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• as there is an insufficient supply of water to permit diversion of :eater under the <br />Water Rights or any portion thereof, NCE shall have no obligation to provide <br />Picketwire with water in excess of the actual physical supply available to the LVater <br />Rights. <br />10. Representations of NCE. NCE represents and warrants that North <br />Central Energy, Inc. and Basin Resources, Inc., or either of them, has good title to the <br />Water Rights and that the Water Rights are free and clear of all encumbrances and <br />liabilities which might interfere with the rights of Picketwire granted herein, except <br />that with repsect to the 83CW131 Water, NCE has good title to only 1.60 c.f.s. of the <br />5.00 c.f.s. decreed to the Valerio and Torres Ditch and 3.00 c.f.s. of the 4.00 c.f.s. <br />decreed to the Maxwell No. 11 Ditch, and has no interest in the remainder of the <br />water rights which are the subject of Case No. 83CW131, Water Division No. 2, and <br />that the 83CW131 Water is subject to the claims pending in Case No. 92CV127, Las <br />Animas County District Court. NCE will indemnify, defend and hold harmless <br />Picketwire against any claims by third parties claiming an interest in all or a portion <br />of the Water Rights. In the event NCE is determined to own less than one hundred <br />percent (100%) interest in the Water Rights, the rights granted Picketwire herein <br />shall at Picketwire's sole option, continue to be valid as to that portion owned or <br />controlled by NCE. <br />11. R~resentations of Picketwire. Picketwire warrants and represents that <br />all necessary actions have been taken authorizing Picketwire to enter into this <br />Agreement, that entering into this Agreement will not cause Picketwire to default <br />upon or breach any other contracts, agreements, or obligations to which it is a party, <br />and that the person signing this document is fully authorized to do so. <br />12. Additional Obligations of Picketwire. Picketwire shall afford NCE and <br />its representatives with reasonable access during normal business hours, upon <br />reasonable notice and in such manner as will not unreasonably interfere with the <br />operation of the Prep Plant, to the books and records of Picketwire to enable NCE to <br />make a complete determination of amounts due under this Agreement. NCE will <br />conduct this examination in cooperation with the officers of Picketwire and in such <br />a manner as to minimize any disruption or interference in the normal business or <br />operations of Picketwire. NCE agrees to indemnify, defend and hold harmless <br />Picketwire from and against all loss, cost and expense (including attorneys' fees) <br />incurred, suffered by, or claimed against Picketwire by reason of any actual damage <br />to the property or injury to persons caused by NCE and/or its agents, employees or <br />contractors in exercising its rights under this Section 9. <br />13. Assignment and Continuing Obli atr~ ions. This Agreement may not be <br />assigned by Pickettivire without the written approval of NCE, which approval shall <br />not be unreasonably «ithheld. It is further mutually understood and agreed that <br />the rights, duties, and obligations created hereby shall extend to and be binding upon <br />• <br />4 <br />