|
(c)Due Execution; Enforceability. Each of the Related Documents in effect as
<br />of any date on which this representation and warranty is made, and to which the Borrower is a
<br />party has been duly authorized, executed and delivered by the Borrower and constitutes the legal,
<br />valid and binding agreement of the Borrower enforceable against the Borrower in accordance with
<br />its terms, except as such enforceability (i) may be limited by applicable bankruptcy, insolvency,
<br />reorganization, moratorium or similar laws affecting the rights of creditors generally and (ii) is
<br />subject to general principles of equity (regardless of whether enforceability is considered in equity
<br />or at law).
<br />(d)Non-Contravention. The execution and delivery of the Related Documents
<br />to which the Borrower is a party, the consummation of the transactions contemplated by the
<br />Related Documents, and the fulfillment of or compliance with the terms and conditions of all of
<br />the Related Documents, will not (i) conflict with the Borrower’s Organizational Documents, (ii)
<br />conflict in any material respect with, or constitute a violation, breach or default (whether
<br />immediately or after notice or the passage of time or both) by the Borrower of or under, any
<br />applicable law, administrative rule or regulation, any applicable court or administrative decree or
<br />order, or any indenture, mortgage, deed of trust, loan agreement, lease, contract or other agreement
<br />or instrument to which the Borrower is a party or by which it or its properties or assets are otherwise
<br />subject or bound, or (iii) result in the creation or imposition of any prohibited Lien, charge or
<br />encumbrance of any nature whatsoever upon any of the property or assets of the Borrower.
<br />(e)Consents and Approvals. No consent or approval of any trustee, holder of
<br />any indebtedness of the Borrower or any other Person, and no consent, permission, authorization,
<br />order or license of, or filing or registration with, any Governmental Authority is necessary in
<br />connection with (i) the execution and delivery by the Borrower of the Related Documents, except
<br />as have been obtained or made and as are in full force and effect, or (ii) (A) the consummation of
<br />any transaction contemplated by any Related Documents or (B) the fulfillment of or compliance
<br />by the Borrower with the terms and conditions of any of the Related Documents, except as have
<br />been obtained or made and as are in full force and effect or as are ministerial in nature and can
<br />reasonably be expected to be obtained or made in the ordinary course on commercially reasonable
<br />terms and conditions when needed.
<br />(f)Litigation. Except as set forth in Schedule 12(f) (Litigation), as of the
<br />Effective Date, there is no action suit, proceeding or, to the knowledge of the Borrower, any inquiry
<br />or investigation, in any case before or by any court or other Governmental Authority pending or,
<br />to the knowledge of the Borrower, threatened against or affecting the System (including the
<br />Project) or the ability of the Borrower to execute, deliver and perform its obligations under the
<br />Related Documents. As of the Effective Date and as of each other date on which the
<br />representations and warranties herein are made or confirmed, there is no action, suit, proceeding
<br />or, to the knowledge of the Borrower, any inquiry or investigation before or by any court or other
<br />Governmental Authority pending, or to the knowledge of the Borrower, threatened against or
<br />affecting the System (including the Project), the Borrower or the assets, properties or operations
<br />of the Borrower, that in any case could reasonably be expected to result in a Material Adverse
<br />Effect. To the Borrower’s knowledge, there are no actions of the type described above pending
<br />or, threatened against or affecting any of the Principal Project Parties, except for matters arising
<br />after the Effective Date that could not reasonably be expected to (i) result in a Material Adverse
<br />Effect or (ii) adversely affect the Borrower’s ability to receive System Revenues in amounts
<br />30
<br />
<br />
|