole or in part or otherwise referred to without our prior written consent. This is only an opinion letter and not a warranty or guaranty of the matters discussed herein. We have made no investigation of, and express no opinion on, the legality of the proposed construction or use of the 2017 Facility under applicable federal, state or local laws or the compliance of the proposed construction or use with any such laws. Very truly yours,

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APPENDIX H

BOOK-ENTRY ONLY SYSTEM

DTC will act as securities depository for the Bonds. The Bonds will be issued as fully-registered securities registered in the name of Cede & Co. (DTC’s partnership nominee) or such other name as may be requested by an authorized representative of DTC. One fully-registered Bond will be issued for the Bonds, in the aggregate principal amount of such issue, and will be deposited with the Trustee as custodian for DTC.

DTC is a limited-purpose trust company organized under the New York Banking Law, a “banking organization” within the meaning of the New York Banking Law, a member of the Federal Reserve System, a “clearing corporation” within the meaning of the New York Uniform Commercial Code, and a “clearing agency” registered pursuant to the provisions of Section 17A of the Securities Exchange Act of 1934, as amended. DTC holds and provides asset servicing for over 3.6 million issues of U.S. and non-U.S. equity issues, corporate and municipal debt issues, and money market instruments (from over 100 countries) that DTC’s participants (“Direct Participants”) deposit with DTC. DTC also facilitates the post-trade settlement among Direct Participants of sales and other securities transactions in deposited securities, through electronic computerized book-entry transfers and pledges between Direct Participants’ accounts. This eliminates the need for physical movement of securities certificates. Direct Participants include both U.S. and non-U.S. securities brokers and dealers, banks, trust companies, clearing corporations, and certain other organizations. DTC is a wholly owned subsidiary of The Depository Trust & Clearing Corporation (“DTCC”). DTCC is the holding company for DTC, National Securities Clearing Corporation and Fixed Income Clearing Corporation, all of which are registered clearing agencies. DTCC is owned by the users of its regulated subsidiaries. Access to the DTC system is also available to others such as both U.S. and non-U.S. securities brokers and dealers, banks, trust companies, and clearing corporations that clear through or maintain a custodial relationship with a Direct Participant, either directly or indirectly (“Indirect Participants”). DTC has a Standard & Poor’s rating of AA+. The DTC Rules applicable to its Participants are on file with the Securities and Exchange Commission. More information about DTC can be found at www.dtcc.com; nothing contained in such website is incorporated into this Official Statement.

Purchases of the Bonds under the DTC system must be made by or through Direct Participants, which will receive a credit for the Bonds on DTC’s records. The ownership interest of each actual purchaser of each Bond (“Beneficial Owner”) is in turn to be recorded on the Direct and Indirect Participants’ records. Beneficial Owners will not receive written confirmation from DTC of their purchase. Beneficial Owners are, however, expected to receive written confirmations providing details of the transaction, as well as periodic statements of their holdings, from the Direct or Indirect Participant through which the Beneficial Owner entered into the transaction. Transfers of ownership interests in the Bonds are to be accomplished by entries made on the books of Direct and Indirect Participants acting on behalf of Beneficial Owners. Beneficial Owners will not receive certificates representing their ownership interests in Bonds, except in the event that use of the book-entry system for the Bonds is discontinued.

To facilitate subsequent transfers, all Bonds deposited by Direct Participants with DTC are registered in the name of DTC’s partnership nominee, Cede & Co., or such other name as may be requested by an authorized representative of DTC. The deposit of Bonds with DTC and their registration in the name of Cede & Co. or such other DTC nominee do not effect any change in beneficial ownership. DTC has no knowledge of the actual Beneficial Owners of the Bonds; DTC’s records reflect only the identity of the Direct Participants to whose accounts such Bonds are credited, which may or may not be the Beneficial Owners. The Direct and Indirect Participants will remain responsible for keeping account of their holdings on behalf of their customers.

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Conveyance of notices and other communications by DTC to Direct Participants, by Direct Participants to Indirect Participants, and by Direct Participants and Indirect Participants to Beneficial Owners will be governed by arrangements among them, subject to any statutory or regulatory requirements as may be in effect from time to time. Beneficial Owners of Bonds may wish to take certain steps to augment the transmission to them of notices of significant events with respect to the Bonds, such as redemptions, tenders, defaults, and proposed amendments to the Bond documents. For example, Beneficial Owners of Bonds may wish to ascertain that the nominee holding the Bonds for their benefit has agreed to obtain and transmit notices to Beneficial Owners. In the alternative, Beneficial Owners may wish to provide their names and addresses to the Trustee and request that copies of notices be provided directly to them. THE ISSUER, THE TRUSTEE, THE COMPANY AND THE UNDERWRITER WILL NOT HAVE ANY RESPONSIBILITY OR OBLIGATION TO SUCH DIRECT AND INDIRECT PARTICIPANTS OR THE PERSONS FOR WHOM THEY ACT AS NOMINEES WITH RESPECT TO THE BONDS.

Redemption notices shall be sent to DTC. If less than all of the Bonds within an issue are being redeemed, DTC’s practice is to determine by lot the amount of the interest of each Direct Participant in such issue to be redeemed.

Neither DTC nor Cede & Co. (nor any other DTC nominee) will consent or vote with respect to Bonds unless authorized by a Direct Participant in accordance with DTC’s Procedures. Under its usual procedures, DTC mails an Omnibus Proxy to the Issuer as soon as possible after the record date. The Omnibus Proxy assigns Cede & Co.’s consenting or voting rights to those Direct Participants to whose accounts the Bonds are credited on the record date (identified in a listing attached to the Omnibus Proxy).

Principal and interest payments on the Bonds will be made to Cede & Co., or such other nominee as may be requested by an authorized representative of DTC. DTC’s practice is to credit Direct Participants’ accounts upon DTC’s receipt of funds and corresponding detail information from the Issuer or the Trustee, on payable dates in accordance with their respective holdings shown on DTC’s records. Payments by Participants to Beneficial Owners will be governed by standing instructions and customary practices, as is the case with securities held for the accounts of customers in bearer form or registered in “street name,” and will be the responsibility of such Participant and not of DTC, the Trustee, or the Issuer, subject to any statutory or regulatory requirements as may be in effect from time to time. Payment of principal and interest to Cede & Co. (or such other nominee as may be requested by an authorized representative of DTC) is the responsibility of the Issuer or the Trustee, disbursement of such payments to Direct Participants will be the responsibility of DTC, and disbursement of such payments to the Beneficial Owners will be the responsibility of Direct and Indirect Participants.

DTC may discontinue providing its services as securities depository with respect to the Bonds at any time by giving reasonable notice to the Issuer or the Trustee. In addition, the Issuer, or the Company on behalf of the Issuer, may terminate, upon provision of notice to the Trustee, the services of DTC with respect to the Bonds. Under such circumstances, in the event that a successor securities depository is not obtained, Bonds are required to be printed and delivered as described in the Indenture.

THE ISSUER, THE TRUSTEE, THE COMPANY AND THE UNDERWRITER SHALL NOT HAVE ANY RESPONSIBILITY OR OBLIGATION TO ANY DIRECT OR INDIRECT PARTICIPANT, ANY BENEFICIAL OWNER OR ANY OTHER PERSON CLAIMING A BENEFICIAL OWNERSHIP INTEREST IN THE BONDS UNDER OR THROUGH DTC OR ANY DTC PARTICIPANT, OR ANY OTHER PERSON WHICH IS NOT SHOWN ON THE REGISTRATION BOOKS OF THE TRUSTEE AS BEING A HOLDER, WITH RESPECT TO THE ACCURACY OF ANY RECORDS MAINTAINED BY DTC OR ANY DIRECT OR INDIRECT PARTICIPANT; THE PAYMENT BY DTC OR ANY DIRECT OR INDIRECT PARTICIPANT OF

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ANY AMOUNT IN RESPECT OF THE PRINCIPAL OF, PURCHASE PRICE, PREMIUM, IF ANY, OR INTEREST ON THE BONDS; ANY NOTICE WHICH IS PERMITTED OR REQUIRED TO BE GIVEN TO OWNERS UNDER THE INDENTURE; THE SELECTION BY DTC OR ANY DIRECT OR INDIRECT PARTICIPANT OF ANY PERSON TO RECEIVE PAYMENT IN THE EVENT OF A PARTIAL REDEMPTION OF THE BONDS; ANY CONSENT GIVEN OR OTHER ACTION TAKEN BY DTC AS AN OWNER; OR ANY OTHER PROCEDURES OR OBLIGATIONS OF DTC UNDER THE BOOK-ENTRY SYSTEM.

SO LONG AS CEDE & CO. (OR SUCH OTHER NOMINEE AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC) IS THE REGISTERED OWNER OF THE BONDS, AS NOMINEE OF DTC, REFERENCES HEREIN TO THE HOLDERS OR OWNERS OR REGISTERED HOLDERS OR REGISTERED OWNERS OF THE BONDS MEANS CEDE & CO., AS AFORESAID, AND DOES NOT MEAN THE BENEFICIAL OWNERS OF THE BONDS.

The foregoing description of the procedures and record keeping with respect to beneficial ownership interests in the Bonds, payment of principal, interest and other payments on the Bonds to Direct and Indirect Participants or Beneficial Owners, confirmation and transfer of beneficial ownership interest in such Bonds and other related transactions by and between DTC, the Direct and Indirect Participants and the Beneficial Owners is based solely on information provided by DTC. Accordingly, no representations can be made concerning these matters, and neither the Direct nor Indirect Participants nor the Beneficial Owners should rely on the foregoing information with respect to such matters, but should instead confirm the same with DTC.

The Issuer may decide to discontinue use of the system of book-entry-only transfers through DTC (or a successor securities depository). In that event, Security certificates will be printed and delivered to DTC.

The information in this section concerning DTC and DTC’s book-entry system has been obtained from sources that Issuer believes to be reliable, but Issuer takes no responsibility for the accuracy thereof.

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NEW JERSEY ECONOMIC DEVELOPMENT AUTHORITY • Special Facility Revenue and Refunding Bonds (Port Newark Container Terminal L.L.C. Project), Series 2017