THE APPLICATION OF THE PROCEEDS OF THE LOANS AS
DESCRIBED HEREIN WILL NOT BE, AN "INVESTMENT COMPANY" OR A COMPANY "CONTROLLED"
BY AN "INVESTMENT COMPANY," WITHIN THE MEANING OF THE INVESTMENT COMPANY ACT OF
1940, AS AMENDED.
SECTION 5.05
VALIDITY. EACH OF THE SNDAS AND EACH TRANSACTION DOCUMENT TO
WHICH THE BORROWER IS A PARTY HAS BEEN DULY AUTHORIZED, VALIDLY EXECUTED AND
DELIVERED, AND CONSTITUTES THE LEGAL, VALID AND BINDING OBLIGATIONS OF THE
BORROWER ENFORCEABLE AGAINST THE BORROWER AND, TO THE BORROWER'S ACTUAL
KNOWLEDGE, ENFORCEABLE AGAINST EACH OTHER PARTY THERETO (OTHER THAN THE SENIOR
SECURED PARTIES), IN EACH CASE IN ACCORDANCE WITH ITS RESPECTIVE TERMS, EXCEPT
AS THE ENFORCEABILITY HEREOF OR THEREOF MAY BE LIMITED BY (A) BANKRUPTCY,
INSOLVENCY, REORGANIZATION, OR OTHER SIMILAR LAWS AFFECTING THE ENFORCEMENT OF
CREDITORS' RIGHTS GENERALLY AND (B) GENERAL EQUITABLE PRINCIPLES (WHETHER
CONSIDERED IN A PROCEEDING IN EQUITY OR AT LAW).
33
SECTION 5.06
FINANCIAL INFORMATION. EACH OF THE FINANCIAL STATEMENTS OF THE
BORROWER DELIVERED PURSUANT HERETO HAS BEEN PREPARED IN ACCORDANCE WITH GAAP,
AND FAIRLY PRESENTS IN ALL MATERIAL RESPECTS THE FINANCIAL CONDITION OF THE
BORROWER AS AT THE DATES THEREOF AND THE RESULTS OF THEIR OPERATIONS FOR THE
PERIOD THEN ENDED (SUBJECT, IN THE CASE OF UNAUDITED FINANCIAL STATEMENTS, TO
CHANGES RESULTING FROM AUDIT AND NORMAL YEAR-END ADJUSTMENTS AND THE ABSENCE OF
FOOTNOTES).
SECTION 5.07
NO MATERIAL ADVERSE EFFECT. SINCE OCTOBER 31, 2006, NO MATERIAL
ADVERSE EFFECT HAS OCCURRED AND IS CONTINUING.
SECTION 5.08
PROJECT COMPLIANCE. (A) THE PROJECT IS AND WILL CONTINUE TO BE
OWNED, DEVELOPED, CONSTRUCTED AND MAINTAINED IN COMPLIANCE IN ALL MATERIAL
RESPECTS WITH ALL APPLICABLE LAWS AND THE REQUIREMENTS OF ALL NECESSARY PROJECT
APPROVALS (INCLUDING ALL DEFERRED APPROVALS).
(B)
THE PROJECT IS AND WILL CONTINUE TO BE OWNED, DEVELOPED, CONSTRUCTED AND
MAINTAINED IN COMPLIANCE IN ALL MATERIAL RESPECTS WITH ALL OF THE BORROWER'S
CONTRACTUAL OBLIGATIONS (INCLUDING THE PROJECT DOCUMENTS).
SECTION 5.09
LITIGATION. (A) NO MATERIAL ACTION, SUIT, PROCEEDING OR
INVESTIGATION HAS BEEN INSTITUTED OR THREATENED IN WRITING AGAINST ANY OF THE
BORROWER, THE PLEDGORS OR THE PROJECT (INCLUDING IN CONNECTION WITH ANY
NECESSARY PROJECT APPROVAL); AND
(B)
TO THE KNOWLEDGE OF THE BORROWER, NO ACTION, SUIT, PROCEEDING OR
INVESTIGATION HAS BEEN INSTITUTED OR THREATENED AGAINST ANY PROJECT PARTY THAT,
INDIVIDUALLY OR IN THE AGGREGATE, HAS HAD OR COULD REASONABLY BE EXPECTED TO
HAVE A MATERIAL ADVERSE EFFECT.
SECTION 5.10
SOLE PURPOSE NATURE; BUSINESS. THE BORROWER HAS NOT CONDUCTED
AND IS NOT CONDUCTING ANY BUSINESS OR ACTIVITIES OTHER THAN BUSINESSES AND
ACTIVITIES RELATING TO THE OWNERSHIP, DEVELOPMENT, TESTING, FINANCING,
CONSTRUCTION, OPERATION AND MAINTENANCE OF THE PROJECT AS CONTEMPLATED BY THE
TRANSACTION DOCUMENTS.
SECTION 5.11
CONTRACTS.
(A)
AS OF THE CLOSING DATE:
(I)
ALL CONTRACTS, AGREEMENTS, INSTRUMENTS, LETTER
AGREEMENTS, OR OTHER DOCUMENTS TO WHICH THE BORROWER IS A PARTY OR BY WHICH IT
OR ANY OF ITS PROPERTIES IS BOUND AS OF THE DATE HEREOF (OTHER THAN THE
FINANCING DOCUMENTS), INCLUDING THE PROJECT DOCUMENTS, AND ALL
34
DOCUMENTS AMENDING,
SUPPLEMENTING, INTERPRETING OR OTHERWISE MODIFYING OR CLARIFYING SUCH CONTRACTS,
AGREEMENTS,