Common use of Investigation by Buyer Clause in Contracts

Investigation by Buyer. In entering into this Agreement: (a) Buyer acknowledges that, except for the specific representations and warranties of the Company and the Subsidiaries contained in ARTICLE 4 hereof, none of the Company, the Subsidiaries, any Affiliate of the Company, or any of their respective directors, officers, employees, Affiliates, controlling persons, agents, advisors or representatives, makes or shall be deemed to have made any representation or warranty, either express or implied, as to the accuracy or completeness of any financial projections, forecasts or budgets provided or otherwise made available to Buyer or any of its directors, officers, employees, Affiliates, controlling persons, agents, advisors or representatives (including, without limitation, in any management presentations, supplemental information or other materials or information with respect to any of the above). With respect to any such projection or forecast delivered by or on behalf of the Company or the Subsidiaries to Buyer, Buyer acknowledges that: (i) there are uncertainties inherent in attempting to make such projections and forecasts; (ii) it is familiar with such uncertainties; (iii) it is taking full responsibility for making its own evaluation of the adequacy and accuracy of all such projections and forecasts so furnished to it; (iv) it is not acting in reliance on any such projection or forecast so furnished to it; and (v) it shall have no claim against any such person with respect to any such projection or forecast; and (b) Buyer agrees, to the fullest extent permitted by law, that the Company and the Subsidiaries and their respective directors, officers, employees, Affiliates, controlling persons, agents, advisors or representatives shall not have any liability or responsibility whatsoever to Buyer or any of its directors, officers, employees, Affiliates, controlling persons, agents, advisors or representatives on any basis (including, without limitation, in contract or tort, under Federal or state securities laws or otherwise) based upon any financial projections provided or otherwise made available, or statements made regarding such projections, (or omissions to so provide, make available or state), to Buyer or any of its directors, officers, employees, Affiliates, controlling persons, agents, advisors or representatives.

Investigation by Buyer. In entering into this Agreement: (a) Buyer acknowledges that, except for the specific representations and warranties of the Company and the Subsidiaries contained in ARTICLE Article 4 hereof, none of the Company, the Subsidiaries, any Affiliate of the Company, or any of their respective directors, officers, employees, Affiliates, controlling persons, agents, advisors or representatives, makes or shall be deemed to have made any representation or warranty, either express or implied, as to the accuracy or completeness of any financial projections, forecasts or budgets provided or otherwise made available to Buyer or any of its directors, officers, employees, Affiliates, controlling persons, agents, advisors or representatives (including, without limitation, in any management presentations, supplemental information or other materials or information with respect to any of the above). With respect to any such projection or forecast delivered by or on behalf of the Company or the Subsidiaries to Buyer, Buyer acknowledges that: (i) there are uncertainties inherent in attempting to make such projections and forecasts; (ii) it is familiar with such uncertainties; (iii) it is taking full responsibility for making its own evaluation of the adequacy and accuracy of all such projections and forecasts so furnished to it; (iv) it is not acting in reliance on any such projection or forecast so furnished to it; and (v) it shall have no claim against any such person with respect to any such projection or forecast; and (b) Buyer agrees, to the fullest extent permitted by law, that the Company and the Subsidiaries and their respective directors, officers, employees, Affiliates, controlling persons, agents, advisors or representatives shall not have any liability or responsibility whatsoever to Buyer or any of its directors, officers, employees, Affiliates, controlling persons, agents, advisors or representatives on any basis (including, without limitation, in contract or tort, under Federal or state securities laws or otherwise) based upon any financial projections provided or otherwise made available, or statements made regarding such projections, (or omissions to so provide, make available or state), to Buyer or any of its directors, officers, employees, Affiliates, controlling persons, agents, advisors or representatives.

Investigation by Buyer. Buyer has conducted its own independent review and analysis of (i) the Acquired Assets and the Power Plant (including the business, operations, technology, financial condition and prospects related to the operation of the Acquired Assets and the Power Plant), (ii) the Assumed Liabilities and (iii) the value of such Acquired Assets. Buyer acknowledges that Seller has provided Buyer with access to the personnel, properties, premises and records of the Acquired Assets for this purpose. Buyer has conducted its own independent review of all Orders of, and all motions, pleadings, and other submissions to, the Bankruptcy Court in connection with the Chapter 11 Case. Buyer acknowledges that the price being paid under this Agreement for the Acquired Assets is the fair value for acquiring the Acquired Assets under the circumstances and that such value, rather than replacement cost, is the appropriate measure of damages if and to the extent Buyer may have had any recourse for any failure to deliver the Acquired Assets in accordance with the terms of this Agreement. In entering into this Agreement: , Buyer has relied solely upon its own investigation and analysis, and Buyer acknowledges that (a) Buyer acknowledges that, except for the specific representations and warranties of the Company and the Subsidiaries contained in ARTICLE 4 hereof, none of the Company, the Subsidiaries, any Affiliate of the Company, or neither Seller nor any of their respective directors, officers, employees, Affiliates, controlling persons, agents, advisors its Related Persons or representatives, Affiliates makes or shall be deemed to have has made any representation or warranty, either express or implied, as to the accuracy or completeness of any financial projections, forecasts or budgets of the information provided or otherwise made available to Buyer or any of its directors, officers, employees, Related Persons or Affiliates, controlling personsexcept as and only to the extent expressly set forth in Article 4 (which are subject to the limitations and restrictions contained in this Agreement), agents, advisors or representatives (including, without limitation, in any management presentations, supplemental information or other materials or information with respect to any of the above). With respect to any such projection or forecast delivered by or on behalf of the Company or the Subsidiaries to Buyer, Buyer acknowledges that: (i) there are uncertainties inherent in attempting to make such projections and forecasts; (ii) it is familiar with such uncertainties; (iii) it is taking full responsibility for making its own evaluation of the adequacy and accuracy of all such projections and forecasts so furnished to it; (iv) it is not acting in reliance on any such projection or forecast so furnished to it; and (v) it shall have no claim against any such person with respect to any such projection or forecast; and (b) Buyer agrees, to the fullest extent permitted by lawLaw, that the Company and the Subsidiaries and their respective directors, officers, employees, Affiliates, controlling persons, agents, advisors neither Seller nor any of its Related Persons or representatives Affiliates shall not have any liability or responsibility whatsoever to Buyer or any of its directors, officers, employees, Affiliates, controlling persons, agents, advisors Related Persons or representatives Affiliates on any basis (including, without limitation, including in contract or tort, under Federal or state securities laws Laws or otherwise) based upon any financial projections information provided or otherwise made available, or statements made regarding such projections, (or omissions to so provide, make available or state)made, to Buyer or Related Persons or Affiliates (or any omissions therefrom), including in respect of its directorsthe specific representations and warranties of Seller set forth in this Agreement, officersexcept, employeeswith regard to Seller, Affiliatesas and only to the extent expressly set forth in Article 4 (which are subject to the limitations and restrictions contained in this Agreement). Buyer has no knowledge of any condition, controlling personsevent or circumstance that constitutes a breach of any representation, agents, advisors warranty or representativescovenant of Seller in this Agreement.

Investigation by Buyer. Buyer has performed all due diligence that it has deemed necessary to perform concerning the Business, the Purchased Assets, and the Assumed Obligations in connection with its decision to enter into this Agreement and the Ancillary Agreements and to consummate the transactions contemplated hereby and thereby and acknowledges that Buyer and Buyer’s Representatives have been provided access to the personnel, properties, premises and records of Seller for such purpose. In entering into this Agreement, Buyer has relied solely upon its own investigation and analysis, and Buyer: (a) Buyer acknowledges that, except for the specific representations and warranties of the Company and the Subsidiaries contained in ARTICLE 4 hereof, that none of the Company, the Subsidiaries, any Affiliate of the Company, Seller or any of their respective directors, officers, employees, Affiliates, controlling persons, agents, advisors its Affiliates or representatives, any of Seller’s Representatives makes or shall be deemed to have has made any representation or warranty, of any kind or nature whatsoever, either express or implied, oral or written, as to the accuracy or completeness of any financial projections, forecasts or budgets of the information provided or otherwise made available to Buyer or Buyer’s Representatives, except that the foregoing limitations shall not apply with respect to Seller to the specific representations and warranties set forth in Article V of this Agreement or any Ancillary Agreement, but always subject to the limitations and restrictions contained herein; (b) agrees, to the fullest extent permitted by applicable Law, that none of Seller or any of its directorsAffiliates or any of Seller’s Representatives shall have any liability or responsibility whatsoever to Buyer on any basis based upon any information provided or made available, officersor statements made, employeeswhether oral or written, Affiliatesto Buyer or Buyer’s Representatives (including any documents, controlling personsfinancial statements, agentsestimates, advisors budgets, forecasts, including forecasted natural gas demand, information, projected information, third party reports, such as the quality of earnings report or representatives (includingthe market and regulatory vendor due diligence report, without limitationor other material), in any “data rooms,” teaser, confidential information memorandum, due diligence discussions, management presentations, supplemental information presentations or other materials or information otherwise in connection with the transactions contemplated by this Agreement except with respect to the representations and warranties in this Agreement and the Ancillary Agreements, provided that nothing in this Section 6.8(b) shall in any way be deemed to limit or modify any rights of Buyer or its Affiliates under the above). With respect to Insurance Policy or inhibit Buyer from obtaining any such projection or forecast delivered by or on behalf of remedies Buyer may have against any insurer under the Company or the Subsidiaries to Buyer, Buyer Insurance Policy; (c) acknowledges that: (i) that there are inherent uncertainties inherent in attempting to make such projections any estimates, budgets, forecasts, including forecasted natural gas demand, third party reports, projected information estimates or similar information and forecasts; (ii) it is familiar with such uncertainties; (iii) it is taking that Buyer takes full responsibility for making its own evaluation of the adequacy and accuracy of all such projections and forecasts so furnished to it; (iv) it is not acting in reliance on any such projection estimates, budgets, forecasts, third party reports projected information estimates or forecast so furnished to it; and similar information (v) it shall have no claim against including the reasonableness of the assumptions underlying any such person with respect to any such projection estimates, budgets, forecasts, projected information estimates or forecastsimilar information); and (bd) Buyer agreesacknowledges that, except as expressly set forth in Article V of this Agreement or the Ancillary Agreements, there are no representations or warranties of any kind, express or implied, oral or written, with respect to the fullest extent permitted by lawBusiness, that the Company and Purchased Assets or the Subsidiaries and their respective directors, officers, employees, Affiliates, controlling persons, agents, advisors or representatives shall not have any liability or responsibility whatsoever to Buyer or any of its directors, officers, employees, Affiliates, controlling persons, agents, advisors or representatives on any basis (including, without limitation, in contract or tort, under Federal or state securities laws or otherwise) based upon any financial projections provided or otherwise made available, or statements made regarding such projections, (or omissions to so provide, make available or state), to Buyer or any of its directors, officers, employees, Affiliates, controlling persons, agents, advisors or representativesAssumed Obligations.

Investigation by Buyer. (a) Buyer has conducted its own independent investigation, review and analysis of the Business, including, but not limited to, operations, Assets, liabilities, results of operations, financial condition, technology and prospects of the Business. Buyer acknowledges that it and its representatives have been provided adequate access to the personnel, properties, premises and records of the Business identified by Seller as relating to the Business as Buyer has requested for such purpose. In entering into this Agreement: (a) , Buyer acknowledges thatthat it has relied solely upon the aforementioned investigation, review and analysis and not on any factual representations or opinions of Seller or the representatives thereof (except for the specific representations and warranties of Seller set forth in this Agreement. Buyer has formed an independent judgment concerning the Company Business and the Subsidiaries contained in ARTICLE 4 hereofrights, obligations, Assets and liabilities pertaining thereto. (b) Buyer acknowledges that none of the Company, the Subsidiaries, any Affiliate of the Company, or any of their Seller and its respective directors, officers, shareholders, employees, Affiliatesaffiliates, controlling persons, agents, advisors or representativesrepresentatives makes, makes or shall be deemed to have made has made, any oral or written representation or warranty, either express or implied, as to the accuracy or completeness of any financial estimates, projections, forecasts forecasts, operating plans or budgets provided relating to the Business delivered or otherwise made available to Buyer or any of otherwise obtained by Buyer or its directors, officers, employees, Affiliatesaffiliates, controlling persons, agents, advisors agents or representatives (includingin respect of future revenues, without limitationexpenses or future results of operations except to the extent, in any management presentationsif any, supplemental information or other materials or information with respect to any of the above). With respect to any such projection or forecast delivered by or on behalf of the Company or the Subsidiaries to Buyer, Buyer acknowledges that: (i) there are uncertainties inherent in attempting to make such projections and forecasts; (ii) it is familiar with such uncertainties; (iii) it is taking full responsibility for making its own evaluation of the adequacy and accuracy of all such projections and forecasts so furnished to it; (iv) it is not acting in reliance on any such projection or forecast so furnished to it; and (v) it shall have no claim against any such person with respect to any such projection or forecast; andexpressly set forth herein. (bc) Buyer agrees, to the fullest extent permitted by law, that the Company and the Subsidiaries and their respective none of Seller's directors, officers, employees, Affiliatesshareholders or affiliates, controlling persons, agents, advisors or representatives shall not have any personal liability or responsibility whatsoever to Buyer or any of its directors, officers, employees, Affiliatesaffiliates, controlling persons, agents, advisors agents or representatives on any basis (including, without limitation, including in contract or tort, under Federal federal or state securities laws or otherwise) based upon any financial projections information provided or otherwise made available, or statements made regarding such projections(including in any memorandum relating to Seller or the Business provided to the Buyer, (in presentations by Seller's management or omissions to so provide, make available or state), otherwise) to Buyer or any of its directors, officers, employees, Affiliatesaffiliates, controlling persons, agentsadvisors, advisors agents or representativesrepresentatives (or any omission therefrom), including in respect of specific representations and warranties, other than any specific representations and warranties set forth in Article 4 of this Agreement except for any liability arising out of the intentional misrepresentation or willful misconduct of any thereof or arising out of common law fraud.

Investigation by Buyer. In entering into this Agreement: (a) Buyer acknowledges that, except for neither of H&H nor Acquisition Sub has relied upon any representations or warranties other than the specific representations and warranties of the Company Seller expressly set forth in Article IV and the Subsidiaries contained Seller Documents. Each of H&H and Acquisition Sub acknowledges that no other representations and warranties of Seller or its Affiliates or representatives (other than those set forth in ARTICLE 4 hereof, none Article IV and the Seller Documents) are required by or being relied upon by either of H&H or Acquisition Sub or being provided by Seller or its Affiliates for each of H&H and Acquisition Sub to enter into this Agreement. Without limiting the generality of the Companyforegoing, the Subsidiaries, any Affiliate of the Company, or any of their respective directors, officers, employees, Affiliates, controlling persons, agents, advisors or representatives, makes or shall be deemed to have made neither Seller nor its Affiliates is making any representation or warrantywarranty with respect to (a) any information, either express documents or impliedmaterials made available to H&H and Acquisition Sub in the "data room" created for purposes of the sale of the Purchased Assets (the "Data Room"), as to any management presentations or offering memoranda in connection with the accuracy transactions contemplated hereby, or completeness of (b) any financial projections, estimates or forecasts related to the Business. With respect to any such projections, estimates or budgets provided forecasts delivered or otherwise made available by or on behalf of Seller or its Affiliates, each of H&H and Acquisition Sub acknowledges that: (a) there are uncertainties inherent in attempting to Buyer make projections, estimates or forecasts, (b) it is familiar with such uncertainties, (c) it is taking full responsibility for making its evaluation of the adequacy and accuracy of all such projections, estimates and forecasts so furnished to it, including the reasonableness of the assumptions underlying such projections, estimates or forecasts, and (d) except in the case of fraud or intentional misrepresentation, it shall make no claim against Seller (or any of its directors, officers, employees, Affiliatesadvisors, controlling personsmanagers, agents, advisors partners, stockholders, members, consultants, investment bankers, brokers, representatives or representatives (including, without limitation, in Affiliates of Seller) or any management presentations, supplemental information or other materials or information Person with respect to any of the above). With respect to any such projection or forecast delivered by or on behalf of the Company or the Subsidiaries to Buyer, Buyer acknowledges that: (i) there are uncertainties inherent in attempting to make such projections and forecasts; (ii) it is familiar with such uncertainties; (iii) it is taking full responsibility for making its own evaluation of the adequacy and accuracy of all such projections and forecasts so furnished to it; (iv) it is not acting in reliance on any such projection or forecast so furnished to it; and (v) it shall have no claim against any such person with respect to any such projection or forecast; and (b) Buyer agrees, to the fullest extent permitted by law, that the Company and the Subsidiaries and their respective directors, officers, employees, Affiliates, controlling persons, agents, advisors or representatives shall not have any liability or responsibility whatsoever to Buyer or any of its directors, officers, employees, Affiliates, controlling persons, agents, advisors or representatives on any basis (including, without limitation, in contract or tort, under Federal or state securities laws or otherwise) based upon any financial projections provided or otherwise made available, or statements made regarding such projections, (or omissions to so provide, make available or state), to Buyer or any of its directors, officers, employees, Affiliates, controlling persons, agents, advisors or representativesthereto.