Common use of Unavailability of Insurance Clause in Contracts

Unavailability of Insurance. (i) If any insurance required to be maintained pursuant to this Section 14.02 (including the limits or deductibles or any other terms under policies for such insurance) ceases to be available on a commercially reasonable basis, the Concessionaire shall provide written notice to the Department accompanied by a letter from the Concessionaire’s insurance advisor stating that such insurance is unavailable on a commercially reasonable basis. Such notice shall be given not less than 30 days prior to the scheduled date for renewal of any such policy. Except to the extent attributable to the Concessionaire, or any Concessionaire Party upon receipt of such notice by the Department, the Concessionaire and the Department shall immediately enter into good faith negotiations regarding the matters set forth in Section 14.02(c)(ii) and (iii) below. (ii) In the event that the Concessionaire and the Department cannot reach a resolution acceptable to both parties within 10 days, the Concessionaire and the Department shall make arrangements for the formation of an insurance panel consisting of the Concessionaire’s insurance advisor (or broker), the Department or its insurance advisor (or broker) and an independent insurance expert from a nationally recognized insurance brokerage firm, chosen by the Concessionaire and reasonably acceptable to the Department. Such independent expert shall conduct a separate review of the relevant insurance requirements of this Section 14.02 and the market for such insurance at the time, giving due consideration to the representations of both insurance advisors, and upon conclusion of such review shall issue a written report stating whether such insurance is available or unavailable on a commercially reasonable basis. (iii) If the insurance expert concludes that such insurance is not available on a commercially reasonable basis, the insurance expert shall provide a written recommendation (which shall include the amount and type of insurance which is available upon a commercially reasonable basis) not less than 15 days before the date for

Unavailability of Insurance. (ia) If any insurance required to be maintained pursuant to this Section 14.02 Article 17 (including the limits or limits, deductibles or any other terms under policies for such insurance) ceases to be available on a commercially reasonable basis, the Concessionaire shall will provide written notice to the Department accompanied by a letter from the Concessionaire’s insurance advisor stating that such insurance is unavailable anywhere in the global market on a commercially reasonable basis. Such notice shall will be given not less later than 30 days Days prior to the scheduled date for renewal of any such policy. Except to the extent attributable to the Concessionaire, or any Concessionaire Party upon receipt of such notice by the Department, the Concessionaire and the Department shall will immediately enter into good faith negotiations regarding the matters set forth in Section 14.02(c)(ii17.05(c) and (iiid) below. (b) The Concessionaire will not be excused from satisfying the insurance requirements of this Article 17 merely because premiums for such insurance are higher than anticipated. To establish that the required coverages (or required terms of such coverages, including insurance policy limits) are not available on commercially reasonable terms, the Concessionaire will bear the burden of proving either that (i) the same is not available at all in the global insurance and reinsurance markets or (ii) the premiums for the same have so materially increased over those previously paid for the same coverage that a reasonable and prudent risk manager for a Person seeking to insure comparable risks would conclude that such increased premiums are not justified by the risk protection afforded. For the purpose of clause (ii), the only increases in premiums that may be considered are those caused by changes in general market conditions in the insurance industry. (c) In the event that the Concessionaire and the Department cannot reach a resolution acceptable to both parties within 10 daysten Days, the Concessionaire and the Department shall will make arrangements for the formation of an insurance panel consisting of the Concessionaire’s insurance advisor (or broker), the Department or its insurance advisor (or broker) and an independent insurance expert from a nationally recognized insurance brokerage firm, chosen by the Concessionaire and reasonably acceptable to the Department. Such independent expert shall will conduct a separate review of the relevant insurance requirements of this Section 14.02 Article 17 and the Technical Requirements and the market for such insurance at the time, giving due consideration to the representations of both insurance advisors, and upon conclusion of such review shall will issue a written report stating whether such insurance is available or unavailable on a commercially reasonable basis. (iiid) If the insurance expert concludes that such insurance is not available on a commercially reasonable basis, the insurance expert shall will provide a written recommendation (which shall will include the amount and type of insurance which is available upon a commercially reasonable basis) not less than 15 days Days before the date forfor renewal of such insurance. The Concessionaire will, prior to the expiration of the insurance then in effect, obtain the insurance required by this Article 17 as adjusted in accordance with such recommendation. (e) The Department makes no representation that the limits of liability specified for any insurance policy to be carried pursuant to this Agreement are adequate to protect the Concessionaire against its undertakings pursuant to this Agreement, to the Department, or any 134 DMEAST #27287336 v26 third party. No such limits of liability will preclude the Department from taking any actions as are available to it under the Project Agreements or Law.

Unavailability of Insurance. (ia) If any insurance required to be maintained pursuant to this Section 14.02 Article 17 (including the limits or limits, deductibles or any other terms under policies for such insurance) ceases to be available on a commercially reasonable basis, the Concessionaire shall Developer will provide written notice to the Department accompanied by a letter from the ConcessionaireDeveloper’s insurance advisor stating that such insurance is unavailable anywhere in the global market on a commercially reasonable basis. Such notice shall will be given not less later than 30 days Days prior to the scheduled date for renewal of any such policy. Except to the extent attributable to the ConcessionaireDeveloper, or any Concessionaire Developer Party upon receipt of such notice by the Department, the Concessionaire Developer and the Department shall will immediately enter into good faith negotiations regarding the matters set forth in Section 14.02(c)(ii17.05(c) and (iiid) below. (b) The Developer will not be excused from satisfying the insurance requirements of this Article 17 merely because premiums for such insurance are higher than anticipated. To establish that the required coverages (or required terms of such coverages, including insurance policy limits) are not available on commercially reasonable terms, the Developer will bear the burden of proving either that (i) the same is not available at all in the global insurance and reinsurance markets or (ii) the premiums for the same have so materially increased over those previously paid for the same coverage that a reasonable and prudent risk manager for a Person seeking to insure comparable risks would conclude that such increased premiums are not justified by the risk protection afforded. For the purpose of clause (ii), the only increases in premiums that may be considered are those caused by changes in general market conditions in the insurance industry. (c) In the event that the Concessionaire Developer and the Department cannot reach a resolution acceptable to both parties within 10 daysten Days, the Concessionaire Developer and the Department shall will make arrangements for the formation of an insurance panel consisting of the ConcessionaireDeveloper’s insurance advisor (or broker), the Department or its insurance advisor (or broker) and an independent insurance expert from a nationally recognized insurance brokerage firm, chosen by the Concessionaire Developer and reasonably acceptable to the Department. Such independent expert shall will conduct a separate review of the relevant insurance requirements of this Section 14.02 Article 17 and the market for such insurance at the time, giving due consideration to the representations of both each insurance advisorsadvisor, and upon conclusion of such review shall will issue a written report stating whether such insurance is available or unavailable on a commercially reasonable basis. (iiid) If the insurance expert panel concludes that such insurance is not available on a commercially reasonable basis, the insurance expert shall panel will provide a written recommendation (which shall will include the amount and type of insurance which is available upon a commercially reasonable basis) not less than 15 days Days before the date forfor renewal of such insurance. The Developer will, prior to the expiration of the insurance then in effect, obtain the insurance required by this Article 17 as adjusted in accordance with such recommendation. (e) The Department makes no representation that the limits of liability specified for any insurance policy to be carried pursuant to this Agreement are adequate to protect the Developer against its undertakings pursuant to this Agreement, to the Department, or any third party. No such limits of liability will preclude the Department from taking any actions as are available to it under the Project Agreements or Law.

Unavailability of Insurance. ‌ (ia) If any insurance required to be maintained pursuant to this Section 14.02 Article 17 (including the limits or limits, deductibles or any other terms under policies for such insurance) ceases to be available on a commercially reasonable basis, the Concessionaire shall Developer will provide written notice to the Department accompanied by a letter from the ConcessionaireDeveloper’s insurance advisor stating that such insurance is unavailable anywhere in the global market on a commercially reasonable basis. Such notice shall will be given not less later than 30 days Days prior to the scheduled date for renewal of any such policy. Except to the extent attributable to the ConcessionaireDeveloper, or any Concessionaire Developer Party upon receipt of such notice by the Department, the Concessionaire Developer and the Department shall will immediately enter into good faith negotiations regarding the matters set forth in Section 14.02(c)(ii17.05(c) and (iiid) below. (b) The Developer will not be excused from satisfying the insurance requirements of this Article 17 merely because premiums for such insurance are higher than anticipated. To establish that the required coverages (or required terms of such coverages, including insurance policy limits) are not available on commercially reasonable terms, the Developer will bear the burden of proving either that (i) the same is not available at all in the global insurance and reinsurance markets or (ii) the premiums for the same have so materially increased over those previously paid for the same coverage that a reasonable and prudent risk manager for a Person seeking to insure comparable risks would conclude that such increased premiums are not justified by the risk protection afforded. For the purpose of clause (ii), the only increases in premiums that may be considered are those caused by changes in general market conditions in the insurance industry. (c) In the event that the Concessionaire Developer and the Department cannot reach a resolution acceptable to both parties within 10 daysten Days, the Concessionaire Developer and the Department shall will make arrangements for the formation of an insurance panel consisting of the ConcessionaireDeveloper’s insurance advisor (or broker), the Department or its insurance advisor (or broker) and an independent insurance expert from a nationally recognized insurance brokerage firm, chosen by the Concessionaire Developer and reasonably acceptable to the Department. Such independent expert shall will conduct a a‌ separate review of the relevant insurance requirements of this Section 14.02 Article 17 and the market for such insurance at the time, giving due consideration to the representations of both each insurance advisorsadvisor, and upon conclusion of such review shall will issue a written report stating whether such insurance is available or unavailable on a commercially reasonable basis. (iiid) If the insurance expert panel concludes that such insurance is not available on a commercially reasonable basis, the insurance expert shall panel will provide a written recommendation (which shall will include the amount and type of insurance which is available upon a commercially reasonable basis) not less than 15 days Days before the date forfor renewal of such insurance. The Developer will, prior to the expiration of the insurance then in effect, obtain the insurance required by this Article 17 as adjusted in accordance with such recommendation.‌ (e) The Department makes no representation that the limits of liability specified for any insurance policy to be carried pursuant to this Agreement are adequate to protect the Developer against its undertakings pursuant to this Agreement, to the Department, or any third party. No such limits of liability will preclude the Department from taking any actions as are available to it under the Project Agreements or Law.