Common use of Opportunity for Independent Investigation Clause in Contracts

Opportunity for Independent Investigation. Such Purchaser is an experienced and knowledgeable investor in the U.S. power generation and development business. Such Purchaser has conducted its own independent review and analysis of the business, operations, assets, liabilities, results of operations, financial condition, technology and prospects of the Company and acknowledges that such Purchaser has been provided access to personnel, properties, premises and records of the Company for such purpose. In entering into this Agreement, such Purchaser has relied solely upon the representations, warranties and covenants contained herein and upon its own investigation and analysis of the assets and liabilities, the Company and the business conducted by the Company (such investigation and analysis having been performed by such Purchaser or such Purchaser’s Representatives), and such Purchaser: (a) acknowledges and agrees that it has not been induced by and has not relied upon any representations, warranties or statements, whether oral or written, express or implied, made by Seller or any of its Representatives, Affiliates or agents that are not expressly set forth in this Agreement; (b) acknowledges that, except as expressly provided herein, Seller does not make and have not made any representations or warranties of any kind, express or implied, written or oral, as to compliance with Law, and/or any requirements for alterations or improvements to comply with Law, including any representations or warranties pertaining to zoning, environmental or other law; the generators, pipelines or other physical equipment and fixtures on the Real Property comprising or associated with the Facility, or any other aspect of the economic operations on such Real Property; the conditions of the soils, water or groundwater of, or in the vicinity of, such Real Property; or any other matter bearing on the use, value or condition of the assets of the Company; (c) acknowledges and agrees that none of Seller, the Company or any of their respective Representatives, Affiliates or agents makes or has made any representation or warranty, either express or implied, as to the accuracy or completeness of any of the information provided or made available to such Purchaser or its Representatives, shareholders, Affiliates or agents, including, without limitation, any information included in the Confidential Memorandum dated October 2007 and any information, document, or material provided or made available, or statements made, to such Purchaser (including its Representatives, shareholders, Affiliates and agents) during site or office visits, in any “data rooms,” management presentations or supplemental due diligence information provided to such Purchaser (including its Representatives, shareholders, Affiliates and agents), in connection with discussions with management or in any other form in expectation of the transactions contemplated by this Agreement (collectively, the “Due Diligence Information”); (d) acknowledges and agrees that (i) the Due Diligence Information includes certain projections, estimates, and other forecasts, and certain business plan information, (ii) there are uncertainties inherent in attempting to make such projections, estimates and other forecasts and plans and such Purchaser is familiar with such uncertainties, and (iii) such Purchaser is taking full responsibility for making its own evaluation of the adequacy and accuracy of all projections, estimates and other forecasts and plans so furnished to it and any use of or reliance by such Purchaser on such projections, estimates and other forecasts and plans shall be at its sole risk; and (e) agrees, to the fullest extent permitted by Law, that none of Seller, the Company or any of their respective Representatives, Affiliates or agents shall have any liability or responsibility whatsoever to such Purchaser or its Representatives, shareholders, Affiliates or agents on any basis (including, without limitation, in contract or tort, under federal or state securities Laws or otherwise) resulting from the furnishing to such Purchaser, or from such Purchaser’s use of, any Due Diligence Information.

Opportunity for Independent Investigation. Such Purchaser Buyer is an experienced and knowledgeable investor in the U.S. power generation and development businessUnited States. Such Purchaser Buyer has conducted its own independent review and analysis of the business, operations, assetsAssets, liabilities, results of operations, financial condition, technology and prospects of the Company Companies and acknowledges that such Purchaser Buyer has been provided access to personnel, properties, premises and records of the Company Companies for such purpose. In entering into this Agreement, such Purchaser Buyer has relied solely upon the representations, warranties and covenants contained herein and upon its own investigation and analysis of the assets and liabilities, the Company Companies and the business conducted by the Company Companies (such investigation and analysis having been performed by such Purchaser or such Purchaser’s RepresentativesBuyer), and such PurchaserBuyer: (a) acknowledges and agrees that it has not been induced by and has not relied upon any representations, warranties or statements, whether oral or written, express or implied, made by Seller the Seller, the Companies or any of its their Representatives, Affiliates or agents that are not expressly set forth in this Agreement; (b) acknowledges that, except as expressly provided herein, Seller does the Seller, the Companies and their Representatives, Affiliates and agents do not make and have not made any representations or warranties of any kind, express or implied, written or oral, as to compliance with applicable Law, and/or any requirements for alterations or improvements to comply with applicable Law, including any representations or warranties pertaining to zoning, environmental or other lawLaw; the generators, pipelines or other physical equipment and fixtures on the Real Property comprising or associated with the FacilityCompanies, or any other aspect of the economic operations on such Real Property; the conditions of the soils, water or groundwater of, or in the vicinity of, such Real Property; or any other matter bearing on the use, value or condition of the assets Assets of the CompanyCompanies; (c) acknowledges and agrees that none of the Seller, the Company Companies or any of their respective Representatives, Affiliates or agents makes or has made any representation or warranty, either express or implied, as to the accuracy or completeness of any of the information provided or made available to such Purchaser Buyer or its Representatives, shareholders, Affiliates or agents, including, without limitation, any information included in the Confidential Memorandum dated October 2007 and including any information, document, or material provided or made available, or statements made, to such Purchaser Buyer (including its Representatives, shareholders, Affiliates and agents) during site or office visits, in any “data rooms,” ”, management presentations or supplemental due diligence information provided to such Purchaser Buyer (including its Representatives, shareholders, Affiliates and agents), in connection with discussions with management or in any other form in expectation of the transactions contemplated by this Agreement (collectively, the “Due Diligence Information”); (d) acknowledges and agrees that (i) the Due Diligence Information includes certain projections, estimates, and other forecasts, and certain business plan information, (ii) there are uncertainties inherent in attempting to make such projections, estimates and other forecasts and plans and such Purchaser Buyer is familiar with aware of such uncertainties, and (iii) such Purchaser Buyer is taking full responsibility for making its own evaluation of the adequacy and accuracy of all projections, estimates and other forecasts and plans so furnished to it and any use of or reliance by such Purchaser Buyer on such projections, estimates and other forecasts and plans shall be at its sole risk; and (e) agrees, to the fullest extent permitted by Law, that none of the Seller, the Company Companies (except as expressly provided herein) or any of their respective Representatives, Affiliates or agents shall have any liability or responsibility whatsoever to such Purchaser Buyer or its Representatives, shareholders, Affiliates or agents on any basis (including, without limitation, including in contract or tort, under federal or state securities Laws or otherwise) resulting from the furnishing to such PurchaserBuyer, or from such PurchaserBuyer’s use of, any Due Diligence InformationInformation or otherwise relating to the sales process. provided, however, that notwithstanding any other provision of this Agreement, nothing in this Section 4.9 shall limit Buyer’s ability to establish a claim for actual fraud with respect to any written information provided to the Buyer in the data room (other than documents containing projections or other forward looking statements, as to which Buyer agrees that it shall have no right to bring any claims whatsoever). The term ‘actual fraud’ when used in this Agreement shall not include reckless misstatements. In the event Buyer brings a claim for actual fraud pursuant to this Agreement, then the Buyer (if it fails to prevail) or the Seller (if Buyer prevails) shall be liable for and shall promptly reimburse the other Party for all of such other Party’s costs and expenses (including attorneys and experts fees, costs of discovery and other associated costs and expenses) with respect to such claim. For the purposes of this Section 4.9, the Parties agree that Buyer shall be deemed to have prevailed in such claim if there is a finding of actual fraud and that Seller shall be deemed to have prevailed if there is no finding of actual fraud.

Opportunity for Independent Investigation. Such Purchaser is an experienced and knowledgeable investor in the U.S. power generation and development business. Such Purchaser has conducted its own independent review and analysis of the business, operations, assets, liabilities, results of operations, financial condition, technology and prospects of the Company and acknowledges that such Purchaser has been provided access to personnel, properties, premises and records of the Company for such purpose. In entering into this Agreement, such Purchaser has relied solely upon the representations, warranties and covenants contained herein and upon its own investigation and analysis of the assets and liabilitiesInterests, the Company and the business conducted by the Company (such investigation and analysis having been performed by such Purchaser or such Purchaser’s Representatives), and such Purchaser: (a) acknowledges and agrees that it has not been induced by and has not relied upon any representations, warranties or statements, whether oral or written, express or implied, made by any Seller or any of its Representatives, Affiliates or agents that are not expressly set forth in this Agreement; (b) acknowledges that, except as expressly provided herein, Seller does the Sellers do not make and have not made any representations or warranties of any kind, express or implied, written or oral, as to compliance with Law, and/or any requirements for alterations or improvements to comply with Law, including any representations or warranties pertaining to zoning, environmental or other law; the generators, pipelines or other physical equipment and fixtures on the Real Property comprising or associated with the Facility, or any other aspect of the economic operations on such Real Property; the conditions of the soils, water or groundwater of, or in the vicinity of, such Real Property; or any other matter bearing on the use, value or condition of the assets of the Company; (c) acknowledges and agrees that none of SellerSellers, the Company or any of their respective Representatives, Affiliates or agents makes or has made any representation or warranty, either express or implied, as to the accuracy or completeness of any of the information provided or made available to such Purchaser or its Representatives, shareholders, Affiliates or agents, including, without limitation, any information included in the Confidential Memorandum dated October 2007 and any information, document, or material provided or made available, or statements made, to such Purchaser (including its Representatives, shareholders, Affiliates and agents) during site or office visits, in any “data rooms,” management presentations or supplemental due diligence information provided to such Purchaser (including its Representatives, shareholders, Affiliates and agents), in connection with discussions with management or in any other form in expectation of the transactions contemplated by this Agreement (collectively, the “Due Diligence Information”); (d) acknowledges and agrees that (i) the Due Diligence Information includes certain projections, estimates, and other forecasts, and certain business plan information, (ii) there are uncertainties inherent in attempting to make such projections, estimates and other forecasts and plans and such Purchaser is familiar with such uncertainties, and (iii) such Purchaser is taking full responsibility for making its own evaluation of the adequacy and accuracy of all projections, estimates and other forecasts and plans so furnished to it and any use of or reliance by such Purchaser on such projections, estimates and other forecasts and plans shall be at its sole risk; and (e) agrees, to the fullest extent permitted by Law, that none of SellerSellers, the Company or any of their respective Representatives, Affiliates or agents shall have any liability or responsibility whatsoever to such Purchaser or its Representatives, shareholders, Affiliates or agents on any basis (including, without limitation, in contract or tort, under federal or state securities Laws or otherwise) resulting from the furnishing to such Purchaser, or from such Purchaser’s use of, any Due Diligence Information.

Opportunity for Independent Investigation. Such Purchaser is an experienced and knowledgeable investor in the U.S. power generation and development business. Such Purchaser Buyer has conducted its own independent review and analysis of the businessBusiness, including its operations, assets, liabilities, results of operations, financial condition, technology and prospects prospects, and is sufficiently experienced to make an informed judgment with respect thereto. Buyer acknowledges that Seller has made available to Buyer the Business Books and Records and the personnel, properties and premises of the Company and acknowledges that such Purchaser has been provided access to personnel, properties, premises and records of the Company Business for such purpose. In entering into this Agreement, such Purchaser Buyer has relied solely upon the representations, warranties and covenants contained herein and in the Ancillary Agreements and upon its own investigation and analysis of the assets and liabilities, the Company Acquired Assets and the business Business as conducted by the Company Seller (such investigation and analysis having been performed by such Purchaser Buyer or such PurchaserBuyer’s Representatives), ) and such PurchaserBuyer: (a) acknowledges and agrees that it has not been induced by and has not relied upon any representations, warranties or statements, whether oral or written, express or implied, made by Seller or any of its Representatives, Affiliates or agents Seller’s Representatives that are not expressly set forth in this Agreement; (b) acknowledges that, except as expressly provided herein, herein Seller does and its Representatives do not make and have not made any representations or warranties of any kind, express or implied, written or oral, as to compliance with Lawand Buyer expressly disclaims and negates any such representation or warranty, and/or any requirements for alterations express or improvements to comply with Lawimplied, including any representations or warranties pertaining to zoningat common law, environmental or other law; the generators, pipelines or other physical equipment and fixtures on the Real Property comprising or associated with the Facilitystatutory, or any other aspect of otherwise, relating to the economic operations on such Real Property; the conditions of the soils, water or groundwater of, or in the vicinity of, such Real Property; or any other matter bearing on the usecondition, value or condition quality of the assets Acquired Assets including any implied or express warranty of the Companymerchantability or fitness for a particular purpose; (c) acknowledges and agrees that none of Sellerexcept as provided herein, the Company or neither Seller nor any of their respective Representatives, Affiliates or agents its Representatives makes or has made any representation or warranty, either express or implied, as to the accuracy or completeness of any of the information provided or made available to such Purchaser Buyer or its Representatives, shareholders, Affiliates or agents, including, without limitation, including (i) any information included in the Confidential Information Memorandum dated October 2007 and September 16, 2014 or updates thereto, (ii) any information, document, or material provided or made available, or statements made, to such Purchaser Buyer (including its Representatives, shareholders, Affiliates and agents) during site or office visits, in any the electronic “data roomsroom,” or during management presentations or presentations, and (iii) supplemental due diligence information provided made available to such Purchaser (including Buyer and its Representatives, shareholders, Affiliates and agents), Representatives in connection with discussions with management or in any other form in expectation of the transactions contemplated by this Agreement (collectively, the “Due Diligence Information”); (d) acknowledges and agrees that (i) the Due Diligence Information includes certain projections, estimatesestimates relating to the future, and other forecasts, forecasts and certain business plan information, (ii) there are uncertainties inherent in attempting to make such projections, estimates relating to the future and other forecasts and plans and such Purchaser Buyer is familiar with aware of such uncertainties, and (iii) such Purchaser Buyer is taking full responsibility for making its own evaluation of the adequacy and accuracy of all projections, estimates relating to the future and other forecasts and plans so furnished made available to it and any use of or reliance by such Purchaser Buyer on such projections, estimates relating to the future and other forecasts and plans shall be at its Buyer’s sole risk; and (e) agrees, to the fullest extent permitted by Law, that none of Seller, the Company or neither Seller (except as expressly provided herein) nor any of their respective Representatives, Affiliates or agents its Representatives shall have any liability or responsibility whatsoever to such Purchaser Buyer or its Representatives, shareholders, Affiliates or agents Representatives on any basis (including, without limitation, including in contract or tort, under federal or state securities Laws laws or otherwise) resulting from the furnishing to such PurchaserBuyer, or from such PurchaserBuyer’s use of, any Due Diligence Information.