Common use of Representations and Warranties of Both Parties Clause in Contracts

Representations and Warranties of Both Parties. On the Execution Date, each Party represents and warrants to the other Party that: It is duly organized, validly existing and in good standing under the laws of the jurisdiction of its formation; Except for CPUC Approval in the case of Buyer, it has or will timely acquire all regulatory authorizations necessary for it to legally perform its obligations under this Agreement; The execution, delivery and performance of this Agreement are within its powers, have been duly authorized by all necessary action and do not violate any of the terms and conditions in its governing documents, any contracts to which it is a party or any law, rule, regulation, order or the like applicable to it; This Agreement constitutes its legally valid and binding obligation, enforceable against it in accordance with its terms; It is not Bankrupt and there are no proceedings pending or being contemplated by it or, to its knowledge, threatened against it which would result in it being or become Bankrupt; There is not pending or, to its knowledge, threatened against it, any legal proceedings that could materially adversely affect its ability to perform its obligations under this Agreement; It (i) is acting for its own account, (ii) has made its own independent decision to enter into this Agreement and as to whether this Agreement is appropriate or proper for it based upon its own judgment, (iii) is not relying upon the advice or recommendations of the other Party in so doing, and (iv) is capable of assessing the merits of and understanding, and understands and accepts, the terms, conditions, and risks of this Agreement; and It has entered into this Agreement in connection with the conduct of its business and it has the capability or ability to make available or take delivery of, as applicable, the Product under this Agreement in accordance with the terms of this Agreement.

Representations and Warranties of Both Parties. On the Execution Date, each Party represents and warrants to the other Party that: It is duly organized, validly existing and in good standing under the laws of the jurisdiction of its formation; Except for CPUC Approval in the case of Buyer, it has or will timely acquire all regulatory authorizations necessary for it to legally perform its obligations under this Agreement; The execution, delivery and performance of this Agreement are within its powers, have been duly authorized by all necessary action and do not violate any of the terms and conditions in its governing documents, any contracts to which it is a party or any law, rule, regulation, order or the like applicable to it; This Agreement constitutes its legally valid and binding obligation, enforceable against it in accordance with its terms; It is not Bankrupt and there are no not proceedings pending or being contemplated by it or, to its knowledge, threatened against it which would result in it being or become Bankrupt; There is not pending or, to its knowledge, threatened against it, any legal proceedings that could materially adversely affect its ability to perform its obligations under this Agreement; It (i) is acting for its own account, (ii) has made its own independent decision to enter into this Agreement and as to whether this Agreement is appropriate or proper for it based upon its own judgment, (iii) is not relying upon the advice or recommendations of the other Party in so doing, and (iv) is capable of assessing the merits of and understanding, and understands and accepts, the terms, conditions, and risks of this Agreement; and It has entered into this Agreement in connection with the conduct of its business and it has the capability or ability to make available or take delivery of, as applicable, the Product under this Agreement in accordance with the terms of this Agreement.

Representations and Warranties of Both Parties. On As of the Execution Effective Date, each Party represents and warrants to the other Party that: It is duly organized, validly existing and in good standing under the laws of the jurisdiction of its formation; Except for CPUC Approval in the case of BuyerSCE, it has or will timely acquire all regulatory authorizations necessary for it to legally perform its obligations under this Agreement; The execution, delivery and performance of this Agreement are within its powers, have been duly authorized by all necessary action and do not violate any of the terms and conditions in its governing documents, any contracts to which it is a party or any law, rule, regulation, order or the like applicable to itApplicable Laws; This Agreement constitutes its legally valid and binding obligation, enforceable against it in accordance with its termsthe terms of this Agreement, subject to any Equitable Defenses; It is not Bankrupt and there are no not proceedings pending or being contemplated by it or, to its knowledge, threatened against it which would result in it being or become becoming Bankrupt; There is not pending orpending, or to its knowledge, threatened against itit or, in the case of Seller, any of its Affiliates, any legal proceedings that could materially and adversely affect its ability to perform under this Agreement; No Event of Default with respect to it has occurred and is continuing and no such event or circumstance would occur as a result of its entering into or performing its obligations under this Agreement; It (i) is acting for its own account, (ii) has made account and its own independent decision to enter into this Agreement and as to whether this Agreement is appropriate or proper for it based upon its own judgment, (iii) is not relying in reliance upon the advice or recommendations of the other Party in so doing, and (iv) it is capable of assessing the merits of and understanding, and understands and accepts, accepts the terms, conditions, conditions and risks of this Agreement; and It has entered into this Agreement in connection with the conduct of its business and it has the capability or ability to make available or take delivery of, as applicable, the Product under this Agreement in accordance with the terms of this Agreement; and It has not relied upon any promises, representations, statements or information of any kind whatsoever that are not contained in this Agreement in deciding to enter into this Agreement.

Representations and Warranties of Both Parties. On the Execution Date, each Party represents and warrants warranties to the other Party that: It it is duly organized, validly existing and in good standing under the laws Laws of the jurisdiction of its formation; Except for CPUC Approval formation and is qualified to transact business in the case State of BuyerCalifornia and in all jurisdictions where the ownership of its properties or its operations require such qualification, except where the failure to so qualify would not have a material adverse effect on its financial condition, its ability to own its properties or transact its business, or to carry out the transactions contemplated hereby; it has or will timely acquire all regulatory authorizations Governmental Approvals necessary for it to legally perform its obligations under this Agreement; The it has full power and authority to carry on its business as now conducted and to enter into, and carry out its obligations under this Agreement, and the execution, delivery and performance of this Agreement are within its powers, have been duly authorized by all necessary action and do not violate any of the terms and conditions in its governing documents, any contracts to which it is a party or any lawLaw, rule, regulation, order or the like applicable to it; This execution and delivery of this Agreement and performance or compliance with any provision hereof will not result in the creation or imposition of any lien upon its properties, or a breach of, or constitute a default under, or give to any other Persons any rights of termination, amendment, acceleration or cancellation of any agreement to which it is a party or by which any of its respective properties is bound or affected; this Agreement and each other document executed and delivered in accordance with this Agreement constitutes its legally valid and binding obligation, obligation enforceable against it in accordance with its terms, subject to any Equitable Defenses; It it is not Bankrupt and there are no proceedings pending or being contemplated by it or, to its knowledge, threatened against it which would result in it being or become becoming Bankrupt, other than, in the case of CPE, the Bankruptcy Cases; There there is not pending or, to its knowledge, threatened against it, it or any of its Affiliates any legal proceedings that could materially adversely affect its ability to perform its obligations under this Agreement; It no Early Termination Event has occurred and is continuing, and no such event or circumstance would occur as a result of its entering into or performing its obligations under this Agreement; it is a “forward contract merchant” within the meaning of the United States Bankruptcy Code (i) as in effect as of the Execution Date of this Agreement); it has entered into this Agreement in connection with the conduct of its business and it has the capacity or the ability to provide Showing Quantity on the terms and conditions of this Agreement; and it is acting for its own account, (ii) has made its own independent decision to enter into this Agreement and as to whether this Agreement is appropriate or proper for it based upon its own judgment, (iii) is not relying upon the advice or recommendations of the other Party CPE in so doing, and (iv) is capable of assessing the merits of and understanding, and understands and accepts, the terms, conditions, conditions and risks of this Agreement. Representations and Warranties of Provider . Provider represents and warrants to CPE throughout the Shown Term that: all of the Capacity Attributes comprising the Showing Quantity shall be from the Project exclusively; no portion of the Showing Quantity for any day of any Showing Year and It any Showing Month of the Shown Term has entered into been committed by Provider to any third party in order to satisfy any Compliance Obligations or analogous obligations in any CAISO or non-CAISO markets; the Project is connected to the CAISO Grid, is within the CAISO Control Area, and is under the control of CAISO; each Project’s Scheduling Coordinator, owner and operator is obligated to comply with applicable Law, including the CAISO Tariff, relating to any of the Capacity Attributes comprising the Showing Quantity and the Project, including the operation of the Project; the aggregation of all amounts of Capacity Attributes that Provider has provided for the Project under this Agreement for each day included in connection the Shown Term does not exceed the amount of the Project’s Net Qualifying Capacity (NQC) for that Project; the Project is listed on the CAISO NQC List and is located in the Local Capacity Area listed in Appendix B, as identified in the CAISO Final Local Capacity Technical Study for the Shown Term; [the Project and its owner and operator have all Governmental Approvals necessary for the Project to operate, generate and deliver Showing Quantity and for Project Owner and operator to legally perform its obligations under the Provider Supply Agreement; there is not pending or, to its knowledge, threatened against it, the Project Owner or operator or any of their respective Affiliates any legal proceedings that could materially adversely affect its ability to perform its obligations under the Provider Supply Agreement; Provider Supply Agreement is in full force and effect; neither Provider nor the Project Owner is in default under the Provider Supply Agreement; and]6 as of the date of the relevant Compliance Showing, Provider represents and warrants to CPE that Provider owns or has the exclusive right to all of the Capacity Attributes comprising the Showing Quantity from the Project. INDEMNIFICATION AND INSURANCE Indemnity by Provider . Provider shall release, defend, indemnify and hold harmless CPE, its directors, officers, agents, attorneys, representatives and Affiliates (“CPE Group”) against and from any Indemnifiable Losses, which arise out of or relate to or are in any way connected with (i) Provider’s provision of the Showing Quantity or performance, or failure to perform, any of the Showing Commitment Actions, (ii) the ownership, development, construction, operation and/or maintenance of the Project; (iii) Third Party Claims arising from Provider’s actions or inactions, including Provider’s breach of this Agreement or other agreements related to the development, construction, ownership, operation and/or maintenance of the Project; (iv) any environmental matters associated with the conduct Project, including the disposal and transportation of its business Hazardous Substances by or on behalf of Provider or at Provider’s direction or agreement; (v) Third Party Claims arising under any agreement between Provider and it has the capability owner or ability to make available or take delivery ofoperator of the Project, as applicable, or their respective Affiliates; or (vi) Third Claims resulting from any violation of any applicable Law, or requirements of Participating Transmission Owner, Utility Distribution Company, CAISO, NERC, WECC or Reliability Organization by Provider, the Product under this Agreement owner or operator of the Project, as applicable, or their respective Affiliates; in accordance each case including any loss, claim, action or suit, for or on account of injury to, bodily or otherwise, or death of, persons, or for damage to or destruction or economic loss of property belonging to CPE, Provider, the owner or operator of the Project, as applicable, or their respective Affiliates, or others, excepting only such Indemnifiable Losses, to the extent solely caused by the willful misconduct or gross negligence of a member of CPE Group. Provider shall indemnify, defend and hold CPE Group harmless from and against all liabilities, damages, claims, losses, costs or expenses (including, without limitation, attorneys’ fees) incurred by or brought against CPE in connection with the terms Environmental Costs. No Indemnity by CPE . CPE does not indemnify Provider. Notice of this AgreementClaim .

Representations and Warranties of Both Parties. On the Execution Date, each Each Party represents and warrants to the other Party thatthat as of the Effective Date: It it is duly organized, validly existing and in good standing under the laws Laws of the jurisdiction of its formationformation and is qualified to transact business in the State of California and in all jurisdictions where the ownership of its properties or its operations require such qualification, except where the failure to so qualify would not have a material adverse effect on its financial condition, its ability to own its properties or transact its business, or to carry out the transactions contemplated hereby; Except except for receipt of CPUC Approval Approval, in the case of Buyer, and the Governmental Approvals necessary to install, operate and maintain the Project, in the case of Seller, it has or will timely acquire all regulatory authorizations Governmental Approvals necessary for it to legally perform its obligations under this Agreement; The it has full power and authority to carry on its business as now conducted and to enter into, and carry out its obligations under this Agreement, and the execution, delivery and performance of this Agreement are within its powers, have been duly authorized by all necessary action and do not violate any of the terms and conditions in its governing documents, any contracts to which it is a party or any lawLaw, rule, regulation, order or the like applicable to it; This execution and delivery of this Agreement and performance or compliance with any provision hereof will not result in the creation or imposition of any lien upon its properties, or a breach of, or constitute a default under, or give to any other Persons any rights of termination, amendment, acceleration or cancellation of any agreement to which it is a party or by which any of its respective properties is bound or affected; this Agreement and each other document executed and delivered in accordance with this Agreement constitutes its legally valid and binding obligation, obligation enforceable against it in accordance with its terms, subject to any Equitable Defenses; It it is not Bankrupt and there are no proceedings pending or being contemplated by it or, to its knowledge, threatened against it which would result in it being or become becoming Bankrupt; There there is not pending or, to its knowledge, threatened against it, it or any of its Affiliates any legal proceedings that could materially adversely affect its ability to perform its obligations under this Agreement; It no Event of Default with respect to it has occurred and is continuing and no such event or circumstance would occur as a result of its entering into or performing its obligations under this Agreement; it is a “forward contract merchant” within the meaning of the United States Bankruptcy Code (i) as in effect as of the Effective Date of this Agreement); it has entered into this Agreement in connection with the conduct of its business and it has the capacity or the ability to make or take delivery of Distribution Services as provided in this Agreement; and it is acting for its own account, (ii) has made its own independent decision to enter into this Agreement and as to whether this Agreement is appropriate or proper for it based upon its own judgment, (iii) is not relying upon the advice or recommendations of the other Party in so doing, and (iv) is capable of assessing the merits of and understanding, and understands and accepts, the terms, conditions, conditions and risks of this Agreement; and It has entered into this Agreement in connection with the conduct of its business and it has the capability or ability to make available or take delivery of, as applicable, the Product under this Agreement in accordance with the terms of this Agreement.

Representations and Warranties of Both Parties. On the Execution Date, each Party represents and warrants warranties to the other Party that: It it is duly organized, validly existing and in good standing under the laws Laws of the jurisdiction of its formation; Except for CPUC Approval formation and is qualified to transact business in the case State of BuyerCalifornia and in all jurisdictions where the ownership of its properties or its operations require such qualification, except where the failure to so qualify would not have a material adverse effect on its financial condition, its ability to own its properties or transact its business, or to carry out the transactions contemplated hereby; it has or will timely acquire all regulatory authorizations Governmental Approvals necessary for it to legally perform its obligations under this Agreement; The it has full power and authority to carry on its business as now conducted and to enter into, and carry out its obligations under this Agreement, and the execution, delivery and performance of this Agreement are within its powers, have been duly authorized by all necessary action and do not violate any of the terms and conditions in its governing documents, any contracts to which it is a party or any lawLaw, rule, regulation, order or the like applicable to it; This execution and delivery of this Agreement and performance or compliance with any provision hereof will not result in the creation or imposition of any lien upon its properties, or a breach of, or constitute a default under, or give to any other Persons any rights of termination, amendment, acceleration or cancellation of any agreement to which it is a party or by which any of its respective properties is bound or affected; this Agreement and each other document executed and delivered in accordance with this Agreement constitutes its legally valid and binding obligation, obligation enforceable against it in accordance with its terms, subject to any Equitable Defenses; It it is not Bankrupt and there are no proceedings pending or being contemplated by it or, to its knowledge, threatened against it which would result in it being or become becoming Bankrupt, other than, in the case of CPE, the Bankruptcy Cases; There there is not pending or, to its knowledge, threatened against it, it or any of its Affiliates any legal proceedings that could materially adversely affect its ability to perform its obligations under this Agreement; It no Early Termination Event has occurred and is continuing, and no such event or circumstance would occur as a result of its entering into or performing its obligations under this Agreement; it is a “forward contract merchant” within the meaning of the United States Bankruptcy Code (i) as in effect as of the Execution Date of this Agreement); it has entered into this Agreement in connection with the conduct of its business and it has the capacity or the ability to provide Showing Quantity on the terms and conditions of this Agreement; and it is acting for its own account, (ii) has made its own independent decision to enter into this Agreement and as to whether this Agreement is appropriate or proper for it based upon its own judgment, (iii) is not relying upon the advice or recommendations of the other Party CPE in so doing, and (iv) is capable of assessing the merits of and understanding, and understands and accepts, the terms, conditions, conditions and risks of this Agreement. Representations and Warranties of Provider . Provider represents and warrants to CPE throughout the Shown Term that: all of the Capacity Attributes comprising the Showing Quantity shall be from the Project exclusively; no portion of the Showing Quantity for any day of any Showing Year and It any Showing Month of the Shown Term has entered into this Agreement been committed by Provider to any third party in connection order to satisfy any Compliance Obligations or analogous obligations in any CAISO or non-CAISO markets; the Project is connected to the CAISO Grid, is within the CAISO Control Area, and is under the control of CAISO; each Project’s Scheduling Coordinator, owner and operator is obligated to comply with applicable Law, including the conduct CAISO Tariff, relating to any of its business the Capacity Attributes comprising the Showing Quantity and it the Project, including the operation of the Project; the aggregation of all amounts of Capacity Attributes that Provider has provided for the capability or ability to make available or take delivery of, as applicable, the Product Project under this Agreement for each day included in accordance the Shown Term does not exceed the amount of the Project’s Net Qualifying Capacity (NQC) for that Project; the Project is listed on the CAISO NQC List and is located in the Local Capacity Area listed in Appendix B, as identified in the CAISO Final Local Capacity Technical Study for the Shown Term; [the Project and its owner and operator have all Governmental Approvals necessary for the Project to operate, generate and deliver Showing Quantity and for Project Owner and operator to legally perform its obligations under the Provider Supply Agreement; there is not pending or, to its knowledge, threatened against it, the Project Owner or operator or any of their respective Affiliates any legal proceedings that could materially adversely affect its ability to perform its obligations under the Provider Supply Agreement; Provider Supply Agreement is in full force and effect; neither Provider nor the Project Owner is in default under the Provider Supply Agreement; and]6 as of the date of the relevant Compliance Showing, Provider represents and warrants to CPE that Provider owns or has the exclusive right to all of the Capacity Attributes comprising the Showing Quantity from the Project. INDEMNIFICATION and INSURANCE Indemnity by Provider . Provider shall release, defend, indemnify and hold harmless CPE, against and from any Indemnifiable Losses, which arise out of or relate to or are in any way connected with Provider’s provision of the terms Showing Quantity or performance, or failure to perform, any of this Agreementthe Showing Commitment Actions. No Indemnity by CPE . CPE does not indemnify Provider. Notice of Claim .

Representations and Warranties of Both Parties. On As of the Execution Effective Date and the Approval Date, each Party represents and warrants to the other Party that: It is duly organized, validly existing and in good standing under the laws of the jurisdiction of its formation; Except for CPUC Approval as provided in the case of BuyerSection 2.02 and Article Five, it has or will timely acquire all regulatory authorizations necessary for it to legally perform its obligations under this Agreement; The execution, delivery and performance of this Agreement are within its powerspower, have been duly authorized by all necessary action (other than regulatory approval as set forth in Section 2.02) and do not violate any of the terms and conditions in its governing documents, any contracts to which it is a party or any law, rule, regulation, order or the like Applicable Laws applicable to it; This Agreement constitutes its legally valid and binding obligation, obligation enforceable against it in accordance with its terms, subject to any Equitable Defenses; It is not Bankrupt and there are no proceedings pending or being contemplated by it or, to its knowledge, threatened against it which would could result in it being or become becoming Bankrupt; There is not pending or, to its knowledge, threatened against it, it any legal proceedings that could materially adversely affect its ability to perform its obligations under this Agreement; No Event of Default with respect to it has occurred and is continuing and no such Event of Default would occur as a result of its entering into or performing its obligations under this Agreement; It (i) is acting for its own account, (ii) has made its own independent decision to enter into this Agreement and as to whether this Agreement is appropriate or proper for it based upon its own judgment, (iii) is not relying upon the advice or recommendations of the other Party in so doing, and (iv) is capable of assessing the merits of and understanding, and understands and accepts, the terms, conditions, and risks of this Agreement; It is a “forward contract merchant” within the meaning of the United States Bankruptcy Code; and It has entered into this Agreement in connection with the conduct of its business and it has the capability capacity or ability to make available or take delivery ofof all Product, as applicable, under this Agreement. Representations and Warranties of Seller. Seller represents and warrants to SCE that: As of the Approval Date, Seller has Site Control. As of the Effective Date and the Approval Date, to the best of Seller’s knowledge, each specification and description of each Storage Unit and the Project and the Product under this Agreement in accordance with Article One (and related Appendices) is true and correct. As of the terms of this AgreementInitial Delivery Date, the Project is a New Resource.

Representations and Warranties of Both Parties. On As of the Execution Effective Date, each Party represents and warrants to the other Party that: It is duly organized, validly existing and in good standing under the laws of the jurisdiction of its formation; Except for CPUC Approval in the case of BuyerSCE, it has or will timely acquire all regulatory authorizations necessary for it to legally perform its obligations under this Agreement; The execution, delivery and performance of this Agreement are within its powers, have been duly authorized by all necessary action and do not violate any of the terms and conditions in its governing documents, any contracts to which it is a party or any law, rule, regulation, order or the like applicable to itApplicable Laws; This Agreement constitutes its legally valid and binding obligation, enforceable against it in accordance with its terms, subject to any Equitable Defenses; It is not Bankrupt and there are no not proceedings pending or being contemplated by it or, to its knowledge, threatened against it which would result in it being or become Bankrupt; There is not pending orpending, or to its knowledge, threatened against itit or, in the case of Seller, any of its Affiliates, any legal proceedings that could materially adversely affect its ability to perform under this Agreement; No Event of Default with respect to it has occurred and is continuing and no such event or circumstance would occur as a result of its entering into or performing its obligations under this Agreement; It (i) is acting for its own account, (ii) has made account and its own independent decision to enter into this Agreement and as to whether this Agreement is appropriate or proper for it based upon its own judgment, (iii) is not relying in reliance upon the advice or recommendations of the other Party in so doing, and (iv) it is capable of assessing the merits of and understanding, and understands and accepts, accepts the terms, conditions, conditions and risks of this Agreement; and It has entered into this Agreement in connection with the conduct of its business and it has the capability or ability to make available or take delivery of, as applicable, the Product under this Agreement in accordance with the terms of this Agreement; and It has not relied upon any promises, representations, statements or information of any kind whatsoever that are not contained in this Agreement in deciding to enter into this Agreement.

Representations and Warranties of Both Parties. On As of the Execution Effective Date and the Approval Date, each Party represents and warrants to the other Party that: It is duly organized, validly existing and in good standing under the laws of the jurisdiction of its formation; Except for CPUC Approval as provided in the case of BuyerSection 2.02 and Article Five, it has or will timely acquire all regulatory authorizations necessary for it to legally perform its obligations under this Agreement; The execution, delivery and performance of this Agreement are within its powerspower, have been duly authorized by all necessary action (other than regulatory approval as set forth in Section 2.02) and do not violate any of the terms and conditions in its governing documents, any contracts to which it is a party or any law, rule, regulation, order or the like Applicable Laws applicable to it; This Agreement constitutes its legally valid and binding obligation, obligation enforceable against it in accordance with its terms, subject to any Equitable Defenses; It is not Bankrupt and there are no not proceedings pending or being contemplated by it or, to its knowledge, threatened against it which would could result in it being or become becoming Bankrupt; There is not pending or, to its knowledge, threatened against it, it any legal proceedings that could materially adversely affect its ability to perform its obligations under this Agreement; No Event of Default with respect to it has occurred and is continuing and no such Event of Default would occur as a result of its entering into or performing its obligations under this Agreement; It (i) is acting for its own account, (ii) has made its own independent decision to enter into this Agreement and as to whether this Agreement is appropriate or proper for it based upon its own judgment, (iii) is not relying upon the advice or recommendations of the other Party in so doing, and (iv) is capable of assessing the merits of and understanding, and understands and accepts, the terms, conditions, and risks of this Agreement; It is a “forward contract merchant” within the meaning of the United States Bankruptcy Code; and It has entered into this Agreement in connection with the conduct of its business and it has the capability capacity or ability to make available or take delivery ofof all Product, as applicable, the Product under this Agreement in accordance with the terms of this Agreement.

Representations and Warranties of Both Parties. On the Execution Date, each Party represents and warrants to the other Party that: It is duly organized, validly existing and in good standing under the laws of the jurisdiction of its formation; Except for CPUC Approval in the case of BuyerSCE, it has or will timely acquire all regulatory authorizations necessary for it to legally perform its obligations under this Agreement; The execution, delivery and performance of this Agreement are within its powers, have been duly authorized by all necessary action and do not violate any of the terms and conditions in its governing documents, any contracts to which it is a party or any law, rule, regulation, order or the like applicable to it; This Agreement constitutes its legally valid and binding obligation, enforceable against it in accordance with its terms; It is not Bankrupt and there are no not proceedings pending or being contemplated by it or, to its knowledge, threatened against it which would result in it being or become Bankrupt; There is not pending or, to its knowledge, threatened against it, any legal proceedings that could materially adversely affect its ability to perform its obligations under this Agreement; It (i) is acting for its own account, (ii) has made its own independent decision to enter into this Agreement and as to whether this Agreement is appropriate or proper for it based upon its own judgment, (iii) is not relying upon the advice or recommendations of the other Party in so doing, and (iv) is capable of assessing the merits of and understanding, and understands and accepts, the terms, conditions, and risks of this Agreement; and It has entered into this Agreement in connection with the conduct of its business and it has the capability or ability to make available or take delivery of, as applicable, the Product DR Resource under this Agreement in accordance with the terms of this Agreement.

Representations and Warranties of Both Parties. On the Execution Date, each Each Party represents and warrants to the other Party thatthat as of the Effective Date: It it is duly organized, validly existing and in good standing under the laws Laws of the jurisdiction of its formationformation and is qualified to transact business in the State of California and in all jurisdictions where the ownership of its properties or its operations require such qualification, except where the failure to so qualify would not have a material adverse effect on its financial condition, its ability to own its properties or transact its business, or to carry out the transactions contemplated hereby; Except for CPUC Approval in the case of BuyerSeller, it has or will timely acquire all regulatory authorizations Governmental Approvals necessary for it to legally perform its obligations under this Agreement; The it has full power and authority to carry on its business as now conducted and to enter into, and carry out its obligations under this Agreement, and the execution, delivery and performance of this Agreement are within its powers, have been duly authorized by all necessary action and do not violate any of the terms and conditions in its governing documents, any contracts to which it is a party or any lawLaw, rule, regulation, order or the like applicable to it; This execution and delivery of this Agreement and performance or compliance with any provision hereof will not result in the creation or imposition of any lien upon its properties, or a breach of, or constitute a default under, or give to any other Persons any rights of termination, amendment, acceleration or cancellation of any agreement to which it is a party or by which any of its respective properties is bound or affected; this Agreement and each other document executed and delivered in accordance with this Agreement constitutes its legally valid and binding obligation, obligation enforceable against it in accordance with its terms, subject to any Equitable Defenses; It it is not Bankrupt and there are no proceedings pending or being contemplated by it or, to its knowledge, threatened against it which would result in it being or become becoming Bankrupt; There there is not pending or, to its knowledge, threatened against it, it or any of its Affiliates any legal proceedings that could materially adversely affect its ability to perform its obligations under this Agreement; It no Event of Default with respect to it has occurred and is continuing and no such event or circumstance would occur as a result of its entering into or performing its obligations under this Agreement; it is a “forward contract merchant” within the meaning of the United States Bankruptcy Code (i) as in effect as of the Effective Date of this Agreement); it has entered into this Agreement in connection with the conduct of its business and it has the capacity or the ability to make or take delivery of Distribution Services as provided in this Agreement; and it is acting for its own account, (ii) has made its own independent decision to enter into this Agreement and as to whether this Agreement is appropriate or proper for it based upon its own judgment, (iii) is not relying upon the advice or recommendations of the other Party in so doing, and (iv) is capable of assessing the merits of and understanding, and understands and accepts, the terms, conditions, conditions and risks of this Agreement; and It has entered into this Agreement in connection with the conduct of its business and it has the capability or ability to make available or take delivery of, as applicable, the Product under this Agreement in accordance with the terms of this Agreement.

Representations and Warranties of Both Parties. On the Execution Date, each Party represents and warrants to the other Party that: It is duly organized, validly existing and in good standing under the laws of the jurisdiction of its formation; Except for CPUC Approval in the case of BuyerSCE, it has or will timely acquire all regulatory authorizations necessary for it to legally perform its obligations under this Agreement; The execution, delivery and performance of this Agreement are within its powers, have been duly authorized by all necessary action and do not violate any of the terms and conditions in its governing documents, any contracts to which it is a party or any law, rule, regulation, order or the like applicable to it; This Agreement constitutes its legally valid and binding obligation, enforceable against it in accordance with its terms; It is not Bankrupt and there are no not proceedings pending or being contemplated by it or, to its knowledge, threatened against it which would result in it being or become Bankrupt; There is not pending or, to its knowledge, threatened against it, any legal proceedings that could materially adversely affect its ability to perform its obligations under this Agreement; and It (i) is acting for its own account, (ii) has made its own independent decision to enter into this Agreement and as to whether this Agreement is appropriate or proper for it based upon its own judgment, (iii) is not relying upon the advice or recommendations of the other Party in so doing, and (iv) is capable of assessing the merits of and understanding, and understands and accepts, the terms, conditions, and risks of this Agreement. Additional Seller Representations, Warranties and Covenants Seller hereby covenants to SCE that: the Project will meet the eligibility requirements set forth in Section 1.4; and It has entered into Seller will not sell, assign, attribute, claim, or otherwise transfer the Expected Summer On-Peak Energy Savings, Expected Summer Off-Peak Energy Savings, Expected Winter On-Peak Energy Savings or the Expected Capacity Savings or any other energy or capacity savings, reductions or efficiency attributable to the Project, or any Measure of the Project, to any third party (except for any energy or capacity savings or reductions received by the End-Use Customer as a result of the installation of the Project at the End-Use Customer’s Site) other than to SCE pursuant to this Agreement Agreement. As of the Effective Date, Seller hereby represents and warrants that the Pre-Installation Description is correct and accurate. [SCE Note: if Seller is unable to provide information on the End-Use Customers as of the Effective Date, modify language to provide that Seller makes the representation and warranty each xxxx Xxxxxx submits the information of an End-Use Customer to be included in connection with the conduct of its business and it has the capability or ability to make available or take delivery of, as applicablePre-Installation Description] On each day on which Delivery Date Security is held by SCE under this Agreement, the Product under this Agreement in accordance with Seller hereby represents and warrants that: the terms Seller has good title to and is the sole owner of such Delivery Date Security, and the execution, delivery and performance of the covenants and agreements of this Agreement, do not result in the creation or imposition of any lien or security interest upon any of its assets or properties, including, without limitation, the Delivery Date Security, other than the security interests and liens created under this Agreement; upon the Transfer of Delivery Date Security by the Seller to SCE, SCE shall have a valid and perfected first priority continuing security interest therein, free of any liens, claims or encumbrances, except those liens, security interests, claims or encumbrances arising by operation of law that are given priority over a perfected security interest; and it is not and will not become a party to or otherwise be bound by any agreement, other than this Agreement, which restricts in any manner the rights of any present or future holder of any of the Delivery Date Security with respect hereto.

Representations and Warranties of Both Parties. On the Execution Date, each Party represents and warrants to the other Party that: It is duly organized, validly existing and in good standing under the laws of the jurisdiction of its formation; Except for CPUC Approval in the case of BuyerSDG&E, it has or will timely acquire all regulatory authorizations necessary for it to legally perform its obligations under this Agreement; The execution, delivery and performance of this Agreement are within its powers, have been duly authorized by all necessary action and do not violate any of the terms and conditions in its governing documents, any contracts to which it is a party or any law, rule, regulation, order or the like applicable to it; This Agreement constitutes its legally valid and binding obligation, enforceable against it in accordance with its terms; It is not Bankrupt and there are no not proceedings pending or being contemplated by it or, to its knowledge, threatened against it which would result in it being or become Bankrupt; There is not pending or, to its knowledge, threatened against it, any legal proceedings that could materially adversely affect its ability to perform its obligations under this Agreement; and It (i) is acting for its own account, (ii) has made its own independent decision to enter into this Agreement and as to whether this Agreement is appropriate or proper for it based upon its own judgment, (iii) is not relying upon the advice or recommendations of the other Party in so doing, and (iv) is capable of assessing the merits of and understanding, and understands and accepts, the terms, conditions, and risks of this Agreement; and It has entered into this Agreement in connection with the conduct of its business and it has the capability or ability to make available or take delivery of, as applicable, the Product under this Agreement in accordance with the terms of this Agreement.

Representations and Warranties of Both Parties. On the Execution Date, each Party represents and warrants to the other Party that: It is duly organized, validly existing and in good standing under the laws of the jurisdiction of its formation; Except for CPUC Approval in the case of Buyer, it has or will timely acquire all regulatory authorizations necessary for it to legally perform its obligations under this Agreement; The execution, delivery and performance of this Agreement are within its powers, have been duly authorized by all necessary action and do not violate any of the terms and conditions in its governing documents, any contracts to which it is a party or any law, rule, regulation, order or the like applicable to it; This Agreement constitutes its legally valid and binding obligation, enforceable against it in accordance with its terms; It is not Bankrupt and there are no proceedings pending or being contemplated by it or, to its knowledge, threatened against it which would result in it being or become Bankrupt; provided that, this Section 7.1(e) shall not apply with respect to Buyer until the effective date of Buyer’s plan of reorganization in the Chapter 11 Cases has occurred; There is not pending or, to its knowledge, threatened against it, any legal proceedings that could materially adversely affect its ability to perform its obligations under this Agreement; provided that, this Section 7.1(f) shall not apply with respect to Buyer until the effective date of Buyer’s plan of reorganization in the Chapter 11 Cases has occurred; It (i) is acting for its own account, (ii) has made its own independent decision to enter into this Agreement and as to whether this Agreement is appropriate or proper for it based upon its own judgment, (iii) is not relying upon the advice or recommendations of the other Party in so doing, and (iv) is capable of assessing the merits of and understanding, and understands and accepts, the terms, conditions, and risks of this Agreement; and It has entered into this Agreement in connection with the conduct of its business and it has the capability or ability to make available or take delivery of, as applicable, the Product under this Agreement in accordance with the terms of this Agreement.

Representations and Warranties of Both Parties. On the Execution Date, each Party represents and warrants to the other Party that: It is duly organized, validly existing and in good standing under the laws of the jurisdiction of its formation; Except for CPUC Approval in the case of BuyerSDG&E, it has or will timely acquire all regulatory authorizations necessary for it to legally perform its obligations under this Agreement; The execution, delivery and performance of this Agreement are within its powers, have been duly authorized by all necessary action and do not violate any of the terms and conditions in its governing documents, any contracts to which it is a party or any lawLaw, rule, regulation, order or the like applicable to it; This Agreement constitutes its legally valid and binding obligation, enforceable against it in accordance with its terms; It is not Bankrupt and there are no not proceedings pending or being contemplated by it or, to its knowledge, threatened against it which would result in it being or become Bankrupt; There Except for proceedings related to obtaining CPUC Approval in the case of SDG&E, there is not pending or, to its knowledge, threatened against it, any legal proceedings that could materially adversely affect its ability to perform its obligations under this Agreement; and It (i) is acting for its own account, (ii) has made its own independent decision to enter into this Agreement and as to whether this Agreement is appropriate or proper for it based upon its own judgment, (iii) is not relying upon the advice or recommendations of the other Party in so doing, and (iv) is capable of assessing the merits of and understanding, and understands and accepts, the terms, conditions, and risks of this Agreement; and It has entered into this Agreement in connection with the conduct of its business and it has the capability or ability to make available or take delivery of, as applicable, the Product under this Agreement in accordance with the terms of this Agreement.

Representations and Warranties of Both Parties. On As of the Execution Effective Date and the Approval Date, each Party represents and warrants to the other Party that: It is duly organized, validly existing and in good standing under the laws of the jurisdiction of its formation; Except for CPUC Approval as provided in the case of BuyerSection 2.02 and Article Five, it has or will timely acquire all regulatory authorizations necessary for it to legally perform its obligations under this Agreement; The execution, delivery and performance of this Agreement are within its powerspower, have been duly authorized by all necessary action (other than regulatory approval as set forth in Section 2.02 and Article Five) and do not violate any of the terms and conditions in its governing documents, any contracts to which it is a party or any law, rule, regulation, order or the like Applicable Laws applicable to it; This Agreement constitutes its legally valid and binding obligation, obligation enforceable against it in accordance with its terms, subject to any Equitable Defenses; It is not Bankrupt and there are no not proceedings pending or being contemplated by it or, to its knowledge, threatened against it which would could result in it being or become becoming Bankrupt; There is not pending or, to its knowledge, threatened against it, it any legal proceedings that could materially adversely affect its ability to perform its obligations under this Agreement; No Event of Default with respect to it has occurred and is continuing and no such Event of Default would occur as a result of its entering into or performing its obligations under this Agreement; It (i) is acting for its own account, (ii) has made its own independent decision to enter into this Agreement and as to whether this Agreement is appropriate or proper for it based upon its own judgment, (iii) is not relying upon the advice or recommendations of the other Party in so doing, and (iv) is capable of assessing the merits of and understanding, and understands and accepts, the terms, conditions, and risks of this Agreement; It is a “forward contract merchant” within the meaning of the United States Bankruptcy Code; and It has entered into this Agreement in connection with the conduct of its business and it has the capability capacity or ability to make available or take delivery ofof all Product, as applicable, the Product under this Agreement in accordance with the terms of this Agreement.

Representations and Warranties of Both Parties. On As of the Execution Effective Date, each Party hereby represents and warrants to the other Party that: It it is duly organized, validly existing and in good standing under the laws of the jurisdiction of its formation; Except for CPUC Approval in the case of Buyer, it has or will timely acquire all regulatory authorizations necessary for it to legally perform its obligations under this Agreement; The it has the full right, power and authority to enter into this Agreement, to grant the rights granted hereunder, and to perform its obligations hereunder; the execution, delivery and performance of this Agreement are is within its powers, have been duly authorized by all necessary action and do not violate any of the terms and conditions in its governing documents, any contracts to which it is a party or any law, rule, regulation, order or the like applicable to it; This this Agreement and each other document executed and delivered in accordance with this Agreement constitutes its legally valid and binding obligation, obligation enforceable against it in accordance with its terms; It no Event of Default (as defined in ARTICLE 10 below) with respect to it has occurred and is not Bankrupt continuing and there are no proceedings pending such event or being contemplated by it or, to circumstance would occur as a result of its knowledge, threatened against it which would result in it being entering into or become Bankrupt; There is not pending or, to its knowledge, threatened against it, any legal proceedings that could materially adversely affect its ability to perform performing its obligations under this Agreement; It (i) it is acting for its own account, (ii) has made its own independent decision to enter into this Agreement, has had its own legal counsel review the Agreement or had the opportunity for its own legal counsel to review the Agreement and elected to not have such a review, and as to whether this Agreement is appropriate or proper for it based upon its own judgment, (iii) is not relying upon the advice or recommendations of the other Party in so doing, and (iv) is capable of assessing the merits of and understanding, and understands and accepts, the terms, conditions, conditions and risks of this Agreement; and It it is a "forward contract merchant" within the meaning of the United States Bankruptcy Code; it has entered into this Agreement in connection with the conduct of its business and it has the capability capacity or ability to make available or take delivery of, as applicable, of all Products referred to in the Product under this Agreement in accordance to which it is a Party; and with the terms of respect to this Agreement, it is a producer, processor, commercial user or merchant handling the Product, and it is entering into such Agreement for purposes related to its business as such.