INSTRUMENTS, LETTER AGREEMENTS, UNDERSTANDINGS AND OTHER DOCUMENTS
ARE LISTED IN SCHEDULE 5.11;
(II)
ALL CONTRACTS, AGREEMENTS, INSTRUMENTS, LETTER
AGREEMENTS, OR OTHER DOCUMENTS THAT ARE REQUIRED TO BE OBTAINED BY THE BORROWER
IN CONNECTION WITH THE CONSTRUCTION AND OPERATION OF THE PROJECT AS CONTEMPLATED
BY THE TRANSACTION DOCUMENTS (COLLECTIVELY, THE "NECESSARY PROJECT CONTRACTS")
ARE LISTED IN SCHEDULE 5.11;
(III)
THE NECESSARY PROJECT CONTRACTS LISTED IN PART A OF
SCHEDULE 5.11 HAVE BEEN OBTAINED AND ARE IN FULL FORCE AND EFFECT;
(IV)
THE NECESSARY PROJECT CONTRACTS LISTED IN PART B OF
SCHEDULE 5.11 RELATE TO THE ABERDEEN II PLANT AND ARE NOT REQUIRED TO BE
OBTAINED PRIOR TO THE CLOSING DATE (COLLECTIVELY, THE "DEFERRED CONTRACTS") AND
HAVE NOT YET BEEN OBTAINED; AND
(V)
PART B OF SCHEDULE 5.11 SPECIFIES THE DATE BY WHICH, OR
STAGE OF CONSTRUCTION OR OPERATION FOR WHICH, EACH DEFERRED CONTRACT INCLUDED
THEREIN IS REQUIRED TO BE OBTAINED.
(B)
AS OF EACH DATE THIS REPRESENTATION AND WARRANTY IS MADE OR DEEMED
REPEATED:
(I)
TO THE KNOWLEDGE OF THE BORROWER, ALL
REPRESENTATIONS, WARRANTIES AND OTHER FACTUAL STATEMENTS MADE BY EACH PROJECT
PARTY IN EACH OF THE TRANSACTION DOCUMENTS TO WHICH SUCH PROJECT PARTY IS A
PARTY ARE TRUE AND CORRECT AS OF THE DATE(S) MADE OR DEEMED REPEATED (EXCEPT
WITH RESPECT TO REPRESENTATIONS AND WARRANTIES THAT EXPRESSLY REFER TO AN
EARLIER DATE) OTHER THAN ANY SUCH INACCURACIES THAT COULD NOT REASONABLY BE
EXPECTED TO HAVE A MATERIAL ADVERSE EFFECT;
(II)
THERE ARE NO MATERIAL CONTRACTS, AGREEMENTS,
INSTRUMENTS OR DOCUMENTS BETWEEN THE BORROWER AND ANY OTHER PERSON RELATING TO
THE BORROWER OR THE PROJECT OTHER THAN (I) THE TRANSACTION DOCUMENTS, (II) THE
AGREEMENTS LISTED IN SCHEDULE 5.11, AND (III) ANY OTHER AGREEMENTS PERMITTED BY
THIS AGREEMENT;
35
(III)
THERE HAVE BEEN NO CHANGE ORDERS UNDER THE DESIGN-BUILD
AGREEMENT, OTHER THAN IN ACCORDANCE WITH SECTION 7.02(M) (NEGATIVE COVENANTS -
PROJECT DOCUMENTS); AND
(IV)
ALL CONDITIONS PRECEDENT TO THE OBLIGATIONS OF THE
RESPECTIVE PARTIES UNDER THE PROJECT DOCUMENTS THAT HAVE BEEN EXECUTED AS OF THE
DATE THIS REPRESENTATION IS MADE OR DEEMED REPEATED HAVE BEEN SATISFIED OR
WAIVED BY THE PARTIES THERETO, EXCEPT FOR SUCH CONDITIONS PRECEDENT THAT DO NOT
AND CANNOT BE SATISFIED UNTIL A LATER STAGE OF DEVELOPMENT OF THE PROJECT, AND
THE BORROWER HAS NO REASON TO BELIEVE THAT ANY SUCH CONDITION PRECEDENT (OTHER
THAN ANY CONDITION PRECEDENT THAT CAN BE WAIVED BY THE BORROWER WITHOUT ANY
MATERIAL ADVERSE RESULT) CANNOT BE SATISFIED ON OR PRIOR TO THE COMMENCEMENT OF
THE APPROPRIATE STAGE OF DEVELOPMENT OF THE PROJECT.
(C)
ON EACH FUNDING DATE, ALL NECESSARY PROJECT CONTRACTS (INCLUDING ALL
DEFERRED CONTRACTS) WHICH AS OF SUCH FUNDING DATE ARE REQUIRED TO BE IN PLACE,
HAVE BEEN DULY EXECUTED AND DELIVERED AND ARE IN FULL FORCE AND EFFECT.
SECTION 5.12
COLLATERAL. (A)
THE COLLATERAL INCLUDES ALL OF THE EQUITY
INTERESTS IN, AND ALL OF THE TANGIBLE AND INTANGIBLE ASSETS OF THE BORROWER
(EXCEPT FOR THE BOND FUNDS AND THE BOND PROCEEDS SUB-ACCOUNT).
(B)
THE LIENS AND SECURITY INTERESTS GRANTED TO THE