is a
Multiemployer Plan.
3.11.
Intellectual Property.
Schedule 2.1(a) discloses all material Intellectual
Property owned, licensed or leased by such Seller or its Affiliates and used for
the operation of the NGC Facilities as presently operated in all material
respects that is not included in the Related Assets.
Such Seller or its
Affiliates have all right, title and interest in or valid, binding and
irrevocable rights to use such Intellectual Property included in the Related
Assets without material limitation, Liens (except for Permitted Encumbrances) or
royalty burdens.
To the Knowledge of such Seller, none of such Intellectual
Property included in the Related Assets is being infringed by any other Person,
and such 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 Related Assets, that in
either case could reasonably be expected to have a Material Adverse Effect on
the NGC Facilities.
3.12.
Disclaimers Regarding Related Assets.
EXCEPT FOR ANY REPRESENTATIONS AND
WARRANTIES SET FORTH IN THIS SECTION 3, THE RELATED ASSETS ARE SOLD "AS IS,
WHERE IS," AND EACH SELLER EXPRESSLY DISCLAIMS ANY REPRESENTATIONS OR WARRANTIES
OF ANY KIND OR NATURE, EXPRESS OR IMPLIED, AS TO LIABILITIES, OPERATIONS OF THE
NGC FACILITIES, TITLE, CONDITION, VALUE OR QUALITY OF THE RELATED ASSETS OR THE
PROSPECTS (FINANCIAL AND OTHERWISE), RISKS AND OTHER INCIDENTS OF THE RELATED
ASSETS INCLUDING, WITHOUT LIMITATION, WITH RESPECT TO THE ACTUAL OR RATED
GENERATING CAPABILITY OF THE NGC FACILITIES OR THE ABILITY OF BUYER TO SELL FROM
THE NGC FACILITIES ELECTRIC ENERGY, CAPACITY OR OTHER PRODUCTS RECOGNIZED BY ISO
NEW ENGLAND FROM TIME TO TIME, AND SELLERS SPECIFICALLY DISCLAIM ANY
REPRESENTATION OR WARRANTY OF MERCHANTABILITY, USAGE, OR SUITABILITY OR FITNESS
FOR ANY PARTICULAR PURPOSE WITH RESPECT TO THE RELATED 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 RELATED ASSETS, OR ANY PART THEREOF,
IN EACH CASE EXCEPT AS SET FORTH HEREIN.
EXCEPT AS OTHERWISE EXPRESSLY PROVIDED
HEREIN, EACH SELLER FURTHER SPECIFICALLY DISCLAIMS ANY REPRESENTATION OR
WARRANTY REGARDING THE ABSENCE OF HAZARDOUS SUBSTANCES OR LIABILITY OR POTENTIAL
LIABILITY ARISING UNDER ENVIRONMENTAL LAWS. WITHOUT LIMITING THE GENERALITY OF
THE FOREGOING, EXCEPT AS EXPRESSLY PROVIDED HEREIN, EACH SELLER EXPRESSLY
DISCLAIMS ANY REPRESENTATION OR WARRANTY OF ANY KIND REGARDING THE CONDITION OF
THE RELATED ASSETS OR THE SUITABILITY OF THE NGC FACILITIES FOR OPERATION AS
POWER PLANTS OR AS SITES FOR THE DEVELOPMENT OF ADDITIONAL OR REPLACEMENT
GENERATION CAPACITY AND NO MATERIAL OR INFORMATION PROVIDED BY OR COMMUNICATIONS
MADE BY SELLERS, OR BY ANY BROKER OR INVESTMENT BANKER,
INCLUDING WITHOUT LIMITATION ANY INFORMATION OR MATERIAL CONTAINED IN THE
DESCRIPTIVE MEMORANDUM DATED AS OF FEBRUARY, 2006, AS SUPPLEMENTED, INFORMATION
PROVIDED DURING DUE DILIGENCE, INCLUDING BUT NOT LIMITED TO INFORMATION IN THE
DATA ROOM, AND ANY ORAL, WRITTEN OR ELECTRONIC RESPONSE TO ANY INFORMATION