Common use of Project Debt, Funding Clause in Contracts

Project Debt, Funding. Agreements and Security Documents, and any amendments or supplements thereto, shall comply with the following terms and conditions: (a) The Security Documents may only secure Project Debt the proceeds of which are obligated to be used exclusively for the purposes of (i) acquiring, designing, permitting, building, constructing, improving, equipping, modifying, operating, maintaining, reconstructing, restoring, rehabilitating, renewing or replacing the Project, performing the Utility Adjustment Work or the Renewal Work, or performing other Work, (ii) paying interest and principal on other existing Project Debt, (iii) paying reasonable development fees to Developer-Related Entities or to the Design-Build Contractor or its affiliates for services related to the Project, (iv) paying fees and premiums to any Lender of the Project Debt or such Lender’s agents in consideration for such Project Debt or the commitment thereof, (v) paying costs and fees in connection with the closing of any permitted Project Debt or in connection with any amendment or administration of the Funding Agreements or Security Documents or in connection with the enforcement or preservation of the rights of the Lenders or the Collateral Agent under the Funding Agreements or Security Documents, (vi) making payments due under the CDA Documents to TxDOT or any other Person, (vii) funding reserves required under this Agreement, Funding Agreements or Security Documents, applicable securities laws, or Environmental Laws, (viii) making Distributions, but only from the proceeds of Refinancings permitted under this Agreement and (ix) refinancing any Project Debt previously incurred for such purposes. (b) The Security Documents may only secure Project Debt and Funding Agreements issued and executed by (i) Developer, (ii) its permitted successors and assigns, (iii) a special purpose entity that owns Developer but no other assets and has purposes and powers limited to the Project and the Work, (iv) any special purpose subsidiary wholly owned by Developer or such entity or (v) the PABs Issuer. (c) Project Debt under a Funding Agreement and secured by a Security Document must be issued and held only by Institutional Lenders who qualify as such at the date the Security Document is executed and delivered (or, if later, at the date any such Institutional Lender becomes a party to the Security Document), except that (i) qualified investors other than Institutional Lenders may acquire and hold interests in Project Debt in connection with the securitization or syndication of Project Debt through a public or private offering, but only if an Institutional Lender acts as Collateral Agent for such Project Debt, (ii) PABs may be issued, acquired and held by parties other than Institutional Lenders but only if an Institutional Lender acts as indenture trustee for the PABs and (iii) Subordinate Debt is not subject to this provision. (d) The Security Documents as a whole securing each separate issuance of debt shall encumber the entire Developer’s Interest; provided that the foregoing does not preclude subordinate Security Documents or equipment lease financing. (e) No Security Document or other instrument purporting to mortgage, pledge, encumber, or create a lien, charge or security interest on or against Developer’s Interest shall extend to or affect the fee simple interest of TxDOT in the Project or the Project Right of Way or TxDOT’s rights or interests under the CDA Documents. (f) Each note, bond or other negotiable or non-negotiable instrument evidencing Project Debt, or evidencing any other obligations issued or incurred by any Person described in Section 3.5.2(b) in connection with this Agreement, the Lease or the Project must include, or refer to a document controlling or relating to the foregoing that includes, a conspicuous recital to the effect that payment of the principal thereof and interest thereon is a valid claim only as against the obligor and the security pledged by Developer or the obligor therefor, is not an obligation, moral or otherwise, of the State, TxDOT, the Commission, any other agency, instrumentality or political subdivision of the State, or any elected official, board member, director, officer, employee, agent or representative of any of them, and neither the full faith and credit nor the taxing power of the State, TxDOT, the Commission or any other agency, instrumentality or political subdivision of the State is pledged to the payment of the principal thereof and interest thereon. (g) Each Funding Agreement and Security Document containing provisions regarding default by Developer shall require, or incorporate a requirement by reference to another Funding Agreement or Security Document that requires, that if Developer is in default thereunder and the Collateral Agent gives notice of such default to Developer, then the Collateral Agent shall also give concurrent notice of such default to TxDOT. Each Funding Agreement and Security Document that provides Lender remedies for default by Developer or the borrower shall require that the Collateral Agent deliver to TxDOT, concurrently with delivery to Developer or any other Person, every notice of election to sell, notice of sale or other notice required by Law or by the Security Document in connection with the exercise of remedies under the Funding Agreement or Security Document. (h) No Funding Agreement or Security Document that may be in effect during any part of the period during which the Handback Requirements apply shall grant to the Lender any right to apply funds in the Handback Requirements Reserve or to apply proceeds from any Handback Requirements Letter of Credit to the repayment of Project Debt, to any other obligation owing the Lender or to any other use except the uses set forth in Section 20.2.4, and any provision purporting to grant such right shall be null and void; provided, however, that (i) any Lender or Substituted Entity shall, following foreclosure or transfer in lieu of foreclosure, automatically succeed to all rights, claims and interests of Developer in and to the Handback Requirements Reserve and (ii) an exception may be made for excess funds described in Section 20.2.5

Project Debt, Funding. Agreements and Security Documents, and any amendments or supplements thereto, shall comply with the following terms and conditions: (a) The Security Documents may only secure Project Debt the proceeds of which are obligated to be used exclusively for the purposes of (i) acquiring, designing, permitting, building, constructing, improving, equipping, modifying, operating, maintaining, reconstructing, restoring, rehabilitating, renewing or replacing the Project, performing the Utility Adjustment Work or the Renewal Work, or performing other Work, (ii) paying interest and principal on other existing Project Debt, (iii) paying reasonable development fees to Developer-Related Entities or to the Design-Build Contractor or its affiliates for services related to the Project, (iv) paying fees and premiums to any Lender of the Project Debt or such Lender’s agents in consideration for such Project Debt or the commitment thereof, (v) paying costs and fees in connection with the closing of any permitted Project Debt or in connection with any amendment or administration of the Funding Agreements or Security Documents or in connection with the enforcement or preservation of the rights of the Lenders or the Collateral Agent under the Funding Agreements or Security DocumentsDebt, (vi) making payments due under the CDA Documents to TxDOT or any other Person, (vii) funding reserves required under this Agreement, Funding Agreements or Security Documents, applicable securities laws, or Environmental Laws, (viii) making Distributions, but only from the proceeds of Refinancings permitted under this Agreement and (ix) refinancing any Project Debt previously incurred for such purposes. (b) The Security Documents may only secure Project Debt and Funding Agreements issued and executed by (i) Developer, (ii) its permitted successors and assigns, (iii) a special purpose entity that owns Developer but no other assets and has purposes and powers limited to the Project and the Work, (iv) any special purpose subsidiary wholly owned by Developer or such entity or (v) the PABs Issuer. (c) Project Debt under a Funding Agreement and secured by a Security Document must be issued and held only by Institutional Lenders who qualify as such at the date the Security Document is executed and delivered (or, if later, at the date any such Institutional Lender becomes a party to the Security Document), except that (i) qualified investors other than Institutional Lenders may acquire and hold interests in Project Debt in connection with the securitization or syndication of Project Debt through a public or private offering, but only if an Institutional Lender acts as Collateral Agent for such Project Debt, (ii) PABs may be issued, acquired and held by parties other than Institutional Lenders but only if an Institutional Lender acts as indenture trustee for the PABs and (iii) Subordinate Debt is not subject to this provision. (d) The Security Documents as a whole securing each separate issuance of debt shall encumber the entire Developer’s Interest; provided that the foregoing does not preclude subordinate Security Documents or equipment lease financing. (e) No Security Document or other instrument purporting to mortgage, pledge, encumber, or create a lien, charge or security interest on or against Developer’s Interest shall extend to or affect the fee simple interest of TxDOT in the Project or the Project Right of Way or TxDOT’s rights or interests under the CDA Documents. (f) Each note, bond or other negotiable or non-negotiable instrument evidencing Project Debt, or evidencing any other obligations issued or incurred by any Person described in Section 3.5.2(b) in connection with this Agreement, the Lease or the Project must include, or refer to a document controlling or relating to the foregoing that includes, a conspicuous recital to the effect that payment of the principal thereof and interest thereon is a valid claim only as against the obligor and the security pledged by Developer or the obligor therefor, is not an obligation, moral or otherwise, of the State, TxDOT, the Commission, any other agency, instrumentality or political subdivision of the State, or any elected official, board member, director, officer, employee, agent or representative of any of them, and neither the full faith and credit nor the taxing power of the State, TxDOT, the Commission or any other agency, instrumentality or political subdivision of the State is pledged to the payment of the principal thereof and interest thereon. (g) Each Funding Agreement and Security Document containing provisions regarding default by Developer shall require, or incorporate a requirement by reference to another Funding Agreement or Security Document that requires, that if Developer is in default thereunder and the Collateral Agent gives notice of such default to Developer, then the Collateral Agent shall also give concurrent notice of such default to TxDOT. Each Funding Agreement and Security Document that provides Lender remedies for default by Developer or the borrower shall require that the Collateral Agent deliver to TxDOT, concurrently with delivery to Developer or any other Person, every notice of election to sell, notice of sale or other notice required by Law or by the Security Document in connection with the exercise of remedies under the Funding Agreement or Security Document. (h) No Funding Agreement or Security Document that may be in effect during any part of the period during which the Handback Requirements apply shall grant to the Lender any right to apply funds in the Handback Requirements Reserve or to apply proceeds from any Handback Requirements Letter of Credit to the repayment of Project Debt, to any other obligation owing the Lender or to any other use except the uses set forth in Section 20.2.4, and any provision purporting to grant such right shall be null and void; provided, however, that (i) any Lender or Substituted Entity shall, following foreclosure or transfer in lieu of foreclosure, automatically succeed to all rights, claims and interests of Developer in and to the Handback Requirements Reserve and (ii) an exception may be made for excess funds described in Section 20.2.5of