Exhibit 10.12


 





 






 



  


NEW JERSEY ECONOMIC DEVELOPMENT AUTHORITY


 


AND


 


BAYONNE INDUSTRIES, INC.,

IMTT-BAYONNE, AND

IMTT-BC


 


 






 


LOAN AGREEMENT


 


 






 


Relating to


 


$36,300,000


New Jersey Economic Development Authority


Revenue Refunding Bonds


(IMTT-Bayonne Project)


Series 2015


 


 






 


Dated as of May 1, 2015


 


The interest of the
NEW JERSEY ECONOMIC DEVELOPMENT AUTHORITY (the “Authority”) in this Loan Agreement has been assigned (except for “Reserved
Rights” defined in this Loan Agreement) pursuant to the Indenture of Trust dated as of the date hereof from the Authority
to U.S. BANK NATIONAL ASSOCIATION, as trustee (the “Trustee”), and is subject to the security interest of the Trustee
thereunder.


 





 






 



 





    	 



    	 



    

 


LOAN AGREEMENT


 


TABLE OF CONTENTS


 


(This Table of Contents is not a part of
the Loan Agreement and is only for convenience of reference.)


 


	ARTICLE I DEFINITIONS	3
	 	 	 
	Section 1.01	Definitions.	3
	Section 1.02	Uses of Phrases.	8
	 	 	 
	ARTICLE II REPRESENTATIONS, COVENANTS AND WARRANTIES	9
	 	 	 
	Section 2.01	Representations, Covenants and Warranties of the Authority.	9
	Section 2.02	Representations, Covenants and Warranties of the Company.	10
	Section 2.03	Tax-Exempt Status of the Bonds.	12
	Section 2.04	Notice of Determination of Taxability.	12
	 	 	 
	ARTICLE III ACQUISITION AND CONSTRUCTION OF THE PROJECT; ISSUANCE OF THE BONDS	13
	 	 	 
	Section 3.01	Agreement to Refund the Refunded Bonds.	13
	Section 3.02	Agreement to Issue the Bonds; Application of Bond Proceeds.	13
	Section 3.03	Disbursements from the Project Fund.	13
	Section 3.04	Furnishing Documents to the Trustee.	14
	Section 3.05	Company Required to Pay in Event Project Fund Insufficient.	14
	Section 3.06	Special Arbitrage Certifications.	15
	 	 	 
	ARTICLE IV LOAN PROVISIONS; SUBSTITUTE CREDIT FACILITY	16
	 	 	 
	Section 4.01	Loan of Proceeds.	16
	Section 4.02	Amounts Payable.	16
	Section 4.03	Obligations of Company Unconditional.	19
	Section 4.04	Assignment to Trustee.	20
	Section 4.05	Additional Amounts Payable by the Company.	20
	Section 4.06	Limitation of Liability.	20
	Section 4.07	Substitute Credit Facility.	21
	Section 4.08	Substitute Confirming Letter of Credit.	21
	 	 	 
	ARTICLE V PREPAYMENT AND REDEMPTION	22
	 	 	 
	Section 5.01	Prepayment and Redemption.	22
	 	 	 
	ARTICLE VI SPECIAL COVENANTS	23
	 	 	 
	Section 6.01	Condition of the Prior Project.	23
	Section 6.02	Access to the Project.	24
	Section 6.03	Further Assurances and Corrective Instruments.	24
	Section 6.04	Authority and Company Representatives.	24
	Section 6.05	Financing Statements.	24
	Section 6.06	Covenant to Provide Ongoing Disclosure.	24


 




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	Section 6.07	Notice of Control.	24
	Section 6.08	Acknowledgement and Covenant Regarding Commercial Paper or Long Term Period.	25
	Section 6.09	Environmental Matters.	25
	Section 6.10	Tax Covenants.	25
	Section 6.11	Public Purpose Covenants.	29
	Section 6.12	Agreement Not to Change the Prior Project.	29
	Section 6.13	Certificates of No Default and Other Information.	30
	Section 6.14	Costs and Expenses.	30
	Section 6.15	Maintain Existence; Covenant Against Sale and Removal.	31
	Section 6.16	Governmental Approvals.	31
	Section 6.17	Prohibited Facilities.	31
	Section 6.18	Compliance with Authority Requests.	31
	Section 6.19	Project Occupant Applications.	32
	Section 6.20	Project Sign.	32
	Section 6.21	Advances by Authority.	32
	Section 6.22	Affirmative Action and Prevailing Wage Regulations.	32
	Section 6.23	Relocation of the Prior Project.	34
	Section 6.24	Compliance with Laws.	34
	 	 	 
	ARTICLE VII ASSIGNMENT, SELLING, LEASING; INDEMNIFICATION; REDEMPTION	35
	 	 	 
	Section 7.01	Assignment, Selling and Leasing.	35
	Section 7.02	Release and Indemnification Covenants.	35
	Section 7.03	Authority to Grant Security Interest to Trustee.	36
	Section 7.04	Property Insurance Required.	37
	Section 7.05	Liability Coverages Required.	37
	Section 7.06	General Insurance Provisions.	38
	Section 7.07	Damage, Destruction or Condemnation.	39
	Section 7.08	Indemnification of Trustee.	40
	 	 	 
	ARTICLE VIII DEFAULTS AND REMEDIES	41
	 	 	 
	Section 8.01	Defaults Defined.	41
	Section 8.02	Remedies on Default.	42
	Section 8.03	Additional Authority Remedies on Default.	43
	Section 8.04	No Remedy Exclusive.	43
	Section 8.05	Agreement to Pay Attorneys’ Fees and Expenses.	44
	Section 8.06	No Additional Waiver Implied by One Waiver.	44
	Section 8.07	Default by Authority - Limited Liability.	44
	 	 	 
	ARTICLE IX MISCELLANEOUS	46
	 	 	 
	Section 9.01	Term of Agreement.	46
	Section 9.02	Notices.	46
	Section 9.03	Binding Effect.	47
	Section 9.04	Severability.	47
	Section 9.05	Amounts Remaining in Funds.	47
	Section 9.06	Amendments, Changes and Modifications.	47


 




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	Section 9.07	Execution in Counterparts.	47
	Section 9.08	Applicable Law.	47
	Section 9.09	Captions.	47
	Section 9.10	Survival of Authority Reserved Rights.	48
	Section 9.11	Company Representative.	48
	Section 9.12	Intention of Parties.	48
	Section 9.13	Company to Perform Certain Covenants Under Indenture.	48
	Section 9.14	Amendments to Law.	48
	Section 9.15	Right to Cure Defaults Under Indenture.	49
	Section 9.16	Application of New Jersey Contractual Liability Act.	49


 


EXHIBIT A – [Reserved]


EXHIBIT B – Form of Requisition


EXHIBIT C – Addendum to Construction
Contract


EXHIBIT D – Contractor’s Certificate
and Agreement


EXHIBIT E – Contractor’s Completion
Certificate


 




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LOAN AGREEMENT


 


THIS LOAN AGREEMENT,
dated as of May 1, 2015 (this “Agreement”), among the New
Jersey Economic Development Authority (the “Authority”), a public body corporate and politic constituting
an instrumentality of the State of New Jersey (the “State”), and BAYONNE INDUSTRIES, INC. (“BI”),
a New Jersey corporation, IMTT-BAYONNE (“IBA”), a Delaware partnership, and IMTT-BC (“IBC”),
a Delaware partnership, a partnership organized and existing under the laws of the State of Delaware (jointly, severally and
collectively, the “Company”);


 


WITNESSETH:


 


WHEREAS, the New
Jersey Economic Development Authority Act, constituting Chapter 80 of the Pamphlet Laws of 1974 of the State, approved on August
7, 1974, as amended and supplemented (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 within 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 promoting enterprises by making available financial assistance to locate, remain or expand
within the State; and


 


WHEREAS, the Authority,
to accomplish the purposes of the Act, is empowered to extend credit to such employment promoting enterprises by making loans upon
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; and


 


WHEREAS, the Authority
previously issued its (i) Variable Rate Demand Revenue Refunding Bonds (El Dorado Terminals Company Project) Series 1999B (the
“1999 Bonds”); and (ii) Dock Facility Revenue Refunding Bonds (Bayonne/IMTT-Bayonne Project), Series 1993A, Dock Facility
Revenue Refunding Bonds (Bayonne/IMTT-Bayonne Project), Series 1993B and Dock Facility Revenue Refunding Bonds (Bayonne/IMTT-Bayonne
Project), Series 1993C (collectively the “1993 Bonds” and, together with the 1999 Bonds, the “Refunded Bonds”);
and


 


WHEREAS, the Authority
loaned the proceeds of the Refunded Bonds to one or more of BI, IBA and IBC, such proceeds having been used by the Company (i)
in the case of the 1999 Bonds, as part of a series of refundings of Authority bond issues that originally financed the costs of
certain dock and wharf facilities which comprise a storage and distribution terminal for chemical products consisting of storage
tanks, a warehouse, an office building and ancillary equipment needed to safely unload, store and load products from and to ships,
barges, drums, tanks, railroad cars and trucks, and (ii) in the case of the 1993 Bonds, to finance the acquisition, construction
and rehabilitation of the dock and wharf facilities and related infrastructure, including the improvement and repair of storage
tanks for petroleum products, all located in the City of Bayonne, in the County of Hudson, New Jersey (collectively, the “Prior
Project”); and


 




    	 



    	 



    

 


WHEREAS, in furtherance
of the purposes of the Act and as an inducement to the Company to undertake a project (the “Project”) consisting of
the current refunding of the Refunded Bonds, the Authority has duly accepted the application of the Company, dated November 14,
2014 (the “Application”), for assistance in the financing of the Project by resolution duly adopted by the Authority
on December 9, 2014 (the “Bond Resolution”); and


 


WHEREAS, in
order to finance a portion of the costs of the Project, the Authority has duly authorized the issuance of its Revenue Refunding
Bonds (IMTT-Bayonne Project), Series 2015 (the “Bonds”) pursuant to (i) the Act, (ii) the Bond Resolution, and (iii)
the Indenture, dated as of May 1, 2015 (the “Indenture”), by and between the Authority and U.S. Bank National Association,
as trustee (the “Trustee”); and


 


WHEREAS, the
proceeds of the Bonds will be applied towards the costs of the Project incurred by the Company; and


 


WHEREAS, the
proceeds of the Bonds will be loaned by the Authority to the Company, jointly and severally, pursuant to the terms of this Agreement;
and


 


WHEREAS, the
principal, redemption price, purchase price, and interest on the Bonds and other amounts due under the Indenture shall be payable
from loan repayments and all additional sums payable jointly and severally by the Company pursuant to, and secured by, this Agreement;
and


 


WHEREAS, contemporaneously
with the issuance of the Bonds, the Authority will assign its rights under this Agreement to the Trustee, subject to the Reserved
Rights (as hereinafter defined); and


 


WHEREAS, the
Bonds shall be special, limited obligations of the Authority, payable solely from the revenues or other receipts, funds or moneys
to be derived by the Authority under this Agreement, and from the earnings on all of the amounts held by the Trustee under the
Indenture (except the Rebate Fund); 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 performed precedent to and in the execution and delivery of this Agreement and in the issuance of the 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
revenues or other receipts, funds or moneys to be derived by the Authority under this Agreement or the Indenture, and from the
earnings on all amounts held by the Trustee under the Indenture (except the Rebate Fund) or as otherwise limited by the terms of
the Indenture:


 




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ARTICLE I



DEFINITIONS


 


Section 1.01   Definitions.


 


All capitalized, undefined
terms used herein shall have the same meanings as used in Article I of the hereinafter defined Indenture or
in the recitals to this Agreement, as applicable. In addition, the following words and phrases shall have the following meanings:


 


“Administrative
Agent” means SunTrust Bank, or its permitted assigns and successors, as Administrative Agent under the Revolving Credit
Agreement.


 


“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 a good
faith effort to hire minority workers or to cause minority workers to be hired, for the 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 and assure compliance.


 


“Application”
means the Company’s Application for Refunding Bonds submitted to the Authority, as amended.


 


“Bond Documents”
means the Indenture, this Agreement, the Representation Letter and the Arbitrage Certificate.


 


“Company Representative”
means (a) the Person or Persons authorized to act on behalf of the Company by the governing body of the Company as set forth in
a written certificate furnished to the Authority and the Trustee on or prior to the Date of Issuance, or (b) such other Person
at the time and from time to time designated by written certificate furnished to the Authority and the Trustee, in each case, containing
the specimen signature of such Person and signed on behalf of the Company by a Company Representative. Such certificate may designate
an alternate or alternates who may act as a Company Representative.


 


“Company’s
Completion Certificate” shall have the meaning set forth in Section 6.06(ii) of the Indenture.


 


“Completion
Date” means the date of substantial completion of the construction of any rebuilding, replacement, repair or restoration
of the Prior Project as such date shall be certified as provided in Section 6.06(ii) of the Indenture.


 


“Confirming
Bank” means the provider of a Confirming Letter of Credit or a Substitute Confirming Letter of Credit.


 




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“Confirming
Letter of Credit” means a letter of credit issued by a Confirming Bank to the Trustee relating to the Bonds, including
any Substitute Confirming Letter of Credit provided by the Company in accordance with Section 4.05 of the Agreement.


 


“Construction
Contracts” means the construction contracts and such other agreements between the Company and third parties for the construction
of the rebuilding, replacement, repair or restoration of the Prior Project, and 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 rebuilding, replacement, repair or restoration of the Prior
Project 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 rebuilding, replacement, repair or restoration of the Prior Project.


 


“Contractor’s
Certificate and Agreement” means the instrument executed by any contractor in substantially the form attached hereto
as Exhibit D, wherein a 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 a good faith 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.


 


“Contractor’s
Completion Certificate” means the certificate or certificates executed by the contractor and any subcontractors, upon
substantial completion of Construction, in substantially the form attached hereto as Exhibit E, wherein the Contractor certifies
as to such matters as the Authority shall reasonably require, including, without limitation, that the contractor has made a good
faith 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.


 


“Cost”
with respect to the Project shall be deemed to include all items permitted to be financed under the provisions of the Code and
the Act.


 


“Default”
means any Default under this Agreement as specified in and defined by Section 8.01 hereof.


 


“Indenture”
means the Indenture of Trust dated as of even date hereof between the Authority and the Trustee, pursuant to which the Bonds are
authorized to be reissued, and any amendments and supplements thereto.


 




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“Issuance Costs”
means all costs that are treated as costs of issuing or carrying the Bonds under existing Treasury Department regulations and rulings,
including, but not limited to, (a) commitment and origination fees payable to the Bondholders; (b) counsel fees (including
bond counsel, Authority’s counsel, Bondholder’s counsel, Administrative Agent’s counsel and Company counsel,
as well as any other specialized counsel fees incurred in connection with the issuance of the Bonds); (c) financial advisory
fees incurred in connection with the issuance of the Bonds; (d) Trustee fees incurred in connection with the issuance of the
Bonds; (e) paying agent and certifying and authenticating agent fees related to issuance of the Bonds; (f) accountant
fees related to the issuance of the Bonds; (g) printing costs of the Bonds; (h) publication costs associated with the
financing proceedings; and (i) costs of engineering and feasibility studies necessary to the reissuance of the Bonds.


 


“Net Proceeds”
means the proceeds of the Bonds reduced by amounts in a reasonably required reserve or replacement fund.


 


“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 in which the project is located.


 


“Qualified Project
Costs” means Costs and expenses of the Project which constitute land costs or costs for property of a character subject
to the allowance for depreciation excluding specifically working capital and inventory costs, provided, however, that (i) Issuance
Costs shall not be deemed to be Qualified Project Costs; (ii) interest during the Construction Period shall be allocated between
Qualified Project Costs and other Costs and expenses to be paid from the proceeds of the Bonds; (iii) interest following the
Construction Period shall not constitute a Qualified Project Cost; (iv) letter of credit fees and municipal bond insurance
premiums which represent a transfer of credit risk shall be allocated between Qualified Project Costs and other costs and expenses
to be paid from the proceeds of the Bonds; and (v) letter of credit fees and municipal bond insurance premiums which do not
represent a transfer of credit risk shall not constitute Qualified Project Costs.


 


“Rebate Amount”
means with respect to a 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.


 


“Rebate Expert”
means any of the following chosen by the Company: (i) Bond Counsel, (ii) any national firm of certified public accountants approved
by the Authority, (iii) any reputable firm which offers to the tax-exempt bond industry rebate calculation services, holds itself
out as having expertise in that area and is approved by the Authority, or (iv) such other person approved by Bond Counsel, which
may include an employee of the Company.


 


“Representation
Letter” means the Company’s certificate delivered on the Date of Issuance to enable Bond Counsel to determine that
interest on the Bonds is excluded from gross income for federal income tax purposes.


 




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“Requisition”
means a written request for a disbursement from the Project Fund, signed by a Company Representative, substantially in the form
attached hereto as Exhibit “B” and satisfactorily completed as contemplated by said form.


 


“Reserved Rights”
means the following rights and remedies of the Authority under this Agreement which the Authority has assigned to the Trustee under
the Indenture, but which are also held and retained by the Authority along with the Trustee whether or not the Trustee shall have
exercised or purported to exercise such rights and remedies, without limiting the obligation of the Trustee to do so (unless otherwise
indicated herein as solely a right or remedy of the Authority in which case they may be enforced only by the Authority):


 


(a)          To
require insurance coverage for the Authority pursuant to Article VII hereof;


 


(b)          To
enforce the Company’s obligation to operate or cause the Prior Project to be operated as an authorized “project”
for a purpose consistent with the Act pursuant to Sections 2.02(f) and 6.12 hereof and to cause the Company to prepay the Loan
Repayments in accordance with Section 5.01 hereof and as set forth in Article III of the Indenture; this is solely a right of the
Authority;


 


(c)          To
obtain the payment of all of the Authority’s fees and expenses pursuant to Sections 4.02(c) and 6.14 hereof and the Note;
this is solely a right of the Authority;


 


(d)          To
receive certifications, reports and other information and to inspect the Prior Project pursuant to Sections 6.02 and 6.13 hereof;


 


(e)          To
enforce the restrictions on encumbrances, sales, leases, dispositions, etc. of the Prior Project pursuant to Section 6.15 hereof;
this is solely a right of the Authority;


 


(f)           To
require the payment of all attorneys’ fees and expenses of the Authority in the event of default by the Company pursuant
to Section 8.05 hereof; this is solely a right of the Authority;


 


(g)          To
enforce the restriction on assignment of this Agreement by the Company pursuant to Sections 6.15 and 7.01 hereof; this is solely
a right of the Authority;


 


(h)          To
enforce the Company’s representations and/or covenants under Sections 2.02(k) (regarding the financial assistance of the
Authority as an inducement to undertake the Project), 6.01 and 6.12 (regarding the nature of the Prior Project), 6.10 (regarding
the excludability of interest from gross income and arbitrage rebate), 6.02 (regarding inspection of the Prior Project), 6.11 (regarding
public purpose covenants), 6.13(c) (regarding its annual tax compliance certification), 6.15 (regarding maintenance of corporate
existence of the Company), 6.20 (regarding the project sign), 6.22 (regarding affirmative action and prevailing wage regulations),
and 6.24 (regarding compliance with laws);


 




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(i)          To
agree, or not to agree, in its sole discretion to any amendments, modifications or supplements to this Agreement or the Indenture
in its capacity as a party to such agreements; this is solely a right of the Authority;


 


(j)          To
receive all notices required to be given to the Authority under this Agreement and the Indenture;


 


(k)          To
indemnification of the Authority pursuant to Section 7.02 hereof; this is solely a right of the Authority;


 


(l)          To
enforcement of the covenant by the Company concerning disclosure as described in Sections 2.02(e) and 6.08 hereof;


 


(m)         To
enforcement of the covenant by the Company not to relocate the Prior Project or any Authority-financed assets out of the State
as set forth in Section 6.23 hereof; this is solely a right of the Authority;


 


(n)          To
give all approvals and consents required by the Authority pursuant to this Agreement and the Indenture;


 


(o)          To
pursue all rights and remedies under Article VIII with respect to the foregoing rights under this Agreement;


 


(p)          To
the survival of covenants, agreements, representations and warranties made by or on behalf of the Company herein or made in certificates
delivered pursuant hereto so long as the obligations hereunder are outstanding and unpaid, and the binding of any successor or
assign to the Company thereto, and inurement to the benefit of the Authority or its successors and assigns as described in Section
9.10;


 


(q)          To
the Company’s timely payment of all sums and amounts as will enable the Authority to meet all its obligations under the Bonds
or the Indenture pursuant to Section 4.02 hereof;


 


(r)           To
the Company’s agreement to pay the balance of the cost of any rebuilding, replacement, repair or restoration of the Prior
Project if the Authority Loan is not sufficient to pay all costs of such Project pursuant to Section 3.05 hereof; and


 


(s)          To
the agreement regarding application of the New Jersey Contractual Liability Act set forth in Section 9.16 hereof.


 


“Revolving Credit
Agreement” means the Credit Agreement dated as of May 21, 2015, by and among ITT Holdings LLC, an affiliate of the Company,
as US borrower thereunder, IMTT-Quebec Inc. and IMTT-NTL, Ltd. as Canadian borrowers thereunder, the lenders party thereto and
the Administrative Agent, as amended, amended and restated, supplemented or otherwise modified from time to time.


 


“State”
means the State of New Jersey.


 




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“Substitute
Confirming Letter of Credit” means a letter of credit, line of credit, insurance policy or other credit facility securing
the payment of the principal and Purchase Price of, redemption premium (if any) and interest on the Bonds, delivered to the Trustee
in accordance with Section 4.05 hereof.


 


“Tax Covenants”
means the covenants of the Company contained in Section 6.10 of this Agreement. 


 


“Term of Agreement”
means the term of this Agreement as specified in Section 9.01 hereof.


 


Section 1.02   Uses
of Phrases.


 


Words of the masculine
gender shall be deemed and construed to include correlative words of the feminine and neuter genders. Unless the context shall
otherwise indicate, the words “Bond,” “Bondholder,” “Owner,” “registered owner”
and “person” shall include the plural as well as the singular number, and the word “person” shall include
corporations and associations, including public bodies, as well as persons. Any percentage of Bonds, specified herein for any purpose,
is to be figured on the unpaid principal amount thereof then Outstanding. All references herein to specific Sections of the Code
refer to such Sections of the Code and all successor or replacement provisions thereto.


 




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ARTICLE II


 


REPRESENTATIONS,
COVENANTS AND WARRANTIES


 


Section 2.01   Representations,
Covenants and Warranties of the Authority.


 


The Authority represents,
covenants and warrants that:


 


(a)  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 Prior 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 Bonds.


 


(b)  To
finance the Cost of the Project, the Authority proposes to issue $36,300,000 aggregate principal amount of its Bonds which will
mature and bear interest as set forth in Article II of the Indenture and which will be subject to redemption and repurchase as
set forth in Article III of the Indenture. The Bonds will be issued under the Indenture, pursuant to which the Authority’s
interest in this Agreement (except its rights under Sections 4.02(c), 4.05, 6.10, 6.14, 6.21, 7.02, and 8.05 hereof 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, redemption price, if any,
and interest on the Bonds; provided, however that the Authority has not assigned to the Trustee the right to grant or withhold
consent pursuant to Sections 6.15 and 7.01 hereof or the additional remedies set forth in Section 8.03 hereof. The issuance of
the Bonds and the execution of this Agreement and the Indenture have been approved by the Authority at a duly constituted meeting.


 


(c)  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.


 


(d)  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 amounts payable hereunder during the term of this Agreement, except as set
forth in this Section, without the prior written consent of the Company and the Trustee and any purported disposition without such
consent shall be void.


 


(e)  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 Bonds will further the public purposes of the Act.


 




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(f)  The
Authority hereby covenants to comply with the provisions of the Code applicable to the Bonds as in effect on the Date of Issuance
and not to take any action or fail to take any action which would cause the interest on the Bonds to lose the exclusion from gross
income for purposes of federal income taxation (except any Bond for any period during which such Bond is held by a “substantial
user” of a facility refinanced with the proceeds of the 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 as in effect on the Date of Issuance in order to assure that interest paid on the Bonds (except any Bond for any period
during which such Bond is held by a “substantial user” of a facility refinanced with the proceeds of the 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 as in effect on the Date of Issuance 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.


 


Section 2.02   Representations,
Covenants and Warranties of the Company.


 


The Company represents,
covenants and warrants that:


 


(a)  The
Company is (i) with respect to BI, a corporation duly organized and validly existing under the laws of the State, and (ii) with
respect to each of IBA and IBC, a partnership duly organized and validly existing under the laws of the State of Delaware. The
Company is not in violation of any provision of its certificate of incorporations, by-laws or partnership agreement, as applicable,
has the power to enter into this Agreement, and has duly authorized the execution and delivery of this Agreement, and is qualified
to do business and is in good standing under the laws of the State of New Jersey.


 


(b)  The
Company agrees that during the Term of Agreement it will maintain its existence, will not dissolve or otherwise dispose of all
or substantially all of its assets and will not consolidate with or merge into another legal entity or permit one or more other
legal entities to consolidate with or merge into it, without (i) the prior written consent of the Credit Provider (during any Credit
Facility Period), the Administrative Agent (during any Bank Rate Period), the Trustee (during any Interest Period that is not a
Credit Facility Period or a Bank Rate Period) and, unless otherwise permitted pursuant to Section 6.15 hereof, the
Authority, and (ii) an opinion of Bond Counsel to the effect that such action, in and of itself, will not adversely affect the
excludability of interest on the Bonds from gross income for federal income tax purposes.


 


(c)  Neither
the execution and delivery of this Agreement, nor the consummation of the transactions contemplated hereby and thereby, nor the
fulfillment of or compliance with the terms and conditions hereof or thereof conflicts with or results in a breach of the terms,
conditions, or provisions of any agreement or instrument to which the Company is now a party or by which the Company is bound,
or constitutes a default under any of the foregoing, or results in the creation or imposition of any lien, charge or encumbrance
whatsoever upon any of the property or assets of the Company under the terms of any such instrument or agreement.


 




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(d)  There
is no action, suit, proceeding, inquiry or investigation, at law or in equity, before or by any court, public board or body, known
to be pending or threatened against or affecting the Company or any of its officers, nor to the best knowledge of the Company is
there any basis therefor, wherein an unfavorable decision, ruling, or finding would materially adversely affect the transactions
contemplated by this Agreement or which would adversely affect, in any way, the validity or enforceability of the Bonds, this Agreement,
or any agreement or instrument to which the Company is a party, used or contemplated for use in the consummation of the transactions
contemplated hereby.


 


(e)  The
Project is of the type authorized and permitted by the Act, and its estimated Cost is not greater than $50,000,000.


 


(f)  The
proceeds from the sale of the Bonds will be used only for payment of Costs of the Project.


 


(g)  The
Company will use due diligence to cause the Project to be operated in accordance with the laws, rulings, regulations and ordinances
of the State and the departments, agencies and political subdivisions thereof. The Company has obtained or will obtain all requisite
approvals of the State and of other federal, state, regional and local governmental bodies for the acquisition, construction, improving
and equipping of the Project.


 


(h)  The
Company will fully and faithfully perform all the duties and obligations which the Authority has covenanted and agreed in the Indenture
to cause the Company to perform and any duties and obligations which the Company is required in the Indenture to perform. The foregoing
shall not apply to any duty or undertaking of the Authority which by its nature cannot be delegated or assigned.


 


(i)  No
written factual information heretofore or contemporaneously furnished, relating to the Company, the Project, the Prior Project
or the Bond Documents, which has been supplied by or at the direction of the Company to the Trustee, the Authority or any purchaser
of the Bonds, when taken as a whole, (i) is untrue, incorrect or incomplete in any material respect, (ii) 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 or (iii) omits to state a material fact necessary to make the statements contained therein not misleading
or incomplete in light of the circumstances under which they were made. All written factual information hereafter furnished by
or on behalf of the Company, to the Trustee, the Authority or any Owner of any Bonds, when taken as a whole, will be true and accurate
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. The Company acknowledges that the Trustee, the Authority and the purchasers of the 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 Bonds.


 




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(j)  The
Company has maintained all necessary approvals, licenses and permits from any and all governmental agencies requisite to operation
of the Prior Project.


 


(k)  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 continue to operate the Prior Project in the State.


 


(l)  The
Company represents that it has complied in all material respects with the affirmative action and prevailing wage requirements of
the Authority with respect to and that were in effect at the time of the initial construction of the Prior Project.


 


Section 2.03   Tax-Exempt
Status of the Bonds.


 


(a)  The
Company hereby represents, warrants and agrees that the Representation Letter is true, accurate, and, to the knowledge of the Company,
complete in all material respects as of the date on which executed and delivered.


 


(b)  The
Company hereby represents, warrants and agrees that it 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 Bonds to be includable in the gross income of the recipients thereof for federal income tax purposes (except any Bond for
any period during which such Bond is held by a “substantial user” of a facility refinanced with the proceeds of the
Bonds or a “related person” as such terms are defined in Section 147(a) of the Code).


 


Section 2.04   Notice
of Determination of Taxability.


 


Promptly after the
Company first becomes aware of any Determination of Taxability, the Company shall give written notice thereof to the Authority,
the Administrative Agent and the Trustee.


 




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ARTICLE III


 


ACQUISITION AND CONSTRUCTION


OF THE PROJECT;


ISSUANCE OF THE BONDS


 


Section 3.01   Agreement
to Refund the Refunded Bonds.


 


The Company agrees to
make all contracts and do all things necessary for the refunding of the Refunded Bonds.


 


Section 3.02   Agreement
to Issue the Bonds; Application of Bond Proceeds.


 


In order to provide funds
for the payment of the Cost of the Project, the Authority, concurrently with the execution of this Agreement, will issue, sell,
and deliver the Bonds and cause the entirety of the proceeds of the Bonds, in the amount of $36,300,000, to be transferred to U.S.
Bank National Association, as trustee for the Refunded Bonds, and applied to the redemption of the Refunded Bonds on May 21, 2015.


 


Section 3.03   Disbursements
from the Project Fund.


 


(a)  The
Company shall construct and equip any rebuilding, replacement, repair or restoration of the Prior Project or cause the same to
be constructed and equipped, and to that end will enter into contracts providing for completion of all work, improvements and personal
property included in such rebuilding, replacement, repair or restoration of the Prior Project. Payments shall be made by the Trustee
under the Indenture for the Costs of construction, 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 any Bonds which are deposited
in the Project Fund shall be expended only for the Cost of construction or for payment of such Bonds as provided in the Indenture.
No part of the Authority’s funds for any rebuilding, replacement, repair or restoration of the Prior 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 any rebuilding, replacement, repair or restoration of the Prior 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 any rebuilding, replacement, repair or restoration of the Prior 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, equipping, constructing, renovations and conversions relating to such Project; and (ii) it shall cause such Project
to be completed in accordance with the Construction Contracts, if any, therefor and shall enforce all such Construction Contracts
in a commercially reasonable manner.


 




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(c)  The
Company further agrees that it shall not permit or consent to any material amendments, modifications, supplements, changes and
deletions (“Change Order”) relating to the rebuilding, replacement, repair or restoration of the Prior Project which
are included in the Construction Contracts or any estimate, schedule or plans and specifications therefor (collectively, the “amendments”)
if such Change Order will adversely affect the exclusion of interest on the Bonds from gross income for federal income tax purposes
or the Project from qualifying as an “authorized project” under the Act.


 


(d)  The
Company further agrees during the term of the Construction Contract to maintain or cause the contractor or its subcontractors to
maintain reasonable and customary insurance coverage for any rebuilding, replacement, repair or restoration of the Prior Project.
To the extent construction is not complete, the Company shall request the contractor or its subcontractor to name the Authority
as an additional insured under each such policy.


 


(e)  The
Company shall with all reasonable dispatch proceed to construct any rebuilding, replacement, repair or restoration of the Prior
Project and will use reasonable efforts to cause construction of any rebuilding, replacement, repair or restoration of the Prior
Project to be completed on or before a date certain. Completion shall be evidenced by the Company’s Completion Certificate
which shall comply with the requirements of Section 6.06 of the Indenture; provided that failure to complete any rebuilding, replacement,
repair or restoration of the Prior Project by such date shall not constitute a Default hereunder if the Company shall have used
reasonable efforts.


 


Section 3.04   Furnishing
Documents to the Trustee.


 


The Company agrees to
cause such Requisitions to be directed to the Trustee as may be necessary to effect payments out of the Project Fund in accordance
with Section 3.03 hereof.


 


Section 3.05   Company
Required to Pay in Event Project Fund Insufficient.


 


In the event the moneys
in the Project Fund available for payment of the Costs of the rebuilding, replacement, repair or restoration of the Prior Project
should not be sufficient to pay the Costs of such rebuilding, replacement, repair or restoration of the Prior Project in full,
the Company agrees to complete such rebuilding, replacement, repair or restoration of the Prior Project and to pay that portion
of the Costs thereof in excess of the moneys available therefor in the Project Fund or shall otherwise satisfy the requirements
of Section 7.07 hereof. The Authority does not make any warranty, either express or implied, that the moneys paid
into the Project Fund and available for payment of the Costs of the rebuilding, replacement, repair or restoration of the Prior
Project will be sufficient to pay all of the Costs of such Project. The Company agrees that if after exhaustion of the moneys in
the Project Fund, the Company should pay any portion of the Costs of the rebuilding, replacement, repair or restoration of the
Prior Project pursuant to the provisions of this Section, the Company shall not be entitled to any reimbursement therefor from
the Authority, the Trustee or the Owners of any of the Bonds, nor shall the Company be entitled to any diminution of the amounts
payable under Section 4.02 hereof.


 




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Section 3.06   Special
Arbitrage Certifications.


 


The Company and the Authority
covenant not to cause or direct any moneys on deposit in any fund or account to be used in a manner which would cause the Bonds
to be classified as “arbitrage bonds” within the meaning of Section 148 of the Code, and the Company certifies and
covenants to and for the benefit of the Authority and the Owners of the Bonds that so long as there are any Bonds Outstanding,
moneys on deposit in any fund or account in connection with the Bonds, whether such moneys were derived from the proceeds of the
sale of the Bonds or from any other sources, will not be used in a manner which will cause the Bonds to be classified as “arbitrage
bonds” within the meaning of Section 148 of the Code.


 




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ARTICLE IV


 


LOAN PROVISIONS;
SUBSTITUTE

CREDIT FACILITY


 


Section 4.01   Loan
of Proceeds.


 


The Authority agrees,
upon the terms and conditions contained in this Agreement and the Indenture, to lend to the Company the proceeds received by the
Authority from the sale of the Bonds. Such proceeds shall be disbursed to or on behalf of the Company as provided in Section 3.03
hereof.


 


Section 4.02   Amounts
Payable.


 


(a)  The
Company hereby covenants and agrees to repay the loan, as follows: on or before any Interest Payment Date for the Bonds or any
other date that any payment of interest, premium, if any, or principal or Purchase Price is required to be made in respect of the
Bonds pursuant to the Indenture, 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 Indenture, in immediately available funds, a sum
which, together with any other moneys available for such payment in any account of the Bond Fund, will enable the Trustee to pay
the amount payable on such date as Purchase Price or principal of (whether at maturity or upon redemption or acceleration or otherwise),
premium, if any, and interest on the Bonds as provided in the Indenture; provided, however, that the obligation of the Company
to make any payment hereunder shall be deemed satisfied and discharged to the extent of the corresponding payment made by a Credit
Provider (if any) to the Trustee under a Credit Facility (if any) or by the Confirming Bank (if any) under the Confirming Letter
of Credit (if any). While the Bonds bear interest at a Bank Rate, each of the Company and ITT Holdings LLC agrees to pay (or cause
to pay) the Purchase Price on the Bonds when due pursuant to Sections 4.01 and 4.02 of the Indenture.


 


It is understood and
agreed that all payments payable by or on behalf of the Company under subsection (a) of this Section 4.02 are
assigned by the Authority to the Trustee for the benefit of the Owners of the Bonds. Each of the Company and ITT Holdings LLC assents
to such assignment. The Authority hereby directs the Company and ITT Holdings LLC and the Company and ITT Holdings LLC hereby agree
to pay to the Trustee at the Principal Office of the Trustee all payments payable by or on behalf of the Company and/or ITT Holdings
LLC pursuant to this subsection.


 


		(b)	Each of the Company and ITT Holdings LLC agrees that
it will also pay:



 


		(i)	All of the Authority’s reasonable actual out-of-pocket
expenses and costs of issuance in connection with the issuance of the Bonds and the transactions contemplated by this Agreement
and any advances incurred and any advances made by the Authority pursuant to Section 6.21 hereof, and all reasonable
Administration Expenses.; and



 




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		(ii)	the reasonable fees and expenses of such accountants,
consultants, attorneys and other experts as may be engaged by the Authority, the Administrative Agent or the Trustee to prepare
such audits, financial statements or opinions or provide such other services as are reasonably required under this Agreement,
the Indenture or the Tax Regulatory Agreement; and



 


		(iii)	all taxes and assessments of any type or character charged
to the Authority, the Administrative Agent or to the Trustee affecting the amount available to the Authority, the Administrative
Agent or the Trustee from payments to be received hereunder or in any way arising due to the transactions contemplated hereby
(including taxes and assessments assessed or levied by any public agency or governmental authority of whatever character having
power to levy taxes or assessments) but excluding any taxes based upon the capital and/or income of the Trustee, the Administrative
Agent or any other person other than the Company; provided, however, that the Company shall have the right to protest any such
taxes or assessments assessed or levied upon them and that the Company shall have the right to withhold payment of any such taxes
or assessments pending disposition of any such protest or contest unless such withholding, protest or contest would materially
adversely affect the rights or interests of the Authority, the Administrative Agent or the Trustee.



 


The forgoing payments
shall be billed to the Company and/or ITT Holdings LLC by the Authority, the Administrative Agent or the Trustee from time to time,
together with (x) a statement executed by a duly authorized officer or agent of the Authority, the Administrative Agent or the
Trustee, as the case may be, certifying that the amount billed has been incurred or paid by the Authority, the Administrative Agent
or the Trustee for one or more of the above items, and (y) a copy of the invoice or statement for the amount so incurred or paid.
Amounts so billed shall be paid by the Company and ITT Holdings LLC within thirty (30) days after receipt of the bill by the Company
or ITT Holdings LLC unless, in the case of expenditures described under clause (iii) above, the Company or ITT Holdings LLC is
contesting such amounts in good faith.


 


(c)  The
Company and ITT Holdings LLC will also pay the reasonable fees and expenses of the Trustee under the Indenture and all other amounts
which may be payable to the Trustee under Section 10.02 of the Indenture, such amounts to be paid directly to the
Trustee for the Trustee’s own account as and when such amounts become due and payable.


 


(d)  Each
of the Company and ITT Holdings LLC covenants, for the benefit of the Owners of the Bonds, to pay or cause to be paid, to the Trustee,
such amounts as shall be necessary to enable the Trustee to pay the Purchase Price of Bonds delivered to it for purchase, all as
more particularly described in Sections 4.01 and 4.02 of the Indenture; provided, however, that
the obligation of the Company and ITT Holdings LLC to make any such payment under this Section 4.02(d) shall
be reduced by the amount of moneys available for such payment described in Section 4.03(a) of the Indenture; and
provided, further, that the obligation of the Company and ITT Holdings LLC to make any payment under this subsection
(d) shall be deemed to be satisfied and discharged to the extent of the corresponding payment made by a Credit Provider (if any)
under a Credit Facility (if any) or by the Confirming Bank (if any) under the Confirming Letter of Credit (if any).


 




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(e)  The
Company shall promptly notify the Owners and any Prior Owners of any Determination of Taxability. Each of the Company and ITT Holdings
LLC covenants, for the benefit of the Owners of the Bonds, to pay or cause to be paid to the Trustee when due any other amounts
payable under the Bonds, including, but not limited to the following while the Bonds bear interest at a Bank Rate:


 


(i)         In the
event of a Determination of Taxability (as defined in the Indenture), and upon demand of the Owner or any prior Owner, the Company
and ITT Holdings LLC shall pay or cause to be paid to the Trustee such additional amount as shall be necessary to provide that
interest on the Bonds shall have been payable at the Taxable Adjusted LIBOR Rate (as defined in the Indenture) from the Date of
Taxability (as defined in the Indenture). The Company shall promptly notify the Owners and any Prior Owners of any Determination
of Taxability.


 


(ii)         Reserved.


 


(iii)        Upon
a Determination of Taxability, the Company and ITT Holdings LLC shall also pay or cause to be paid to the Trustee upon demand of
such Owner or prior Owner any taxes, interest, penalties or other charges assessed against or payable by such Owner or prior Owner
and attributable to such Determination of Taxability and all reasonable administrative, out of pocket and other expenses incurred
by such Owner or prior Owner which are attributable to such event, including, without limitation, the costs incurred by such Owner
or prior Owner to amend any of its tax returns, notwithstanding the repayment of the entire principal amount of the Bonds or any
transfer or assignment of the Bonds.


 


(iv)        If
there is any Change in Law (as defined in the Revolving Credit Agreement) that increases the cost to the Bank holding the Bonds,
then the Company and ITT Holdings LLC shall pay or cause to be paid to the Trustee such additional costs incurred or reduction
suffered in accordance with Section 4.11 of the Revolving Credit Agreement, which section is incorporated herein by reference.


 


(v)         Reserved.


 


(vi)        The
Company and ITT Holdings LLC will pay or cause to be paid to the Trustee on demand all amounts required under the Bonds to be paid
during any contest of a Determination of Taxability.


 


(vii)       The
obligations of the Company and ITT Holdings LLC contained in this subparagraph (e) shall survive the termination of this Agreement
and the payment in full of the Bonds.


 




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(f)  In
the event the Company or ITT Holdings LLC should fail to make any of the payments required in this Section 4.02,
the item or installment so in default shall continue as an obligation of the Company or ITT Holdings LLC, as applicable, until
the amount in default shall have been fully paid, and each of the Company and ITT Holdings LLC agrees to pay the same with interest
thereon, to the extent permitted by law, from the date when such payment was due, at the rate of interest equal to the Default
Rate.


 


Section 4.03   Obligations
of Company Unconditional.


 


The obligations of the
Company and ITT Holdings LLC to make the payments required in Section 4.02 and to perform and observe the other agreements
contained herein shall be absolute and unconditional and shall not be subject to any defense or any right of setoff, counterclaim
or recoupment arising out of any breach by the Authority, the Administrative Agent, the Owner or the Trustee of any obligation
to the Company or ITT Holdings LLC, whether hereunder or otherwise, or out of any indebtedness or liability at any time owing to
the Company or ITT Holdings LLC by the Authority, the Administrative Agent, the Owner or the Trustee, and, 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 and ITT Holdings LLC (i) will not suspend or discontinue any
payments provided for in Section 4.02 hereof, (ii) will perform and observe all other agreements contained
in this Agreement and (iii) except as otherwise provided herein, will not terminate the Term of Agreement for any cause, including,
without limiting the generality of the foregoing, failure of the Company to complete the acquisition, construction, improving and
equipping of the Project, the occurrence of any acts or circumstances that may constitute failure of consideration, eviction or
constructive eviction, destruction of or damage to the Project, the taking by eminent domain of title to or temporary use of any
or all of the Project, commercial frustration of purpose, any change in the tax or other laws of the United States of America or
of the State or any political subdivision of either thereof or any failure of the Authority, the Administrative Agent, the Owner
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. Nothing contained in this Section shall be construed to release the Authority from the performance
of any of the agreements on its part herein contained, and in the event the Authority or the Trustee should fail to perform any
such agreement on its part, the Company may institute such action against the Authority or the Trustee as the Company may deem
necessary to compel performance so long as such action does not abrogate the obligations of the Company or ITT Holdings LLC contained
in the first sentence of this Section.


 




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Section 4.04   Assignment
to Trustee.


 


The Authority hereby
notifies the Company and the Company acknowledges that the Authority’s rights in this Agreement (except the right to receive
payments, if any, under Sections 4.02(c), 4.05, 6.10, 6.14, 6.21, 7.02 and 8.05 hereof and the right of the Authority, at its option,
to enforce its Reserved Rights, without limiting the right of the Trustee with respect thereto) are being assigned to the Trustee
to provide a source of payment of principal, redemption price, if any, and interest owing by the Authority to the Owners 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 6.15 and 7.01 hereof or the additional remedies set forth in Section 8.03 hereof.
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 herein except the Reserved Rights
which are exclusively the rights of the Authority. The Authority hereby directs the Company to make all payments (except the payments
due to the Authority, if any, under Sections 4.02(c), 4.05, 6.10, 6.14, 6.21, 7.02 and 8.05 hereof) due hereunder to the Trustee
(other than as provided in Section 6.09) 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 4.05   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 obligations under this Agreement, the Bonds and the Indenture, including any payment
required to be made to the 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 Owners of the Bonds pursuant to the terms of the Indenture then additional amounts shall be due and payable by the Company
as loan repayments 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 Owners of the Bonds. In addition, the Company’s obligation to make loan repayments
shall survive any termination of this Agreement for so long as any Bonds are outstanding under the Indenture.


 


Section 4.06   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.


 




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Section 4.07   Substitute
Credit Facility.


 


Subject to the conditions
set forth in this Section 4.07, the Company may provide for the delivery to the Trustee of a Substitute Credit Facility.
The Company shall furnish written notice to the Trustee, not less than twenty days prior to the Mandatory Purchase Date, (a) notifying
the Trustee that the Company is exercising its option to provide for the delivery of a Substitute Credit Facility to the Trustee,
(b) setting forth the Mandatory Purchase Date in connection with the delivery of such Substitute Credit Facility, which shall
in any event be an Interest Payment Date that is not less than two Business Days prior to the expiration date of the Credit Facility
then in effect with respect to the Bonds, and (c) instructing the Trustee to furnish notice to the Bondholders regarding the
Mandatory Purchase Date at least fifteen days prior to the Mandatory Purchase Date, as more fully described in Section 4.01(b)
of the Indenture and Exhibit “B” thereto. Any Substitute Credit Facility shall be delivered to the Trustee prior
to such Mandatory Purchase Date and shall be effective on and after such Mandatory Purchase Date. On or before the date of such
delivery of a Substitute Credit Facility to the Trustee, the Company shall furnish to the Trustee (a) a written opinion of
Bond Counsel stating that the delivery of such Substitute Credit Facility will not adversely affect the exclusion from gross income
of interest on the Bonds for federal income tax purposes; and (b) a written opinion of counsel to the Substitute Credit Provider
to the effect that the Substitute Credit Facility is a legal, valid, binding and enforceable obligation of the Substitute Credit
Provider in accordance with its terms.


 


Section 4.08   Substitute
Confirming Letter of Credit.


 


Subject to the conditions
set forth in this Section 4.08, the Company may provide for the delivery to the Trustee of a Substitute Confirming
Letter of Credit. The Company shall furnish written notice to the Trustee, not less than twenty days prior to the Mandatory Purchase
Date, (a) notifying the Trustee that the Company is exercising its option to provide for the delivery of a Substitute Confirming
Letter of Credit to the Trustee, (b) setting forth the Mandatory Purchase Date in connection with the delivery of such Substitute
Confirming Letter of Credit, which shall in any event be an Interest Payment Date that is not less than two Business Days prior
to the expiration date of the Confirming Letter of Credit then in effect with respect to the Bonds, and (c) instructing the
Trustee to furnish notice to the Bondholders regarding the Mandatory Purchase Date at least fifteen days prior to the Mandatory
Purchase Date, as more fully described in Section 4.01(b) of the Indenture and Exhibit “B” thereto.
Any Substitute Confirming Letter of Credit shall be delivered to the Trustee prior to such Mandatory Purchase Date and shall be
effective on and after such Mandatory Purchase Date. On or before the date of such delivery of a Substitute Confirming Letter of
Credit to the Trustee, the Company shall furnish to the Trustee (a) a written opinion of Bond Counsel stating that the delivery
of such Substitute Confirming Letter of Credit will not adversely affect the exclusion from gross income of interest on the Bonds
for federal income tax purposes; and (b) a written opinion of counsel to the Substitute Confirming Letter of Credit Provider
to the effect that the Substitute Confirming Letter of Credit is a legal, valid, binding and enforceable obligation of the Substitute
Confirming Letter of Credit Provider in accordance with its terms.


 




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ARTICLE V


 


PREPAYMENT AND REDEMPTION


 


Section 5.01   Prepayment
and Redemption.


 


The Company and ITT Holdings
LLC shall have the option to prepay its obligations hereunder at the times and in the amounts as necessary to exercise its option
to cause the Bonds to be redeemed in whole or in part as set forth in the Indenture and in the Bonds. Each of the Company and ITT
Holdings LLC hereby agrees that it shall prepay its obligations hereunder at the times and in the amounts as necessary to accomplish
the mandatory redemption of the Bonds as set forth in the Indenture and in the Bonds. The Authority, at the request of the Company,
shall forthwith take all steps (other than the payment of the money required for such redemption) necessary under the applicable
redemption provisions of the Indenture to effect redemption of all or part of the Outstanding Bonds, as may be specified by the
Company or ITT Holdings LLC, on the date established for such redemption.


 




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ARTICLE VI


 


SPECIAL COVENANTS


 


Section 6.01   Condition
of the Prior Project.


 


(a)  The
Company shall at all times preserve and protect the Prior Project 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 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 ownership, possession, use or operation
of the Prior Project.


 


(b)  The
Authority shall have no obligation and makes no warranties respecting the condition or operation of the Prior Project. 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 PRIOR PROJECT, THEIR FITNESS FOR ANY PARTICULAR PURPOSE, THE QUALITY
OR CAPACITY OF THE MATERIALS USED THEREIN, OR THE SUITABILITY THEREOF FOR THE PURPOSES OR NEEDS OF THE COMPANY. THE COMPANY IS
SATISFIED THAT THE PRIOR 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
PRIOR PROJECT 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, REPAIR, SERVICE OR ADJUSTMENT, OR BY ANY INTERRUPTION OF SERVICE OR
LOSS OF USE THEREOF OF 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 Bonds by the Authority and, if any administrative body or court of competent jurisdiction shall hold for any reason that
the Prior Project is exempt from taxation by reason of the financing under this Agreement or the issuance of the 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 Company reserves any other defenses
available to it in connection with any such tax matters.


 




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Section 6.02   Access
to the Project.


 


The Company agrees that
the Authority, the Credit Provider (if any) and the Trustee and their duly authorized agents, attorneys, experts, engineers, accountants
and representatives shall have the right to inspect the Project at all reasonable times and on reasonable notice, including, without
limitation, for the purpose of assuring that the Prior Project has been constructed and is being operated as a qualified “project”
under the Act consistent with the purposes set forth herein and in accordance with the provisions of the Act. The Authority, the
Credit Provider (if any) and the Trustee and their duly authorized agents shall also be permitted, at all reasonable times, to
examine the books and records of the Company with respect to the Project.


 


Section 6.03   Further
Assurances and Corrective Instruments.


 


The Authority and the
Company agree that they will, from time to time, execute, acknowledge and deliver, or cause to be executed, acknowledged and delivered,
such supplements hereto and such further instruments as may reasonably be required for carrying out the expressed intention of
this Agreement.


 


Section 6.04   Authority
and Company Representatives.


 


Whenever under the provisions
of this Agreement the approval of the Authority or the Company is required or the Authority or the Company is required to take
some action at the request of the other, such approval or such request shall be given for the Authority by an Authority Representative
and for the Company by a Company Representative. The Trustee shall be authorized to act on any such approval or request.


 


Section 6.05   Financing
Statements.


 


The Company agrees to
execute and file or cause to be executed and filed any and all financing statements or amendments thereof or continuation statements
necessary to perfect and continue the perfection of the security interests granted in the Indenture. The Company shall pay all
costs of filing such instruments. If the Company fails to file such statements, then the Trustee shall make such filings.


 


Section 6.06   Covenant
to Provide Ongoing Disclosure.


 


The Company hereby covenants
and agrees that, in the event the hereinafter defined Rule becomes applicable to the Bonds, the Company shall enter into a written
undertaking for the benefit of the holders of the Bonds, as required by Section (b)(5)(i) of Securities and Exchange Commission
Rule 15c2-12 under the Securities Exchange Act of 1934, as amended (17 CFR Part 240, §240.15c2-12) (the “Rule”);
provided, however, that the Company shall not be obligated to enter into such written undertaking if the Company shall furnish
to the Trustee, prior to the exercise of the Conversion Option, an opinion of Bond Counsel that, notwithstanding such election
by the Company, the Rule is not applicable to the Bonds.


 


Section 6.07   Notice
of Control.


 


The Company shall provide
written notice to the Trustee and the Remarketing Agent (if any) 30 days prior to the consummation of any transaction that would
result in the Company controlling the Credit Provider (if any) or the Confirming Bank (if any) or being controlled by the Credit
Provider (if any) or the Confirming Bank (if any) within the meaning of Section 2(a)(9) of the Investment Company Act of 1940.


 




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Section 6.08   Acknowledgement
and Covenant Regarding Commercial Paper or Long Term Period.


 


The Company acknowledges
that the Bonds shall initially be rated only while the Interest Period for the Bonds is a Daily Period, a Two-Day Period or a Weekly
Period. Further, the Company acknowledges that in the event that it shall select a Commercial Paper Period or Long Term Period
as the Interest Period, it shall be required to provide a Substitute Credit Facility or an amendment to the Credit Facility in
accordance with Section 2.08 of the Indenture. The Company covenants that, in the event that it shall select a Commercial
Paper Period or Long Term Period, it shall amend or cause the amendment of, and supplement or cause the supplementation of, this
Agreement and the Indenture, respectively, such that the Bonds shall continue to be rated as investment grade by Moody’s,
Fitch or S&P.


 


Section 6.09   Environmental
Matters.


 


The Company shall be
solely responsible for, and shall indemnify and hold harmless the Authority, the Owners and the Trustee from and against, any loss,
damage, costs, expense, or liability, directly or indirectly, arising out of or attributable to the use, generation, storage, release,
threatened release, discharge, disposal, or presence of Hazardous Material on, under or about the Project, including without limitation:
(i) all foreseeable consequential damages; (ii) the cost of any required or necessary repair, clean-up or detoxification of the
Project, and the preparation and implementation of any closure, remedial, or other required plans; and (iii) all reasonable costs
and expenses incurred by the Authority and the Trustee in connection with clauses (i) and (ii), including but not limited to reasonable
attorney’s fees. The Company shall, at its expense, take all necessary remedial action(s) in response to the presence of
any Hazardous Material on, under or about the Project.


 


The said release and
indemnification covenants of the Company shall apply equally to the officers and employees of the Authority and to its Board of
Directors.


 


Section 6.10   Tax
Covenants.


 


The Company hereby
covenants to comply with the provisions of the Code applicable to the Bonds as in effect on the Date of Issuance. The Company will
not take any action or fail to take any action which would cause the interest on the Bonds to be includable in gross income for
federal income tax purposes under the Code as in effect on the Date of Issuance (except any Bond for any period during which such
Bond is held by a “substantial user” of a facility refinanced with the proceeds of the 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 under the Code as in effect on the Date of Issuance in order to assure
that interest paid on the Bonds (except any Bond for any period during which such Bond is held by a “substantial user”
of a facility refinanced with the proceeds of the Bonds or a “related person” to such “substantial user”
as such terms are defined in Section 147(a) of the Code), for purposes of federal income taxation, shall be excludable from the
gross income of the recipients thereof under the Code as in effect on the Date of Issuance 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 Authority shall not have any liability to the Owners, the Trustee or otherwise as a result of a
failure by such party to comply with the provisions of this paragraph.


 




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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 Bonds which would cause the 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 Bonds. All of the representations and warranties
of the Authority and the Company contained in the Arbitrage Certificate and the Representation Letter are incorporated herein by
reference with the same force and effect as if set out in full herein.


 


Without limiting the
generality or application of the covenants contained in the foregoing paragraphs of this Section 6.10, the Company hereby agrees
to comply with and be bound by the following additional covenants:


 


(a)          The
Company hereby covenants all of the net proceeds of the Bonds will be used to pay principal of the Refunded 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 Bonds, reduced by amounts deposited in any reasonably required reserve or replacement fund (if any) for the Bonds .


 


(b)          The
Company hereby covenants in connection with the Bonds that, except as permitted in subsection (h) hereof, it will comply with the
requirement for payment of the Rebate Amount to the United States set forth in the Letter of Instructions. The Company acknowledges
and agrees that the calculation of the Rebate Amount and the payment of the Rebate Amount to the United States shall be the responsibility
of the Company and that neither the Authority nor the Trustee shall have any obligation therefor. The Company agrees to indemnify
the Authority and the Trustee against any loss, liability or expense incurred in connection with the Company’s failure to
pay the Rebate Amount to the United States as required by this Section.


 


(c)          Within
forty-five (45) days subsequent to the end of each fifth Bond Year and the retirement of the last Bond of each issue, the Company
shall become knowledgeable of the rebate requirements and shall calculate, or shall engage a Rebate Expert to calculate, the Rebate
Amount in respect of the Bonds under Section 148(f) of the Code. The Rebate Expert must be experienced in calculations of Rebate
Amount and must be acceptable to the Authority. Notwithstanding the foregoing, the Company shall not be required to calculate,
or to engage a Rebate Expert to calculate, the Rebate Amount if it establishes to the satisfaction of the Authority that all of
the Gross Proceeds (as defined in Treasury Regulations Section 1.148-1(b)) of the Bonds are exempt from arbitrage rebate by virtue
of expenditure of proceeds within a spending exception, in accordance with the provisions of Treasury Regulations Sections 1.148-7.
In the event only a portion of the Gross Proceeds of the Bonds are exempt from arbitrage rebate by virtue of any one of such exceptions,
the Company shall be required to, or to engage a Rebate Expert to, calculate the Rebate Amount or otherwise provide an opinion
to the effect that no rebate payment is owed.


 




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(d)          Within
forty-five (45) days after each fifth Bond Year and the retirement of the last Bond of each issue, the Company shall give the Trustee
a written summary of a calculation, prepared by the Company or the Rebate Expert, of the Rebate Amount as of the end of the fifth
Bond Year or as of the date of such retirement, together with funds, or instructions to transfer funds, sufficient to increase
the amount in the Rebate Fund to the Rebate Amount. The Company shall give the Authority copies of the summary and the funds transmittal
or transfer instructions.


 


(e)          At
least fifteen (15) days prior to the due date of any payment, the Company shall give the Trustee written instructions as to the
amount, date, and manner of payments which the Trustee is to make from the Rebate Fund to the Federal government to comply with
the requirements of Section 148(f) of the Code, including payments of installments of at least 90% of the Rebate Amount within
sixty (60) days after the end of each fifth Bond Year, payment of all the Rebate Amount within sixty (60) days after retirement
of the last Bond of each issue, and payment of unspent proceeds penalties by the dates falling ninety (90) days after each six
month period. The Company shall give the Authority a copy of the instructions.


 


(f)          The
amounts in the Rebate Fund shall be applied at the times and in the amounts required under the Code solely for the purpose of paying
the United States of America in accordance with Section 148(f) of the Code.


 


(g)          With
respect to the Bonds, the Company covenants and agrees that it will comply with the requirements of the Code relating to arbitrage
rebate, unspent proceeds penalty and proceeds investment restrictions in respect of the Bonds. It further agrees to pay to the
Trustee any interest or penalties which are payable by reason of the failure of the Company timely to perform its obligations with
respect to the computation and payment of Rebate Amount or the unspent proceeds penalty.


 


(h)          The
Authority shall have the right at any time and in its sole and absolute discretion to obtain from the Company and the Trustee the
information necessary to determine the amount to be paid to the United States. Additionally, the Authority may, with prior written
notice to the Company, (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 or retain a Rebate Expert to 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 or a Rebate Expert retained by the Authority, and to pay to the
Trustee any additional amounts for deposit in the Rebate Fund required as the result of any such review or determination.


 




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(i)          Notwithstanding
any provision of this Section 6.10 or the Indenture to the contrary, the Company shall be liable, and shall indemnify and hold
the Authority and the Trustee harmless against any liability, for payments due to the United States pursuant to Section 148(f)
of the Code. Further, the Company specifically agrees that (i) the Authority shall not be held liable, or in any way responsible,
and the Company shall indemnify and hold harmless the Authority against any liability, for any mistake or error in the filing of
the payment or the determination of the amount due to the United States or for any consequences resulting from any such mistake
or error and (ii) the Trustee shall not be held liable, or in any way responsible, and the Company shall indemnify and hold harmless
the Trustee against any liability, for any mistake or error by the Company in the filing of the payment or the determination of
the amount due to the United States or for any consequences resulting from any such mistake or error by the Company. The provisions
of this paragraph (i) shall survive termination of this Agreement. This paragraph (i) shall not constitute a waiver by the Company
of any rights which it may have against any party other than the Authority and the Trustee for any liability referred to in this
paragraph (i).


 


(j)          The
Company will adopt and implement written tax compliance procedures to assure compliance with its Tax Covenants 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.


 


(k)          The
Company shall follow its tax procedures adopted pursuant to Section 6.10(j) hereof in order to satisfy its Tax Covenants.


 


(l)          The
Company shall notify the Authority and the Trustee of a Determination of Taxability by reason of an Event Notice as soon as practicable
after the determination that a violation of a Tax Covenant has occurred.


 


(m)          If
pursuant to the Company’s 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.


 


(n)          In
the event the Authority becomes aware of a possible violation of a Tax Covenant, the Authority shall have the right, upon notice
to 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.


 


(o)          The
Authority, the Trustee and the Company recognize that the provisions of this Section 6.10 are intended to comply with Section 148(f)
of the Code and the regulations thereunder and if as a result of a change in such Section of the Code or the regulations thereunder
or in the interpretation thereof, a change in this Section 6.10 shall be permitted or necessary to assure continued compliance
with Section 148(f) of the Code and the regulations thereunder, then with written notice to the Trustee, the Authority and the
Company shall be empowered to so amend this Section 6.10 and the Authority may require, by written notice to the Company and the
Trustee, the Company to so amend this Section 6.10, and the Company hereby agrees to consent to, comply with and be bound by any
such amendment to this Section 6.10 to the extent necessary or desirable to assure compliance with the provisions of Section 148(f)
of the Code and the regulations thereunder; provided that either the Authority or the Trustee shall require, prior to any such
amendment becoming effective, at the sole cost and expense of the Company, a written Opinion of Bond Counsel satisfactory to the
Authority to the effect that either (i) such amendment is required to maintain the exclusion from gross income under Section 103
of the Code of interest paid and payable on the Bonds or (ii) such amendment shall not adversely affect the exclusion from gross
income under Section 103 of the Code of interest paid or payable on the Bonds.


 




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(p)          Notwithstanding
anything herein or in the Indenture to the contrary, the obligations of the Company under the provisions of this Section 6.10 shall
survive the payment, redemption or defeasance of the Bonds, the resignation or removal of the Trustee for any reason, and termination
of this Agreement.


 


(q)          In
the event the amount in the Project Fund is insufficient to fund the Rebate Fund, the Company shall within ten (10) days of receipt
of the report furnished by the Rebate Expert pursuant to paragraph (c) above, pay or cause to be paid to the Trustee for deposit
into the Rebate Fund the difference between the amount therein and the amount required to fund the Rebate Amount. If the Company
fails to make or cause any payment required pursuant to this paragraph (q) to be made 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 paragraph (q) 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 6.21 hereof.


 


(r)          Each
payment of the Rebate Amount to be paid to the United States shall be filed with the Internal Revenue Service Center at such address
that may be specified by the Internal Revenue Service. Each payment shall be accompanied by Form 8038-T (or such other form required
by the Internal Revenue Service furnished by the Company or the Authority), executed by the Authority, and a statement identifying
the Authority, the date of the issue, the CUSIP number for the Bonds with the longest maturity (if available) and a copy of the
applicable Form 8038.


 


Section 6.11   Public
Purpose Covenants.


 


The Company covenants
that it will throughout the term of this Agreement operate and maintain the Prior Project in the manner provided in this Agreement,
and will maintain and preserve the Prior Project as an authorized project under the Act.


 


Section 6.12   Agreement
Not to Change the Prior Project.


 


The Company agrees
that it will not change the Prior Project if any such change would make inaccurate, in any material respect, the description of
the Prior Project set forth in the documents executed at the time of delivery of the Refunded Bonds unless (i) the Authority and
the Trustee receive an opinion of Bond Counsel to the effect that such change is permitted by the Act, the Indenture and this Agreement,
and will not for purposes of federal income taxation adversely affect the exclusion from gross income of interest on the Bonds;
and (ii) the Prior Project as changed will continue to be a “project” authorized to be financed by the Act as evidenced
in writing by the Authority.


 




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Section 6.13   Certificates
of No Default and Other Information.


 


The Company shall deliver
within 120 days after the close of its Fiscal Year and, with respect to Section 6.13(d) hereof, on the Date of Issuance to the
Authority and the Trustee the following:


 


(a)          a
certificate executed by a Company Representative to the effect that (i) it is not aware of any condition, event or act which constitutes
a Default and (ii) it is not aware of any condition, event or act which, with notice or lapse of time, or both, would constitute
such a Default, or, in either case, if any such condition, event or act exists, specifying the same;


 


(b)          a
written description of the present use of the Prior Project and a description of any anticipated material change in the use of
the Prior Project or in the number of employees employed thereat by the Company and the number of employees employed thereat by
any of its affiliates;


 


(c)          a
certification to the effect that it is in compliance with its Tax Covenants; and


 


(d)          certificates
evidencing that the insurance or self-insurance program required pursuant to this Agreement (including, without limitation, Article
VII), is in full force and effect, together with copies of any applicable insurance policies, if requested by the Authority or
the Trustee.


 


The Company also hereby
agrees to furnish to the Authority all material information and materials related to the public purposes of the Prior Project or
the Company, including, without limitation, by way of example, changes in ownership of the Prior Project, changes in the nature
of the Prior Project and employment related matters, that the Authority reasonably requests from time to time.


 


Section 6.14   Costs
and Expenses.


 


All reasonable expenses
in connection with the preparation, execution, delivery, recording and filing of the Indenture, this Agreement, the Bonds and any
other documents in connection therewith, and in connection with the preparation, issuance and delivery of the Bonds, the Authority’s
fees, the reasonable fees and expenses of McCarter & English, LLP, and the fees and expenses of the Trustee as set forth in
the Indenture shall be paid directly by the Company. The Company shall also pay throughout the term of the Bonds the Authority’s
fees and expenses incurred pursuant to the terms of the Bond Documents.


 




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Section 6.15   Maintain
Existence; Covenant Against Sale and Removal.


 


The Company shall maintain
its existence as a legal entity and shall not sell, assign, lease, encumber, 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; provided however that the Company may merge with or into or consolidate with any other entity,
and this Agreement may be transferred pursuant to such merger or consolidation without obtaining such consent and without violating
this Section 6.15 provided that with respect to a merger or consolidation with such other entity (i) the Company causes the proposed
surviving, resulting or transferee company to furnish the Authority and the Trustee with a Change of Ownership Information Form;
(ii) the net worth of the surviving, resulting or transferee company following the merger, consolidation or transfer is at least
95% of the net worth of the Company immediately preceding the merger, consolidation or transfer; (iii) any litigation or investigation
in which the surviving, resulting or transferee company or its officers and directors are involved, and any court, administrative
or other orders to which the surviving, resulting or transferee company or its officers and directors are subject, relate to matters
assumed from the Company (except in the case where the Authority is an adverse party) or arising in the ordinary course of business;
(iv) the Authority receives an opinion of Bond Counsel to the effect that such merger or consolidation is permitted by the Act,
the Indenture and this Agreement, will not for purposes of federal income taxation adversely affect the exclusion from gross income
of interest on the Bonds and will not cause a reissuance of the Bonds; (v) the surviving, resulting or transferee company assumes
in writing or by operation of law the obligations of the Company under this Agreement and the Note; (vi) after the merger, consolidation
or transfer, the Prior Project shall be operated as an authorized project under the Act; and (vii) no Default has occurred and
is continuing.


 


Section 6.16   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 operation of the Prior Project.


 


Section 6.17   Prohibited
Facilities.


 


No proceeds of the
Bonds will be used to provide, or to refinance, an airplane, skybox or other private luxury box, any facility primarily used for
gambling, or any store the principal business of which is the sale of alcoholic beverages for consumption off premises, land to
be used for farming purposes or any health club facility.


 


Section 6.18   Compliance
with Authority Requests.


 


The Company shall file
or record or cause to be filed or recorded all financing statements that are required in order to fully protect and preserve the
security interests and the priority thereof and the rights and powers of the Trustee in connection therewith, including without
limitation, all continuation statements for the purpose of continuing without lapse the effectiveness of (i) those financing statements
which shall have been filed at or prior to the Date of Issuance in connection with the security for the Bonds pursuant to the authority
of the applicable Uniform Commercial Code and (ii) any previously filed continuation statements that shall have been filed as required
herein. Upon the filing of any such financing statement or continuation statement, the Company shall promptly notify the Trustee
that the same has been accomplished. The Company shall promptly, if requested in writing, furnish to the Trustee prior to or contemporaneously
with the filing or recording of any financing statements and any continuation statements as required hereunder, an opinion of counsel
to the effect that such filings are sufficient to maintain perfection and priority of the security interests granted in this Indenture.


 




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Section 6.19   Project
Occupant Applications.


 


Upon the request of
the Authority, prior to leasing, subleasing or consenting to the subleasing or assignment of any lease of all or any part of the
Prior Project comprised of more than 10% of the total Prior Project, the Company shall cause a Project Occupant Information Form
to be submitted to the Authority by any such lessee, sublessee or lease assignee of the Prior Project. The Company shall not permit
any such leasing, subleasing or assigning of leases that would impair the excludability of interest paid on the Bonds from gross
income for purposes of federal income taxation, or that would impair the ability of the Company to operate the Prior Project or
cause the Prior Project not to be operated as an authorized project under the Act.


 


Section 6.20   Project
Sign.


 


If requested by the
Authority (but subject to governmental rules and regulations applicable thereto), the Company shall cause to be posted and maintained
at the site of the Prior Project 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


Alfred C. Koeppe, Chairman


 


Section 6.21   Advances
by Authority.


 


In the event the Company
fails to take out or maintain the full insurance coverage required by Section 7.04 or 7.05 of 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, and 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 obligation of the Company to the Authority, 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 loan repayments hereunder shall also be available to the Authority for the collection of all such amounts
so advanced.


 


Section 6.22   Affirmative
Action and Prevailing Wage Regulations.


 


For any rebuilding,
replacement, repair or restoration of the Prior Project, the Company shall comply with the Authority’s Affirmative Action
Program and Prevailing Wage Rate Provisions and to that end shall:


 


(a)  Insert
in all construction bid specifications for any Construction Contract the following provisions:


 




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(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. Copies of the Affirmative Action Program may be obtained
by writing to: Office of Affirmative Action; New Jersey Economic Development Authority, Gateway One, Suite 2403, Newark, New Jersey
07102; 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)  Include
in all Construction Contracts those provisions which are set forth in the Addendum to Construction Contract annexed hereto as Exhibit
C or any amendments thereto as may be authorized and approved by the Authority;


 


(c)  Obtain
from all contractors and submit to the Authority a Contractor’s Certificate and Agreement in the form annexed hereto as Exhibit
D within 3 days of the execution 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 in the form annexed hereto
as Exhibit E;


 


(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 Construction Contracts for any rebuilding, replacement, repair or restoration of the Prior Project,
a provision, term or condition authorizing and allowing a holdback equal to either (i) if the Construction Contract is less than
fifty percent (50%) complete as determined by the Company, ten per centum (10%), and (ii) if the Construction Contract is equal
to or greater than fifty percent (50%) complete but less than ninety percent (90%) complete as determined by the Company, five
per centum (5%), 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 Section 6.06 of the Indenture and (1) the execution and filing of the Contractor’s Completion
Certificate; (2) the execution and filing of the Company’s Completion Certificate; and (3) receipt by the Company of a written
notice issued by the Authority’s Office of Affirmative Action that the contractor has complied with the requirements of the
Affirmative Action Program.


 




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(h)  Notwithstanding
the above provisions of this Section 6.22, 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 6.23   Relocation
of the Prior Project.


 


The Company shall not
relocate the Prior Project or any part thereof out of the State. The Company shall not relocate the Prior Project or any part thereof
within the State without the prior written consent of an Authority Representative and an Opinion of Bond Counsel that the relocation
of the Prior Project within the State will not adversely affect the tax-exempt status of the Bonds.


 


Section 6.24   Compliance
with Laws.


 


The Company shall comply in all
material respects with all laws, ordinances and regulations, including, without limitation, all zoning and environmental laws,
ordinances and regulations, of any duly constituted authority which if not complied with, could reasonably be expected to materially
adversely affect the Prior Project 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 first 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 Prior Project 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.


 




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ARTICLE VII


 


ASSIGNMENT, SELLING,
LEASING;

INDEMNIFICATION; REDEMPTION


 


Section 7.01   Assignment,
Selling and Leasing.


 


To the extent permitted
by Section 6.15 hereof, this Agreement may be assigned and the Prior Project may be sold or leased, as a whole or in part, with
the prior written consent of the Credit Provider (during any Credit Facility Period), the Administrative Agent (during any Bank
Rate Period) or the Trustee (during any period other than a Credit Facility Period or a Bank Rate Period); provided, further, that
no such sale or lease shall, in the opinion of Bond Counsel, result in interest on any of the Bonds becoming includable in gross
income for federal income tax purposes, or shall otherwise violate any provisions of the Act; provided further, however,
that no such sale or lease shall relieve the Company or ITT Holdings LLC of any of their respective obligations under this Agreement
unless such obligations shall have been legally and validly assumed by the acquiring party.


 


Section 7.02   Release
and Indemnification Covenants.


 


(a)         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 and any member, principal, officer, director,
official, agent, employee, and attorney thereof or of the Authority, the Trustee or the State (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) suffered by any of the Indemnified Parties to the extent caused by, relating
to, arising out of, resulting from, or in any way connected with (i) the condition, use, ownership, possession, conduct, management,
planning, design, acquisition, construction, installation, financing or sale of the Prior Project or any part thereof including
the payment of the Rebate Amount to the federal government; (ii) any untrue statement of a material fact contained in information
provided by the Company with respect to the transactions contemplated hereby; (iii) any omission by the Company of a material fact
necessary to be stated therein in order to make such statement not misleading or incomplete; or (iv) the acceptance or administration
by the Authority without gross negligence or willful misconduct of its duties under the Indenture or this Agreement. 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 except where the Company
is the claimant the Company shall assume the defense thereof, including the employment of counsel reasonably satisfactory to the
Indemnified Party, the payment of all reasonable 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 (reasonably satisfactory to the Company) at
the Company’s expense in any such action and to participate in the defense thereof if, in the reasonable opinion of the Indemnified
Party, a conflict of interest could arise out of the representation of the parties by the same counsel. 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.


 




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(b)          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 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, audit or litigation by the Internal Revenue Service with respect to the tax-exempt status of interest on the Bonds
or investigation by the Securities Exchange Commission or other state or federal agency with respect to the sale or distribution
of the Bonds. In the event of such examination, investigation, audit, or litigation, the Indemnified Parties shall promptly notify
the Company in writing thereof and shall have the right to employ counsel reasonably satisfactory to the Company at the Company’s
expense, provided that any one or more of the Indemnified Parties shall have the right to employ separate counsel (reasonably satisfactory
to the Company) at the Company’s expense in any such action and to participate in the defense thereof if, in the reasonable
opinion of the Indemnified Party, a conflict of interest could arise out of the representation of the parties by the same counsel.
In such event, the Company shall assume the primary role in responding to and negotiating with the 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 any such examination, investigation, audit, or litigation, 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
or settlement, for which the Company shall be liable.


 


(c)          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 shall control the Company’s obligations and shall survive repayment of the Bonds.


 


(d)          The
Authority and Trustee shall be protected in its or their acting upon any paper or documents (whether in their original or facsimile
form) reasonably believed by it or them to be genuine, and it or they may conclusively rely upon the advice of counsel and may
(but need not) require further evidence of any fact or matter before taking any action. No recourse shall be had by the Company
for any claim based on the Indenture or this Agreement against any member, officer, employee or agent of the Authority or the Trustee
alleging personal liability on the part of such person.


 


Notwithstanding anything
to the contrary contained herein, the Company shall have no liability to indemnify an Indemnified Party against losses, claims,
damages or liabilities to the extent resulting from the gross negligence or willful misconduct of such Indemnified Party.


 


Section 7.03   Authority
to Grant Security Interest to Trustee.


 


The parties hereto agree
that pursuant to the Indenture, the Authority shall assign to the Trustee, in order to secure payment of the Bonds, all of the
Authority’s right, title and interest in and to this Agreement, except for Reserved Rights.


 




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Section 7.04   Property
Insurance Required.


 


The Company agrees,
at its sole cost and expense, to keep all buildings, structures, improvements and personal property related to the Prior Project
(hereinafter the “Property”) insured at all times throughout the term of this Agreement against loss or damage by fire,
lightning, windstorm, explosion, riot, riot attending a strike, civil commotion, damage from aircraft and vehicles, and smoke damage
and loss or damage from such hazards as are presently included in so-called “extended coverage” and against vandalism
and malicious mischief and against such other insurable hazards as, under good insurance practices, from time to time are insured
against for similar properties in the State. Such insurance shall be in a minimum amount at least equal to the greater of (i) outstanding
principal amount of the Bonds and (ii) the replacement value thereof (but with regard to the peril of earthquake, such minimum
amount need not exceed $5,000,000), and shall name the Trustee and the Authority as additional insureds.


 


Section 7.05   Liability
Coverages Required.


 


The Company at its
own cost and expense will provide and keep in force during the term of this Agreement and until payment of the Bonds in full shall
have occurred comprehensive general liability insurance with respect to bodily injury and property damage with a combined single
limit of not less than $1,000,000 per occurrence and not less than $2,000,000 annual aggregate, together with not less than $5,000,000
excess liability coverage, and not less than the amount required by law with respect to workmen’s compensation insurance,
and such other liability insurance as is customarily maintained by responsible persons or entities owning and operating properties
similar to the Prior Project. In addition, the Company, at its sole expense, shall provide and keep in force whenever construction
is or major alterations to the Property are being performed, policies of contingent public liability insurance. Such contingent
liability insurance shall be a public liability policy covering at least the hazards of all phases of the construction being performed
by the Company or its contractors, the hazards arising from the ownership and possession of the Property, and the hazards of any
operations, other than construction, being carried on by the Company on any part of the Prior Project during the construction period.


 


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.


 




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Section 7.06   General
Insurance Provisions.


 


All policies of insurance
and renewals thereof required under this Agreement shall contain provisions complying with the requirements hereof and shall be
issued by such insurer or insurers as shall be financially responsible, qualified to do business in the State and of recognized
standing. The Company shall have the right to carry the insurance provided for in this Agreement or any portion thereof under blanket
policies. All insurance as to form, amount and insurance broker shall be reasonably satisfactory to the Authority. All policies
shall require that no less than thirty (30) days’ written notice of cancellation or material change will be given to the
Authority and the Trustee. All cost of insurance shall be borne by the Company. On or prior to the Date of Issuance, the Company
will deliver to the Authority certificates of insurance evidencing the insurance which is required by this Agreement. Any certificate
of insurance furnished pursuant hereto shall set forth the amounts of insurance and coverage, shall evidence that such amounts
are at least equal to the amounts required by this Article VII and shall evidence that the related policy or policies of insurance
insure against the risks set forth hereinabove, cannot be adversely modified or canceled without thirty (30) days’ prior
written notice to the Trustee and the Authority, and have a replacement cost endorsement meeting the requirements hereof. All insurance
is required commencing from the date hereof and is to be continued throughout the term of this Agreement. All property and liability
insurance shall be so written or endorsed as to make the Authority and the Trustee additional insureds under such policies as their
interests may appear. The Company shall not violate or permit to be violated any of the conditions of the policies of insurance
required to be maintained hereunder.


 


All liability insurance
policies covering the Prior Project shall provide, inter alia, that the Authority and the Trustee shall not be subject to
defenses otherwise available to the insurer against the insured thereunder.


 


With respect to all policies of insurance
which the Company is hereinabove required to carry:


 


(a)          In
the event the Company shall fail to maintain the insurance coverage required by this Agreement, the Authority or the Trustee may
(but shall be under no obligation to), after ten (10) days written notice to the Company unless cured within such ten (10) days,
contract for the required policies of insurance and pay the premiums on the same and the Company agrees to reimburse the Authority
or the Trustee, as the case may be, to the extent of the amounts so advanced with interest thereon at the maximum rate permitted
by law;


 


(b)          In
the event of loss with respect to the Prior Project or an event which would constitute loss with respect to the Prior Project,
under any policy, the Company shall give prompt notice thereof to the Authority and the Trustee, and the Authority and the Trustee
may make proof of loss if not made promptly by the Company;


 


(c)          Each
insurance carrier is hereby authorized and directed to make payments under each respective insurance policy directly to the Trustee
instead of to the Company or to the Trustee and the Company jointly, and the Company appoints the Trustee, irrevocably and coupled
with an interest, as the Company’s attorney-in-fact to endorse any draft therefor and make the deposits required by this
Agreement;


 


(d)          Each
policy of insurance and all renewals thereof are hereby assigned to the Authority and the Trustee as their interests may appear
as additional security for payment of the indebtedness hereby secured, and the Company hereby agrees that any values available
thereunder upon cancellation or termination of any of said policies or renewals, whether in the form of return of premiums or otherwise,
shall be payable to the Authority and the Trustee as assignee thereof; and


 


(e)          If
the Authority or the Trustee becomes the owner of the Prior Project or any part thereof by foreclosure or otherwise, each such
insurance policy, including all right, title and interest of the Company thereunder, to the extent related to the Prior Project,
shall become the absolute property of the Authority or the Trustee.


 




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(f)          The
Company may satisfy the insurance requirements of this Section and Section 7.04 and 7.05 hereof with
a program of self-insurance in accordance with standard industry practice.


 


Section 7.07   Damage,
Destruction or Condemnation.


 


(a)          Unless
provided otherwise in the Credit Agreement or Revolving Credit Agreement, in the event that at any time during the term of this
Agreement the whole or part of the Prior Project shall be damaged or destroyed, or taken or condemned by a competent authority
for any public use or purpose, or by agreement between the Company and those authorized to exercise such right, or if the temporary
use of the Prior Project 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 Prior Project,


 


(ii)         the
Company shall have no obligation to rebuild, replace, repair or restore the Prior Project,


 


(iii)        there
shall be no abatement, postponement or reduction in the amounts payable by the Company under this Agreement, and


 


(iv)        the
Company will promptly give written notice of a material 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 Prior Project is damaged or destroyed or taken or condemned by a competent authority
and the Company does not rebuild, replace, repair or restore the Prior Project, the Company shall cause the Bonds to be redeemed
pursuant to Section 3.01(i) of the Indenture unless it receives an opinion of Bond Counsel that the Prior Project would still constitute
an exempt facility within the meaning of Section 103(b)(4) of the Internal Revenue Code of 1954, as amended, or that failure to
rebuild would not cause the interest on the Bonds to be includable in gross income for Federal income tax purposes.


 


In the event that the
whole or a part of the Prior Project is damaged or destroyed or taken or condemned by a competent authority and the Company rebuilds,
replaces, repairs or restores the Prior Project, the Company shall do so at its own cost and expense (including, without limitation,
from amounts deposited into the Project Fund). 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 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 Prior Project as a result of such Loss Event,
such rebuilding, replacement, repair, restoration or substitution shall automatically be deemed to be included in the Prior Project
for all purposes under the Bond Documents;


 




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(ii)         not
change the nature of the Prior Project as an authorized project as defined in and as contemplated by the Act, nor change the nature
of the Prior Project so that it would not constitute an exempt facility within the meaning of Section 103(b)(4) of the Internal
Revenue Code of 1954, as amended; 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, unless used to redeem Bonds, be deposited into the Project Fund.


 


Section 7.08   Indemnification
of Trustee.


 


The Company shall and
hereby agrees to indemnify the Trustee for, and hold the Trustee harmless against, any loss, liability or expense (including the
costs and expenses of defending against any claim of liability) incurred without gross negligence or willful misconduct by the
Trustee and arising out of or in connection with its acting as Trustee under the Indenture.


 




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ARTICLE VIII


 


DEFAULTS AND REMEDIES


 


Section 8.01   Defaults
Defined.


 


The following shall be
“Defaults” under this Agreement and the term “Default” shall mean, whenever it is used in this Agreement,
any one or more of the following events:


 


(a)  Failure
by the Company or ITT Holdings LLC, as applicable, to pay any amount required to be paid under Section 4.02(a), (d)
or (e) hereof.


 


(b)  At
any time other than a Credit Facility Period or a Bank Rate Period, failure by the Company to observe and perform any covenant,
condition or agreement on its part to be observed or performed, other than as referred to in Section 8.01(a)
hereof, for a period of thirty (30) days after written notice specifying such failure and requesting that it be remedied shall
have been given to the Company by the Authority or the Trustee, unless the Authority and the Trustee shall agree in writing to
an extension of such time prior to its expiration; provided, however, if the failure stated in the notice cannot be corrected
within the applicable period, the Authority and the Trustee will not unreasonably withhold their consent to an extension of such
time if corrective action is instituted by the Company within the applicable period and diligently pursued until such failure is
corrected.


 


(c)  At
any time other than a Credit Facility Period or a Bank Rate Period, the dissolution or liquidation of the Company, except as authorized
by Section 2.02 hereof, or the voluntary initiation by the Company of any proceeding under any federal or state
law relating to bankruptcy, insolvency, arrangement, reorganization, readjustment of debt or any other form of debtor relief, or
the initiation against the Company of any such proceeding which shall remain undismissed for sixty (60) days, or failure by the
Company to promptly have discharged any execution, garnishment or attachment of such consequence as would impair the ability of
the Company to carry on its operations at the Project, or assignment by the Company for the benefit of creditors, or the entry
by the Company into an agreement of composition with its creditors or the failure generally by the Company to pay its debts as
they become due.


 


(d)  The
occurrence of a Default under the Indenture.


 


(e)  At
any time during any Credit Facility Period, the occurrence of any “Default” or “Event of Default” under
any Credit Agreement.


 


(f)  At
any time during any Bank Rate Period, the occurrence of an “Event of Default” (as defined thereunder) under the Revolving
Credit Agreement and the receipt by the Trustee of written notice thereof from the Administrative Agent (at the direction of the
requisite lenders pursuant to the terms of the Revolving Credit Agreement).


 




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The provisions of subsection (b) of this
Section are subject to the following limitation: if by reason of force majeure the Company is unable in whole or
in part to carry out any of its agreements contained herein (other than its obligations contained in Article IV
hereof), the Company shall not be deemed in Default during the continuance of such inability. The term “force majeure”
as used herein shall mean, without limitation, the following: acts of God; strikes or other industrial disturbances; acts of public
enemies; orders or restraints of any kind of the government of the United States of America or of the State or of any of their
departments, agencies or officials, or of any civil or military authority; insurrections; riots; landslides; earthquakes; fires;
storms; droughts; floods; explosions; breakage or accident to machinery, transmission pipes or canals; and any other cause or event
not reasonably within the control of the Company. The Company agrees, however, to remedy with all reasonable dispatch the cause
or causes preventing the Company from carrying out its agreement, provided that the settlement of strikes and other industrial
disturbances shall be entirely within the discretion of the Company and the Company shall not be required to settle strikes, lockouts
and other industrial disturbances by acceding to the demands of the opposing party or parties when such course is in the judgment
of the Company unfavorable to the Company.


 


Section 8.02   Remedies
on Default.


 


Whenever any Default
referred to in Section 8.01 hereof shall have happened and be continuing, the Trustee, or the Authority with
the written consent of the Trustee, may take one or any combination of the following remedial steps:


 


(a)  If
the Trustee has declared the Bonds immediately due and payable pursuant to Section 9.02 of the Indenture, by written
notice to the Company, declare an amount equal to all amounts then due and payable on the Bonds and hereunder, whether by acceleration
of maturity (as provided in the Indenture) or otherwise, to be immediately due and payable as liquidated damages under this Agreement
and not as a penalty, whereupon the same shall become immediately due and payable;


 


(b)  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 if reasonably necessary in the opinion of the
Trustee; or


 


(c)  Take
whatever 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.


 


Any amounts collected
pursuant to action taken under this Section (other than moneys collected in connection with the Authority’s Reserved Rights,
which amounts may be paid directly to the Authority) shall be paid into the Bond Fund and applied in accordance with the provisions
of the Indenture.


 




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Section 8.03   Additional
Authority Remedies on Default.


 


In addition to the
remedies permitted by Section 8.02 hereof and by law, the following shall constitute additional and, with respect to Section 8.03(a),
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, so as to effect the mandatory redemption of the Bonds
pursuant to Section 3.01(b) of the Indenture: (i) the Company ceases to operate the Prior Project or ceases to cause the Prior
Project 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) any representation or warranty of the Company in this Agreement or in any
other document furnished in connection with this Agreement proves to have been false or misleading in any material respect when
made. The Authority shall give notice to the Company, the Trustee and, if applicable, any Credit Facility Provider, Bank or Administrative
Agent in place with respect to the Bonds, of any such occurrence, whereupon the Trustee shall give notice to the Bondholders of
the redemption of the Bonds pursuant to the terms of the 3.01(b) of the Indenture and will set a redemption date pursuant to the
terms of the Indenture, but in no event later than 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 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 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.


 


The exercise of rights under Section 8.03(b)
shall not preclude the Authority’s exercise of rights under Section 8.03(a) above and shall not diminish the Trustee’s
right to enforce specific performance, if appropriate, of the Bond Documents.


 


Section 8.04   No
Remedy Exclusive.


 


Subject to Section
9.02 of the Indenture, no remedy herein conferred upon or reserved to the Authority or the Trustee 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. In order to entitle the Authority
or the Trustee to exercise any remedy reserved to it in this Article, it shall not be necessary to give any notice, other than
such notice as may be required in this Article or by applicable law. 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, subject to the provisions of the Indenture, shall
be entitled to the benefit of all covenants and agreements herein contained.


 




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Section 8.05   Agreement
to Pay Attorneys’ Fees and Expenses.


 


In the event the Company
should default under any of the provisions of this Agreement and the Authority or the Trustee should employ attorneys or incur
other expenses for the collection of payments required hereunder or the enforcement of 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
and the Trustee the reasonable fee of such attorneys and such other expenses so incurred by the Authority.


 


Section 8.06   No
Additional Waiver Implied by One Waiver.


 


In the event any agreement
contained in this Agreement should be breached by either party and thereafter waived by the other party, such waiver shall be limited
to the particular breach so waived and shall not be deemed to waive any other breach hereunder.


 


Section 8.07   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 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 8.07 shall not relieve the Company of any liability or
obligation under any instrument relating to this Agreement, the Indenture, or any other Bond Document. 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 a Default shall occur hereunder. Nothing herein
shall preclude the Company from proceeding against the Authority for specific performance (or other equitable remedy in the nature
of specific performance) of the Authority’s obligations hereunder.


 






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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, REDEMPTION
PRICE, IF ANY, OR PURCHASE 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.


 




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ARTICLE IX


 


MISCELLANEOUS


 


Section 9.01   Term
of Agreement.


 


This Agreement shall
remain in full force and effect from the date hereof to and including December 2, 2027, or until such time as all of the Bonds
and the fees and expenses of the Authority, the Administrative Agent and the Trustee shall have been fully paid or provision made
for such payments, whichever is later; provided, however, that this Agreement may be terminated prior to such date pursuant
to Article V of this Agreement, but in no event before all of the obligations and duties of the Company and
ITT Holdings hereunder have been fully performed, including, without limitation, the payments of all costs and fees mandated hereunder.


 


Section 9.02   Notices.


 


All notices, certificates
or other communications hereunder shall be sufficiently given and shall be deemed given when delivered or mailed by registered
mail, postage prepaid, addressed as follows:


 


	If to the Authority:	New Jersey Economic Development Authority
	 	P.O. Box 990
	 	36 West State Street
	 	Trenton, New Jersey  08625
	 	Attention: Director - Bonds and Incentives
	 	 
	If to the Trustee:	U.S. Bank National Association
	 	1349 West Peachtree, NW
	 	Two Midtown Plaza, Suite 1050
	 	Atlanta, Georgia 30309
	 	Attention:  Corporate Trust Department
	 	 
	If to the Company and/or	 
	ITT Holdings LLC:	Bayonne Industries, Inc. IMTT-Bayonne,
	 	and IMTT-BC
	 	321 St. Charles Ave.
	 	New Orleans, Louisiana 70130
	 	Attention:  John Siragusa


 


A duplicate copy of each notice, certificate
or other communication given hereunder by the Authority or the Company or ITT Holdings LLC shall also be given to the Trustee and
the Credit Provider (if any). The Authority, the Company, ITT Holdings LLC, the Trustee, the Credit Provider (if any) and the Confirming
Bank (if any), may, by written notice given hereunder, designate any further or different addresses to which subsequent notices,
certificates or other communications shall be sent.


 




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Section 9.03   Binding
Effect.


 


This Agreement shall
inure to the benefit of and shall be binding upon the Authority, the Company, ITT Holdings LLC, the Credit Provider (if any), the
Confirming Bank (if any), the Trustee, the Administrative Agent, the Owners of Bonds and their respective successors and assigns,
subject, however, to the limitations contained in Section 2.02(b) hereof.


 


Section 9.04   Severability.


 


In the event any provision
of this Agreement shall be held invalid or unenforceable by any court of competent jurisdiction, such holding shall not invalidate
or render unenforceable any other provision hereof.


 


Section 9.05   Amounts
Remaining in Funds.


 


Subject to the provisions
of Section 6.11 of the Indenture, it is agreed by the parties hereto that any amounts remaining in any account of
the Bond Fund, the Project Fund, or any other fund (other than the Rebate Fund) created under the Indenture upon expiration or
earlier termination of this Agreement, as provided in this Agreement, after payment in full of the Bonds (or provision for payment
thereof having been made in accordance with the provisions of the Indenture) and the fees and expenses of the Authority in accordance
with this Agreement and the Trustee in accordance with the Indenture, shall belong to and be paid to the Company by the Trustee.


 


Section 9.06   Amendments,
Changes and Modifications.


 


Subsequent to the issuance
of Bonds and prior to their payment in full (or provision for the payment thereof having been made in accordance with the provisions
of the Indenture), and except as otherwise herein expressly provided, this Agreement may not be effectively amended, changed, modified,
altered or terminated without the written consent of the Trustee and, prior to a Credit Facility Termination Date (if any) and
payment of all amounts payable to the Credit Provider (if any) under a Credit Agreement (if any), the consent of the Credit Provider
(if any), in accordance with the provisions of the Indenture.


 


Section 9.07   Execution
in Counterparts.


 


This Agreement may be
simultaneously executed in several counterparts, each of which shall be an original and all of which shall constitute but one and
the same instrument.


 


Section 9.08   Applicable
Law.


 


This Agreement shall
be governed by and construed in accordance with the laws of the State.


 


Section 9.09   Captions.


 


The captions and headings
in this Agreement are for convenience only and in no way define, limit or describe the scope or intent of any provisions or Sections
of this Agreement.


 




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Section 9.10   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 9.11   Company
Representative.


 


Whenever under the
provisions of this Agreement the approval of the Company is required or the Authority or the Trustee is required to take some action
at the request of the Company, such approval or such request shall be given for the Company by the Company Representative, and
the Authority or Trustee may rely upon the approval of such Authorized the 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 9.12   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 9.13   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 directly or indirectly relating to it, and that, as the Company 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. 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 9.14   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.


 




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Section 9.15   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 9.16   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
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
Agreement.


 




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[signature page to Loan Agreement]


 


IN WITNESS WHEREOF, the
Authority has caused this Agreement to be executed in its name and its corporate seal to be hereunto affixed and attested by its
duly authorized officer, all as of the date first above written.


 


	(SEAL)	NEW JERSEY ECONOMIC DEVELOPMENT AUTHORITY
	 	 	 
	Attest:	By:	 
	 	 	John J. Rosenfeld
	 	 	Director – Bonds and Incentives


 


	By:	 	 
	 	Richard T. LoCascio	 
	 	Assistant Secretary	 


 


(Signature Page - Loan Agreement)


 




    	 



    	 



    

 


[signature page to Loan Agreement]


 


IN WITNESS WHEREOF,
the Company has caused this Agreement to be executed in its name and its corporate seal to be hereunto affixed by its duly authorized
officers, all as of the date first above written.


 


	 	BAYONNE INDUSTRIES, INC.
	 	 	 
	 	By:	 
	 	Name:	John Siragusa
	 	Title:	Chief Banking Officer
	 	 	 
	 	By:	 
	 	Name:	James May
	 	Title:	Senior Vice President-Treasurer and Chief Financial Officer
	 	 	 
	 	IMTT-BAYONNE
	 	 	 
	 	By:	 
	 	Name:	John Siragusa
	 	Title:	Chief Banking Officer
	 	 	 
	 	By:	 
	 	Name:	James May
	 	Title:	Senior Vice President-Treasurer and Chief Financial Officer
	 	 	 
	 	IMTT-BC
	 	 	 
	 	By:	 
	 	Name:	John Siragusa
	 	Title:	Chief Banking Officer
	 	 	 
	 	By:	 
	 	Name:	James May
	 	Title:	Senior Vice President-Treasurer and Chief Financial Officer


 


(Signature Page - Loan Agreement)


 




    	 



    	 



    

 


JOINDER OF ITT HOLDINGS LLC


 


ITT HOLDINGS LLC executes
this Joinder solely for the purposes of agreeing to the agreements, covenants and terms contained in this Agreement where it is
expressly referenced.


 


	 	ITT HOLDINGS LLC
	 	 
	 	By:	 
	 	Name:
	 	Title:
	 	 
	 	By:	 
	 	Name:
	 	Title:


 


(Signature Page - Loan Agreement)