Common use of Independent Examination Clause in Contracts

Independent Examination. Within 10 days after the Facility Lessee receives any computation from the Tax Indemnitee, the Facility Lessee may request in writing that an independent public accounting firm selected by the Tax Indemnitee and reasonably acceptable to the Facility Lessee review and determine on a confidential basis the amount of any indemnity payment by the Facility Lessee to the Tax Indemnitee pursuant to this Section 9.2 or any payment by a Tax Indemnitee to the Facility Lessee pursuant to paragraph (e) or (f) below. The Tax Indemnitee shall cooperate with such accounting firm and supply it with all information reasonably necessary for the accounting firm to conduct such review and determination (but not tax returns and books); provided that such accounting firm shall agree in writing in a manner reasonably satisfactory to the Tax Indemnitee to maintain the confidentiality of such information. The parties hereto agree that the independent public accounting firm's sole responsibility shall be to verify the computation of any payment pursuant to this Section 9.2 and that matters of interpretation of this Participation Agreement or any other Operative Document or the South Point Ground Lease are not within the scope of the independent accountant's responsibility. The fees and disbursements of such accounting firm will be paid by the Facility Lessee; provided that such fees and disbursements will be paid by the Tax Indemnitee if the verification results in an adjustment in the Facility Lessee's favor of 5 percent or more of the indemnity payment or payments computed by the Tax Indemnitee.

Independent Examination. Within 10 days after the Facility Lessee receives any computation from the Tax Indemnitee, the Facility Lessee may request in writing that an independent public accounting firm selected by the Tax Indemnitee and reasonably acceptable to the Facility Lessee review and determine on a confidential basis the amount of any indemnity payment by the Facility Lessee to the Tax Indemnitee pursuant to this Section 9.2 or any payment by a Tax Indemnitee to the Facility Lessee pursuant to paragraph (e) or (f) below. The Tax Indemnitee shall cooperate with such accounting firm and supply it with all information reasonably necessary for the accounting firm to conduct such review and determination (but not tax returns and books); provided that such accounting firm shall agree in writing in a manner reasonably satisfactory to the Tax Indemnitee to maintain the confidentiality of such information. The parties hereto agree that the independent public accounting firm's sole responsibility shall be to verify the computation of any payment pursuant to this Section 9.2 and that matters of interpretation of this Participation Agreement or any other Operative Document or the South Point Ground FILOT Lease are not within the scope of the independent accountant's responsibility. The fees and disbursements of such accounting firm will be paid by the Facility Lessee; provided that such fees and disbursements will be paid by the Tax Indemnitee if the verification results in an adjustment in the Facility Lessee's favor of 5 percent or more of the indemnity payment or payments computed by the Tax Indemnitee.

Independent Examination. Within 10 fifteen (15) days after the Facility Lessee NRG receives any computation from the Tax Indemnitee, the Facility Lessee NRG may request in writing that an independent public accounting firm selected by the Tax Indemnitee and reasonably acceptable to the Facility Lessee NRG review and determine on a confidential basis the amount of any indemnity payment by the Facility Lessee NRG to the Tax Indemnitee pursuant to this Section 9.2 12.2 or any payment by a Tax Indemnitee to the Facility Lessee NRG pursuant to paragraph (e) or (f) below. The Tax Indemnitee and NRG shall cooperate with such accounting firm and supply it with all information reasonably necessary for the accounting firm to conduct such review and determination (but not tax returns and books); determination, provided that such accounting firm shall agree in writing in a manner reasonably satisfactory to the Tax Indemnitee Indemnitee, or NRG, as the case may be, to maintain the confidentiality of such information. The , and provided further that neither any Tax Indemnitee nor NRG shall be required to disclose any of its tax returns or books that such Tax Indemnitee or NRG, as the case may be, reasonably deems to be confidential in connection with such verification, and the parties hereto agree that such Tax Indemnitee, or NRG, as the independent public accounting firm's case may be, shall have sole responsibility shall be control over the positions taken with respect to verify the computation of any payment pursuant to this Section 9.2 such party’s tax returns and that matters of interpretation of this Participation Agreement or any other Operative Document or the South Point Ground Lease are not within the scope of the independent accountant's responsibilityfilings. The fees and disbursements of such accounting firm will be paid by the Facility LesseeNRG; provided that such fees and disbursements will be paid by the Tax Indemnitee if the verification results in an adjustment in accountants determine that the Facility Lessee's favor of 5 percent or more present value of the indemnity payment or total payments computed as calculated by the Tax Indemnitee is more than 105 percent of the present value of the correct payments (such present values in each case to be determined by the Discount Rate). In the event such accounting firm determines that such computations are incorrect, then such firm shall determine what it believes to be the correct computations. The computations of the accounting firm shall be final, binding and conclusive upon NRG and the Tax Indemnitee. The parties hereto agree that the independent public accounting firm’s sole responsibility shall be to verify the computation of any payment pursuant to this Section 12.2 and that matters of interpretation of this Participation Agreement or any other Operative Document are not within the scope of the independent accountant’s responsibility. Such accounting firm shall be requested to make its determination within thirty (30) days.

Independent Examination. Within 10 15 days after the Facility Lessee Xxxxx City receives any computation from the Tax Indemnitee, the Facility Lessee Xxxxx City may request in writing that an independent public accounting firm selected by the Tax Indemnitee and reasonably acceptable to the Facility Lessee Xxxxx City review and determine on a confidential basis the amount of any indemnity payment by the Facility Lessee Xxxxx City to the Tax Indemnitee pursuant to this Section 9.2 SECTION 10.2 or any payment by a Tax Indemnitee to the Facility Lessee Xxxxx City pursuant to paragraph (e) or (f) below. The Tax Indemnitee and Xxxxx City shall cooperate with such accounting firm and supply it with all information reasonably necessary for the accounting firm to conduct such review and determination (but not tax returns and books); provided determination, PROVIDED that such accounting firm shall agree in writing in a manner reasonably satisfactory to the Tax Indemnitee Indemnitee, or Xxxxx City, as the case may be, to maintain the confidentiality of such information, and PROVIDED FURTHER that neither any Tax Indemnitee nor Xxxxx City shall be required to disclose any of its tax returns or books that such Tax Indemnitee or Xxxxx City, as the case may be, reasonably deems to be confidential in connection with such verification, and the parties hereto agree that such Tax Indemnitee, or Xxxxx City, as the case may be, shall have sole control over the positions taken with respect to such party's tax returns and filings. The fees and disbursements of such accounting firm will be paid by Xxxxx City; PROVIDED that such fees and disbursements will be paid by the Tax Indemnitee if the accountants determine that the present value of the total payments as calculated by the Tax Indemnitee is more than 105 percent of the present value of the correct payments (such present values in each case to be determined by the Discount Rate). In the event such accounting firm determines that such computations are incorrect, then such firm shall determine what it believes to be the correct computations. The computations of the accounting firm shall be final, binding and conclusive upon Xxxxx City and the Tax Indemnitee. The parties hereto agree that the independent public accounting firm's sole responsibility shall be to verify the computation of any payment pursuant to this Section 9.2 SECTION 10.2 and that matters of interpretation of this Participation Agreement or any other Operative Document or the South Point Ground Lease are not within the scope of the independent accountant's responsibility. The fees and disbursements of such Such accounting firm will shall be paid by the Facility Lessee; provided that such fees and disbursements will be paid by the Tax Indemnitee if the verification results in an adjustment in the Facility Lessee's favor of 5 percent or more of the indemnity payment or payments computed by the Tax Indemniteerequested to make its determination within 30 days.

Independent Examination. Within 10 15 days after the Facility Lessee EME receives any computation from the Tax Indemnitee, the Facility Lessee EME may request in writing that an independent public accounting firm selected by the Tax Indemnitee and reasonably acceptable to the Facility Lessee EME review and determine on a confidential basis the amount of any indemnity payment by the Facility Lessee EME to the Tax Indemnitee pursuant to this Section 9.2 SECTION 12.2 or any payment by a Tax Indemnitee to the Facility Lessee EME pursuant to paragraph (e) or (f) below. The Tax Indemnitee and EME shall cooperate with such accounting firm and supply it with all information reasonably necessary for the accounting firm to conduct such review and determination (but not tax returns and books); provided determination, PROVIDED that such accounting firm shall agree in writing in a manner reasonably satisfactory to the Tax Indemnitee Indemnitee, or EME, as the case may be, to maintain the confidentiality of such information, and PROVIDED FURTHER that neither any Tax Indemnitee nor EME shall be required to disclose any of its tax returns or books that such Tax Indemnitee or EME, as the case may be, reasonably deems to be confidential in connection with such verification, and the parties hereto agree that such Tax Indemnitee, or EME, as the case may be, shall have sole control over the positions taken with respect to such party's tax returns and filings. The fees and disbursements of such accounting firm will be paid by EME; PROVIDED that such fees and disbursements will be paid by the Tax Indemnitee if the accountants determine that the present value of the total payments as calculated by the Tax Indemnitee is more than 105 percent of the present value of the correct payments (such present values in each case to be determined by the Discount Rate). In the event such accounting firm determines that such computations are incorrect, then such firm shall determine what it believes to be the correct computations. The computations of the accounting firm shall be final, binding and conclusive upon EME and the Tax Indemnitee. The parties hereto agree that the independent public accounting firm's sole responsibility shall be to verify the computation of any payment pursuant to this Section 9.2 SECTION 12.2 and that matters of interpretation of this Participation Agreement or any other Operative Document or the South Point Ground Lease are not within the scope of the independent accountant's responsibility. The fees and disbursements of such Such accounting firm will shall be paid by the Facility Lessee; provided that such fees and disbursements will be paid by the Tax Indemnitee if the verification results in an adjustment in the Facility Lessee's favor of 5 percent or more of the indemnity payment or payments computed by the Tax Indemniteerequested to make its determination within 30 days.

Independent Examination. Within 10 15 days after the Facility Lessee Xxxxx City receives any computation from the Tax Indemnitee, the Facility Lessee Xxxxx City may request in writing that an independent public accounting firm selected by the Tax Indemnitee and reasonably acceptable to the Facility Lessee Xxxxx City review and determine on a confidential basis the amount of any indemnity payment by the Facility Lessee Xxxxx City to the Tax Indemnitee pursuant to this Section 9.2 10.2 or any payment by a Tax Indemnitee to the Facility Lessee Xxxxx City pursuant to paragraph (e) or (f) below. The Tax Indemnitee and Xxxxx City shall cooperate with such accounting firm and supply it with all information reasonably necessary for the accounting firm to conduct such review and determination (but not tax returns and books); determination, provided that such accounting firm shall agree in writing in a manner reasonably satisfactory to the Tax Indemnitee Indemnitee, or Xxxxx City, as the case may be, to maintain the confidentiality of such information, and provided further that neither any Tax Indemnitee nor Xxxxx City shall be required to disclose any of its tax returns or books that such Tax Indemnitee or Xxxxx City, as the case may be, reasonably deems to be confidential in connection with such verification, and the parties hereto agree that such Tax Indemnitee, or Xxxxx City, as the case may be, shall have sole control over the positions taken with respect to such party's tax returns and filings. The fees and disbursements of such accounting firm will be paid by Xxxxx City; provided that such fees and disbursements will be paid by the Tax Indemnitee if the accountants determine that the present value of the total payments as calculated by the Tax Indemnitee is more than 105 percent of the present value of the correct payments (such present values in each case to be determined by the Discount Rate). In the event such accounting firm determines that such computations are incorrect, then such firm shall determine what it believes to be the correct computations. The computations of the accounting firm shall be final, binding and conclusive upon Xxxxx City and the Tax Indemnitee. The parties hereto agree that the independent public accounting firm's sole responsibility shall be to verify the computation of any payment pursuant to this Section 9.2 10.2 and that matters of interpretation of this Participation Agreement or any other 51 Operative Document or the South Point Ground Lease are not within the scope of the independent accountant's responsibility. The fees and disbursements of such Such accounting firm will shall be paid by the Facility Lessee; provided that such fees and disbursements will be paid by the Tax Indemnitee if the verification results in an adjustment in the Facility Lessee's favor of 5 percent or more of the indemnity payment or payments computed by the Tax Indemniteerequested to make its determination within 30 days.

Independent Examination. With respect to the exercise of rights by the Tax Indemnitee under Section 9.2(d) of the Participation Agreement, the Tax Indemnitee shall, to the extent permitted under Section 9.2(d) of the Participation Agreement, grant the Sublessee a power of attorney to act on behalf of the Tax Indemnitee, provided that no Sublease Event of Default shall have occurred and be occurring. Within 10 30 days after the Facility Lessee Sublessee receives any computation from the Tax IndemniteeIndemnitee pursuant to Section 21.1(c)(ii)(A) above, the Facility Lessee Sublessee may request in writing that an independent public accounting firm jointly selected by the Tax Indemnitee and reasonably acceptable to the Facility Lessee Sublessee review and determine on a confidential basis the amount of any indemnity payment payable by the Facility Lessee Sublessee to the Tax Indemnitee pursuant to this Section 9.2 21.1 or any payment by a the Tax Indemnitee to the Facility Lessee Sublessee pursuant to paragraph (eSection 21.1(e) or (fSection 21.1(f) below. The Tax Indemnitee shall cooperate with such accounting firm and supply it with all information reasonably necessary for the accounting firm to conduct such review and determination (but not tax returns and books)determination; provided that such accounting firm shall agree in writing in a manner reasonably satisfactory to the Tax Indemnitee to maintain the confidentiality of such information; and provided, further, that the Tax Indemnitee shall not be required to provide income tax returns. The parties hereto agree that the Tax Indemnitee shall have sole control over the positions taken with respect to its own tax returns and filings. The parties hereto further agree that the independent public accounting firm's ’s sole responsibility shall be to verify the computation of any payment pursuant to this Section 9.2 21.1 and that matters of interpretation of this Participation Agreement Facility Sublease or any other Operative Document or the South Point Ground Lease are not within the scope of the independent accountant's ’s responsibility. The fees and disbursements of such accounting firm will be paid by the Facility LesseeSublessee; provided that such fees and disbursements will be paid by the Tax Indemnitee if the verification results in an adjustment in the Facility Lessee's Sublessee’s favor of 5 five percent or more of the indemnity payment or payments computed by the Tax IndemniteeIndemnitee (determined using a discount rate of six percent). In the event such accounting firm determines that such computations are incorrect, then such firm shall determine what it believes to be the correct computations. The computations of the accounting firm shall be final, binding and conclusive upon the Sublessee and the Tax Indemnitee (absent manifest error). Such accounting firm shall be requested to makes its determination within 30 days.

Independent Examination. Within 10 15 days after the Facility Lessee Company ----------------------- receives any computation from the a Tax Indemnitee, the Facility Lessee Company may request in writing that an independent public accounting firm jointly selected by the Tax Indemnitee and reasonably acceptable to the Facility Lessee Company review and determine on a confidential basis the amount of any indemnity payment by the Facility Lessee Company to the Tax Indemnitee pursuant to this Section 9.2 or any payment by a Tax Indemnitee to the Facility Lessee Company pursuant to paragraph (eSection 9.2(e) or (fSection 9.2(f) below. The Tax Indemnitee shall cooperate with such accounting firm and supply it with all information reasonably necessary for the accounting firm to conduct such review and determination (but not tax returns and books); provided provided, that such accounting firm shall agree in writing in a manner reasonably satisfactory to the Tax Indemnitee to maintain the confidentiality of such information. The parties hereto agree that each Tax Indemnitee shall have sole control over the positions taken with respect to its own tax returns and filings. The parties hereto further agree that the independent public accounting firm's sole responsibility shall be to verify the computation of any payment pursuant to this Section 9.2 and that matters of interpretation of this Participation Agreement or any other Operative Document or the South Point Ground Lease are not within the scope of the independent accountant's responsibility. The fees and disbursements of such accounting firm will be paid by the Facility LesseeCompany; provided that such fees and disbursements will be paid by the Tax Indemnitee (other than the Lease Indenture Trustee or the Pass Through Trustees, unless the inaccuracy of such Person's computation is the result of negligence or willful misconduct) if the verification results in an adjustment in the Facility LesseeCompany's favor of 5 five percent or more of the indemnity payment or payments computed by the Tax IndemniteeIndemnitee (determined using a discount rate of six percent). In the event such accounting firm determines that such computations are incorrect, then such firm shall determine what it believes to be the correct computations. The computations of the accounting firm shall be final, binding and conclusive upon the Company and the Tax Indemnitee (absent manifest error). Such accounting firm shall be requested to make its determination with 30 days.

Independent Examination. Within 10 days after Subject to the Facility Lessee receives any computation other provisions of this Section 2.9, Buyer shall have the right during the period beginning on the date hereof and continuing through the date that is [omitted] from the Tax Indemniteedate hereof (the “Examination Period”) to conduct land and title work and diligence on the Leases and Units and environmental assessments, independently on its own behalf and account, to (i) examine and make copies of all Records, (ii) conduct an on-site inspection of all well sites and appurtenant equipment and facilities located in the Facility Lessee may Units and on the lands covered by the Leases or lands spaced, pooled or unitized therewith, and (iii) conduct any other reasonable examinations, inspections, and investigations that Buyer considers appropriate for its due diligence review of such matters (“Independent Title and Environmental Review”) (such environmental assessments to be * Portions of this exhibit (indicated by [omitted]) have been omitted pursuant to a request in writing that an independent public accounting for confidential treatment and have been separately filed with the Securities and Exchange Commission. conducted by [omitted] or another reputable environmental consulting or engineering firm selected by the Tax Indemnitee Buyer and reasonably acceptable approved by Seller, such approval not to be unreasonably withheld, conditioned or delayed), and may, by delivery of Notice to Seller prior to the Facility Lessee review expiration of the Examination Period (or, in the case of Special Warranty Title Defects, prior to [omitted]), assert the existence of an alleged Title Defect with respect to any of the Leases of Lavaca and/or Units or an Environmental Defect (“Defect Notice”). All such due diligence activities shall be conducted by Buyer at Buyer’s sole cost, risk, and determine on expense. No claims for Title Defects or Environmental Defects arising at Leases and Units may be submitted after the Examination Period, and any matters that may otherwise constitute Title Defects or Environmental Defects arising at Leases and Units, but for which Buyer has not delivered a confidential basis the amount of any indemnity payment by the Facility Lessee Defect Notice to Seller prior to the Tax Indemnitee pursuant expiration of the Examination Period, shall be deemed to this Section 9.2 have been waived by Buyer for all purposes and shall constitute Permitted Encumbrances; provided, however, that Buyer may make claims for Special Warranty Title Defects on or any payment by a Tax Indemnitee before [omitted]. From and after the date hereof until the expiration of the Examination Period, Seller shall (i) allow, and shall cause each of its Representatives to allow, Buyer and its Representatives reasonable access during normal business hours to Seller’s personnel and Employees, facilities, properties, and Records in connection with the Independent Title and Environmental Review, and (ii) make available to Buyer and its Representatives, upon reasonable notice during normal business hours, Seller’s personnel and employees knowledgeable with respect to title and environmental matters relating to the Facility Lessee pursuant to paragraph (e) or (f) belowCompanies and the Company Assets, provided that such Independent Title and Environmental Review shall be conducted in a manner that does not unreasonably interfere with the operations of Seller and its Affiliates. The Tax Indemnitee Seller shall cooperate with Buyer to facilitate Buyer’s diligence of the Company Oil and Gas Properties, including its inspection of the Records. Seller shall use its commercially reasonable efforts to obtain permission from any Third Party operator of any xxxxx located in the Units or on the lands covered by the Lease or on lands spaced, pooled or unitized therewith to provide Buyer with reasonable access to the physical premises of each such accounting firm well site and supply the equipment and facilities appurtenant thereto. Prior to the Closing Date, Buyer shall not disclose any environmental sampling and testing results to any Third Party (other than Buyer’s Representatives) unless required by applicable Law, provided that if Buyer believes it may have an obligation to disclose such results to a Third Party it will promptly notify and consult with all Seller regarding such belief and will in good faith consider any information reasonably necessary for Seller provides in evaluating such potential disclosure obligation, and, provided further, that if Seller concludes that disclosure is required Seller may make such disclosure, it being understood that if Seller fails to timely make such disclosure and Buyer is legally obligated to do so, Buyer shall be entitled to make the accounting firm relevant disclosure as required. During the Examination Period, Buyer shall provide Notice to conduct such review Seller of any Title Defect or Environmental Defect as promptly as practicable after Buyer has actual knowledge of any matter that Buyer considers to be a Title Defect or an Environmental Defect and determination (but not tax returns and bookssufficient information to provide the items required to be included in a Defect Notice, as provided in Section 2.9(c); provided that the failure to provide such accounting firm notice shall agree in writing in a manner reasonably satisfactory not prejudice Buyer’s rights hereunder with respect to such Title Defect or Environmental Defect, except insofar as Seller is prejudiced by such failure; provided further that, to the Tax Indemnitee to maintain the confidentiality of such informationextent that [omitted]. The parties hereto agree that the independent public accounting firm's sole responsibility shall be to verify the computation of any payment pursuant to this Section 9.2 fees, costs, and that matters of interpretation of this Participation Agreement expenses incurred by Buyer in conducting its Independent Title and Environmental Review or any other Operative Document or due diligence investigation shall be borne by Buyer for its sole account. * Portions of this exhibit (indicated by [omitted]) have been omitted pursuant to a request for confidential treatment and have been separately filed with the South Point Ground Lease are not within the scope of the independent accountant's responsibility. The fees Securities and disbursements of such accounting firm will be paid by the Facility Lessee; provided that such fees and disbursements will be paid by the Tax Indemnitee if the verification results in an adjustment in the Facility Lessee's favor of 5 percent or more of the indemnity payment or payments computed by the Tax IndemniteeExchange Commission.

Independent Examination. Within 10 15 days after the Facility Lessee Xxxxx City receives any computation from the Tax Indemnitee, the Facility Lessee Xxxxx City may request in writing that an independent public accounting firm selected by the Tax Indemnitee and reasonably acceptable to the Facility Lessee Xxxxx City review and determine on a confidential basis the amount of any indemnity payment by the Facility Lessee Xxxxx City to the Tax Indemnitee pursuant to this Section 9.2 SECTION 10.2 or any payment by a Tax Indemnitee to the Facility Lessee Xxxxx City pursuant to paragraph (e) or (f) below. The Tax Indemnitee and Xxxxx City shall cooperate with such accounting firm and supply it with all information reasonably necessary for the accounting firm to conduct such review and determination (but not tax returns and books); provided determination, PROVIDED that such accounting firm shall agree in writing in a manner reasonably satisfactory to the Tax Indemnitee Indemnitee, or Xxxxx City, as the case may be, to maintain the confidentiality of such information, and PROVIDED FURTHER that neither any Tax Indemnitee nor Xxxxx City shall be required to disclose any of its tax returns or books that such Tax Indemnitee or Xxxxx City, as the case may be, reasonably deems to be confidential in connection with such verification, and the parties hereto agree that such Tax Indemnitee, or Xxxxx City, as the case may be, shall have sole control over the positions taken with respect to such party's tax returns and filings. The fees and disbursements of such accounting firm will be paid by Xxxxx City; PROVIDED that such fees and disbursements will be paid by the Tax Indemnitee if the accountants determine that the present value of the total payments as calculated by the Tax Indemnitee is more than 105 percent of the present value of the correct payments (such present values in each case to be determined by the Discount Rate). In the event such accounting firm determines that such computations are incorrect, then such firm shall determine what it believes to be the correct computations. The computations of the accounting firm shall be final, binding and conclusive upon Xxxxx City and the Tax Indemnitee. The parties hereto agree that the independent public accounting firm's sole responsibility shall be to verify the computation of any payment pursuant to this Section 9.2 and that matters of interpretation of this Participation Agreement or any other Operative Document or the South Point Ground Lease are not within the scope of the independent accountant's responsibility. The fees and disbursements of such accounting firm will be paid by the Facility Lessee; provided that such fees and disbursements will be paid by the Tax Indemnitee if the verification results in an adjustment in the Facility Lessee's favor of 5 percent or more of the indemnity payment or payments computed by the Tax Indemnitee.this

Independent Examination. Within 10 fifteen (15) days after the Facility Lessee Guarantor receives any computation from the Tax Indemnitee, the Facility Lessee Guarantor may request in writing that an independent public accounting firm selected by the Tax Indemnitee and reasonably acceptable to the Facility Lessee Guarantor review and determine on a confidential basis the amount of any indemnity payment by the Facility Lessee Guarantor to the Tax Indemnitee pursuant to this Section 9.2 SECTION 6.3 or any payment by a Tax an Indemnitee to the Facility Lessee Guarantor pursuant to paragraph (e) or (f) below. The Tax Indemnitee and Guarantor shall cooperate with such accounting firm and supply it with all information reasonably necessary for the accounting firm to conduct such review and determination (but not tax returns and books); provided determination, PROVIDED that such accounting firm shall agree in writing in a manner reasonably satisfactory to the Tax Indemnitee Indemnitee, or Guarantor, as the case may be, to maintain the confidentiality of such information, and PROVIDED FURTHER that neither any Indemnitee nor Guarantor shall be required to disclose any of its tax returns or books that such Indemnitee or Guarantor, as the case may be, reasonably deems to be confidential in connection with such verification, and the parties hereto agree that such Indemnitee, or Guarantor, as the case may be, shall have sole control over the positions taken with respect to such party's tax returns and filings. The fees and disbursements of such accounting firm will be paid by Guarantor; PROVIDED that such fees and disbursements will be paid by the Indemnitee if the accountants determine that the present value of the total payments as calculated by the Indemnitee is more than 105 percent of the present value of the correct payments (such present values in each case to be determined by the Discount Rate). In the event such accounting firm determines that such computations are incorrect, then such firm shall determine what it believes to be the correct computations. The PARTICIPATION AGREEMENT 44 computations of the accounting firm shall be final, binding and conclusive upon Guarantor and the Indemnitee. The parties hereto agree that the independent public accounting firm's sole responsibility shall be to verify the computation of any payment pursuant to this Section 9.2 SECTION 6.3 and that matters of interpretation of this Participation Agreement or any other Operative Document or the South Point Ground Lease are not within the scope of the independent accountant's responsibility. The fees and disbursements of such Such accounting firm will shall be paid by the Facility Lessee; provided that such fees and disbursements will be paid by the Tax Indemnitee if the verification results in an adjustment in the Facility Lessee's favor of 5 percent or more of the indemnity payment or payments computed by the Tax Indemniteerequested to make its determination within thirty (30) days.

Independent Examination. Within 10 15 days after the Facility Lessee SEMA receives any computation from the Tax Indemnitee, the Facility Lessee SEMA may request in writing that an independent public accounting firm selected by the Tax Indemnitee and reasonably acceptable to the Facility Lessee SEMA review and determine on a confidential basis the amount of any indemnity payment by the Facility Lessee SEMA to the Tax Indemnitee pursuant to this Section 9.2 ------- 10.2 or any payment by a Tax Indemnitee to the Facility Lessee SEMA pursuant to paragraph (e) or (f) ---- below. The Tax Indemnitee and SEMA shall cooperate with such accounting firm and supply it with all information reasonably necessary for the accounting firm to conduct such review and determination (but not tax returns and books); determination, provided that such accounting firm shall agree in XXXXXXXXX PARTICIPATION AGREEMENT (L1) -------------------------------------- writing in a manner reasonably satisfactory to the Tax Indemnitee Indemnitee, or SEMA, as the case may be, to maintain the confidentiality of such information, and provided further that neither any Tax Indemnitee nor SEMA shall be required to disclose any of its tax returns that such Tax Indemnitee or SEMA, as the case may be, reasonably deems to be confidential in connection with such verification, and the parties hereto agree that such Tax Indemnitee, or SEMA, as the case may be, shall have sole control over the positions taken with respect to such party's tax returns and filings. The fees and disbursements of such accounting firm will be paid by SEMA; provided that such fees and disbursements will be paid by the Tax Indemnitee if the accountants determine that the present value of the total payments as calculated by the Tax Indemnitee is more than 105 percent of the present value of the correct payments (such present values in each case to be determined by the Discount Rate). In the event such accounting firm determines that such computations are incorrect, then such firm shall determine what it believes to be the correct computations. The computations of the accounting firm shall be final, binding and conclusive upon SEMA and the Tax Indemnitee. The parties hereto agree that the independent public accounting firm's sole responsibility shall be to verify the computation of any payment pursuant to this Section 9.2 10.2 and that matters of interpretation of this Participation ------------ Agreement or any other Operative Document or the South Point Ground Lease are not within the scope of the independent accountant's responsibility. The fees and disbursements of such Such accounting firm will shall be paid by the Facility Lessee; provided that such fees and disbursements will be paid by the Tax Indemnitee if the verification results in an adjustment in the Facility Lessee's favor of 5 percent or more of the indemnity payment or payments computed by the Tax Indemniteerequested to make its determination within 30 days.

Independent Examination. Within 10 15 days after the Facility Lessee Old Dominion receives any computation from the Tax Indemnitee, the Facility Lessee Old Dominion may request in writing that an independent public accounting firm selected by the Tax Indemnitee and reasonably acceptable to the Facility Lessee Old Dominion review and determine on a confidential basis the amount of any indemnity payment by the Facility Lessee Old Dominion to the Tax Indemnitee pursuant to this Section 9.2 paragraph (a) above or any payment by a Tax Indemnitee to the Facility Lessee Old Dominion pursuant to paragraph (e) or (f) below. The Tax Indemnitee shall cooperate with such accounting firm and supply it with all information reasonably documentation and records necessary for the accounting firm to conduct such review and determination (including relevant data from the Indemnitee's income tax returns but not tax such returns and booksthemselves); provided , PROVIDED that such accounting firm shall agree in writing in a manner reasonably satisfactory to the Tax Indemnitee to maintain the confidentiality of such information. The parties hereto agree that the independent public accounting firm's sole responsibility shall be to verify the computation of any payment pursuant to this Section 9.2 8.2 and that matters of interpretation of this Participation Agreement or any other Operative Document or the South Point Ground Lease are not within the scope of the independent accountant's responsibility. The fees and disbursements of such accounting firm will be paid by the Facility Lessee; provided Old Dominion, PROVIDED that such fees and disbursements will be paid by the Tax Indemnitee if the verification results in an adjustment in the Facility LesseeOld Dominion's favor of 5 ten percent or more of the net present value (using a discount rate equal to the rate of interest on underpayments of federal income tax for the period in question and calculating such value as of the date such payment becomes due and payable under this Agreement) of the indemnity payment or payments computed by the Tax Indemnitee.

Independent Examination. Within 10 15 days after the Facility Lessee Company receives any computation from the a Tax Indemnitee, the Facility Lessee Company may request in writing that an independent public accounting firm jointly selected by the Tax Indemnitee and reasonably acceptable to the Facility Lessee Company review and determine on a confidential basis the amount of any indemnity payment owed by the Facility Lessee Company to the Tax Indemnitee pursuant to this Section 9.2 or 12.2 (and/or the amount of any reverse payment owed by a the Tax Indemnitee to the Facility Lessee Company pursuant to paragraph (eSection 12.2(e) or (fSection 12.2(f) below). The Tax Indemnitee shall cooperate with such accounting firm and supply it with all information reasonably necessary for the accounting firm to conduct such review and determination determination; provided, that (but not tax returns and books); provided that i) such accounting firm shall agree in writing in a manner reasonably satisfactory to the Tax Indemnitee to maintain the confidentiality of such informationinformation and (ii) neither any Tax Indemnitee nor the Company shall be required to disclose any of its tax returns or books that such Tax Indemnitee or the Company, as the case may be, reasonably deems to be confidential in connection with such verification. The parties hereto agree that each Tax Indemnitee shall have sole control over the positions taken with respect to its own tax returns and filings. The parties hereto further agree that the independent public accounting firm's ’s sole responsibility shall be to verify the computation of any payment pursuant to this Section 9.2 12.2 and that matters of interpretation of this Participation Agreement or any other Operative Document or the South Point Ground Lease are not within the scope of the independent accountant's ’s responsibility. The fees and disbursements of such the accounting firm will be paid for by the Facility Lessee; provided that such fees and disbursements will be paid by the Tax Indemnitee if Company, unless the verification results in an adjustment in the Facility Lessee's Company’s favor of 5 the lesser of (i) $100,000 and (ii) five percent or more of the present value of the aggregate indemnity payment or payments computed by the Tax Indemnitee (determined using a discount rate of six percent), in which case the fees and disbursements will be paid for by the Tax Indemnitee. In the event the accounting firm determines that the Tax Indemnitee’s computations are incorrect, then such firm shall determine what it believes to be the correct computations. The computations of the accounting firm shall be final, binding and conclusive upon the Company and the Tax Indemnitee (absent manifest error). Such accounting firm shall be requested to make its determination within 30 days.

Independent Examination. Within 10 15 days after the Facility Lessee Midwest receives any computation from the Tax Indemnitee, the Facility Lessee Midwest may request in writing that an independent public accounting firm selected by the Tax Indemnitee and reasonably acceptable to the Facility Lessee Midwest review and determine on a confidential basis the amount of any indemnity payment by the Facility Lessee Midwest to the Tax Indemnitee pursuant to this Section 9.2 14.2 or any payment by a Tax Indemnitee to the Facility Lessee Midwest pursuant to paragraph (e) or (f) below. The Tax Indemnitee and Midwest shall cooperate with such accounting firm and supply it with all information reasonably necessary for the accounting firm to conduct such review and determination (but not tax returns and books); provided determination, PROVIDED that such accounting firm shall agree in writing in a manner reasonably satisfactory to the Tax Indemnitee Indemnitee, or Midwest, as the case may be, to maintain the confidentiality of such information, and PROVIDED FURTHER that neither any Tax Indemnitee nor Midwest shall be required to disclose any of its tax returns or books that such Tax Indemnitee or Midwest, as the case may be, reasonably deems to be confidential in connection with such verification, and the parties hereto agree that such Tax Indemnitee, or Midwest, as the case may be, shall have sole control over the positions taken with respect to such party's tax returns and filings. The fees and disbursements of such accounting firm will be paid by Midwest; PROVIDED that such fees and disbursements will be paid by the Tax Indemnitee if the accountants determine that the present value of the total payments as calculated by the Tax Indemnitee is more than 105 percent of the present value of the correct payments (such present values in each case to be determined by the Discount Rate). In the event such accounting firm determines that such computations are incorrect, then such firm shall determine what it believes to be the correct computations. The computations of the accounting firm shall be final, binding and conclusive upon Midwest and the Tax Indemnitee. The parties hereto agree that the independent public accounting firm's sole responsibility shall be to verify the computation of any payment pursuant to this Section 9.2 14.2 and that matters of interpretation of this Participation Agreement or any other Operative Document or the South Point Ground Lease are not within the scope of the independent accountant's responsibility. The fees and disbursements of such Such accounting firm will shall be paid by the Facility Lessee; provided that such fees and disbursements will be paid by the Tax Indemnitee if the verification results in an adjustment in the Facility Lessee's favor of 5 percent or more of the indemnity payment or payments computed by the Tax Indemniteerequested to make its determination within 30 days.

Independent Examination. Within 10 15 days after the Facility Lessee SEMA receives any computation from the Tax Indemnitee, the Facility Lessee SEMA may request in writing that an independent public accounting firm selected by the Tax Indemnitee and reasonably acceptable to the Facility Lessee SEMA review and determine on a confidential basis the amount of any indemnity payment by the Facility Lessee SEMA to the Tax Indemnitee pursuant to this Section 9.2 10.2 or any payment by a Tax Indemnitee to the Facility Lessee SEMA pursuant to paragraph ------------ (e) or (f) below. The Tax Indemnitee and SEMA shall cooperate with such accounting firm and supply it with all information reasonably necessary for the accounting firm to conduct such review and determination (but not tax returns and books); determination, provided that such accounting firm shall agree in writing in a manner reasonably satisfactory to the Tax Indemnitee Indemnitee, or SEMA, as the case may be, to maintain the confidentiality of such information, and provided further that neither any Tax Indemnitee nor SEMA shall be required to disclose any of its tax returns that such Tax Indemnitee or SEMA, as the case may be, reasonably deems to be confidential in connection with such verification, and the parties hereto agree that such Tax Indemnitee, or SEMA, as the case may be, shall have sole control over the positions taken with respect to such party's tax returns and filings. The fees and disbursements of such accounting firm will be paid by SEMA; provided that such fees and disbursements will be paid by the Tax Indemnitee if the accountants determine that the present value of the total payments as calculated by the Tax Indemnitee is more than 105 percent of the present value of the correct payments (such present values in each case to be determined by the Discount Rate). In the event such accounting firm determines that such computations are incorrect, then such firm shall determine what it believes to be the correct computations. The computations of the accounting firm shall be final, binding and conclusive upon SEMA and the Tax Indemnitee. The parties hereto agree that the independent public accounting firm's sole responsibility shall be to verify the computation of any payment pursuant to this Section 9.2 10.2 and that matters of interpretation of this ------------ Participation Agreement or any other Operative Document or the South Point Ground Lease are not within the scope of the independent accountant's responsibility. The fees and disbursements of such Such accounting firm will shall be paid by the Facility Lessee; provided that such fees and disbursements will be paid by the Tax Indemnitee if the verification results in an adjustment in the Facility Lessee's favor of 5 percent or more of the indemnity payment or payments computed by the Tax Indemniteerequested to make its determination within 30 days.