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LIST OF EXHIBITS
Exhibit 1
Exhibit 2
Exhibit 3
Exhibit 4
Exhibit 5
Exhibit 6
Exhibit 7
Exhibit 8
Exhibit 9
Exhibit 10
Exhibit 11
Exhibit 12
Exhibit 13
Exhibit 14
Exhibit 15
Exhibit 16
Exhibit 17
Exhibit 18
Exhibit 19
Exhibit 20
Exhibit 21
Exhibit 22
Exhibit 23
Exhibit 24
Exhibit 25
Abbreviations and Definitions
Developer's Schematic Plan of Facility and Proposal Commitments
Form of Lease
Toll Regulation
Facility Plan of Finance
Intentionally Omitted
Compensation Terms
Federal Requirements
Milestone Schedule
Facility Baseline Schedule
Hazardous Materials Risk Allocation Terms
Form of Direct Agreement
Handback Requirements Reserve Elements and Reserve Funding
Mechanism
Terms for TxDOT Toll Collection and Enforcement Services
Developer's DBE Performance Plan
Developer's Job Training / Small Business Mentoring Plan
Competing Facilities Provisions
Required Capacity Improvements and Facility Extensions
Insurance Coverage Requirements
Noncompliance Points System, Persistent Developer Default and Measures
• of Liquidated Damages
Disputes Board Agreement
Terms for Termination Compensation
State Sales Tax Reimbursement Provisions
Initial Designation of Authorized Representatives
Form of Master Lockbox and Custodial Account Agreement and Joinder
Agreement
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FACILITY CONCESSION AGREEMENT
STATE HIGHWAY 130 - SEGMENTS 5 AND 6
This Facility Concession Agreement (the "Agreement") is entered into and effective as
of March 22, 2007 by and between the Texas Department of Transportation, a public agency of
the State of Texas ("TxDOT"), and SH 130 Concession Company, LLC, a Delaware limited
liability company ("Developer").
RECIIALS
A. The State of Texas desires to facilitate private sector investment and
participation in the development of the State's transportation system via public-private
partnership agreements, and has enacted HB 3588, effective September 1, 2003, and HB 2702,
effective September 1, 2005 (together, the "Act"), to accomplish that purpose.
B. The Act, including Chapters 223 and 227 of the Code, grants TxDOT the
authority to enter into agreements with private entities to develop, design, construct, finance,
operate and maintain transportation facilities.
C.
Pursuant to the provisions of the Act then in effect and the Texas Administrative
Code (the "Rules"), on March 11, 2005, TxDOT and Cintra-Zachry, LP ("Cintra-Zachry"),
entered into a comprehensive development agreement (the "CDA") that provides the framework
for Cintra-Zachry to collaborate with TxDOT for the conceptual, preliminary and final planning,
along with some or all of the development, design, construction, financing, operation and
maintenance, of a combination of transportation facilities as further described in the CDA.
D. The CDA contemplates that TxDOT and Cintra-Zachry or an Affiliate thereof may
enter into agreements for the development of one or more transportation facilities, including the
State Highway 130 ("SH 130") Segments 5 and 6 facility (the "Facility"):
E. On July 27, 2005, TxDOT and Cintra-Zachry entered into a Facility
Implementation Plan Preparation
Agreement authorizing the preparation of a Facility
Implementation Plan for the Facility, as required by Section 7.2 of the CDA.
F.
On June 29, 2006, TxDOT approved Cintra-Zachry's proposed Facility
Implementation Plan for carrying out Facility Development Work under the CDA prior to closing
of finance for the Facility.
This Agreement, the other FCA Documents, the Facility Right of Entry
Agreement, the Intellectual Property Escrows, the Lease Escrow Agreement, and the Facility
Trust and Security Documents collectively constitute a Facility Agreement entered into pursuant
to the authority of the CDA and as such are collectively considered a comprehensive
development agreement as contemplated under the Act, the Code and the Rules, and are
entered into in accordance with the provisions of the CDA after all prerequisites under the CDA
have been satisfied.
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H. The Executive Director of TxDOT has been authorized to enter into this
Agreement pursuant to the Act, the Rules and the Texas Transportation Commission Minute
Order 110567.
NOW, THEREFORE, in consideration of the sums to be paid by Developer to TxDOT,
the Work to be financed and performed by Developer, the foregoing premises and the
covenants and agreements set forth herein, the Parties hereby agree as follows:
ARTICLE 1. DEFINITIONS; FCA DOCUMENTS; ORDER OF PRECEDENCE
1.1
Definitions
Definitions for the terms used in this Agreement and the other FCA Documents are
contained in Exhibit 1.
1.2
FCA Documents; Order of Precedence
The term "FCA Documents" shall mean the documents listed in this Section 1.2. Each
of the FCA Documents is an essential part of the agreement between the Parties, and a
requirement occurring in one is as binding as though occurring in all. The FCA Documents are
intended to be complementary and to describe and provide for a complete agreement.
1.2.1
Subject to Section 1.2.2, in the event of any conflict, ambiguity or
inconsistency among the FCA Documents, the order of precedence shall be as follows:
Change Orders and Agreement and Lease amendments;
Book 1 (this Agreement, including all Exhibits and the executed originals
of Exhibits that are contracts);
3.
Book 3 amendments (Technical Documents) (see Sections 7.2.7 and
8.1.2.2);
Book 2 (Technical Requirements) amendments;
5.
Book 2, including all exhibits and attachments thereto (Technical
Requirements);
6.
Book 3 (Technical Documents);
7.
Developer's schematic plan of the Facility and Developer's Proposal
commitments set forth in Exhibit 2 to this Agreement, provided that, to the extent specified in
Exhibit 2, certain provisions therein shall supersede the specified provisions of the FCA
Documents. Moreover, if Developer's schematic plan of the Facility set forth in Exhibit 2 or if the
Proposal includes statements, offers, terms, concepts or designs that can reasonably be
interpreted as offers to provide higher quality items than otherwise required by the other FCA
Documents or to perform services or meet standards in addition to or better than those
otherwise required, or otherwise contains terms or designs which are more advantageous to
TxDOT than the requirements of the other FCA Documents, then Developer's obligations
hereunder shall include compliance with all such statements, offers, terms, concepts and
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designs, which shall have the priority of Agreement amendments and Technical Requirements
amendments, as applicable.
If the FCA Documents contain differing provisions on the same subject matter,
the provisions that establish the higher quality, manner or method of performing the Work,
establish better Good Industry Practice or use more stringent standards will prevail. Additional
details in a lower priority FCA Document shall be given effect except to the extent they
irreconcilably conflict with requirements, provisions and practices contained in the higher priority
FCA Document.
1.3
Order of Precedence of Facility Management Plan
In the event of any conflict, ambiguity or inconsistency between the Facility Management
Plan and any of the FCA Documents, the latter shall take precedence and control.
1.4 Facility Trust and Security Documents
1.4.1 Except for the Master Lockbox and Custodial Account Agreement and Joinder
Agreement, concurrently with the Effective Date Developer has entered into the Facility Trust
Agreement and the other Facility Trust and Security Documents. TxDOT is, or will be, either a
party thereto or an express, intended third party beneficiary of the Facility Trust Agreement and
the other Facility Trust and Security Documents.
1.4.2
If TxDOT is not a signatory thereto, then except with TxDOT's prior written
approval in its sole discretion, Developer shall not during the Term (a) terminate or permit
termination of the Facility Trust Agreement, (b) appoint or approve a substitute or replacement
trustee thereunder, (c) agree to any amendment of any provisions of the Facility Trust
Agreement, (d) in any material respect waive, or fail to enforce, any provision of the Facility
Trust Agreement or (e) oppose or interfere with TxDOT's exercise of its third party beneficiary
rights against the trustee thereunder.
1.4.3
TxDOT and Developer covenant and agree to (i) perform all of their respective
obligations under or in connection withthe Facility Trust and Security Documents and (ii)
maintain in place the custodial arrangements contemplated under the Facility Trust and Security
Documents for the period of time specified in the Facility Trust and Security Documents.
1.5
Reference Information Documents
1.5.1
TxDOT has provided and disclosed to Developer the Reference Information
Documents. The Reference Information Documents only provide information affecting the
Facility and Work, and are not mandatory or binding on Developer. Developer is not entitled to
rely on the Reference Information Documents as presenting a design, engineering, operating or
maintenance solutions or other direction, means or methods for complying with the
requirements of the FCA Documents, Governmental Approvals or Law.
TxDOT shall not be responsible or liable in any respect for any causes of
action, claims or Losses whatsoever suffered by any Developer-Related Entity by reason of any
use of information contained in, or any action or forbearance in reliance on, the Reference
Information Documents.
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1.5.3
TxDOT does not represent or warrant that the information contained in the
Reference Information Documents is complete or accurate or that such information is in
conformity with the requirements of the FCA Documents, Governmental Approvals or Laws.
Developer shall have no claim to a Relief Event, Extended Relief Event or Compensation Event
on account of any incompleteness or inaccuracy in the Reference Information Documents.
ARTICLE 2. GRANT OF CONCESSION; TERM
2.1
Grant of Concession
2.1.1
Pursuant to the provisions of the Act and Code and subject to the terms and
conditions of the FCA Documents, TxDOT hereby grants to Developer the exclusive right, and
Developer accepts the obligation, to finance, develop, design and construct the Facility
described in Section 1 of the Technical Requirements, to perform Upgrades, and to enter into
the Lease in the form attached as Exhibit 3 for the Facility and Facility Right of Way.
From and after the Effective Date, Developer and its authorized Developer-
Related Entities shall havethe right to enter onto Facility Right of Way and other lands owned
by TxDOT for purposes of carrying out its obligations under this Agreement, in accordance with
that certain Facility Right of Entry Agreement dated as of the Effective Date between TxDOT
and Developer.
2.1.3
Concurrently with the Effective Date, TxDOT and Developer have executed
two counterparts of the Lease and placed them in a neutral escrow for safekeeping pursuant to
the Lease Escrow Agreement. Upon the Service Commencement Date, but not before then,
and as a ministerial act, TxDOT and Developer shall date the Lease, attach all legal
descriptions of the Facility, and TxDOT shall deliver to Developer, and Developer shall accept,
the Lease, whereupon it shall take effect and the Facility Right of Entry Agreement shall
automatically cease to have effect. Developer shall have the right and obligation, as lessee
under the Lease, during the Operating Period to use, manage, operate, maintain, repair and toll
the Facility, and to perform Renewal Work and Upgrades, pursuant to the terms of the Lease,
this Agreement and the other Principal Facility Documents.
2.2 Term of Concession
This Agreement shall take effect upon its execution and delivery (the "Effective Date"),
and shall remain in effect until expiration or earlier termination of the Lease (the "Term"). The
term of the Lease shall commence upon the Service Commencement Date and shall continue
for a period of 50 years, less the period, if any, between (a) the Service Commencement
Deadline set forth in the Milestone Schedule, as it may be extended due to Relief Events and
(b) the actual later Service Commencement Date; and provided that the Lease shall be subject
to earlier termination in accordance with the terms of this Agreement.
ARTICLE 3. TOLLS
3.1
Authorization to Toll
3.1.1
Developer's right to toll the Facility shall consist of the exclusive right to (a)
impose tolls upon the Users of the limited access lanes of the Facility at all times during the
Term after Service Commencement, (b) establish, modify and adjust the rate of such tolls, all in
accordance with and subject to the terms and conditions contained in this Agreement, including
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those set forth in this Article 3 and in Exhibit 4, and (c) subject to Section 3.1.5, enforce and
collect tolls, Video Trip Toll Premiums, and Incidental Charges from the Users of the limited
access lanes of the Facility. Developer has no authority or right to impose any toll, fee, charge
or other amount for use of the frontage roads.
3.1.2
Developer has no authority or right to impose any fee, charge or other amount
for use of the Facility other than the tolls specifically authorized by this Article 3. Developer may
charge, debit and collect tolls only for actual vehicular use of the limited access lanes of the
Facility. Developer may implement toll collection systems that charge, debit and collect tolls
only at or through the electronic tolling facilities physically located on the Facility Right of Way,
except that the foregoing does not preclude use of global positioning system technology or other
remote sensing technology to charge, debit and collect tolls for actual vehicular use of the
limited access lanes of the Facility.
violatrons not ressoneapt
Except as provided otherwise in Sections 3.5 and 3.6, and except for toll
violations not reasonably collectible, Developer shall require payment of tolls for use of the
limited access lanes of the Facility.
Except as provided otherwise in Section 19.11, nothing in this Agreement shall
obligate or be construed as obligating TxDOT to continue or cease tolls after the end of the
Term.
3.1.5
Without limiting or diminishing Developer's ownership of all Toll Revenues or
Developer's rights under the Facility Trust and. Security Documents or Exhibit 14, Developer's
rights under Section 3.1.1(C) shall be deemed, and hereby are, suspended and waived
whenever TxDOT is entitled to perform toll handling, collection and enforcement services
pursuant to Section 8.7.1 and Exhibit 14 to this Agreement. Refer to Section 8.7.2 for
circumstances in which Developer is entitled to take over such functions.
3.2 Toll Rates; Customer Account Balances
Developer's authority to charge and collect tolls is limited by, and conditioned on, among
other provisions of this Agreement, the following:
The toll rates in any year shall not exceed the maximum rates for each User
Classification for such year determined according to the toll rate policy, schedule and
methodology set forth in Exhibit 4 to this Agreement;
The toll rates shall be the same for all Persons and vehicles in the same User
Classification, provided that Developer may adopt and implement discount programs for
different classes or groups of persons using the Facility under like conditions, provided that
Developer does not discriminate against any of the categories of persons identified in Section
10.8; and
Developer is prohibited from implementing any toll rate or change in toll rate or
User Classification until (a) it delivers 90 days' prior written notice thereof to TxDOT as provided
in Section 3.3.1, (b) it gives public notice thereof in the manner and for the minimum period(s)
provided in Section 3.3.2 and (c) the requisite time periods have passed.
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3.3 Notice of Toll Rates and Change in Toll Rates
3.3.1
Not later than 90 days before the Service Commencement Date, Developer
shall prepare and submit to TxDOT for review and comment Developer's initial toll rate
schedule, organized by each User Classification and each fee, charge, penalty, security deposit
or other amount described in Section 3.1.2. Not later than 90 days before Developer intends to
initiate any change in toll rates for one or more User Classifications (a "Pending Toll Change"),
Developer shall submit to TxDOT written notice thereof for review and comment, including
Developer's revised toll rate schedule.
3.3.2
Developer shall use commercially reasonable efforts to provide advance notice
to the public of (a) Developer's complete toll rate schedule and (b) any Pending Toll Change.
Such efforts shall include publishing the toll rate schedule and notices of Pending Toll Change
on advance toll information signs in accordance with
Section 21.5 of the Technical
Requirements. In addition, Developer shall maintain a website on the Internet and posting
thereon for general public (i.e. non-passcode) viewing at all times from and after a date at least
30 days prior to initiation of (i) its then-current toll rate schedule and (ii) each Pending Toll
Change. Developer shall make known to the public, and shall maintain a telephone number to
enable any member of the public to request, a printed toll rate schedule, temporary discounts
and Pending Toll Changes. Developer may modify the means of communication with the public
consistent with developments in common practice for means of communication. Developer
shall make available to any member of the public on Developer's website and upon request at
Developer's offices, during reasonable business hours, or by facsimile copy without charge, or
by mailing a copy if the written request isaccompanied by a self-addressed stamped envelope,
a schedule of its then-current toll rates.
3.3.3
Notwithstanding Sections 3.3.1 and 3.3.2, if Developer desires to establish or
cancel a temporary discount with respect to any toll, it shall give written notice of the
establishment or cancellation to TxDOT at least five days prior to implementation thereof.
3.4 Changes in User Classifications
3.4.1
Developer may not change, add to or delete any of the User Classifications set
forth in Exhibit 4 without TxDOT's express prior written consent pursuant to this Section 3.4.
3.4.2
If Developer desires to change, add to or delete any of the User
Classifications, Developer shall apply to TxDOT for permission to implement such change,
addition or deletion at least 120 days prior to the proposed effective date of such change. Such
application shall set forth:
3.4.2.1
3.4.2.2
3.4.2.3
Each proposed change, addition or deletion;
The date each change, addition or deletion shall become effective;
The length of time each change, addition or deletion shall be in
effect;
3.4.2.4
3.4.2.5
Users and traffic patterns;
The reason Developer requests each change, addition or deletion;
The effect each change, addition or deletion is likely to have upon
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3.4.2.6
A proposed schedule of toll rates reflecting each change, addition
or deletion;
3.4.2.7
A thorough report and analysis of the effect each change, addition
or deletion is anticipated to have on Developer's internal rate of return (determined using the
Financial Model Formulas), including the effects on the Base Case Financial Model Update (or,
if there has been no Update, on the Base Case Financial Model) and on the assumptions and
data therein; and
3.4.2.8
Such other information and data as TxDOT may reasonably
request.
3.4.3
Developer's application shall be deemed granted without conditions unless
within 120 days after receipt of a completed application TxDOT advises Developer that it has
granted Developer's application with conditions or denied Developer's application. TxDOT may
deny an application or impose conditions in its sole and absolute discretion, including
conditioning approval on adjustment of compensation for TxDOT under this Agreement.
Without limiting TxDOT's discretion, the following matters will be grounds for rejection:
the
proposals set forth in the application are not reasonable under the circumstances; the
supporting documentation is erroneous, incomplete, inconsistent, inaccurate or deficient, or is
insufficient to support the proposal; or the assumptions of projections set forth in the application
are unrealistic.
TxDOT's decision shall not be subject to dispute resolution. If Developer
resubmits an application after rejection or imposition of conditions, the above procedures shall
apply to the resubmitted application.
3.4.4 If Developer's application is deemed granted without conditions or is granted
subject to conditions acceptable to Developer, then:
3.4.4.1
Developer may implement such change in User Classification on
the effective date set forth in the application, subjectto such conditions, if any, imposed by
TxDOT, and subject to first giving notice to the public of the change, addition or deletion in the
same manner as a Pending Toll Change; and
3.4.4.2 The Parties shall promptly amend (a) Exhibit 4 to this Agreement to
incorporate the change, addition or deletion and (b) this Agreement as necessary in accordance
with the accepted conditions.
3.5
Exempt Vehicles
The following categories of vehicles shall be exempt from payment of tolls:
marked police vehicles or marked fire department vehicles; ambulances; marked military and
civil defense vehicles; official vehicles operated by members, officers and employees of TxDOT
acting in the discharge of their official duties; and any other vehicles classified as exempt in
Exhibit 4.
3.5.2
Developer shall not levy or impose a toll, and shall not permit or suffer a toll to
be levied or imposed, for or in connection with use of the Facility by an exempt vehicle.
3.5.3
Upon two Business Days' prior written notice from Developer, TxDOT shall
provide Developer access during normal business hours to TxDOT's toll collection and
enforcement records for the Facility to enable Developer to audit the accuracy of TxDOT's
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records and waiver of tolls for exempt vehicle trips. In addition, TxDOT shall issue transponders
to TxDOT official vehicles in order to track and record exempt trips by such vehicles on the
Facility.
3.6
Emergency Suspension of Tolls
3.6.1
In the event the Facility is designated for immediate use as an emergency
mass evacuation route, TxDOT shall have the right to order immediate suspension of tolling in
the direction of evacuation. TxDOT shall have no liability to Developer for the loss of Toll
Revenues or the increase in costs and expenses attributable to such order, provided that
during any period for which tolling has been suspended, TxDOT:
3.6.1.1
Concurrently suspends tolling on all other TxDOT-operated tolled
facilities that are located within the area designated for evacuation or facilitation of evacuation;
3.6.1.2
Concurrently orders suspension of tolling on all other tolled
facilities operated by others within such area and over which TxDOT has the authority to order
such suspension; and
3.6.1.3
Lifts such order concurrently with the lifting of such order for all
other designated tolled facilities or, if there are no such other facilities, as soon as the need for
emergency mass evacuation ceases.
3.6.2
TxDOT shall have no liability to Developer for the loss of Toll Revenues or the
increase in costs and expenses attributable to any order to suspend tolling to facilitate
emergency mass evacuation issued pursuant to applicable Law by any federal or other State
agency or instrumentality.
3.7 Toll Revenues
At all times during the Term, Developer shall have the exclusive right, title,
entitlement and interest in and to the Toll Revenues (including payments from TxDOT in respect
of User trips on the Facility to the extent set forth in Exhibit 14 to this Agreement), subject to the
terms and conditions of the FCA Documents (including TxDOT's rights to compensation in
accordance with this Agreement) and the security interests therein under the Security
Documents.
3.7.2
Developer shall not use Toll Revenues to make any Distribution or to pay non-
competitive fees and charges of Affiliates unless and until Developer first pays (a) all current
and delinquent amounts due to TxDOT under this Agreement or the Lease, including any
compensation due under Article 5, (b) all current and delinquent material undisputed costs
necessary for the proper operation and maintenance of the Facility (including premiums for
insurance, bonds and other performance security, and including Safety Compliance work and
Handback Requirements work), (c) current and delinquent debt service, and other current and
delinquent amounts, due under any Funding Agreement or Security Document, (d) all currently
required or delinquent deposits to the Handback Requirements Reserve, (e) all Taxes currently
due and payable or delinquent, and (f) all current and delinquent costs and expenses of
Renewal Work. If Developer makes any Distribution or makes any payment to an Affiliate in
violation of this provision, the same shall be deemed to be held in trust by the recipient for the
benefit of TxDOT and the Collateral Agent under the senior Security Documents, and shall be
payable to TxDOT or the Collateral Agent on demand.. If TxDOT collects any such amounts
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held in trust, it shall make them available for any of the purposes set forth above and, at the
request of the Collateral Agent, deliver them to the Collateral Agent net of any amounts under
clause (a) above.
3.7.3
Developer shall have no right to use Toll Revenues to pay any debt, obligation
or liability unrelated to this Agreement, the Lease, the Facility, the Work or Developer's services
under this Agreement. The foregoing does not apply to or affect Developer's right to make
Distributions in accordance with Developer's governing instruments and subject to the
limitations in Section 3.7.2.
3.7.4
Developer acknowledges and agrees that it shall not be entitled to receive any
compensation, return on investment or other profit for providing the services contemplated by
this Agreement and the Lease other than those resulting from cost savings, Toll Revenues,
Compensation Amounts and Termination Compensation in accordance with the provisions of
this Agreement, and in the circumstances contemplated under Section 8.7.2, Video Trip Toll
Premiums and Incidental Charges and earnings thereon. The Parties acknowledge that this
Agreement and the Lease were negotiated in good faith and at arms' length, contain
commercially reasonable provisions and allow Developer no more than a reasonable rate of
return and compensation commensurate with risk.
3.7.5 Toll Revenues, Video Trip Toll Premiums, and Incidental Charges collected by
Developer or TxDOT under this Agreement or any of the Facility Trust and Security Documents
shall be deposited in the appropriate Facility Trust Account established for the purposes of
holding Toll Revenues, Video Trip Toll Premiums, and Incidental Charges in accordance with
the terms of the Facility Trust Agreement and the other Facility Trust and Security Documents.
ARTICLE 4. FINANCING; REFINANCING; TXDOT DEBT PURCHASE RIGHTS
4.1
Developer Right and Responsibility to Finance
Developer may grant security interests in or assign the entire Developer's
Interest (but not less than the entire Developer's Interest) to Lenders for purposes of securing
the Facility Debt, subject to the terms and conditions contained in this Agreement and the
Lease. Developer is strictly prohibited from pledging or encumbering the Developer's Interest,
or any portion thereof, to secure any indebtedness that is issued by any Person other than
Developer, any special purpose entity that owns Developer but no other assets and has powers
limited to the Facility and Work, or any special purpose subsidiary wholly owned by such entity.
4.1.2
Developer is solely responsible for obtaining and repaying all financing, at its
own cost and risk and without recourse to TxDOT, necessary for the acquisition, design,
permitting, development, construction, equipping, operation, maintenance, modification,
reconstruction, rehabilitation, restoration, renewal and replacement of the Facility, and for the
Utility Adjustment Work, .
4.1.3
If Developer entered into the Initial Funding Agreements and Initial Security
Documents on the Effective Date, then Developer warrants and represents that it has delivered
to TxDOT true, correct and complete copies of the Initial Funding Agreements and Initial
Security Documents and that as of the Effective Date there exists no breach or default
thereunder or events which with notice or the passage of time, or both, would constitute a
breach or default thereunder.
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4.1.4
If Developer has not entered into the Initial Funding Agreements and Initial
Security Documents on the Effective Date, then the following provisions shall apply:
4.1.4.1
Unless Developer or TxDOT elects to terminate this Agreement
pursuant to Section 19.5, Developer shall be unconditionally obligated to enter into the same
and complete closing for all the Initial Facility Debt (including any sub-debt), in a total amount,
which when combined with all unconditional equity commitments acceptable to the Collateral
Agent, is not less than the total capital funding set forth in Exhibit 5 to this Agreement (Facility
Plan of Finance), by not later than the Facility Financing Deadline, without any right to extension
on account of any Relief Event or Extended Relief Event (notwithstanding any other provision of
this Agreement to the contrary), except that such deadline may be extended as follows:
By the period of delay in Developer's ability to achieve closing
directly caused by TxDOT-Caused Delay, TxDOT Change or Discriminatory Action; and
To To nor aner man eapire
(b) At the option of Developer for an additional period of 180 Days
from and after the Facility Financing Deadline, which option may be exercised only by delivering
to TxDOT not later than expiration of the original deadline (as it may be extended under clause
(a) above) written notice of election to extend and the original replacement letter(s) of credit set
forth in Section 17.4.1.2, and the Financial Model in Developer's Proposal shall remain firm
during any such extension.
Such option shall automatically expire if not exercised in the
manner specified by such deadline.
4.1.4.2 Developer shall deliver written notice to TxDOT of the close of
such financing on the date of closing, and shall deliver to the Intellectual Property Escrow for
access and review by TxDOT true and complete copies of those Initial Funding Agreements and
Initial Security Documents that contain the material commercial terms relating to the Initial
Facility Debt within five Business Days after the date of closing, and true and complete copies of
the Initial Funding Agreements, Initial Security Documents and ancillary supporting documents
(e.g., UCC filing statements) within 30 days after the date of closing; and
4.1.4.3 If for any reason TxDOT has not received such written notice by
such deadline, or if for any reason Developer has not deposited true and complete copies of
those Initial Funding Agreements and Initial Security Documents that contain the material
commercial terms relating to the Initial Facility Debt in the Intellectual Property Escrow within
five Business Days after the date of closing, then TxDOT shall have the liquidated damage and
termination remedies set forth in Sections 17.4.1 and 19.3.2, after delivering written notice of
such default to Developer and Developer's failure to cure the same within five Business Days
after the delivery of such notice.
4.1.5
Developer exclusively bears the risk of any changes in the interest rate,
payment provisions or the other terms of its financing.
Notwithstanding the foreclosure or other enforcement of any security interest
created by a Security Document, Developer shall remain liable to TxDOT for the payment of all
sums owing to TxDOT under this Agreement and the Lease and the performance and
observance of all of Developer's covenants and obligations under this Agreement and the
Lease.
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4.2 No TxDOT Liability
4.2.1
TxDOT shall have no obligation to pay debt service on any debt issued or
incurred by Developer. TxDOT shall have no obligation to join in, execute or guarantee any
note or other evidence of indebtedness of Developer, any other Funding Agreement or any
Security Document.
4.2.2None of the State, TxDOT, the Texas Transportation Commission or any other
agency, instrumentality or political subdivision of the State, and no board member, director,
officer,employee, agent or representative of any of them, has any liability whatsoever for
payment of the principal sum of any Facility Debt, any other obligations issued or incurred by
Developer in connection with this Agreement, the Lease or the Facility, or any interest accrued
thereon or any other sum secured by or accruing under any Funding Agreement or Security
Document. Except for a violation by TxDOT of its express obligations to Lenders set forth in
Article 20, no Lender is entitled to seek any damages or other amounts from TxDOT, whether
for Facility Debt or any other amount. TxDOT's review of any Funding Agreements or Security
Documents or other Facility financing documents is not a guarantee or endorsement of the
Facility Debt, any other obligations issued or incurred by Developer in connection with this
Agreement, the Lease or the Facility, or any traffic and revenue study, and is not a
representation, warranty or other assurance as to the ability of Developer to perform its
obligations with respectto the Facility Debt or any other obligations issued or incurred by
Developer in connection with this Agreement, the Lease or the Facility, or as to the adequacy of
the Toll Revenues to provide forpayment of the Facility Debt or any other obligations issued or
incurred by Developer in connection with this Agreement, the Lease or the Facility. For the
avoidance of doubt, the foregoing does not affect TxDOT's liability to Developer under Article 19
and Exhibit 22 for Termination Compensation that is measured in whole or in part by
outstanding Facility Debt.
4.2.3 TxDOT shall not have any obligation to any Lender pursuant to this
Agreement, except for the express obligations to Lenders set forth in Article 20 or in any other
instrument or agreement signed by TxDOT in favor of such Lender or Collateral Agent, provided
that the Collateral Agent has notified TxDOT of the existence of its Security Documents. The
foregoing does not preclude Lender enforcement of this Agreement against TxDOT where the
Lender has succeeded to the rights, title and interests of Developer under the FCA Documents,
whether by way of assignment or subrogation.
4.3
Mandatory Terms of Facility Debt, Funding Agreements and Security Documents
Facility Debt, Funding Agreements and Security Documents, including the Initial Facility
Debt, Initial Funding Agreements and Initial Security Documents and any amendments or
supplements thereto, shall comply with the following terms and conditions:
4.3.1
The Security Document may only secure Facility Debt the proceeds of which
are obligated to be used exclusively for the purposes of (a) acquiring, designing, permitting,
building, constructing, improving, equipping, modifying, operating, maintaining, reconstructing,
restoring, rehabilitating, renewing or replacing the Facility, or performing Utility Adjustment
Work, (b) paying interest during construction, (c) paying reasonable development fees to
Developer-Related Entities, (d) paying fees to any Lender of the Facility Debt, (e) paying costs
and fees in connection with the closing of any permitted Facility Debt, (f) making Distributions,
but only from the proceeds of Refinancings permitted under this Agreement and (g) refinancing
any Facility Debt under clauses (a) through (f) above;
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The Security Document may only secure Facility Debt and Funding
Agreements issued and executed by (a) Developer, (b) its permitted successors and assigns,
(c) a special purpose entity that owns Developer but no other assets and has purposes and
powers limited to the Facility and the Work, or (d) any special purpose subsidiary wholly owned
by such entity;
4.3.3
Facility 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 (a) qualified investors other
than Institutional Lenders may acquire and hold interests in Facility Debt in connection with the
securitization of Facility Debt through a public offering, but only if an Institutional Lender acts as
Collateral Agent for such Facility Debt, and (b) Facility Debt secured by Subordinated Security
Documents is not subject to this provision;
4.3.4 No Security Document shall encumber less than the entire Developer's
Interest, provided that the foregoing does not preclude subordinate Security Documents or
equipment lease financing;
4.3.5
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 Facility or the Facility Right of Way or
TxDOT's rights or interests under the FCA Documents;
Each note, bond or other negotiable or non-negotiable instrument evidencing
Facility Debt or any other obligations issued or incurred by Developer in connection with this
Agreement, the Lease or the Facility must include or refer to a document controlling the
foregoing that includes a conspicuous recital on its face to the effect that payment of the
principal thereof and interest thereon is a valid claim only as against Developer and the security
pledged by Developer therefor, is not an obligation, moral or otherwise, of the State, TxDOT, the
Texas Transportation 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 Texas Transportation Commission or any other agency, instrumentality or
political subdivision of the State is pledged to the payment of the principal thereof and interest
thereon;
4.3.7Any number of permitted Funding Agreements and Security Documents may
be outstanding at any one time, and any Security Document permitted hereunder may secure
two or more separate loans from two or more separate Lenders, provided that each such loan
and the Security Documents securing the same comply with the provisions of this Article 4;
4.3.8
Each Funding Agreement and Security Document shall require 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 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;
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No Funding Agreement or Security Document that may be in effect during any
part of the period that 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 Facility Debt, to any other obligation owing
the Lender or to any other use except the uses set forth in Section 8.11.3, and any provision
purporting to grant such right shall be null and void, provided, however, that (a) 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 (b) an exception may be made for excess funds described in Section 8.11.4.2;
Each Funding Agreement and Security Document that may be in effect during
any part of the period that the Handback Requirements apply shall expressly permit, without
condition or qualification, Developer to (a) use and apply funds in the Handback Requirements
Reserve and (b) issue additional Facility Debt, secured by the Developer's Interest, for the
added limited purposes of funding work pursuant to Handback Requirements and Safety
Compliance as set forth in Section 12.4 and (c) otherwise comply with its obligations in the FCA
Documents
regarding Renewal
Work, the Renewal Work Schedule, the Handback
Requirements and the Handback Requirements Reserve.
Subject to the foregoing, any
protocols, procedures, limitations and conditions concerning draws from the Handback
Requirements Reserve set forth in any Funding Agreement or Security Document shall be
consistent with the permitted uses of the Handback Requirements Reserve, and shall not
constrain Developer's access thereto for such permitted uses, even during the pendency of a
default under the Funding Agreement or Security Document. For the avoidance of doubt, (i) the
Lenders then holding Facility Debt may reasonably limit additional Facility Debt if other funds
are then readily available to Developer for the purpose of funding the work; (ii) no Lender then
holding Facility Debt is required hereby to grant pari passu lien or payment status to any such
additional Facility Debt; and (iii) the Lenders then holding Facility Debt may impose reasonable,
customary requirements as to performance and supervision of the work;
4.3.11
Each Funding Agreement and Security Document shall expressly state that the
Lender shall not name or join TxDOT, the Texas Transportation 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 in any legal proceeding
seeking collection of the Facility Debt or other obligations secured thereby or the foreclosure or
other enforcement of the Funding Agreement or Security Document, unless and except to the
extent that (a) joinder of TxDOT as a necessary party is required by applicable Law in order to
confer jurisdiction on the court over the dispute with Developer or to enforce Lender remedies
against Developer and (b) the complaint against TxDOT states no claim or cause of action for a
lien or security interest on, or to foreclose against, TxDOT's right, title and interest in and to the
Facility and Facility Right of Way, or for any liability of TxDOT on the indebtedness;
4.3.12 Each Funding Agreement and Security Document shall expressly state that the
Lender shall not seek any damages or other amounts from TxDOT, the Texas Transportation
Commission, any other agency, instrumentality or political subdivision of the State, or any
elected official, boardmember, director, officer, employee, agent or representative of any of
them, whether for Facility Debt or any other amount, except (a) damages from TxDOT for a
violation by TxDOT of its express obligations to Lenders set forth in Article 20 and (b) amounts
due from TxDOT under this Agreement where the Lender has succeeded to the rights, title and
interests of Developer under the FCA Documents, whether by way of assignment or
subrogation;
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4.3.13
No Funding Agreement or Security Document shall prohibit, limit, restrict,
impede, require Lender approval of or otherwise impose conditions on any contributions of
additional equity to Developer or use of equity contributions to pay and perform Developer's
responsibilities, obligations and liabilities under the FCA Documents; and
4.3.14
Each Funding Agreement and Security Document shall expressiy state that the
Collateral Agent shall respond to any request from TxDOT or Developer for consent to a
modification or amendment of this Agreement within a reasonable period of time.
4.4 Refinancing
4.4.1 Right of Refinancing
Developer from time to time may consummate Refinancings under the Funding
Agreements on terms and conditions acceptable to Developer and in compliance with Section
4.3 and this Section 4.4. TxDOT shall have no obligations or liabilities in connection with any
Refinancing except to deliver estoppel certificates pursuant to Section 20.9.
4.4.2
Notice of Refinancing
Developer shall deliver to the Intellectual Property Escrow for access and review by
TxDOT drafts of those proposed Funding Agreements and Security Documents that will contain
the material commercial terms in connection with any Refinancing not later than 14 Days prior to
the proposed date for closing the Refinancing, and copies of all signed Funding Agreements
and Security Documents in connection with the Refinancing not later than 30 Days after close of
the Refinancing.
4.4.3
Refinancing Limitations, Requirements and Conditions
Proposed Refinancings are subject to the following limitations, requirements and
conditions precedent:
4.4.3.1No Refinancing is permitted prior to the Service Commencement
Date, except to the extent (a) TxDOT reasonably agrees that it is necessary, together with
additional equity contributions to Developer, to fund unexpected capital cost overruns in excess
of contingency reserves available under the Initial Funding Agreements or (b) Developer first
demonstrates that the Refinancing will produce Refinancing Gain in which TxDOT will share, as'
set forth in Part C of Exhibit Z, and TxDOT reasonably agrees to the Refinancing; and
4.4.3.2
If TxDOT renders any assistance or performs any requested
activity in connection with a Refinancing apart from delivering an estoppel certificate, then
Developer shall reimburse TxDOT all TxDOT's Recoverable Costs and other fees, costs and
expenses TxDOT incurs in connection with rendering any such assistance or performing any
such activity. If TxDOT delivers to Developer a written invoice therefor prior to the scheduled
date of closing, then such costs shall be reimbursed by Developer at closing. If TxDOT does
not deliver a written invoice prior to closing, then it may deliver such invoice within 30 days after
closing and Developer shall reimburse TxDOT for such costs within 10 days after TxDOT
delivers the invoice to Developer. If for any reason the Refinancing does not close, Developer
shall reimburse such TxDOT's Recoverable Costs and such other fees, costs and expenses
within ten days after TxDOT delivers to Developer a written invoice therefor.
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ARTICLE 5. COMPENSATION; FINANCIAL MODEL UPDATES
5.1 TxDOT Compensation
5.1.1 Concession Payment
The Concession Payment shall be in the amount, and payable upon the terms, set forth
in Part A of Exhibit 7. Developer agrees to (i) the Concession Payment and (ii) Developer's cost
to acquire the Facility Right of Way on behalf of TxDOT under Section 7.4 of this Agreement
and Section 7 of the Technical Requirements as compensation to TxDOT in exchange for
TxDOT's grant to Developer ofthe right toimpose and collect tolls pursuant to this Agreement
and no part of these preceding items (i) and (ii) are rent to TxDOT payable with.respect to use
and operation of the Facility pursuant to the Lease.
5.1.2 Revenue Sharing
TxDOT's rights to share in Toll Revenues for the Facility are set forth in Part B of Exhibit
I. Developer agrees to pay TxDOT such share of Toll Revenues as compensation to TxDOT in
exchange for TxDOT's grant to Developer of rights to impose and receive tolls pursuant to this
Agreement and as rent for the use and operation of the Facility pursuant to the Lease.
5.1.3
Refinancing Gain
TxDOT's rights to share in Refinancing Gain are set forth in Part Cof Exhibit 7.
Developer agrees to pay TxDOT such share of Refinancing Gain as compensation to TxDOT in
exchange for TxDOT's grant to Developer of rights to impose and receive tolls pursuant to this
Agreement and as rent for the use and operation of the Facility pursuant to the Lease.
5.1.4
Offset Rights
Developermay deduct and offset any Claim amount owing to it, provided such Claim
amount has been liquidated through Dispute Resolution Procedures or otherwise, from and
against any amounts Developer may owe to TxDOT. If the Claim amount is not liquidated,
Developermay elect to exercise its rights pursuant to the Facility Trust Agreement and direct
the transfer of TxDOT. Revenue Share amounts from the Toll Revenue Account to the
Developer Claims Account up to the amount of the disputed portion of the Claim, in accordance
with the provisions of the Facility Trust Agreement. Upon liquidation, the disputed portion of the
Claim may be satisfied first from the amounts held in the Developer Claims Account, and then
through Developer's offset right with respect to liquidated Claim amounts.
5.2
Reserved
5.3
Financial Model Updates
5.3.1
Developer shall run new projections and calculations under the Financial
Model Formulas to establish a Base Case Financial Model Update:
5.3.1.1
Whenever there occurs a Compensation Event; and
5.3.1.2
Whenever the FCA Documents are amended and the Parties
agree that the amendment has a material effect on future costs or Toll Revenues.
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repair budgets, and (iii) the Element has complied throughout its Age with each applicable
Performance Requirement.
Not later than 90 Days before the beginning of each calendar year thereafter,
Developer shall prepare and submit to the Independent Engineer and TxDOT for their review
and comment either (a) a revised Renewal Work Schedule or (b) the then-existing Renewal
Work Schedule accompanied by a statement that Developer intends to continue in effect the
then-existing Renewal Work Schedule without revision (in either case, referred to as the
"updated Renewal Work Schedule"). Developer shall make revisions as reasonably indicated
by experience and then-existing conditions respecting the Facility, the factors described in
Section 8.6.2, changes in estimated costs of Renewal Work, changes in technology, changes in
Developer's planned means and methods of performing Renewal Work,and other relevant
tactors.
The updated Renewal Work Schedule shall show the revisions, if any, to the prior
Renewal Work Schedule and include an explanation of reasons for revisions. If no revisions are
proposed, Developer shall include an explanation of the reasons no revisions are necessary.
During the period the Handback Requirements Reserve is in effect, the updated Renewal Work
Schedule also shall set forth, by Element, Developer's planned draws from the Handback
Requirements Reserve during the forthcoming calendar year.
8.6.4
At TxDOT's or the independent Engineer's request, Developer and its O&M
Contractor(s), if any, shall promptly meet and confer with TxDOT or the Independent Engineer
to review and discuss the original or updated Renewal Work Schedule.
The Independent Engineer's duties shall include delivering to TxDOT and
Developer, within 30 days after receipt of the original and each updated Renewal Work
Schedule, comments, objections and recommendations with respect thereto. Within 30 Days
after receiving such comments, objections and recommendations, TxDOT shall have the right to
object to or disapprove the original or updated Renewal Work Schedule or any elements
thereof. In addition to the grounds for disapproval set forth in Section 6.3.7.1, comments,
objections and disapprovals by the Independent Engineer or TxDOT shall be based on whether
the original or updated Renewal Work Schedule and underlying assumptions are reasonable,
realistic and consistent with Good Industry Practice, Facility experience and condition,
applicable Technical Requirements, Governmental Approvals and Laws.
Within 30 Days after receiving written notice of comments, objections,
recommendations and disapprovals from the Independent Engineer or TxDOT, Developer shall
submit to TxDOT and the Independent Engineer a revised original or updated Renewal Work
Schedule rectifying such matters and, for matters it disagrees with, a written notice setting forth
those comments, objections, recommendations and disapprovals that Developer disputes,
which notice shall give details of Developer's grounds for dispute. If Developer fails to give such
notice within such time period, it shall be deemed to have accepted the comments, objections
and recommendations and the original or updated Renewal Work Schedule, as applicable, shall
thereupon be deemed revised to incorporate the comments and recommendations and to rectify
the objections. After timely delivery of any such notice, Developer and TxDOT shall endeavor in
good faith to reach agreement as to the matters listed in the notice. If no agreement is reached
as to any such matter within 30 Days after Developer delivers its notice, either Party may refer
the Dispute to the Disputes Resolution Procedures for determination.
The comments,
objections, recommendations and disapprovals of the Independent Engineer shall receive
substantial weight in resolving the Dispute.
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8.6.7
Until resolution of any portion of the original or updated Renewal Work
Schedule that is in Dispute, the treatment of that portion in the immediately preceding Renewal
Work Schedule shall remain in effect and govern.
8.7 Toll Handling, Collection and Enforcement
8.7.1
The rights and obligations of the Parties for operations related to toll collection,
violation processing, revenue handling and accounting, and customer service and support for
the Facility are set forth in Exhibit 14 to this Agreement.
8.7.2
In the event TxDOT commits a material monetary default that is not cured
within the applicable cure period and Developer becomes entitled to terminate this Agreement
pursuant to Section 19.4 as a result thereof, Developer may elect, by written notice to TxDOT,
to undertake the performance of services described in Exhibit 14, until the default is cured and
as part of such election, Developer may require TxDOT to continue providing clearinghouse
services pursuant to Exhibit 14 for all or a portion of such period. For so long as Developer
performs such services,Developer shall solely bear all costs and risks associated with toll
handling, collection and enforcement, including risk that Video Trip Toll Premiums
are
insufficient to defer costs and other risks associated with Video Trip enforcement and collection.
In addition, for so long as Developer performs such services (a) Video Trip Toll Premiums shall
conform to the maximum rates established under Exhibit 14, (b) to the extent permitted by
applicable Law, Developer may fix, charge, enforce and collect with respect to Video Trips and
electronic tolling accounts managed by Developer Incidental Charges that, except for toll
violation penalties, do not exceed the amount reasonably necessary for Developer to recover its
reasonable out-of-pocket and documented costs and expenses directly incurred for the items,
services and work for which they are levied, such Incidental Charges being subject to TxDOT's
reasonable approval if they deviate above the amounts TxDOT would be entitled to impose if
TxDOT were
providing the services described on Exhibit 14, and (c) all Video Trip Toll
Premiums and Incidental Charges Developer collects shall constitute Toll Revenues. Promptly
after receipt of such written notice, TxDOT shall diligently cooperate and assist with the
transition of the toll collection and enforcement services to Developer; provided that TxDOT is
under no obligation to transfer such functions until Developer's methodology for setting rates
and rate adjustments, and Developer's initial rates, for its Incidental Charges are reasonably
approved by TxDOT to the extent such approval by TxDOT is required under this Section 8.7.2.
TxDOT shall reimburse Developer for any reasonable transition costs incurred by Developer in
any such transition of the services described in Exhibit 14 between Developer and TxDOT
pursuant to this Section 8.7.2 and such transition costs shali be payable by TxDOT within 30
days after receipt of a documented invoice therefor.
The following provisions shall apply only during any portion of the Operating
Period (an "applicable period") in which (a) Developer has the right to elect and has elected, by
written notice to TxDOT, to undertake the performance of services described in Exhibit 14 in
accordance with the provisions of this Section 8.7.2, (b) Section 228.055 of the Texas
Transportation Code, as the same may be amended from time to time, or any statute of similar
import ("Section 228.055"), is in effect, (c) Developer lacks statutory authority comparable to
that available to TxDOT under Section 228.055, and (d) Developer has no agreement in effect
for customer services and back office services for the Facility with a Governmental Entity
(including TxDOT) that has statutory authority under or comparable to that under Section
228.055.
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TXDOT appoints Developer as TxDOT's agent during the
applicable period for the sole and limited purpose of (a) delivering notices of nonpayment to
Video Trip Users under Section 228.055, (b) imposing an administrative fee under Section
228.055, (c) using and approving automated enforcementtechnology under Section 228.058,
(d) pursuing any misdemeanor offenses against Video Trip Users under Section 228.055, and
(e) instructing all courts and public officials to deliver all tolls and Incidental Charges, including
administrative fees, recovered under Section 228.055 with respect to Video Trip toll transactions
to the trustee under the Facility Trust Agreement for deposit into the Toll Revenue Account.
Such appointment shall be exclusive and irrevocable during the applicable period, provided that
such appointment is deemed automatically suspended during any period that TxDOT exercises
step-in rights under Section 17.3.4 involving TxDOT's performance of toll operations, and is
deemed automatically revoked upon termination of this Agreement.
8.7.3.2 At Developer's request, TxDOT shall cooperate with Developer in
connection with (a) confirming in writing to courts and public officials Developer's authority as
TxDOT's agent under Section 8.7.3.1, and (b) any proceedings Developer initiates under
Section 228.055. At Developer's request, TxDOT will deliver instructions to such public officials
and courts as reasonably necessary for them to deliver tolls and Incidental Charges, including
administrative fees, recovered under Section 228.055 with respect to Video Trip toll transactions
to the trustee under the Facility Trust Agreement for deposit into the Toll Revenue Account.
Developer shall reimburse TxDOT for all costs, including TxDOT's Recoverable Costs, it incurs
in connection with such cooperation.
8.7.3.3
TxDOT will promptly deliver to Developer a copy of all notices,
other communications and documentation from Video Trip Users that TxDOT receives in
response to notices of violation Developer issues under Section 228.055; provided that TxDOT
shall have no liability to Developer for compensation or other damages if it does not promptly
deliver such notices, communications or documentation.
8.7.3.4
If any court or public official remits to TxDOT any tolls or Incidental
Charges collected via proceedings brought under Section 228.055, or if any Video Trip User in
response to or settlement of a violation notice or any such proceeding remits to TxDOT any
such tolls or Incidental Charges, then the amounts so remitted to TxDOT shall constitute
Developer's property, shall be deemed received by TxDOT merely as a bailee or agent, and
shall not constitute funds or property of TxDOT or the State; and TxDOT shall forthwith remit
such payments to the trustee under the Facility Trust Agreement for deposit into the Toll
Revenue Account.
For the sole purpose of enabling processing and collection of
transactions, so long as it is authorized under Section 730.007(a)(2)(J) of the Transportation
Code, as the same may be amended from time to time, or any other statute of similar import,
TxDOT will cause its Vehicle Titles and Registration Division to (a) provide Developer with
electronic access to all vehicle registration records and information maintained by Vehicle Titles
and Registration Division, and (b) provide Developer with the same access that TxDOT has to
vehicle registration records and information for vehicles that are not registered in Texas. The
foregoing rights of access shall survive until 90 days after the end of the applicable period
(including any portion of such 90 days that runs after expiration or earlier termination of the
Term) solely for the purpose of processing and collecting transactions occurring during the
Term. As conditions to receiving access tosuch records and information, Developer shall (i)
submit any request form and enter into any form agreement that the Vehicle Titles and
Registration Division may require for obtaining access and (ii) pay all fees, costs and charges
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