Common use of P&P Letter of Credit Clause in Contracts

P&P Letter of Credit. As Maintenance Security, DB Contractor may elect to provide and maintain a letter of credit in the amount and pursuant to the requirements set forth in this Section 7.2 (the “P&P Letter of Credit”). 7.2.1 DB Contractor shall obtain and deliver to TxDOT a P&P Letter of Credit in an amount not less than the amount of the P&P Bonds as calculated in accordance with Section 7.4.2 (as such amount shall be adjusted for each Maintenance Term for which a Maintenance NTP has been issued by TxDOT). If DB Contractor elects to provide a P&P Letter of Credit, DB Contractor also shall deliver to TxDOT a Guaranty satisfying the requirements of Section 7.6 at the same time the P&P Letter of Credit is provided to TxDOT. 7.2.1.1. The P&P Letter of Credit shall name TxDOT as 7.2.1.2. The P&P Letter of Credit shall comply with the provisions 7.2.1.3. TxDOT has determined, as permitted by Section 223.205 of the Code, that the P&P Letter of Credit identified in this Section 7.2 constitutes security sufficient to ensure the proper performance of DB Contractor’s obligations for maintaining the Maintenance Limits as required under this CMA and to protect TxDOT and claimants with respect thereto. 7.2.2 Increase in P&P Letter of Credit Amount 7.2.3 Payment Claims Against P&P Letter of Credit 7.2.3.1. Payment claims against the P&P Letter of Credit shall be governed by this Section 7.2.3. To ensure that all potential claimants receive notice of the procedures set forth in this Section 7.2.3, DB Contractor shall require that Sections 7.2.3.2 through 7.2.3.7 be restated, with the blanks filled in, in each Subcontract that includes Maintenance Services during the Maintenance Period and in all Subcontracts thereunder (including contracts with Suppliers) that include Maintenance Services during the Maintenance Period. In addition, each such Subcontract shall include a provision requiring the Subcontractor to provide formal notice regarding the claims procedures under this Section 7.2.3 to each employee performing public work labor (as such term is defined in Texas Government Code Section 2253.001) under the Subcontract, in the same manner in which equal opportunity notices are required to be given to employees. 7.2.3.2. This contract concerns a public works project for which a letter of credit has been posted to secure obligations that would otherwise be secured by a payment bond provided by [ ] (the “Prime Contractor”) pursuant to Section 223.205 of the Code. Each person or entity that would have the right under said statute to make a claim against a payment bond provided thereunder (a “Claimant”) will instead have the right to make a claim under said letter of credit, as described below. Such alternative security is authorized by and provided in accordance with Section 223.205 of the Code, and no Claimant will have any right to make a claim against TxDOT for failure to obtain a payment bond under Section 223.205 of the Code. Claimant’s agent; 7.2.3.3. All claims made pursuant to this Section 7.2.3 must: (a) Be in writing, signed, and sworn by the Claimant or the (b) Provide a general description of the labor, services, (c) State the Claimant’s name and address; (d) State the name of the person or entity to or for which the work or items were done or furnished, including the name and address of the party with which the Claimant contracted; (e) State the total amount claimed, and that such amount is (f) State the value of the work already performed or items (g) State the amount of any retainage that has not yet become due. A claim for retainage must include the amount of the contract, any amount paid, and the outstanding balance. However, to the extent that any prior claim made under this Section 7.2.3 included retainage, a separate subsequent claim for retainage need not be made. 7.2.3.4. The notices of claim must be delivered by certified or registered mail to the Prime Contractor at the following address: [ ], with a copy to DB Contractor if DB Contractor is separate from the Prime Contractor, at the following address: [ ], and a copy to the Texas Department of Transportation at the following address: [ ]. In addition, if the Claimant does not have a direct contract with the Prime Contractor, a copy must be delivered to [ ] [insert name of the party with which the Claimant has entered into a contract] at the following address: [ ]. 7.2.3.5. A Subcontractor that has a direct contractual relationship with the Prime Contractor shall make its claim, except for claims for payment of retainage, no later than the 15th day of the third month after each month in which any of the claimed labor was performed or any of the claimed material was delivered. A Subcontractor that does not have a direct contractual relationship with the Prime Contractor shall make its claim, except for claims for payment of retainage, no later than the 15th day of the second month after each month in which any of the claimed labor was performed or any of the claimed material was delivered. Claims for payment of retainage shall be made no later than the 90th day after the date of final completion of the Project. 7.2.3.6. Any lawsuit filed by a Claimant to enforce its claim must be filed no earlier than the 61st day after the date the notice was mailed to all recipients identified above and no later than one year after such mailing date. 7.2.3.7. To the maximum extent permitted by law, any claim not made within the specified deadline is forever waived and extinguished, and any lawsuit not filed within the specified deadline is forever barred. 7.2.4 Draws on the P&P Letter of Credit 7.2.4.1. The P&P Letter of Credit shall be subject to draw by TxDOT prior to expiration in accordance with Section 7.3.1.2. 7.2.4.2. The P&P Letter of Credit shall be subject to draw by TxDOT for the purpose of disbursement of funds owing to a Claimant under any one of the following circumstances: (a) TxDOT has received a copy of a claim that complies on its face with Section 7.2.3.2, together with a proof of delivery thereof to the Prime Contractor, and TxDOT has not received from the Prime Contractor, within 30 days after service of the notice of claim, a sworn notice stating (i) that the Prime Contractor contests the claim, (ii) whether the claim is contested in whole or in part, and if in part, the portion of the claim amount being contested, (iii) the grounds for contesting the claim and (iv) that the Prime Contractor is acting in good faith in contesting the claim; (b) Upon TxDOT’s receipt of a settlement agreement signed by all parties with competing interests to the funds that specifically provides that settlement funds are to be paid from the P&P Letter of Credit, in which case, such funds shall be disbursed according to the express terms of the settlement agreement; (c) Upon TxDOT’s receipt of an entered court order providing for payment of a claim from draw on the P&P Letter of Credit, in which case funds drawn shall be disbursed according to the terms of such court order; or (d) A claim has been made and notice thereof given in accordance with Section 7.2.3, and at that time, or at any other time during the pendency of the claim, the P&P LC Obligor is or becomes, voluntarily or involuntarily, a debtor in any bankruptcy proceeding under applicable Law. No beneficiary of a P&P Letter of Credit shall have any obligation to investigate, verify or ascertain the eligibility of the person making a claim as a Claimant, the validity of any claim, notice of contest of claim, settlement agreement or court order or whether the Claimant has timely provided notice of claim. Rather, for the purpose of determining whether the P&P Letter of Credit is subject to draw, the beneficiary may, without liability, conclusively assume eligibility of the person making a claim as a Claimant and timely notice of a claim, and may conclusively assume the truthfulness and validity of, and may rely on, the claim, notice of contest of claim, settlement agreement, court order or any other information submitted under this Section 7.2. 7.2.4.3. The P&P Letter of Credit shall be subject to draw by TxDOT due to the failure of DB Contractor to perform its obligations under the CMA Documents during the Maintenance Period. Any draw by TxDOT is subject to Section 12.3. 7.2.4.4. The P&P Letter of Credit shall also constitute security in favor of TxDOT for payment and performance of DB Contractor’s obligation to defend and indemnify TxDOT under Section 15, and accordingly will be subject to draw by TxDOT as provided in Section 12.3.

P&P Letter of Credit. As Maintenance O&M Security, DB Contractor may elect to provide and maintain a letter of credit in the amount and pursuant to the requirements set forth in this Section 7.2 (the “P&P Letter of Credit”). 7.2.1 DB Contractor shall obtain and deliver to TxDOT a P&P Letter of Credit in an amount not less than the amount of the P&P Bonds as calculated in accordance with Section 7.4.2 (as such amount shall be adjusted for each Maintenance Term for which a Maintenance NTP has been issued by TxDOT). If DB Contractor elects to provide a P&P Letter of Credit, DB Contractor also shall deliver to TxDOT a Guaranty satisfying the requirements of Section 7.6 at the same time the P&P Letter of Credit is provided to TxDOT. 7.2.1.1. The P&P Letter of Credit shall name TxDOT as 7.2.1.2. The P&P Letter of Credit shall comply with the provisionsprovisions and requirements of Section 7.3 except as permitted or required otherwise under this Section 7.2. The P&P Letter of Credit shall be maintained (through extensions or replacements as provided in Section 7.3.1.2), in full force and effect at all times from the date of delivery until at least one year and 90 Days after the end of the Maintenance Period. 7.2.1.3. TxDOT has determined, as permitted by Section 223.205 of the Code, that the P&P Letter of Credit identified in this Section 7.2 constitutes security sufficient to ensure the proper performance of DB Contractor’s obligations for maintaining the Maintenance Limits as required under this CMA COMA and to protect TxDOT and claimants with respect thereto. 7.2.2 Increase in P&P Letter of Credit Amount 7.2.3 Payment Claims Against P&P Letter of Credit 7.2.3.1. Payment claims against the P&P Letter of Credit shall be governed by this Section 7.2.3. To ensure that all potential claimants receive notice of the procedures set forth in this Section 7.2.3, DB Contractor shall require that Sections 7.2.3.2 through 7.2.3.7 be restated, with the blanks filled in, in each Subcontract that includes Maintenance Services during the Maintenance Period and in all Subcontracts thereunder (including contracts with Suppliers) that include Maintenance Services during the Maintenance Period. In addition, each such Subcontract shall include a provision requiring the Subcontractor to provide formal notice regarding the claims procedures under this Section 7.2.3 to each employee performing public work labor (as such term is defined in Texas Government Code Section 2253.001) under the Subcontract, in the same manner in which equal opportunity notices are required to be given to employees. 7.2.3.2. This contract concerns a public works project for which a letter of credit has been posted to secure obligations that would otherwise be secured by a payment bond provided by [ ] (the “Prime Contractor”) pursuant to Section 223.205 of the Code. Each person or entity that would have the right under said statute to make a claim against a payment bond provided thereunder (a “Claimant”) will instead have the right to make a claim under said letter of credit, as described below. Such alternative security is authorized by and provided in accordance with Section 223.205 of the Code, and no Claimant will have any right to make a claim against TxDOT for failure to obtain a payment bond under Section 223.205 of the Code. Claimant’s agent;. 7.2.3.3. All claims made pursuant to this Section 7.2.3 must: (a) Be in writing, signed, and sworn by the Claimant or thethe Claimant’s agent; (b) Provide a general description of the labor, services,, equipment or material furnished or agreed to be furnished, including the approximate dates and place of delivery or performance, in a manner that reasonably identifies the labor, services, equipment or material; (c) State the Claimant’s name and address; (d) State the name of the person or entity to or for which the work or items were done or furnished, including the name and address of the party with which the Claimant contracted; (e) State the total amount claimed, and that such amount is (f) State the value of the work already performed or items (g) State the amount of any retainage that has not yet become due. A claim for retainage must include the amount of the contract, any amount paid, and the outstanding balance. However, to the extent that any prior claim made under this Section 7.2.3 included retainage, a separate subsequent claim for retainage need not be made. 7.2.3.4. The notices of claim must be delivered by certified or registered mail to the Prime Contractor at the following address: [ ], with a copy to DB Contractor if DB Contractor is separate from the Prime Contractor, at the following address: [ ], and a copy to the Texas Department of Transportation at the following address: [ ]. In addition, if the Claimant does not have a direct contract with the Prime Contractor, a copy must be delivered to [ ] [insert name of the party with which the Claimant has entered into a contract] at the following address: [ ]. 7.2.3.5. A Subcontractor that has a direct contractual relationship with the Prime Contractor shall make its claim, except for claims for payment of retainage, no later than the 15th day of the third month after each month in which any of the claimed labor was performed or any of the claimed material was delivered. A Subcontractor that does not have a direct contractual relationship with the Prime Contractor shall make its claim, except for claims for payment of retainage, no later than the 15th day of the second month after each month in which any of the claimed labor was performed or any of the claimed material was delivered. Claims for payment of retainage shall be made no later than the 90th day after the date of final completion of the Project. 7.2.3.6. Any lawsuit filed by a Claimant to enforce its claim must be filed no earlier than the 61st day after the date the notice was mailed to all recipients identified above and no later than one year after such mailing date. 7.2.3.7. To the maximum extent permitted by law, any claim not made within the specified deadline is forever waived and extinguished, and any lawsuit not filed within the specified deadline is forever barred. 7.2.4 Draws on the P&P Letter of Credit 7.2.4.1. The P&P Letter of Credit shall be subject to draw by TxDOT prior to expiration in accordance with Section 7.3.1.2. 7.2.4.2. The P&P Letter of Credit shall be subject to draw by TxDOT for the purpose of disbursement of funds owing to a Claimant under any one of the following circumstances: (a) TxDOT has received a copy of a claim that complies on its face with Section 7.2.3.2, together with a proof of delivery thereof to the Prime Contractor, and TxDOT has not received from the Prime Contractor, within 30 days after service of the notice of claim, a sworn notice stating (i) that the Prime Contractor contests the claim, (ii) whether the claim is contested in whole or in part, and if in part, the portion of the claim amount being contested, (iii) the grounds for contesting the claim and (iv) that the Prime Contractor is acting in good faith in contesting the claim; (b) Upon TxDOT’s receipt of a settlement agreement signed by all parties with competing interests to the funds that specifically provides that settlement funds are to be paid from the P&P Letter of Credit, in which case, such funds shall be disbursed according to the express terms of the settlement agreement; (c) Upon TxDOT’s receipt of an entered court order providing for payment of a claim from draw on the P&P Letter of Credit, in which case funds drawn shall be disbursed according to the terms of such court order; or (d) A claim has been made and notice thereof given in accordance with Section 7.2.3, and at that time, or at any other time during the pendency of the claim, the P&P LC Obligor is or becomes, voluntarily or involuntarily, a debtor in any bankruptcy proceeding under applicable Law. No beneficiary of a P&P Letter of Credit shall have any obligation to investigate, verify or ascertain the eligibility of the person making a claim as a Claimant, the validity of any claim, notice of contest of claim, settlement agreement or court order or whether the Claimant has timely provided notice of claim. Rather, for the purpose of determining whether the P&P Letter of Credit is subject to draw, the beneficiary may, without liability, conclusively assume eligibility of the person making a claim as a Claimant and timely notice of a claim, and may conclusively assume the truthfulness and validity of, and may rely on, the claim, notice of contest of claim, settlement agreement, court order or any other information submitted under this Section 7.2. 7.2.4.3. The P&P Letter of Credit shall be subject to draw by TxDOT due to the failure of DB Contractor to perform its obligations under the CMA COMA Documents during the Maintenance Period. Any draw by TxDOT is subject to Section 12.3. 7.2.4.4. The P&P Letter of Credit shall also constitute security in favor of TxDOT for payment and performance of DB Contractor’s obligation to defend and indemnify TxDOT under Section 15, and accordingly will be subject to draw by TxDOT as provided in Section 12.3.

P&P Letter of Credit. As Maintenance O&M Security, DB Maintenance Contractor may elect to provide and maintain a letter of credit in the amount and pursuant to the requirements set forth in this Section 7.2 (the “P&P Letter of Credit”). 7.2.1 DB Maintenance Contractor shall obtain and deliver to TxDOT a P&P Letter of Credit in an amount not less than the amount of the P&P Bonds as calculated in accordance with Section 7.4.2 $100,000,000 (as such amount shall be adjusted for each in accordance with Section 7.2.2.2, the “Maximum P&P LC Amount”) identifying Maintenance Term for which a Maintenance NTP has been issued by TxDOT). If DB Contractor elects to provide a as the obligor under the P&P Letter of CreditCredit (the “P&P LC Obligor”), DB securing all of Maintenance Contractor’s obligations during the Maintenance Term and to ensure that payments owing to claimants are made with respect to the Maintenance Services. Notwithstanding the foregoing, Maintenance Contractor also may deliver to TxDOT the P&P Letter of Credit in an amount less than the Maximum P&P LC Amount so long as (i) the amount of the P&P Letter of Credit is not less than $40,000,000 (as such amount shall deliver be adjusted in accordance with Section 7.2.2.2) and (ii) Maintenance Contractor delivers to TxDOT a Guaranty satisfying the requirements of Section 7.6 at the same time the P&P Letter of Credit is provided to TxDOT. 7.2.1.1. The P&P Letter of Credit shall name TxDOT as 7.2.1.2. The P&P Letter of Credit shall comply with the provisions 7.2.1.3. TxDOT has determined, as permitted by Section 223.205 of the Code, that the P&P Letter of Credit identified in this Section 7.2 constitutes security sufficient to ensure the proper performance of DB Maintenance Contractor’s obligations for maintaining the Maintenance O&M Limits as required under this CMA COMA and to protect TxDOT and claimants with respect thereto. 7.2.2 Increase in P&P Letter of Credit Amount 7.2.3 7.2.2.1. If TxDOT does not receive any certificate that amounts payable to any designers, consultants, Subcontractors and Suppliers for the completed Maintenance Services have been paid (including evidence of wages paid) as required by Exhibit 11, it may require Maintenance Contractor to immediately increase the amount of the P&P Letter of Credit to such amount as TxDOT determines is appropriate to protect its interests and the Project, provided that the amount of any such increase shall not exceed the value of work for which TxDOT did not receive any such certificate. 7.2.2.2. The amounts described in Section 7.2.1 shall be adjusted annually based on changes in the CCI commencing on the Effective Date and continuing annually thereafter during the Term and the P&P Letter of Credit shall be increased by Maintenance Contractor in accordance with such adjustments. 7.2.2.3. Payment Claims Against P&P Letter of Credit 7.2.3.17.2.2.4. Payment claims against the P&P Letter of Credit shall be governed by this Section 7.2.3. To ensure that all potential claimants receive notice of the procedures set forth in this Section 7.2.3, DB Maintenance Contractor shall require that Sections 7.2.3.2 7.2.3.1 through 7.2.3.7 7.2.3.6 be restated, with the blanks filled in, in each Subcontract that includes Maintenance Services during the Maintenance Period Term and in all Subcontracts thereunder (including contracts with Suppliers) that include Maintenance Services during the Maintenance PeriodTerm. In addition, each such Subcontract shall include a provision requiring the Subcontractor to provide formal notice regarding the claims procedures under this Section 7.2.3 to each employee performing public work labor (as such term is defined in Texas Government Code Section 2253.001) under the Subcontract, in the same manner in which equal opportunity notices are required to be given to employees. 7.2.3.27.2.2.5. This contract concerns a public works project (the “Project”) for which a letter of credit has been posted to secure obligations that would otherwise be secured by a payment bond provided by [ ] (the “Prime Contractor”) pursuant to Section 223.205 of the Code. Each person or entity that would have the right under said statute to make a claim against a payment bond provided thereunder (a “Claimant”) will instead have the right to make a claim under said letter of credit, as described below. Such alternative security is authorized by and provided in accordance with Section 223.205 of the Code, and no Claimant will have any right to make a claim against TxDOT for failure to obtain a payment bond under Section 223.205 of the Code. Claimant’s agent;. 7.2.3.37.2.2.6. All claims made pursuant to this Section 7.2.3 must: (a) Be in writing, signed, and sworn by the Claimant or thethe Claimant’s agent; (b) Provide a general description of the labor, services,, equipment or material furnished or agreed to be furnished, including the approximate dates and place of delivery or performance, in a manner that reasonably identifies the labor, services, equipment or material; (c) State the Claimant’s name and address; (d) State the name of the person or entity to or for which the work or items were done or furnished, including the name and address of the party with which the Claimant contracted;which (e) State the total amount claimed, and that such amount is (f) State the value of the work already performed or items (g) State the amount of any retainage that has not yet become due. A claim for retainage must include the amount of the contract, any amount paid, and the outstanding balance. However, to the extent that any prior claim made under this Section 7.2.3 included retainage, a separate subsequent claim for retainage need not be made. 7.2.3.47.2.2.7. The notices of claim must be delivered by certified or registered mail to the Prime Contractor at the following address: [ ], with a copy to DB Maintenance Contractor if DB Maintenance Contractor is separate from the Prime Contractor, at the following address: [ ], and a copy to the Texas Department of Transportation at the following address: [ ]. In addition, if the Claimant does not have a direct contract with the Prime Contractor, a copy must be delivered to [ ] [insert name of the party with which the Claimant has entered into a contract] at the following address: [ ]. 7.2.3.57.2.2.8. A Subcontractor that has a direct contractual relationship with the Prime Contractor shall make its claim, except for claims for payment of retainage, no later than the 15th day of the third month after each month in which any of the claimed labor was performed or any of the claimed material was delivered. A Subcontractor that does not have a direct contractual relationship with the Prime Contractor shall make its claim, except for claims for payment of retainage, no later than the 15th day of the second month after each month in which any of the claimed labor was performed or any of the claimed material was delivered. Claims for payment of retainage shall be made no later than the 90th day after the date of final completion of the Project. 7.2.3.67.2.2.9. Any lawsuit filed by a Claimant to enforce its claim must be filed no earlier than the 61st day after the date the notice was mailed to all recipients identified above and no later than one year after such mailing date. 7.2.3.77.2.2.10. To the maximum extent permitted by law, any claim not made within the specified deadline is forever waived and extinguished, and any lawsuit not filed within the specified deadline is forever barred. 7.2.4 7.2.3 Draws on the P&P Letter of Credit 7.2.4.17.2.3.1. The P&P Letter of Credit shall be subject to draw by TxDOT prior to expiration in accordance with Section 7.3.1.2. 7.2.4.27.2.3.2. The P&P Letter of Credit shall be subject to draw by TxDOT for the purpose of disbursement of funds owing to a Claimant under any one of the following circumstances: (a) TxDOT has received a copy of a claim that complies on its face with Section 7.2.3.2, together with a proof of delivery thereof to the Prime Contractor, and TxDOT has not received from the Prime Contractor, within 30 days after service of the notice of claim, a sworn notice stating (i) that the Prime Contractor contests the claim, (ii) whether the claim is contested in whole or in part, and if in part, the portion of the claim amount being contested, (iii) the grounds for contesting the claim and (iv) that the Prime Contractor is acting in good faith in contesting the claim; (b) Upon TxDOT’s receipt of a settlement agreement signed by all parties with competing interests to the funds that specifically provides that settlement funds are to be paid from the P&P Letter of Credit, in which case, such funds shall be disbursed according to the express terms of the settlement agreement; (c) Upon TxDOT’s receipt of an entered court order providing for payment of a claim from draw on the P&P Letter of Credit, in which case funds drawn shall be disbursed according to the terms of such court order; or (d) A claim has been made and notice thereof given in accordance with Section 7.2.3, and at that time, or at any other time during the pendency of the claim, the P&P LC Obligor is or becomes, voluntarily or involuntarily, a debtor in any bankruptcy proceeding under applicable Law. No beneficiary of a an P&P Letter of Credit shall have any obligation to investigate, verify or ascertain the eligibility of the person making a claim as a Claimant, the validity of any claim, notice of contest of claim, settlement agreement or court order or whether the Claimant has timely provided notice of claim. Rather, for the purpose of determining whether the P&P Letter of Credit is subject to draw, the beneficiary may, without liability, conclusively assume eligibility of the person making a claim as a Claimant and timely notice of a claim, and may conclusively assume the truthfulness and validity of, and may rely on, the claim, notice of contest of claim, settlement agreement, court order or any other information submitted under this Section 7.2. 7.2.4.37.2.3.3. The P&P Letter of Credit shall be subject to draw by TxDOT due to the failure of DB Maintenance Contractor to perform its obligations under the CMA Contract Documents during the Maintenance PeriodTerm. Any draw by TxDOT is subject to Section 12.3. 7.2.4.47.2.3.4. The P&P Letter of Credit shall also constitute security in favor of TxDOT for payment and performance of DB Maintenance Contractor’s obligation to defend and indemnify TxDOT under Section 15, and accordingly will be subject to draw by TxDOT as provided in Section 12.3.as

P&P Letter of Credit. As Maintenance O&M Security, DB Contractor may elect to provide and maintain a letter of credit in the amount and pursuant to the requirements set forth in this Section 7.2 (the “P&P Letter of Credit”). 7.2.1 DB Contractor shall obtain and deliver to TxDOT a P&P Letter of Credit in an amount not less than the amount of the P&P Bonds as calculated in accordance with Section 7.4.2 $100,000,000 (as such amount shall be adjusted for each Maintenance Term for which a Maintenance NTP has been issued by TxDOT). If in accordance with Section 7.2.2.2, the “Maximum P&P LC Amount”) identifying DB Contractor elects to provide a as the obligor under the P&P Letter of CreditCredit (the “P&P LC Obligor”), securing all of DB Contractor’s obligations during the Maintenance Period and to ensure that payments owing to claimants are made with respect to the Maintenance Services. Notwithstanding the foregoing, DB Contractor also may deliver to TxDOT the P&P Letter of Credit in an amount less than the Maximum P&P LC Amount so long as (i) the amount of the P&P Letter of Credit is not less than $40,000,000 (as such amount shall deliver be adjusted in accordance with Section 7.2.2.2) and (ii) DB Contractor delivers to TxDOT a Guaranty satisfying the requirements of Section 7.6 at the same time the P&P Letter of Credit is provided to TxDOT. 7.2.1.1. The P&P Letter of Credit shall name TxDOT as 7.2.1.2. The P&P Letter of Credit shall comply with the provisions 7.2.1.3. TxDOT has determined, as permitted by Section 223.205 of the Code, that the P&P Letter of Credit identified in this Section 7.2 constitutes security sufficient to ensure the proper performance of DB Contractor’s obligations for maintaining the Maintenance Limits as required under this CMA COMA and to protect TxDOT and claimants with respect thereto. 7.2.2 Increase in P&P Letter of Credit Amount 7.2.2.1. If TxDOT does not receive any certificate that amounts payable to any designers, consultants, Subcontractors and Suppliers for the completed Maintenance Services have been paid (including evidence of wages paid) as required by Exhibit 11, it may require DB Contractor to immediately increase the amount of the P&P Letter of Credit to such amount as TxDOT determines is appropriate to protect its interests and the Project, provided that the amount of any such increase shall not exceed the value of work for which TxDOT did not receive any such certificate. 7.2.2.2. The amounts described in Section 7.2.1 shall be adjusted annually based on changes in the CCI commencing on the Effective Date and continuing annually thereafter during the Maintenance Period and the P&P Letter of Credit shall be increased by DB Contractor in accordance with such adjustments. 7.2.3 Payment Claims Against P&P Letter of Credit 7.2.3.1. Payment claims against the P&P Letter of Credit shall be governed by this Section 7.2.3. To ensure that all potential claimants receive notice of the procedures set forth in this Section 7.2.3, DB Contractor shall require that Sections 7.2.3.2 7.2.3.1 through 7.2.3.7 7.2.3.6 be restated, with the blanks filled in, in each Subcontract that includes Maintenance Services during the Maintenance Period and in all Subcontracts thereunder (including contracts with Suppliers) that include Maintenance Services during the Maintenance Period. In addition, each such Subcontract shall include a provision requiring the Subcontractor to provide formal notice regarding the claims procedures under this Section 7.2.3 to each employee performing public work labor (as such term is defined in Texas Government Code Section 2253.001) under the Subcontract, in the same manner in which equal opportunity notices are required to be given to employees. 7.2.3.2. This contract concerns a public works project (the “Project”) for which a letter of credit has been posted to secure obligations that would otherwise be secured by a payment bond provided by [ ] (the “Prime Contractor”) pursuant to Section 223.205 of the Code. Each person or entity that would have the right under said statute to make a claim against a payment bond provided thereunder (a “Claimant”) will instead have the right to make a claim under said letter of credit, as described below. Such alternative security is authorized by and provided in accordance with Section 223.205 of the Code, and no Claimant will have any right to make a claim against TxDOT for failure to obtain a payment bond under Section 223.205 of the Code. Claimant’s agent;. 7.2.3.3. All claims made pursuant to this Section 7.2.3 must: (a) Be in writing, signed, and sworn by the Claimant or thethe Claimant’s agent; (b) Provide a general description of the labor, services,, equipment or material furnished or agreed to be furnished, including the approximate dates and place of delivery or performance, in a manner that reasonably identifies the labor, services, equipment or material; (c) State the Claimant’s name and address; (d) State the name of the person or entity to or for which the work or items were done or furnished, including the name and address of the party with which the Claimant contracted;which (e) State the total amount claimed, and that such amount is (f) State the value of the work already performed or items (g) State the amount of any retainage that has not yet become due. A claim for retainage must include the amount of the contract, any amount paid, and the outstanding balance. However, to the extent that any prior claim made under this Section 7.2.3 included retainage, a separate subsequent claim for retainage need not be made. 7.2.3.4. The notices of claim must be delivered by certified or registered mail to the Prime Contractor at the following address: [ ], with a copy to DB Contractor if DB Contractor is separate from the Prime Contractor, at the following address: [ ], and a copy to the Texas Department of Transportation at the following address: [ ]. In addition, if the Claimant does not have a direct contract with the Prime Contractor, a copy must be delivered to [ ] [insert name of the party with which the Claimant has entered into a contract] at the following address: [ ]. 7.2.3.5. A Subcontractor that has a direct contractual relationship with the Prime Contractor shall make its claim, except for claims for payment of retainage, no later than the 15th day of the third month after each month in which any of the claimed labor was performed or any of the claimed material was delivered. A Subcontractor that does not have a direct contractual relationship with the Prime Contractor shall make its claim, except for claims for payment of retainage, no later than the 15th day of the second month after each month in which any of the claimed labor was performed or any of the claimed material was delivered. Claims for payment of retainage shall be made no later than the 90th day after the date of final completion of the Project. 7.2.3.6. Any lawsuit filed by a Claimant to enforce its claim must be filed no earlier than the 61st day after the date the notice was mailed to all recipients identified above and no later than one year after such mailing date. 7.2.3.7. To the maximum extent permitted by law, any claim not made within the specified deadline is forever waived and extinguished, and any lawsuit not filed within the specified deadline is forever barred. 7.2.4 Draws on the P&P Letter of Credit 7.2.4.1. The P&P Letter of Credit shall be subject to draw by TxDOT prior to expiration in accordance with Section 7.3.1.2. 7.2.4.2. The P&P Letter of Credit shall be subject to draw by TxDOT for the purpose of disbursement of funds owing to a Claimant under any one of the following circumstances: (a) TxDOT has received a copy of a claim that complies on its face with Section 7.2.3.2, together with a proof of delivery thereof to the Prime Contractor, and TxDOT has not received from the Prime Contractor, within 30 days after service of the notice of claim, a sworn notice stating (i) that the Prime Contractor contests the claim, (ii) whether the claim is contested in whole or in part, and if in part, the portion of the claim amount being contested, (iii) the grounds for contesting the claim and (iv) that the Prime Contractor is acting in good faith in contesting the claim; (b) Upon TxDOT’s receipt of a settlement agreement signed by all parties with competing interests to the funds that specifically provides that settlement funds are to be paid from the P&P Letter of Credit, in which case, such funds shall be disbursed according to the express terms of the settlement agreement; (c) Upon TxDOT’s receipt of an entered court order providing for payment of a claim from draw on the P&P Letter of Credit, in which case funds drawn shall be disbursed according to the terms of such court order; or (d) A claim has been made and notice thereof given in accordance with Section 7.2.3, and at that time, or at any other time during the pendency of the claim, the P&P LC Obligor is or becomes, voluntarily or involuntarily, a debtor in any bankruptcy proceeding under applicable Law. No beneficiary of a an P&P Letter of Credit shall have any obligation to investigate, verify or ascertain the eligibility of the person making a claim as a Claimant, the validity of any claim, notice of contest of claim, settlement agreement or court order or whether the Claimant has timely provided notice of claim. Rather, for the purpose of determining whether the P&P Letter of Credit is subject to draw, the beneficiary may, without liability, conclusively assume eligibility of the person making a claim as a Claimant and timely notice of a claim, and may conclusively assume the truthfulness and validity of, and may rely on, the claim, notice of contest of claim, settlement agreement, court order or any other information submitted under this Section 7.2. 7.2.4.3. The P&P Letter of Credit shall be subject to draw by TxDOT due to the failure of DB Contractor to perform its obligations under the CMA Contract Documents during the Maintenance Period. Any draw by TxDOT is subject to Section 12.3. 7.2.4.4. The P&P Letter of Credit shall also constitute security in favor of TxDOT for payment and performance of DB Contractor’s obligation to defend and indemnify TxDOT under Section 15, and accordingly will be subject to draw by TxDOT as provided in Section 12.3.

P&P Letter of Credit. As Maintenance O&M Security, DB Contractor may elect to provide and maintain a letter of credit in the amount and pursuant to the requirements set forth in this Section 7.2 (the “P&P Letter of Credit”). 7.2.1 DB Contractor shall obtain and deliver to TxDOT a P&P Letter of Credit in an amount not less than the amount of the P&P Bonds as calculated in accordance with Section 7.4.2 (as such amount shall be adjusted for each Maintenance Term for which a Maintenance NTP has been issued by TxDOT). If DB Contractor elects to provide a P&P Letter of Credit, DB Contractor also shall deliver to TxDOT a Guaranty satisfying the requirements of Section 7.6 at the same time the P&P Letter of Credit is provided to TxDOT. 7.2.1.1. The P&P Letter of Credit shall name TxDOT as 7.2.1.2. The P&P Letter of Credit shall comply with the provisionsprovisions and requirements of Section 7.3 except as permitted or required otherwise under this Section 7.2. The P&P Letter of Credit shall be maintained (through extensions or replacements as provided in Section 7.3.1.2), in full force and effect at all times from the date of delivery until at least one year and 90 Days after the end of the Maintenance Period. 7.2.1.3. TxDOT has determined, as permitted by Section 223.205 of the Code, that the P&P Letter of Credit identified in this Section 7.2 constitutes security sufficient to ensure the proper performance of DB Contractor’s obligations for maintaining the Maintenance Limits as required under this CMA COMA and to protect TxDOT and claimants with respect thereto. 7.2.2 Increase in P&P Letter of Credit Amount 7.2.3 Payment Claims Against P&P Letter of Credit 7.2.3.1. Payment claims against the P&P Letter of Credit shall be governed by this Section 7.2.3. To ensure that all potential claimants receive notice of the procedures set forth in this Section 7.2.3, DB Contractor shall require that Sections 7.2.3.2 through 7.2.3.7 be restated, with the blanks filled in, in each Subcontract that includes Maintenance Services during the Maintenance Period and in all Subcontracts thereunder (including contracts with Suppliers) that include Maintenance Services during the Maintenance Period. In addition, each such Subcontract shall include a provision requiring the Subcontractor to provide formal notice regarding the claims procedures under this Section 7.2.3 to each employee performing public work labor (as such term is defined in Texas Government Code Section 2253.001) under the Subcontract, in the same manner in which equal opportunity notices are required to be given to employees. 7.2.3.2. This contract concerns a public works project for which a letter of credit has been posted to secure obligations that would otherwise be secured by a payment bond provided by [ ] (the “Prime Contractor”) pursuant to Section 223.205 of the Code. Each person or entity that would have the right under said statute to make a claim against a payment bond provided thereunder (a “Claimant”) will instead have the right to make a claim under said letter of credit, as described below. Such alternative security is authorized by and provided in accordance with Section 223.205 of the Code, and no Claimant will have any right to make a claim against TxDOT for failure to obtain a payment bond under Section 223.205 of the Code. Claimant’s agent;. 7.2.3.3. All claims made pursuant to this Section 7.2.3 must: (a) Be in writing, signed, and sworn by the Claimant or thethe Claimant’s agent; (b) Provide a general description of the labor, services, (c) State the Claimant’s name and address; (d) State the name of the person , equipment or entity material furnished or agreed to or for which the work or items were done or be furnished, including the name approximate dates and address of the party with which the Claimant contracted; (e) State the total amount claimed, and that such amount is (f) State the value of the work already performed or items (g) State the amount of any retainage that has not yet become due. A claim for retainage must include the amount of the contract, any amount paid, and the outstanding balance. However, to the extent that any prior claim made under this Section 7.2.3 included retainage, a separate subsequent claim for retainage need not be made. 7.2.3.4. The notices of claim must be delivered by certified or registered mail to the Prime Contractor at the following address: [ ], with a copy to DB Contractor if DB Contractor is separate from the Prime Contractor, at the following address: [ ], and a copy to the Texas Department of Transportation at the following address: [ ]. In addition, if the Claimant does not have a direct contract with the Prime Contractor, a copy must be delivered to [ ] [insert name of the party with which the Claimant has entered into a contract] at the following address: [ ]. 7.2.3.5. A Subcontractor that has a direct contractual relationship with the Prime Contractor shall make its claim, except for claims for payment of retainage, no later than the 15th day of the third month after each month in which any of the claimed labor was performed or any of the claimed material was delivered. A Subcontractor that does not have a direct contractual relationship with the Prime Contractor shall make its claim, except for claims for payment of retainage, no later than the 15th day of the second month after each month in which any of the claimed labor was performed or any of the claimed material was delivered. Claims for payment of retainage shall be made no later than the 90th day after the date of final completion of the Project. 7.2.3.6. Any lawsuit filed by a Claimant to enforce its claim must be filed no earlier than the 61st day after the date the notice was mailed to all recipients identified above and no later than one year after such mailing date. 7.2.3.7. To the maximum extent permitted by law, any claim not made within the specified deadline is forever waived and extinguished, and any lawsuit not filed within the specified deadline is forever barred. 7.2.4 Draws on the P&P Letter of Credit 7.2.4.1. The P&P Letter of Credit shall be subject to draw by TxDOT prior to expiration in accordance with Section 7.3.1.2. 7.2.4.2. The P&P Letter of Credit shall be subject to draw by TxDOT for the purpose of disbursement of funds owing to a Claimant under any one of the following circumstances: (a) TxDOT has received a copy of a claim that complies on its face with Section 7.2.3.2, together with a proof place of delivery thereof to the Prime Contractor, and TxDOT has not received from the Prime Contractor, within 30 days after service of the notice of claim, a sworn notice stating (i) that the Prime Contractor contests the claim, (ii) whether the claim is contested in whole or in part, and if in part, the portion of the claim amount being contested, (iii) the grounds for contesting the claim and (iv) that the Prime Contractor is acting in good faith in contesting the claim; (b) Upon TxDOT’s receipt of a settlement agreement signed by all parties with competing interests to the funds that specifically provides that settlement funds are to be paid from the P&P Letter of Creditperformance, in which casea manner that reasonably identifies the labor, such funds shall be disbursed according to the express terms of the settlement agreementservices, equipment or material; (c) Upon TxDOT’s receipt of an entered court order providing for payment of a claim from draw on the P&P Letter of Credit, in which case funds drawn shall be disbursed according to the terms of such court order; or (d) A claim has been made and notice thereof given in accordance with Section 7.2.3, and at that time, or at any other time during the pendency of the claim, the P&P LC Obligor is or becomes, voluntarily or involuntarily, a debtor in any bankruptcy proceeding under applicable Law. No beneficiary of a P&P Letter of Credit shall have any obligation to investigate, verify or ascertain the eligibility of the person making a claim as a Claimant, the validity of any claim, notice of contest of claim, settlement agreement or court order or whether the Claimant has timely provided notice of claim. Rather, for the purpose of determining whether the P&P Letter of Credit is subject to draw, the beneficiary may, without liability, conclusively assume eligibility of the person making a claim as a Claimant and timely notice of a claim, and may conclusively assume the truthfulness and validity of, and may rely on, the claim, notice of contest of claim, settlement agreement, court order or any other information submitted under this Section 7.2. 7.2.4.3. The P&P Letter of Credit shall be subject to draw by TxDOT due to the failure of DB Contractor to perform its obligations under the CMA Documents during the Maintenance Period. Any draw by TxDOT is subject to Section 12.3. 7.2.4.4. The P&P Letter of Credit shall also constitute security in favor of TxDOT for payment and performance of DB Contractor’s obligation to defend and indemnify TxDOT under Section 15, and accordingly will be subject to draw by TxDOT as provided in Section 12.3.

P&P Letter of Credit. As Maintenance O&M Security, DB Contractor may elect to provide and maintain a letter of credit in the amount and pursuant to the requirements set forth in this Section 7.2 (the “P&P Letter of Credit”). 7.2.1 DB Contractor shall obtain and deliver to TxDOT a P&P Letter of Credit in an amount not less than the amount of the P&P Bonds as calculated in accordance with Section 7.4.2 $100,000,000 (as such amount shall be adjusted for each Maintenance Term for which a Maintenance NTP has been issued by TxDOT). If in accordance with Section 7.2.2.2, the “Maximum P&P LC Amount”) identifying DB Contractor elects to provide a as the obligor under the P&P Letter of CreditCredit (the “P&P LC Obligor”), securing all of DB Contractor’s obligations during the Maintenance Period and to ensure that payments owing to claimants are made with respect to the Maintenance Services. Notwithstanding the foregoing, DB Contractor also may deliver to TxDOT the P&P Letter of Credit in an amount less than the Maximum P&P LC Amount so long as (i) the amount of the P&P Letter of Credit is not less than $40,000,000 (as such amount shall deliver be adjusted in accordance with Section 7.2.2.2) and (ii) DB Contractor delivers to TxDOT a Guaranty satisfying the requirements of Section 7.6 at the same time the P&P Letter of Credit is provided to TxDOT. 7.2.1.1. The P&P Letter of Credit shall name TxDOT as 7.2.1.2. The P&P Letter of Credit shall comply with the provisions 7.2.1.3. TxDOT has determined, as permitted by Section 223.205 of the Code, that the P&P Letter of Credit identified in this Section 7.2 constitutes security sufficient to ensure the proper performance of DB Contractor’s obligations for maintaining the Maintenance Limits as required under this CMA COMA and to protect TxDOT and claimants with respect thereto. 7.2.2 Increase in P&P Letter of Credit Amount 7.2.2.1. If TxDOT does not receive any certificate that amounts payable to any designers, consultants, Subcontractors and Suppliers for the completed Maintenance Services have been paid (including evidence of wages paid) as required by Exhibit 11, it may require DB Contractor to immediately increase the amount of the P&P Letter of Credit to such amount as TxDOT determines is appropriate to protect its interests and the Project, provided that the amount of any such increase shall not exceed the value of work for which TxDOT did not receive any such certificate. 7.2.2.2. The amounts described in Section 7.2.1 shall be adjusted annually based on changes in the CCI commencing on the Effective Date and continuing annually thereafter during the Maintenance Period and the P&P Letter of Credit shall be increased by DB Contractor in accordance with such adjustments. 7.2.3 Payment Claims Against P&P Letter of Credit 7.2.3.1. Payment claims against the P&P Letter of Credit shall be governed by this Section 7.2.3. To ensure that all potential claimants receive notice of the procedures set forth in this Section 7.2.3, DB Contractor shall require that Sections 7.2.3.2 through 7.2.3.7 be restated, with the blanks filled in, in each Subcontract that includes Maintenance Services during the Maintenance Period and in all Subcontracts thereunder (including contracts with Suppliers) that include Maintenance Services during the Maintenance Period. In addition, each such Subcontract shall include a provision requiring the Subcontractor to provide formal notice regarding the claims procedures under this Section 7.2.3 to each employee performing public work labor (as such term is defined in Texas Government Code Section 2253.001) under the Subcontract, in the same manner in which equal opportunity notices are required to be given to employees. 7.2.3.2. This contract concerns a public works project for which a letter of credit has been posted to secure obligations that would otherwise be secured by a payment bond provided by [ ] (the “Prime Contractor”) pursuant to Section 223.205 of the Code. Each person or entity that would have the right under said statute to make a claim against a payment bond provided thereunder (a “Claimant”) will instead have the right to make a claim under said letter of credit, as described below. Such alternative security is authorized by and provided in accordance with Section 223.205 of the Code, and no Claimant will have any right to make a claim against TxDOT for failure to obtain a payment bond under Section 223.205 of the Code. Claimant’s agent;. 7.2.3.3. All claims made pursuant to this Section 7.2.3 must: (a) Be in writing, signed, and sworn by the Claimant or thethe Claimant’s agent; (b) Provide a general description of the labor, services,, equipment or material furnished or agreed to be furnished, including the approximate dates and place of delivery or performance, in a manner that reasonably identifies the labor, services, equipment or material; (c) State the Claimant’s name and address; (d) State the name of the person or entity to or for which the work or items were done or furnished, including the name and address of the party with which the Claimant contracted;which (e) State the total amount claimed, and that such amount is (f) State the value of the work already performed or items (g) State the amount of any retainage that has not yet become due. A claim for retainage must include the amount of the contract, any amount paid, and the outstanding balance. However, to the extent that any prior claim made under this Section 7.2.3 included retainage, a separate subsequent claim for retainage need not be made. 7.2.3.4. The notices of claim must be delivered by certified or registered mail to the Prime Contractor at the following address: [ ], with a copy to DB Contractor if DB Contractor is separate from the Prime Contractor, at the following address: [ ], and a copy to the Texas Department of Transportation at the following address: [ ]. In addition, if the Claimant does not have a direct contract with the Prime Contractor, a copy must be delivered to [ ] [insert name of the party with which the Claimant has entered into a contract] at the following address: [ ]. 7.2.3.5. A Subcontractor that has a direct contractual relationship with the Prime Contractor shall make its claim, except for claims for payment of retainage, no later than the 15th day of the third month after each month in which any of the claimed labor was performed or any of the claimed material was delivered. A Subcontractor that does not have a direct contractual relationship with the Prime Contractor shall make its claim, except for claims for payment of retainage, no later than the 15th day of the second month after each month in which any of the claimed labor was performed or any of the claimed material was delivered. Claims for payment of retainage shall be made no later than the 90th day after the date of final completion of the Project. 7.2.3.6. Any lawsuit filed by a Claimant to enforce its claim must be filed no earlier than the 61st day after the date the notice was mailed to all recipients identified above and no later than one year after such mailing date. 7.2.3.7. To the maximum extent permitted by law, any claim not made within the specified deadline is forever waived and extinguished, and any lawsuit not filed within the specified deadline is forever barred. 7.2.4 Draws on the P&P Letter of Credit 7.2.4.1. The P&P Letter of Credit shall be subject to draw by TxDOT prior to expiration in accordance with Section 7.3.1.2. 7.2.4.2. The P&P Letter of Credit shall be subject to draw by TxDOT for the purpose of disbursement of funds owing to a Claimant under any one of the following circumstances: (a) TxDOT has received a copy of a claim that complies on its face with Section 7.2.3.2, together with a proof of delivery thereof to the Prime Contractor, and TxDOT has not received from the Prime Contractor, within 30 days after service of the notice of claim, a sworn notice stating (i) that the Prime Contractor contests the claim, (ii) whether the claim is contested in whole or in part, and if in part, the portion of the claim amount being contested, (iii) the grounds for contesting the claim and (iv) that the Prime Contractor is acting in good faith in contesting the claim; (b) Upon TxDOT’s receipt of a settlement agreement signed by all parties with competing interests to the funds that specifically provides that settlement funds are to be paid from the P&P Letter of Credit, in which case, such funds shall be disbursed according to the express terms of the settlement agreement; (c) Upon TxDOT’s receipt of an entered court order providing for payment of a claim from draw on the P&P Letter of Credit, in which case funds drawn shall be disbursed according to the terms of such court order; or (d) A claim has been made and notice thereof given in accordance with Section 7.2.3, and at that time, or at any other time during the pendency of the claim, the P&P LC Obligor is or becomes, voluntarily or involuntarily, a debtor in any bankruptcy proceeding under applicable Law. No beneficiary of a P&P Letter of Credit shall have any obligation to investigate, verify or ascertain the eligibility of the person making a claim as a Claimant, the validity of any claim, notice of contest of claim, settlement agreement or court order or whether the Claimant has timely provided notice of claim. Rather, for the purpose of determining whether the P&P Letter of Credit is subject to draw, the beneficiary may, without liability, conclusively assume eligibility of the person making a claim as a Claimant and timely notice of a claim, and may conclusively assume the truthfulness and validity of, and may rely on, the claim, notice of contest of claim, settlement agreement, court order or any other information submitted under this Section 7.2. 7.2.4.3. The P&P Letter of Credit shall be subject to draw by TxDOT due to the failure of DB Contractor to perform its obligations under the CMA COMA Documents during the Maintenance Period. Any draw by TxDOT is subject to Section 12.3. 7.2.4.4. The P&P Letter of Credit shall also constitute security in favor of TxDOT for payment and performance of DB Contractor’s obligation to defend and indemnify TxDOT under Section 15, and accordingly will be subject to draw by TxDOT as provided in Section 12.3.

P&P Letter of Credit. As Maintenance O&M Security, DB Contractor may elect to provide and maintain a letter of credit in the amount and pursuant to the requirements set forth in this Section 7.2 (the “P&P Letter of Credit”). 7.2.1 DB Contractor shall obtain and deliver to TxDOT a P&P Letter of Credit in an amount not less than the amount of the P&P Bonds as calculated in accordance with Section 7.4.2 $100,000,000 (as such amount shall be adjusted for each Maintenance Term for which a Maintenance NTP has been issued by TxDOT). If in accordance with Section 7.2.2.2, the “Maximum P&P LC Amount”) identifying DB Contractor elects to provide a as the obligor under the P&P Letter of CreditCredit (the “P&P LC Obligor”), securing all of DB Contractor’s obligations during the Maintenance Period and to ensure that payments owing to claimants are made with respect to the Maintenance Services. Notwithstanding the foregoing, DB Contractor also may deliver to TxDOT the P&P Letter of Credit in an amount less than the Maximum P&P LC Amount so long as (i) the amount of the P&P Letter of Credit is not less than $40,000,000 (as such amount shall deliver be adjusted in accordance with Section 7.2.2.2) and (ii) DB Contractor delivers to TxDOT a Guaranty satisfying the requirements of Section 7.6 at the same time the P&P Letter of Credit is provided to TxDOT. beneficiary. 7.2.1.1. The P&P Letter of Credit shall name TxDOT as 7.2.1.2. The P&P Letter of Credit shall comply with the provisions 7.2.1.3. TxDOT has determined, as permitted by Section 223.205 of the Code, that the P&P Letter of Credit identified in this Section 7.2 constitutes security sufficient to ensure the proper performance of DB Contractor’s obligations for maintaining the Maintenance Limits as required under this CMA COMA and to protect TxDOT and claimants with respect thereto. 7.2.2 Increase in P&P Letter of Credit Amount 7.2.2.1. If TxDOT does not receive any certificate that amounts payable to any designers, consultants, Subcontractors and Suppliers for the completed Maintenance Services have been paid (including evidence of wages paid) as required by Exhibit 11, it may require DB Contractor to immediately increase the amount of the P&P Letter of Credit to such amount as TxDOT determines is appropriate to protect its interests and the Project, provided that the amount of any such increase shall not exceed the value of work for which TxDOT did not receive any such certificate. 7.2.2.2. The amounts described in Section 7.2.1 shall be adjusted annually based on changes in the CCI commencing on the Effective Date and continuing annually thereafter during the Maintenance Period and the P&P Letter of Credit shall be increased by DB Contractor in accordance with such adjustments. 7.2.3 Payment Claims Against P&P Letter of Credit 7.2.3.1. Payment claims against the P&P Letter of Credit shall be governed by this Section 7.2.3. To ensure that all potential claimants receive notice of the procedures set forth in this Section 7.2.3, DB Contractor shall require that Sections 7.2.3.2 7.2.3.1 through 7.2.3.7 7.2.3.6 be restated, with the blanks filled in, in each Subcontract that includes Maintenance Services during the Maintenance Period and in all Subcontracts thereunder (including contracts with Suppliers) that include Maintenance Services during the Maintenance Period. In addition, each such Subcontract shall include a provision requiring the Subcontractor to provide formal notice regarding the claims procedures under this Section 7.2.3 to each employee performing public work labor (as such term is defined in Texas Government Code Section 2253.001) under the Subcontract, in the same manner in which equal opportunity notices are required to be given to employees. 7.2.3.2. This contract concerns a public works project (the “Project”) for which a letter of credit has been posted to secure obligations that would otherwise be secured by a payment bond provided by [ ] (the “Prime Contractor”) pursuant to Section 223.205 of the Code. Each person or entity that would have the right under said statute to make a claim against a payment bond provided thereunder (a “Claimant”) will instead have the right to make a claim under said letter of credit, as described below. Such alternative security is authorized by and provided in accordance with Section 223.205 of the Code, and no Claimant will have any right to make a claim against TxDOT for failure to obtain a payment bond under Section 223.205 of the Code. Claimant’s agent;. 7.2.3.3. All claims made pursuant to this Section 7.2.3 must: (a) Be in writing, signed, and sworn by the Claimant or the (b) Provide a general description of the labor, services,, equipment or material furnished or agreed to be furnished, including the approximate dates and place of delivery or performance, in a manner that reasonably identifies the labor, services, equipment or material; (c) State the Claimant’s name and address; (d) State the name of the person or entity to or for which the work or items were done or furnished, including the name and address of the party with which the Claimant contracted; (e) State the total amount claimed, and that such amount is (f) State the value of the work already performed or items (g) State the amount of any retainage that has not yet become due. A claim for retainage must include the amount of the contract, any amount paid, and the outstanding balance. However, to the extent that any prior claim made under this Section 7.2.3 included retainage, a separate subsequent claim for retainage need not be made. 7.2.3.4. The notices of claim must be delivered by certified or registered mail to the Prime Contractor at the following address: [ ], with a copy to DB Contractor if DB Contractor is separate from the Prime Contractor, at the following address: [ ], and a copy to the Texas Department of Transportation at the following address: [ ]. In addition, if the Claimant does not have a direct contract with the Prime Contractor, a copy must be delivered to [ ] [insert name of the party with which the Claimant has entered into a contract] at the following address: [ ]. 7.2.3.5. A Subcontractor that has a direct contractual relationship with the Prime Contractor shall make its claim, except for claims for payment of retainage, no later than the 15th day of the third month after each month in which any of the claimed labor was performed or any of the claimed material was delivered. A Subcontractor that does not have a direct contractual relationship with the Prime Contractor shall make its claim, except for claims for payment of retainage, no later than the 15th day of the second month after each month in which any of the claimed labor was performed or any of the claimed material was delivered. Claims for payment of retainage shall be made no later than the 90th day after the date of final completion of the Project. 7.2.3.6. Any lawsuit filed by a Claimant to enforce its claim must be filed no earlier than the 61st day after the date the notice was mailed to all recipients identified above and no later than one year after such mailing date. 7.2.3.7. To the maximum extent permitted by law, any claim not made within the specified deadline is forever waived and extinguished, and any lawsuit not filed within the specified deadline is forever barred. 7.2.4 Draws on the P&P Letter of Credit 7.2.4.1. The P&P Letter of Credit shall be subject to draw by TxDOT prior to expiration in accordance with Section 7.3.1.2. 7.2.4.2. The P&P Letter of Credit shall be subject to draw by TxDOT for the purpose of disbursement of funds owing to a Claimant under any one of the following circumstances: (a) TxDOT has received a copy of a claim that complies on its face with Section 7.2.3.2, together with a proof of delivery thereof to the Prime Contractor, and TxDOT has not received from the Prime Contractor, within 30 days after service of the notice of claim, a sworn notice stating (i) that the Prime Contractor contests the claim, (ii) whether the claim is contested in whole or in part, and if in part, the portion of the claim amount being contested, (iii) the grounds for contesting the claim and (iv) that the Prime Contractor is acting in good faith in contesting the claim; (b) Upon TxDOT’s receipt of a settlement agreement signed by all parties with competing interests to the funds that specifically provides that settlement funds are to be paid from the P&P Letter of Credit, in which case, such funds shall be disbursed according to the express terms of the settlement agreement; (c) Upon TxDOT’s receipt of an entered court order providing for payment of a claim from draw on the P&P Letter of Credit, in which case funds drawn shall be disbursed according to the terms of such court order; or (d) A claim has been made and notice thereof given in accordance with Section 7.2.3, and at that time, or at any other time during the pendency of the claim, the P&P LC Obligor is or becomes, voluntarily or involuntarily, a debtor in any bankruptcy proceeding under applicable Law. No beneficiary of a an P&P Letter of Credit shall have any obligation to investigate, verify or ascertain the eligibility of the person making a claim as a Claimant, the validity of any claim, notice of contest of claim, settlement agreement or court order or whether the Claimant has timely provided notice of claim. Rather, for the purpose of determining whether the P&P Letter of Credit is subject to draw, the beneficiary may, without liability, conclusively assume eligibility of the person making a claim as a Claimant and timely notice of a claim, and may conclusively assume the truthfulness and validity of, and may rely on, the claim, notice of contest of claim, settlement agreement, court order or any other information submitted under this Section 7.2. 7.2.4.3. The P&P Letter of Credit shall be subject to draw by TxDOT due to the failure of DB Contractor to perform its obligations under the CMA Contract Documents during the Maintenance Period. Any draw by TxDOT is subject to Section 12.3. 7.2.4.4. The P&P Letter of Credit shall also constitute security in favor of TxDOT for payment and performance of DB Contractor’s obligation to defend and indemnify TxDOT under Section 15, and accordingly will be subject to draw by TxDOT as provided in Section 12.3.