1998 AGN MAR 03 I12 - Laserfiche WebLink

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pending or, to its knowledge, threatened against it, (vi) there are no Legal Proceedings that materially adversely affect its ability to perform its obligations under this Master Agreement and each Transaction, and (vii) it has knowledge and experience in financial matters and the electric industry that enable it to evaluate the merits and risks of entering into this Master Agreement and each Transaction. Further and with respect to Counterparty only, Counterparty represents and warrants to EPMI continuing throughout the term of this Agreement as follows: (i) all acts necessary to the valid execution and performance of this Agreement, including a minute motion of its City Council, have been duly adopted and all Councilmembers of Counterparty have been duly elected or appointed to the City Council in accordance with California law, (ii) with respect to the contractual obligations hereunder and performance thereof, it is not entitled to claim immunity on the grounds of sovereignty or similar grounds with respect to itself or its revenues or assets from (a) suit, (b) jurisdiction of court, or (c) execution or enforcement of any lawful judgment, (iii) its obligations to make payments hereunder are unsubordinated obligations and such payments are operating and maintenance costs, and (iv) its obligations to make payments hereunder do not constitute any kind of indebtedness of Counterparty or create any kind of lien on, or security interest in, any property or revenues of Counterparty which, in either case, is proscribed by any provision of its constitutional and governing documents, any order or judgment of any court or other agency of government applicable to it or its assets, or any contractual restriction binding on or affecting it or any of its assets. 2.2. Covenants. On the Effective Date Counterparty shall provide EPMI certified copies of all documents evidencing the necessary authorizations with respect to the execution, delivery and performance by Counterparty of this Agreement. Counterparty shall upon execution of this Agreement and prior to the commencement of each subsequent fiscal year of Counterparty during any Period of Delivery, obtain all necessary budgetary certifications for payment of all of its obligations under this Master Agreement or any Transaction Agreement for such fiscal year; any breach of this provision shall be deemed to have arisen during a fiscal period of Counterparty for which budgetary certification of its obligations under this Agreement is in effect and, notwithstanding anything to the contrary in Section 4, an Early Termination Date shall automatically and without further notice occur hereunder as of such date wherein Counterparty shall be treated as the Defaulting Party. Seller acknowledges that all payments from Counterparty due under this Master Agreement or any Transaction Agreement shall be payable solely from Counterparty's Electrical Utility enterprise fund and that but for the foregoing payment source limitation, this Master Agreement and any Transaction Agreement may be void as in violation of California Constitution Article 16, Section 18. SECTION 3. OBLIGATIONS AND DELIVERIES 3.1. Seller's and Buyer's Obligations. With respect to each Transaction and subject to the terms of this Master Agreement, Seller shall sell and deliver, or cause to be delivered, and Buyer shall purchase and receive, or cause to be received, at the Delivery Point the Contract Quantity, and Buyer shall pay Seller the Contract Price. Seller shall be responsible for any costs or charges imposed on or associated with the delivery of the Contract Quantity (excluding any Stranded Costs), including control area services, inadvertent energy flows, transmission losses and loss charges relating to the transmission of the Contract Quantity (excluding any Stranded Costs), up to the Delivery Point. Buyer shall be responsible for any costs or charges imposed on or associated with the Contract Quantity, including control area services, inadvertent energy flows, transmission losses and loss charges relating to the transmission of the Contract Quantity, at and from the Delivery Point. 2 DLYONS\AGRMT\COLTON 5