TO HAVE BEEN
PAID BY IT, EXCEPT TAXES THAT ARE BEING CONTESTED IN GOOD FAITH BY APPROPRIATE
PROCEEDINGS AND FOR WHICH SUCH PARTY HAS SET ASIDE OR ACCRUED FOR ON ITS BOOKS
ADEQUATE RESERVES IN ACCORDANCE WITH GAAP.
(XV)
INVESTMENT COMPANY STATUS.
SUCH PARTY IS NOT AN
"INVESTMENT COMPANY" AS DEFINED IN, OR SUBJECT TO REGULATION UNDER, THE
INVESTMENT 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.
(XVII)
NATURE OF BUSINESS.
PARTY B AND MX CANADA ARE ENGAGED
SOLELY IN THE PURCHASE AND SALE OF GAS TO CUSTOMERS AND OTHER ACTIVITIES
NECESSARY IN CONNECTION THEREWITH.
MX ELECTRIC IS ENGAGED SOLELY IN THE
PURCHASE AND SALE OF ELECTRICITY TO RESIDENTIAL OR SMALL COMMERCIAL END-USERS OF
ELECTRICITY 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 ELECTRIC, MX CANADA, INFOMETER.COM AND ONLINE CHOICE) ARE ENGAGED
SOLELY IN HOLDING EQUITY INTERESTS IN THE MX HOLDCOS, PARTY B, MX ELECTRIC 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