COMPANY
ACT OF 1940, AS AMENDED.
(XVI)
FEDERAL RESERVE REGULATIONS.
NO PART OF THE PROCEEDS OF ANY
TRANSACTION UNDER THIS AGREEMENT HAVE BEEN USED OR WILL BE USED, WHETHER
DIRECTLY OR INDIRECTLY, FOR ANY PURPOSE THAT ENTAILS A VIOLATION OF ANY OF THE
REGULATIONS OF THE BOARD OF GOVERNORS OF THE FEDERAL RESERVE SYSTEM, INCLUDING
REGULATIONS T, U AND X.
19
(XVII)
NATURE OF BUSINESS.
PARTY B IS ENGAGED SOLELY IN THE PURCHASE AND
SALE OF ENERGY TO CUSTOMERS AND OTHER ACTIVITIES NECESSARY IN CONNECTION
THEREWITH.
MX ENERGY AND MX CANADA ARE ENGAGED SOLELY IN THE PURCHASE AND SALE
OF GAS TO RESIDENTIAL OR SMALL COMMERCIAL END-USERS OF GAS AND OTHER ACTIVITIES
NECESSARY IN CONNECTION THEREWITH.
INFOMETER.COM INC. IS ENGAGED IN PROVIDING
CONSULTATIONS AND AUDITS WITH RESPECT TO ENERGY SUPPLY PROCUREMENT AND IMPROVING
ENERGY EFFICIENCY.
ONLINE CHOICE IS ENGAGED IN THE COMMISSIONED SALE OF
CONSUMER PRODUCTS SUCH AS TELECOM SERVICES AND SATELLITE TV FOR HOMEOWNERS AND
SMALL BUSINESSES (PROVIDED THAT SUCH PRODUCTS MAY NOT BE SOLD DOOR-TO-DOOR).
THE SPECIFIED ENTITIES OF PARTY B (OTHER THAN MX ENERGY, MX CANADA,
INFOMETER.COM AND ONLINE CHOICE) ARE ENGAGED SOLELY IN HOLDING EQUITY INTERESTS
IN THE MX HOLDCOS, PARTY B, MX ENERGY AND MX CANADA AND THE PERFORMANCE OF THEIR
DUTIES AND OBLIGATIONS UNDER THIS AGREEMENT, THE OTHER ISDA DOCUMENTS, THE OLD
NOTES INDENTURE, THE INDENTURE AND EACH OTHER DOCUMENT RELATED THERETO.
(XVIII)
DISCLOSURE.
SUCH PARTY HAS DISCLOSED TO PARTY A ALL AGREEMENTS,
INSTRUMENTS AND CORPORATE OR OTHER RESTRICTIONS TO WHICH IT IS SUBJECT, AND ALL
OTHER MATTERS KNOWN TO IT, THAT, INDIVIDUALLY OR IN THE AGGREGATE, COULD
REASONABLY BE EXPECTED TO RESULT IN A MATERIAL ADVERSE EFFECT.
NEITHER THE
OFFERING MEMORANDUM NOR ANY OF THE OTHER REPORTS, FINANCIAL STATEMENTS,
CERTIFICATES, DATA OR OTHER WRITTEN INFORMATION FURNISHED BY OR ON BEHALF OF
SUCH PARTY TO PARTY A IN CONNECTION WITH THE NEGOTIATION OF THIS AGREEMENT OR
DELIVERED HEREUNDER, TAKEN AS A WHOLE, CONTAINS ANY MATERIAL MISSTATEMENT OF
FACT OR OMITS TO STATE ANY MATERIAL FACT NECESSARY TO MAKE THE STATEMENTS
THEREIN, IN LIGHT OF THE CIRCUMSTANCES IN WHICH THEY WERE MADE, NOT MISLEADING;
PROVIDED THAT, WITH RESPECT TO PROJECTED FINANCIAL INFORMATION, SUCH PARTY
REPRESENTS ONLY THAT SUCH INFORMATION WAS PREPARED IN GOOD FAITH BASED ON
ASSUMPTIONS BELIEVED TO BE REASONABLE AT THE TIME, IT BEING RECOGNIZED BY PARTY
A THAT PROJECTIONS ARE NOT TO BE VIEWED AS FACTS AND THAT THE ACTUAL RESULTS
DURING THE PERIOD OR PERIODS COVERED BY SUCH PROJECTIONS MAY DIFFER FROM THE
PROJECTED RESULTS AND SUCH DIFFERENCE MAY BE MATERIAL.
(XIX)
SECURITIES ACCOUNTS.
SUCH PARTY DOES NOT HOLD ANY INVESTMENTS IN
ANY SECURITIES ACCOUNTS.
(XX)
ERISA.
NO ERISA EVENT HAS OCCURRED, AND NO ERISA EVENT WITH
RESPECT TO ANY PLAN IS REASONABLY EXPECTED TO OCCUR, THAT, WHEN TAKEN TOGETHER
WITH ALL OTHER SUCH ERISA EVENTS FOR WHICH LIABILITY IS REASONABLY EXPECTED TO
OCCUR, COULD REASONABLY BE EXPECTED TO RESULT IN A MATERIAL ADVERSE EFFECT.
(XXI)
NO DEFAULTS. NO EVENT OF DEFAULT OR POTENTIAL EVENT OF DEFAULT OR,
TO ITS