Common use of Representations and Warranties by the Company Clause in Contracts

Representations and Warranties by the Company. The Company represents and warrants as follows: (a) The Company is a corporation duly incorporated and in good standing under the laws of the State of New York, is duly qualified and authorized to transact business as a public utility in the State of New York and is not in violation of any provision of its Certificate of Incorporation or its By-Laws, has power to enter into, execute and deliver this Participation Agreement, the Tax Regulatory Agreement and the Note and by proper corporate action has duly authorized the execution and delivery of this Participation Agreement, the Tax Regulatory Agreement and the Note; (b) The execution and delivery by the Company of this Participation Agreement, the Tax Regulatory Agreement and the Note and the consummation of the transactions herein and therein contemplated will not conflict with or constitute a breach of or a default under the Company’s Certificate of Incorporation or By-Laws or a default in any material respect under any indenture, mortgage, loan agreement or other contract or instrument to which the Company is a party or by which it is bound, or any judgment, decree, order, statute, rule or regulation applicable to the Company; (c) This Participation Agreement, the Tax Regulatory Agreement and the Note have been duly executed and delivered by the Company and constitute valid and legally binding obligations of the Company, enforceable against the Company in accordance with their respective terms, except as enforcement may be limited by applicable bankruptcy, insolvency, moratorium, reorganization or other laws relating to or affecting the enforcement of creditors’ rights or contractual obligations generally or principles of equity or judicial discretion; (d) The execution and delivery by the Company of this Participation Agreement and the Note in the manner and for the purposes herein set forth have been duly authorized by order of the Public Service Commission of the State of New York; and (e) No additional authorizations for or approvals of the execution and delivery by the Company of this Participation Agreement, the Tax Regulatory Agreement and the Note need be obtained by the Company or if any such authorization or approval is necessary it has been obtained.

Representations and Warranties by the Company. The Company represents and warrants as follows: (a) The Company is a corporation duly incorporated and in good standing under the laws of the State of New York, is duly qualified and authorized to transact business as a public utility in the State of New York and is not in violation of any provision of its Certificate of Incorporation or its By-Laws, has power to enter into, execute and deliver this Participation Agreement, the Tax Regulatory Agreement and the Note and by proper corporate action has duly authorized the execution and delivery of this Participation Agreement, the Tax Regulatory Agreement and the Note; (b) The execution and delivery by the Company of this Participation Agreement, the Tax Regulatory Agreement and the Note and the consummation of the transactions herein and therein contemplated will not conflict with or constitute a breach of or a default under the Company’s 's Certificate of Incorporation or By-Laws or a default in any material respect under any indenture, mortgage, loan agreement or other contract or instrument to which the Company is a party or by which it is bound, or any judgment, decree, order, statute, rule or regulation applicable to the Company; (c) This Participation Agreement, the Tax Regulatory Agreement and the Note have been duly executed and delivered by the Company and constitute valid and legally binding obligations of the Company, enforceable against the Company in accordance with their respective terms, except as enforcement may be limited by applicable bankruptcy, insolvency, moratorium, reorganization or other laws relating to or affecting the enforcement of creditors’ ' rights or contractual obligations generally or principles of equity or judicial discretion; (d) The execution and delivery by the Company of this Participation Agreement and the Note in the manner and for the purposes herein set forth have been duly authorized by order of the Public Service Commission of the State of New York; and (e) No additional authorizations for or approvals of the execution and delivery by the Company of this Participation Agreement, the Tax Regulatory Agreement and the Note need be obtained by the Company or if any such authorization or approval is necessary it has been obtained.

Representations and Warranties by the Company. The Company hereby represents and warrants to the Pledgee as follows: (a) 8.1 The Company is a corporation limited liability company duly incorporated registered and in good standing legitimately existing under the laws of PRC Law with an independent legal personality. It has the State of New Yorkfull and independent legal status and legal capacity to execute, deliver and perform this Agreement and may act independently as a party to lawsuit. 8.2 All reports, documents and information concerning the Pledged Equity and all matters as required by this Agreement which are provided by the Company to the Pledgee before this Agreement comes into effect are true and correct in all material aspects at the time when this Agreement comes into effect. 8.3 All reports, documents and information concerning the Pledged Equity and all matters as required by this Agreement which are provided by the Company to the Pledgee after this Agreement comes into effect are true and effective in all material aspects at the time when they are provided. 8.4 This Agreement constitutes the legal, valid and binding obligations on the Company when it is duly qualified executed by the Company. 8.5 It has the full internal corporate power and authorized authority to transact business as a public utility in the State of New York and is not in violation of any provision of its Certificate of Incorporation or its By-Laws, has power to enter into, execute and deliver this Participation Agreement, the Tax Regulatory Agreement and the Note and by proper corporate action has duly authorized the execution and delivery of this Participation Agreement, the Tax Regulatory Agreement and the Note; (b) The execution and delivery by the Company of this Participation Agreement, the Tax Regulatory Agreement and the Note and the consummation of all other documents relating to the transactions specified herein and therein contemplated will not conflict with or constitute a breach of or a default under to be executed by it. It has the Company’s Certificate of Incorporation or By-Laws or a default in any material respect under any indenturefull power and authority to consummate the transactions specified herein. 8.6 There is no pending or, mortgage, loan agreement or other contract or instrument to which the Company is a party or by which it is bound, or any judgment, decree, order, statute, rule or regulation applicable to the Company; (c) This Participation Agreement, the Tax Regulatory Agreement and the Note have been duly executed and delivered by the Company and constitute valid and legally binding obligations knowledge of the Company, enforceable threatened litigation, legal process or demand by any court or any arbitral tribunal against the Pledged Equity and the Company or its assets, nor is there any pending or, to the knowledge of the Company, threatened litigation, legal process or demand by any government authority or any administration authority against the Pledged Equity and the Company or its assets, which is of material or detrimental effect on the economic status of the Company or their capability to perform the obligations hereunder and the Guaranteed Liabilities. 8.7 The Company hereby agrees to bear joint responsibilities to the Pledgee in respect of the representations and warranties made by its relevant Pledgors to Article 7.4, Article 7.5, Article 7.6, Article 7.8 and Article 7.10 hereof. 8.8 The Company hereby warrants to the Pledgee that the above representations and warranties will remain true and correct at any time and under any circumstance before the Contract Obligations are fully performed or the Guaranteed Liabilities are fully repaid, and will be fully complied with. 8.9 If the Company is required to be dissolved or liquidated as per compulsory provisions of the PRC Law, the Company assets shall be sold to the Pledgors or qualified entities/individuals designated by the Pledgors at the lowest price permitted by the then-effective PRC Law in accordance with their respective terms, except as enforcement may be limited by applicable bankruptcy, insolvency, moratorium, reorganization or other laws relating to or affecting the enforcement of creditors’ rights or contractual obligations generally or principles of equity or judicial discretion; (d) The execution and delivery by the Company of this Participation Agreement and the Note in the manner and for the purposes herein set forth have been duly authorized by order of the Public Service Commission of the State of New York; and (e) No additional authorizations for or approvals of the execution and delivery by the Company of this Participation Agreement, the Tax Regulatory Agreement and the Note need be obtained by the Company or if any such authorization or approval is necessary it has been obtainedPRC Law.

Representations and Warranties by the Company. The Company hereby represents and warrants as followsto the Pledgee that: (a) 8.1 The Company is a corporation limited liability company duly incorporated organized and validly existing under PRC Law with an independent legal personality. It also has the full and independent legal status and legal capacity to execute, deliver and perform this Agreement and may xxx or be sued as an independent party. 8.2 All the reports, documents and information concerning the Pledged Equity and all the matters as required by this Agreement which are provided by the Company to the Pledgee before this Agreement comes into effect are true and accurate in good standing under the laws all material aspects as of the State execution hereof. 8.3 All the reports, documents and information concerning the Pledged Equity and all the matters as required by this Agreement which are provided by the Company to the Pledgee after this Agreement comes into effect are true and effective in all material aspects when provided. 8.4 This Agreement, when duly executed by the Company, constitutes a legal, valid and binding obligation of New York, is duly qualified the Company. 8.5 It has the full corporate power and authorized authority to transact business as a public utility in the State of New York and is not in violation of any provision of its Certificate of Incorporation or its By-Laws, has power to enter into, execute and deliver this Participation Agreement, the Tax Regulatory Agreement and all other documents relating to the Note transaction contemplated hereby and to be executed by proper corporate action it. It also has duly authorized the execution full power and delivery of this Participation Agreementauthority to consummate the transaction contemplated hereby. 8.6 There is no litigation, the Tax Regulatory Agreement and the Note; (b) The execution and delivery by the Company of this Participation Agreement, the Tax Regulatory Agreement and the Note and the consummation of the transactions herein and therein contemplated will not conflict with legal proceedings or constitute a breach of or a default under the Company’s Certificate of Incorporation or By-Laws or a default in demand at any material respect under any indenture, mortgage, loan agreement or other contract or instrument to which the Company is a party or by which it is bound, court or any judgmentarbitral tribunal pending or, decree, order, statute, rule or regulation applicable to the Company; (c) This Participation Agreement, the Tax Regulatory Agreement and the Note have been duly executed and delivered by the Company and constitute valid and legally binding obligations knowledge of the Company, enforceable threatened against the Company in accordance with their respective termsPledged Equity, except as enforcement may be limited by applicable bankruptcy, insolvency, moratorium, reorganization or other laws relating to or affecting the enforcement of creditors’ rights or contractual obligations generally or principles of equity or judicial discretion; (d) The execution and delivery by the Company of this Participation Agreement and the Note in the manner and for the purposes herein set forth have been duly authorized by order of the Public Service Commission of the State of New York; and (e) No additional authorizations for or approvals of the execution and delivery by the Company of this Participation Agreement, the Tax Regulatory Agreement and the Note need be obtained by the Company or if its property, nor is there any such authorization litigation, legal proceedings or approval is necessary it demand at any government authority or any administrative authority pending or, to the knowledge of the Company, threatened against the Pledged Equity, the Company or its property, which has been obtaineda material adverse effect on the economic status of the Company or the Pledgors’ ability to perform the obligations hereunder and the Guaranteed Liabilities. 8.7 The Company hereby agrees to bear joint responsibilities to the Pledgee in respect of the representations and warranties made by the Pledgors under Articles 7.4, 7.5, 7.6, 7.8 and 7.10 hereof. 8.8 The Company hereby warrants to the Pledgee that the above representations and warranties will remain true and accurate at any time and under any circumstance before the Contractual Obligations are fully performed or the Guaranteed Liabilities are fully repaid, and will be fully complied with.

Representations and Warranties by the Company. The Company hereby represents and warrants to the Purchaser as of the Closing date as follows: (a) The Company has been duly formed and incorporated and is existing as a corporation duly incorporated and in good standing under the laws of the State of New YorkMaryland, is duly qualified to do business and authorized to transact business is in good standing as a public utility foreign corporation in each jurisdiction in which its ownership or lease of property or assets or the State of New York and is not in violation of any provision conduct of its Certificate business requires such qualification, except where the failure to so qualify would not have a material adverse effect on the business, assets, properties, prospects, financial condition or results of Incorporation or operation of the Company taken as a whole (a “Material Adverse Effect”), and has full corporate power and authority necessary to own, hold, lease and/or operate its By-Lawsassets and properties, has power to conduct the business in which it is engaged and to enter into, execute into and deliver perform its obligations under this Participation Agreement, the Tax Regulatory Agreement and to consummate the Note and by proper corporate action has duly authorized the execution and delivery of this Participation Agreementtransactions contemplated hereby, the Tax Regulatory Agreement and the Note;Company is in compliance in all material respects with the laws, orders, rules, regulations and directives issued or administered by such jurisdictions. (b) The execution Shares have been duly and delivery validly authorized by the Company for issuance and sale pursuant to this Agreement and, when issued and delivered against payment therefor as provided herein, will be duly and validly issued and fully paid and non-assessable, free and clear of any pledge, lien, encumbrance, security interest or other claim. (c) This Agreement has been duly authorized, executed and delivered by the Company and constitutes a valid and binding agreement of the Company enforceable in accordance with its terms, except to the extent that enforcement thereof may be limited by bankruptcy, insolvency, reorganization or other laws affecting enforcement of creditors’ rights or by general equitable principles. (d) The execution, delivery and performance of this Participation Agreement, the Tax Regulatory Agreement issuance and sale of the Note Shares and the consummation of the transactions herein and therein contemplated hereby will not conflict with with, or result in any breach of, constitute a breach of or a default under or a Repayment Event (as defined below) under (nor constitute any event which with notice, lapse of time, or both would result in any breach of, constitute a default under or a Repayment Event under), (i) any provision of the articles of incorporation or bylaws of the Company’s Certificate , (ii) any provision of Incorporation or By-Laws or a default in any material respect under any contract, license, repurchase agreement, indenture, mortgage, deed of trust, bank loan agreement or credit agreement, note, lease or other evidence of indebtedness, or any lease, contract or other agreement or instrument to which the Company is a party or by which it is boundthe Company or any of its assets or properties may be bound or affected, the effect of which could have a Material Adverse Effect, or (iii) under any judgmentfederal, state, local or foreign law, regulation or rule or any decree, order, statute, rule judgment or regulation order applicable to the Company; . As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (cor any person acting on such holder’s behalf) This Participation Agreementthe right to require the repurchase, the Tax Regulatory Agreement and the Note have been duly executed and delivered redemption or repayment of all or a portion of such indebtedness by the Company and constitute valid and legally binding obligations or any of the Company, enforceable against the Company in accordance with their respective terms, except as enforcement may be limited by applicable bankruptcy, insolvency, moratorium, reorganization or other laws relating to or affecting the enforcement of creditors’ rights or contractual obligations generally or principles of equity or judicial discretion; (d) The execution and delivery by the Company of this Participation Agreement and the Note in the manner and for the purposes herein set forth have been duly authorized by order of the Public Service Commission of the State of New York; andits subsidiaries. (e) No additional authorizations for The Company has a substantive, pre-existing relationship with the Purchaser and was directly contacted by the Purchaser or approvals his agents outside of the execution Public Offering effort. The Company (i) did not identify or contact the Purchaser through the marketing of the Public Offering and delivery (ii) was not independently contacted by the Company Purchaser as a result of this Participation Agreement, the Tax Regulatory Agreement and general solicitation by means of the Note need be obtained by the Company or if any such authorization or approval is necessary it has been obtainedRegistration Statement.

Representations and Warranties by the Company. The Company represents and warrants as followsof the Date of Issue that: (a) The Company is a corporation limited partnership duly incorporated and in good standing organized under the laws of the State of New York, Delaware and is duly qualified and authorized to transact do business as a public utility in the State of New York and State, is not in violation of any provision provisions of its Certificate Third Amended and Restated Agreement of Incorporation or its By-LawsLimited Partnership (the “Organizational Document”), has power to enter into, execute and deliver into this Participation Agreement, the Tax Regulatory Agreement, the Bond Purchase Agreement and the Note Remarketing Agreement, and by proper corporate action has duly authorized the execution, delivery and performance of this Agreement, the Tax Regulatory Agreement, the Bond Purchase Agreement and the Remarketing Agreement. (b) Neither the execution and delivery of this Participation Agreement, the Tax Regulatory Agreement and the Note; (b) The execution and delivery by the Company of this Participation Agreement, the Tax Regulatory Bond Purchase Agreement and or the Note and Remarketing Agreement, the consummation of the transactions herein contemplated hereby and therein contemplated will not conflict thereby nor the fulfillment of or compliance with the terms and conditions of such instruments is prevented by, limited by or conflicts with or constitute results in a breach of the terms, conditions or a default under provisions of any restriction of the Company’s Certificate Organizational Document or any evidence of Incorporation or By-Laws or a default in any material respect under any indentureindebtedness, mortgage, loan agreement or other contract or instrument of whatever nature to which the Company is now a party or by which it is boundbound or constitutes a default under any of the foregoing, where such conflict, breach or any judgment, decree, order, statute, rule default would materially adversely affect the validity or regulation applicable to the Company; (c) This Participation enforceability of this Agreement, the Tax Regulatory Agreement, the Bond Purchase Agreement or the Remarketing Agreement. (c) The Company is duly authorized and, upon completion of the Project, will be licensed to operate the Facilities under the laws, rulings, regulations and ordinances of the State and the Note have been duly executed departments, agencies and delivered by the Company and constitute valid and legally binding obligations of the Company, enforceable against the Company in accordance with their respective terms, except as enforcement may be limited by applicable bankruptcy, insolvency, moratorium, reorganization or other laws relating to or affecting the enforcement of creditors’ rights or contractual obligations generally or principles of equity or judicial discretion;political subdivisions thereof. (d) The execution and delivery by Company shall operate or cause the Company of this Participation Agreement and Facilities to be used for solid waste disposal facility purposes within the Note in the manner and for the purposes herein set forth have been duly authorized by order meaning of the Public Service Commission Act and otherwise comply with all provisions of the State of New York; andAct. (e) No additional authorizations for or approvals To the Company’s knowledge, no member of the execution and delivery governing body or other officer or employee of the Issuer is directly or indirectly interested in the transaction contemplated by the Company of Indenture, this Participation Agreement, the Tax Regulatory Agreement and the Note need Bonds or any contract, agreement or job hereby contemplated to be obtained by entered into or undertaken. (f) There is no pending suit, action or proceeding against or affecting the Company before or if by any such authorization court, arbitrator, administrative agency or approval is necessary it other governmental authority which will materially and adversely affect the validity, as to the Company, of any of the transactions contemplated hereby. (g) The Company has been obtainedreviewed and approved the provisions of the Indenture and will observe and comply with any obligations of the Company stated therein.

Representations and Warranties by the Company. The Company represents ----------- --------------------------------------------- makes the following representations and warrants warranties as followsthe basis for the undertakings on its part herein contained: (a) The Company (i) is a corporation duly incorporated organized, validly existing and in good standing under the laws of the State of New YorkDelaware, is (ii) has all requisite corporate power and authority to carry on its business as now being conducted and as presently proposed to be conducted, and (iii) has duly qualified and is authorized to transact do business and is in good standing as a public utility foreign corporation in the State. (b) The Company has the corporate power and has been duly authorized to enter into this Amendment and to perform all of its obligations hereunder. (c) The willingness of the Board to issue the Series 1995A Bonds for purposes of financing costs of acquiring, constructing, and installing the Project, and to lease the Project to the Company, has induced the Company to locate the Project within the State of New York and Alabama and, more particularly, within 25 miles of the City. (d) The Company is not in violation subject to any contractual or other limitation or provision of any provision nature whatsoever which in any material way limits, restricts or prevents the Company from entering into this Amendment, or performing any of its Certificate of Incorporation or its By-Laws, has power to enter into, execute obligations hereunder; and deliver this Participation Agreement, the Tax Regulatory Agreement and the Note and by proper corporate action has duly authorized the execution and delivery of this Participation AgreementAmendment, the Tax Regulatory Agreement and the Note; (b) The execution and delivery by the Company of this Participation Agreement, the Tax Regulatory Agreement and the Note and the consummation of the transactions herein contemplated hereby, and therein contemplated the fulfillment of or compliance with the terms and conditions of this Amendment will not conflict with or constitute result in a breach of the terms, conditions or a default under the Company’s Certificate provisions of Incorporation or By-Laws or a default in any material respect under any indenturerestriction, mortgage, loan agreement or other contract or instrument to which the Company is a party or by which it is bound, or constitute a default under any judgment, decree, order, statute, rule or regulation applicable to the Company; (c) This Participation Agreement, the Tax Regulatory Agreement and the Note have been duly executed and delivered by the Company and constitute valid and legally binding obligations of the Company, enforceable against the Company in accordance with their respective terms, except as enforcement may be limited by applicable bankruptcy, insolvency, moratorium, reorganization or other laws relating to or affecting the enforcement of creditors’ rights or contractual obligations generally or principles of equity or judicial discretion; (d) The execution and delivery by the Company of this Participation Agreement and the Note in the manner and for the purposes herein set forth have been duly authorized by order of the Public Service Commission of the State of New York; andforegoing. (e) No additional event has occurred and no condition exists that would constitute an "Event of Default" under the Agreement or this Amendment which, with the lapse of time or with the giving of notice or both, would become an "Event of Default" under the Agreement or this Amendment. (f) To the best of its knowledge and belief, the Company is not in violation of any laws, ordinances, governmental rules or regulations to which it is subject and has not failed to obtain any licenses, permits, franchises or other governmental authorizations for necessary to the ownership of its properties or approvals to the conduct of its business, which violation or failure to obtain would reasonably be expected to materially and adversely affect the ability of the execution and delivery by the Company of to perform its obligations under this Participation Agreement, the Tax Regulatory Agreement and the Note need be obtained by the Company or if any such authorization or approval is necessary it has been obtainedAmendment.

Representations and Warranties by the Company. The Company hereby represents and warrants as followsto the Pledgee that: (a) 8.1 The Company is a corporation limited liability company duly incorporated and validly existing under PRC Laws with independent legal personality; and has full and independent legal status and capacity to execute, deliver and perform this Agreement and may sue or be sued as an independent party. 8.2 All reports, documents and information provided by the Company to the Pledgee prior to the effectiveness of this Agreement with respect to matters pertaining to the Pledged Equity or required by this Agreement are true, correct and valid in good standing under the laws all material respects as of the State effectiveness of New Yorkthis Agreement. 8.3 All reports, is duly qualified documents and authorized information provided by the Company to transact business the Pledgee subsequent to the effectiveness of this Agreement with respect to matters pertaining to the Pledged Equity or required by this Agreement are true, correct and valid in all material respects as a public utility in of the State time of New York and is not in violation of any provision of its Certificate of Incorporation or its By-Laws, the same. 8.4 It has full power and authority to enter into, execute and deliver this Participation Agreement, the Tax Regulatory Agreement and all other documents to be entered into by it which are related to the Note and by proper corporate action has duly authorized the execution and delivery of this Participation Agreementtransaction contemplated hereunder, the Tax Regulatory Agreement and the Note;as well as to consummate such transaction. (b) The execution and delivery by the Company of this Participation Agreement, the Tax Regulatory Agreement and the Note and the consummation of the transactions herein and therein contemplated will not conflict with or constitute a breach of or a default under the Company’s Certificate of Incorporation or By-Laws or a default in any material respect under any indenture, mortgage, loan agreement or other contract or instrument to which the Company 8.5 There is a party or by which it is boundno pending, or any judgment, decree, order, statute, rule or regulation applicable to the Company; (c) This Participation Agreement, the Tax Regulatory Agreement and the Note have been duly executed and delivered by the Company and constitute valid and legally binding obligations knowledge of the Company, enforceable threatened, suit, legal proceeding or claim before any court or arbitral tribunal or by any governmental body or administrative authority against the Company in accordance with their respective termsCompany, except as enforcement may be limited by applicable bankruptcy, insolvency, moratorium, reorganization or other laws relating to or affecting the enforcement of creditors’ rights or contractual obligations generally or principles of its equity or judicial discretion;its assets (including but not limited to the Pledged Equity) having a material adverse effect on the financial condition of the Company or the ability of the Company to fulfill its obligations and the guarantee liability hereunder. (d) 8.6 The execution Company hereby agrees to be severally and delivery jointly liable to the Pledgee for the representations and warranties made by the Pledgor hereunder. 8.7 All taxes and costs payable in connection with the securing of the Pledged Equity have been paid in full by the Pledgor and the Company. 8.8 The assets owned by the Company are free from any significant security interest or other encumbrances that may affect the rights and interests of this Participation Agreement and the Note Pledgee in the manner equity. 8.9 The Company hereby warrants to the Pledgee that the foregoing representations and for the purposes herein set forth have been duly authorized by order warranties will remain true and correct and fully complied with under all circumstances at any time prior to full performance of the Public Service Commission Contractual Obligations or full satisfaction of the State of New York; and (e) No additional authorizations for or approvals of the execution and delivery by the Company of this Participation Agreement, the Tax Regulatory Agreement and the Note need be obtained by the Company or if any such authorization or approval is necessary it has been obtainedSecured Indebtedness.

Representations and Warranties by the Company. The Company represents and warrants as follows: (a) The Company is a corporation duly incorporated and in good standing under the laws of the State of New York, is duly qualified and authorized to transact engage in business as a public utility in the State of New York and is not in violation of any provision of its Certificate of Incorporation or its By-LawsYork, has power to enter into, execute and deliver this Participation Agreement, the Tax Regulatory Agreement and the Company Note and by proper corporate action and has duly authorized the execution and delivery by it of this Participation Agreement, the Tax Regulatory Agreement and the Company Note; (b) The execution and delivery by the Company of this Participation Agreement, the Tax Regulatory Agreement and the Company Note and the consummation of the transactions herein and therein contemplated will do not conflict with or constitute a breach of or a default under the Company’s 's Certificate of Incorporation or Incorporation, By-Laws or a default in any material respect under any indenture, mortgage, loan agreement or other contract or instrument to which the Company is a party or by which it is bound, or to the best of the Company's knowledge, any judgment, decree, order, statute, rule or regulation applicable to the Company; (c) This Participation Agreement, the Tax Regulatory Agreement and the Company Note have been duly executed and delivered by the Company and constitute valid and legally binding obligations of the Company, enforceable against the Company in accordance with their respective terms, except as enforcement may be limited by applicable bankruptcy, insolvency, moratorium, reorganization or other laws laws, judicial decisions or principles of equity relating to or affecting the enforcement of creditors’ ' rights or contractual obligations generally or principles of equity or judicial discretiongenerally; (d) The execution and delivery by the Company of this Participation Agreement and the Company Note in the manner and for the purposes herein set forth have been duly authorized by an order of the Public Service Commission of the State of New York; and; (e) No additional authorizations for or approvals of the execution and delivery by the Company of this Participation Agreement, the Tax Regulatory Agreement and the Company Note need be obtained by the Company or if any such authorization or approval is necessary it has been obtained; and (f) The representations of the Company set forth in the Tax Regulatory Agreement are hereby incorporated by reference as though fully set forth herein.

Representations and Warranties by the Company. The Company represents and warrants to the each Noteholder as follows: (ai) The Company is a corporation duly incorporated has the corporate power and in good standing under authority to execute, deliver and perform this Agreement, issue the laws Options and issue the Option Shares upon exercise of the State Options. The execution, delivery and performance of New Yorkthis Agreement by the Company and the issuance by the Company of the Options and the Option Shares upon exercise of the Options have been duly and validly authorized by all necessary corporate action on the part of the Company. This Agreement has been duly executed and delivered by the Company and upon obtaining the Consents will constitute a legally valid and binding obligation of the Company enforceable against the Company in accordance with its terms, is duly qualified except as may be limited by bankruptcy, insolvency, reorganization, moratorium and authorized other similar Laws relating to transact business as a public utility in creditors’ rights generally and by general equitable principles. (ii) Subject to obtaining the State of New York and is not in violation of any provision of its Certificate of Incorporation or its By-Laws, has power to enter into, execute and deliver this Participation AgreementConsents, the Tax Regulatory Agreement execution, delivery and the Note and by proper corporate action has duly authorized the execution and delivery of this Participation Agreement, the Tax Regulatory Agreement and the Note; (b) The execution and delivery performance by the Company of this Participation Agreement, the Tax Regulatory Agreement and the Note issuance of the Options and the consummation Option Shares upon exercise of the transactions herein Options do not and therein contemplated will not (i) conflict with with, or constitute a breach or default under, its Organizational Documents, (ii) violate, or constitute a breach or default under, or result in the termination, acceleration or cancellation of, or the loss of or a default under the Company’s Certificate of Incorporation or By-Laws or a default in benefit under, any material respect under any indenture, mortgage, loan agreement or other contract or instrument Contract to which the Company is a party or by which it is boundits assets may be bound or affected (whether upon lapse of time and/or the occurrence of any act or event or otherwise) or (iii) assuming the representations and warranties of each of the Noteholder set forth in their respective Notice of Exercise are accurate, violate any Law or any judgment, decree, order, statute, rule or regulation Order applicable to the Company;Company or by which its assets may be bound, other than, in the case of clauses (ii) and (iii) above as would not reasonably be expected to have, individually or in the aggregate, a material adverse effect on the ability of the Company to perform its obligations under this Agreement or any Options issued pursuant hereto. (ciii) This Participation AgreementAssuming the representations and warranties of each of the Noteholders set forth in their respective Notice of Exercise are accurate, the Tax Regulatory Agreement and the Note have been duly executed and delivered no Approval is necessary to be obtained or made by the Company in connection with the execution, delivery and constitute valid and legally binding obligations performance of this Agreement or the issuance of the Company, enforceable against Options or the Company in accordance with their respective terms, except as enforcement may be limited by applicable bankruptcy, insolvency, moratorium, reorganization or other laws relating to or affecting Option Shares upon exercise of the enforcement of creditors’ rights or contractual obligations generally or principles of equity or judicial discretion;Option. (div) The execution and delivery by the Company of this Participation Agreement and the Note in the manner and for the purposes herein set forth Option Shares have been duly authorized by order and upon issuance will be validly issued, fully paid and nonassessable and free of preemptive or other similar rights, other than the Public Service Commission of rights set forth in the State of New York; and (e) No additional authorizations for or approvals of the execution and delivery by the Company of this Participation Shareholders Agreement, the Tax Regulatory Agreement and the Note need be obtained by the Company or if any such authorization or approval is necessary it has been obtained.

Representations and Warranties by the Company. The Company represents ----------- --------------------------------------------- makes the following representations and warrants warranties as followsthe basis for the undertakings on its part herein contained: (a) The Company (i) is a corporation duly incorporated organized, validly existing and in good standing under the laws of the State of New YorkDelaware, is (ii) has all requisite corporate power and authority to carry on its business as now being conducted and as presently proposed to be conducted, and (iii) has duly qualified and is authorized to transact do business and is in good standing as a public utility foreign corporation in the State. (b) The Company has the corporate power and has been duly authorized to enter into this Amendment and to perform all of its obligations hereunder. (c) The willingness of the Board to issue the Series 1999A Bonds for purposes of financing costs of acquiring, constructing, and installing the Project, and to lease the Project to the Company, has induced the Company to locate the Project within the State of New York and Alabama and, more particularly, within 25 miles of the City. (d) The Company is not in violation subject to any contractual or other limitation or provision of any provision nature whatsoever which in any material way limits, restricts or prevents the Company from entering into this Amendment, or performing any of its Certificate of Incorporation or its By-Laws, has power to enter into, execute obligations hereunder; and deliver this Participation Agreement, the Tax Regulatory Agreement and the Note and by proper corporate action has duly authorized the execution and delivery of this Participation Agreement, the Tax Regulatory Agreement and the Note; (b) The execution and delivery by the Company of this Participation Agreement, the Tax Regulatory Agreement and the Note and the consummation of the transactions herein contemplated hereby, and therein contemplated the fulfillment of or compliance with the terms and conditions of this Amendment will not conflict with or constitute result in a breach of the terms, conditions or a default under the Company’s Certificate provisions of Incorporation or By-Laws or a default in any material respect under any indenturerestriction, mortgage, loan agreement or other contract or instrument to which the Company is a party or by which it is bound, or constitute a default under any judgment, decree, order, statute, rule or regulation applicable to the Company; (c) This Participation Agreement, the Tax Regulatory Agreement and the Note have been duly executed and delivered by the Company and constitute valid and legally binding obligations of the Company, enforceable against the Company in accordance with their respective terms, except as enforcement may be limited by applicable bankruptcy, insolvency, moratorium, reorganization or other laws relating to or affecting the enforcement of creditors’ rights or contractual obligations generally or principles of equity or judicial discretion; (d) The execution and delivery by the Company of this Participation Agreement and the Note in the manner and for the purposes herein set forth have been duly authorized by order of the Public Service Commission of the State of New York; andforegoing. (e) No additional event has occurred and no condition exists that would constitute an "Event of Default" under the Agreement or this Amendment which, with the lapse of time or with the giving of notice or both, would become an "Event of Default" under the Agreement or this Amendment. (f) To the best of its knowledge and belief, the Company is not in violation of any laws, ordinances, governmental rules or regulations to which it is subject and has not failed to obtain any licenses, permits, franchises or other governmental authorizations for necessary to the ownership of its properties or approvals to the conduct of its business, which violation or failure to obtain would reasonably be expected to materially and adversely affect the ability of the execution and delivery by the Company of to perform its obligations under this Participation Agreement, the Tax Regulatory Agreement and the Note need be obtained by the Company or if any such authorization or approval is necessary it has been obtainedAmendment.

Representations and Warranties by the Company. The Company represents ----------- --------------------------------------------- makes the following representations and warrants warranties as followsthe basis for the undertakings on its part herein contained: (a) The Company (i) is a corporation duly incorporated organized, validly existing and in good standing under the laws of the State of New YorkDelaware, is (ii) has all requisite corporate power and authority to carry on its business as now being conducted and as presently proposed to be conducted, and (iii) has duly qualified and is authorized to transact do business and is in good standing as a public utility foreign corporation in the State. (b) The Company has the corporate power and has been duly authorized to enter into this Amendment and to perform all of its obligations hereunder. (c) The willingness of the Board to issue the Series 1998A Bonds for purposes of financing costs of acquiring, constructing, and installing the Project, and to lease the Project to the Company, has induced the Company to locate the Project within the State of New York and Alabama and, more particularly, within 25 miles of the City. (d) The Company is not in violation subject to any contractual or other limitation or provision of any provision nature whatsoever which in any material way limits, restricts or prevents the Company from entering into this Amendment, or performing any of its Certificate of Incorporation or its By-Laws, has power to enter into, execute obligations hereunder; and deliver this Participation Agreement, the Tax Regulatory Agreement and the Note and by proper corporate action has duly authorized the execution and delivery of this Participation Agreement, the Tax Regulatory Agreement and the Note; (b) The execution and delivery by the Company of this Participation Agreement, the Tax Regulatory Agreement and the Note and the consummation of the transactions herein contemplated hereby, and therein contemplated the fulfillment of or compliance with the terms and conditions of this Amendment will not conflict with or constitute result in a breach of the terms, conditions or a default under the Company’s Certificate provisions of Incorporation or By-Laws or a default in any material respect under any indenturerestriction, mortgage, loan agreement or other contract or instrument to which the Company is a party or by which it is bound, or constitute a default under any judgment, decree, order, statute, rule or regulation applicable to the Company; (c) This Participation Agreement, the Tax Regulatory Agreement and the Note have been duly executed and delivered by the Company and constitute valid and legally binding obligations of the Company, enforceable against the Company in accordance with their respective terms, except as enforcement may be limited by applicable bankruptcy, insolvency, moratorium, reorganization or other laws relating to or affecting the enforcement of creditors’ rights or contractual obligations generally or principles of equity or judicial discretion; (d) The execution and delivery by the Company of this Participation Agreement and the Note in the manner and for the purposes herein set forth have been duly authorized by order of the Public Service Commission of the State of New York; andforegoing. (e) No additional event has occurred and no condition exists that would constitute an "Event of Default" under the Agreement or this Amendment which, with the lapse of time or with the giving of notice or both, would become an "Event of Default" under the Agreement or this Amendment. (f) To the best of its knowledge and belief, the Company is not in violation of any laws, ordinances, governmental rules or regulations to which it is subject and has not failed to obtain any licenses, permits, franchises or other governmental authorizations for necessary to the ownership of its properties or approvals to the conduct of its business, which violation or failure to obtain would reasonably be expected to materially and adversely affect the ability of the execution and delivery by the Company of to perform its obligations under this Participation Agreement, the Tax Regulatory Agreement and the Note need be obtained by the Company or if any such authorization or approval is necessary it has been obtainedAmendment.

Representations and Warranties by the Company. The Company represents and warrants to the Dealer Managers, as followsof the date hereof, as of each date that any Tender and Solicitation Documents are published, sent, given or otherwise distributed, throughout the continuance of the Tender Offer and Consent Solicitation, and as of the closing date of the Tender Offer on which the Notes are purchased by the Company pursuant to the Tender Offer (the “Closing Date”) that: (a) The Company has been duly incorporated and is validly existing as a corporation duly incorporated and in good standing under the laws of the State jurisdiction of New York, is its incorporation; and the Company’s subsidiaries have been duly qualified incorporated or otherwise formed and authorized to transact business are validly existing as a public utility corporation, partnership, limited liability company or other legal entity and in the State good standing under laws of New York and is not in violation their respective jurisdictions of any provision of its Certificate of Incorporation incorporation or its By-Laws, has power to enter into, execute and deliver this Participation Agreement, the Tax Regulatory Agreement and the Note and by proper corporate action has duly authorized the execution and delivery of this Participation Agreement, the Tax Regulatory Agreement and the Note;formation. (b) The execution Company has all necessary corporate power and authority to execute and deliver this Agreement, and to perform all its obligations hereunder and to make and consummate the Tender Offer in accordance with its terms. (c) The Company has taken all necessary corporate action to authorize the making and consummation of the Tender Offer and the execution, delivery and performance by the Company of this Participation Agreement, the Tax Regulatory ; and this Agreement and the Note and the consummation of the transactions herein and therein contemplated will not conflict with or constitute a breach of or a default under the Company’s Certificate of Incorporation or By-Laws or a default in any material respect under any indenture, mortgage, loan agreement or other contract or instrument to which the Company is a party or by which it is bound, or any judgment, decree, order, statute, rule or regulation applicable to the Company; (c) This Participation Agreement, the Tax Regulatory Agreement and the Note have has been duly executed and delivered by the Company and, assuming due authorization, execution and constitute delivery by the other parties hereto, this Agreement constitutes a valid and legally binding obligations agreement of the Company, enforceable against the Company in accordance with their respective its terms, except as to the extent such enforcement may be limited by applicable bankruptcy, insolvency, moratoriumreorganization, reorganization moratorium or other similar laws relating to or affecting the rights and remedies of creditors or by general equitable principles. (d) As of the date on which the transactions contemplated by the Tender and Solicitation Documents close, the Company will have all necessary corporate power and authority to execute and deliver the Supplemental Indenture and to perform all of its obligations thereunder; the Supplemental Indenture may be entered into by the Company upon the consent of Holders of at least a majority of the principal amount of Notes then outstanding (excluding for such purposes any Notes owned at the time by the Company or any of its affiliates) pursuant to the provisions of the Indenture; the Supplemental Indenture will be duly executed and delivered by the Company, and when so executed and delivered (assuming consummation of the Consent Solicitation and assuming due authorization, execution and delivery thereof by the Trustee), the Supplemental Indenture, as well as the Indenture (as amended by the Supplemental Indenture) and the Notes issued thereunder, will be the valid and legally binding obligations of the Company entitled, in the case of the Notes, to the benefits of the Indenture (as amended by the Supplemental Indenture), and enforceable against the Company in accordance with their respective terms except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other laws relating to or affecting the enforcement of creditors’ rights or contractual obligations generally or principles of equity or judicial discretion;and general equitable principles. (de) Each of the Tender and Solicitation Documents complies and (as amended or supplemented, if amended or supplemented) will comply in all material respects with all applicable requirements of the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder (collectively, the “Securities Act”) and the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder (collectively, the “Exchange Act”); and the documents incorporated or deemed to be incorporated by reference into each of the Tender and Solicitation Documents (collectively, the “Incorporated Documents”) complied, as of the date of filing with the Securities and Exchange Commission (the “SEC”), in all material respects with all applicable requirements of the Securities Act and the Exchange Act; and each of the Tender and Solicitation Documents (including the Incorporated Documents) do not and (as amended or supplemented, if amended or supplemented) will not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. (f) The execution financial statements, together with the related schedules and notes, contained in the Tender and Solicitation Documents and the Incorporated Documents present fairly, in accordance with generally accepted accounting principles (“GAAP”), the consolidated financial position, results of operations, stockholder’s equity and cash flows of the Company and its subsidiaries on the basis stated therein at the respective dates or for the respective periods to which they relate; and such statements and related schedules and notes have been prepared in accordance with GAAP consistently applied throughout the periods involved, except as disclosed therein. (g) Except as disclosed in the Tender and Solicitation Documents, the Company and its subsidiaries are not in breach or violation of or in default under, (i) any of the provisions of the Indenture or of the charter or bylaws (or similar organizational documents) of the Company or any of its subsidiaries, (ii) any other note, indenture, loan agreement, mortgage or other agreement, instrument or undertaking to which the Company or any of its subsidiaries is a party or by which any of them is bound or to which any of their properties or assets is subject other than breaches, violations or defaults that would not have a material adverse effect on the condition, financial or otherwise, earnings, business, operations or prospects of the Company and its subsidiaries taken as a whole, or (iii) any law, rule or regulation, or any order of any court or of any other governmental agency or instrumentality having jurisdiction over the Company or any of its subsidiaries or affiliates or any of its or their respective properties or assets, other than violations or defaults that would not have a material adverse effect on the condition, financial or otherwise, earnings, business, operations or prospects of the Company and its subsidiaries taken as a whole. (h) The execution, delivery and performance by the Company of this Participation Agreement and the Note transactions contemplated hereby do not and will not conflict with, or result (or with the passage of time would result) in a breach or violation of, or constitute a default under, (i) any of the manner and for provisions of the purposes herein set forth have been duly authorized Indenture or of the charter or bylaws (or similar organizational documents) of the Company or any of its subsidiaries, (ii) any other note, indenture, loan agreement, mortgage or other agreement, instrument or undertaking to which the Company or any of its subsidiaries or affiliates is a party or by which any of them is bound or to which any of their properties or assets is subject, or (iii) any law, rule or regulation, or any order of any court or of any other governmental agency or instrumentality having jurisdiction over the Public Service Commission Company or any of its subsidiaries or affiliates or any of its or their respective properties or assets. (i) No consent, approval, authorization or order of, or registration, qualification or filing with, any court or regulatory authority or other governmental agency or instrumentality is or will be required by the Company in connection with the making or consummation of the State of New York; and (e) No additional authorizations for Tender Offer or approvals of the execution and execution, delivery or performance by the Company of this Participation Agreement, the Tax Regulatory Agreement and the Note need be transactions contemplated hereby, except such as have been obtained or made by the Company and are in full force and effect under the Securities Act, the Exchange Act or if applicable state securities or “blue sky” laws or regulations. (j) In connection with the Tender Offer and Consent Solicitation, the Company has complied, and will continue to comply, in all material respects with the Securities Act, the Exchange Act, the applicable regulations of the NASD Inc. or any such authorization stock exchange and applicable state securities or approval is necessary it has been obtained“blue sky” laws or regulations. The representations and warranties set forth in this Section 4 shall remain operative and in full force and effect regardless of (i) any investigation made by or on behalf of any Indemnified Person (as defined in Annex A attached hereto) or (ii) any termination, expiration or cancellation of this Agreement.

Representations and Warranties by the Company. The Company represents makes the following representations and warrants as followswarranties: (a) The Company is a corporation limited liability company duly incorporated organized, validly existing and in good standing under the laws of the State of New York, is duly qualified and authorized to transact business as a public utility in the State of New York and is not in violation of any provision of its Certificate articles of Incorporation organization or its By-Lawsoperating agreement, has the power and authority to enter intoown its property and assets, execute to carry on its business as now being conducted by it and to execute, deliver and perform this Participation Agreement, the Tax Regulatory Agreement and the Note and by proper corporate action has duly authorized the execution and delivery of this Participation Agreement, the Tax Regulatory Agreement and the Note;each other Project Document to which it is or shall be a party. (b) The execution execution, delivery and delivery by the Company performance of this Participation Agreement, the Tax Regulatory Agreement and the Note each other Project Document to which it is or shall be a party and the consummation of the transactions herein and therein contemplated will not conflict with violate any provision of law, any order of any court or constitute a breach agency of government, or a default under the articles of organization or operating agreement of the Company’s Certificate of Incorporation , or By-Laws or a default in any material respect under any indenture, mortgage, loan agreement or other contract or instrument to which the Company is a party or by which it or any of its property is subject to or bound, or be in conflict with or result in a breach of or constitute (with due notice and/or lapse of time) a default under any judgmentsuch indenture, decreeagreement or other instrument or result in the imposition of any lien, order, statute, rule charge or regulation applicable to the Company;encumbrance of any nature whatsoever other than Permitted Encumbrances. (c) There is no action or proceeding pending or threatened by or against the Company by or before any court or administrative agency that would adversely affect the ability of the Company to perform its obligations under this Agreement and each other Project Document to which it is or shall be a party and all authorizations, consents and approvals of governmental bodies or agencies required to be obtained by the Company as of the date hereof in connection with the execution and delivery of this Agreement and each other Project Document to which the Company shall be a party or in connection with the performance of the obligations of the Company hereunder and under each of the Project Documents have been obtained. (d) The Facility will constitute a “project” under the Act, and the Company intends to operate the Facility, or cause the Facility to be operated, in accordance with this Agreement and as an Approved Facility and a qualified “project” in accordance with and as defined under the Act. (e) The financial assistance (within the meaning of the Act) provided by the Agency to the Company through the straight-lease transaction (within the meaning of the Act) as contemplated by this Agreement is necessary to induce the Company to proceed with the Project. (f) Subject to Sections 4.2 and 5.1 hereof, no Facility Equipment shall be located at any other location other than the Land. (g) (Reserved) (h) (Reserved) (i) No funds of the Agency shall be used in connection with the transactions contemplated by this Agreement for the purpose of preventing the establishment of an industrial or manufacturing plant or for the purpose of advertising or promotional materials which depict elected or appointed government officials in either print or electronic media, nor shall any funds of the Agency be given hereunder to any group or organization which is attempting to prevent the establishment of an industrial or manufacturing plant within the State. (j) This Participation Agreement, the Tax Regulatory Agreement and the Note have been duly other Project Documents (except for those Project Documents, if any, not executed and delivered by as of the Company and Closing Date) constitute the legal, valid and legally binding obligations of the Company, Company enforceable against the Company in accordance with their respective terms. (k) The Company is in compliance, except as enforcement may be limited by applicable bankruptcyand will continue to comply, insolvencywith all Federal, moratorium, reorganization State and local laws or other laws ordinances (including rules and regulations) relating to or affecting zoning, building, safety and environmental quality applicable to the enforcement Project and the operation of creditors’ rights or contractual obligations generally or principles of equity or judicial discretion;the Facility. (dl) The execution and delivery Mortgage Note shall evidence the obligation of the Company to repay the loan made by the Mortgagee to the Company pursuant to the Mortgage for purposes of this Participation Agreement and financing a portion of the Note cost of the Project in the manner amount of $13,000,000. (m) The Project Cost Budget attached as Exhibit C to this Agreement represents a true, correct and for the purposes herein set forth have been duly authorized by order complete budget as of the Public Service Commission Commencement Date of the State proposed costs of New York; andthe Project. (en) No additional authorizations for or approvals of the execution and delivery by The amounts to be provided to the Company of this Participation Agreementpursuant to the Loan, together with other moneys available to the Tax Regulatory Agreement and Company, are sufficient to pay all costs in connection with the Note need be obtained Project. (o) Except as permitted by Section 9.3 hereof, no Person other than the Company or if any such authorization Affiliate thereof or approval any of their respective agents is necessary it has been obtainedor will be in use, occupancy or possession of any portion of the Facility. (p) The Project will be designed, and the operation of the Facility will be, in compliance with all applicable Federal, State and local laws or ordinances (including rules and regulations) relating to safety and environmental quality. (q) The Company is not a Prohibited Person.

Representations and Warranties by the Company. The Company represents and warrants as followsof the Date of Issue that: (a) The Company is a corporation limited partnership duly incorporated and in good standing organized under the laws of the State of New York, Delaware and is duly qualified and authorized to transact do business as a public utility in the State of New York and State, is not in violation of any provision provisions of its Certificate Third Amended and Restated Agreement of Incorporation or its By-LawsLimited Partnership (the “Organizational Document”), has power to enter into, execute and deliver into this Participation Agreement, the Tax Regulatory Agreement, the Bond Purchase Agreement and the Note Remarketing Agreement, and by proper corporate action has duly authorized the execution, delivery and performance of this Agreement, the Tax Regulatory Agreement, the Bond Purchase Agreement and the Remarketing Agreement. (b) Neither the execution and delivery of this Participation Agreement, the Tax Regulatory Agreement and the Note; (b) The execution and delivery by the Company of this Participation Agreement, the Tax Regulatory Bond Purchase Agreement and or the Note and Remarketing Agreement, the consummation of the transactions herein contemplated hereby and therein contemplated will not conflict thereby nor the fulfillment of or compliance with the terms and conditions of such instruments is prevented by, limited by or conflicts with or constitute results in a breach of the terms, conditions or a default under provisions of any restriction of the Company’s Certificate Organizational Document or any evidence of Incorporation or By-Laws or a default in any material respect under any indentureindebtedness, mortgage, loan agreement or other contract or instrument of whatever nature to which the Company is now a party or by which it is boundbound or constitutes a default under any of the foregoing, where such conflict, breach or any judgment, decree, order, statute, rule default would materially adversely affect the validity or regulation applicable to the Company; (c) This Participation enforceability of this Agreement, the Tax Regulatory Agreement, the Bond Purchase Agreement or the Remarketing Agreement. (c) The Company is duly authorized and, upon completion of the Project, will be licensed to operate the Facilities under the laws, rulings, regulations and ordinances of the State and the Note have been duly executed departments, agencies and delivered by the Company and constitute valid and legally binding obligations of the Company, enforceable against the Company in accordance with their respective terms, except as enforcement may be limited by applicable bankruptcy, insolvency, moratorium, reorganization or other laws relating to or affecting the enforcement of creditors’ rights or contractual obligations generally or principles of equity or judicial discretion;political subdivisions thereof. (d) The execution and delivery by Company shall operate or cause the Company of this Participation Agreement and Facilities to used for industrial or manufacturing purposes within the Note in the manner and for the purposes herein set forth have been duly authorized by order meaning of the Public Service Commission Act and otherwise comply with all provisions of the State of New York; andAct. (e) No additional authorizations for or approvals To the Company’s knowledge, no member of the execution and delivery governing body or other officer or employee of the Issuer is directly or indirectly interested in the transaction contemplated by the Company of Indenture, this Participation Agreement, the Tax Regulatory Agreement and the Note need Bonds or any contract, agreement or job hereby contemplated to be obtained by entered into or undertaken. (f) There is no pending suit, action or proceeding against or affecting the Company before or if by any such authorization court, arbitrator, administrative agency or approval is necessary it other governmental authority which will materially and adversely affect the validity, as to the Company, of any of the transactions contemplated hereby. (g) The Company has been obtainedreviewed and approved the provisions of the Indenture and will observe and comply with any obligations of the Company stated therein.

Representations and Warranties by the Company. The In connection with the exchange of securities pursuant to this Agreement, the Company hereby represents and warrants to Cognate, as followsof the date hereof and as of the Closing, that: (ai) The Company is a corporation duly incorporated has all necessary power and in good standing under the laws of the State of New York, is duly qualified and authorized authority to transact business as a public utility in the State of New York and is not in violation of any provision of its Certificate of Incorporation or its By-Laws, has power to enter into, execute and deliver this Participation Agreement, to perform its obligations hereunder and to consummate the Tax Regulatory transactions contemplated hereby. This Agreement has been duly and validly executed by the Note and by proper corporate action has duly authorized Company and, assuming the execution and delivery of this Participation Agreementdue authorization, the Tax Regulatory Agreement and the Note; (b) The execution and delivery by Cognate, this Agreement constitutes the legal, valid and binding obligation of the Company, enforceable in accordance with its terms, subject to the effect of any bankruptcy or similar laws affecting the rights and remedies of creditors’ generally and general principles of equity. The execution, delivery and performance of this Agreement by the Company of this Participation Agreement, the Tax Regulatory Agreement does not and the Note and the consummation of the transactions herein and therein contemplated will not conflict with with, violate or constitute cause a breach of or a default under the Company’s Certificate certificate of Incorporation incorporation or By-Laws bylaws, applicable law or a default in any material respect under any indentureagreement, mortgage, loan agreement or other contract or instrument to which the Company is a party or by which it is bound, or any judgment, decreeorder or decree to which the Company is subject. (ii) The execution and delivery of this Agreement by the Company does not, orderand the performance of this Agreement by the Company shall not, statuterequire any consent, rule approval, authorization or regulation permit of, or filing with or notification to, any governmental entity except for applicable requirements, if any, of the Exchange Act and the filing of the Certificate of Designations with the Secretary of State of the State of Delaware and except where the failure to obtain such consents, approvals, authorizations or permits, or to make such filings or notifications, would not prevent or delay the performance by the Company of its obligations under this Agreement. (iii) The New Warrants will be duly authorized by the Company on or before the Closing and, when issued and delivered to Cognate in accordance with the terms of this Agreement and upon delivery of the Returned Securities to the Company; (c) This Participation Agreement, assuming the due authorization, execution and delivery by Cognate, the Tax Regulatory Agreement and New Warrants will constitute the Note have been duly executed and delivered by the Company and constitute legal, valid and legally binding obligations obligation of the Company, enforceable against the Company in accordance with their respective its terms, except as enforcement may be limited by applicable bankruptcy, insolvency, moratorium, reorganization subject to the effect of any bankruptcy or other similar laws relating to or affecting the enforcement rights and remedies of creditors’ rights or contractual obligations generally or and general principles of equity or judicial discretion; (d) equity. The execution and delivery Warrant Shares will be duly authorized by the Company of this Participation Agreement on or before the Closing and, upon due and the Note in the manner and for the purposes herein set forth have been duly authorized by order proper exercise of the Public Service Commission of the State of New York; and Warrants (e) No additional authorizations for in whole or approvals of the execution and delivery by the Company of this Participation Agreementin part), the Tax Regulatory Agreement Warrant Shares will be validly issued, fully paid and the Note need be obtained by the Company or if nonassessable, free and clear of any such authorization or approval is necessary it has been obtained.and all Encumbrances

Representations and Warranties by the Company. The Company represents and warrants to the Holder that as followsof the Commencement Date: (a) The Company (a) is duly organized and validly existing under the Laws of its jurisdiction of organization, (b) has all requisite corporate or other power, and has all material governmental licenses, authorizations, consents and approvals necessary to own its assets and carry on its business as now being or as proposed to be conducted except to the extent that failure to have the same would not reasonably be expected to have a corporation duly incorporated Material Adverse Effect, (c) is qualified to do business and is in good standing under in all jurisdictions in which the laws nature of the State of New York, is duly qualified business conducted by it makes such qualification necessary and authorized where failure so to transact business as a public utility qualify would (either individually or in the State of New York aggregate) reasonably be expected to have a Material Adverse Effect, (d) has full power, authority and legal right to make, issue, sell and perform this Warrant and the Warrant Shares, (e) is in compliance with all applicable Laws to which it is subject and all agreements to which it is a party, except where the failure to do so could not reasonably be expected to result in violation a Material Adverse Effect, and (f) has good title to all its assets, free and clear of any provision of its Certificate of Incorporation Liens or its By-Laws, has power to enter into, execute and deliver adverse claims except as expressly permitted by this Participation Warrant or the Credit Agreement, the Tax Regulatory Agreement and the Note and by proper corporate action has duly authorized the execution and delivery of this Participation Agreement, the Tax Regulatory Agreement and the Note;. (b) The execution making, entry into, issuance and delivery by the Company sale of this Participation Agreement, the Tax Regulatory Agreement Warrant and the Note and the consummation performance of the transactions herein and therein contemplated will not conflict with or constitute a breach of or a default under the Company’s Certificate of Incorporation or By-Laws or a default in any material respect under any indenture, mortgage, loan agreement or other contract or instrument to which the Company is a party or by which it is bound, or any judgment, decree, order, statute, rule or regulation applicable to obligations hereunder are within the Company; (c) ’s corporate powers and have been duly authorized by all necessary corporate and, if required, by all necessary shareholder action. This Participation Agreement, the Tax Regulatory Agreement and the Note have Warrant has been duly executed and delivered by the Company and constitute constitutes a legal, valid and legally binding obligations obligation of the Company, enforceable against the Company in accordance with their respective its terms, except as enforcement such enforceability may be limited by applicable (i) bankruptcy, insolvency, moratoriumreorganization, reorganization moratorium or other laws relating to or similar Laws of general applicability affecting the enforcement of creditors’ rights or contractual obligations generally or and (ii) the application of general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or judicial discretion;at law). (c) The making, entry into, issuance and sale of this Warrant and the performance of the Company’s obligations hereunder (a) do not require any consent or approval of, registration or filing with, or any other action by, any Governmental Authority or any third party, except for such as have been obtained or made and are in full force and effect, (b) will not violate any applicable Law or the charter, bylaws or other organizational documents of the Company or any of its Subsidiaries or any order of any Governmental Authority, other than any such violations that would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, (c) will not violate or result in a default under any indenture, agreement or other instrument binding upon the Company, any of its Subsidiaries or the Company’s or its Subsidiaries’ assets, or give rise to a right thereunder to require any payment to be made by any such Person, other than any of the foregoing that would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, and (d) will not result in the creation or imposition of any Lien on any asset of any of the Company or any of its Subsidiaries. (d) The execution Assuming the accuracy of the representations made by the Holder herein, the offer and delivery sale by the Company of this Participation Agreement and Warrant are not required to be registered pursuant to the Note in the manner and for the purposes herein set forth have been duly authorized by order provisions of Section 5 of the Public Service Commission of the State of New York; andSecurities Act. (e) No additional authorizations There is no indebtedness of the Company having the right to vote on any matters on which holders of shares of capital stock or other equity interests of the Company may vote. There are no outstanding or authorized stock appreciation, phantom stock, profit participation or similar rights with respect to the Company, nor are there any Contracts with respect to the voting, sale or transfer of any shares of capital stock or other equity interests of the Company. Except for this Warrant and the securities reserved for issuance as described in subsection (e) above, there are no options, warrants or other rights to subscribe for or approvals purchase any capital stock or other equity interests of the execution Company, or securities convertible into or exchangeable for, or that otherwise confer on the holder any right to acquire, any capital stock or other equity interests of the Company. There are no preemptive rights or rights of first refusal or first offer, nor are there any Contracts by which the Company is bound, relating to any capital stock or other equity interests of the Company. Except as set forth in the reports, schedules, forms, statements and delivery other documents required to be filed by the Company of this Participation Agreementunder the Exchange Act (including the exhibits thereto and documents incorporated by reference therein), the Tax Regulatory Agreement Company does not currently maintain, nor does the Company have any ongoing liability for, any stock option plan or any other plan or agreement providing for equity compensation of any Person. (f) All taxes imposed on the Company in connection with the issuance, sale and delivery of the Note need Warrant Securities have been or will be obtained timely and fully paid, and all Laws imposing such taxes have been or will be fully satisfied by the Company. (g) Neither the Company nor anyone acting on its behalf has offered or if will offer to sell the Warrant Securities or any such authorization similar securities to, or approval is necessary it solicit offers with respect thereto from, or enter into any preliminary conversations or negotiations relating thereto with, any Person, so as to require the issuance and sale of the Warrant Securities to be registered under the Securities Act. Neither the Company nor anyone acting on its behalf has been obtainedengaged, directly or indirectly, in any form of general solicitation or general advertising with respect to the offering of the Warrant Securities (as those terms are used in Regulation D) or otherwise in any manner involving a public offering within the meaning of Section 4(a)(2) of the Securities Act. Assuming the accuracy of the representations made by the Holder herein, the offer and sale of the Warrant Securities are exempt from registration under the Securities Act.

Representations and Warranties by the Company. The Company --------------------------------------------- hereby represents and warrants to each Purchaser as follows: (a) The Company is a corporation duly incorporated organized, validly existing and in good standing under the laws of the State of New YorkDelaware, is duly qualified and authorized has the corporate power and authority to transact business as a public utility in the State of New York execute, deliver and is not in violation of any provision of perform its Certificate of Incorporation or its By-Laws, has power to enter into, execute and deliver obligations under this Participation Agreement, the Tax Regulatory Agreement Notes, the Warrants and the Note and by proper corporate action has duly authorized the execution and delivery of this Participation Pledge Agreement, the Tax Regulatory Agreement and the Note;. (b) The execution and delivery by the Company of this Participation Agreement, the Tax Regulatory Agreement Notes, the Warrants and the Note Pledge Agreement, and the consummation performance by the Company of its obligations hereunder and thereunder, have been duly authorized by all requisite corporate action on the part of the transactions herein Company and therein contemplated will not (i) violate any provision of law, statute, rule or regulation or any order of any court or other agency of government, (ii) conflict with or constitute a breach of or a default under violate the Company’s Certificate of Incorporation or By-Laws of the Company, in each case as amended to the date hereof, or (iii) violate, conflict with or constitute (with due notice or lapse of time or both) a default in any material respect under any indenture, mortgage, loan lease, license, agreement or other contract or instrument to which or result in the creation or imposition of any lien, charge or encumbrance of any nature whatsoever upon the properties or assets of the Company is a party or by which it is bound, or any judgmentof its subsidiaries (other than the lien of the Stock Pledge granted hereunder and under the Pledge Agreement), decreein each case if such violation, orderconflict, statutedefault, rule lien, charge or regulation applicable to encumbrance would have a material adverse effect on the Company;. (c) This Participation Agreement, the Tax Regulatory Agreement Notes and the Note Warrants have been duly executed and delivered by the Company and constitute constitute, and the Pledge Agreement when duly executed and delivered will constitute, the valid and legally binding obligations of the Company, enforceable against the Company in accordance with their respective terms, except as enforcement to the extent the enforceability thereof may be limited by applicable bankruptcy, insolvency, moratorium, reorganization moratorium or other similar laws relating to or affecting the enforcement rights of creditors’ rights or contractual obligations generally or principles of equity or judicial discretion;creditors generally. (d) The Based in part upon the representations and warranties of each Purchaser contained in this Agreement, no registration or filing with, or consent or approval of, or other action by, any federal, state or other governmental department, commission, board, bureau, agency or instrumentality or any third party is or will be necessary for (a) the Company's execution and delivery by the Company of this Participation Agreement Agreement, the Notes and the Note in Warrants, and the manner Company's performance of its obligations hereunder and for the purposes herein set forth have been duly authorized by order of the Public Service Commission of the State of New York; andthereunder. (e) No additional authorizations for or approvals Attached hereto as Schedule 10(e) are (i) a memorandum dated June 19, 1997, from the Company's subsidiary Sandia Imaging Systems Corporation, stating that division's outstanding accounts receivable, firm orders and verbal orders as of June 18, 1997, and (ii) a letter dated June 20, 1997, from the execution Company's subsidiary Lasertechnics Marking Corporation, stating that division's outstanding accounts receivable and delivery firm orders as of June 18, 1997. Such memorandum and letter, and the attachments thereto, were prepared by the Company of this Participation Agreement, the Tax Regulatory Agreement in good faith and the Note need be obtained are believed by the Company or if to be accurate. The accounts receivable reflected therein represent valid accounts for goods sold and/or services performed in the conduct of the Company's business. (f) The Restricted Shares and the Loan Fee Shares issued to such Purchaser hereunder are, and the Warrant Shares, when issued upon the exercise of such Purchaser's Warrant in accordance with the terms hereof will be, duly authorized, validly issued, fully paid and non-assessable, and are not subject to any such authorization or approval pre-emptive rights. (g) The Company is necessary it has been obtainedthe record holder and beneficial owner of the Pledged Shares and owns the Pledged Shares free and clear of all liens and encumbrances, other than the lien of the Stock Pledge created hereunder and under the Pledge Agreement.

Representations and Warranties by the Company. The Company represents and warrants to the City, the Port Authority and the Bank as follows: (a) The Company is a corporation duly incorporated organized and in good standing existing under the laws of the State of New YorkMissouri. The Company has the power and authority to own, is duly qualified lease and authorized operate facilities of the type to transact be constructed, improved or financed with the proceeds the Loan and to carry on its business as a public utility currently conducted. The Company has all necessary licenses and permits required in order to carry on its business as currently conducted and has or will obtain all necessary licenses and permits in connection with the State execution and performance of New York the Lease and is not in violation of any provision of its Certificate of Incorporation or its By-Laws, the Relocation Project. (b) The Company has lawful power and authority to enter into, execute and deliver this Participation Agreement, the Tax Regulatory Relocation Funding Agreement and the Note Lease and to carry out its obligations hereunder and thereunder and by proper all necessary corporate action has been duly authorized the execution to execute and delivery of deliver this Participation Agreement, the Tax Regulatory Relocation Funding Agreement and the Note;Lease, acting by and through its duly authorized officers. (bc) This Relocation Funding Agreement and the Lease have been duly authorized, executed and delivered by the Company and constitute the valid and legally binding obligations of the Company enforceable in accordance with their respective terms (except to the extent that the enforcement thereof may be limited by laws relating to bankruptcy, insolvency or other similar laws affecting creditors' rights generally). (d) The execution execution, delivery and delivery performance by the Company of this Participation Agreement, the Tax Regulatory Relocation Funding Agreement and the Note Lease will not violate any provisions of law or any applicable judgment, order or regulation of any court or of any public or governmental body, agency or authority and the consummation of the transactions herein and therein contemplated will not conflict with with, or result in the breach of any of the terms and provisions of, or constitute a breach of default under, any existing law, court or a default under administrative regulation, decree, order or the Company’s Certificate 's Articles of Incorporation or By-Laws Bylaws or a default in any material respect under any indenture, mortgage, loan agreement deed of trust or other contract agreement or instrument to which the Company is a party or by which it is bound, or any judgment, decree, order, statute, rule or regulation applicable to the Company; (c) This Participation Agreement, the Tax Regulatory Agreement and the Note have been duly executed and delivered by the Company and constitute valid and legally binding obligations of the Company, enforceable against the Company in accordance with their respective terms, except as enforcement may be limited by applicable bankruptcy, insolvency, moratorium, reorganization or other laws relating to or affecting the enforcement of creditors’ rights or contractual obligations generally or principles of equity or judicial discretion; (d) The execution and delivery by the Company of this Participation Agreement and the Note in the manner and for the purposes herein set forth have been duly authorized by order of the Public Service Commission of the State of New York; andits properties are bound. (e) No additional authorizations for or approvals The proceeds of the execution Loan are to be used only to finance the Relocation Project Costs and delivery by the Loan Costs through the payment thereof or reimbursement of the Company of this Participation Agreement, the Tax Regulatory Agreement and the Note need be obtained by the for payment thereof. (f) The Company or if any such authorization or approval is necessary it has been obtained.will dismiss with prejudice President Riverboat Casino- Missouri v.

Representations and Warranties by the Company. The Company hereby represents and warrants to the Purchaser as of the Closing date as follows: (a) The Company has been duly formed and incorporated and is existing as a corporation duly incorporated and in good standing under the laws of the State of New YorkMaryland, is duly qualified to do business and authorized to transact business is in good standing as a public utility foreign corporation in each jurisdiction in which its ownership or lease of property or assets or the State of New York and is not in violation of any provision conduct of its Certificate business requires such qualification, except where the failure to so qualify would not have a material adverse effect on the business, assets, properties, prospects, financial condition or results of Incorporation or operation of the Company taken as a whole (a “Material Adverse Effect”), and has full corporate power and authority necessary to own, hold, lease and/or operate its By-Lawsassets and properties, has power to conduct the business in which it is engaged and to enter into, execute into and deliver perform its obligations under this Participation Agreement, the Tax Regulatory Agreement and to consummate the Note and by proper corporate action has duly authorized the execution and delivery of this Participation Agreementtransactions contemplated hereby, the Tax Regulatory Agreement and the Note;Company is in compliance in all material respects with the laws, orders, rules, regulations and directives issued or administered by such jurisdictions. (b) The execution Shares have been duly and delivery validly authorized by the Company for issuance and sale pursuant to this Agreement and, when issued and delivered against payment therefor as provided herein, will be duly and validly issued and fully paid and non-assessable, free and clear of any pledge, lien, encumbrance, security interest or other claim. (c) This Agreement has been duly authorized, executed and delivered by the Company and constitutes a valid and binding agreement of the Company enforceable in accordance with its terms, except to the extent that enforcement thereof may be limited by bankruptcy, insolvency, reorganization or other laws affecting enforcement of creditors’ rights or by general equitable principles. (d) The execution, delivery and performance of this Participation Agreement, the Tax Regulatory Agreement issuance and sale of the Note Shares and the consummation of the transactions herein and therein contemplated hereby will not conflict with with, or result in any breach of, constitute a breach of or a default under or a Repayment Event (as defined below) under (nor constitute any event which with notice, lapse of time, or both would result in any breach of, constitute a default under or a Repayment Event under), (i) any provision of the articles of incorporation or bylaws of the Company’s Certificate , (ii) any provision of Incorporation or By-Laws or a default in any material respect under any contract, license, repurchase agreement, indenture, mortgage, deed of trust, bank loan agreement or credit agreement, note, lease or other evidence of indebtedness, or any lease, contract or other agreement or instrument to which the Company is a party or by which it is boundthe Company or any of its assets or properties may be bound or affected, the effect of which could have a Material Adverse Effect, or (iii) under any judgmentfederal, state, local or foreign law, regulation or rule or any decree, order, statute, rule judgment or regulation order applicable to the Company; . As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (cor any person acting on such holder’s behalf) This Participation Agreementthe right to require the repurchase, the Tax Regulatory Agreement and the Note have been duly executed and delivered redemption or repayment of all or a portion of such indebtedness by the Company and constitute valid and legally binding obligations or any of the Company, enforceable against the Company in accordance with their respective terms, except as enforcement may be limited by applicable bankruptcy, insolvency, moratorium, reorganization or other laws relating to or affecting the enforcement of creditors’ rights or contractual obligations generally or principles of equity or judicial discretion; (d) The execution and delivery by the Company of this Participation Agreement and the Note in the manner and for the purposes herein set forth have been duly authorized by order of the Public Service Commission of the State of New York; andits subsidiaries. (e) No additional authorizations for The Company has a substantive, pre-existing relationship with the Purchaser and was directly contacted by the Purchaser or approvals its agents outside of the execution Public Offering effort. The Company (i) did not identify or contact the Purchaser through the marketing of the Public Offering and delivery (ii) was not independently contacted by the Company Purchaser as a result of this Participation Agreement, the Tax Regulatory Agreement and general solicitation by means of the Note need be obtained by the Company or if any such authorization or approval is necessary it has been obtainedRegistration Statement.

Representations and Warranties by the Company. The Company represents and warrants as followsto the Seller that: (a) The Company is a corporation duly incorporated and in good standing validly existing under the laws of the State Commonwealth of New York, is duly qualified Pennsylvania. (b) The Company has the requisite power and authorized authority to transact business as a public utility in the State of New York and is not in violation of any provision of its Certificate of Incorporation or its By-Laws, has power to enter into, execute and deliver this Participation Agreement, to perform its obligations hereunder and to consummate the Tax Regulatory Agreement and the Note and by proper corporate action has duly authorized the execution and delivery of this Participation Agreement, the Tax Regulatory Agreement and the Note; (b) transactions contemplated hereby. The execution and delivery by the Company of this Participation Agreement, the Tax Regulatory Agreement and performance by the Note Company of its obligations hereunder and the consummation of the transactions herein contemplated hereby have been duly and therein validly authorized by all necessary corporate action. (c) This Agreement has been validly executed and delivered by the Company and, assuming this Agreement constitutes a valid and binding obligation of the Seller, constitutes, and the Promissory Note, when and if executed and delivered by the Company, will constitute, a legal, valid and binding obligation of the Company, enforceable against it in accordance with its terms, except as enforcement may be limited by bankruptcy, insolvency or other similar laws affecting the enforcement of creditors' rights generally and general principles of equity. (d) Neither the execution and delivery of this Agreement by the Company, the issuance by the Company of the Promissory Note, the performance by the Company of its obligations hereunder, nor the consummation by the Company of the transactions contemplated hereby will not (i) violate or conflict with with, or constitute result in a breach or default under, any contract, commitment, agreement, understanding, arrangement or restriction of or a default under the Company’s Certificate of Incorporation or By-Laws or a default in any material respect under any indenture, mortgage, loan agreement or other contract or instrument kind to which the Company is a party or by which it or any of its properties is bound, or violate or breach the articles of incorporation or bylaws or other organizational documents of the Company, or (ii) violate or contravene any judgment, decree, orderlaw, statute, rule or regulation regulation, or any order, judgment or decree, currently in effect applicable to the Company; (c) This Participation Agreement, the Tax Regulatory Agreement and the Note have been duly executed and delivered by the Company and constitute valid and legally binding obligations of the Company, enforceable against the Company in accordance with their respective terms, except as enforcement may be limited by applicable bankruptcy, insolvency, moratorium, reorganization or other laws relating to or affecting the enforcement of creditors’ rights or contractual obligations generally or principles of equity or judicial discretion; (d) The execution and delivery by the Company of this Participation Agreement and the Note in the manner and for the purposes herein set forth have been duly authorized by order of the Public Service Commission of the State of New York; and. (e) No additional authorizations for consent, approval, order or approvals authorization of any court, administrative agency, other governmental entity or any other person or entity is required by or with respect to the Company in connection with the execution and delivery of this Agreement by the Company, the issuance by the Company of this Participation Agreementthe Promissory Note, the Tax Regulatory Agreement and performance of its obligations hereunder or the Note need be obtained by consummation of the Company or if any such authorization or approval is necessary it has been obtainedtransactions contemplated hereby.

Representations and Warranties by the Company. The Company represents and warrants to Pacer as follows: (a) The Company is a corporation duly incorporated organized, validly existing and in good standing under the laws of the State of New YorkDelaware. The Company has all requisite power and authority and has all governmental licenses, is duly qualified approvals, consents and authorized authorizations necessary to transact own or lease its property and assets and to carry on its business as a public utility currently conducted and has filed applications for qualification to do business in each jurisdiction in which the State nature of New York and is not in violation of any provision of its Certificate of Incorporation the business conducted or its By-Laws, has power to enter into, execute and deliver this Participation Agreement, the Tax Regulatory Agreement and the Note and property owned or leased by proper corporate action has duly authorized the execution and delivery of this Participation Agreement, the Tax Regulatory Agreement and the Note;it requires such qualification. (b) The execution Company has the power to execute, deliver and perform its obligations under this Agreement, and has obtained all necessary consents and approvals to execute, deliver and perform its obligations hereunder and to issue and sell the Pacer Securities and deliver the Pacer Securities to Pacer or a Pacer Affiliate as provided herein. (c) Upon their issuance, the Pacer Securities shall be duly authorized, validly issued, fully-paid and non-assessable shares of Common Stock free and clear of any liens or encumbrances and shall not be subject to preemptive rights, rights of first refusal, redemption rights or, except as set forth in this Agreement, any other restriction. (d) Based in part upon the accuracy of the representations of Pacer in Section 5 hereof, the offering, sale, issuance and delivery of the Pacer Securities are or, as of the date of the issuance, will be, exempt from registration under the Act, and, subject to the timely filing by the Company of any requisite notice, such offering, sale and issuance and delivery is or, as of the date of issuance, will be, also exempt from registration under applicable state securities and "blue sky" laws. The Company has made or shall make all requisite findings and has taken or shall take all action necessary to be taken to comply with such state securities or "blue sky" laws. (e) The execution, delivery and performance by the Company of this Participation Agreement, the Tax Regulatory Agreement and the Note and the consummation of the transactions herein contemplated hereby and therein contemplated will compliance with the provisions hereof, including the issuance, sale and delivery of the Pacer Securities, have not and shall not (i) violate any law to which the Company is subject, (ii) violate any provision of the Amended Articles of Incorporation of the Company or By-laws of the Company or (iii) conflict with with, result in a material breach of or constitute a breach of or a material default under the Company’s Certificate of Incorporation or By-Laws or a default in any material respect under any indenture, mortgage, loan agreement or other contract or instrument to which the Company is a party or by which it is bound, or any judgment, decree, order, statute, rule or regulation applicable to the Company; (c) This Participation Agreement, the Tax Regulatory Agreement and the Note have been duly executed and delivered by the Company and constitute valid and legally binding obligations of the Company, enforceable against the Company in accordance with their respective terms, except as enforcement may be limited by applicable bankruptcy, insolvency, moratorium, reorganization or other laws relating to or affecting the enforcement of creditors’ rights or contractual obligations generally or principles of equity or judicial discretion; (d) The execution and delivery by the Company of this Participation Agreement and the Note in the manner and for the purposes herein set forth have been duly authorized by order of the Public Service Commission of the State of New York; and (e) No additional authorizations for or approvals of the execution and delivery by the Company of this Participation Agreement, the Tax Regulatory Agreement and the Note need be obtained by the Company or if any such authorization or approval is necessary it has been obtained.

Representations and Warranties by the Company. The Company --------------------------------------------- represents and warrants as followsto BAS, on the date hereof, on each date that any Documents are published, sent, given or otherwise distributed, and on the date of exchange of cash and/or New Notes for the existing Notes by the Company pursuant to the Offer and upon the consummation of the Offer that: (a) The Company is a corporation (i) has been duly incorporated and in good standing is validly existing as a public limited company organized under the laws of the State of New YorkEngland and Wales, is duly qualified (ii) has all necessary corporate power and authorized authority (A) to transact business as a public utility in the State of New York and is not in violation of any provision of its Certificate of Incorporation or its By-Laws, has power to enter into, execute and deliver this Participation Agreement, (B) to perform all of its obligations hereunder, (C) to issue the Tax Regulatory Agreement New Notes, and (D) to consummate the Note Offer in accordance with its terms, and by proper corporate action has duly authorized (iii) shall use reasonable efforts to take on a timely basis all actions necessary or required in relation to the execution and delivery of this Participation AgreementOffer, provided failure to do so would not have a material adverse effect on the Tax Regulatory Agreement and the Note;Offer. (b) The execution Company has taken all necessary corporate action to authorize the making and consummation of the Offer and appointment of BAS as dealer manager and the execution, delivery and performance by the Company of this Participation Agreement, the Tax Regulatory . This Agreement and the Note and the consummation of the transactions herein and therein contemplated will not conflict with or constitute a breach of or a default under the Company’s Certificate of Incorporation or By-Laws or a default in any material respect under any indenture, mortgage, loan agreement or other contract or instrument to which the Company is a party or by which it is bound, or any judgment, decree, order, statute, rule or regulation applicable to the Company; (c) This Participation Agreement, the Tax Regulatory Agreement and the Note have has been duly executed and delivered by the Company and constitute assuming due authorization, execution and delivery by BAS, constitutes a valid and legally binding obligations agreement of the Company, enforceable against the Company in accordance with their respective termsits terms subject to applicable bankruptcy, reorganization, insolvency, fraudulent conveyance, moratorium, arrangement and similar laws now or hereafter affecting creditors' rights generally from time to time in effect and to general equitable principles, as well as concepts of materiality, reasonableness, good faith and fair dealing, and except as enforcement to the extent that rights to indemnity under this Agreement may be limited by federal or state securities laws. The New Notes issuable in the Offer have been duly authorized and duly and properly reserved for issuance, and upon issuance in accordance with the terms of the Offer, such New Notes will be validly issued, fully paid and non-assessable and not subject to any preemptive or similar rights, contractual or otherwise. (c) The Offer and the Documents (including the documents incorporated or deemed to be incorporated by reference into the Documents) comply and (as amended or supplemented, if amended or supplemented) will comply in all material respects with all applicable bankruptcyrequirements of the federal and state securities laws; and the Documents (including the documents incorporated or deemed to be incorporated by reference into the Documents) do not and (as amended or supplemented, insolvencyif amended or supplemented) will not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, moratoriumin the light of the circumstances under which they were made, reorganization or other laws relating to or affecting the enforcement of creditors’ rights or contractual obligations generally or principles of equity or judicial discretion;not misleading. (d) The execution Offer pursuant to the terms of the Documents, and the execution, delivery and performance by the Company of this Participation Agreement and the Note transactions contemplated hereby (i) do not and will not conflict with, or result in a breach or violation of, or constitute a default under, any of the provisions of the indenture under which the Notes were issued dated as of March 13, 1995 (the "Indenture") or of the memorandum or articles of association of the Company, or any other note, indenture, loan agreement, mortgage or other agreement, instrument or undertaking to which the Company or any of its subsidiaries or affiliates is a party or by which any of them is bound or to which any of their properties or assets is subject, (ii) will not result in any violation of any law, rule or regulation or any order of any court or of any other governmental agency or instrumentality having jurisdiction over the Company or any of its subsidiaries or affiliates or any of its or their respective properties or assets, and (iii) will comply in all material respects with the requirements of all applicable foreign, federal, local or state securities laws, rules and regulations. (e) No consent, approval, authorization or order of, or registration, qualification or filing with, any court or regulatory authority or other governmental agency or instrumentality or third party is or will be required in connection with the making or consummation of the Offer or the execution, delivery or performance by the Company of this Agreement and the transactions contemplated hereby, except (i) as such may be stated in the manner Prospectus, (ii) the Offer must comply in all respects with the provisions of the Securities Act of 1933, as amended (the "Act"), the Securities Exchange Act of 1934 (the --- "Exchange Act"), and for the purposes herein set forth rules and regulations under the Act and the Exchange ------------ Act (the "Rules and Regulations"), and the various state securities (or "blue --------------------- sky") laws, (iii) the credit agreement between the Company and various other parties dated as of December 5, 1996, as it has been amended as of December 5, 2000 and as it may be amended from time to time (the "Credit Agreement"), (iv) the tax retention operating leases of the Company or (v) such as individually or in the aggregate would not have a material adverse effect on the financial condition of the Company and its subsidiaries taken as a whole (a "Material Adverse Effect"). (f) There is no action, suit or proceeding before or by any court or governmental agency or body now pending or, to the knowledge of the Company, threatened against or affecting the Company or any of its subsidiaries which would adversely affect the Offer pursuant to the terms of the Documents or the effectiveness of this Agreement except as such may be stated in the Prospectus or such as would not have a Material Adverse Effect. (g) The New Notes have been duly authorized by order the Company for issuance and exchange pursuant to the Offer and, when duly executed, authenticated, issued and delivered in accordance with the terms of the Public Service Commission respective indenture for the relevant New Notes against payment of the State consideration therefor as contemplated by the Offer, will constitute valid and binding obligations on the Company which are enforceable in accordance with their terms, except as (i) the enforceability thereof may be limited by bankruptcy, reorganization, insolvency, fraudulent conveyance, moratorium, arrangement or similar laws now or hereafter affecting creditors' rights generally and (ii) rights of New York; and acceleration, if applicable, and the availability of equitable remedies may be limited by equitable principles of general applicability (e) No additional authorizations for regardless of whether such enforceability is considered in a proceeding in equity or approvals law), as well as concepts of materiality, reasonableness, good faith and fair dealing. The Holders of the execution New Notes shall be entitled to the rights and delivery benefits of the respective indenture for the relevant New Notes, unless such Holder expressly has waived such rights. The representations and warranties set forth in this Section 4 shall remain operative and in full force and effect regardless of (i) any investigation made by the Company or on behalf of any Indemnified Person (as defined in Annex A attached hereto), or (ii) any termination of this Participation Agreement, . Nothing herein shall constitute an agreement by BAS or its affiliates to purchase or underwrite the Tax Regulatory Agreement and the Note need be obtained by the Company Notes or if any such authorization or approval is necessary it has been obtainedother financing.

Representations and Warranties by the Company. The Company represents and warrants to the Holder as of the Commencement Date as follows: (a) The Company (i) is a corporation duly incorporated organized, validly existing and in good standing under in its jurisdiction of incorporation and (ii) has the laws of the State of New York, is duly qualified corporate power and authorized authority to transact own and operate its properties and to carry on its business as a public utility in the State of New York now conducted and is not in violation of any provision of its Certificate of Incorporation or its By-Laws, has power as proposed to enter into, execute and deliver this Participation Agreement, the Tax Regulatory Agreement and the Note and by proper corporate action has duly authorized the execution and delivery of this Participation Agreement, the Tax Regulatory Agreement and the Note;be conducted. (b) The execution All corporate action on the part of the Company, its officers, directors and shareholders necessary for the authorization, execution, delivery and performance of its obligations under this Warrant and for the authorization, issuance and delivery by of the Shares issuable upon exercise of the Warrant has been taken and this Warrant constitutes the legally binding and valid obligation of the Company enforceable in accordance with its terms, except as may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, and other laws of general application affecting enforcement of creditors’ rights generally. (c) The Warrant has been validly issued and is free of restrictions on transfer other than restrictions on transfer set forth herein and under applicable state and federal securities laws. The Shares issuable upon conversion of this Participation AgreementWarrant, when issued, sold and delivered in accordance with the terms of this Warrant for the consideration expressed herein, will be duly and validly issued, fully paid and nonassessable, and will be free of restrictions on transfer other than restrictions on transfer under this Warrant and under applicable state and federal securities laws. Subject to applicable restrictions on transfer, the Tax Regulatory Agreement issuance and delivery of the Warrant and the Note and the consummation Shares issuable upon conversion of the transactions herein Warrant are not subject to any preemptive or other similar rights or any liens or encumbrances except (i) as specifically set forth in the Company’s Restated Certificate of Incorporation, as amended, or this Warrant or (ii) for any such rights that have been previously waived or have expired in accordance with their terms without exercise. The offer, sale and therein issuance of the Warrant and Shares, as contemplated by this Warrant, are exempt from the registration requirements of applicable federal and state securities laws in the United States, and neither the Company nor any authorized agent acting on its behalf has or will take any action hereafter that would cause the loss of such exemption. (d) The execution, delivery, and performance of this Warrant will not result in any violation of, be in conflict with with, or constitute a breach default under, with or without the passage of time or a default under the giving of notice (a) any provision of the Company’s Restated Certificate of Incorporation Incorporation, as amended, or Byby-Laws laws (each as in effect on the date hereof); (b) any provision of any judgment, decree, or a default in any material respect under any indenture, mortgage, loan agreement or other contract or instrument order to which the Company is a party or by which it is bound; (c) any contract, obligation, or commitment to which the Company is a party or by which it is bound; or (d) any judgment, decree, order, statute, rule rule, or governmental regulation applicable to the Company;. (ce) This Participation AgreementAs of the Commencement Date, the Tax Regulatory Agreement authorized capital stock of the Company consists of 35,000,000 shares of Common Stock, of which 2,238,637 were issued and the Note outstanding. The outstanding shares have been duly executed authorized and delivered by validly issued (including, without limitation, issued in compliance with applicable federal and state securities laws), are fully paid and nonassessable and have been issued in compliance with the registration and prospectus delivery requirements of the Act and the registration and qualification requirements of all applicable state securities laws, or in compliance with applicable exemptions therefrom. The Company shall reserve adequate shares of Common Stock for issuance upon exercise of this Warrant. Except as set forth in its filings with the Securities and constitute valid Exchange Commission (the “Commission”) and legally binding obligations except for the two convertible promissory notes issued to Perseus Partners VII, L.P. (“Perseus”) on March 1, 2010 in the aggregate principal amounts of $720,000 and $28,800, there are no outstanding warrants, options, conversion privileges, preemptive rights or other rights or agreements to purchase or otherwise acquire or issue any equity securities or convertible Securities of the Company, enforceable against nor has the issuance of any of the aforesaid rights to acquire securities of the Company been authorized. (f) No consent, approval, order or authorization of, or registration, qualification, designation, declaration or filing with, any federal, state or local governmental authority on the part of the Company is required in accordance connection with their respective termsthe offer, sale or issuance of the Warrant (and the Shares issuable upon the exercise of this Warrant), or the consummation of any other transaction contemplated hereby, except as enforcement may be limited by applicable bankruptcy, insolvency, moratorium, reorganization or other laws relating to or affecting the enforcement of creditors’ rights or contractual obligations generally or principles of equity or judicial discretion; (d) The execution and delivery by the Company of this Participation Agreement and the Note in the manner and for the purposes herein set forth have been duly authorized by order following: (a) the filing of a notice on Form D under the Public Service Commission of Act and (b) the State of New York; and (e) No additional authorizations for or approvals of the execution and delivery by the Company of this Participation Agreement, the Tax Regulatory Agreement and the Note need be obtained by the Company or if any such authorization or approval is necessary it has been obtainedcompliance with applicable state securities laws.

Representations and Warranties by the Company. The Company represents and warrants as followsof the Date of Issue that: (a) The Company is a corporation limited liability company duly incorporated and in good standing organized under the laws of the State of New York, Delaware and is duly qualified and authorized to transact do business as a public utility in the State of New York and State, is not in violation of any provision provisions of its Certificate Articles of Incorporation Organization or its By-LawsOperating Agreement (the “Organizational Documents”), has power to enter into, execute and deliver into this Participation Agreement, the Tax Regulatory Agreement, the Bond Purchase Agreement and the Note Remarketing Agreement, and by proper corporate action has duly authorized the execution, delivery and performance of this Agreement, the Tax Regulatory Agreement, the Bond Purchase Agreement and the Remarketing Agreement. (b) Neither the execution and delivery of this Participation Agreement, the Tax Regulatory Agreement and the Note; (b) The execution and delivery by the Company of this Participation Agreement, the Tax Regulatory Bond Purchase Agreement and or the Note and Remarketing Agreement, the consummation of the transactions herein contemplated hereby and therein contemplated will not conflict thereby nor the fulfillment of or compliance with the terms and conditions of such instruments is prevented by, limited by or conflicts with or constitute results in a breach of the terms, conditions or a default under provisions of any restriction of the Company’s Certificate Organizational Documents or any evidence of Incorporation or By-Laws or a default in any material respect under any indentureindebtedness, mortgage, loan agreement or other contract or instrument of whatever nature to which the Company is now a party or by which it is boundbound or constitutes a default under any of the foregoing, where such conflict, breach or any judgment, decree, order, statute, rule default would materially adversely affect the validity or regulation applicable to the Company; (c) This Participation enforceability of this Agreement, the Tax Regulatory Agreement, the Bond Purchase Agreement or the Remarketing Agreement. (c) The Company is duly authorized and, upon completion of the Project, will be licensed to operated the Existing Facilities and the Note have been duly executed Facilities under the laws, rulings, regulations and delivered by the Company and constitute valid and legally binding obligations ordinances of the CompanyState and the departments, enforceable against the Company in accordance with their respective terms, except as enforcement may be limited by applicable bankruptcy, insolvency, moratorium, reorganization or other laws relating to or affecting the enforcement of creditors’ rights or contractual obligations generally or principles of equity or judicial discretion;agencies and political subdivisions thereof. (d) The execution and delivery by Company shall operate or cause the Company Facilities to be used as part of this Participation Agreement and an enterprise in storing, warehousing or distributing products of agriculture within the Note in the manner and for the purposes herein set forth have been duly authorized by order meaning of the Public Service Commission Act and otherwise comply with all provisions of the State of New York; andAct. (e) No additional authorizations for or approvals To the Company’s knowledge, no member of the execution and delivery governing body or other officer or employee of the Issuer is directly or indirectly interested in the transaction contemplated by the Company of Indenture, this Participation Agreement, the Tax Regulatory Agreement and the Note need Bonds or any contract, agreement or job hereby contemplated to be obtained by entered into or undertaken. (f) There is no pending suit, action or proceeding against or affecting the Company before or if by any such authorization court, arbitrator, administrative agency or approval other governmental authority which will materially and adversely affect the validity, as to the Company, of any of the transactions contemplated hereby. (g) The Company has reviewed and approved the provisions of the Indenture and will observe and comply with any obligations of the Company stated therein. (h) At no time during the Term of the Bonds will the Project be located more than twenty-five (25) miles outside the corporate limits of the City of Mobile, Alabama, Alabama. (i) The Existing Facility Lease is necessary it has been obtainedin full force and effect and no default or event of default exists thereunder.

Representations and Warranties by the Company. The Parties acknowledge that the Offeror has conducted a financial, business and legal due diligence on the Company and its business and affairs based on (i) publicly available information and (ii) information provided by the Company, including responses to questions that the Offeror or its advisers have presented in relation thereto. The Offeror acknowledges that except for representations and warranties contained in Section 4.2 the Company makes no other representations or warranties, and the Offeror has not relied upon or otherwise been induced by any other express or implied representation or warranty with respect to the Company or with respect to the Due Diligence Information or any other information made available to the Offeror. 4.2.1 Organization and qualification, subsidiaries The Company represents and warrants each of its subsidiaries has been validly incorporated and exists in accordance with the laws of the jurisdiction of its incorporation and has the requisite power and authority and all governmental approvals, licenses and permits necessary to own, use and operate its property and to carry on its business as follows: (a) presently conducted in each jurisdiction where it owns assets or operates its business, except for any failure to be so incorporated and existing and those powers, authorities, approvals, licenses and permits the absence of which would not reasonably be expected to have, individually or in the aggregate, a material effect on the Company and its subsidiaries, taken as a whole. The Company and each of its subsidiaries is a corporation duly incorporated and qualified to do business and, where applicable, is in good standing under the laws of each jurisdiction in which either the State ownership or use of New Yorkthe assets and properties owned by it, is duly or the nature of the activities conducted by it, requires such qualification, except where failure to be so qualified and authorized or in good standing would not reasonably be expected to transact business as a public utility have, individually or in the State of New York and is not in violation of any provision of its Certificate of Incorporation or its By-Lawsaggregate, has power a Material Adverse Effect. 4.2.2 Authority relative to enter into, execute and deliver this Participation Agreement, the Tax Regulatory no conflicts This Agreement and the Note and by proper corporate action has duly authorized the execution and delivery of this Participation Agreement, the Tax Regulatory Agreement and the Note; (b) The execution and delivery by the Company of this Participation Agreement, the Tax Regulatory Agreement and the Note and the consummation of the transactions herein and therein contemplated will not conflict with or constitute a breach of or a default under the Company’s Certificate of Incorporation or By-Laws or a default in any material respect under any indenture, mortgage, loan agreement or other contract or instrument to which the Company is a party or by which it is bound, or any judgment, decree, order, statute, rule or regulation applicable to the Company; (c) This Participation Agreement, the Tax Regulatory Agreement and the Note have been duly authorised and validly executed and delivered by the Company and constitute constitutes a legal, valid and legally binding obligations obligation of the Company, Company enforceable against the Company it in accordance with their respective its terms, except as enforcement may be limited by applicable subject, in each case, to the effect of bankruptcy, moratorium, reorganization, administration, insolvency, moratoriumrecovery, reorganization or attachment and other mandatory laws relating to or affecting the enforcement of creditors’ rights or contractual generally. The Company has all necessary corporate power and authority, and has taken all necessary corporate action, to duly authorise and execute this Agreement, to perform its obligations generally or principles of equity or judicial discretion; (d) hereunder and to consummate the transactions contemplated herein to be consummated by it. The execution execution, delivery and delivery performance by the Company of this Participation Agreement and any related documents to which the Note in Company is or will be a party, and the manner and for the purposes herein set forth have been duly authorized by order consummation of the Public Service Commission transactions contemplated hereby and thereby, do not and will not: (i) conflict with or violate the organizational documents of the State of New York; and (e) No additional authorizations for or approvals of the execution and delivery by the Company of this Participation Agreement, the Tax Regulatory Agreement and the Note need be obtained by the Company or if any such authorization of its subsidiaries; (ii) assuming compliance with the matters referred to in Section ‎5.1, conflict with or violate any Applicable Law; (iii) assuming compliance with the matters referred to in Section ‎5.1, except as set forth on Section 4.2.2 of the Company Disclosure Schedule, result in any breach of, or constitute a default (or an event that, with notice or lapse of time or both, would become a default or breach) under, require any consent of or notice to any Person pursuant to, or give to others any right of termination, amendment, acceleration or cancellation of, or the right to exercise any option or other contingent or similar right, or result in the creation of an encumbrance on any property or asset of the Company or any of its subsidiaries pursuant to, or otherwise adversely affect the rights of the Company or any of its subsidiaries under, or result in the loss of any benefit under, any contract or permit, license or approval is necessary it has been obtainedof the Company or any of its subsidiaries, with only such exceptions, in the case of each of clauses (ii) through (iii), as would not reasonably be expected to have, individually or in the aggregate, a material effect on the Company and its subsidiaries, taken as a whole.

Representations and Warranties by the Company. The Company represents and warrants to the Holder as of the Commencement Date as follows: (a) The Company (i) is a corporation duly incorporated organized, validly existing and in good standing under in its jurisdiction of incorporation and (ii) has the laws of the State of New York, is duly qualified corporate power and authorized authority to transact own and operate its properties and to carry on its business as a public utility in the State of New York now conducted and is not in violation of any provision of its Certificate of Incorporation or its By-Laws, has power as proposed to enter into, execute and deliver this Participation Agreement, the Tax Regulatory Agreement and the Note and by proper corporate action has duly authorized the execution and delivery of this Participation Agreement, the Tax Regulatory Agreement and the Note;be conducted. (b) The execution All corporate action on the part of the Company, its officers, directors and shareholders necessary for the authorization, execution, delivery and performance of its obligations under this Warrant and for the authorization, issuance and delivery by of the Shares issuable upon exercise of the Warrant has been taken and this Warrant constitutes the legally binding and valid obligation of the Company enforceable in accordance with its terms, except as may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, and other laws of general application affecting enforcement of creditors’ rights generally. (c) The Warrant has been validly issued and is free of restrictions on transfer other than restrictions on transfer set forth herein and under applicable state and federal securities laws. The Shares issuable upon conversion of this Participation AgreementWarrant, when issued, sold and delivered in accordance with the terms of this Warrant for the consideration expressed herein, will be duly and validly issued, fully paid and nonassessable, and will be free of restrictions on transfer other than restrictions on transfer under this Warrant and under applicable state and federal securities laws. Subject to applicable restrictions on transfer, the Tax Regulatory Agreement issuance and delivery of the Warrant and the Note and the consummation Shares issuable upon conversion of the transactions herein Warrant are not subject to any preemptive or other similar rights or any liens or encumbrances except (i) as specifically set forth in the Company’s Articles of Incorporation, or this Warrant or (ii) for any such rights that have been previously waived or have expired in accordance with their terms without exercise. The offer, sale and therein issuance of the Warrant and Shares, as contemplated by this Warrant, are exempt from the registration requirements of applicable federal and state securities laws in the United States, and neither the Company nor any authorized agent acting on its behalf has or will take any action hereafter that would cause the loss of such exemption. (d) The execution, delivery, and performance of this Warrant will not result in any violation of, be in conflict with with, or constitute a breach default under, with or without the passage of time or a default under the giving of notice (a) any provision of the Company’s Certificate Articles of Incorporation or Byby-Laws laws (each as in effect on the date hereof); (b) any provision of any judgment, decree, or a default in any material respect under any indenture, mortgage, loan agreement or other contract or instrument order to which the Company is a party or by which it is bound; (c) any contract, obligation, or commitment to which the Company is a party or by which it is bound; or (d) any judgment, decree, order, statute, rule rule, or governmental regulation applicable to the Company;. (ce) This Participation AgreementAs of the Commencement Date, the Tax Regulatory Agreement authorized capital stock of the Company consists of 35,000,000 shares of Common Stock, of which 2,859,749 were issued and the Note outstanding. The outstanding shares have been duly executed authorized and delivered by validly issued (including, without limitation, issued in compliance with applicable federal and state securities laws), are fully paid and nonassessable and have been issued in compliance with the registration and prospectus delivery requirements of the Act and the registration and qualification requirements of all applicable state securities laws, or in compliance with applicable exemptions therefrom. The Company shall reserve adequate shares of Common Stock for issuance upon exercise of this Warrant. Except as set forth in its filings with the Securities and constitute valid Exchange Commission (the “Commission”) and legally binding obligations except for the two convertible promissory notes issued to Perseus Partners VII, L.P. (“Perseus”) as of March 1, 2011 in the respective principal amounts of $146,321 and $874,993, and the one convertible promissory note issued to Perseus as of September 1, 2010 in the principal amount of $150,716, and except for the planned issuance in March 2011 of 210,000 shares of Common Stock to the Company’s SEC-reporting executive officers and 44,000 shares of Common Stock to members of the Scientific Advisory Board and to other Company managers and employees, there are no outstanding warrants, options, conversion privileges, preemptive rights or other rights or agreements to purchase or otherwise acquire or issue any equity securities or convertible Securities of the Company, enforceable against nor has the issuance of any of the aforesaid rights to acquire securities of the Company been authorized. (f) No consent, approval, order or authorization of, or registration, qualification, designation, declaration or filing with, any federal, state or local governmental authority on the part of the Company is required in accordance connection with their respective termsthe offer, sale or issuance of the Warrant (and the Shares issuable upon the exercise of this Warrant), or the consummation of any other transaction contemplated hereby, except as enforcement may be limited by applicable bankruptcy, insolvency, moratorium, reorganization or other laws relating to or affecting the enforcement of creditors’ rights or contractual obligations generally or principles of equity or judicial discretion; (d) The execution and delivery by the Company of this Participation Agreement and the Note in the manner and for the purposes herein set forth have been duly authorized by order following: (a) the filing of a notice on Form D under the Public Service Commission of Act and (b) the State of New York; and (e) No additional authorizations for or approvals of the execution and delivery by the Company of this Participation Agreement, the Tax Regulatory Agreement and the Note need be obtained by the Company or if any such authorization or approval is necessary it has been obtainedcompliance with applicable state securities laws.

Representations and Warranties by the Company. The Company represents and warrants as followsthat: (a) The Class A Common Stock is currently quoted on Nasdaq. The Company has not, in the 12 months preceding the date hereof, received notice from Nasdaq to the effect that the Company is a corporation not in compliance with the listing or maintenance requirements of Nasdaq. To the Company’s knowledge, it is in compliance with all such listing and maintenance requirements. (b) The Company has been duly incorporated and is validly existing as a corporation, in good standing under the laws of the State of New YorkDelaware, is with full power and authority (corporate and other) to own, lease and operate its properties and conduct its business as described in the Commission Documents (defined below), and to enter into and perform its obligations under this Agreement, and has been duly qualified and authorized to transact business as a public utility in foreign corporation for the State transaction of New York business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification, except where the failure so to qualify or be in good standing would not in violation have a material adverse effect on the general affairs, business, prospects, management, financial position, shareholders’ equity or results of any provision operations of its Certificate of Incorporation or its By-Laws, has power to enter into, execute and deliver this Participation Agreement, the Tax Regulatory Agreement Company and the Note and by proper corporate action has duly authorized the execution and delivery of this Participation AgreementSubsidiaries (as defined below), the Tax Regulatory Agreement and the Note; considered as one enterprise (b) The execution and delivery by the Company of this Participation Agreement, the Tax Regulatory Agreement and the Note and the consummation of the transactions herein and therein contemplated will not conflict with or constitute a breach of or a default under the Company’s Certificate of Incorporation or By-Laws or a default in any material respect under any indenture, mortgage, loan agreement or other contract or instrument to which the Company is a party or by which it is bound, or any judgment, decree, order, statute, rule or regulation applicable to the Company;“Material Adverse Effect”). (c) This Participation AgreementEach subsidiary of the Company (collectively, the Tax Regulatory Agreement “Subsidiaries” and each a “Subsidiary”) has been duly incorporated, formed or organized, as applicable, and is validly existing as a corporation, limited liability company, general or limited partnership or other organization, as applicable, in good standing under the Note laws of the jurisdiction of its incorporation, formation or organization, as applicable, with full power and authority to own, lease and operate its properties and conduct its business as described in the Commission Documents, and has been duly qualified as a foreign corporation, limited liability company, general or limited partnership or other organization, for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification, except where the failure so to qualify or be in good standing would not have a Material Adverse Effect; all of the issued and outstanding capital stock, member interests, general or limited partner interest or other ownership interests of each Subsidiary have been duly and validly authorized and issued, are fully paid and non-assessable (except, in the case of a limited liability company or limited partnership, as such non-assessability may be affected by applicable law) and are owned by the Company, directly or through Subsidiaries, free and clear of any lien. (d) The Company has all necessary power and authority to execute, deliver, and perform its obligations under this Subscription. This Subscription has been duly authorized, executed and delivered by the Company and constitute constitutes legally valid and legally binding obligations of the Company, enforceable against the Company in accordance with their its respective terms, except as enforcement such enforceability may be limited by applicable bankruptcy, insolvency, moratoriumreorganization, reorganization moratorium or other similar laws relating to or affecting the enforcement rights of creditors’ rights or contractual obligations creditors generally or principles of equity or judicial discretion; (d) The execution and delivery by the Company of this Participation Agreement and the Note in the manner and for the purposes herein set forth have been duly authorized by order of the Public Service Commission of the State of New York; andgeneral equitable principles. (e) No additional authorizations for or approvals of Neither the execution and delivery by the Company of this Participation AgreementSubscription, nor the performance by the Company of its obligations under this Subscription requires the consent, approval, order or authorization of, or registration with, or the giving notice to, any Governmental Authority or Person, except such as have been obtained, made or given or are otherwise set forth in this Subscription. (f) The statements in the Commission Documents under the heading “Description of Capital Stock” are true and correct in all material respects. (g) Neither the Company, nor to the Company’s knowledge, any of its affiliates, has taken or may take, directly or indirectly, any action designed to cause or result in, or which has constituted or which might reasonably be expected to constitute, the Tax Regulatory Agreement stabilization or manipulation of the price of the shares of any securities of the Company to facilitate the sale or resale of the Purchased Shares. (h) The execution of this Subscription by the Company and the Note need be obtained performance by the Company of the provisions of this Subscription and the consummation of the transactions herein contemplated will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Company or any of the Subsidiaries is a party or by which the Company or any of the Subsidiaries is bound or to which any of the property or assets of the Company or any of the Subsidiaries is subject, nor will such action result in any violation of the provisions of the certificate or articles of incorporation or by-laws (or other organization documents) of the Company or any of the Subsidiaries or any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over the Company or any of the Subsidiaries or any of their properties; and no consent, approval, authorization, order, registration or qualification of or with any such court or governmental agency or body is required for the performance by the Company of its obligations hereunder or the consummation by the Company of the transactions contemplated by this Subscription. (i) Xxxxxx, LLP, who has certified certain financial statements of the Company and the Subsidiaries, is an independent public accounting firm as required by the Securities Act. The financial statements, together with related schedules and notes thereto, included in the Commission Documents, comply in all material respects with the requirements of the Securities Act and present fairly the consolidated financial position, results of operations and changes in financial position of the Company and the Subsidiaries on the basis stated therein at and as of the respective dates or for the respective periods to which they apply; and such statements and related schedules and notes have been prepared in accordance with generally accepted accounting principles consistently applied throughout the periods involved, except as disclosed therein. All other financial information included in the Commission Documents has been derived from the accounting records of the Company and presents fairly in all material respects the information shown thereby. The Company does not have any material liabilities or obligations, direct or contingent (including any off-balance sheet obligations), that are not described in the Commission Documents. All disclosures contained in the Commission Documents regarding “non-GAAP financial measures” (as such term is defined by the Rules and Regulations) comply with Regulation G promulgated under the Exchange Act and Item 10 of Regulation S-K promulgated under the Securities Act, to the extent applicable. (j) Neither the Company nor any Subsidiary has sustained since the date of the latest audited financial statements included in the Commission Documents any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree; and (1) there has not been any change in the capital stock or long-term indebtedness of the Company or any of the Subsidiaries, (2) there has not been any material adverse change in or affecting the general affairs, business, prospects, management, financial position, shareholders’ equity or results of operations of the Company and the Subsidiaries, considered as one enterprise, (3) there have been no transactions entered into by, and no obligations or liabilities, contingent or otherwise, incurred by the Company or if any of the Subsidiaries, whether or not in the ordinary course of business, that are material to the Company and the Subsidiaries, considered as one enterprise or (4) there has been no dividend or distribution of any kind declared, paid or made by the Company on any class of its capital stock, in each case, otherwise than as set forth in the Commission Documents. (k) Neither the Company nor any of the Subsidiaries is (i) in violation of its certificate or articles of incorporation or bylaws (or other organization documents) or (ii) in violation of any law, ordinance, administrative or governmental rule or regulation applicable to the Company or any of the Subsidiaries, or (iii) in violation of any decree of any court or governmental agency or body having jurisdiction over the Company or any of the Subsidiaries, or (iv) in default in the performance of any obligation, agreement or condition contained in any bond, debenture, note or any other evidence of indebtedness or in any agreement, indenture, lease or other instrument to which the Company or any of the Subsidiaries is a party or by which any of them or any of their respective properties may be bound, except, in the case of clauses (ii), (iii) and (iv), where any such authorization violation or approval default, individually or in the aggregate, would not have a Material Adverse Effect. (l) Each of the Company and each Subsidiary has good and marketable title to all real and personal property owned by it, in each case free and clear of all liens, encumbrances and defects except such as are described in the Commission Documents or such as do not materially affect the value of such property and do not interfere with the use made and proposed to be made of such property by the Company or any Subsidiary; and any real property and buildings held under lease by the Company or any Subsidiary are held under valid, subsisting and enforceable leases with such exceptions as are not material and do not interfere with the use made and proposed to be made of such property and buildings by the Company or any Subsidiary. (m) Other than as set forth in the Commission Documents, there is no action, suit, proceeding, inquiry or investigation before or brought by any arbitrator, court, governmental body, regulatory body, administrative agency or other authority, body or agency having jurisdiction over the Company or any of the Subsidiaries or any of their respective properties, assets or operations or self-regulatory organization or other non-governmental regulatory authority (including, without limitation, Nasdaq) now pending or, to the knowledge of the Company, threatened, against the Company or any of the Subsidiaries, which could reasonably be expected to result in a Material Adverse Effect, or which could reasonably be expected to materially and adversely affect the consummation of the transactions contemplated by this Subscription or which are required to be described in the Commission Documents. (n) Each of the Company and each of the Subsidiaries possesses all permits, licenses, approvals, consents and other authorizations (collectively, “Permits”) issued by the appropriate federal, state, local or foreign regulatory agencies or bodies necessary it to conduct the businesses now operated by each of them; each of the Company and each of the Subsidiaries is in compliance with the terms and conditions of all such Permits; all of the Permits are valid and in full force and effect, except, in each case, where the failure so to comply or where the invalidity of such Permits or the failure of such Permits to be in full force and effect, individually or in the aggregate, would not have a Material Adverse Effect; and none of the Company nor any Subsidiary has received any notice of proceedings relating to the revocation or material modification of any such Permits. (o) Each of the Company and each of the Subsidiaries own or possess, or can acquire on reasonable terms, adequate patents, patent rights, licenses, inventions, copyrights, know-how (including trade secrets and other unpatented and/or unpatentable proprietary or confidential information, systems or procedures), trademarks, service marks, trade names or other intellectual property (collectively, “Intellectual Property”) necessary to carry on the business now operated by them, except to the extent that the failure to own, possess or have other rights in such Intellectual Property would not, singly or in the aggregate, reasonably be expected to have a Material Adverse Effect, and none of the Company or any of the Subsidiaries has received any notice or is otherwise aware of any infringement of or conflict with asserted rights of others with respect to any Intellectual Property or of any facts or circumstances which would render any Intellectual Property invalid or inadequate to protect the interest of the Company or any of the Subsidiaries therein, and which infringement or conflict (if the subject of any unfavorable decision, ruling or finding) or invalidity or inadequacy, singly or in the aggregate, would result in a Material Adverse Effect. (p) No labor dispute with the employees of any of the Company or any of the Subsidiaries exists or, to the knowledge of the Company, is imminent, and none of the Company or any of the Subsidiaries is aware of any existing or imminent labor disturbance by the employees of any of their respective principal suppliers, manufacturers, customers or contractors, which, in any case, would result in a Material Adverse Effect. (q) The Company and the Subsidiaries are insured by insurers of recognized financial responsibility against such losses and risks and in such amounts as are prudent and customary in the respective businesses in which they are engaged; none of the Company nor any Subsidiary has been obtainedrefused any insurance coverage sought or applied for; and the Company has no reason to believe that either it or any Subsidiary will not be able to renew its or their respective existing insurance coverage as and when such coverage expires or to obtain similar coverage from similar insurers as may be necessary to continue its business at a cost that would not have a Material Adverse Effect.

Representations and Warranties by the Company. The Company represents and warrants as follows: (a) The Company is a corporation duly incorporated execution, delivery and in good standing under the laws of the State of New York, is duly qualified and authorized to transact business as a public utility in the State of New York and is not in violation of any provision of its Certificate of Incorporation or its By-Laws, has power to enter into, execute and deliver this Participation Agreement, the Tax Regulatory Agreement and the Note and by proper corporate action has duly authorized the execution and delivery of this Participation Agreement, the Tax Regulatory Agreement and the Note; (b) The execution and delivery performance by the Company of this Participation Agreement, the Tax Regulatory Agreement and the Note and the consummation of the transactions contemplated herein do not and therein contemplated will not conflict with not: (i) result in the breach of any of the terms or conditions of, or constitute a breach default under, or in any manner release any party thereto from any obligation under, or otherwise affect any rights of Company under, any mortgage, note, bond, indenture, contract, agreement, license or a default under other instrument or obligation of any kind or nature, in any case whether written or oral, by which Company may be bound or affected; (ii) violate or conflict with any Laws; or (iii) violate any provision of the Company’s Certificate organizational documents. (b) The Company has all requisite power and authority to execute, deliver and perform its obligations under this Agreement. The execution and delivery of Incorporation or By-Laws or a default in any material respect under any indenturethis Agreement, mortgagethe performance by the Company hereto of its respective obligations hereunder and the consummation by the Company of the transactions contemplated hereby have been duly authorized, loan agreement or and no other contract or instrument to which proceeding on the part of the Company is a party or by which it is boundnecessary. Assuming the due authorization, or any judgment, decree, order, statute, rule or regulation applicable to the Company; (c) This Participation Agreement, the Tax Regulatory Agreement execution and the Note have been duly executed and delivered delivery hereof by the Company and constitute Contributors, this Agreement constitutes the valid and legally binding obligations obligation of the Company, enforceable against the Company it in accordance with their respective its terms, except as enforcement may be limited by applicable bankruptcy, insolvency, moratoriumreorganization, reorganization moratorium and other similar laws affecting the rights of creditors generally, and the availability of equitable remedies. (c) The Company Shares represents the only issued and outstanding equity interests of the Company, and there are no outstanding securities convertible or exchangeable into equity interests of the Company, including any options, warrants or rights of conversion or other laws relating to or affecting the enforcement of creditors’ similar rights or contractual obligations generally agreements obligating the Company or principles any other Person to sell, issue or transfer any of its equity or judicial discretion;interests. (d) The execution and delivery by the Company of this Participation Agreement and the Note in the manner and for the purposes herein set forth have been duly authorized by No consent, approval, order of the Public Service Commission of the State of New York; and (e) No additional authorizations for or approvals of the execution and delivery by the Company of this Participation Agreementauthorization of, the Tax Regulatory Agreement and the Note need or registration, declaration or filing with, any Governmental Authority or other Person is required to be made or obtained by the Company or if in connection with the authorization, execution and delivery of this Agreement, the performance by the Company of its obligations hereunder, and the consummation by the Company of the transactions contemplated hereby. (e) The Company is, and at all times since the formation of the Company has been, in compliance with all Laws. The Company has not received notice prior to the date hereof of any such authorization violation of any Law in connection with the conduct, ownership, use, occupancy or approval is necessary it operation of the Company or the Company’s business or assets. The Company has been obtainedgood and marketable title, or holds valid and enforceable leases or licenses, to all assets, property, rights and privileges used by the Company in the conduct of its business, free and clear of all Liens.

Representations and Warranties by the Company. The Company hereby represents and warrants as followsto the Stockholder that: (a) i. The Company is a corporation duly incorporated and in good standing under the laws of the State of New York, is duly qualified and authorized to transact business as a public utility in the State of New York and is not in violation of any provision of its Certificate of Incorporation or its By-Laws, has power to enter into, execute and deliver this Participation Agreement, the Tax Regulatory Agreement and the Note and by proper corporate action has duly authorized the execution and delivery of this Participation Agreement, the Tax Regulatory Agreement and the Note; (b) The execution and delivery by the Company of this Participation Agreement, the Tax Regulatory Agreement and the Note and the consummation of the transactions herein contemplated hereby have been duly and therein contemplated will not conflict with or constitute a breach validly authorized by all necessary corporate action on the part of or a default under the Company’s Certificate of Incorporation or By-Laws or a default in any material respect under any indenture, mortgage, loan agreement or other contract or instrument . The Company has all requisite corporate power and authority to which the Company is a party or by which it is bound, or any judgment, decree, order, statute, rule or regulation applicable to the Company; (c) This Participation Agreement, the Tax Regulatory enter into this Agreement and to consummate the Note have been transactions contemplated hereby and has duly executed and delivered by this Agreement. This Agreement constitutes the Company and constitute valid and legally binding obligations obligation of the Company, enforceable against the Company in accordance with their its respective terms, except as enforcement may be limited by applicable subject to bankruptcy, insolvency, moratoriumfraudulent transfer, reorganization or reorganization, moratorium and other laws of general applicability relating to or affecting creditors' rights and to general equitable principles. ii. Neither the enforcement of creditors’ rights or contractual obligations generally or principles of equity or judicial discretion; (d) The execution and delivery of this Agreement, nor the consummation of the transactions contemplated hereby nor compliance by the Company with any of the provisions hereof will (A) conflict with or result in a breach of the charter, by-laws or other constitutive documents of the Company, (B) conflict with or result in a default (or give rise to any right of termination, cancellation or acceleration) under any of the provisions of any note, bond, lease, mortgage, indenture, license, franchise, permit, agreement or other instrument or obligation to which the Company is a party, or by which the Company or the Company's properties or assets may be bound or affected, except for such conflict, breach or default as to which requisite waivers or consents shall be obtained before the Closing, (C) violate any law, statute, rule or regulation or order, writ, injunction or decree applicable to the Company or the Company's properties or assets, or (D) result in the creation or imposition of any security interest, lien or other encumbrance upon any of the Company's properties or assets. No consent or approval by, or any notification of or filing with, any person, firm, corporation, partnership, joint venture, association or entity (governmental or private) (each, a "person" and collectively, "persons") is required in connection with the execution, delivery and performance by the Company of this Participation Agreement and or the Note consummation of the transactions contemplated hereby, except as set forth in the manner and for the purposes herein set forth have been duly authorized by order of the Public Service Commission of the State of New York; and (e) No additional authorizations for or approvals of the execution and delivery by the Company of this Participation Stock Purchase Agreement, the Tax Regulatory Agreement and the Note need be obtained by the Company or if any such authorization or approval is necessary it has been obtained.

Representations and Warranties by the Company. The Company represents and warrants as follows: (a) The Company is a corporation duly incorporated and in good standing under the laws of the State of New York, is duly qualified and authorized to transact engage in business as a public utility in the State of New York and is not in violation of any provision of its Certificate of Incorporation or its By-LawsYork, has power to enter into, execute and deliver this Participation Agreement, the Tax Regulatory Agreement and the Company Note and by proper corporate action and has duly authorized the execution and delivery by it of this Participation Agreement, the Tax Regulatory Agreement and the Company Note; (b) The execution and delivery by the Company of this Participation Agreement, the Tax Regulatory Agreement and the Company Note and the consummation of the transactions herein and therein contemplated will do not conflict with or constitute a breach of or a default under the Company’s 's Certificate of Incorporation or Incorporation, By-Laws or a default in any material respect under any indenture, mortgage, loan agreement or other contract or instrument to which the Company is a party or by which it is boundbound or, or to the best of the Company's knowledge, any judgment, decree, order, statute, rule or regulation applicable to the Company; (c) This Participation Agreement, the Tax Regulatory Agreement and the Company Note have been duly executed and delivered by the Company and constitute valid and legally binding obligations of the Company, enforceable against the Company in accordance with their respective terms, except as the right of indemnity hereunder may be limited by principles of public policy and except as enforcement may be limited by applicable bankruptcy, insolvency, moratorium, reorganization or other laws laws, judicial decisions or principles of equity relating to or affecting the enforcement of creditors’ ' rights or contractual obligations generally or principles (regardless of whether enforceability is considered in a proceeding in equity or judicial discretionat law); (d) The execution issuance and delivery by the Company of this Participation Agreement and the Company Note in the manner and for the purposes herein set forth have been duly authorized by an order of the Public Service Commission of the State of New York; and; (e) No additional authorizations for or approvals of the execution and delivery by the Company of this Participation Agreement, the Tax Regulatory Agreement and the Company Note need be obtained by the Company or if any such authorization or approval is necessary it has been obtained; and (f) The representations of the Company set forth in the Tax Regulatory Agreement are hereby incorporated by reference as though fully set forth herein.

Representations and Warranties by the Company. The Company represents and warrants to the Holder that as followsof the Commencement Date: (a) The Company (a) is duly organized and validly existing under the Laws of its jurisdiction of organization, (b) has all requisite corporate or other power, and has all material governmental licenses, authorizations, consents and approvals necessary to own its assets and carry on its business as now being or as proposed to be conducted except to the extent that failure to have the same would not reasonably be expected to have a corporation duly incorporated Material Adverse Effect, (c) is qualified to do business and is in good standing under in all jurisdictions in which the laws nature of the State of New York, is duly qualified business conducted by it makes such qualification necessary and authorized where failure so to transact business as a public utility qualify would (either individually or in the State of New York aggregate) reasonably be expected to have a Material Adverse Effect, (d) has full power, authority and legal right to make, issue, sell and perform this Warrant and the Warrant Shares, (e) is in compliance with all applicable Laws to which it is subject and all agreements to which it is a party, except where the failure to do so could not reasonably be expected to result in violation a Material Adverse Effect, and (f) has good title to all its assets, free and clear of any provision of its Certificate of Incorporation Liens or its By-Laws, has power to enter into, execute and deliver adverse claims except as expressly permitted by this Participation Warrant or the Credit Agreement, the Tax Regulatory Agreement and the Note and by proper corporate action has duly authorized the execution and delivery of this Participation Agreement, the Tax Regulatory Agreement and the Note;. (b) The execution making, entry into, issuance and delivery by the Company sale of this Participation Agreement, the Tax Regulatory Agreement Warrant and the Note and the consummation performance of the transactions herein and therein contemplated will not conflict with or constitute a breach of or a default under the Company’s Certificate of Incorporation or By-Laws or a default in any material respect under any indenture, mortgage, loan agreement or other contract or instrument to which the Company is a party or by which it is bound, or any judgment, decree, order, statute, rule or regulation applicable to obligations hereunder are within the Company; (c) ’s corporate powers and have been duly authorized by all necessary corporate and, if required, by all necessary shareholder action. This Participation Agreement, the Tax Regulatory Agreement and the Note have Warrant has been duly executed and delivered by the Company and constitute constitutes a legal, valid and legally binding obligations obligation of the Company, enforceable against the Company in accordance with their respective its terms, except as enforcement such enforceability may be limited by applicable (i) bankruptcy, insolvency, moratoriumreorganization, reorganization moratorium or other laws relating to or similar Laws of general applicability affecting the enforcement of creditors’ rights or contractual obligations generally or and (ii) the application of general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or judicial discretion;at law). (c) The making, entry into, issuance and sale of this Warrant and the performance of the Company’s obligations hereunder (a) do not require any consent or approval of, registration or filing with, or any other action by, any Governmental Authority or any third party, except for such as have been obtained or made and are in full force and effect, (b) will not violate any applicable Law or the charter, bylaws or other organizational documents of the Company or any of its Subsidiaries or any order of any Governmental Authority, other than any such violations that would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, (c) will not violate or result in a default under any indenture, agreement or other instrument binding upon the Company, any of its Subsidiaries or the Company’s or its Subsidiaries’ assets, or give rise to a right thereunder to require any payment to be made by any such Person, other than any of the foregoing that would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, and (d) will not result in the creation or imposition of any Lien on any asset of any of the Company or any of its Subsidiaries. (d) The execution Assuming the accuracy of the representations made by the Holder herein, the offer and delivery sale by the Company of this Participation Agreement and Warrant are not required to be registered pursuant to the Note in the manner and for the purposes herein set forth have been duly authorized by order provisions of Section 5 of the Public Service Commission of the State of New York; andSecurities Act. (e) No additional authorizations The authorized capital stock of the Company consists of 175,000,000 shares, of which 100,000,000 shares are designated as common stock and 75,000,000 shares are designated as preferred stock. As of the date hereof, (i) 58,270,934 shares of common stock of the Company are issued and outstanding, (ii) zero shares of preferred stock of the Company are issued and outstanding, (iii) zero shares of common stock of the Company are held in treasury (iv) zero shares of preferred stock of the Company are held in treasury (v) 8,870,633 shares have been reserved for issuance upon exercise of outstanding warrants (excluding any shares issuable upon exercise of this Warrant) and (vi) 4,444,121 shares have been reserved for issuance upon exercise of outstanding stock options. All of the outstanding shares of capital stock of the Company have been duly and validly authorized and issued and are fully paid and nonassessable. (f) There is no indebtedness of the Company having the right to vote on any matters on which holders of shares of capital stock or other equity interests of the Company may vote. There are no outstanding or authorized stock appreciation, phantom stock, profit participation or similar rights with respect to the Company, nor are there any Contracts with respect to the voting, sale or transfer of any shares of capital stock or other equity interests of the Company. Except for this Warrant and the securities reserved for issuance as described in subsection (e) above, there are no options, warrants or other rights to subscribe for or approvals purchase any capital stock or other equity interests of the execution Company, or securities convertible into or exchangeable for, or that otherwise confer on the holder any right to acquire, any capital stock or other equity interests of the Company. There are no preemptive rights or rights of first refusal or first offer, nor are there any Contracts by which the Company is bound, relating to any capital stock or other equity interests of the Company. Except as set forth in the reports, schedules, forms, statements and delivery other documents required to be filed by the Company of this Participation Agreementunder the Exchange Act (including the exhibits thereto and documents incorporated by reference therein), the Tax Regulatory Agreement Company does not currently maintain, nor does the Company have any ongoing liability for, any stock option plan or any other plan or agreement providing for equity compensation of any Person. (g) All taxes imposed on the Company in connection with the issuance, sale and delivery of the Note need Warrant Securities have been or will be obtained timely and fully paid, and all Laws imposing such taxes have been or will be fully satisfied by the Company. (h) Neither the Company nor anyone acting on its behalf has offered or will offer to sell the Warrant Securities or any similar securities to, or solicit offers with respect thereto from, or enter into any preliminary conversations or negotiations relating thereto with, any Person, so as to require the issuance and sale of the Warrant Securities to be registered under the Securities Act. Neither the Company nor anyone acting on its behalf has engaged, directly or indirectly, in any form of general solicitation or general advertising with respect to the offering of the Warrant Securities (as those terms are used in Regulation D) or otherwise in any manner involving a public offering within the meaning of Section 4(a)(2) of the Securities Act. Assuming the accuracy of the representations made by the Holder herein, the offer and sale of the Warrant Securities are exempt from registration under the Securities Act. (i) Each of the representations and warranties made by the Company or in Sections 5.4 through 5.7, 5.9 through 5.12, 5.14 and 5.15 of the Credit Agreement are hereby incorporated herein by reference as if any such authorization or approval is necessary it has been obtainedmade herein.

Representations and Warranties by the Company. The Company represents and warrants to the Subscriber as follows: (a) 3.1 The Company is a corporation duly incorporated organized, existing and in good standing under the laws of the State of New YorkDelaware and has the corporate power to conduct its business. 3.2 The execution, is delivery and performance of this Agreement by the Company has been duly qualified authorized by the Board of Directors of the Company. 3.3 The Warrants have been duly and validly authorized and, when issued in accordance with the terms hereof, will be duly and validly issued and will represent the binding obligation of the Company. The Shares and the Warrant Shares have been duly and validly authorized and, when issued in accordance with the terms hereof and the respective Warrants, respectively, will be duly and validly issued, fully paid and nonassessable. 3.4 The Company has taken all corporate action required to transact business as a public utility in authorize the State execution and delivery of New York this Agreement and the issuance of the Shares, the Warrants and the Warrant Shares. The Company is not in violation or default of any provision of the terms of its Certificate of Incorporation or its By-Laws. The execution, has power to enter intodelivery and performance of this Agreement by the Company, execute and deliver this Participation Agreement, the Tax Regulatory Agreement and the Note and by proper corporate action has duly authorized the execution sale, issuance and delivery of this Participation Agreementthe Shares, the Tax Regulatory Agreement Warrants and the Note; (b) The execution and delivery by Warrant Shares, will not, with or without the Company passage of this Participation Agreementtime or giving of notice, the Tax Regulatory Agreement and the Note and the consummation of the transactions herein and therein contemplated will not result in any such violation, or be in conflict with or constitute a breach of or a default under the Company’s its Certificate of Incorporation or By-Laws or a default in any material respect under any indenture, mortgage, loan agreement or other contract or instrument to which the Company is a party or by which it is bound, or any judgment, decree, order, statute, rule or regulation applicable to the Company; (c) Laws. This Participation Agreement, the Tax Regulatory Agreement and the Note have has been duly executed and delivered by the Company and constitute constitutes a valid and legally binding obligations obligation of the Company, Company enforceable against the Company in accordance with their respective terms, except as enforcement may be limited by applicable bankruptcy, insolvency, moratoriumreorganization, reorganization moratorium or other laws relating to or of general application affecting the enforcement of creditors’ rights or contractual obligations generally or rights, and as limited by general principles of equity that restrict the availability of equitable remedies. 3.5 The Company is not required to obtain any consent, waiver, authorization or judicial discretion; order of, give any notice to, or make any filing or registration with, (dother than blue sky filings, which shall be made promptly following the closing hereunder) The execution any court or other federal, state, local or other governmental authority or other person in connection with the execution, delivery and delivery performance by the Company of this Participation Agreement and the Note in the manner sale, issuance and for the purposes herein set forth have been duly authorized by order delivery of the Public Service Commission of the State of New York; and (e) No additional authorizations for or approvals of the execution and delivery by the Company of this Participation AgreementShares, the Tax Regulatory Agreement Warrants and the Note need be obtained by the Company or if any such authorization or approval is necessary it has been obtainedWarrant Shares.

Representations and Warranties by the Company. The Company represents and warrants as follows: that (ai) The the Company is a corporation duly incorporated organized, validly existing and in good standing under the laws of the State jurisdiction of New Yorkits organization and that such jurisdiction is Delaware, and is duly qualified and authorized in good standing to transact do business as a public utility in wherever necessary to carry on its present business and operations, including the State of New York and is not in violation of any provision of its Certificate of Incorporation or its By-Laws, jurisdiction where the Assets are located; (ii) the Company has the power to enter into, execute into this Agreement and deliver the other instruments and documents executed by the Company in connection herewith (together with this Participation Agreement, the Tax Regulatory Agreement "Transactional Documents") and to pay and perform its obligations under the other Transactional Documents; (iii) the Transactional Documents have been duly authorized, executed and delivered by the Company pursuant to resolutions duly adopted by the Board of Directors of the Company and constitute the valid, legal and binding obligations of the Company enforceable in accordance with their terms; (iv) no vote or consent of, or notice to, the holders of any class of stock of the Company is required, or if required, such vote or consent has been obtained or given, to authorize the execution, delivery and performance of the Transactional Documents by the Company and the Note and consummation by proper corporate action has duly authorized the execution and delivery Company of this Participation Agreementthe transactions contemplated thereby, (v) neither the Tax Regulatory Agreement and the Note; (b) The execution and delivery by the Company of this Participation Agreement, the Tax Regulatory Agreement and the Note and Transactional Documents nor the consummation by the Company of the transactions herein and therein contemplated will not conflict thereby, nor compliance by the Company with the provisions thereof, conflicts with or constitute results in a breach of or a default under any of the Company’s provisions of the Certificate of Incorporation or By-Laws laws of the Company, or a default in of any material respect under applicable law, judgment, order, writ, injunction, decree, award, rule or regulation of any court, administrative agency or other governmental authority, or of any indenture, mortgage, loan deed of trust, other agreement or other contract or instrument of any nature to which the Company is a party or by which it is boundconstituted, or constitutes a default under any judgmentthereof or will result in the creation of any lien, decreecharge, ordersecurity interest or other encumbrance upon any of the Assets, statuteother than the security interest therein of FINOVA or any assignee of FINOVA, rule or regulation applicable to upon any other right or property of the Company; ; (cvi) This Participation Agreementno consent, the Tax Regulatory Agreement and the Note approval, withholding of objection or other authorization of or by any court, administrative agency, other governmental authority or any other person is required, except such consents, approvals or other authorizations which have been duly executed obtained and delivered are in full force and effect and copies of which have been furnished FINOVA, in connection with the execution, delivery or performance by the Company and constitute valid and legally binding obligations of the Transactional Documents or the performance by the Company of the transactions contemplated by the Transactional Documents; (vii) there are no actions, suits or proceedings pending, or, to the knowledge of the Company, enforceable threatened, in any court or before any administrative agency or other governmental authority against or affecting the Company, which if adversely decided would or could, individually or in the aggregate, materially and adversely affect the business, operations, property or financial condition of the Company or the ability of the Company to perform any of its obligations under the Transactional Documents; (viii) no default or event or condition which upon the passage of time, the giving of notice, or both, would constitute a default under this Agreement exists or is continuing; (ix) the financial statements of the Company have been prepared in accordance with their respective terms, except as enforcement may be limited by applicable bankruptcy, insolvency, moratorium, reorganization or other laws relating to or affecting generally accepted accounting principles consistently applied and accurately and completely present the enforcement financial condition and the results of creditors’ rights or contractual obligations generally or principles operations of equity or judicial discretion; (d) The execution and delivery by the Company as of this Participation Agreement and the Note in the manner dates of and for the purposes herein set forth have periods covered by such statements; (x) there has been duly authorized by order no material adverse change in the financial condition of the Public Service Commission Company since the date of the State Company's most recent financial statement, a true copy of New York; and (e) No additional authorizations for or approvals of the execution and delivery which has been furnished to FINOVA by the Company of this Participation Agreement, the Tax Regulatory Agreement Company; and the Note need be obtained by (xi) the Company possesses any and all authorizations, certifications and licenses which are or if any such authorization or approval is necessary it has been obtainedmay be required to use and operate the Assets.

Representations and Warranties by the Company. The Company represents and warrants to the Dealer Manager (i) as followsof the date of the Original Agreement, (ii) subject to the proviso contained in clause (A) of the first paragraph of Annex A hereto regarding indemnification, on each date that any Documents are published, sent, given or otherwise distributed, and (iii) on the date of exchange of New Debentures and/or cash for the Old Debentures by the Company pursuant to the Offer and upon the consummation of the Offer that: (a) The Each of the Company and its subsidiaries (including when referred to herein any direct and indirect subsidiaries) has been duly formed and is validly existing (in the case of the Company, as a corporation duly incorporated corporation) and in good standing under the laws of the State of New York, is duly qualified and authorized to transact business as a public utility in the State of New York and is not in violation of any provision jurisdiction of its Certificate of Incorporation or its By-Laws, has power to enter into, execute and deliver this Participation Agreement, the Tax Regulatory Agreement and the Note and by proper corporate action has duly authorized the execution and delivery of this Participation Agreement, the Tax Regulatory Agreement and the Note;formation. (b) The execution Company (i) has all necessary corporate power and authority to execute and deliver this Agreement, and to perform all its obligations hereunder to issue the New Debentures and to pay the cash consideration in exchange for the Old Debentures to consummate the Offer in accordance with its terms, and (ii) shall use all reasonable efforts to take on a timely basis all actions necessary or required in relation to the Offer. (c) The Company has taken all necessary corporate action to authorize the making and consummation of the Offer and the execution, delivery and performance by the Company of this Participation Agreement, the Tax Regulatory ; and this Agreement and the Note and the consummation of the transactions herein and therein contemplated will not conflict with or constitute a breach of or a default under the Company’s Certificate of Incorporation or By-Laws or a default in any material respect under any indenture, mortgage, loan agreement or other contract or instrument to which the Company is a party or by which it is bound, or any judgment, decree, order, statute, rule or regulation applicable to the Company; (c) This Participation Agreement, the Tax Regulatory Agreement and the Note have has been duly executed and delivered by the Company and constitute assuming due authorization, execution and delivery by the Dealer Manager, constitutes a valid and legally binding agreement of the Company. (d) The New Debentures have been duly authorized by the Company for issuance and exchange pursuant to the Offer and, when duly executed, authenticated, issued and delivered in the manner provided for in the New Indenture (as defined below) against payment of the consideration therefor as contemplated by the Offer, will constitute valid, legal and binding obligations of the Company, enforceable against the Company in accordance with their respective terms, except subject, as to enforcement may be limited by applicable of remedies, to bankruptcy, insolvency, moratoriumreorganization, reorganization moratorium or other similar laws relating affecting creditors' rights generally, general equitable principles and the discretion of courts in granting equitable remedies. The New Debentures will be substantially in the form contemplated by, and entitled to or affecting the benefits of, the New Indenture. (e) The New Indenture shall have been duly authorized, executed and delivered by the Company and, upon such authorization, execution and delivery, will constitute a valid, legal and binding agreement of the Company, enforceable against the Company in accordance with its terms, subject, as to enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ ' rights or contractual obligations generally or generally, general equitable principles and the discretion of equity or judicial discretion;courts in granting equitable remedies. (df) The execution New Debentures will conform in all material respects to the descriptions thereof contained in the Prospectus and, when issued, will be in substantially the form required by the New Indenture, as filed as an exhibit to the Registration Statement. (g) The Offer meets the requirements for use of Form S-4 under the Securities Act of 1933, as amended (the "Securities Act"). Upon issuance of the New Debentures and upon consummation of the transactions contemplated by the Offer, the indenture pursuant to which the New Debentures are issued (the "New Indenture") shall have been duly qualified under the Trust Indenture Act of 1939, as amended (the "Trust Indenture Act"). (h) The Company will use all reasonable efforts to qualify the New Debentures for offering and sale under the applicable securities laws of such states and other jurisdictions (domestic and foreign) as contemplated by the Offer and shall maintain such qualifications in effect for so long as required for the distribution of the New Debentures; provided, however, that the Company shall not be obligated to file any general consent to service of process or to qualify as a foreign corporation or as a broker or dealer in securities in any jurisdiction in which it is not so qualified or to subject itself to taxation in respect of doing business in any jurisdiction in which it is not otherwise so subject. (i) The Offer and the Documents (including the documents incorporated or deemed to be incorporated by reference into the Documents) comply and (as amended or supplemented, if amended or supplemented) will comply in all material respects with all applicable requirements of the federal securities laws and the Trust Indenture Act and with all applicable foreign, local or state securities laws, and, in each case, the rules and regulations thereunder; and the Documents (including the documents incorporated or deemed to be incorporated by reference into the Documents) do not and (as amended or supplemented, if amended or supplemented) will not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. (j) The financial statements, together with related schedules, included in each of the Documents present fairly the consolidated financial position, results of operations, stockholder's equity and cash flows of the Company and its subsidiaries on the basis stated therein at the respective dates or for the respective periods to which they relate; and such statements and related schedules have been prepared in accordance with generally accepted accounting principles consistently applied throughout the periods involved, except as disclosed therein. (k) The Offer pursuant to the terms of the Documents, including the receipt of certain third party consents, and the execution, delivery and performance by the Company of this Participation Agreement and the Note transactions contemplated hereby and thereby (x) do not and will not conflict with, or result in a breach or violation of, or constitute a default under, any of the manner provisions of the New Indenture or of the charter or bylaws (or similar organizational documents) of the Company or any other note, indenture (including without limitation the indenture governing the Old Debentures), loan agreement, mortgage or other agreement, instrument or undertaking to which the Company or any of its subsidiaries or affiliates is a party or by which any of them is bound or to which any of their properties or assets is subject, and for the purposes herein set forth have been duly authorized by (y) will not result in any violation of any law, rule or regulation or any order of any court or of any other governmental agency or instrumentality having jurisdiction over the Public Service Commission Company or any of its subsidiaries or affiliates or any of its or their respective properties or assets. (l) No consent, approval, authorization or order of, or registration, qualification or filing with, any court or regulatory authority or other governmental agency or instrumentality is or will be required in connection with the making or consummation of the State of New York; and (e) No additional authorizations for Offer or approvals of the execution and execution, delivery or performance by the Company of this Participation Agreement, the Tax Regulatory Agreement and the Note need transactions contemplated hereby, except as such may be obtained described in the Exchange Offer or such as would not have a material adverse effect on the operations, assets, condition (financial or otherwise) or prospects of the Company or any of its subsidiaries or affiliates, or on the ability of the parties to consummate the Offer as contemplated thereby (a "Material Adverse Effect"). (m) the Company shall advise the Dealer Manager promptly of (i) the occurrence of any event of which the Company becomes aware which could cause the Company to withdraw, rescind or terminate the Offer or would permit the Company to exercise any right not to purchase or exchange Old Debentures tendered under the Offer, (ii) the occurrence of any event of which the Company becomes aware, or the discovery by the Company of any fact, the occurrence or existence of which it believes would make it necessary or advisable to make any change in the Documents being used or would cause any representation or warranty contained in this Agreement to be untrue or inaccurate in any material respect, (iii) any proposal or requirement to make, amend or supplement any Document or any filing in connection with the Offer pursuant to the Securities Act, the Exchange Act, the Trust Indenture Act or any applicable law, rule or regulation, (iv) its awareness of the issuance by any regulatory authority of any comment or order or the taking of any other action concerning the Offer (and, if in writing, will furnish the Dealer Manager with a copy thereof), (v) its awareness of any such authorization material developments in connection with the Offer or approval the financing thereof including, without limitation, the commencement of any lawsuit relating to the Offer and (vi) any other information known to the Company relating to the Offer, the Documents or this Agreement which the Dealer Manager may from time to time reasonably request. (n) There is necessary it has been obtainedno action, suit or proceeding before or by any court or governmental agency or body now pending or, to the knowledge of the Company, threatened against the Company or any of its subsidiaries which would adversely affect in any material respect the Offer pursuant to the terms of the Documents or the effectiveness of this Agreement. The representations and warranties set forth in this Section 4 shall remain operative and in full force and effect regardless of (i) any investigation made by or on behalf of any Indemnified Person (as defined in Annex A attached hereto) or (ii) any termination of this Agreement.

Representations and Warranties by the Company. The Company represents hereby makes the following representations and warrants warranties and acknowledges and agrees that such representations and warranties have been material to the Council's decision to enter into this Agreement and its determination that the Company is a Qualifying Business and further agrees that each representation and warranty shall be true, accurate and complete as followsof the date of execution and delivery hereof and as of the date of any claim for disbursement of the Job Development Credits: (a) The Company is a corporation business entity as described in Exhibit A, duly incorporated organized, validly existing and in good standing under the laws of the State state specified in Exhibit A, with power adequate for the carrying on of New Yorkthe business now conducted and proposed in the Enterprise Program Application to be conducted by it, and is duly qualified and authorized to transact conduct business as a public utility in the State of New York in, and is not in violation of any provision of its Certificate of Incorporation or its By-Laws, has power to enter into, execute and deliver this Participation Agreementgood standing in, the Tax Regulatory Agreement and the Note and by proper corporate action has duly authorized the execution and delivery of this Participation Agreement, the Tax Regulatory Agreement and the Note;State. (b) The execution execution, delivery and delivery performance of this Agreement are within the Company's power and authority, and the Company has duly authorized, executed, and delivered such Agreement and has taken or will take all action necessary to carry out and give effect to the transactions contemplated by the Company of this Participation Agreement, the Tax Regulatory Agreement and the Note and the consummation of the transactions herein and therein contemplated will not conflict with or constitute a breach of or a default under the Company’s Certificate of Incorporation or By-Laws or a default in any material respect under any indenture, mortgage, loan agreement or other contract or instrument to which the Company is a party or by which it is bound, or any judgment, decree, order, statute, rule or regulation applicable to the Company;. (c) This Participation Each part of this Agreement, the Tax Regulatory Agreement and the Note have been duly executed and delivered by the Company and constitute including exhibits, is a legally valid and legally binding obligations obligation of the Company, enforceable against the Company in accordance with their respective its terms, except as enforcement may be limited by applicable bankruptcy, insolvency, moratorium, reorganization insolvency or other similar laws relating to or affecting the enforcement of creditors’ rights or contractual obligations generally or principles of equity or judicial discretion;creditors rights. (d) This Agreement has been signed by an authorized representative as defined by this agreement and such signature is recognized by the Company as legally binding. (e) All written statements, representations and warranties made by or on behalf of the Company to the Council in or in connection with the Enterprise Program Application, and any materials furnished to the Council in connection with the Enterprise Program Application, are true, accurate and complete in all material respects to the best of the knowledge and belief of the Company at the time made. (f) Prior to the Cut-off Date, the Company will invest not less than the Minimum Capital Investment in the Project and the Project will result in the creation of Full Time New Jobs equal to or greater than the Minimum Job Requirement, prior to the Cut-Off Date. (g) The execution Company is a Qualifying Business, and the Project is and will be located entirely within this State. (h) The Company has not, and will not, claim or use any return of any overpayment of Withholding that results from claiming Job Development Credits for any purpose other than those authorized by this Agreement. -------------------------------------------------------------------------------- SC ENTERPRISE PROGRAM REVITALIZATION AGREEMENT 4 (i) No consent of any person or entity and no authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body is required for the due execution, delivery and performance by the Company of this Participation Agreement and Agreement, or any other Revitalization Document, except such as have been, or will be obtained before the Note in the manner and initial claim for the purposes herein set forth Job Development Credits. (j) No alterations, additions, modifications, variations or changes of any kind have been duly authorized by order of the Public Service Commission of the State of New York; and (e) No additional authorizations for or approvals of the execution and delivery made to this original Agreement as provided by the Company of this Participation Agreement, Council. Any and all special provisions and/or amendments to the Tax Regulatory Agreement and the Note need original document shall be obtained by the Company or if any such authorization or approval is necessary it has been obtained.provided for in Exhibit D.

Representations and Warranties by the Company. The As of the date of the Company’s acceptance and execution of this Subscription Agreement, the Company represents and warrants to the Subscriber as follows: 2.1 The SEC filings do not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in light of the circumstances in which they were made, not misleading. If at any time prior to the completion of the transaction contemplated herein or other termination of this Subscription Agreement any event shall occur as a result of which it might become necessary to amend or supplement the SEC filings so that they do not include any untrue statement of any material fact or omit to state any material fact necessary in order to make the statements therein, in light of the circumstances then existing, not misleading, the Company shall promptly notify the Subscriber and if such amendments or supplements are not publicly available, shall supply the Subscriber with such amendments or supplements or Supplemental Information (aas defined in Section 3.4) correcting or updating such statement or omission. 2.2 The Company is a corporation duly incorporated organized, validly existing and in good standing under the laws of the State of New YorkNevada, is duly qualified and authorized has all requisite corporate power and authority to transact own and lease its properties, to carry on its business as a public utility in the State of New York and is not in violation of any provision of its Certificate of Incorporation or its By-Lawscurrently conducted, has power to enter into, execute and deliver this Participation Agreement, the Tax Regulatory Agreement and to carry out the Note and transactions contemplated by proper corporate action has this Agreement. The Company is duly authorized licensed or qualified to do business as a foreign corporation in each jurisdiction in which the execution and delivery conduct of this Participation Agreementits business or ownership or leasing of is properties requires it to be so qualified, except where the Tax Regulatory Agreement and failure to be so qualified would not have a material adverse effect on the Note; (b) The execution and delivery by business, assets, financial condition or results of operations of the Company taken as a whole (a “Material Adverse Effect”). 2.3 The authorized, issued and outstanding capital stock of this Participation Agreement, the Tax Regulatory Agreement and the Note and Company prior to the consummation of the transactions herein contemplated hereby is as set forth in the SEC filings. All issued and therein contemplated outstanding shares of Preferred Stock of the Company are validly issued, fully paid and nonassessable and have not been issued in violation of the preemptive rights of any securityholder of the Company. All shares of Preferred Stock issued to Subscriber pursuant to this Subscription Agreement and warrants, when issued, will be fully paid and nonassessable. 2.4 Except as disclosed in the SEC filings, there are not, nor shall there be immediately prior to the Closing, any outstanding warrants, options, agreements, convertible or exchangeable securities, preemptive rights to subscribe for or other commitments pursuant to which the Company or any of its Subsidiaries is, or may become, obligated to issue any shares of its capital stock or other securities of the Company and this Agreement. 2.5 The historical financial statements included in the SEC filings are: (i) in accordance with all books, records and accounts of the Company; (ii) are true, correct and complete in all material respects; and (iii) have been prepared in accordance with generally accepted accounting principles. 2.6 Except as disclosed in the SEC filings, each of the Company and its subsidiaries has good and marketable title to their respective properties and assets, free and clear of all liens, charges, encumbrances or restrictions (“Liens”), except Liens for the payment of current taxes which are not yet delinquent, Liens which arise in the ordinary course of business and Liens which will not conflict with or constitute result in a breach of or a default under Material Adverse Effect. To the Company’s Certificate knowledge, all of Incorporation the leases and subleases under which the Company or By-Laws any subsidiary is the lessor or a sublessor of properties or assets or under which the Company or any subsidiary holds properties or assets as lessee or sublessee are in full force and effect, and to the Company’s knowledge, neither the Company (nor any subsidiary) is in default in any material respect with respect to any of the terms or provisions of any of such leases or subleases, and to the Company’s knowledge, no material claim has been asserted by anyone adverse to rights of the Company or any subsidiary as lessor, sublessor, lessee or sublessee under any of the leases or subleases mentioned above, or affecting or questioning the right of the Company or any subsidiary to continued possession of the leased or subleased premises or assets under any such lease or sublease in each case other than any non-effectiveness, default or claim which could not be reasonably expected to cause a Material Adverse Effect. The Company and each subsidiary owns or leases all such properties as are necessary to their respective operations as now conducted. 2.7 Except as set forth in the SEC filings, there is no action, suit, investigation, inquiry or similar governmental proceeding, claim or proceeding at law or in equity by or before any arbitrator, governmental instrumentality or other agency now pending or, to the knowledge of any of the Company or its subsidiaries, threatened against the Company or any subsidiary or, to the knowledge of the Company, any officer or director of the Company or any subsidiary (or basis therefor known to the Company or any subsidiary), the adverse outcome of which would have a Material Adverse Effect or that seeks to prevent, enjoin, alter or delay the transactions contemplated hereby. Neither the Company nor any subsidiary is subject to any judgment, order, writ, injunction or decree of any federal, state, municipal or other governmental instrumentality, commission, board, bureau, agency or instrumentality, domestic or foreign or self-regulatory organization that seeks to prevent, enjoin, alter or delay the transactions contemplated by this Agreement. 2.8 To the Company’s knowledge, neither the Company nor any of the subsidiaries is in breach of, or in default under, any material term or provision of any indenture, mortgage, deed of trust, lease, note, loan or credit agreement or any other contract agreement or instrument evidencing an obligation for borrowed money, or any other agreement or instrument to which the Company it is a party or by which it or any of its properties may be bound or affected, other than any default or breach which could not reasonably be expected to have a Material Adverse Effect. Neither the Company nor any of the subsidiaries is boundin violation of (i) any provision of its charter or Bylaws or (ii) any franchise, license, permit, judgment, decree or order, or any judgment, decree, order, statute, rule or regulation that, in the case of this clause (ii), would, individually or in the aggregate, have a Material Adverse Effect. 2.9 Each of the Company and its subsidiaries has filed all U.S. federal, state, local and foreign tax returns which are required to be filed by each of them and all such returns are true and correct in all material respects, except for such failures to file which could not reasonably be expected to have a Material Adverse Effect. The Company and each subsidiary has paid all taxes pursuant to such returns or pursuant to any assessments received by any of them or by which any of them are obligated to withhold from amounts owing to any employee, creditor or third party. The Company and each subsidiary has properly accrued all taxes required to be accrued and/or paid, except where the failure to accrue would not have a Material Adverse Effect. To the knowledge of the Company, the tax returns of the Company and its subsidiaries are not currently being audited by any state, local or federal authorities. Neither the Company nor any subsidiary has waived any statute of limitations with respect to taxes or agreed to any extension of time with respect to any tax assessment or deficiency. The Company has set aside on its books adequate provision for the payment of any unpaid taxes. 2.10 Neither the Company nor any subsidiary has received notice of any violation of or noncompliance with any federal, state, local or foreign, laws, ordinances, regulations, and orders applicable to its business, which has not been cured, the violation of, or noncompliance with, which would have a Material Adverse Effect. To the knowledge of the Company;, the Company and each subsidiary has all licenses required by every federal, state and local government or regulatory body for the operation of its business as currently conducted and the use of its properties, except where the failure to be so licensed would not have a Material Adverse Effect. To the knowledge of the Company, all material licenses held by the Company are in full force and effect and no violations are or have been recorded in respect of any license and no proceeding is pending or threatened to revoke, modify or limit any thereof. (c) This Participation 2.11 The issuance of the securities pursuant to the terms of this Agreement, the Tax Regulatory Agreement and the Note have been duly executed authorized by the Company’s board of directors and delivered no further consent or authorization of its board of directors or its stockholders is required by the Company and constitute the legal, valid and legally binding obligations of the Company, enforceable against the Company in accordance with their respective terms, except as enforcement enforceability may be limited by applicable general equitable principles, bankruptcy, insolvency, moratoriumreorganization, reorganization moratorium or other laws relating to or affecting the enforcement of creditors’ rights or contractual obligations generally or principles of equity or judicial discretion;generally. (d) The execution and delivery by the Company of this Participation Agreement and the Note 2.12 Except as set forth in the manner and for SEC filings, no consent, approval, order or authorization of, or registration, qualification, designation, declaration or filing with, or notice to, any court, federal, state or local governmental authority or regulatory or self regulatory agency or authority or other person on the purposes herein set forth have been duly authorized by order part of the Public Service Commission of the State of New York; and (e) No additional authorizations for or approvals of the execution and delivery by the Company of this Participation Agreement, the Tax Regulatory Agreement and the Note need be obtained by the Company or if any such authorization Subsidiary is required in connection with the issuance of the securities or approval the consummation of the other transactions contemplated by this Agreement. 2.13 Neither the Company nor any subsidiary has taken any steps to seek protection pursuant to any bankruptcy or reorganization law, nor does the Company nor any subsidiary have any knowledge or reason to believe that its creditors intend to initiate involuntary bankruptcy or reorganization proceedings or any actual knowledge of any fact which would reasonably lead a creditor to do so. 2.14 No material labor dispute exists or, to the knowledge of the Company, is necessary it has been obtainedthreatened with respect to any of the employees of the Company or its subsidiaries.

Representations and Warranties by the Company. The Company represents and warrants to the Holder as follows: (a) The Company is a corporation duly incorporated has all requisite power and in good standing authority to execute, deliver and perform its obligations under the laws of the State of New Yorkthis Warrant. The execution, is duly qualified delivery and authorized to transact business as a public utility in the State of New York and is not in violation of any provision of its Certificate of Incorporation or its By-Laws, has power to enter into, execute and deliver this Participation Agreement, the Tax Regulatory Agreement and the Note and by proper corporate action has duly authorized the execution and delivery of this Participation Agreement, the Tax Regulatory Agreement and the Note; (b) The execution and delivery performance by the Company of this Participation AgreementWarrant has been duly authorized by all necessary corporate action, and does not (i) contravene the Tax Regulatory Agreement and the Note and the consummation terms of the transactions herein and therein contemplated will not Company’ s certificate of incorporation or bylaws, (ii) conflict with or constitute a breach of or a default under the Company’s Certificate of Incorporation or By-Laws or a default result in any material respect breach or contravention of, or the creation of any lien under, or require any payment to be made under (x) any indenture, mortgage, loan agreement or other contract or instrument contractual obligation to which the Company is a party party, (y) any order, injunction, writ or by decree of any Governmental Authority or any arbitral award to which it the Company is boundsubject, or (z) violate in any judgmentmaterial respect any Law. No approval, decreeconsent, orderexemption, statuteauthorization, rule or regulation applicable to other action by, or notice to, or filing with, any Governmental Authority or any other Person is necessary or required in connection with the Company; (c) This Participation Agreementexecution, delivery or performance by, or enforcement against, the Tax Regulatory Agreement Company of this Warrant other than those that have already been obtained and the Note have are in full force and effect. This Warrant has been duly executed and delivered by the Company and constitute constitutes a legal, valid and legally binding obligations obligation of the Company, enforceable against the Company in accordance with their respective its terms, except as enforcement may be limited subject to general principles of equity. (b) To the extent required by applicable bankruptcylaw, insolvencythe Company has complied in all material respects with its obligations under the Securities Act and the Exchange Act to file reports with the SEC and such reports, moratoriumif any, reorganization or other laws relating to or affecting the enforcement of creditors’ rights or contractual obligations generally or principles of equity or judicial discretion;are accurate and complete in all material respects. (dc) The execution offer and delivery sale by the Company of this Participation Agreement and Warrant are not required to be registered pursuant to the Note in the manner and for the purposes herein set forth have been duly authorized by order provisions of Section 5 of the Public Service Commission Securities Act or the registration or qualification provisions of the State blue sky laws of New York; and (e) No additional authorizations for any state. Neither the Company nor any agent on the Company’s behalf has solicited or approvals will solicit any offers to sell all or any part of this Warrant to any Person so as to bring the execution and delivery sale of this Warrant by the Company within the registration provisions of the Securities Act or any state securities laws. All taxes imposed on the Company in connection with the issuance, sale and delivery of this Participation AgreementWarrant have been or will be fully paid, the Tax Regulatory Agreement and the Note need all laws imposing such taxes have been or will be obtained fully satisfied by the Company or if any such authorization or approval is necessary it has been obtainedCompany.

Representations and Warranties by the Company. The As of the date of the Company's acceptance and execution of this Subscription Agreement, the Company represents and warrants to the Subscriber as follows: 2.1 The Memorandum, together with the Transaction Documents and any Supplemental Information (aas such terms are defined herein) (collectively, the "Offering Documents") do not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in light of the circumstances in which they were made, not misleading. If at any time prior to the completion of the Offering or other termination of this Subscription Agreement any event shall occur as a result of which it might become necessary to amend or supplement the Offering Documents so that they do not include any untrue statement of any material fact or omit to state any material fact necessary in order to make the statements therein, in light of the circumstances then existing, not misleading, the Company shall promptly notify the Placement Agent and shall supply the Placement Agent with amendments or supplements correcting such statement or omission. The Company shall also provide the Placement Agent for delivery to all offerees and their representatives, if any, any information, documents and instruments which the Placement Agent and the Company deem necessary to comply with state and federal law applicable to the Offering. 2.2 The Company is a corporation duly incorporated organized, validly existing and in good standing under the laws of its state of incorporation, and has all requisite corporate power and authority to own and lease its properties, to carry on its business as currently conducted, to execute and deliver the State of New YorkSubscription Agreement and the other Offering Documents and to carry out the transactions contemplated by the Subscription Agreement and the other Offering Documents, as appropriate. The Company is duly licensed or qualified and authorized to transact do business as a public utility foreign corporation in each jurisdiction in which the State of New York and is not in violation of any provision conduct of its Certificate business or ownership or leasing of Incorporation is properties requires it to be so qualified, except where the failure to be so qualified would not have a material adverse effect on the business, assets, financial condition or its By-Laws, has power to enter into, execute and deliver this Participation Agreement, the Tax Regulatory Agreement and the Note and by proper corporate action has duly authorized the execution and delivery results of this Participation Agreement, the Tax Regulatory Agreement and the Note; (b) The execution and delivery by operations of the Company taken as a whole (a "Material Adverse Effect"). 2.3 The authorized, issued and outstanding capital stock of this Participation Agreement, the Tax Regulatory Agreement and the Note and Company prior to the consummation of the transactions herein contemplated hereby is as set forth in the Offering Documents. All issued and therein contemplated outstanding shares of Common Stock of the Company are validly issued, fully paid and nonassessable and have not been issued in violation of the preemptive rights of any securityholder of the Company. All shares of Common Stock issued to Subscriber pursuant to this Subscription Agreement and warrants, when issued, will be fully paid and nonassessable. 2.4 Except as disclosed in the Offering Documents, there are not, nor (except as disclosed in the Offering Documents) shall there be immediately prior to the Closing, any outstanding warrants, options, agreements, convertible or exchangeable securities, preemptive rights to subscribe for or other commitments pursuant to which the Company or any of its Subsidiaries is, or may become, obligated to issue any shares of its capital stock or other securities of the Company and this Offering. 2.5 The historical financial statements included in the Offering Documents are: (i) in accordance with all books, records and accounts of the Company; (ii) are true, correct and complete in all material respects; and (iii) have been prepared in accordance with generally accepted accounting principles. 2.6 Except as disclosed in the Offering Documents, each of the Company and its subsidiaries has good and marketable title to their respective properties and assets, free and clear of all liens, charges, encumbrances or restrictions ("Liens"), except Liens for the payment of current taxes which are not yet delinquent, Liens which arise in the ordinary course of business and Liens which will not conflict with or constitute result in a breach of or a default under Material Adverse Effect. To the Company’s Certificate 's knowledge, all of Incorporation the leases and subleases under which the Company or By-Laws any subsidiary is the lessor or a sublessor of properties or assets or under which the Company or any subsidiary holds properties or assets as lessee or sublessee are in full force and effect, and to the Company's knowledge, neither the Company (nor any subsidiary) is in default in any material respect with respect to any of the terms or provisions of any of such leases or subleases, and to the Company's knowledge, no material claim has been asserted by anyone adverse to rights of the Company or any subsidiary as lessor, sublessor, lessee or sublessee under any of the leases or subleases mentioned above, or affecting or questioning the right of the Company or any subsidiary to continued possession of the leased or subleased premises or assets under any such lease or sublease in each case other than any non-effectiveness, default or claim which could not be reasonably expected to cause a Material Adverse Effect. The Company and each subsidiary owns or leases all such properties as are necessary to their respective operations as now conducted. 2.7 Except as set forth in the Offering Documents, there is no action, suit, investigation, inquiry or similar governmental proceeding, claim or proceeding at law or in equity by or before any arbitrator, governmental instrumentality or other agency now pending or, to the knowledge of any of the Company or its subsidiaries, threatened against the Company or any subsidiary or, to the knowledge of the Company, any officer or director of the Company or any subsidiary (or basis therefor known to the Company or any subsidiary), the adverse outcome of which would have a Material Adverse Effect or that seeks to prevent, enjoin, alter or delay the transactions contemplated hereby or by the Offering Documents. Neither the Company nor any subsidiary is subject to any judgment, order, writ, injunction or decree of any federal, state, municipal or other governmental instrumentality, commission, board, bureau, agency or instrumentality, domestic or foreign or self-regulatory organization that seeks to prevent, enjoin, alter or delay the transactions contemplated hereby or by the Offering Documents. 2.8 To the Company's knowledge, neither the Company nor any of the subsidiaries is in breach of, or in default under, any material term or provision of any indenture, mortgage, deed of trust, lease, note, loan or credit agreement or any other contract agreement or instrument evidencing an obligation for borrowed money, or any other agreement or instrument to which the Company it is a party or by which it or any of its properties may be bound or affected, other than any default or breach which could not reasonably be expected to have a Material Adverse Effect. Neither the Company nor any of the subsidiaries is boundin violation of (i) any provision of its charter or Bylaws or (ii) any franchise, license, permit, judgment, decree or order, or any judgment, decree, order, statute, rule or regulation that, in the case of this clause (ii), would, individually or in the aggregate, have a Material Adverse Effect. 2.9 Each of the Company and its subsidiaries has filed all U.S. federal, state, local and foreign tax returns which are required to be filed by each of them and all such returns are true and correct in all material respects, except for such failures to file which could not reasonably be expected to have a Material Adverse Effect. The Company and each subsidiary has paid all taxes pursuant to such returns or pursuant to any assessments received by any of them or by which any of them are obligated to withhold from amounts owing to any employee, creditor or third party. The Company and each subsidiary has properly accrued all taxes required to be accrued and/or paid, except where the failure to accrue would not have a Material Adverse Effect. To the knowledge of the Company, the tax returns of the Company and its subsidiaries are not currently being audited by any state, local or federal authorities. Neither the Company nor any subsidiary has waived any statute of limitations with respect to taxes or agreed to any extension of time with respect to any tax assessment or deficiency. The Company has set aside on its books adequate provision for the payment of any unpaid taxes. 2.10 Neither the Company nor any subsidiary has received notice of any violation of or noncompliance with any federal, state, local or foreign, laws, ordinances, regulations, and orders applicable to its business, which has not been cured, the violation of, or noncompliance with, which would have a Material Adverse Effect. To the knowledge of the Company; (c) This Participation Agreement, the Tax Regulatory Agreement Company and each subsidiary has all licenses required by every federal, state and local government or regulatory body for the operation of its business as currently conducted and the Note use of its properties, except where the failure to be so licensed would not have a Material Adverse Effect. To the knowledge of the Company, all material licenses held by the Company are in full force and effect and no violations are or have been recorded in respect of any license and no proceeding is pending or threatened to revoke, modify or limit any thereof. 2.11 Each of the Transaction Documents (as defined herein) have been duly executed and delivered by the Company and the execution, delivery and performance by the Company of the Transaction Documents, and the issuance of the securities pursuant to the terms of the Offering Documents, have been duly authorized by the Company's board of directors and no further consent or authorization of its board of directors or its stockholders is required by the Company and constitute the legal, valid and legally binding obligations of the Company, enforceable against the Company in accordance with their respective terms, except as enforcement enforceability may be limited by applicable general equitable principles, bankruptcy, insolvency, moratoriumreorganization, reorganization moratorium or other laws relating to or affecting the enforcement of creditors’ ' rights or contractual obligations generally or principles of equity or judicial discretion;generally. (d) The execution and delivery by the Company of this Participation Agreement and the Note 2.12 Except as set forth in the manner and for Offering Documents, no consent, approval, order or authorization of, or registration, qualification, designation, declaration or filing with, or notice to, any court, federal, state or local governmental authority or regulatory or self regulatory agency or authority or other person on the purposes herein set forth have been duly authorized by order part of the Public Service Commission of the State of New York; and (e) No additional authorizations for or approvals of the execution and delivery by the Company of this Participation Agreement, the Tax Regulatory Agreement and the Note need be obtained by the Company or if any such authorization Subsidiary is required in connection with the issuance of the securities or approval the consummation of the other transactions contemplated by the Offering Documents. 2.13 Neither the Company nor any subsidiary has taken any steps to seek protection pursuant to any bankruptcy or reorganization law, nor does the Company nor any subsidiary have any knowledge or reason to believe that its creditors intend to initiate involuntary bankruptcy or reorganization proceedings or any actual knowledge of any fact which would reasonably lead a creditor to do so. 2.14 No material labor dispute exists or, to the knowledge of the Company, is necessary it has been obtainedthreatened with respect to any of the employees of the Company or its subsidiaries.

Representations and Warranties by the Company. The Company represents and warrants as followsof the Date of Issue that: (a) The Company is a corporation cooperative association duly incorporated and in good standing organized under the laws of the State of New YorkNorth Dakota, is duly qualified and authorized to transact business as a public utility in the State of New York and is not in violation of any provision provisions of its Certificate Articles of Incorporation (the “Articles”) pursuant to which it was formed or its By-Lawsthe laws of the State, has power to enter into, execute and deliver into this Participation Agreement, the Tax Regulatory Reimbursement Agreement and the Note Remarketing Agreement and by proper corporate action has duly authorized the execution, delivery and performance of this Agreement, the Reimbursement Agreement and the Remarketing Agreement. (b) Neither the execution and delivery of this Participation Agreement, the Tax Regulatory Agreement and the Note; (b) The execution and delivery by the Company of this Participation Reimbursement Agreement, or the Tax Regulatory Agreement and the Note and Remarketing Agreement, the consummation of the transactions herein contemplated hereby and therein contemplated will not conflict thereby nor the fulfillment of or compliance with the terms and conditions of such instruments is prevented by, limited by or conflicts with or constitute results in a breach of the terms, conditions or a default under provisions of any restriction of the Articles, or the Company’s Certificate Bylaws or any evidence of Incorporation or By-Laws or a default in any material respect under any indentureindebtedness, mortgage, loan agreement or other contract or instrument of whatever nature to which the Company is now a party or by which it is bound, bound or constitutes a default under any judgment, decree, order, statute, rule or regulation applicable to of the Company;foregoing. (c) This Participation AgreementThe Company is duly authorized and licensed to operate the Projects under the laws, rulings, regulations and ordinances of the Tax Regulatory Agreement State and the Note have been duly executed departments, agencies and delivered by political subdivisions thereof; the Company and constitute valid and legally binding obligations has obtained or will obtain all requisite approvals of the CompanyState and other federal, enforceable against state, regional and local governmental bodies for the Company operation of the Projects; and the Prior Projects are, and the Recovery Zone Projects will be, in accordance compliance with their respective termsapplicable federal, except as enforcement may be limited by applicable bankruptcystate and local zoning, insolvencysubdivision, moratoriumenvironmental, reorganization or other laws relating to or affecting the enforcement of creditors’ rights or contractual obligations generally or principles of equity or judicial discretion;pollution control and building laws, regulations, codes and ordinances. (d) The execution and delivery by Company shall operate or cause the Company of this Participation Agreement and Projects to be operated as a “project” within the Note in the manner and for the purposes herein set forth have been duly authorized by order meaning of the Public Service Commission Act and otherwise comply with all provisions of the State of New York; andAct. (e) No additional authorizations for or approvals To the best of the execution and delivery Company’s knowledge, no member of the governing body or other officer or employee of the Issuer is directly or indirectly interested in the transaction contemplated by the Company of Indenture, this Participation Agreement, the Tax Regulatory Agreement and the Note need Bonds, or any contract, agreement or job hereby contemplated to be obtained by entered into or undertaken. (f) There is no pending suit, action or proceeding against or affecting the Company before or if by any such authorization court, arbitrator, administrative agency or approval is necessary it other governmental authority which will materially and adversely affect the validity, as to the Company, of any of the transactions contemplated hereby or the ability of the Company to perform its obligations as contemplated hereby. (g) The Company has been obtainedreviewed and approved the provisions of the Indenture and will observe and comply with any obligations of the Company stated therein.

Representations and Warranties by the Company. The Company represents and warrants as follows: (a) The Company is a corporation limited liability company duly incorporated organized and existing and in good standing under the laws of the State of New York, is duly qualified and authorized to transact business as a public utility in the State of New York and is not in violation of any provision of its Certificate of Incorporation or its By-Laws, has power to enter into, execute and deliver this Participation Agreement, the Tax Regulatory Agreement and the Company Note and by proper corporate limited liability company action and has duly authorized the execution and delivery by it of this Participation Agreement, the Tax Regulatory Agreement and the Company Note; (b) The execution and delivery by the Company of this Participation Agreement, the Tax Regulatory Agreement and the Company Note and the consummation of the transactions herein and therein contemplated will do not conflict with or constitute a breach of or a default under the Company’s Certificate 's Articles of Incorporation Organization, operating agreement or By-Laws or a default in any material respect under any indenture, mortgage, loan agreement or other contract or instrument to which the Company is a party or by which it is boundbound or, or to the best of the Company's knowledge, any judgment, decree, order, statute, rule or regulation applicable to the Company; (c) This Participation Agreement, the Tax Regulatory Agreement and the Company Note have been duly executed and delivered by the Company and constitute valid and legally binding obligations of the Company, enforceable against the Company in accordance with their respective terms, except as enforcement may be limited by applicable bankruptcy, insolvency, moratorium, reorganization or other laws laws, judicial decisions or principles of equity relating to or affecting the enforcement of creditors’ ' rights or contractual obligations generally or principles of equity or judicial discretiongenerally; (d) The execution issuance and delivery by the Company of this Participation Agreement and the Company Note in the manner and for the purposes herein set forth have been duly authorized by order of the Public Service Commission of the State of New York; and (e) No additional authorizations for or approvals of the execution and delivery by the Company of this Participation Agreement, the Tax Regulatory Agreement and the Company Note need be obtained by the Company or if any such authorization or approval is necessary it has been obtained.

Representations and Warranties by the Company. The Company represents makes the following representations and warrants warranties as followsthe basis for its covenants herein: (a) The Company is a corporation duly incorporated and in good standing under the laws of the State of New YorkIllinois, is in good standing and duly authorized to conduct its business in this State, is duly qualified authorized and authorized has full power under all applicable laws and its articles of incorporation and by-laws to transact business as a public utility in the State of New York and is not in violation of any provision of its Certificate of Incorporation or its By-Lawscreate, has power to issue, enter into, execute and deliver deliver, as the case may be, this Participation Agreement, the Insurance Agreement, the Tax Regulatory Agreement and the Note and by proper corporate action has duly authorized the execution and delivery of this Participation Agreement, the Tax Regulatory Agreement Purchase Contract and the Note;Mortgage Bonds (collectively, the “Company Agreements”). (b) The execution and delivery by of the Company Agreements on the Company’s part have been duly authorized by all necessary corporate action, and neither the Company’s execution and delivery of this Participation Agreementthe Company Agreements, the Tax Regulatory Agreement and the Note and the Company’s consummation of the transactions herein and therein contemplated will not conflict with or constitute a breach of or a default under on its part thereby, nor the Company’s Certificate fulfillment of Incorporation or Bycompliance with the terms and conditions thereof, conflicts with or results in a material breach of the articles of incorporation or by-Laws laws of the Company or a default in any material respect under any indenture, mortgage, loan agreement or other contract or instrument to which the Company is now a party or by which it is boundbound (except for any such breaches for which the Company has obtained a waiver or a required consent), or constitutes a material default (or would constitute a material default with due notice or the passage of time or both) under any judgment, decree, order, statute, rule or regulation applicable to of the Company;foregoing. (c) This Participation The Project (i) is comprised of certain pollution control facilities at the electric generating plants listed in Exhibit A hereto, and (ii) constitutes “environmental facilities” as defined in the Environmental Act. No portion of the Project includes any property used or to be used for sectarian instruction or study or as a place for devotional activities or religious worship or any property which is used or to be used primarily in connection with any part of the program of a school or department of divinity for any religious denomination. (d) No litigation, proceedings or investigations are pending or, to the knowledge of the Company, threatened against the Company seeking to restrain, enjoin or in any way limit the approval or issuance and delivery of the Company Agreements or which would in any manner challenge or adversely affect the corporate existence or powers of the Company to enter into and carry out the transactions described in or contemplated by or the execution, delivery, validity or performance by the Company of the Company Agreements. In addition, except as described in the Official Statement, no litigation, proceedings or investigations are pending or, to the knowledge of the Company, threatened in writing against the Company, except litigation, proceedings or investigations involving claims for which the probable ultimate recoveries and the estimated costs and expenses of defense, in the opinion of management of the Company (i) will be entirely within the applicable insurance policy limits (subject to applicable deductibles) or are not in excess of the total of the available assets held under applicable self-insurance programs or (ii) will not have a material adverse effect on the operations or condition, financial or otherwise, of the Company. (e) The (i) consolidated statements of income, cash flows and changes in shareholders’ equity of the Company for each of the fiscal years ended December 31, 2002, 2003 and 2004 and the consolidated balance sheet as of December 31, 2002, 2003 and 2004, together with the reports thereon of PricewaterhouseCoopers LLP, independent registered public accounting firm, all included in the Official Statement, fairly present the financial condition of the Company as of said dates, and the results of the operations of the Company for each of such periods, respectively, all in accordance with generally accepted accounting principles consistently applied except as stated in the notes thereto, and there has been no material adverse change in the condition, financial or otherwise, of the Company since December 31, 2004 from that set forth in the information so utilized except as disclosed in the Official Statement. (f) The information used in the preparation of the financial statements referred to in paragraph (e) above, this Agreement, the Tax Regulatory Agreement and the Note have been duly executed and delivered any other written statement furnished by the Company to the Authority (including the descriptions and constitute valid information contained in the Official Statement relating to (i) the Company and legally binding obligations the Project, (ii) the operations and financial and other affairs of the Company, enforceable against (iii) the Company in accordance with their respective terms, except as enforcement may be limited by applicable bankruptcy, insolvency, moratorium, reorganization or other laws relating to or affecting the enforcement of creditors’ rights or contractual obligations generally or principles of equity or judicial discretion; (d) The execution and delivery application by the Company of the proceeds to be received by it from the loan of the proceeds of sale of the Bonds, and (iv) the participation by the Company in the transactions contemplated herein and in the Official Statement do not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements contained therein or herein, in light of the circumstances under which they were made, not misleading. There is no fact which the Company has not disclosed to the Authority in writing which materially adversely affects or, so far as the Company can now foresee, will materially adversely affect the financial condition of the Company, or the Company’s ability to make payments under this Participation Agreement when and as the same become due and payable. (g) Compliance by the Company with the provisions of the Company Agreements will not involve, to the extent applicable, any prohibited transaction within the meaning of the Employee Retirement Income Security Act of 1974, as amended (herein sometimes referred to as “ERISA”), or Section 4975 of the Code. No “employee pension benefit plans”, that are subject to Title IV of ERISA (herein sometimes referred to as “Plans”), maintained by the Company, nor any trust created thereunder, have incurred any “accumulated funding deficiency” as defined in Section 302 of ERISA, to the extent applicable.‌ (h) The representations and certifications contained in the Tax Agreement and the Note in Project Agreement and Certificate executed by the manner Company, on the Closing Date are true and for correct, and are incorporated by reference herein. (i) The Company has obtained the purposes herein set forth have been duly authorized by order approval and authorization of the Public Service Illinois Commerce Commission to borrow money, enter into loan agreements and issue and deliver mortgage bonds as collateral for loan agreements. That approval includes approval for this Loan Agreement and the issuance of the State First Mortgage Bonds to the Trustee as assignee of New York; and (e) the Authority. No further or additional authorizations for approval, authorization or approvals consent of any governmental or public agency or authority is required in connection with the execution and delivery by the Company of this Participation Agreement, the Tax Regulatory Agreement Agreement, the Supplemental Company Indenture or the Mortgage Bonds. (j) The information contained in the written documents relating to the Project and the Note need be obtained use of the proceeds of the 1985 Bonds, the 1994D Bonds and the Bonds provided by the Company or if any such authorization or approval to the Authority and bond counsel for the Bonds is necessary it has been obtainedtrue and correct in all material respects.

Representations and Warranties by the Company. The Company represents and warrants to the Subscriber as follows: (a) 3.1 The Company is a corporation duly incorporated organized, existing and in good standing under the laws of the State of New YorkDelaware and has the corporate power to conduct its business. 3.2 The execution, is delivery and performance of this Agreement by the Company has been duly qualified authorized by the Board of Directors of the Company. 3.3 The Warrant has been duly and validly authorized and, when issued in accordance with the terms hereof, will be duly and validly issued and will represent the binding obligation of the Company. The Shares and the Warrant Shares have been duly and validly authorized and, when issued in accordance with the terms hereof and the Warrant, respectively, will be duly and validly issued, fully paid and nonassessable. 3.4 The Company has taken all corporate action required to transact business as a public utility in authorize the State execution and delivery of New York this Agreement and the issuance of the Shares, the Warrant and the Warrant Shares. The Company is not in violation or default of any provision of the terms of its Certificate of Incorporation or its By-Laws. The execution, has power to enter intodelivery and performance of this Agreement by the Company, execute and deliver this Participation Agreement, the Tax Regulatory Agreement and the Note and by proper corporate action has duly authorized the execution sale, issuance and delivery of this Participation Agreementthe Shares, the Tax Regulatory Agreement Warrant and the Note; (b) The execution and delivery by Warrant Shares, will not, with or without the Company passage of this Participation Agreementtime or giving of notice, the Tax Regulatory Agreement and the Note and the consummation of the transactions herein and therein contemplated will not result in any such violation, or be in conflict with or constitute a breach of or a default under the Company’s its Certificate of Incorporation or By-Laws or a default in any material respect under any indenture, mortgage, loan agreement or other contract or instrument to which the Company is a party or by which it is bound, or any judgment, decree, order, statute, rule or regulation applicable to the Company; (c) Laws. This Participation Agreement, the Tax Regulatory Agreement and the Note have has been duly executed and delivered by the Company and constitute constitutes a valid and legally binding obligations obligation of the Company, Company enforceable against the Company in accordance with their respective terms, except as enforcement may be limited by applicable bankruptcy, insolvency, moratoriumreorganization, reorganization moratorium or other laws relating to or of general application affecting the enforcement of creditors’ rights or contractual obligations generally or rights, and as limited by general principles of equity that restrict the availability of equitable remedies. 3.5 The Company is not required to obtain any consent, waiver, authorization or judicial discretion; order of, give any notice to, or make any filing or registration with, (dother than blue sky filings, which shall be made promptly following the closing hereunder) The execution any court or other federal, state, local or other governmental authority or other person in connection with the execution, delivery and delivery performance by the Company of this Participation Agreement and the Note in the manner sale, issuance and for the purposes herein set forth have been duly authorized by order delivery of the Public Service Commission of the State of New York; and (e) No additional authorizations for or approvals of the execution and delivery by the Company of this Participation AgreementShares, the Tax Regulatory Agreement Warrant and the Note need be obtained by the Company or if any such authorization or approval is necessary it has been obtainedWarrant Shares.