Common use of Other Failures Clause in Contracts

Other Failures. An “Excuse from Closing” shall occur if Financial Close does not occur by the Financial Close Deadline and such failure is directly attributable to: (a) If the initial Project Plan of Finance includes PABs, the refusal or unreasonable delay of the PABs Issuer to issue PABs in the amount that Developer’s underwriters are prepared to underwrite, provided that (i) such refusal or delay is not due to any fault or less-than-diligent efforts of Developer (including Developer’s failure to satisfy all requirements that it is obligated to satisfy under the PABs Agreement) and (ii) Developer’s financing schedule provides the PABs Issuer customary time periods for carrying out the ordinary and necessary functions of a conduit issuer of tax-exempt bonds; (b) If the initial Project Plan of Finance includes PABs, the refusal or unreasonable delay of the PABs Issuer’s counsel to allow closing of the PABs, provided that (i) bond counsel is ready to give an unqualified opinion regarding the validity of the issuance of the PABs and the tax exempt status of interest paid on the PABs, (ii) the basis for such refusal is not that it would be unreasonable for bond counsel to deliver the opinion and (iii) Developer’s financing schedule provides the PABs Issuer’s counsel customary time periods for carrying out the ordinary and necessary functions of counsel to a conduit issuer of tax-exempt bonds; (c) If the initial Project Plan of Finance includes PABs, (i) the failure of the PABs Issuer or TxDOT to comply with the terms of the PABs Agreement, (ii) the expiration of the USDOT- approved PABs allocation despite Developer’s commercially reasonable efforts to obtain an extension of the PABs allocation or (iii) the withdrawal, rescission or revocation of the USDOT-approved PABs allocation, or the reduction of such allocation to an amount less than the amount of PABs included in the Project Plan of Finance, by USDOT; provided that, in all such cases, the failure to achieve Financial Close is directly caused by such occurrence, and such occurrence is not due to any fault of Developer (including Developer’s failure to satisfy any conditions precedent to the use of the PABs allocation); (d) If TIFIA financing is included in the initial Project Plan of Finance, (i) the failure of the TIFIA Joint Program Office to provide credit assistance to Developer (including a decision by the TIFIA Joint Program Office to decline to invite Developer to apply for TIFIA financing), or the determination by TxDOT that such a decision is reasonably likely to occur, due to no direct fault of Developer or any Developer-Related Entity or Developer’s agents or advisors, (ii) the insistence by the TIFIA Joint Program Office that, as determined by TxDOT, the loan agreement include terms that (1) are inconsistent with the Conditional TIFIA Term Sheet, other than terms requested or insisted by the TIFIA Joint Program Office during negotiations with Developer in response to the Project Plan of Finance, and

Other Failures. An “Excuse from Closing” Developer or TxDOT may terminate this Agreement without fault, Claim, penalty or Termination Compensation (and upon such termination, all the CDA Documents and the Independent Engineer Agreement shall occur be deemed terminated (except for provisions of this Agreement that survive termination), and TxDOT shall promptly return to Developer the original of the Financial Close Security) if Financial Close does not occur by the Financial Close Project Financing Deadline and such failure is directly attributable to: (a) If the initial Project Plan of Finance includes PABs, the refusal or unreasonable delay of the PABs Issuer to issue PABs in the amount that Developer’s underwriters are prepared to underwrite, provided that (i) such refusal or delay is not due to any fault or less-than-diligent efforts of Developer (including Developer’s failure to satisfy all requirements that it is obligated to satisfy under the PABs Agreement) and (ii) Developer’s financing schedule provides the PABs Issuer customary time periods for carrying out the ordinary and necessary functions of a conduit issuer of tax-exempt bonds; (b) If the initial Project Plan of Finance includes PABs, the refusal or unreasonable delay of the PABs Issuer’s counsel to allow closing of the PABs, provided that (i) bond counsel is ready to give an unqualified opinion regarding the validity of the issuance of the PABs and the tax exempt status of interest paid on the PABs, (ii) the basis for such refusal is not that it would be unreasonable for bond counsel to deliver the opinion and (iii) Developer’s financing schedule provides the PABs Issuer’s counsel customary time periods for carrying out the ordinary and necessary functions of counsel to a conduit issuer of tax-exempt bonds; (c) If the initial Project Plan of Finance includes PABs, (i) the failure of the PABs Issuer or TxDOT to comply with the terms of the PABs Agreement, (ii) the expiration of the USDOT- approved PABs allocation despite Developer’s commercially reasonable efforts to obtain an extension of the PABs allocation or (iii) the withdrawal, rescission or revocation of the USDOT-approved PABs allocation, or the reduction of such allocation to an amount less than the amount of PABs included in the Project Plan of Finance, by USDOT; provided that, in all such cases, the failure to achieve Financial Close is directly caused by such occurrence, and such occurrence is not due to any fault of Developer (including Developer’s failure to satisfy any conditions precedent to the use of the PABs allocation); (d) If TIFIA financing is included in the initial Project Plan of Finance, (i) the failure of the TIFIA Joint Program Office to provide credit assistance to Developer (including a decision by the TIFIA Joint Program Office to decline to invite Developer to apply for TIFIA financing), or the determination by TxDOT that such a decision is reasonably likely to occur, due to no direct fault of Developer or any Developer-Related Entity or Developer’s agents or advisorsadvisors and provided that Developer (i) is in compliance with all applicable federal statutes and rules with respect to TIFIA financing, and (ii) has used diligent and reasonable efforts to achieve such close, including negotiating in good faith mutually agreeable terms and conditions with the insistence TIFIA Joint Program Office and furnishing all required information and credit ratings in a timely manner (for clarity, deviations between the Assumed TIFIA Financial Terms and the Actual TIFIA Financial Terms are addressed in Section 3.6 and shall not excuse Developer from a failure to achieve Financial Close); (e) If TIFIA financing is included in the initial Project Plan of Finance, the failure of the TIFIA Joint Program Office to work diligently and reasonably towards achieving Financial Close by the Financial Close Deadline (including unreasonable negotiation) despite commercially reasonable efforts by Developer to do so; it being agreed, however, that the failure of Developer to satisfy any of the conditions precedent for the TIFIA financing set forth in the term sheet and/or credit agreement (other than conditions outside of the control of Developer, including any such conditions requiring actions of TxDOT and for which TxDOT has been notified by Developer that it is responsible and must act and TxDOT fails to act) shall not be considered a failure by the TIFIA Joint Program Office that, under this clause (e); (f) If TxDOT determines that the net change required by Section 3.6.3 is not acceptable to TxDOT; (g) The issuance of a final court order entitling either Party to terminate this Agreement before Financial Close pursuant to Section 31.5.1; (h) The existence of litigation challenging a NEPA Approval that is filed before lapse of the applicable statute of limitations and remains pending as determined by TxDOT, the loan agreement include terms that (1) are inconsistent with the Conditional TIFIA Term Sheet, other than terms requested or insisted by the TIFIA Joint Program Office during negotiations with Developer in response to of the Project Plan of Finance, andFinancing Deadline; or (i) A drop in the State’s credit rating below A+ from Standard & Poor’s and A2 from Xxxxx’x.

Other Failures. An “Excuse from Closing” shall occur if Financial Close does not occur by the Financial Close Deadline and such failure is directly attributable to: (a) If the initial Project Plan of Finance includes PABs, the refusal or unreasonable delay of the PABs Issuer to issue PABs in the amount that Developer’s underwriters are prepared to underwrite, ; provided that (i) such refusal or delay is not due to any fault or less-than-diligent efforts of Developer (including Developer’s failure to satisfy all requirements that it is obligated to satisfy under the PABs Agreement) and (ii) Developer’s financing schedule provides the PABs Issuer customary time periods for carrying out the ordinary and necessary functions of a conduit issuer of tax-exempt bonds; (b) If the initial Project Plan of Finance includes PABs, the refusal or unreasonable delay of the PABs Issuer’s counsel to allow closing of the PABs, ; provided that (i) bond counsel is ready to give an unqualified opinion regarding the validity of the issuance of the PABs and the tax exempt status of interest paid on the PABs, (ii) the basis for such refusal is not that it would be unreasonable for bond counsel to deliver the opinion and (iii) Developer’s financing schedule provides the PABs Issuer’s counsel customary time periods for carrying out the ordinary and necessary functions of counsel to a conduit issuer of tax-exempt bonds; (c) If the initial Project Plan of Finance includes PABs, (i) the failure of the PABs Issuer or TxDOT to comply with the terms of the PABs Agreement, (ii) the expiration of the USDOT- approved PABs allocation despite Developer’s commercially reasonable efforts to obtain an extension of the PABs allocation or (iii) the withdrawal, rescission or revocation of the USDOT-approved PABs allocation, or the reduction of such allocation to an amount less than the amount of PABs included in the Project Plan of Finance, by USDOT; provided that, in all such cases, the failure to achieve Financial Close is directly caused by such occurrence, and such occurrence is not due to any fault of Developer (including Developer’s failure to satisfy any conditions precedent to the use of the PABs allocation); (d) If TIFIA financing is included in the initial Project Plan of Finance, (i) the failure of the TIFIA Joint Program Office to provide credit assistance to Developer (including a decision by the TIFIA Joint Program Office to decline to invite Developer to apply for TIFIA financing), or the determination by TxDOT that such a decision is reasonably likely to occur, due to no direct fault of Developer or any Developer-Related Entity or Developer’s agents or advisors, (ii) the insistence by the TIFIA Joint Program Office that, as determined by TxDOT, the loan agreement include terms that (1) are inconsistent with the Conditional TIFIA Term Sheet, other than terms requested or insisted by the TIFIA Joint Program Office during negotiations with Developer in response to the Project Plan of Finance, and

Other Failures. An “Excuse from Closing” Developer or TxDOT may terminate this Agreement without fault, Claim, penalty or Termination Compensation (and upon such termination, all the CDA Documents and the Independent Engineer Agreement shall occur be deemed terminated (except for provisions of this Agreement that survive termination), and TxDOT shall promptly return to Developer the original of the Financial Close Security) if Financial Close does not occur by the Financial Close Project Financing Deadline and such failure is directly attributable to: (a) If the initial Project Plan of Finance includes PABs, the refusal or unreasonable delay of the PABs Issuer to issue PABs in the amount that Developer’s underwriters are prepared to underwrite, provided that (i) such refusal or delay is not due to any fault or less-than-diligent efforts of Developer (including Developer’s failure to satisfy all requirements that it is obligated to satisfy under the PABs Agreement) and (ii) Developer’s financing schedule provides the PABs Issuer customary time periods for carrying out the ordinary and necessary functions of a conduit issuer of tax-exempt bonds; (b) If the initial Project Plan of Finance includes PABs, the refusal or unreasonable delay of the PABs Issuer’s counsel to allow closing of the PABs, provided that (i) bond counsel is ready to give an unqualified opinion regarding the validity of the issuance of the PABs and the tax exempt status of interest paid on the PABs, (ii) the basis for such refusal is not that it would be unreasonable for bond counsel to deliver the opinion and (iii) Developer’s financing schedule provides the PABs Issuer’s counsel customary time periods for carrying out the ordinary and necessary functions of counsel to a conduit issuer of tax-exempt bonds; (c) If the initial Project Plan of Finance includes PABs, (i) the failure of the PABs Issuer or TxDOT to comply with the terms of the PABs Agreement, (ii) the expiration of the USDOT- approved PABs allocation approved despite Developer’s commercially reasonable efforts to obtain an extension of the PABs allocation or (iii) the withdrawal, rescission or revocation of the USDOT-approved PABs allocation, or the reduction of such allocation to an amount less than the amount of PABs included in the Project Plan of Finance, by USDOT; provided that, in all such cases, the failure to achieve Financial Close is directly caused by such occurrence, and such occurrence is not due to any fault of Developer (including Developer’s failure to satisfy any conditions precedent to the use of the PABs allocation); (d) If TIFIA financing credit assistance is included in the initial Project Plan of Finance, (i) the failure a decision of the TIFIA Joint Program Office to not provide credit assistance to Developer in an amount or on terms consistent with the TIFIA term sheet (including a decision by the TIFIA Joint Program Office to decline to invite the Developer to apply for TIFIA financingcredit assistance), or the determination by TxDOT that such a decision is reasonably likely to occur, due to no direct fault of Developer or any Developer-Related Entity or Developer’s its Affiliates, agents or advisorsadvisors and provided that Developer (i) is in compliance with all applicable federal statutes and rules with respect to TIFIA credit assistance, (ii) has sought to achieve betterments relative to the insistence TIFIA term sheet on its own behalf or on behalf of its Lenders, and (iii) has used diligent and reasonable efforts to achieve such close, including negotiating in good faith mutually agreeable terms and conditions with the TIFIA Joint Program Office and furnishing all required information and credit ratings in a timely matter; (e) If TIFIA credit assistance is included in the initial Project Plan of Finance, the failure of the TIFIA Joint Program Office to work diligently and reasonably towards achieving Financial Close by the Financial Close Deadline (including unreasonable negotiation) despite commercially reasonable efforts by Developer to do so (including making reasonable financial and commercial concessions as necessary and appropriate under the circumstances); it being agreed, however, that the failure of Developer to satisfy any of the conditions precedent for the TIFIA financing set forth in the term sheet and/or credit agreement (other than conditions outside of the control of Developer, including any such conditions requiring actions of TxDOT and for which TxDOT has been notified by Developer that it is responsible and must act and TxDOT fails to act) prior to the expiration of any TIFIA credit commitment shall not be considered a failure by the TIFIA Joint Program Office that, as determined under this clause (e). (f) If TxDOT determines that the net change required by Section 3.6.3 is not acceptable to TxDOT, and the loan agreement include terms that Parties have not, following good faith negotiations, agreed upon (1each Party acting in its own discretion) are inconsistent with an alternative method for proceeding to Financial Close by incorporating some or call of the Conditional TIFIA Term Sheet, other than terms requested net change contemplated by Sections 3.6.1 and 3.6.2 within 30 days of such determination; or (g) Any circumstances entitling either Party to terminate this Agreement before Financial Close pursuant to Section 31.5 or insisted by the TIFIA Joint Program Office during negotiations with Developer in response to the Project Plan of Finance, andSection 31.6.