Common use of Representations and Warranties of Member Clause in Contracts

Representations and Warranties of Member. Member represents and warrants, as of the date hereof, to Security Agent and the Secured Parties as follows: (a) Member (i) is a duly formed and validly existing limited liability company in good standing under the laws of Delaware; (ii) is authorized to do business in each jurisdiction where the character of its properties or the nature of its activities makes such qualification necessary, except where the failure to do so would not reasonably be expected to result in a Material Adverse Effect; and (iii) has the power and authority to own its property and assets and to transact the business in which it is engaged. (b) Member (i) has the power and authority to execute, deliver and perform its obligations under the LLC Agreement and this Agreement, and to pledge and assign the Collateral; (ii) has taken all necessary action to authorize the execution, delivery and performance of the LLC Agreement and this Agreement; and (iii) has duly executed and delivered the LLC Agreement and this Agreement. The LLC Agreement and this Agreement constitute the legal, valid and binding obligations of Member, enforceable in accordance with their respective terms, except as the enforceability thereof may be limited by applicable bankruptcy, insolvency, moratorium, reorganization or other similar laws affecting the enforcement of creditors’ rights and subject to general equitable principles. (c) The LLC Agreement has not been amended since the date of its execution, except as otherwise disclosed to Security Agent, and is in full force and effect. There exists no default, or event that with the passage of time, the giving of notice or both would become a default by Member under the LLC Agreement. (d) The execution and delivery of, and performance by Member under, this Agreement, and the consummation of the transactions contemplated herein, will not (i) violate any provision of any material agreement to which Member is a party or any of its property or assets is bound, including the LLC Agreement, or (ii) conflict with any material law, order, rule or regulation applicable to Member, of any court or any federal or state government, regulatory body or administrative agency, or any other governmental body having jurisdiction over Member or any of its properties. (e) Member is the legal and equitable owner of the Membership Interest in Borrower, together with the other rights and interests comprising the Collateral described above, subject to no mortgages, liens, charges, or encumbrances of any kind other than Liens granted pursuant to the Financing Documents and Permitted Liens set forth in clauses (b), (f) and (m) of the definition thereof (such term being used herein with the reference to “Borrower” in clause (b) of such definition contained in the Financing Agreement being deemed to be a reference to “Member” for purposes of this Agreement), and has full power and lawful authority to pledge, assign and grant a security interest in the Collateral hereunder. (f) Other than the Financing Documents, there is no existing agreement, option, right or privilege capable of becoming an agreement, option or right pursuant to which Member could be required to sell or otherwise dispose of all or a part of the Membership Interest. (g) No consent of any Governmental Rule is required for the transfer of the Membership Interest except as may be required by applicable laws affecting the offering and sale of securities generally or the regulation of ownership or operation of utility assets under the laws of the State of New York, the FPA, PUHCA and any other Federal regulation regarding EWG’s. (h) Member has not assigned any of its rights under the LLC Agreement or any of the Collateral except as provided in this Agreement and the other Financing Documents. (i) Member has not executed and has no knowledge of any effective financing statement, security agreement or other instrument similar in effect covering all or any part of the Collateral on file in any recording office, except such as may have been filed pursuant to this Agreement and the other Financing Documents. (j) Member will not be, or cause Borrower to be or become or to be deemed by any Governmental Authority to be, solely as a result of ownership of Borrower, (1) an “electric utility” or a public utility under the law of any state, (2) subject to, or not exempt from, regulation as a public utility under the FPA, other than regulation pursuant to Section 203 thereof, or (3) an investment company or a company controlled by an investment company within the meaning of the Investment Company Act of 1940, as amended; and Member is not, and has not been, nor has Member caused Borrower to be, determined by the Securities and Exchange Commission or any successor agency or other Governmental Authority with jurisdiction to be subject to, or not exempt from, regulation under PUHCA other than (x) compliance with Section 1265 of PUHCA and (y) regulation under PUHCA with respect to any Affiliate of Borrower (including Member) that does not result in a Material Adverse Effect.