Common use of Developer Representations and Warranties Clause in Contracts

Developer Representations and Warranties. Developer hereby represents and warrants to TxDOT as follows: 5.1.1 The Financial Model Formulas (a) were prepared by or on behalf of Developer in good faith, (b) are the same financial formulas that Developer utilized and is utilizing in the Base Case Financial Model, in making its decision to enter into this Agreement and, if Developer has included only approved financing commitments in its Proposal, in making disclosures to Lenders under the Initial Funding Agreements, and (c) as of the Effective Date are mathematically correct and suitable for making reasonable projections. (This Section 5.1.1 does not apply to assumptions used in the Base Case Financial Model, which are addressed in Section 5.1.2.) No breach of this warranty shall entitle TxDOT to new compensation or to increase the TxDOT compensation set forth in Sections 4.1 and 4.2. 5.1.2 The Base Case Financial Model (a) was prepared by or on behalf of Developer in good faith, (b) was audited and verified by an independent recognized model auditor prior to the Effective Date 5.1.3 During all periods necessary for the performance of the Work, Developer and its design Contractors will maintain all required authority, license status, professional ability, skills and capacity to perform the Work. 5.1.4 As of the Effective Date, Developer has evaluated the constraints affecting design and construction of the Project, including the Project Right of Way limits as well as the conditions of the NEPA Approval, and has reasonable grounds for believing and does believe that the Project can be designed and built within such constraints. 5.1.5 Except as to parcels to which TxDOT lacked title or access prior to the Financial Proposal Due Date, prior to the Financial Proposal Due Date Developer, in accordance with Good Industry Practice, examined the Site and surrounding locations, performed appropriate field studies and geotechnical investigations of the Site, investigated and reviewed available public and private records, and undertook other activities sufficient to familiarize itself with surface conditions and subsurface conditions, including the presence of Utilities, Hazardous Materials, contaminated groundwater, archeological, paleontological and cultural resources, and Threatened or Endangered Species, affecting the Site or surrounding locations; and as a result of such review, inspection, examination and other activities Developer is familiar with and accepts the physical requirements of the Work, subject to TxDOT’s obligations regarding Hazardous Materials under Section 12.3 and Developer’s rights to seek relief under Article 27. 5.1.6 Developer has familiarized itself with the requirements of any and all applicable Laws and the conditions of any required Governmental Approvals prior to entering into this Agreement. Except as specifically permitted under Article 13 or 27, Developer shall be responsible for complying with the foregoing at its sole cost and without any additional compensation or time extension on account of such compliance, regardless of whether such compliance would require additional time for performance or additional labor, equipment and/or materials not expressly provided for in the CDA Documents. As of the Effective Date, Developer has no reason to believe that any Governmental Approval required to be obtained by Developer will not be granted in due course and thereafter remain in effect so as to enable the Work to proceed in accordance with the CDA Documents. 5.1.7 All Work furnished by Xxxxxxxxx will be performed by or under the supervision of Persons who hold all necessary, valid licenses to practice in the State, by personnel who are skilled, experienced and competent in their respective trades or professions, who are professionally qualified to perform the Work in accordance with the CDA Documents and who shall assume professional responsibility for the accuracy and completeness of the Design Documents, Construction Documents and other documents prepared or checked by them. 5.1.8 As of the Effective Date, Developer is a limited liability company duly organized and validly existing under the laws of Delaware, has the requisite power and all required licenses to carry on 5.1.9 The execution, delivery and performance of the CDA Documents, the PABs Agreement and the Principal Project Documents to which Developer is (or will be) a party have been (or will be) duly authorized by all necessary corporate action of Developer; each person executing the CDA Documents, the PABs Agreement and such Principal Project Documents on behalf of Developer has been (or at the time of execution will be) duly authorized to execute and deliver each such document on behalf of Developer; and the CDA Documents, the PABs Agreement and such Principal Project Documents have been (or will be) duly executed and delivered by Xxxxxxxxx. 5.1.10 Neither the execution and delivery by Developer of the CDA Documents, the PABs Agreement and the Principal Project Documents to which Developer is (or will be) a party, nor the consummation of the transactions contemplated hereby or thereby, is (or at the time of execution will be) in conflict with or has resulted or will result in a default under or a violation of the governing instruments of Developer. 5.1.11 As of the Effective Date, each of the CDA Documents, the PABs Agreement and the Principal Project Documents to which Developer is (or will be) a party constitutes (or at the time of execution and delivery will constitute) the legal, valid and binding obligation of Developer, enforceable against Developer in accordance with its terms, subject only to applicable bankruptcy, insolvency and similar laws affecting the enforceability of the rights of creditors generally and the general principles of equity. 5.1.12 As of the Effective Date, there is no action, suit, proceeding, investigation or litigation pending and served on Developer that challenges Xxxxxxxxx’s authority to execute, deliver or perform, or the validity or enforceability of, the CDA Documents, the PABs Agreement and the Principal Project Documents to which Developer is a party, or which challenges the authority of the Developer representative executing the CDA Documents, the PABs Agreement or such Principal Project Documents; and Developer has disclosed to TxDOT prior to the Effective Date any pending and un- served or threatened action, suit, proceeding, investigation or litigation with respect to such matters of which Developer is aware. 5.1.13 As of the Financial Proposal Due Date Developer disclosed to TxDOT in writing all organizational conflicts of interest of Developer and its Contractors of which Developer was actually aware; and between the Financial Proposal Due Date and the Effective Date Developer has not obtained knowledge of any additional organizational conflict of interest, and there have been no organizational changes to Developer or its Contractors identified in its Proposal that have not been approved by TxDOT. For this purpose, organizational conflict of interest has the meaning set forth in the ITP. 5.1.14 To the extent the Design-Build Contractor is not Developer, Developer represents and warrants, as of the effective date of the Design-Build Contract, as follows: (a) the Design-Build Contractor is duly organized, validly existing and in good standing under the laws of the state of its organization; (b) with respect to Persons that individually hold more that 10% of the capital stock of the Design-Build Contractor (including options, warrants and other rights to acquire capital stock), such stock is owned by the Persons whom Developer has set forth in a certification delivered to TxDOT prior to the Effective Date; (c) the Design-Build Contractor has the power and authority to do all acts and things and 5.1.15 To the extent any O&M Contractor is not Developer, Developer represents and warrants as to each such O&M Contractor, as of the effective date of its O&M Contract, as follows: (a) the O&M Contractor is duly organized, validly existing and in good standing under the laws of the state of its organization; (b) the capital stock of the O&M Contractor (including options, warrants and other rights to acquire capital stock) is owned by the Persons who Developer has or will set forth in a certification delivered to TxDOT prior to the execution of the O&M Contract; (c) the O&M Contractor has the power and authority to do all acts and things and execute and deliver all other documents as are required to be done, observed or performed by it in connection with its engagement by Developer; (d) the O&M Contractor has all necessary expertise, qualifications, experience, competence, skills and know-how to perform the operation and maintenance of the Project in accordance with the CDA Documents; and (e) the O&M Contractor is not in breach of any applicable Law that would have a material adverse effect on the operations of the Project. 5.1.16 The execution and delivery by Developer of this Agreement, the Lease and the Principal Project Documents to which Developer is a party will not result, at the time of execution, in a default under any other agreement or instrument to which it is a party or by which it is bound. 5.1.17 The execution and delivery by Developer of the CDA Documents and performance by Developer of its obligations thereunder will not conflict with any Laws applicable to Developer that are valid and in effect on the Effective Date.

Developer Representations and Warranties. Developer hereby represents and warrants to TxDOT as follows: 5.1.1 The Financial Model Formulas (a) were prepared by or on behalf of Developer in good faith, (b) are the same financial formulas that Developer utilized and is utilizing in the Base Case Financial Model, in making its decision to enter into this Agreement and, if Developer has included only approved financing commitments in its Proposal, in making disclosures to Lenders under the Initial Funding Agreements, and (c) as of the Effective Date are mathematically correct and suitable for making reasonable projections. (This Section 5.1.1 does not apply to assumptions used in the Base Case Financial Model, which are addressed in Section 5.1.2.) No breach of this warranty shall entitle TxDOT to new compensation or to increase the TxDOT compensation set forth in Sections 4.1 and 4.2. 5.1.2 The Base Case Financial Model (a) was prepared by or on behalf of Developer in good faith, (b) was audited and verified by an independent recognized model auditor prior to the Effective DateDate and will be audited and verified by an independent recognized model auditor within two Business Days after the Financial Close, (c) fully discloses all cost, revenue and other financial assumptions and projections that Developer has used or is using in making its decision to enter into this Agreement and, if Developer has included only approved financing commitments in its Proposal, in making disclosures to Lenders under the Initial Funding Agreements and (d) as of the Effective Date represents the projections that Developer believes in good faith are reasonable for the Project; provided, however, that such projections (i) are based upon a number of estimates and assumptions, (ii) are subject to significant business, economic and competitive uncertainties and contingencies and (iii) accordingly are not a representation or warranty that 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. 5.1.3 During all periods necessary for the performance of the Work, Developer and its design Contractors will maintain all required authority, license status, professional ability, skills and capacity to perform the Work. 5.1.4 As of the Effective Date, Developer has evaluated the constraints affecting design and construction of the Project, including the Project Right of Way limits as well as the conditions of the NEPA Approval, and has reasonable grounds for believing and does believe that the Project can be designed and built within such constraints. 5.1.5 Except as to parcels to which TxDOT lacked title or access prior to the Financial Proposal Due Date, prior to the Financial Proposal Due Date Developer, in accordance with Good Industry Practice, examined the Site and surrounding locations, performed appropriate field studies and geotechnical investigations of the Site, investigated and reviewed available public and private records, and undertook other activities sufficient to familiarize itself with surface conditions and subsurface conditions, including the presence of Utilities, Hazardous Materials, contaminated groundwater, archeological, paleontological and cultural resources, and Threatened or Endangered Species, affecting the Site or surrounding locations; and as a result of such review, inspection, examination and other activities Developer is familiar with and accepts the physical requirements of the Work, subject to TxDOT’s obligations regarding Hazardous Materials under Section 12.3 and Developer’s rights to seek relief under Article 27. 5.1.6 Developer has familiarized itself with the requirements of any and all applicable Laws and the conditions of any required Governmental Approvals prior to entering into this Agreement. Except as specifically permitted under Article 13 or 27, Developer shall be responsible for complying with the foregoing at its sole cost and without any additional compensation or time extension on account of such compliance, regardless of whether such compliance would require additional time for performance or additional labor, equipment and/or materials not expressly provided for in the CDA Documents. As of the Effective Date, Developer has no reason to believe that any Governmental Approval required to be obtained by Developer will not be granted in due course and thereafter remain in effect so as to enable the Work to proceed in accordance with the CDA Documents. 5.1.7 All Work furnished by Xxxxxxxxx Developer will be performed by or under the supervision of Persons who hold all necessary, valid licenses to practice in the State, by personnel who are skilled, experienced and competent in their respective trades or professions, who are professionally qualified to perform the Work in accordance with the CDA Documents and who shall assume professional responsibility for the accuracy and completeness of the Design Documents, Construction Documents and other documents prepared or checked by them. 5.1.8 As of the Effective Date, Developer is a limited liability company duly organized and validly existing under the laws of Delaware, has the requisite power and all required licenses to carry onon its present and proposed activities, and has full power, right and authority to execute and deliver the CDA Documents, the PABs Agreement and the Principal Project Documents to which Developer is a party and to perform each and all of the obligations of Developer provided for herein and therein. Developer is duly qualified to do business, and is in good standing, in the State as of the Effective Date, and will remain duly qualified and in good standing throughout the Term and for as long thereafter as any obligations remain outstanding under the CDA Documents. 5.1.9 The execution, delivery and performance of the CDA Documents, the PABs Agreement and the Principal Project Documents to which Developer is (or will be) a party have been (or will be) duly authorized by all necessary corporate action of Developer; each person executing the CDA Documents, the PABs Agreement and such Principal Project Documents on behalf of Developer has been (or at the time of execution will be) duly authorized to execute and deliver each such document on behalf of Developer; and the CDA Documents, the PABs Agreement and such Principal Project Documents have been (or will be) duly executed and delivered by XxxxxxxxxDeveloper. 5.1.10 Neither the execution and delivery by Developer of the CDA Documents, the PABs Agreement and the Principal Project Documents to which Developer is (or will be) a party, nor the consummation of the transactions contemplated hereby or thereby, is (or at the time of execution will be) in conflict with or has resulted or will result in a default under or a violation of the governing instruments of Developer. 5.1.11 As of the Effective Date, each of the CDA Documents, the PABs Agreement and the Principal Project Documents to which Developer is (or will be) a party constitutes (or at the time of execution and delivery will constitute) the legal, valid and binding obligation of Developer, enforceable against Developer in accordance with its terms, subject only to applicable bankruptcy, insolvency and similar laws affecting the enforceability of the rights of creditors generally and the general principles of equity. 5.1.12 As of the Effective Date, there is no action, suit, proceeding, investigation or litigation pending and served on Developer that challenges XxxxxxxxxDeveloper’s authority to execute, deliver or perform, or the validity or enforceability of, the CDA Documents, the PABs Agreement and the Principal Project Documents to which Developer is a party, or which challenges the authority of the Developer representative executing the CDA Documents, the PABs Agreement or such Principal Project Documents; and Developer has disclosed to TxDOT prior to the Effective Date any pending and un- served or threatened action, suit, proceeding, investigation or litigation with respect to such matters of which Developer is aware. 5.1.13 As of the Financial Proposal Due Date Developer disclosed to TxDOT in writing all organizational conflicts of interest of Developer and its Contractors of which Developer was actually aware; and between the Financial Proposal Due Date and the Effective Date Developer has not obtained knowledge of any additional organizational conflict of interest, and there have been no organizational changes to Developer or its Contractors identified in its Proposal that have not been approved by TxDOT. For this purpose, organizational conflict of interest has the meaning set forth in the ITP. 5.1.14 To the extent the Design-Build Contractor is not Developer, Developer represents and warrants, as of the effective date of the Design-Build Contract, as follows: (a) the Design-Build Contractor is duly organized, validly existing and in good standing under the laws of the state of its organization; (b) with respect to Persons that individually hold more that 10% of the capital stock of the Design-Build Contractor (including options, warrants and other rights to acquire capital stock), such stock is owned by the Persons whom Developer has set forth in a certification delivered to TxDOT prior to the Effective Date; (c) the Design-Build Contractor has the power and authority to do all acts and things andstock 5.1.15 To the extent any O&M Contractor is not Developer, Developer represents and warrants as to each such O&M Contractor, as of the effective date of its O&M Contract, as follows: (a) the O&M Contractor is duly organized, validly existing and in good standing under the laws of the state of its organization; (b) the capital stock of the O&M Contractor (including options, warrants and other rights to acquire capital stock) is owned by the Persons who Developer has or will set forth in a certification delivered to TxDOT prior to the execution of the O&M Contract; (c) the O&M Contractor has the power and authority to do all acts and things and execute and deliver all other documents as are required to be done, observed or performed by it in connection with its engagement by Developer; (d) the O&M Contractor has all necessary expertise, qualifications, experience, competence, skills and know-how to perform the operation and maintenance of the Project in accordance with the CDA Documents; and (e) the O&M Contractor is not in breach of any applicable Law that would have a material adverse effect on the operations of the Project. 5.1.16 The execution and delivery by Developer of this Agreement, the Lease and the Principal Project Documents to which Developer is a party will not result, at the time of execution, in a default under any other agreement or instrument to which it is a party or by which it is bound. 5.1.17 The execution and delivery by Developer of the CDA Documents and performance by Developer of its obligations thereunder will not conflict with any Laws applicable to Developer that are valid and in effect on the Effective Date.

Developer Representations and Warranties. Developer hereby represents and warrants to TxDOT as follows: 5.1.1 The Financial Model Formulas (a) were prepared by or on behalf of Developer in good faith, (b) are the same financial formulas that Developer utilized and is utilizing in the Base Case Financial Model, in making its decision to enter into this Agreement and, if Developer has included only approved financing commitments in its Proposal, in making disclosures to Lenders under the Initial Funding Agreements, and (c) as of the Effective Date are mathematically correct and suitable for making reasonable projections. (This Section 5.1.1 does not apply to assumptions used in the Base Case Financial Model, which are addressed in Section 5.1.2.) No breach of this warranty shall entitle TxDOT to new compensation or to increase the TxDOT compensation set forth in Sections 4.1 and 4.2. 5.1.2 The Base Case Financial Model (a) was prepared by or on behalf of Developer in good faith, (b) was audited and verified by an independent recognized model auditor prior to the Effective DateDate and will be audited and verified by an independent recognized model auditor within two Business Days after the Financial Close, (c) fully discloses all cost, revenue and other financial assumptions and projections that Developer has used or is using in making its decision to enter into this Agreement and, if Developer has included only approved financing commitments in its Proposal, in making disclosures to 5.1.3 During all periods necessary for the performance of the Work, Developer and its design Contractors will maintain all required authority, license status, professional ability, skills and capacity to perform the Work. 5.1.4 As of the Effective Date, Developer has evaluated the constraints affecting design and construction of the Project, including the Project Right of Way limits as well as the conditions of the NEPA Approval, and has reasonable grounds for believing and does believe that the Project can be designed and built within such constraints. 5.1.5 Except as to parcels to which TxDOT lacked title or access prior to the Financial Proposal Due Date, prior to the Financial Proposal Due Date Developer, in accordance with Good Industry Practice, examined the Site and surrounding locations, performed appropriate field studies and geotechnical investigations of the Site, investigated and reviewed available public and private records, and undertook other activities sufficient to familiarize itself with surface conditions and subsurface conditions, including the presence of Utilities, Hazardous Materials, contaminated groundwater, archeological, paleontological and cultural resources, and Threatened or Endangered Species, affecting the Site or surrounding locations; and as a result of such review, inspection, examination and other activities Developer is familiar with and accepts the physical requirements of the Work, subject to TxDOT’s obligations regarding Hazardous Materials under Section 12.3 and Developer’s rights to seek relief under Article 27. 5.1.6 Developer has familiarized itself with the requirements of any and all applicable Laws and the conditions of any required Governmental Approvals prior to entering into this Agreement. Except as specifically permitted under Article 13 or 27, Developer shall be responsible for complying with the foregoing at its sole cost and without any additional compensation or time extension on account of such compliance, regardless of whether such compliance would require additional time for performance or additional labor, equipment and/or materials not expressly provided for in the CDA Documents. As of the Effective Date, Developer has no reason to believe that any Governmental Approval required to be obtained by Developer will not be granted in due course and thereafter remain in effect so as to enable the Work to proceed in accordance with the CDA Documents. 5.1.7 All Work furnished by Xxxxxxxxx will be performed by or under the supervision of Persons who hold all necessary, valid licenses to practice in the State, by personnel who are skilled, experienced and competent in their respective trades or professions, who are professionally qualified to perform the Work in accordance with the CDA Documents and who shall assume professional responsibility for the accuracy and completeness of the Design Documents, Construction Documents and other documents prepared or checked by them. 5.1.8 As of the Effective Date, Developer is a limited liability company duly organized and validly existing under the laws of Delaware, has the requisite power and all required licenses to carry onon its present and proposed activities, and has full power, right and authority to execute and deliver the CDA Documents, the PABs Agreement and the Principal Project Documents to which Developer is a party and to perform each and all of the obligations of Developer provided for herein and therein. Developer is duly qualified to do business, and is in good standing, in the State as of the Effective Date, and will remain 5.1.9 The execution, delivery and performance of the CDA Documents, the PABs Agreement and the Principal Project Documents to which Developer is (or will be) a party have been (or will be) duly authorized by all necessary corporate action of Developer; each person executing the CDA Documents, the PABs Agreement and such Principal Project Documents on behalf of Developer has been (or at the time of execution will be) duly authorized to execute and deliver each such document on behalf of Developer; and the CDA Documents, the PABs Agreement and such Principal Project Documents have been (or will be) duly executed and delivered by Xxxxxxxxx. 5.1.10 Neither the execution and delivery by Developer of the CDA Documents, the PABs Agreement and the Principal Project Documents to which Developer is (or will be) a party, nor the consummation of the transactions contemplated hereby or thereby, is (or at the time of execution will be) in conflict with or has resulted or will result in a default under or a violation of the governing instruments of Developer. 5.1.11 As of the Effective Date, each of the CDA Documents, the PABs Agreement and the Principal Project Documents to which Developer is (or will be) a party constitutes (or at the time of execution and delivery will constitute) the legal, valid and binding obligation of Developer, enforceable against Developer in accordance with its terms, subject only to applicable bankruptcy, insolvency and similar laws affecting the enforceability of the rights of creditors generally and the general principles of equity. 5.1.12 As of the Effective Date, there is no action, suit, proceeding, investigation or litigation pending and served on Developer that challenges Xxxxxxxxx’s authority to execute, deliver or perform, or the validity or enforceability of, the CDA Documents, the PABs Agreement and the Principal Project Documents to which Developer is a party, or which challenges the authority of the Developer representative executing the CDA Documents, the PABs Agreement or such Principal Project Documents; and Developer has disclosed to TxDOT prior to the Effective Date any pending and un- served or threatened action, suit, proceeding, investigation or litigation with respect to such matters of which Developer is aware. 5.1.13 As of the Financial Proposal Due Date Developer disclosed to TxDOT in writing all organizational conflicts of interest of Developer and its Contractors of which Developer was actually aware; and between the Financial Proposal Due Date and the Effective Date Developer has not obtained knowledge of any additional organizational conflict of interest, and there have been no organizational changes to Developer or its Contractors identified in its Proposal that have not been approved by TxDOT. For this purpose, organizational conflict of interest has the meaning set forth in the ITP. 5.1.14 To the extent the Design-Build Contractor is not Developer, Developer represents and warrants, as of the effective date of the Design-Build Contract, as follows: (a) the Design-Build Contractor is duly organized, validly existing and in good standing under the laws of the state of its organization; (b) with respect to Persons that individually hold more that 10% of the capital stock of the Design-Build Contractor (including options, warrants and other rights to acquire capital stock), such stock is owned by the Persons whom Developer has set forth in a certification delivered to TxDOT prior to the Effective Date; (c) the Design-Build Contractor has the power and authority to do all acts and things andand execute and deliver all other documents as are required to be done, observed or performed by it in connection with its engagement by Developer; (d) the Design-Build Contractor has all necessary expertise, qualifications, experience, competence, skills and know-how to perform the design and construction of the Project in accordance with the CDA Documents; and (e) the Design-Build Contractor 5.1.15 To the extent any O&M Contractor is not Developer, Developer represents and warrants as to each such O&M Contractor, as of the effective date of its O&M Contract, as follows: (a) the O&M Contractor is duly organized, validly existing and in good standing under the laws of the state of its organization; (b) the capital stock of the O&M Contractor (including options, warrants and other rights to acquire capital stock) is owned by the Persons who Developer has or will set forth in a certification delivered to TxDOT prior to the execution of the O&M Contract; (c) the O&M Contractor has the power and authority to do all acts and things and execute and deliver all other documents as are required to be done, observed or performed by it in connection with its engagement by Developer; (d) the O&M Contractor has all necessary expertise, qualifications, experience, competence, skills and know-how to perform the operation and maintenance of the Project in accordance with the CDA Documents; and (e) the O&M Contractor is not in breach of any applicable Law that would have a material adverse effect on the operations of the Project. 5.1.16 The execution and delivery by Developer of this Agreement, the Lease and the Principal Project Documents to which Developer is a party will not result, at the time of execution, in a default under any other agreement or instrument to which it is a party or by which it is bound. 5.1.17 The execution and delivery by Developer of the CDA Documents and performance by Developer of its obligations thereunder will not conflict with any Laws applicable to Developer that are valid and in effect on the Effective Date.

Developer Representations and Warranties. Developer hereby represents and warrants to TxDOT as follows: 5.1.1 The Financial Model Formulas (a) were prepared by or on behalf of Developer in good faith, (b) are the same financial formulas that Developer utilized and is utilizing in the Base Case Financial Model, in making its decision to enter into this Agreement and, if Developer has included only approved financing commitments in its Proposal, in making disclosures to Lenders under the Initial Funding Agreements, and (c) as of the Effective Date are mathematically correct and suitable for making reasonable projections. (This Section 5.1.1 does not apply to assumptions used in the Base Case Financial Model, which are addressed in Section 5.1.2.) No breach of this warranty shall entitle TxDOT to new compensation or to increase the TxDOT compensation set forth in Sections 4.1 and 4.2. 5.1.2 The Base Case Financial Model (a) was prepared by or on behalf of Developer in good faith, (b) was audited and verified by an independent recognized model auditor prior to the Effective DateDate and will be audited and verified by an independent recognized model auditor within two Business Days after the Financial Close, (c) fully discloses all cost, revenue and other financial assumptions and projections that Developer has used or is using in making its decision to enter into this Agreement and, if Developer has included only approved financing commitments in its Proposal, in making disclosures to Lenders under the Initial Funding Agreements and (d) as of the Effective Date represents the projections that Developer believes in good faith are reasonable for the Project; provided, however, that such projections (i) are based upon a number of estimates and assumptions, (ii) are subject to significant business, economic and competitive uncertainties and contingencies and (iii) accordingly are not a representation or warranty that 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. 5.1.3 During all periods necessary for the performance of the Work, Developer and its design Contractors will maintain all required authority, license status, professional ability, skills and capacity to perform the Work. 5.1.4 As of the Effective Date, Developer has evaluated the constraints affecting design and construction of the Project, including the Project Right of Way limits as well as the conditions of the NEPA Approval, and has reasonable grounds for believing and does believe that the Project can be designed and built within such constraints. 5.1.5 Except as to parcels to which TxDOT lacked title or access prior to the Financial Proposal Due Date, prior to the Financial Proposal Due Date Developer, in accordance with Good Industry Practice, examined the Site and surrounding locations, performed appropriate field studies and geotechnical investigations of the Site, investigated and reviewed available public and private records, and undertook other activities sufficient to familiarize itself with surface conditions and subsurface conditions, including the presence of Utilities, Hazardous Materials, contaminated groundwater, archeological, paleontological and cultural resources, and Threatened or Endangered Species, affecting the Site or surrounding locations; and as a result of such review, inspection, examination and other activities Developer is familiar with and accepts the physical requirements of the Work, subject to TxDOT’s obligations regarding Hazardous Materials under Section 12.3 and Developer’s rights to seek relief under Article 27. 5.1.6 Developer has familiarized itself with the requirements of any and all applicable Laws and the conditions of any required Governmental Approvals prior to entering into this Agreement. Except as specifically permitted under Article 13 or 27, Developer shall be responsible for complying with the foregoing at its sole cost and without any additional compensation or time extension on account of such compliance, regardless of whether such compliance would require additional time for performance or additional labor, equipment and/or materials not expressly provided for in the CDA Documents. As of the Effective Date, Developer has no reason to believe that any Governmental Approval required to be obtained by Developer will not be granted in due course and thereafter remain in effect so as to enable the Work to proceed in accordance with the CDA Documents. 5.1.7 All Work furnished by Xxxxxxxxx will be performed by or under the supervision of Persons who hold all necessary, valid licenses to practice in the State, by personnel who are skilled, experienced and competent in their respective trades or professions, who are professionally qualified to perform the Work in accordance with the CDA Documents and who shall assume professional responsibility for the accuracy and completeness of the Design Documents, Construction Documents and other documents prepared or checked by them. 5.1.8 As of the Effective Date, Developer is a limited liability company duly organized and validly existing under the laws of Delaware, has the requisite power and all required licenses to carry onon its present and proposed activities, and has full power, right and authority to execute and deliver the CDA Documents, the PABs Agreement and the Principal Project Documents to which Developer is a party and to perform each and all of the obligations of Developer provided for herein and therein. Developer is duly qualified to do business, and is in good standing, in the State as of the Effective Date, and will remain duly qualified and in good standing throughout the Term and for as long thereafter as any obligations remain outstanding under the CDA Documents. 5.1.9 The execution, delivery and performance of the CDA Documents, the PABs Agreement and the Principal Project Documents to which Developer is (or will be) a party have been (or will be) duly authorized by all necessary corporate action of Developer; each person executing the CDA Documents, the PABs Agreement and such Principal Project Documents on behalf of Developer has been (or at the time of execution will be) duly authorized to execute and deliver each such document on behalf of Developer; and the CDA Documents, the PABs Agreement and such Principal Project Documents have been (or will be) duly executed and delivered by Xxxxxxxxx. 5.1.10 Neither the execution and delivery by Developer of the CDA Documents, the PABs Agreement and the Principal Project Documents to which Developer is (or will be) a party, nor the consummation of the transactions contemplated hereby or thereby, is (or at the time of execution will be) in conflict with or has resulted or will result in a default under or a violation of the governing instruments of Developer. 5.1.11 As of the Effective Date, each of the CDA Documents, the PABs Agreement and the Principal Project Documents to which Developer is (or will be) a party constitutes (or at the time of execution and delivery will constitute) the legal, valid and binding obligation of Developer, enforceable against Developer in accordance with its terms, subject only to applicable bankruptcy, insolvency and similar laws affecting the enforceability of the rights of creditors generally and the general principles of equity. 5.1.12 As of the Effective Date, there is no action, suit, proceeding, investigation or litigation pending and served on Developer that challenges Xxxxxxxxx’s authority to execute, deliver or perform, or the validity or enforceability of, the CDA Documents, the PABs Agreement and the Principal Project Documents to which Developer is a party, or which challenges the authority of the Developer representative executing the CDA Documents, the PABs Agreement or such Principal Project Documents; and Developer has disclosed to TxDOT prior to the Effective Date any pending and un- served or threatened action, suit, proceeding, investigation or litigation with respect to such matters of which Developer is aware. 5.1.13 As of the Financial Proposal Due Date Developer disclosed to TxDOT in writing all organizational conflicts of interest of Developer and its Contractors of which Developer was actually aware; and between the Financial Proposal Due Date and the Effective Date Developer has not obtained knowledge of any additional organizational conflict of interest, and there have been no organizational changes to Developer or its Contractors identified in its Proposal that have not been approved by TxDOT. For this purpose, organizational conflict of interest has the meaning set forth in the ITP. 5.1.14 To the extent the Design-Build Contractor is not Developer, Developer represents and warrants, as of the effective date of the Design-Build Contract, as follows: (a) the Design-Build Contractor is duly organized, validly existing and in good standing under the laws of the state of its organization; (b) with respect to Persons that individually hold more that 10% of the capital stock of the Design-Build Contractor (including options, warrants and other rights to acquire capital stock), such stock is owned by the Persons whom Developer has set forth in a certification delivered to TxDOT prior to the Effective Date; (c) the Design-Build Contractor has the power and authority to do all acts and things andand execute and deliver all other documents as are required to be done, observed or performed by it in connection with its engagement by Developer; (d) the Design-Build Contractor has all necessary expertise, qualifications, experience, competence, skills and know-how to perform the design and construction of the Project in accordance with the CDA Documents; and (e) the Design-Build Contractor is not in breach of any applicable Law that would have a material adverse effect on the design and construction of the Project. 5.1.15 To the extent any O&M Contractor is not Developer, Developer represents and warrants as to each such O&M Contractor, as of the effective date of its O&M Contract, as follows: (a) the O&M Contractor is duly organized, validly existing and in good standing under the laws of the state of its organization; (b) the capital stock of the O&M Contractor (including options, warrants and other rights to acquire capital stock) is owned by the Persons who Developer has or will set forth in a certification delivered to TxDOT prior to the execution of the O&M Contract; (c) the O&M Contractor has the power and authority to do all acts and things and execute and deliver all other documents as are required to be done, observed or performed by it in connection with its engagement by Developer; (d) the O&M Contractor has all necessary expertise, qualifications, experience, competence, skills and know-how to perform the operation and maintenance of the Project in accordance with the CDA Documents; and (e) the O&M Contractor is not in breach of any applicable Law that would have a material adverse effect on the operations of the Project.O&M 5.1.16 The execution and delivery by Developer of this Agreement, the Lease and the Principal Project Documents to which Developer is a party will not result, at the time of execution, in a default under any other agreement or instrument to which it is a party or by which it is bound. 5.1.17 The execution and delivery by Developer of the CDA Documents and performance by Developer of its obligations thereunder will not conflict with any Laws applicable to Developer that are valid and in effect on the Effective Date.