Common use of Guarantees and Other Security Clause in Contracts

Guarantees and Other Security. 15.2.1 Developer delivered to TxDOT security in the amount of $10 million in the form of [insert description of security provided in accordance with Proposal], in accordance with the terms of the RFP. At all times during the term of this Agreement, Developer shall maintain such security in full force and effect (or replacement security meeting the requirements of Section 15.2.3), provided that the amount of such security shall be subject to adjustment in accordance with Sections 15.2.2 and 15.2.3. 15.2.2 TxDOT shall have the right to require Developer to provide additional security for the payment and performance of Developer’s obligations in connection with any Facility Implementation Plan. Developer shall deliver such additional security to TxDOT within 30 days after receipt of TxDOT’s written notice requesting the additional security. 15.2.3 Prior to approval of the Master Development Plan, the security required under Section 15.2.2 and this Section 15.2.3 shall be in the amount of (a) $10 million, plus (b) the aggregate amount of the caps on liability set forth in all Facility Implementation Plans. After the approval of the Master Development Plan, the security required hereunder shall be in the amount of (a) the greater of (i) $5 million or (ii) the estimated cost of the Technical Support Services and the Update Work required for the remainder of the Term, plus (b) the aggregate amount of the caps on liability set forth in all Facility Implementation Plans. Security required under this Agreement may include one or a combination of the following, as selected by Developer with the prior written approval of TxDOT, which as to items (a) through (c) below will not be unreasonably withheld: (a) One or more Guarantees (or additional Guarantees, as the case may be). Each such Guaranty shall be in the form of Form T to the RFP. Each Guaranty must be provided by a parent corporation, or a shareholder of the Financially Responsible Entity or of a joint venturer, partner or equity member of Developer. The Guarantor must be acceptable to TxDOT. Changes of or additions to the shareholders, joint venturers, partners or equity members of Developer may be made in order to provide the required Guarantees, provided that the same does not constitute a material adverse change in Developer’s financial condition; (b) Pledge and delivery to TxDOT of certificates of deposit, cash and/or marketable securities as security for performance on such terms and conditions as are acceptable to TxDOT in its sole discretion, which may include the obligation to replace or add to marketable securities due to reduction in market value; (c) Delivery to TxDOT of an irrevocable standby letter of credit, provided that the letter of credit shall (i) be a direct pay letter of credit payable immediately upon presentation by TxDOT, (ii) be issued by a financial institution approved by TxDOT in its sole discretion with an office in Austin, Texas at which the letter of credit can be presented for payment, (iii) be in form approved by TxDOT in its sole discretion, (iv) be conditioned only on written presentation from TxDOT to the issuer stating (A) that Developer is in breach of the Contract Documents or (B) TxDOT is making the draw within 30 days prior to the expiration date and has received no new or replacement letter of credit required from Developer, (v) provide an expiration date not earlier than one year from date of issue, (vi) allow for multiple draws and (vii) name TxDOT payee. TxDOT shall have the right to draw on the letter of credit, without prior notice, if Developer for any reason fails to deliver to the TxDOT a new or replacement letter of credit, on the same terms, or at least a one year extension of the expiration date of the existing letter of credit, by not later than 30 days before such expiration date. For all other draws, TxDOT will deliver to Developer five days’ prior written notice of intent to draw, setting forth the amount of and reason for the draw; provided that no such notice shall be required if it would preclude draw before the expiration date of the letter of credit. Draw on the letter of credit shall not be conditional on prior resort to any other security or to Developer. Developer covenants not to commence or pursue any legal proceeding seeking, and irrevocably waives and relinquishes any right, to enjoin, restrain, prevent, stop or delay any draw on any such letter of credit. (d) A bond that responds to damages in the event of default of Developer and on such additional terms and conditions as are acceptable to TxDOT in its sole discretion; and/or (e) Other forms of security in amount and on terms and conditions acceptable to TxDOT in its sole discretion. 15.2.4 If at any time during the course of this Agreement a material adverse change in a Guarantor’s financial condition in any accounting period for which the entity is required to report financial statements after submission of the Proposal has occurred, then the Developer shall provide replacement security meeting the requirements of Section 15.2.3; provided that the amount of the replacement security shall be in the amount of the affected Guarantee. 15.2.5 With TxDOT’s prior written approval, Developer may replace any Guaranty provided hereunder with a Guaranty in the same amount meeting the requirements of Section 15.2.3(a).

Guarantees and Other Security. 15.2.1 Developer delivered to TxDOT one or more Guarantees of Developer’s obligations or other security in the amount of $10 million in the form of [insert description of security provided in accordance with Proposal]under this Agreement, in accordance with the terms of the RFP. At all times during the term of this Agreement, Developer shall maintain such security in full force and effect (or replacement security meeting the requirements of Section 15.2.3), provided that the amount of such security shall be subject to adjustment in accordance with Sections 15.2.2 and 15.2.3. 15.2.2 If at any time during the course of this Agreement a material adverse change in the Financially Responsible Entity’s financial condition in any accounting period for which the entity is required to report financial statements after submission of the Proposal has occurred, then TxDOT shall have the right to require Developer to provide additional security for the payment and performance of Developer’s obligations in connection with any Facility Implementation Planunder this Agreement. Developer shall deliver such additional security to TxDOT within 30 days after receipt of TxDOT’s written notice requesting the additional security. Notwithstanding the foregoing, if Developer provides and maintains security meeting the requirements of Section 15.2.3, no additional security will be required for a material adverse change in financial condition unless the Financially Responsible Entity suffering the material adverse change is a Guarantor, in which case additional security in the amount of the affected Guarantee shall be required. 15.2.3 Prior to approval of the Master Development Plan, the Such additional security required under Section 15.2.2 and this Section 15.2.3 shall be in the amount of (a) $10 million, plus (b) the aggregate amount of the caps limitation on liability set forth in all calculated pursuant to Section 21.5.1.1 or the cost of Developer’s obligations under the Agreement, including any Facility Implementation PlansPlan(s), whichever is greater. After the approval of the Master Development Plan, the Such additional security required hereunder shall be in the amount of (a) the greater of (i) $5 million or (ii) the estimated cost of the Technical Support Services and the Update Work required for the remainder of the Term, plus (b) the aggregate amount of the caps on liability set forth in all Facility Implementation Plans. Security required under this Agreement may include one or a combination of the following, as selected by Developer with the prior written approval of TxDOT, which as to items (a) through (c) below will not be unreasonably withheld: (a) One or more Guarantees (or additional Guarantees, as the case may be). Each such Guaranty shall be in the form of Form T to the RFP. Each Guaranty must be provided by a parent corporation, or a shareholder of the Financially Responsible Entity or of a joint venturer, partner or equity member of Developer. The Guarantor must be acceptable to TxDOT. Changes of or additions to the shareholders, joint venturers, partners or equity members of Developer may be made in order to provide the required Guarantees, provided that the same does not constitute a material adverse change in Developer’s financial condition; (b) Pledge and delivery to TxDOT of certificates of deposit, cash and/or marketable securities as security for performance on such terms and conditions as are acceptable to TxDOT in its sole discretion, which may include the obligation to replace or add to marketable securities due to reduction in market value; (c) Delivery to TxDOT of an irrevocable standby letter of credit, provided that the letter of credit shall (i) be a direct pay letter of credit payable immediately upon presentation by TxDOT, (ii) be issued by a financial institution approved by TxDOT in its sole discretion with an office in Austin, Texas at which the letter of credit can be presented for payment, (iii) be in form approved by TxDOT in its sole discretion, (iv) be conditioned only on written presentation from TxDOT to the issuer stating (A) that Developer is in breach of the Contract Documents or (B) TxDOT is making the draw within 30 days prior to the expiration date and has received no new or replacement letter of credit required from Developer, (v) provide an expiration date not earlier than one year from date of issue, (vi) allow for multiple draws and (vii) name TxDOT payee. TxDOT shall have the right to draw on the letter of credit, without prior notice, if Developer for any reason fails to deliver to the TxDOT a new or replacement letter of credit, on the same terms, or at least a one year extension of the expiration date of the existing letter of credit, by not later than 30 days before such expiration date. For all other draws, TxDOT will deliver to Developer five days’ prior written notice of intent to draw, setting forth the amount of and reason for the draw; provided that no such notice shall be required if it would preclude draw before the expiration date of the letter of credit. Draw on the letter of credit shall not be conditional on prior resort to any other security or to Developer. Developer covenants not to commence or pursue any legal proceeding seeking, and irrevocably waives and relinquishes any right, to enjoin, restrain, prevent, stop or delay any draw on any such letter of credit. (d) A bond that responds to damages in the event of default of Developer and on such additional terms and conditions as are acceptable to TxDOT in its sole discretion; and/or (e) Other forms of security in amount and on terms and conditions acceptable to TxDOT in its sole discretion. 15.2.4 If at TxDOT agrees to release and return any time during security received under Sections 15.2.2 and 15.2.3 if the course security was required due to occurrence of this Agreement a material adverse change in and all Financially Responsible Entities experience no further material adverse change for a Guarantor’s financial condition in any accounting period for which of one year following the entity is required to report financial statements after submission of date TxDOT receives the Proposal has occurred, then the Developer shall provide replacement security meeting the requirements of Section 15.2.3; provided that the amount of the replacement security shall be in the amount of the affected Guaranteesecurity. 15.2.5 With TxDOT’s prior written approval, Developer may replace any Guaranty provided hereunder with a Guaranty in the same amount meeting the requirements of Section 15.2.3(a). 15.2.6 No release and return of security shall waive TxDOT’s right to further security under Section 15.2.2 for any subsequent material adverse change in financial condition.

Guarantees and Other Security. 15.2.1 Developer delivered to TxDOT security in the amount of $10 million in the form of [insert description of security provided in accordance with Proposal], in accordance with the terms of the RFP. At all times during the term of this Agreement, Developer shall maintain such security in full force and effect (or replacement security meeting the requirements of Section 15.2.3), provided that the amount of such security shall be subject to adjustment in accordance with Sections 15.2.2 and 15.2.3. 15.2.2 TxDOT shall have the right to require Developer to provide additional security for the payment and performance of Developer’s obligations in connection with any Facility Implementation Plan. Developer shall deliver such additional security to TxDOT within 30 days after receipt of TxDOT’s written notice requesting the additional security. 15.2.3 Prior to approval of the Master Development Plan, the security required under Section Sections 15.2.2 and this Section 15.2.3 shall be in the amount of (a) $10 million, plus (b) the aggregate amount of the caps on liability set forth in all Facility Implementation Plans. After the approval of the Master Development Plan, the security required hereunder shall be in the amount of (a) the greater of (i) $5 million or (ii) the estimated cost of the Technical Support Services and the Update Work required for the remainder of the Term, plus (b) the aggregate amount of the caps on liability set forth in all Facility Implementation Plans. Security required under this Agreement may include one or a combination of the following, as selected by Developer with the prior written approval of TxDOT, which as to items (a) through (c) below will not be unreasonably withheld: (a) One or more Guarantees (or additional Guarantees, as the case may be). Each such Guaranty shall be in the form of Form T to the RFP. Each Guaranty must be provided by a parent corporation, or a shareholder of the Financially Responsible Entity or of a joint venturer, partner or equity member of Developer. The Guarantor must be acceptable to TxDOT. Changes of or additions to the shareholders, joint venturers, partners or equity members of Developer may be made in order to provide the required Guarantees, provided that the same does not constitute a material adverse change in Developer’s financial condition; (b) Pledge and delivery to TxDOT of certificates of deposit, cash and/or marketable securities as security for performance on such terms and conditions as are acceptable to TxDOT in its sole discretion, which may include the obligation to replace or add to marketable securities due to reduction in market value; (c) Delivery to TxDOT of an irrevocable standby letter of credit, provided that the letter of credit shall (i) be a direct pay letter of credit payable immediately upon presentation by TxDOT, (ii) be issued by a financial institution approved by TxDOT in its sole discretion with an office in Austin, Texas at which the letter of credit can be presented for payment, (iii) be in form approved by TxDOT in its sole discretion, (iv) be conditioned only on written presentation from TxDOT to the issuer stating (A) that Developer is in breach of the Contract Documents or (B) TxDOT is making the draw within 30 days prior to the expiration date and has received no new or replacement letter of credit required from Developer, (v) provide an expiration date not earlier than one year from date of issue, (vi) allow for multiple draws and (vii) name TxDOT payee. TxDOT shall have the right to draw on the letter of credit, without prior notice, if Developer for any reason fails to deliver to the TxDOT a new or replacement letter of credit, on the same terms, or at least a one year extension of the expiration date of the existing letter of credit, by not later than 30 days before such expiration date. For all other draws, TxDOT will deliver to Developer five days’ prior written notice of intent to draw, setting forth the amount of and reason for the draw; provided that no such notice shall be required if it would preclude draw before the expiration date of the letter of credit. Draw on the letter of credit shall not be conditional on prior resort to any other security or to Developer. Developer covenants not to commence or pursue any legal proceeding seeking, and irrevocably waives and relinquishes any right, to enjoin, restrain, prevent, stop or delay any draw on any such letter of credit. (d) A bond that responds to damages in the event of default of Developer and on such additional terms and conditions as are acceptable to TxDOT in its sole discretion; and/or (e) Other forms of security in amount and on terms and conditions acceptable to TxDOT in its sole discretion. 15.2.4 If at any time during the course of this Agreement a material adverse change in a Guarantor’s financial condition in any accounting period for which the entity is required to report financial statements after submission of the Proposal has occurred, then the Developer shall provide replacement additional security meeting the requirements of Section 15.2.3; provided that the amount of the replacement security shall be in the amount of the affected Guarantee. 15.2.5 With TxDOT’s prior written approval, Developer may replace any Guaranty provided hereunder with a Guaranty in the same amount meeting the requirements of Section 15.2.3(a).