Common use of Concessionaire Representations and Warranties Clause in Contracts

Concessionaire Representations and Warranties. The Concessionaire hereby represents and warrants to the Operating Company as follows: (a) The Concessionaire is a duly organized limited liability company created under the laws of the State of Delaware, is qualified to conduct business in the State, has the requisite power and all required licenses to carry on its present and proposed activities, and has full power, right and authority to execute and deliver this Agreement and the other Project Agreements to which the Concessionaire is a party and to perform each and all of the obligations of the Concessionaire provided for herein and therein. (b) Each person executing this Agreement or any other Project Agreement on behalf of the Concessionaire to which the Concessionaire is a party has been or at such time will be duly authorized to execute each such document on behalf of the Concessionaire. (c) Neither the execution and delivery by the Concessionaire of this Agreement and the other Project Agreements executed concurrently herewith to which the Concessionaire is a party, nor the consummation of the transactions contemplated hereby or thereby, is in conflict with or will result in a default under or violation of any other agreements or instruments to which it is a party or by which it is bound. (d) There is no action, suit, proceeding, investigation or litigation pending and served on the Concessionaire which challenges the Concessionaire’s authority to execute, deliver or perform, or the validity or enforceability of, this Agreement and the other Project Agreements to which the Concessionaire is a party, or which challenges the authority of the Concessionaire official executing this Agreement or the other Project Agreements, and the Concessionaire has disclosed to the Operating Company any pending and unserved or threatened action, suit, proceeding, investigation or litigation with respect to such matters of which the Concessionaire is aware. (e) This Agreement has been duly authorized, executed and delivered by the Concessionaire and constitutes a valid and legally binding obligation of the Concessionaire, enforceable against it in accordance with the terms hereof, subject only to applicable bankruptcy, insolvency and similar laws affecting the enforceability of the rights of creditors generally and the general principles of equity. (f) The Concessionaire has taken or caused to be taken all requisite action to authorize the execution and delivery of, and the performance of its obligations under, this Agreement and the other Project Agreements to which the Concessionaire is a party. (g) The Concessionaire is in material compliance with all Laws and Regulatory Approvals applicable to the Project and its activities in connection with this Agreement.

Concessionaire Representations and Warranties. The Concessionaire hereby represents and warrants to the Operating Company as follows: (a) The Concessionaire is a duly organized limited liability company created under the laws of the State of Delaware, is qualified to conduct business in the State, has the requisite power and all required licenses to carry on its present and proposed activities, and has full power, right and authority to execute and deliver this Agreement and the other Project Agreements to which the Concessionaire is a party and to perform each and all of the obligations of the Concessionaire provided for herein and therein. (b) Each person executing this Agreement or any other Project Agreement on behalf of the Concessionaire to which the Concessionaire is a party has been or at such time will be duly authorized to execute each such document on behalf of the Concessionaire. (c) Neither the execution and delivery by the Concessionaire of this Agreement and the other Project Agreements executed concurrently herewith to which the Concessionaire is a party, nor the consummation of the transactions contemplated hereby or thereby, is in conflict with or will result in a default under or violation of any other agreements or instruments to which it is a party or by which it is bound. (d) There is no action, suit, proceeding, investigation or litigation pending and served on the Concessionaire which challenges the Concessionaire’s authority to execute, deliver or perform, or the validity or enforceability of, this Agreement and the other Project Agreements to which the Concessionaire is a party, or which challenges the authority of the Concessionaire official executing this Agreement or the other Project Agreements, and the Concessionaire has disclosed to the Operating Company any pending and unserved or threatened action, suit, proceeding, investigation or litigation with respect to such matters of which the Concessionaire is aware. (e) This Agreement has been duly authorized, executed and delivered by the Concessionaire and constitutes a valid and legally binding obligation of the Concessionaire, enforceable against it in accordance with the terms hereof, subject only to applicable bankruptcy, insolvency and similar laws affecting the enforceability of the rights of creditors generally and the general principles of equity. (f) The Concessionaire has taken or caused to be taken all requisite action to authorize the execution and delivery of, and the performance of its obligations under, this Agreement and the other Project Agreements to which the Concessionaire is a party. (g) The Concessionaire is in material compliance with all Laws Law and Regulatory Governmental Approvals applicable to the Project and its activities in connection with this Agreement.

Concessionaire Representations and Warranties. The Concessionaire hereby represents and warrants to the Operating Company Department as follows: (a) The the Concessionaire is a duly organized limited liability company created under the laws of the State of Delaware, is qualified to conduct business in the State, has the requisite power and all required licenses to carry on its present and proposed activities, and has full power, right and authority to execute and deliver perform each and all of its obligations under the Project Agreements; (b) (i) as of the Agreement Date, the membership interests in the Concessionaire are owned in 90% holdings by DRIVe USA Investments LLC and 10% holdings by Fluor and no other Person has a membership interest in the Concessionaire and (ii) as of the Amended and Restated Agreement Date, the membership interests in the Concessionaire are owned in 90% holdings by DRIVe USA Investments LLC and 10% holdings by Transurban Express Lanes LLC and no other Person has a membership interest in the Concessionaire; (c) the Concessionaire has taken or caused to be taken all requisite action to authorize the execution and delivery of, and the performance of its obligations under, this Agreement and the other Project Agreements to which the Concessionaire is a party and to perform each and all of the obligations of the Concessionaire provided for herein and therein.party; (bd) Each each person executing this Agreement or any other Project Agreement on behalf of the Concessionaire to which the Concessionaire is a party has been or will at such time will be duly authorized to execute each such document on behalf of the Concessionaire.; (ce) Neither this Agreement and each Project Agreement to which the Concessionaire or a Concessionaire Financial Party is a party have been duly authorized, executed and delivered by the Concessionaire or the Concessionaire Financial Party and constitutes a valid and legally binding obligation of the Concessionaire or the Concessionaire Financial Party (as the case may be), enforceable against it in accordance with its terms, subject only to applicable bankruptcy, 177 DMEAST #27287336 v26 insolvency and similar laws affecting the enforceability of the rights of creditors generally and to general principles of equity; (f) neither the execution and delivery by the Concessionaire of this Agreement and the other Project Agreements executed concurrently herewith to which the Concessionaire is a party, nor the consummation of the transactions contemplated hereby or thereby, is in conflict with or will result in a default under or a violation of (i) the governing instruments of the Concessionaire or any other agreements or instruments to which it is a party or by which it is bound.bound or (ii) to its knowledge, any Law, where such violation will have a material adverse effect on the ability of the Concessionaire to perform its obligations under this Agreement; (dg) There there is no action, suit, proceeding, investigation or litigation pending and served on the Concessionaire which challenges the Concessionaire’s authority to execute, deliver or perform, or the validity or enforceability of, this Agreement and the other Project Agreements to which the Concessionaire is a party, or which challenges the authority of the Concessionaire official executing this Agreement or the other Project Agreements, ; and the Concessionaire has disclosed to the Operating Company Department any pending and unserved or threatened action, suit, proceeding, investigation or litigation with respect to such matters of which the Concessionaire is aware.; (eh) This Agreement has been duly authorized, executed and delivered by the Concessionaire and constitutes a valid and legally binding obligation of the Concessionaire, enforceable against it in accordance with the terms hereof, subject only to applicable bankruptcy, insolvency and similar laws affecting the enforceability of the rights of creditors generally and the general principles of equity. (f) The Concessionaire has taken or caused to be taken all requisite action to authorize the execution and delivery of, and the performance of its obligations under, this Agreement and the other Project Agreements to which the Concessionaire is a party. (g) The Concessionaire is in material compliance with all Laws and Regulatory Approvals applicable to the Project and Concessionaire or its activities in connection with this Agreement and the other Project Agreements; (i) none of the Concessionaire, any affiliate of the Concessionaire (as “affiliate” is defined in 29 CFR 98.905), the Design-Build Contractor or their affiliates (as so defined) or the TTMS Contractor or its affiliates (as so defined) is suspended or debarred, subject to a proceeding to suspend or debar it, or subject to an agreement for voluntary exclusion, from bidding, proposing or contracting with any Federal or State department or agency; (j) to the best of the Concessionaire’s knowledge after diligent inquiry, no event which, with the passage of time or the giving of notice, would constitute a Concessionaire Default or a 395 Concessionaire Breach has occurred; (k) to the best of the Concessionaire’s knowledge after diligent inquiry, no event which, with the passage of time or the giving of notice, would constitute a Delay Event or a Compensation Event under this Agreement has occurred; (l) the Initial Base Case Financial Model (i) was prepared by or on the Concessionaire’s behalf in good faith, (ii) fully discloses all Financial Model Formulas, and all cost, revenue and other financial assumptions and projections that the Concessionaire used or is using in making its decision to enter into this Agreement, (iii) fully discloses all Financial Model Formulas disclosed to the Lenders under the Project Financing Agreements and (iv) as of the Agreement Date, represents the projections that the Concessionaire believes in good faith are realistic and reasonable for the Project; provided, that such projections are based upon a number of estimates and assumptions and are subject to significant business, economic and competitive uncertainties and contingencies and that, accordingly, no representation or warranty is made that 178 DMEAST #27287336 v26 any of the assumptions are correct, that such projections will be achieved or that the forward- looking statements expressed in such projections will correspond to actual results; (m) on or before the Agreement Date, the Concessionaire has delivered to the Department an audit report and an opinion of the Financial Model Auditor addressed to the Department to the effect that the Base Case Financial Model and the Financial Model Formulas reflect the terms of this Agreement and that the Financial Model Formulas and the Base Case Financial Model are suitable for use in this Agreement in connection with Compensation Events, Delay Events and early termination procedures, and covering such other matters as may have been reasonably requested by the Department, all in form and substance acceptable to the Department; and (n) All Early Work performed by Fluor and Transurban prior to the Agreement Date was performed in accordance with (i) Law; (ii) Governmental Approvals; and (iii) prudent industry practices, methods, techniques and standards and using the degree of care that would be expected to be exercised by a prudent, skilled and experienced developer engaged in the same kinds of undertakings and under the same or similar circumstances, conditions, scope and limitations (including limitations on access to the Project Right of Way and limitations agreed with the Department as to the scope of the work to be undertaken prior to the Agreement Date) as those applying to such work.