Common use of Exclusivity of Representations and Warranties Clause in Contracts

Exclusivity of Representations and Warranties. Purchaser acknowledges that (a) it and its representatives have been permitted access to the books and records, facilities, equipment, contracts and other properties and assets of the Business, and that it and its representatives have had an opportunity to meet with officers and employees of the Business and the Companies to discuss the Business; provided that nothing in this clause (a) shall be deemed to modify or limit in any respect the Purchaser Indemnified Persons’ right to indemnification under this Agreement and (b) except for the representations and warranties expressly set forth in Article III or in any Transaction Document (and, in the case of clause (iii) below, the indemnification rights of the Purchaser Indemnified Persons in Article X in respect of such representations and warranties), (i) Purchaser has not relied on any representation or warranty from Seller or any other Person in determining to enter into this Agreement, (ii) neither Seller nor any other Person has made any representation or warranty, express or implied, as to the Business (or the value or future thereof), the Transferred Assets, the Assumed Liabilities, the Companies or the accuracy or completeness of any information regarding any of the foregoing that Seller or any other Person furnished or made available to Purchaser and its representatives (including any projections, estimates, budgets, offering memoranda, management presentations or due diligence materials) and (iii) except for intentional fraud, none of Seller, its Subsidiaries or any other Person shall have or be subject to any liability to Purchaser or any other Person under this Agreement resulting from the distribution to Purchaser, or Purchaser’s use, of any such information. Without limiting the generality of the foregoing, except as expressly set forth in the representations and warranties in Article III and in the Transaction Documents, THERE ARE NO EXPRESS OR IMPLIED WARRANTIES, INCLUDING WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.

Exclusivity of Representations and Warranties. Purchaser acknowledges that (a) it and its representatives have been permitted such access to the books and records, facilities, equipment, contracts and other properties and assets of the BusinessBusiness and ICX that Purchaser and its representatives have determined is appropriate, and that it and its representatives have had an opportunity to meet with officers and employees of the Business and the Companies ICX to discuss the Business; provided that nothing in this clause (a) shall be deemed to modify or limit in any respect the Purchaser Indemnified Persons’ right to indemnification under this Agreement Business and (b) except for the representations and warranties expressly set forth in Article III or in any Transaction Document Ancillary Agreement (and, in the case of clause (iii) below, the indemnification rights of the Purchaser Indemnified Persons in Article X in respect of such representations and warranties), (i) Purchaser has not relied on any representation or warranty from Seller or any other Person in determining to enter into this Agreement, (ii) neither Seller nor any other Person has made any representation or warranty, express or implied, as to the Business (or the value or future thereof), the Transferred Assets, the Assumed Liabilities, the Companies ICX or the accuracy or completeness of any information regarding any of the foregoing that Seller or any other Person furnished or made available to Purchaser and its representatives (including any projections, estimates, budgets, offering memoranda, management presentations or due diligence materials) and (iii) except for intentional fraud, none of Seller, its Subsidiaries or any other Person shall have or be subject to any liability to Purchaser or any other Person under this Agreement resulting from the distribution to Purchaser, or Purchaser’s use, of any such information. Without limiting the generality of the foregoing, except as expressly set forth in the representations and warranties in Article III and in the Transaction DocumentsAncillary Agreements (if any), THERE ARE NO EXPRESS OR IMPLIED WARRANTIES, INCLUDING WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.

Exclusivity of Representations and Warranties. Purchaser acknowledges that (a) it The representations and its representatives have been permitted access warranties made by Parent and the Company in this Article IV are the exclusive representations and warranties made by Parent and the Company with respect to Parent, the books and recordsCompany, facilitiesany of their respective Affiliates, equipment, contracts and other properties and assets of the Business, and that it and its representatives have had an opportunity to meet with officers and employees of the Business Purchased Assets and the Companies Assumed Liabilities. Parent and the Company hereby disclaim any other express or implied representations or warranties with respect to discuss Parent, the Company, any of their respective Affiliates, the Business; provided that nothing in this clause (a) shall be deemed to modify , the Purchased Assets or limit in any respect the Purchaser Indemnified Persons’ right to indemnification under this Agreement and (b) except Assumed Liabilities. Except for the representations and warranties expressly set forth made by Parent and the Company in this Article III IV, neither Parent or in the Company, nor any Transaction Document (andother Person, in the case of clause (iii) below, the indemnification rights of the Purchaser Indemnified Persons in Article X in respect of such representations and warranties), (i) Purchaser has not relied on makes any representation or warranty from Seller with respect to (a) the physical condition or any other Person usefulness for a particular purpose of the real or tangible personal property included in determining to enter into this Agreementthe Purchased Assets, (iib) neither Seller nor any other Person has made any representation the use of the Purchased Assets or warranty, express or implied, as to the operation of the Business by Purchaser or its Affiliates after the Closing, (c) the probable success or profitability of the value Business after the Closing or future thereof)(d) any documentation, the Transferred Assetsforecasts, the Assumed Liabilitiesbudgets, the Companies projections, estimates or other information (including the accuracy or completeness of any information regarding any of, or the reasonableness of the foregoing that Seller or any other Person furnished or made available to Purchaser and its representatives (including any projectionsassumptions underlying, estimatessuch documentation, forecasts, budgets, offering memorandaprojections, management presentations estimates or due diligence materialsother information) and (iii) except for intentional fraud, none of Seller, its Subsidiaries provided by Parent or the Company or any other Person shall have Affiliate or be subject to Representative thereof, including in any liability to Purchaser “data rooms” or any other Person under this Agreement resulting from the distribution to Purchasermanagement presentations. EXCEPT AS SET FORTH EXPRESSLY IN THIS AGREEMENT, or Purchaser’s useTHE CONDITION OF THE BUSINESS, of any such information. Without limiting the generality of the foregoingTHE PURCHASED ASSETS AND THE ASSUMED LIABILITIES SHALL BE “AS IS,” “WHERE IS” AND “WITH ALL FAULTS.” ANY DUE DILIGENCE MATERIALS MADE AVAILABLE TO PURCHASER OR ITS AFFILIATES OR THEIR RESPECTIVE REPRESENTATIVES, except as expressly set forth in the representations and warranties in Article III and in the Transaction DocumentsDO NOT, THERE ARE NO EXPRESS DIRECTLY OR IMPLIED WARRANTIESINDIRECTLY, INCLUDING AND SHALL NOT BE DEEMED TO, DIRECTLY OR INDIRECTLY, CONTAIN REPRESENTATIONS OR WARRANTIES OF MERCHANTABILITY PARENT, THE COMPANY OR FITNESS FOR A PARTICULAR PURPOSEANY OF THEIR AFFILIATES.

Exclusivity of Representations and Warranties. Purchaser acknowledges that (a) it and its representatives have been permitted access Notwithstanding the delivery or disclosure to the books and recordsSunergy Parties, facilitiesor any of their respective affiliates or Representatives, equipmentof any documentation or other information (including any financial projections or other supplemental data), contracts and except as otherwise expressly provided in this Article V (as modified by the SPAC Disclosure Schedule) or any Ancillary Agreement, neither SPAC nor OpCo, or any other properties and assets of the Businessperson makes, and that it each of SPAC and its representatives have had an opportunity to meet with officers OpCo hereby expressly disclaims and employees of the Business and the Companies to discuss the Business; provided that nothing in this clause (a) shall be deemed to modify negates, any other express or limit in any respect the Purchaser Indemnified Persons’ right to indemnification under this Agreement and (b) except for the representations and warranties expressly set forth in Article III or in any Transaction Document (and, in the case of clause (iii) below, the indemnification rights of the Purchaser Indemnified Persons in Article X in respect of such representations and warranties), (i) Purchaser has not relied on any implied representation or warranty from Seller of any kind or nature whatsoever (whether at Law or in equity) with respect to SPAC or OpCo, and any other Person in determining matter relating to enter into this Agreementany of them, (ii) neither Seller nor any other Person has made any representation or warrantyincluding their affairs, express or impliedthe condition, as to the Business (or the value or future thereof)quality of the assets, the Transferred Assetsliabilities, the Assumed Liabilitiesprospects, the Companies financial condition or results of operations, or with respect to the accuracy or completeness of any other information regarding any of the foregoing that Seller or any other Person furnished or materials made available to Purchaser and its representatives (including the Sunergy Parties, their affiliates or any projectionsof their respective Representatives by, estimatesor on behalf of, budgets, offering memoranda, management presentations SPAC or due diligence materials) and (iii) except for intentional fraud, none of SellerOpCo, its Subsidiaries management or its Representatives, or others in connection with this Agreement, the Transaction Documents, and the Transactions contemplated hereby, any such representations or warranties are expressly disclaimed, and no statement contained in any such materials or information shall be deemed a representation or warranty hereunder or otherwise or deemed to be relied upon by any Sunergy Party or any other Person shall have of their respective affiliates or be subject to any liability to Purchaser Representatives, in executing, delivering and performing this Agreement, the Transaction Documents or any other Person under this Agreement resulting from the distribution to Purchaser, Transactions contemplated hereby or Purchaser’s use, of any such informationthereby. Without limiting the generality of the foregoing, except as expressly set forth in this Agreement (as modified by the SPAC Disclosure Schedule) or in any certificate delivered by or on behalf of SPAC or OpCo pursuant to Section 8.03(c), or in any Ancillary Agreement, neither SPAC nor OpCo, and no other person on behalf of SPAC or OpCo has made or makes, any representation or warranty, whether express or implied, with respect to any projections, forecasts, estimates or budgets made available to the Sunergy Parties, their affiliates or any of their respective Representatives of future revenues, future results of operations (or any component thereof), future cash flows or future financial condition (or any component thereof) of SPAC or OpCo, whether or not included in any management presentation or in any other information made available to the Sunergy Parties, their affiliates or any of their respective Representatives, or any other person, and any such representations and or warranties in Article III and in the Transaction Documents, THERE ARE NO EXPRESS OR IMPLIED WARRANTIES, INCLUDING WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSEare expressly disclaimed.

Exclusivity of Representations and Warranties. Purchaser acknowledges (i) Notwithstanding the delivery or disclosure to Investor or any of its Affiliates or Representatives of any documentation or other information (including any financial projections or other supplemental data), except as otherwise expressly set forth in Section 9 of this Agreement, Topco expressly disclaims any representations or warranties of any kind or nature whatsoever, express or implied, including as to the condition, value, quality or prospects of its or its Subsidiaries’ businesses or assets (and that (a) it of the Company and its representatives have been permitted access Subsidiaries), and Topco specifically disclaims any representation or warranty of merchantability, usage, suitability or fitness for any particular purpose with respect to the books and records, facilities, equipment, contracts and other properties and its or its Subsidiaries’ assets (or that of the BusinessCompany or its Subsidiaries), any part thereof, the workmanship thereof, and the absence of any defects therein, whether latent or patent, it being understood that it except as otherwise expressly set forth in Section 9 of this Agreement, such subject assets are being acquired “as is, where is” on the Closing Date, and in their present condition, and Investor shall rely solely on its own examination and investigation thereof and on the representations and warranties expressly set forth in Section 9 of this Agreement. (ii) Topco, on behalf of itself and its representatives have had an opportunity to meet with officers Subsidiaries, acknowledges and employees of the Business and the Companies to discuss the Business; provided that nothing in this clause (a) shall be deemed to modify or limit in any respect the Purchaser Indemnified Persons’ right to indemnification under this Agreement and (b) agrees that, except for the representations and warranties expressly set forth in Article III Section 8: (A) neither Investor nor any other Person makes, or in any Transaction Document (andhas made, in the case of clause (iii) below, the indemnification rights of the Purchaser Indemnified Persons in Article X in respect of such representations and warranties), (i) Purchaser has not relied on any representation or warranty from Seller relating to Investor in connection with this Agreement; (B) no Person has been authorized by Investor, any of its Subsidiaries or any of its or its respective Affiliates or Representatives to make any representation or warranty relating to Investor in connection with this Agreement, and if made, such representation or warranty must not be relied upon by Topco or any of their respective Affiliates or Representatives as having been authorized by Investor or any of its Affiliates or Representatives (or any other Person Person); and (C) the representations and warranties made by Investor in determining to enter this Agreement are in lieu of and are exclusive of all other representations and warranties and Topco hereby disclaims any other or implied representations or warranties. (iii) Topco, on behalf of itself and its Subsidiaries, acknowledges and agrees that, except for the representations and warranties expressly set forth in Section 8, in Article III of the Merger Agreement, and in Section 9(g) of the Tax Indemnity Agreement, it is not acting (including, as applicable, by entering into this Agreement, Agreement or consummating the Merger) in reliance on and has not relied on: (iiA) neither Seller nor any other Person has made any representation or warranty, express or implied; (B) any estimate, as projection, prediction, data, financial information, memorandum, presentation or other materials or information provided or addressed to the Business Topco or any of its respective Affiliates or Representatives; or (or the value or future thereof), the Transferred Assets, the Assumed Liabilities, the Companies or C) the accuracy or completeness of any information regarding any of the foregoing that Seller other representation, warranty, estimate, projection, prediction, data, financial information, memorandum, presentation or any other Person furnished materials or made available to Purchaser and its representatives (including any projections, estimates, budgets, offering memoranda, management presentations or due diligence materials) and (iii) except for intentional fraud, none of Seller, its Subsidiaries or any other Person shall have or be subject to any liability to Purchaser or any other Person under this Agreement resulting from the distribution to Purchaser, or Purchaser’s use, of any such information. Without limiting the generality of the foregoing, except as expressly set forth in the representations and warranties in Article III and in the Transaction Documents, THERE ARE NO EXPRESS OR IMPLIED WARRANTIES, INCLUDING WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.

Exclusivity of Representations and Warranties. Purchaser acknowledges that (a) it and its representatives have been permitted access to the books and records, facilities, equipment, contracts and other properties and assets of the Business, and that it and its representatives have had an opportunity to meet with officers and employees of the Business and the Companies to discuss the Business; provided that nothing in this clause (a) shall be deemed to modify or limit in any respect the Purchaser Indemnified Persons’ right to indemnification under this Agreement and (b) except for the representations and warranties expressly set forth made by Seller in Article III or in any Transaction Document V, Seller does not make (and, in the case of clause (iii) below, the indemnification rights of the and neither Purchaser Indemnified Persons in Article X in respect of such representations and warranties), (i) Purchaser has not relied on any representation or warranty from Seller or any other Person in determining to enter into this Agreement, (iihas relied upon) any representations or warranties on behalf of Seller. Purchaser further agrees that neither Seller nor any other Person has made any representation or warranty, express or implied, as to the Business (or the value or future thereof), the Transferred Assets, the Assumed Liabilities, the Companies or the accuracy or completeness of any information regarding any of the foregoing that Seller or any other Person furnished or made available to Purchaser and its representatives (including any projections, estimates, budgets, offering memoranda, management presentations or due diligence materials) and (iii) except for intentional fraud, none of Seller, its Subsidiaries or any other Person shall will have or be subject to any liability or indemnification obligation to Purchaser or any other Person under this Agreement resulting from the distribution to Purchaser, or Purchaser’s useuse of, of any such information. Without limiting the generality , including any information, documents, projections, forecasts or other material made available to Purchaser in certain “data rooms” or management presentations in expectation of the foregoingTransactions. For the avoidance of doubt, except Purchaser acknowledges that neither Seller nor any of its Representatives make any express or implied representation or warranty with respect to “Confidential Information” as expressly set forth defined in the Confidentiality Agreement. Purchaser acknowledges and agrees that it (a) has had an opportunity to discuss the business of Seller with the management of Seller, (b) has had sufficient access to (i) the books and records of Seller and (ii) the electronic data room maintained by Seller for purposes of the Transactions, (c) has been afforded the opportunity to ask questions of and receive answers from officers and other key employees of Seller and (d) has conducted its own independent investigation of Seller, the Business and the Transactions, and has not relied on any representation, warranty or other statement by any Person on behalf of Seller, other than the representations and warranties of Seller expressly contained in Article III V, and that all other representations and warranties are specifically disclaimed. In connection with any investigation by Purchaser of Seller, Purchaser has received or may receive from Seller or its other Representatives on behalf of Seller certain projections, forward-looking statements and other forecasts and certain business plan information in written or verbal communications. Purchaser acknowledges that there are uncertainties inherent in attempting to make such estimates, projections and other forecasts and plans, that Purchaser is familiar with such uncertainties, that Purchaser is taking full responsibility for making its own evaluation of the Transaction Documentsadequacy and accuracy of all estimates, THERE ARE NO EXPRESS OR IMPLIED WARRANTIESprojections and other forecasts and plans so furnished to Purchaser (including the reasonableness of the assumptions underlying such estimates, INCLUDING WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSEprojections, forecasts or plans), and that Purchaser shall have no claim against Seller or any other Person with respect thereto. Accordingly, Purchaser acknowledges that neither Seller nor any other Person on behalf of Seller make (and neither Purchaser or any other Person has relied upon) any representation or warranty with respect to such estimates, projections, forecasts or plans (including the reasonableness of the assumptions underlying such estimates, projections, forecasts or plans).

Exclusivity of Representations and Warranties. Purchaser acknowledges that (a) it Relationship ----------------------------------------------------------- Between the Parties. It is the explicit intent and its representatives have been permitted access to the books and records, facilities, equipment, contracts and other properties and assets understanding of the Business, and parties ------------------- hereto that it and its representatives have had an opportunity to meet with officers and employees none of the Business and the Companies to discuss the Business; provided that nothing parties nor any of their respective affiliates, representatives, advisors or agents is making any representation or warranty whatsoever, oral or written, express or implied, other than those set forth in this clause (a) shall be deemed to modify or limit in any respect the Purchaser Indemnified Persons’ right to indemnification under this Agreement and (b) the Ancillary Agreements and none of the parties is relying on any statement, representation or warranty, oral or written, express or implied, made by an other party or such other party's affiliates, representatives, advisors or agents, except for the representations and warranties expressly set forth in Article III or such Agreements. EXCEPT AS OTHERWISE SPECIFICALLY SET FORTH IN THIS AGREEMENT, THE PARTIES EXPRESSLY DISCLAIM ANY IMPLIED WARRANTY OR REPRESENTATION AS TO CONDITION, MERCHANTABILITY OR SUITABILITY AS TO ANY OF THE ASSETS OR LIABILITIES OF THE BUSINESS OR ANY SUBSIDIARY AND, EXCEPT AS OTHERWISE SPECIFICALLY SET FORTH IN THIS AGREEMENT, IT IS UNDERSTOOD THAT PURCHASER TAKES THE ASSETS OF THE BUSINESS AND THE SUBSIDIARIES "AS IS" AND "WHERE IS." Without limiting the generality of, and in any Transaction Document (and, in the case of clause (iii) belowfurtherance of, the indemnification rights of the immediately preceding sentences, Purchaser Indemnified Persons in Article X in respect of such acknowledge that Seller makes no representations and warranties), (i) or warranties to Purchaser has not relied on any representation or warranty from Seller or any other Person in determining to enter into this Agreement, (ii) neither Seller nor any other Person has made any representation or warranty, express or implied, as to the Business (or the value or future thereof), the Transferred Assets, the Assumed Liabilities, the Companies or the accuracy or completeness of any information regarding any of the foregoing that Seller forecasts, projections, estimates, business plans or any other Person furnished budgets heretofore delivered to or made available to Purchaser or its affiliates, representatives, advisors or agents in respect of future revenues, expenses or expenditures, future results of operations (or any component thereof), future cash flows or future financial condition (or any component thereof) of any Subsidiary. The parties hereto agree that this is an arm's length transaction in which the parties' undertakings and its representatives obligations are limited to the performance of their obligations under this Agreement. Purchaser acknowledges that it is a sophisticated investor, that it has undertaken, and that Seller has given Purchaser such opportunities as it has requested to undertake a full investigation of the Business (including any projectionsthe Subsidiaries' assets, estimatescontracts, budgetspermits, offering memorandalicenses, management presentations or due diligence materials) coal reserve data and (iii) except for intentional fraudinformation, none of premises, properties, facilities, books and records), and that it has only a contractual relationship with Seller, its Subsidiaries based solely on the terms of this Agreement, and that there is no special relationship of trust or any other Person shall have or be subject to any liability to reliance between Purchaser or any other Person under this Agreement resulting from the distribution to Purchaser, or Purchaser’s use, of any such information. Without limiting the generality of the foregoing, except as expressly set forth in the representations and warranties in Article III and in the Transaction Documents, THERE ARE NO EXPRESS OR IMPLIED WARRANTIES, INCLUDING WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSESeller.

Exclusivity of Representations and Warranties. Purchaser acknowledges that (a) it and its representatives have been permitted access to the books and records, facilities, equipment, contracts and other properties and assets of the Business, and that it and its representatives have had an opportunity to meet with officers and employees of the Business and the Companies to discuss the Business; provided that nothing in this clause (a) shall be deemed to modify or limit in any respect the Purchaser Indemnified Persons’ right to indemnification under this Agreement and (b) except for the representations and warranties Except as otherwise expressly set forth in this Article III 4 (as modified by the Company Disclosure Schedule), any certificate delivered pursuant to this Agreement or in any other Transaction Document (and, in the case of clause (iii) belowAgreement, the indemnification rights Sellers and the Company expressly disclaim any representations or warranties of the Purchaser Indemnified Persons in Article X any kind or nature in respect of any such representations and warranties), (i) Purchaser has not relied on any representation or warranty from Seller or any other Person in determining to enter into this Agreement, (ii) neither Seller nor any other Person has made any representation or warrantythe Company, express or implied, including any representations or warranties as to the Business (Company’s Subsidiaries, their respective businesses and affairs or the value or future thereof), the Transferred Assets, the Assumed Liabilities, the Companies or the accuracy or completeness of any information regarding any of the foregoing that Seller or any other Person furnished or made available to Purchaser and its representatives Transactions. (including any projections, estimates, budgets, offering memoranda, management presentations or due diligence materialsb) and (iii) except for intentional fraud, none of Seller, its Subsidiaries or any other Person shall have or be subject to any liability to Purchaser or any other Person under this Agreement resulting from the distribution to Purchaser, or Purchaser’s use, of any such information. Without limiting the generality of the foregoing, except as expressly set forth in for the representations and warranties in this Article III 4, any certificate delivered pursuant to this Agreement or in any other Transaction Agreement, neither the Sellers, the Company nor any other Person has made, and shall not be deemed to have made, any representations or warranties in the materials relating to the business and affairs of the Company or its Subsidiaries that have been made available to the SPAC, including due diligence materials, or in any presentation of the business and affairs of the Company or its Subsidiaries by the management of the Company or others in connection with the Transactions, and no statement contained in any of such materials or made in any such presentation shall be deemed a representation or warranty hereunder or otherwise or deemed to be relied upon by the SPAC in executing, delivering and performing this Agreement and the Transactions. It is understood that any cost estimates, projections or other predictions, any data, any financial information or any memorandum or offering materials or presentations, including any offering memorandum or similar materials made available by the Sellers or the Sellers’ or the Company’s representatives on behalf of the Company, or by the Company directly, are not and shall not be deemed to be or to include representations or warranties made by the Sellers or the Company, and are not and shall not be deemed to be relied upon by the SPAC in executing, delivering and performing the Transaction DocumentsAgreements and the Transactions, THERE ARE NO EXPRESS OR IMPLIED WARRANTIESexcept, INCLUDING WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSEin each such case, to the extent of any representation or warranty provided in this Article 4, any certificate delivered pursuant to this Agreement or in any other Transaction Agreement with respect to any such matters.

Exclusivity of Representations and Warranties. Purchaser acknowledges that (a) it and its representatives have been permitted access to the books and records, facilities, equipment, contracts and other properties and assets of the Business, and that it and its representatives have had an opportunity to meet with officers and employees of the Business and the Companies to discuss the Business; provided that nothing in this clause (a) shall be deemed to modify or limit in any respect the Purchaser Indemnified Persons’ right to indemnification under this Agreement and (b) except for the representations and warranties expressly set forth made by Sellers in Article III or in any Transaction Document (andV, in the case none of clause (iii) belowSellers, the indemnification rights Acquired Entities, any of their respective Affiliates, nor any Representatives of any of the foregoing, make (and neither Purchaser Indemnified Persons in Article X in respect of such representations and warranties), (i) Purchaser has not relied on any representation or warranty from Seller or any other Person in determining to enter into this Agreement, (iihas relied upon) any representations or warranties on behalf of Sellers. Purchaser further agrees that neither Seller Sellers nor any other Person has made any representation or warranty, express or implied, as to the Business (or the value or future thereof), the Transferred Assets, the Assumed Liabilities, the Companies or the accuracy or completeness of any information regarding any of the foregoing that Seller or any other Person furnished or made available to Purchaser and its representatives (including any projections, estimates, budgets, offering memoranda, management presentations or due diligence materials) and (iii) except for intentional fraud, none of Seller, its Subsidiaries or any other Person shall will have or be subject to any liability Liability to Purchaser or any other Person under this Agreement resulting from the distribution to Purchaser, or Purchaser’s useuse of, of any such information. Without limiting the generality , including any information, documents, projections, forecasts or other material made available to Purchaser in certain “data rooms” or management presentations in expectation of the foregoingTransactions. Purchaser acknowledges and agrees that it has conducted its own independent investigation of Sellers, except as expressly set forth in their respective businesses and the Transactions, and has not relied on any representation, warranty or other statement by any Person on behalf of Sellers, other than the representations and warranties of Sellers expressly contained in Article III V, and that all other representations and warranties are specifically disclaimed. In connection with any investigation by Purchaser of Sellers, Purchaser has received or may receive from Sellers or its other Representatives on behalf of Sellers certain projections, forward-looking statements and other forecasts and certain business plan information in written or verbal communications. Purchaser acknowledges that there are uncertainties inherent in attempting to make such estimates, projections and other forecasts and plans, that Purchaser is familiar with such uncertainties, that Purchaser is taking full responsibility for making its own evaluation of the adequacy and accuracy of all estimates, projections and other forecasts and plans so furnished to Purchaser (including the reasonableness of the assumptions underlying such estimates, projections, forecasts or plans). Accordingly, Purchaser acknowledges that neither Sellers nor any other Person on behalf of Sellers make (and neither Purchaser or any other Person has relied upon) any representation or warranty with respect to such estimates, projections, forecasts or plans (including the reasonableness of the assumptions underlying such estimates, projections, forecasts or plans). Notwithstanding anything herein to the contrary, nothing herein shall limit the liability of Sellers, their Affiliates or any Representatives thereof or restrict any remedies available to Purchaser in the Transaction Documents, THERE ARE NO EXPRESS OR IMPLIED WARRANTIES, INCLUDING WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSEevent of a fraud.

Exclusivity of Representations and Warranties. Purchaser acknowledges that (a) Notwithstanding anything in this Agreement to the contrary, it is the explicit intent and understanding of the Parties hereto that none of the Parties nor any of their respective Representatives is making any representation or warranty whatsoever, oral or written, express or implied, other than those set forth in this Agreement or the Ancillary Documents and that none of the Parties is relying on any statement, representation or warranty, oral or written, express or implied, made by any other Party or such other Party’s Representatives except for the representations and warranties expressly set forth in such agreements. EXCEPT AS OTHERWISE SPECIFICALLY SET FORTH IN THIS AGREEMENT OR THE ANCILLARY DOCUMENTS, THE PARTIES EXPRESSLY DISCLAIM ANY IMPLIED WARRANTY OR REPRESENTATION AS TO TITLE, OWNERSHIP, USE, POSSESSION, VALUE, CONDITION, LIABILITIES, OPERATION, DESIGN, CAPACITY, FUTURE RESULTS, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SUITABILITY OR OTHERWISE AS TO ANY OF THE ASSETS OR LIABILITIES OF THE COMPANY OR ANY OF ITS SUBSIDIARIES AND, EXCEPT AS OTHERWISE SPECIFICALLY SET FORTH IN THIS AGREEMENT, IT IS UNDERSTOOD THAT BUYER TAKES THE COMPANY SHARES AND THE ASSETS AND LIABILITIES OF THE COMPANY AND ITS SUBSIDIARIES “AS IS” AND “WHERE IS.” (b) Without limiting the generality of, and in furtherance of, Section 12.1(a), Buyer acknowledges that, except as otherwise specifically set forth in this Agreement or the Ancillary Documents, none of Seller or any of its Affiliates makes any representations or warranties to Buyer regarding any forecasts, projections, estimates, business plans or budgets (whether contained or referred to in the Schedules hereto or in any other written materials or verbal information that has been or shall hereafter be provided or made available to Buyer or any of its Representatives) and there are not and shall not be deemed to be representations or warranties of Seller or any of its Affiliates in respect of future revenues, expenses or expenditures, future results of operations (or any component thereof), future cash flows or future financial condition (or any component thereof) of the Company or any of its Subsidiaries. (c) The Parties hereto agree that this is an arm’s length transaction in which the Parties’ undertakings and obligations are limited to the performance of their obligations under this Agreement. Buyer acknowledges that it is a sophisticated investor, that it has undertaken, and that Seller has given Buyer such opportunities as it has requested to undertake, a full investigation of the business and operations of the Company and its Subsidiaries (including their assets, liabilities, contracts, permits, licenses, premises, properties, facilities, books and records), and that there is no special relationship of trust or reliance between Buyer and Seller. Buyer acknowledges that it and its representatives Representatives have been permitted provided with (i) access to the books and records, facilities, equipment, contracts and other properties and assets of the Business, business and operations of the Company and its Subsidiaries that it and its representatives have had an Representatives and (ii) the opportunity to meet with the officers and employees of Seller, the Business Company and the Companies its Subsidiaries to discuss the Business; provided that nothing in this clause (a) shall be deemed to modify or limit in any respect the Purchaser Indemnified Persons’ right to indemnification under this Agreement business and (b) except for the representations and warranties expressly set forth in Article III or in any Transaction Document (and, in the case of clause (iii) below, the indemnification rights operations of the Purchaser Indemnified Persons in Article X in respect Company and its Subsidiaries that it and its Representatives. Buyer further acknowledges that none of such representations and warranties)Seller, (i) Purchaser has not relied on any representation its Affiliates, their respective Representatives or warranty from Seller or any other Person in determining to enter into this Agreement, (ii) neither Seller nor any other Person has made any representation or warranty, express expressed or implied, as to the Business (or the value or future thereof), the Transferred Assets, the Assumed Liabilities, the Companies or the accuracy or completeness of any information regarding any the business and operations of the foregoing that Seller or any other Person Company and its Subsidiaries furnished or made available to Purchaser Buyer and its representatives (including Representatives, other than as set forth in this Agreement and in any projections, estimates, budgets, offering memoranda, management presentations or due diligence materials) Ancillary Documents. Except as provided in this Agreement and (iii) except for intentional fraudin the Ancillary Documents, none of Seller, its Subsidiaries Affiliates, their respective Representatives or any other Person shall have or be subject to any liability to Purchaser Buyer or any other Person under this Agreement resulting from the distribution to PurchaserBuyer or any other Person, or PurchaserBuyer’s or any other Person’s use, of whether prior to, on or after the date hereof, of, any such information. Without limiting the generality , documents or material made available in any “data rooms” or formal or informal management presentations or in any other form in expectation of the foregoing, except as expressly set forth in the representations and warranties in Article III and in the Transaction Documents, THERE ARE NO EXPRESS OR IMPLIED WARRANTIES, INCLUDING WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSEtransactions contemplated hereby.

Exclusivity of Representations and Warranties. Purchaser is experienced and sophisticated with respect to transactions of the type contemplated by this Agreement and the Ancillary Agreements. In consultation with experienced counsel and advisors of its choice, Purchaser has conducted its own independent review and analysis of the Assets, the Assumed Liabilities and the Business and the rights and obligations it is acquiring and assuming under this Agreement and the Ancillary Agreements. Purchaser acknowledges that (a) it and its representatives have been permitted full and complete access to the books and records, facilities, equipmentEquipment, contracts Contracts and other properties and assets Assets of the BusinessBusiness that it and its representatives have desired or requested to see or review, and that it and its representatives have had an opportunity to meet with the officers and employees of the Business and the Companies to discuss the Business; provided that nothing in this clause (a) shall be deemed to modify or limit in any respect the Purchaser Indemnified Persons’ right to indemnification under this Agreement Business and (b) except for the representations and warranties expressly set forth in Article III or in any Transaction Document Ancillary Agreement (and, in the case of clause (iii) below, the indemnification rights of the Purchaser Indemnified Persons in Article X XI in respect of such representations and warranties), (i) Purchaser has not relied on any representation or warranty from Seller , Guarantor or any other Person in determining to enter into this Agreement, (ii) neither Seller Seller, nor Guarantor, nor any other Person has made any representation or warranty, express or implied, as to the Business (or the value or future thereof), the Transferred Assets, the Assumed Liabilities, the Companies Liabilities or the accuracy or completeness of any information regarding any of the foregoing that Seller or any other Person furnished or made available to Purchaser and its representatives (including any projections, estimates, budgets, offering memoranda, management presentations or due diligence materials) and (iii) except for intentional fraud, none of Seller, its Subsidiaries or any other Person shall have or be subject to any liability to Purchaser or any other Person under this Agreement resulting from the distribution to Purchaser, or Purchaser’s use, of any such information. Without limiting the generality of the foregoing, except as expressly set forth in the representations and warranties in Article III and in the Transaction DocumentsAncillary Agreements (if any), THERE ARE NO EXPRESS OR IMPLIED WARRANTIES, INCLUDING WARRANTIES OF MERCHANTABILITY OR MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSEPURPOSE OR NONINFRINGEMENT OF THIRD PARTY INTELLECTUAL PROPERTY RIGHTS, OR REGARDING THE SCOPE, VALIDITY OR ENFORCEABILITY OF ANY TRANSFERRED OR LICENSED INTELLECTUAL PROPERTY RIGHTS.

Exclusivity of Representations and Warranties. Purchaser acknowledges that THE REPRESENTATIONS AND WARRANTIES MADE BY SELLER IN THIS AGREEMENT ARE IN LIEU OF AND ARE EXCLUSIVE OF ALL OTHER REPRESENTATIONS AND WARRANTIES IN CONNECTION WITH THE TRANSACTIONS CONTEMPLATED HEREIN, INCLUDING ANY IMPLIED WARRANTIES. SELLER HEREBY DISCLAIMS ANY SUCH OTHER OR IMPLIED REPRESENTATIONS OR WARRANTIES, NOTWITHSTANDING THE DELIVERY OR DISCLOSURE TO BUYER OR ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS OR REPRESENTATIVES OF ANY DOCUMENTATION OR OTHER INFORMATION (a) it and its representatives have been permitted access to the books and records, facilities, equipment, contracts and other properties and assets of the BusinessINCLUDING ANY FINANCIAL PROJECTIONS OR OTHER SUPPLEMENTAL DATA). In particular, and that it and its representatives have had an opportunity to meet with officers and employees of the Business and the Companies to discuss the Business; provided that nothing in this clause (a) shall be deemed to modify or limit in any respect the Purchaser Indemnified Persons’ right to indemnification under this Agreement and (b) except for the representations and warranties expressly set forth in Article III or in any Transaction Document (and, in the case of clause (iii) below, the indemnification rights of the Purchaser Indemnified Persons in Article X in respect of such representations and warranties), (i) Purchaser has not relied on any representation or warranty from Seller or any other Person in determining to enter into this Agreement, (ii) neither Seller nor any other Person has made any representation or warranty, express or implied, as to the Business (or the value or future thereof), the Transferred Assets, the Assumed Liabilities, the Companies or the accuracy or completeness of any information regarding any of the foregoing that Seller or any other Person furnished or made available to Purchaser and its representatives (including any projections, estimates, budgets, offering memoranda, management presentations or due diligence materials) and (iii) except for intentional fraud, none of Seller, its Subsidiaries or any other Person shall have or be subject to any liability to Purchaser or any other Person under this Agreement resulting from the distribution to Purchaser, or Purchaser’s use, of any such information. Without without limiting the generality of the foregoing, except as expressly Buyer acknowledges and agrees that, in making its decision to enter into this Agreement and consummate the Stock Purchase, it is not relying on any information or materials, oral, written or in electronic format, distributed or made available prior to the date hereof, in each case, other than matters set forth in this Agreement, including the representations Disclosure Schedule. With respect to any projection, forecast or business plan delivered by or on behalf of any Company or any of its Affiliates to Buyer, Buyer acknowledges that (a) there are uncertainties inherent in attempting to make such projections, forecasts and warranties plans, (b) it is familiar with such uncertainties, (c) it is taking full responsibility for making its own evaluation of the adequacy and accuracy of all such projections, forecasts and plans so furnished to it, and (d) it shall have no claim of any kind whatsoever against any Person with respect thereto. Notwithstanding the foregoing, nothing in Article III and in this Section 6.9 shall operate to bar or limit any claim or the Transaction Documents, THERE ARE NO EXPRESS OR IMPLIED WARRANTIES, INCLUDING WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSELosses arising from or based on Fraud.

Exclusivity of Representations and Warranties. Purchaser Buyer acknowledges that (a) it and its representatives have been permitted access to the books and recordsagrees that, facilities, equipment, contracts and other properties and assets of the Business, and that it and its representatives have had an opportunity to meet with officers and employees of the Business and the Companies to discuss the Business; provided that nothing in this clause (a) shall be deemed to modify or limit in any respect the Purchaser Indemnified Persons’ right to indemnification under this Agreement and (b) except for the representations and warranties expressly set forth in Article III or in any Transaction Document IV and Article V (and, in the case of clause (iiic) below, the indemnification rights of the Purchaser Buyer Indemnified Persons in Article X Section 11.1(a) in respect of such representations and warranties), (ia) Purchaser Buyer has not relied on any representation or warranty from any Seller or its Affiliates, or any other Person of its or their respective Representatives, in determining to enter into this Agreement, (iib) neither Seller none of Sellers nor their Affiliates, nor any other Person of their respective Representatives, has made any representation or warranty, express or implied, as to the Business (or the value or future thereof), the Transferred Acquired Assets, the Assumed Liabilities, the Companies Eligible Assets, the Covered Insurance Policies or the accuracy or completeness of any information regarding any of the foregoing that any Seller or its Affiliates or any other Person of their respective Representatives furnished or made available to Purchaser Buyer and its representatives Representatives (including any projections, estimates, budgets, offering memoranda, management presentations or due diligence materials) and (iiic) except for intentional in the case of actual fraud, none of SellerSellers, its Subsidiaries or their Affiliates, nor any other Person of their respective Representatives, shall have or be subject to any liability Liability to Purchaser Buyer or any other Person under this Agreement resulting from the distribution to PurchaserBuyer, or PurchaserBuyer’s use, of any such information. Without limiting the generality of the foregoing, except as expressly set forth in the representations and warranties in Article III IV and in the Transaction DocumentsArticle V, (A) THERE ARE NO EXPRESS OR IMPLIED WARRANTIES, INCLUDING WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSEPURPOSE AND (B) ANY ACQUIRED ASSETS THAT ARE TANGIBLE PERSONAL PROPERTY OR THIRD-PARTY SOFTWARE ARE BEING CONVEYED ON AN “AS IS,” “WHERE IS,” “WITH ALL FAULTS” BASIS AND WITHOUT ANY WARRANTY OF NON-INFRINGEMENT.

Exclusivity of Representations and Warranties. Purchaser acknowledges that (a) it Relationship ----------------------------------------------------------- Between the Parties. It is the explicit intent and its representatives have been permitted access to the books and records, facilities, equipment, contracts and other properties and assets understanding of the Business, and parties ------------------- hereto that it and its representatives have had an opportunity to meet with officers and employees none of the Business and the Companies to discuss the Business; provided that nothing parties nor any of their respective affiliates, representatives, advisors or agents is making any representation or warranty whatsoever, oral or written, express or implied, other than those set forth in this clause (a) shall be deemed to modify or limit in any respect the Purchaser Indemnified Persons’ right to indemnification under this Agreement and (b) the Ancillary Agreements and none of the parties is relying on any statement, representation or warranty, oral or written, express or implied, made by any other party or such other party's affiliates, representatives, advisors or agents, except for the representations and warranties expressly set forth in Article III or such Agreements. EXCEPT AS OTHERWISE SPECIFICALLY SET FORTH IN THIS AGREEMENT, THE PARTIES EXPRESSLY DISCLAIM ANY IMPLIED WARRANTY OR REPRESENTATION AS TO CONDITION, MERCHANTABILITY OR SUITABILITY AS TO ANY OF THE ASSETS OR LIABILITIES OF THE BUSINESS OR ANY SUBSIDIARY AND, EXCEPT AS OTHERWISE SPECIFICALLY SET FORTH IN THIS AGREEMENT, IT IS UNDERSTOOD THAT PURCHASER TAKES THE ASSETS OF THE BUSINESS AND THE SUBSIDIARIES "AS IS" AND "WHERE IS." Without limiting the generality of, and in any Transaction Document (and, in the case of clause (iii) belowfurtherance of, the indemnification rights of the immediately preceding sentences, Purchaser Indemnified Persons in Article X in respect of such acknowledge that Seller makes no representations and warranties), (i) or warranties to Purchaser has not relied on any representation or warranty from Seller or any other Person in determining to enter into this Agreement, (ii) neither Seller nor any other Person has made any representation or warranty, express or implied, as to the Business (or the value or future thereof), the Transferred Assets, the Assumed Liabilities, the Companies or the accuracy or completeness of any information regarding any of the foregoing that Seller forecasts, projections, estimates, business plans or any other Person furnished budgets heretofore delivered to or made available to Purchaser or its affiliates, representatives, advisors or agents in respect of future revenues, expenses or expenditures, future results of operations (or any component thereof), future cash flows or future financial condition (or any component thereof) of any Subsidiary. The parties hereto agree that this is an arm's length transaction in which the parties' undertakings and its representatives obligations are limited to the performance of their obligations under this Agreement. Purchaser acknowledges that it is a sophisticated investor, that it has undertaken, and that Seller has given Purchaser such opportunities as it has requested to undertake, a full investigation of the Business (including any projectionsthe Subsidiaries' assets, estimatescontracts, budgetspermits, offering memorandalicenses, management presentations or due diligence materials) coal reserve data and (iii) except for intentional fraudinformation, none of premises, properties, facilities, books and records), and that it has only a contractual relationship with Seller, its Subsidiaries based solely on the terms of this Agreement, and that there is no special relationship of trust or any other Person shall have or be subject to any liability to reliance between Purchaser or any other Person under this Agreement resulting from the distribution to Purchaser, or Purchaser’s use, of any such information. Without limiting the generality of the foregoing, except as expressly set forth in the representations and warranties in Article III and in the Transaction Documents, THERE ARE NO EXPRESS OR IMPLIED WARRANTIES, INCLUDING WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSESeller.

Exclusivity of Representations and Warranties. Purchaser acknowledges Buyer is not aware of any facts and/or circumstances that (a) it and its representatives have been permitted access to the books and records, facilities, equipment, contracts and other properties and assets would make any of the Business, and that it and its representatives have had an opportunity to meet with officers and employees of the Business and the Companies to discuss the Business; provided that nothing in this clause (a) shall be deemed to modify or limit in any respect the Purchaser Indemnified Persons’ right to indemnification under this Agreement and (b) except for the representations and warranties expressly set forth of Seller contained in Article III this Agreement untrue or in any Transaction Document (and, in the case of clause (iii) below, the indemnification rights of the Purchaser Indemnified Persons in Article X in respect of such representations and warranties), (i) Purchaser has not relied on any representation or warranty from Seller or any other Person in determining to enter misleading. In entering into this Agreement, (ii) Buyer has relied solely upon its own investigation and analysis and the representations and warranties of Seller contained in this Agreement, and Buyer acknowledges that, other than as set forth in this Agreement, neither Seller nor or any other Person of its directors, officers, employees, Affiliated Groups, members, agents or representatives makes or has made any representation or warranty, either express or implied, (x) as to the Business (or the value or future thereof), the Transferred Assets, the Assumed Liabilities, the Companies or the accuracy or completeness of any information regarding any of the foregoing that Seller or any other Person furnished information provided or made available to Purchaser and Buyer or any of its representatives agents, representatives, lenders or Affiliated Groups prior to the execution of this Agreement or (including y) with respect to any projections, forecasts, estimates, budgetsplans or budgets of future revenues, expenses or expenditures, future results of operations (or any component thereof), future cash flows (or any component thereof) or future financial condition (or any component thereof) of the Company heretofore or hereafter delivered to or made available to Buyer or any of their respective agents, representatives, lenders or Affiliated Groups. Neither Seller nor any of its directors, officers, employees, Affiliated Groups, members, agents or representatives has made, and shall not be deemed to have made, any representations or warranties in the materials relating to the business, assets or liabilities of the Companies made available to Buyer, and no statement contained in any such materials or made in any such presentation shall be deemed a representation or warranty hereunder or otherwise or deemed to be relied upon by Buyer in executing, delivering and performing this Agreement and the transactions contemplated hereby. It is understood that any cost estimates, projections or other predictions, any data, any financial information or any memoranda or offering memorandamaterials or presentations, management presentations including but not limited to, any offering memorandum or due diligence materials) similar materials made available to Buyer and (iii) except for intentional fraud, none its Representatives are not and shall not be deemed to be or to include representations or warranties of Seller, its Subsidiaries or any other Person and are not and shall have or not be subject deemed to any liability to Purchaser or any other Person under be relied upon by Buyer in executing, delivering and performing this Agreement resulting from and the distribution to Purchaser, or Purchaser’s use, of any such information. Without limiting the generality of the foregoing, except as expressly set forth in the representations and warranties in Article III and in the Transaction Documents, THERE ARE NO EXPRESS OR IMPLIED WARRANTIES, INCLUDING WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSEtransactions contemplated hereby.

Exclusivity of Representations and Warranties. Purchaser Buyer acknowledges and agrees that (a) it Buyer and its representatives Representatives have been permitted access to the books and records, facilities, equipment, contracts and other properties and assets of the Business, and that it and its representatives Representatives have had an opportunity to meet with officers and employees of the Business Seller and the Companies its Affiliates to discuss the Business; provided that nothing in this clause (a) shall be deemed to modify or limit in any respect the Purchaser Indemnified Persons’ right to indemnification under this Agreement and (b) except for the representations and warranties expressly set forth in Article III or in any Transaction Document IV and Article V (and, in the case of clause (iii) below, the indemnification rights of the Purchaser Buyer Indemnified Persons in Article X Section 11.1(a) in respect of such representations and warranties), (i) Purchaser Buyer has not relied on any representation or warranty from Seller or any other Person in determining to enter into this Agreement, (ii) neither Seller nor any other Person has made any representation or warranty, express or implied, as to the Business (or the value or future thereof), the Transferred Acquired Assets, the Assumed Liabilities, the Companies Investment Assets, Modco Assets, the Covered Insurance Policies or the accuracy or completeness of any information regarding any of the foregoing that Seller or any other Person furnished or made available to Purchaser Buyer and its representatives Representatives (including any projections, estimates, budgets, offering memoranda, management presentations or due diligence materials) and (iii) except for intentional fraudin the case of fraud by Seller or its Affiliates, none of Seller, its Subsidiaries Affiliates or any other Person shall have or be subject to any liability Liability to Purchaser Buyer or any other Person under this Agreement resulting from the distribution to PurchaserBuyer, or PurchaserBuyer’s use, of any such information. Without limiting the generality of the foregoing, except as expressly set forth in the representations and warranties in Article III IV and in the Transaction DocumentsArticle V, (A) THERE ARE NO EXPRESS OR IMPLIED WARRANTIES, INCLUDING WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSEPURPOSE AND (B) ANY ACQUIRED ASSETS THAT ARE TANGIBLE PERSONAL PROPERTY OR THIRD-PARTY SOFTWARE ARE BEING CONVEYED ON AN “AS IS,” “WHERE IS,” “WITH ALL FAULTS” BASIS AND WITHOUT ANY WARRANTY OF NON-INFRINGEMENT.