Common use of Forfeiture of Bid Security Clause in Contracts

Forfeiture of Bid Security. (a) Subject to Section 2.4(b), if Project Co fails to achieve, through no default of Owner, Financial Close by the Financial Close Target Date (as such date may be extended by Owner in its Sole Discretion upon the request of Project Co) other than as a result of: (i) the Owner Conditions in Sections 2.5(a)(i)(A), (ii) and (iii) not being satisfied or waived as provided in Section 2.5; (ii) the Project Co Conditions not being satisfied or waived as provided in Section 2.6; or (iii) circumstances beyond the reasonable control of Project Co, but not including either: (A) lack of funds; or (B) subject to Section 2.4(b), the failure to complete the Financing, Owner will be entitled at any time thereafter to terminate this Project Agreement and to draw from the Bid Security and to retain the lesser of (A) the full amount of the Bid Security, and (B) the difference between the Guaranteed Price and the price that Owner is able to obtain from another contractor for the Work, together with all costs reasonably incurred by Owner to enter into binding agreements with such other contractor. The Parties agree that the amounts so drawn constitute liquidated damages and not a penalty. Such liquidated damages represent a genuine and reasonable pre-estimate of the damages that Owner will suffer as a result of the happening of the specified event. Such payment shall constitute full and final settlement of any and all damages that may be claimed by Owner as a result of Project Co not achieving Financial Close. For greater certainty, Owner will promptly return the Bid Security to Project Co if Financial Close is not achieved on or before the Financial Close Target Date (as such date may be extended by Owner in its Sole Discretion upon the request of Project Co) as a result of circumstances other than those which entitle Owner to draw on the Bid Security in accordance with the provisions of this Section 2.4(a). (b) The Parties acknowledge that arrangements with respect to the Financing may be expressly conditional on Lender being satisfied with new information or new reports that arise or are prepared after the Submission Date but before Financial Close relating to the Work, including design, environmental or technical matters (the “Lender Condition”), but for greater certainty, the Lender Condition does not include satisfaction with the forms of Implementing Agreements attached to this Project Agreement and such other conditions as are customary in securing the financing for projects similar to the Project. Project Co will use diligent efforts to cause the Lender Condition to be satisfied and shall keep Owner advised of the status of such efforts. Upon request, and in any event at least 15 days prior to the Financial Close Target Date, Project Co shall provide a written report to Owner detailing the status of the progress in satisfying the Lender Condition. If Project Co or Lender notifies Owner that the Lender Condition will not be satisfied or waived and that as a direct result thereof, the Financing will not be completed, either Owner or Project Co may terminate this Project Agreement and Owner will promptly return the Bid Security to Project Co. If Owner believes, on reasonable grounds, that the Lender Condition will not be satisfied or waived and that as a result thereof the Financing will not be completed, Owner may terminate this Project Agreement, whereupon Owner will promptly return the Bid Security to Project Co. For the purposes of the foregoing and for greater certainty, the Lender Condition shall be deemed satisfied on the date which is fifteen (15) days prior to the Financial Close Target Date, unless Lender and Project Co can demonstrate to the reasonable satisfaction of Owner, that in satisfying the Lender Condition, they have revealed facts or circumstances not previously known to Project Co and/or Lender which would or are reasonably likely to promptly result in a material increase in the Cost of the Financing.

Forfeiture of Bid Security. (a) Subject to Section 2.4(b), if Project Co fails the Contracting Parties fail to achieve, through no default of OwnerHospital, Financial Close by the Financial Close Target Date (as such date may be extended by Owner Hospital in its Sole Discretion sole and absolute discretion upon the request of Project Co) other than as a result of: (i) the Owner failure of any of the Hospital Conditions in Sections Section 2.5(a)(i)(A), (iivi) and (iii) not being satisfied or waived as provided in Section 2.5vii); (ii) the Project Co failure of any of the Contracting Parties Conditions not being satisfied or waived as provided except if the Contracting Parties Condition in Section 2.62.6(a)(ii) is not satisfied as the result of a default of the Contracting Parties; or (iii) circumstances beyond the reasonable control of Project Cothe Contracting Parties, but not including either: (A) either lack of funds; funds or (B) , subject to Section 2.4(b), the failure to complete the Financing, Owner Hospital will be entitled at any time thereafter to terminate this Project Agreement and to draw from the Bid Security and to retain the lesser of of: (Aa) the full amount of the Bid Security, and (Bb) the difference between the Guaranteed Price and the price that Owner Hospital is able to obtain from another contractor for the Workproponent, together with all costs reasonably incurred by Owner Hospital to enter into binding agreements with such other contractorproponent. The Parties agree that the amounts so drawn constitute liquidated damages and not a penalty. Such liquidated damages represent a genuine and reasonable pre-estimate of the damages that Owner Hospital will suffer as a result of the happening of the specified event. Such payment shall constitute full and final settlement of any and all damages that may be claimed by Owner Hospital as a result of Project Co the Contracting Parties not achieving Financial Close. For greater certainty, Owner Hospital will promptly return the Bid Security to Project Co if Financial Close is not achieved on or before the Financial Close Target Date (as such date may be extended by Owner Hospital in its Sole Discretion sole and absolute discretion upon the request of Project Co) as a result of circumstances other than those which entitle Owner Hospital to draw on the Bid Security in accordance with the provisions of this Section 2.4(a). (b) The Parties acknowledge that arrangements with respect to the Financing may be expressly conditional on Lender being satisfied with new information or new reports that arise or are prepared after the Submission Date but before Financial Close relating to the Work, including design, environmental or technical matters (the “Lender Condition”), but for greater certainty, certainty the Lender Condition does not include satisfaction with the attached forms of Implementing Agreements attached to this Project Agreement Agreements), and such other conditions as are customary in securing the financing for projects similar to the Project. Project Co will use diligent efforts to cause the Lender Condition to be satisfied satisfied, and shall keep Owner Hospital advised of the status of such efforts. Upon request, and in any event at least 15 fifteen (15) days prior to the Financial Close Target Date, Project Co shall provide a written report to Owner Hospital detailing the status of the progress in satisfying the Lender Condition. If Project Co or Lender notifies Owner Hospital that the Lender Condition will not be satisfied or waived and, so long as the Lender Condition has not been satisfied, and that that, as a direct result thereof, the Financing will not be completed, either Owner Hospital or Project Co may terminate this Project Agreement and Owner Hospital will promptly return the Bid Security to Project Co. If Owner believes, Hospital believes on reasonable grounds, grounds that the Lender Condition will not be satisfied or waived and that as a result thereof the Financing will not be completed, Owner Hospital may terminate this Project Agreement, Agreement whereupon Owner Hospital will promptly return the Bid Security to Project Co. For the purposes of the foregoing and for greater certainty, the Lender Condition shall be deemed satisfied on the date which is fifteen (15) days prior to the Financial Close Target Date, unless Lender and Project Co can demonstrate to the reasonable satisfaction of Owner, that in satisfying the Lender Condition, they have revealed facts or circumstances not previously known to Project Co and/or Lender which would or are reasonably likely to promptly result in a material increase in the Cost of the Financing.Co.

Forfeiture of Bid Security. (a) Subject to Section 2.4(b), if Project Co fails to achieve, through no default of Owner, Financial Close by the Financial Close Target Date (as such date may be extended by Owner in its Sole Discretion upon the request of Project Co) other than as a result of: (i) the Owner Conditions in Sections 2.5(a)(i)(A), (ii) and (iii) not being satisfied or waived as provided in Section 2.5; (ii) the Project Co Conditions not being satisfied or waived as provided in Section 2.6; or (iii) circumstances beyond the reasonable control of Project Co, but not including either: (A) lack of funds; or (B) subject to Section 2.4(b), the failure to complete the Financing, Owner will be entitled at any time thereafter to terminate this Project Agreement and to draw from the Bid Security and to retain the lesser of (A) the full amount of the Bid Security, and (B) the difference between the Guaranteed Price and the price that Owner is able to obtain from another contractor for the Work, together with all costs reasonably incurred by Owner to enter into binding agreements with such other contractor. The Parties agree that the amounts so drawn constitute liquidated damages and not a penalty. Such liquidated damages represent a genuine and reasonable pre-estimate of the damages that Owner will suffer as a result of the happening of the specified event. Such payment shall constitute full and final settlement of any and all damages that may be claimed by Owner as a result of Project Co not achieving Financial Close. For greater certainty, Owner will promptly return the Bid Security to Project Co if Financial Close is not achieved on or before the Financial Close Target Date (as such date may be extended by Owner in its Sole Discretion upon the request of Project Co) as a result of circumstances other than those which entitle Owner to draw on the Bid Security in accordance with the provisions of this Section 2.4(a). (b) The Parties acknowledge that arrangements with respect to the Financing may be expressly conditional on Lender Agent being satisfied with new information or new reports that arise or are prepared after the Submission Date but before Financial Close relating to the Work, including design, environmental or technical matters (the “Lender Condition”), but for greater certainty, the Lender Condition does not include satisfaction with the forms of Implementing Agreements attached to this Project Agreement and such other conditions as are customary in securing the financing for projects similar to the Project. Project Co will use diligent efforts to cause the Lender Condition to be satisfied and shall keep Owner advised of the status of such efforts. Upon request, and in any event at least 15 days prior to the Financial Close Target Date, Project Co shall provide a written report to Owner detailing the status of the progress in satisfying the Lender Condition. If Project Co or Lender Agent notifies Owner that the Lender Condition will not be satisfied or waived and that as a direct result thereof, the Financing will not be completed, either Owner or Project Co may terminate this Project Agreement and Owner will promptly return the Bid Security to Project Co. If Owner believes, on reasonable grounds, that the Lender Condition will not be satisfied or waived and that as a result thereof the Financing will not be completed, Owner may terminate this Project Agreement, whereupon Owner will promptly return the Bid Security to Project Co. For the purposes of the foregoing and for greater certainty, the Lender Condition shall be deemed satisfied on the date which is fifteen (15) days prior to the Financial Close Target Date, unless Lender Agent and Project Co can demonstrate to the reasonable satisfaction of Owner, that in satisfying the Lender Condition, they have revealed facts or circumstances not previously known to Project Co and/or Lender Agent which would or are reasonably likely to promptly result in a material increase in the Cost of the Financing.

Forfeiture of Bid Security. (a) Subject to Section 2.4(b), if Project Co fails the Contracting Parties fail to achieve, through no default of OwnerHospital, Financial Close by the Financial Close Target Date (as such date may be extended by Owner Hospital in its Sole Discretion sole and absolute discretion upon the request of Project Co) other than as a result of: (i) the Owner failure of any of the Hospital Conditions in Sections 2.5(a)(i)(A), (iivi) and (iiivii) not being satisfied or waived as provided in Section 2.5of this Agreement; (ii) the Project Co Conditions not being satisfied or waived as provided in Section 2.6failure of any of the Contracting Parties Conditions; or (iii) circumstances beyond the reasonable control of Project Cothe Contracting Parties, but not including either: (A) either lack of funds; funds or (B) , subject to Section 2.4(b), the failure to complete the Financing, Owner Hospital will be entitled at any time thereafter to terminate this Project Agreement and to draw from the Bid Security and to retain the lesser of of: (Aa) the full amount of the Bid Security, and (Bb) the difference between the Guaranteed Price and the price that Owner Hospital is able to obtain from another contractor for the Work, together with all costs reasonably incurred by Owner Hospital to enter into binding agreements with such other contractor. The Parties agree that the amounts so drawn constitute liquidated damages and not a penalty. Such liquidated damages represent a genuine and reasonable pre-estimate of the damages that Owner Hospital will suffer as a result of the happening of the specified event. Such payment shall constitute full and final settlement of any and all damages that may be claimed by Owner Hospital as a result of Project Co the Contracting Parties not achieving Financial Close. For greater certainty, Owner Hospital will promptly return the Bid Security to Project Co if Financial Close is not achieved on or before the Financial Close Target Date (as such date may be extended by Owner Hospital in its Sole Discretion sole and absolute discretion upon the request of Project Co) as a result of circumstances other than those which entitle Owner Hospital to draw on the Bid Security in accordance with the provisions of this Section 2.4(a). (b) The Parties acknowledge that arrangements with respect to the Financing may be expressly conditional on Lender being satisfied with new information or new reports that arise or are prepared after the Submission Date but before Financial Close relating to the Work, including design, environmental or technical matters (the “Lender Condition”), but for greater certainty, certainty the Lender Condition does not include satisfaction with the attached forms of Implementing Agreements attached to this Project Agreement Agreements), and such other conditions as are customary in securing the financing for projects similar to the Project. Project Co will use diligent efforts to cause the Lender Condition to be satisfied satisfied, and shall keep Owner Hospital advised of the status of such efforts. Upon request, and in any event at least 15 fifteen (15) days prior to the Financial Close Target Date, Project Co shall provide a written report to Owner Hospital detailing the status of the progress in satisfying the Lender Condition. If Project Co or Lender notifies Owner Hospital that the Lender Condition will not be satisfied or waived and, so long as the Lender Condition has not been satisfied, and that that, as a direct result thereof, the Financing will not be completed, either Owner Hospital or Project Co may terminate this Project Agreement and Owner Hospital will promptly return the Bid Security to Project Co. If Owner believes, Hospital believes on reasonable grounds, grounds that the Lender Condition will not be satisfied or waived and that as a result thereof the Financing will not be completed, Owner Hospital may terminate this Project Agreement, Agreement whereupon Owner Hospital will promptly return the Bid Security to Project Co. For the purposes of the foregoing and for greater certainty, the Lender Condition shall be deemed satisfied on the date which is fifteen (15) days prior to the Financial Close Target Date, Date unless the Lender and Project Co can demonstrate to the reasonable satisfaction of Ownerthe Hospital, that in satisfying the Lender Condition, they have revealed facts or circumstances not previously known to Project Co and/or the Lender which would or are reasonably likely to promptly result in a material increase in the Cost of the Financing.

Forfeiture of Bid Security. (a) Subject to Section 2.4(b), if Project Co fails the Contracting Parties fail to achieve, through no default of OwnerHospital, Financial Close by the Financial Close Target Date (as such date may be extended by Owner Hospital in its Sole Discretion sole and absolute discretion upon the request of Project Co) other than as a result of: (i) the Owner failure of any of the Hospital Conditions in Sections Section 2.5(a)(i)(A), (iivi) and (iii) not being satisfied or waived as provided in Section 2.5vii); (ii) the Project Co Conditions not being satisfied or waived as provided in Section 2.6failure of any of the Contracting Parties Conditions; or (iii) circumstances beyond the reasonable control of Project Cothe Contracting Parties, but not including either: (A) either lack of funds; funds or (B) , subject to Section 2.4(b), the failure to complete the Financing, Owner Hospital will be entitled at any time thereafter to terminate this Project Agreement and to draw from the Bid Security and to retain the lesser of of: (Aa) the full amount of the Bid Security, and (Bb) the difference between the Guaranteed Price and the price that Owner Hospital is able to obtain from another contractor for the Workproponent, together with all costs reasonably incurred by Owner Hospital to enter into binding agreements with such other contractorproponent. The Parties agree that the amounts so drawn constitute liquidated damages and not a penalty. Such liquidated damages represent a genuine and reasonable pre-estimate of the damages that Owner Hospital will suffer as a result of the happening of the specified event. Such payment shall constitute full and final settlement of any and all damages that may be claimed by Owner Hospital as a result of Project Co the Contracting Parties not achieving Financial Close. For greater certainty, Owner Hospital will promptly return the Bid Security to Project Co if Financial Close is not achieved on or before the Financial Close Target Date (as such date may be extended by Owner Hospital in its Sole Discretion sole and absolute discretion upon the request of Project Co) as a result of circumstances other than those which entitle Owner Hospital to draw on the Bid Security in accordance with the provisions of this Section 2.4(a). (b) The Parties acknowledge that arrangements with respect to the Financing may be expressly conditional on Lender Trustee being satisfied with new information or new reports that arise or are prepared after the Submission Date but before Financial Close relating to the Work, including design, environmental or technical matters (the “Lender Trustee Condition”), but for greater certainty, certainty the Lender Trustee Condition does not include satisfaction with the attached forms of Implementing Agreements attached to this Project Agreement Agreements), and such other conditions as are customary in securing the financing for projects similar to the Project. Project Co will use diligent efforts to cause the Lender Trustee Condition to be satisfied satisfied, and shall keep Owner Hospital advised of the status of such efforts. Upon request, and in any event at least 15 fifteen (15) days prior to the Financial Close Target Date, Project Co shall provide a written report to Owner Hospital detailing the status of the progress in satisfying the Lender Trustee Condition. If Project Co or Lender Trustee notifies Owner Hospital that the Lender Trustee Condition will not be satisfied or waived and, so long as the Trustee Condition has not been satisfied, and that that, as a direct result thereof, the Financing will not be completed, either Owner Hospital or Project Co may terminate this Project Agreement and Owner Hospital will promptly return the Bid Security to Project Co. If Owner believes, Hospital believes on reasonable grounds, grounds that the Lender Trustee Condition will not be satisfied or waived and that as a result thereof the Financing will not be completed, Owner Hospital may terminate this Project Agreement, Agreement whereupon Owner Hospital will promptly return the Bid Security to Project Co. For the purposes of the foregoing and for greater certainty, the Lender Condition shall be deemed satisfied on the date which is fifteen (15) days prior to the Financial Close Target Date, unless Lender and Project Co can demonstrate to the reasonable satisfaction of Owner, that in satisfying the Lender Condition, they have revealed facts or circumstances not previously known to Project Co and/or Lender which would or are reasonably likely to promptly result in a material increase in the Cost of the Financing.Co.

Forfeiture of Bid Security. (a) Subject to Section 2.4(b), if Project Co fails the Contracting Parties fail to achieve, through no default of OwnerHospital, Financial Close by the Financial Close Target Date (as such date may be extended by Owner Hospital in its Sole Discretion sole and absolute discretion upon the request of Project Co) other than as a result of: (i) the Owner failure of any of the Hospital Conditions in Sections 2.5(a)(i)(A), 2.5(a) (iivi) and (iii2.5(a)(vii) not being to be satisfied or waived as provided in Section 2.5waived; (ii) the Project Co failure of any of the Contracting Parties Conditions not being to be satisfied or waived as provided in Section 2.6waived; or (iii) circumstances beyond the reasonable control of Project Cothe Contracting Parties, but not including either: (A) either lack of funds; funds or (B) , subject to Section 2.4(b), the failure to complete the Financing, Owner . Hospital will be entitled at any time thereafter to terminate this Project Agreement and to draw from the Bid Security and to retain the lesser of of: (Aa) the full amount of the Bid Security, and (Bb) the difference between the Guaranteed Price and the price that Owner Hospital is able to obtain from another contractor for the Workproponent, together with all costs reasonably incurred by Owner Hospital to enter into binding agreements with such other contractorproponent. The Parties agree that the amounts so drawn constitute liquidated damages and not a penalty. Such liquidated damages represent a genuine and reasonable pre-estimate of the damages that Owner Hospital will suffer as a result of the happening of the specified event. Such payment shall constitute full and final settlement of any and all damages that may be claimed by Owner Hospital as a result of Project Co the Contracting Parties not achieving Financial Close. For greater certainty, Owner Hospital will promptly return the Bid Security to Project Co if Financial Close is not achieved on or before the Financial Close Target Date (as such date may be extended by Owner Hospital in its Sole Discretion sole and absolute discretion upon the request of Project Co) as a result of circumstances other than those which entitle Owner Hospital to draw on the Bid Security in accordance with the provisions of this Section 2.4(a). (b) The Parties acknowledge that arrangements with respect to the Financing may be expressly conditional on Lender being satisfied satisfied, acting reasonably, with new information or new reports that arise or are prepared after the Submission Date but before Financial Close relating to the Work, including design, environmental or technical matters (the “Lender Condition”), but for greater certainty, certainty the Lender Condition does not include satisfaction with the attached forms of Implementing Agreements attached to this Project Agreement Agreements), and such other conditions as are customary in securing the financing for projects similar to the Project. Project Co will use diligent efforts to cause the Lender Condition to be satisfied satisfied, and shall keep Owner Hospital advised of the status of such efforts. Upon request, and in any event at least 15 fifteen (15) days prior to the Financial Close Target Date, Project Co shall provide a written report to Owner Hospital detailing the status of the progress in satisfying the Lender Condition. If Project Co or Lender notifies Owner Hospital that the Lender Condition will not be satisfied or waived and, so long as the Lender Condition has not been satisfied, and that that, as a direct result thereof, the Financing will not be completed, either Owner Hospital or Project Co may terminate this Project Agreement and Owner Hospital will promptly return the Bid Security to Project Co. If Owner believes, Hospital believes on reasonable grounds, grounds that the Lender Condition will not be satisfied or waived and that as a result thereof the Financing will not be completed, Owner Hospital may terminate this Project Agreement, Agreement whereupon Owner Hospital will promptly return the Bid Security to Project Co. For the purposes of the foregoing and for greater certainty, the Lender Condition shall be deemed satisfied on the date which is fifteen (15) days prior to the Financial Close Target Date, unless Lender and Project Co can demonstrate to the reasonable satisfaction of Owner, that in satisfying the Lender Condition, they have revealed facts or circumstances not previously known to Project Co and/or Lender which would or are reasonably likely to promptly result in a material increase in the Cost of the Financing.Co.

Forfeiture of Bid Security. (a) Subject to Section 2.4(b), if Project Co fails the Contracting Parties fail to achieve, through no default of OwnerHospital, Financial Close by the Financial Close Target Date (as such date may be extended by Owner Hospital in its Sole Discretion sole and absolute discretion upon the request of Project Co) other than as a result of: (i) the Owner failure of any of the Hospital Conditions in Sections Section 2.5(a)(i)(A), (iivi) and (iii) not being satisfied or waived as provided in Section 2.5vii); (ii) the Project Co Conditions not being satisfied or waived as provided in Section 2.6failure of any of the Contracting Parties Conditions; or (iii) circumstances beyond the reasonable control of Project Cothe Contracting Parties, but not including either: (A) either lack of funds; funds or (B) , subject to Section 2.4(b), the failure to complete the Financing, Owner Hospital will be entitled at any time thereafter to terminate this Project Agreement and to draw from the Bid Security and to retain the lesser of of: (Aa) the full amount of the Bid Security, and (Bb) the difference between the Guaranteed Price and the price that Owner Hospital is able to obtain from another contractor for the Workproponent, together with all costs reasonably incurred by Owner Hospital to enter into binding agreements with such other contractorproponent. The Parties agree that the amounts so drawn constitute liquidated damages and not a penalty. Such liquidated damages represent a genuine and reasonable pre-estimate of the damages that Owner Hospital will suffer as a result of the happening of the specified event. Such payment shall constitute full and final settlement of any and all damages that may be claimed by Owner Hospital as a result of Project Co the Contracting Parties not achieving Financial Close. For greater certainty, Owner Hospital will promptly return the Bid Security to Project Co if Financial Close is not achieved on or before the Financial Close Target Date (as such date may be extended by Owner Hospital in its Sole Discretion sole and absolute discretion upon the request of Project Co) as a result of circumstances other than those which entitle Owner Hospital to draw on the Bid Security in accordance with the provisions of this Section 2.4(a). (b) The Parties acknowledge that arrangements with respect to the Financing may be expressly conditional on Lender being satisfied with new information or new reports that arise or are prepared after the Submission Date but before the Financial Close relating to the Work, including design, environmental or technical matters (the “Lender Condition”), but for greater certainty, certainty the Lender Condition does not include satisfaction with the attached forms of Implementing Agreements attached to this Project Agreement Agreements), and such other conditions as are customary in securing the financing for projects similar to the Project. Project Co will use diligent efforts to cause the Lender Condition to be satisfied satisfied, and shall keep Owner Hospital advised of the status of such efforts. Upon request, and in any event at least 15 fifteen (15) days prior to the Financial Close Target Date, Project Co shall provide a written report to Owner Hospital detailing the status of the progress in satisfying the Lender Condition. If Project Co or Lender notifies Owner Hospital that the Lender Condition will not be satisfied or waived and, so long as the Lender Condition has not been satisfied, and that that, as a direct result thereof, the Financing will not be completed, either Owner Hospital or Project Co may terminate this Project Agreement and Owner Hospital will promptly return the Bid Security to Project Co. If Owner believes, Hospital believes on reasonable grounds, grounds that the Lender Condition will not be satisfied or waived and that as a result thereof the Financing will not be completed, Owner Hospital may terminate this Project Agreement, Agreement whereupon Owner Hospital will promptly return the Bid Security to Project Co. For the purposes of the foregoing and for greater certainty, the Lender Condition shall be deemed satisfied on the date which is fifteen (15) days prior to the Financial Close Target Date, unless Lender and Project Co can demonstrate to the reasonable satisfaction of Owner, that in satisfying the Lender Condition, they have revealed facts or circumstances not previously known to Project Co and/or Lender which would or are reasonably likely to promptly result in a material increase in the Cost of the Financing.Co.

Forfeiture of Bid Security. (a) Subject to Section 2.4(b), if Project Co fails Contracting Parties or Lender fail to achieve, achieve through no default of OwnerOIPC, Financial Close by the Financial Close Target Date (as such date may be extended by Owner OIPC in its Sole Discretion sole and absolute discretion upon the request of Project Co) other than as a result of: of (i) the Owner Conditions failure of OIPC to satisfy or waive the condition in Sections 2.5(a)(i)(A2.5(a)(ii) or 2.5(a)(vii), (ii) and (iii) not being satisfied or waived as provided in Section 2.5; ; (ii) the Project Co Conditions not being satisfied failure of Contracting Parties to satisfy or waived as provided in Section 2.6waive the Contracting Parties Conditions; or or (iii) as a result of circumstances beyond the reasonable control of Project Cothe Contracting Parties, but not including either: either (A) lack of funds; or or (B) subject to Section 2.4(b), the failure to complete the Financing, Owner OIPC will be entitled at any time thereafter to terminate this Project Agreement and to draw from the Bid Security and to retain the lesser of of: (Aa) the full amount of the Bid Security, and (Bb) the difference between the Guaranteed Price and the price that Owner OIPC is able to obtain from another contractor for the Workproponent, together with all costs reasonably incurred by Owner OIPC to enter into binding agreements with such other contractorproponent. The Parties agree that the amounts so drawn constitute liquidated damages and not a penalty. Such liquidated damages represent a genuine and reasonable pre-estimate of the damages that Owner OIPC will suffer as a result of the happening of the specified event. Such payment shall constitute full and final settlement of any and all damages that may be claimed by Owner OIPC as a result of Project Co Contracting Parties not achieving Financial Close. For greater certaintyThe Parties agree that such liquidated damages shall be payable whether or not OIPC incurs or mitigates its damages, Owner will promptly return the Bid Security and that OIPC shall not have any obligation to Project Co if Financial Close is not achieved on or before the Financial Close Target Date (as mitigate any such date may be extended by Owner in its Sole Discretion upon the request of Project Co) as a result of circumstances other than those which entitle Owner to draw on the Bid Security in accordance with the provisions of this Section 2.4(a)damages. (b) The Parties acknowledge that arrangements with respect to the Financing may be expressly conditional on the Lender being reasonably satisfied with new information or new reports that arise or are prepared after the Submission Date RFP Closing Deadline but before the Financial Close Target Date (collectively, the "Additional Lender Due Diligence") relating to the Work, including design, environmental or technical matters (aspects of the “Lender Condition”), Work but for greater certainty, the Lender Condition does not include expressly excluding satisfaction with the attached forms of Implementing Agreements attached to this Project Agreement and such or any other conditions as are customary in securing or matters (the financing for projects similar to the Project"Lender Conditions"). Project Co will use diligent efforts to cause satisfy the Lender Condition to be satisfied Conditions and shall keep Owner OIPC advised of the status of such efforts. Upon request, and in any event at least 15 days prior to the Financial Close Target Date, Project Co shall provide a written report to Owner detailing the status of the progress in satisfying the Lender Condition. If Project Co or Lender notifies Owner that the Lender Condition will not be satisfied or waived and that as a direct result thereof, the Financing will not be completed, either Owner or Project Co may terminate this Project Agreement and Owner will promptly return the Bid Security to Project Co. If Owner believes, on reasonable grounds, that the Lender Condition will not be satisfied or waived and that as a result thereof the Financing will not be completed, Owner may terminate this Project Agreement, whereupon Owner will promptly return the Bid Security to Project Co. For the purposes of the foregoing and for greater certainty, the Lender Condition shall be deemed satisfied on the date which is fifteen (15) days prior to the Financial Close Target Date, unless Lender and Project Co can demonstrate to the reasonable satisfaction of Owner, that in satisfying the Lender Condition, they have revealed facts or circumstances not previously known to Project Co and/or Lender which would or are reasonably likely to promptly result in a material increase in the Cost of the Financing.fifteen

Forfeiture of Bid Security. (a) Subject If Contracting Parties or Lender fail to Section 2.4(b), if Project Co fails to achieve, achieve through no default of OwnerHospital, Financial Close by the Financial Close Target Date (as such date may be extended by Owner Hospital in its Sole Discretion sole and absolute discretion upon the request of Project Co) other than as a result of: (i) of the Owner failure of Hospital to satisfy or waive the Hospital Conditions in Sections 2.5(a)(i)(A), (iiSection 2.5(a)(v) and (iiivi) not being satisfied and other than as a result of the failure of the Contracting Parties to satisfy or waived as provided in Section 2.5; (ii) waive the Project Co Contracting Parties Conditions not being satisfied or waived as provided in Section 2.6; or (iii) by circumstances beyond the reasonable control of Project Co, Contracting Parties but not including either: (A) lack of funds; funds or (B) , subject to Section 2.4(b), the failure to complete the Financing, Owner Hospital will be entitled at any time thereafter to terminate this Project Agreement and to draw from the Bid Security and to retain the lesser of (Aa) the full amount of the Bid Security, and (Bb) the difference between the Guaranteed Price and the price that Owner Hospital is able to obtain from another contractor for the Workproponent, together with all costs reasonably incurred by Owner Hospital to enter into binding agreements with such other contractorproponent. The Parties agree that the amounts so drawn constitute liquidated damages and not a penalty. Such liquidated damages represent a genuine and reasonable pre-estimate of the damages that Owner Hospital will suffer as a result of the happening of the specified event. Such payment shall constitute full and final settlement of any and all damages that may be claimed by Owner Hospital as a result of Project Co Contracting Parties not achieving Financial Close. For greater certainty, Owner will promptly return the Bid Security to Project Co if Financial Close is not achieved on or before the Financial Close Target Date (as such date may be extended by Owner in its Sole Discretion upon the request of Project Co) as a result of circumstances other than those which entitle Owner to draw on the Bid Security in accordance with the provisions of this Section 2.4(a). (b) The Parties acknowledge that arrangements with respect to the Financing may be expressly conditional on the Lender being satisfied with new information or new reports that arise or are prepared after the Submission Date but before Financial Close date of this Project Agreement relating to the Work, including design, environmental or and technical matters (the “Lender ConditionConditions”), ) but for greater certainty, the Lender Condition does not include expressly excluding satisfaction with the attached forms of Implementing Agreements attached to this Project Agreement and such or any other conditions as are customary in securing the financing for projects similar to the Projectconditions. Project Co will use diligent efforts to cause satisfy the Lender Condition to be satisfied Conditions and shall keep Owner Hospital advised of the status of such efforts. Upon request, and in any event at least 15 fifteen (15) days prior to the Financial Close Target Date, Project Co shall provide a written report to Owner Hospital detailing the status of the Lender's progress in satisfying the Lender ConditionConditions. If Project Co shall notify Hospital promptly if at any time it becomes aware the Lender Conditions will not be satisfied or Lender notifies Owner waived and so long as Hospital is satisfied in its sole and absolute discretion that the Lender Condition will Conditions have not be been satisfied or waived and that as a direct result thereof, thereof the Financing will not be completed, either Owner Hospital or Project Co may terminate this Project Agreement and Owner Hospital will promptly return the Bid Security to Project Co. If Owner believes, on reasonable grounds, Hospital believes that the Lender Condition Conditions will not be satisfied or waived and that as a result thereof the Financing will not be completed, Owner Hospital may terminate this Project Agreement, Agreement whereupon Owner Hospital will promptly return the Bid Security to Project Co. For the purposes of the foregoing and for greater certainty, the Lender Condition shall be deemed satisfied on the date which is fifteen (15) days prior to the Financial Close Target Date, unless Lender and Project Co can demonstrate to the reasonable satisfaction of Owner, that in satisfying the Lender Condition, they have revealed facts or circumstances not previously known to Project Co and/or Lender which would or are reasonably likely to promptly result in a material increase in the Cost of the Financing.Co.