SUCH BORROWER HAS THE CORPORATE POWER AND AUTHORITY, AND THE LEGAL RIGHT,
TO MAKE, DELIVER AND PERFORM THE FINANCING DOCUMENTS TO WHICH IT IS A PARTY AND
TO BORROW HEREUNDER AND HAS TAKEN ALL NECESSARY CORPORATE ACTION TO AUTHORIZE
THE BORROWINGS ON THE TERMS AND CONDITIONS OF THIS AGREEMENT AND TO AUTHORIZE
THE EXECUTION, DELIVERY AND PERFORMANCE OF THE FINANCING DOCUMENTS TO WHICH IT
IS A PARTY. NO CONSENT OR AUTHORIZATION OF, FILING WITH OR OTHER ACT BY OR IN
RESPECT OF, ANY GOVERNMENTAL AUTHORITY OR ANY OTHER PERSON IS REQUIRED IN
CONNECTION WITH THE BORROWINGS HEREUNDER OR WITH THE EXECUTION, DELIVERY,
PERFORMANCE, VALIDITY OR ENFORCEABILITY OF THE FINANCING DOCUMENTS TO WHICH IT
IS A PARTY, EXCEPT FOR CONSENTS, AUTHORIZATIONS OR FILINGS WHICH HAVE BEEN
OBTAINED OR MADE, AS THE CASE MAY BE, AND ARE IN FULL FORCE AND EFFECT. EACH
FINANCING DOCUMENT TO WHICH SUCH BORROWER IS A PARTY HAS BEEN DULY EXECUTED AND
DELIVERED ON BEHALF OF SUCH BORROWER.
EACH FINANCING DOCUMENT TO WHICH IT IS OR
BECOMES A PARTY UPON EXECUTION WILL CONSTITUTE A LEGAL, VALID AND BINDING
OBLIGATION OF SUCH BORROWER ENFORCEABLE AGAINST SUCH BORROWER IN ACCORDANCE WITH
ITS TERMS, EXCEPT AS ENFORCEABILITY MAY BE LIMITED BY APPLICABLE BANKRUPTCY,
INSOLVENCY, REORGANIZATION, MORATORIUM OR SIMILAR LAWS AFFECTING THE ENFORCEMENT
OF CREDITORS' RIGHTS GENERALLY AND BY GENERAL EQUITABLE PRINCIPLES (WHETHER
ENFORCEMENT IS SOUGHT BY PROCEEDINGS IN EQUITY OR AT LAW).
(C)
THE EXECUTION, DELIVERY AND PERFORMANCE OF THE FINANCING DOCUMENTS TO WHICH
IT IS A PARTY, THE BORROWINGS AND OTHER EXTENSIONS OF CREDIT HEREUNDER AND THE
USE OF THE PROCEEDS THEREOF (I) WILL NOT VIOLATE ANY REQUIREMENT OF LAW OR
CONTRACTUAL OBLIGATION OF SUCH BORROWER OR OF ANY OF ITS SUBSIDIARIES, EXCEPT
FOR SUCH VIOLATIONS, IF ANY, AS WOULD NOT RESULT IN A MATERIAL ADVERSE EFFECT ON
SUCH BORROWER, AND (II) WILL NOT RESULT IN, OR REQUIRE, THE CREATION OR
IMPOSITION OF ANY LIEN ON ANY OF ITS OR THEIR RESPECTIVE PROPERTIES OR REVENUES
PURSUANT TO ANY SUCH REQUIREMENT OF LAW OR CONTRACTUAL OBLIGATION.
32
(D)
(I) THE CONSOLIDATED BALANCE SHEETS OF CINERGY,
CG&E, PSI ENERGY, ULH&P AND THEIR RESPECTIVE CONSOLIDATED SUBSIDIARIES, EACH AS
AT DECEMBER 31, 2004 AND THE RELATED CONSOLIDATED STATEMENTS OF INCOME AND OF
CASH FLOWS FOR THE FISCAL YEAR ENDED ON SUCH DATE, COPIES OF WHICH HAVE
HERETOFORE BEEN FURNISHED TO THE ADMINISTRATIVE AGENT AND EACH BANK, ARE
COMPLETE AND CORRECT IN ALL MATERIAL RESPECTS AND PRESENT FAIRLY THE
CONSOLIDATED FINANCIAL CONDITION OF SUCH BORROWER AND ITS CONSOLIDATED
SUBSIDIARIES AS OF SUCH DATES, AND THE CONSOLIDATED RESULTS OF THEIR OPERATIONS
AND THEIR CONSOLIDATED CASH FLOWS FOR THE FISCAL YEAR THEN ENDED.
(ii)
The consolidated balance sheets of
Cinergy, CG&E, PSI Energy, ULH&P and their respective consolidated Subsidiaries,
and the related consolidated statements of income and cash flows, each most
recently delivered pursuant to Section 6.1(a) are complete and correct in all
material respects and present fairly the consolidated financial condition and
the consolidated results of operations and consolidated cash flows of such
Borrower