Intellectual
Property owned, licensed or leased by Seller or its Affiliates and used for the
operation of the Facility as presently operated in all material respects. Seller
or its Affiliates have all right, title and interest in or valid, binding and
irrevocable rights to use such Intellectual Property without material
limitation, Liens (except for Permitted Encumbrances) or royalty burdens.
To
Seller's Knowledge, none of such Intellectual Property included in the Acquired
Assets is being infringed by any other Person, and Seller, to its Knowledge, is
not infringing and has not received notice that it is infringing (or allegedly
infringing) any Intellectual Property of any other Person in connection with the
operation of the Facility, which in either case could reasonably be expected to
have a Material Adverse Effect on the Facility or the Acquired Assets and
Assumed Liabilities.
3.16.
No Undisclosed Liabilities. The Assumed Liabilities do not include any material
Liabilities (including, without limitation, Indebtedness), of the type required
to be reflected as liabilities on a balance sheet prepared in accordance with
GAAP, except as set forth in Schedule 3.16 and except for current liabilities
incurred in the ordinary course of business that individually or in the
aggregate, could not reasonably be expected to have a Material Adverse Effect on
the Facility or the Acquired Assets.
3.17.
Sales by Seller.
Seller represents that no rate or charge for, or in connection
with, the construction of the Facility, or for electric energy produced by the
Facility (other than any portion of a rate or charge which represents recovery
of the cost of a wholesale rate or charge) was in effect under the laws of any
state as of October 24, 1992.
3.18.
Disclaimers Regarding Acquired Assets.
EXCEPT FOR ANY REPRESENTATIONS AND
WARRANTIES SET FORTH IN THIS SECTION 3, THE ACQUIRED ASSETS ARE SOLD "AS IS,
WHERE IS," AND SELLER EXPRESSLY DISCLAIMS ANY REPRESENTATIONS OR WARRANTIES OF
ANY KIND OR NATURE, EXPRESS OR IMPLIED, AS TO LIABILITIES, OPERATIONS OF THE
FACILITY, TITLE, CONDITION, VALUE OR QUALITY OF THE ACQUIRED ASSETS OR THE
PROSPECTS (FINANCIAL AND OTHERWISE), RISKS AND OTHER INCIDENTS OF THE ACQUIRED
ASSETS INCLUDING, WITHOUT LIMITATION, WITH RESPECT TO THE ACTUAL OR RATED
GENERATING CAPABILITY OF THE FACILITY OR THE ABILITY OF BUYER TO SELL FROM THE
FACILITY ELECTRIC ENERGY, CAPACITY OR OTHER PRODUCTS RECOGNIZED BY ISO NEW
ENGLAND FROM TIME TO TIME, AND SELLER SPECIFICALLY DISCLAIMS ANY REPRESENTATION
OR WARRANTY OF MERCHANTABILITY, USAGE, OR SUITABILITY OR FITNESS FOR ANY
PARTICULAR PURPOSE WITH RESPECT TO THE ACQUIRED ASSETS, OR ANY PART THEREOF, OR
AS TO THE WORKMANSHIP THEREOF, OR THE ABSENCE OF ANY DEFECTS THEREIN, WHETHER
LATENT OR PATENT, OR COMPLIANCE WITH ENVIRONMENTAL REQUIREMENTS, OR AS TO THE
CONDITION OF THE ACQUIRED ASSETS, OR ANY PART THEREOF, INCLUDING, WITHOUT
LIMITATION, WHETHER SELLER POSSESSES SUFFICIENT REAL PROPERTY OR PERSONAL
PROPERTY TO OPERATE THE ACQUIRED ASSETS, IN EACH CASE EXCEPT AS SET FORTH
HEREIN.
EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN, SELLER FURTHER
SPECIFICALLY DISCLAIMS ANY REPRESENTATION OR WARRANTY REGARDING THE ABSENCE OF
HAZARDOUS