Common use of Seller Indemnification Clause in Contracts

Seller Indemnification. (a) Subject to the provisions of this Article IX, Seller agrees from and after the Closing Date to indemnify Purchaser, the Company and their respective Affiliates, and their respective officers, directors, employees, agents, partners, successors and assigns (each, a "Purchaser Indemnified Party"), against and hold them harmless from all liabilities, losses, damages, claims, reasonable and documented costs and expenses (including reasonable attorney's fees) actually suffered or incurred by them (including by way of set-off against assets or otherwise) (the foregoing, collectively, "Losses"), arising out of the following (collectively, the "Indemnity Matters"): (i) the breach of any representation or warranty of Seller contained in this Agreement or in any certificate delivered pursuant hereto; (ii) the breach of any Pre-Closing Covenant by Seller; (iii) the breach of any Post-Closing Covenant by Seller; (iv) the proceedings or matters specifically identified as "Shared Special Indemnity Matters" on Schedule 9.2(a)(iv) and any other proceedings or matters arising from the same or related facts and/or circumstances as such specifically identified proceedings or matters, to the extent that such claims arise out of conduct or activities prior to Closing (collectively, the "Shared Special Indemnity Matters"); (v) any liability of Seller for which any Transfer Group Company is liable or becomes liable solely as a result of Seller's direct or indirect ownership or control of such entity (and not as a result of any act, failure to act or agreement of such entity, regardless of whether it is alleged that Seller caused such Transfer Group Company to take such act, to fail to act, or to enter into such agreement); solely for the purposes of clarity, it is acknowledged and agreed that the liabilities in this Section 9.2(a)(v) shall not include the matters described in Section 9.2(a)(i), Section 9.2(a)(ii), Section 9.2(a)(iii), Section 9.2(a)(iv) or Article X; or (vi) any liability arising from, related to or based on (x) alleged market manipulation and/or illegal trading activities conducted prior to Closing by any Transfer Group Company in the power markets located in the Western United States or (y) any improper action or improper inaction by any Transfer Group Company prior to the Closing in connection with any alleged market manipulation and/or illegal trading activities conducted by Seller or any of Seller's Affiliates in the power markets in the Western United States. (b) Seller shall not be required to indemnify any Purchaser Indemnified Party pursuant to this Section 9.2 to the extent otherwise indemnifiable Losses (i) resulted from fraud, gross negligence, bad faith or willful misconduct of Purchaser, (ii) are the effect of a loss by the Company of its market based rate authority for a period of time up to twenty-four (24) months (it being understood that Purchaser shall be indemnified for effects of a loss by the Company of its market based rate authority for a period in excess of twenty-four (24) months, but only for such excess period), provided that Purchaser shall not be indemnified for a loss by any Transfer Group Company of its market based rate authority for any period after the third (3rd) annual anniversary of Closing); provided further that the aggregate amount of Losses for which Purchaser is entitled to indemnification in connection with the loss by any Transfer Group Company of market based rate authority will not exceed the lesser of (x) the agreed sale price of wholesale power to a buyer, minus the adjusted price to that buyer after application of cost-based caps required by the loss of market based rate authority and (y) $1,000,000, or (iii) have been reserved for on the Company's balance sheet as of the 2002 Balance Sheet Date (to the extent such reserve is also on the Company's balance sheet as of the Closing Date for purposes of Schedule 2.1(a)) or otherwise have resulted in a reduction in the Purchase Price pursuant to the purchase price adjustment provisions herein. (c) No claim may be asserted nor may any action be commenced against Seller pursuant to clause (i) or (ii) of Section 9.2(a) for breach of any representation or warranty or Pre-Closing Covenant, unless written notice of such claim or action (satisfying the requirements of Section 9.4(a) or Section 9.4(b), as applicable) is received by Seller on or prior to the date on which the representation or warranty or Pre-Closing Covenant on which such claim or action is based ceases to survive as set forth in Section 9.1. (d) No claim may be made against Seller for indemnification pursuant to Sections 9.2(a)(i) or 9.2(a)(ii) unless the aggregate amount of all Losses of Purchaser Indemnified Parties upon which valid claims are based pursuant to Section 9.2(a)(i) and 9.2(a)(ii) (without taking into account the provisions of Section 9.5(a)) shall exceed an amount equal to $12.5 million (the "Basket Amount"), provided that, once such Losses equal or exceed the Basket Amount (without taking into account the provisions of Section 9.5(a)), subject to the other limitations in this Article IX, Purchaser may recover the entire Basket Amount and any additional Losses that are incurred. (e) Any claim made against Seller for indemnification of Losses pursuant to Sections 9.2(a)(i), 9.2(a)(ii), 9.2(a)(iv), 9.2(a)(v) or 9.2(a)(vi) shall be recoverable only from the amounts deposited with the Indemnification Escrow Agent pursuant to Section 2.3(a)(ii), and the amounts paid to all parties (including Seller pursuant to Section 9.5(a)) in respect of such Losses pursuant to the terms hereof shall be limited to, in the aggregate, the Indemnification Cap. The "Indemnification Cap" means an amount equal to (i) $94 million, minus (ii) the Pre-Closing Settlement Amount, plus (iii) the Purchaser Settlement Amount; provided that the Indemnification Cap shall not be less than zero.

Seller Indemnification. (a) Subject to the provisions of limitations set forth in this Article IXXI, Seller agrees if the Closing occurs, then from and after the Closing Date to Seller shall indemnify Purchaser, and hold Buyer Parties and Buyer Parties’ Affiliates (including the Company and their respective Affiliates, Companies) and their respective officers, directors, employees, agents, partners, successors members, employees and assigns (each, a "Purchaser Indemnified Party"), against and hold them agents thereof harmless from and against any and all liabilities, losses, damages, claims, reasonable and documented costs and expenses (including reasonable attorney's fees) actually suffered or incurred by them (including by way of set-off against assets or otherwise) (the foregoing, collectively, "Losses"), Losses arising out of the following (collectivelyof, the "Indemnity Matters"):based upon, attributable to or resulting from: (i) the any breach of any representation or warranty of Seller contained in this Agreement Article IV or any inaccuracy in any the certificate delivered to Buyer Parties pursuant hereto;to Section 8.3, (ii) the any breach of any Pre-Closing Covenant by Seller;agreement or covenant on the part of Seller contained in this Agreement, (iii) any act, event or omission occurring prior to the breach Closing Date (and not otherwise constituting an Assumed Liability) in the conduct by Seller or any of any Post-Closing Covenant by Seller;the Companies of the Business, including, without limitation, legal, labor, environmental, contractual, regulatory, tax, title and ownership issues, (iv) the proceedings or matters specifically identified as "Shared Special Indemnity Matters" on Schedule 9.2(a)(iv) and any other proceedings or matters arising from the same or related facts and/or circumstances as such specifically identified proceedings or matters, to the extent that such claims arise out of conduct or activities prior to Closing (collectively, the "Shared Special Indemnity Matters");Retained Liabilities, (v) any liability of Seller for which any Transfer Group Company is liable or becomes liable solely as a result of Seller's direct or indirect ownership or control of such entity (and not as a result of any act, failure to act or agreement of such entity, regardless of whether it is alleged that Seller caused such Transfer Group Company to take such act, to fail to act, or to enter into such agreement); solely for the purposes of clarity, it is acknowledged and agreed that the liabilities in this Section 9.2(a)(v) shall not include the matters described in Section 9.2(a)(i), Section 9.2(a)(ii), Section 9.2(a)(iii), Section 9.2(a)(iv) or Article X; orLegal Proceedings identified on Schedule 4.7, (vi) any liability arising from, related amounts for which the Buyer Parties are indemnified by the Seller pursuant to or based on (xSection 6.3(b)(vi)(A) alleged market manipulation and/or illegal trading activities conducted prior to Closing by any Transfer Group Company in the power markets located in the Western United States or (yB), and (vii) any improper action or improper inaction by any Transfer Group Company prior amounts the Seller is obligated to the Closing in connection with any alleged market manipulation and/or illegal trading activities conducted by Seller or any of Seller's Affiliates in the power markets in the Western United Statespay pursuant to Section 6.3(g)(ii). (b) Seller The foregoing shall not be required apply to indemnify any Purchaser Indemnified Party pursuant to this Section 9.2 to the extent otherwise indemnifiable Losses (i) resulted from fraud, gross negligence, bad faith or willful misconduct of Purchaser, (ii) are the effect of a loss by the Company of its market based rate authority for a period of time up to twenty-four (24) months (it being understood that Purchaser shall be indemnified for effects of a loss by the Company of its market based rate authority for a period in excess of twenty-four (24) months, but only for such excess period), provided that Purchaser shall not be indemnified for a loss by any Transfer Group Company of its market based rate authority for any period after the third (3rd) annual anniversary of Closing); provided further that the aggregate amount of Losses for which Purchaser is entitled to indemnification in connection with the loss by any Transfer Group Company of market based rate authority will not exceed the lesser of (x) the agreed sale price of wholesale power to a buyer, minus the adjusted price to that buyer after application of cost-based caps required by the loss of market based rate authority and (y) $1,000,000, or (iii) have been reserved for on the Company's balance sheet as of the 2002 Balance Sheet Date (to the extent such reserve is also on the Company's balance sheet as of the Closing Date for purposes of Schedule 2.1(a)) or otherwise have resulted in a reduction in the Purchase Price pursuant to the purchase price adjustment provisions herein. (c) No claim may be asserted nor may any action be commenced against Seller pursuant to clause (i) or (ii) of Section 9.2(a) for breach of any representation or warranty or Pre-Closing Covenant, unless written notice of such claim or action (satisfying the requirements of Section 9.4(a) or Section 9.4(b), as applicable) is received by Seller on or prior to the date on which the representation or warranty or Pre-Closing Covenant on which such claim or action is based ceases to survive as Seller’s representations and warranties set forth in Section 9.1. (d) No claim may be made against Seller 4.10, or to any breach of any covenants set forth in Article VII, it being agreed and understood that the Buyer’s sole and exclusive remedies for indemnification pursuant any matters relating to Sections 9.2(a)(i) or 9.2(a)(ii) unless the aggregate amount of all Losses of Purchaser Indemnified Parties upon which valid claims are based pursuant to Section 9.2(a)(i) and 9.2(a)(ii) (without taking into account the provisions of Section 9.5(a)) shall exceed an amount equal to $12.5 million (the "Basket Amount"), provided that, once such Losses equal or exceed the Basket Amount (without taking into account the provisions of Section 9.5(a)), subject to the other limitations in this Article IX, Purchaser may recover the entire Basket Amount and any additional Losses that are incurred. (e) Any claim made against Seller for indemnification of Losses pursuant to Sections 9.2(a)(i), 9.2(a)(ii), 9.2(a)(iv), 9.2(a)(v) or 9.2(a)(vi) Taxes shall be recoverable only from the amounts deposited with the Indemnification Escrow Agent pursuant to Section 2.3(a)(ii), and the amounts paid to all parties (including Seller pursuant to Section 9.5(a)) as provided in respect of such Losses pursuant to the terms hereof shall be limited to, in the aggregate, the Indemnification Cap. The "Indemnification Cap" means an amount equal to (i) $94 million, minus (ii) the Pre-Closing Settlement Amount, plus (iii) the Purchaser Settlement Amount; provided that the Indemnification Cap shall not be less than zeroArticles VII.

Seller Indemnification. (a) Subject From and after the consummation of the Merger, subject to the provisions terms and limitations of this Article IXARTICLE VII, the Stockholders (other than any Stockholder that receives cash pursuant to the terms hereof because such Stockholder is not “accredited” as defined in Rule 501 promulgated under Regulation D of the Securities Act) (each, an “Seller agrees Indemnifying Party” and collectively, the “Seller Indemnifying Parties”) shall severally (based on such Seller Indemnifying Party’s Pro Rata Portion), but not jointly, indemnify and hold harmless Parent and its Affiliates (including the Surviving Corporation) and their respective directors, officers and other employees, (each, an “Parent Indemnified Party” and collectively, the “Parent Indemnified Parties”), from and after against all losses, liabilities and damages of any kind or nature, Taxes, awards, judgments penalties, fees, costs and expenses, including reasonable out-of-pocket attorneys’ and consultants’ fees and expenses and any such reasonable out-of-pocket fees, costs and expenses incurred in connection with investigating, defending against or settling any claims that are indemnifiable hereunder (hereinafter individually a “Loss” and collectively “Losses”) paid, incurred, suffered or sustained by the Parent Indemnified Parties, or any of them (including the Surviving Corporation) (regardless of whether or not such Losses relate to any third party claims), resulting from or arising out of any of the following: (i) any breach of or inaccuracy in, as of the date hereof or as of the Closing, a representation or warranty of the Company set forth in this Agreement; provided, however, that in the event of any such breach or inaccuracy, for purposes of determining the amount of any Loss relating thereto no effect will be given to any qualifications based on the word “material” or similar phrases (including “Company Material Adverse Effect”) contained therein (it being agreed and understood however that such qualifications will continue to apply, as applicable, to the determination of whether a breach or inaccuracy of representation or warranty has occurred); (ii) any failure by the Company to perform or comply with any of its covenants or agreements set forth in this Agreement; (iii) third party Actions against Parent or any of its subsidiaries (including the Company or any Subsidiaries) following the Closing, whether or not it is determined that there was a breach or inaccuracy of a representation or warranty or any other matter specified in Section 7.2(a)(i) as a basis for indemnification under this Agreement, if the facts and circumstances alleged in such third party Action would give the Parent Indemnified Parties a right to indemnification under Section 7.2(a)(i) assuming for this purpose that such facts and circumstances are accurate and the claims made therein are recoverable by the third party claimant(s) in accordance therewith; provided, however, that the Parent Indemnified Parties shall be entitled to recover only 50% of Losses paid, incurred, suffered or sustained by them resulting from or arising out of such third party Action unless the Parent Indemnified Parties recover for such Action pursuant to Section 7.2(a)(i); (iv) any payment in respect of any Dissenting Shares in excess of the consideration that otherwise would have been payable in respect of such shares in accordance with this Agreement, and any other Losses paid, incurred, suffered or sustained in respect of any Dissenting Shares, including all reasonable out-of-pocket attorneys’ and consultants’ fees, costs and expenses and including any such reasonable out-of-pocket fees, costs and expenses incurred in connection with investigating, defending against or settling any action or proceeding in respect of Dissenting Shares; (v) regardless of the disclosure of any matter set forth in the Disclosure Schedule, any inaccuracy in any information set forth in the Payment Spreadsheet; (vi) any Taxes of the Company or any Subsidiary, without duplication: (A) attributable to any taxable period or portion thereof that ends on or prior to the Closing Date (“Pre-Closing Tax Period”), including all Transaction Payroll Taxes (it being understood that, in the case of Taxes based upon income (including for the avoidance of doubt, income includible in gross income pursuant to Section 951 of the Code), sales, proceeds, profits, receipts, wages, compensation or similar items, the Taxes attributable to a Pre-Closing Tax Period ending on the Closing Date shall be determined on the basis of a closing of the books as of the close of business on the Closing Date, and the amount of any other Taxes of the Company attributable to such Tax period shall equal the amount of such Tax for the entire taxable period multiplied by a fraction, the numerator of which is the number of days in the taxable period up to and including the Closing Date, and the denominator of which is the total number of days in the taxable period), (B) as a result of the Company or any Subsidiary being (or ceasing to be) (1) a member of an affiliated or combined group pursuant to Treasury Regulations Section 1.1502-6 or any similar provision of state, local or non-U.S. law on or prior to the Closing Date or (2) a transferee or successor by Contract (other than a Contract, such as a lease, the primary purpose of which is not related to Taxes) or otherwise, which relate to an event occurring on or before the Closing Date, (C) as a result of an express obligation arising on or prior to the Closing Date to indemnify Purchaseror otherwise assume or succeed to the Taxes of any other Person, the Company and their respective Affiliates, and their respective officers, directors, employees, agents, partners, successors and assigns or (each, a "Purchaser Indemnified Party"), against and hold them harmless from all liabilities, losses, damages, claims, reasonable and documented costs and expenses (including reasonable attorney's fees) actually suffered or incurred by them (including by way of set-off against assets or otherwise) (the foregoing, collectively, "Losses"), arising out of the following (collectively, the "Indemnity Matters"): (iD) the breach Stockholders’ share of any representation or warranty of Transfer Taxes as set forth in Section 5.10(b); provided, however, that the Seller contained in this Agreement or in any certificate delivered pursuant hereto; Indemnifying Parties shall not indemnify the Parent Indemnified Parties from and against: (ii) the breach of any Pre-Closing Covenant by Seller; (iii) the breach of any Post-Closing Covenant by Seller; (iv) the proceedings or matters specifically identified as "Shared Special Indemnity Matters" on Schedule 9.2(a)(iv) and any other proceedings or matters arising from the same or related facts and/or circumstances as such specifically identified proceedings or matters, to the extent that such claims arise out of conduct or activities prior to Closing (collectively, the "Shared Special Indemnity Matters"); (v1) any liability of Seller for which any Transfer Group Company is liable or becomes liable solely as a result of Seller's direct or indirect ownership or control of such entity (and not Taxes arising as a result of any actelection made by Parent or any of its Affiliates (including the Surviving Corporation) after the Closing, failure to act (2) any Taxes arising as a result of any action taken by Parent or agreement the Surviving Corporation on the Closing Date after the Closing outside of such entitythe ordinary course of business, regardless (3) Parent’s share of whether it is alleged that Seller caused such any Transfer Group Company to take such act, to fail to act, or to enter into such agreement); solely for the purposes of clarity, it is acknowledged and agreed that the liabilities in this Section 9.2(a)(v) shall not include the matters described Taxes as set forth in Section 9.2(a)(i), Section 9.2(a)(ii), Section 9.2(a)(iii), Section 9.2(a)(iv5.10(b) or Article X; orand (4) any Taxes (including Transaction Payroll Taxes) included in the calculation of Total Consideration Deductions; (vivii) Fraud on the part of the Company, any Subsidiary or any Seller Indemnifying Party in connection with this Agreement or the Transactions; and (viii) (A) any liability arising fromTaxes or other obligations, related interest, penalties, charges, costs, fees or other expenses relating to such Taxes or based on (x) alleged market manipulation and/or illegal trading activities conducted prior to Closing by any Transfer Group Company in the power markets located in the Western United States or (y) any improper action or improper inaction by any Transfer Group Company prior to the Closing obligations in connection with any alleged Company Options that are determined to have a per share exercise price that is less than the per share fair market manipulation and/or illegal trading activities conducted value of the Company Common Stock on the date of grant of such Company Option that Parent or its Subsidiaries (including, for the avoidance of doubt, the Company following the Closing) pay, incur or sustain as a result of the application of Section 409A and including (without duplication) any amounts described above that are paid, incurred or sustained by Seller Parent or its Subsidiaries on behalf of any holder of Seller's Affiliates Company Options, plus (B) any gross-up of claims, liabilities, Taxes, or other obligations, interest, penalties, charges, costs, fees or other expenses imposed by the IRS as a result of the application of Section 409A paid, incurred or sustained by Parent or its Subsidiaries (it being understood that claims of the type specified in the power markets in the Western United Statesthis clause (viii) may only be made pursuant to this clause (viii) and not pursuant to clause (vi)). (b) The Seller Indemnifying Parties (including any officer or director of the Company) shall not be required have any right of contribution, indemnification or right of advancement from the Surviving Corporation or Parent with respect to indemnify any Purchaser Loss claimed by a Parent Indemnified Party pursuant to the indemnification provisions in this Section 9.2 to the extent otherwise indemnifiable Losses (i) resulted from fraud, gross negligence, bad faith or willful misconduct of Purchaser, (ii) are the effect of a loss by the Company of its market based rate authority for a period of time up to twenty-four (24) months (it being understood that Purchaser shall be indemnified for effects of a loss by the Company of its market based rate authority for a period in excess of twenty-four (24) months, but only for such excess period), provided that Purchaser shall not be indemnified for a loss by any Transfer Group Company of its market based rate authority for any period after the third (3rd) annual anniversary of Closing); provided further that the aggregate amount of Losses for which Purchaser is entitled to indemnification in connection with the loss by any Transfer Group Company of market based rate authority will not exceed the lesser of (x) the agreed sale price of wholesale power to a buyer, minus the adjusted price to that buyer after application of cost-based caps required by the loss of market based rate authority and (y) $1,000,000, or (iii) have been reserved for on the Company's balance sheet as of the 2002 Balance Sheet Date (to the extent such reserve is also on the Company's balance sheet as of the Closing Date for purposes of Schedule 2.1(a)) or otherwise have resulted in a reduction in the Purchase Price pursuant to the purchase price adjustment provisions hereinARTICLE VII. (c) No claim may be asserted nor may any action be commenced against Seller Any payments made to a Parent Indemnified Party pursuant to clause (i) or (ii) any indemnification obligations under this ARTICLE VII will be treated as adjustments to the Total Consideration for Tax purposes and such agreed treatment will govern for purposes of Section 9.2(a) for breach of any representation or warranty or Pre-Closing Covenantthis Agreement, unless written notice of such claim or action (satisfying the requirements of Section 9.4(a) or Section 9.4(b), as applicable) is received otherwise required by Seller on or prior to the date on which the representation or warranty or Pre-Closing Covenant on which such claim or action is based ceases to survive as set forth in Section 9.1applicable Legal Requirements. (d) No claim may be made Nothing in this Agreement shall limit the right of any Parent Indemnified Party which is a party to a Related Agreement to pursue remedies under such Related Agreement against Seller for indemnification pursuant to Sections 9.2(a)(i) or 9.2(a)(ii) unless the aggregate amount of all Losses of Purchaser Indemnified Parties upon which valid claims are based pursuant to Section 9.2(a)(i) and 9.2(a)(ii) (without taking into account the provisions of Section 9.5(a)) shall exceed an amount equal to $12.5 million (the "Basket Amount"), provided that, once such Losses equal or exceed the Basket Amount (without taking into account the provisions of Section 9.5(a)), subject other parties thereto. Notwithstanding anything to the other limitations contrary contained in this Article IXAgreement, Purchaser may recover no breach of any representation, warranty, covenant or agreement contained herein or in any Related Agreement shall give rise to any right on the entire Basket Amount and part of any additional Losses that are incurredParent Indemnified Party, after the consummation of the Transactions, to rescind this Agreement or any of the transactions contemplated hereby. (e) Any claim made against Seller for indemnification of Losses pursuant to Sections 9.2(a)(i), 9.2(a)(ii), 9.2(a)(iv), 9.2(a)(v) or 9.2(a)(vi) shall be recoverable only from the amounts deposited with the Indemnification Escrow Agent pursuant to Section 2.3(a)(ii), and the amounts paid to all parties (including Seller pursuant to Section 9.5(a)) in respect of such Losses pursuant to the terms hereof shall be limited to, in the aggregate, the Indemnification Cap. The "Indemnification Cap" means an amount equal to (i) $94 million, minus (ii) the Pre-Closing Settlement Amount, plus (iii) the Purchaser Settlement Amount; provided that the Indemnification Cap shall not be less than zero.

Seller Indemnification. The Seller, shall indemnify and hold harmless the Purchaser and/or each of its directors, officers, agents, employees, advisers and representatives from and against any losses, expenses, claims damages or liabilities of whatever nature, joint or several, including without limitation reasonable costs of investigation and reasonable legal fees and expenses of legal counsel to which the Purchaser and/or each of its directors, officers, agents, employees, advisers and representatives may become subject, which arise out of or are based upon: (a) Subject to the provisions of this Article IX, Seller agrees from and after the Closing Date to indemnify Purchaser, the Company and their respective Affiliates, and their respective officers, directors, employees, agents, partners, successors and assigns (each, a "Purchaser Indemnified Party"), against and hold them harmless from all liabilities, losses, damages, claims, reasonable and documented costs and expenses (including reasonable attorney's fees) actually suffered or incurred by them (including by way of set-off against assets or otherwise) (the foregoing, collectively, "Losses"), arising out of the following (collectively, the "Indemnity Matters"): (i) the breach of any representation or warranty of the Seller contained in this Agreement or in any certificate delivered pursuant heretomade herein not having been materially true, complete and accurate when made; (iib) any covenant made herein by the breach of any Pre-Closing Covenant by SellerSeller not having been complied with; (iiic) the breach any liability for taxes including related liabilities, penalties, fines, additions and interest in respect of any Post-Closing Covenant by Sellertaxable period ending on or prior to this date; (iv) the proceedings or matters specifically identified as "Shared Special Indemnity Matters" on Schedule 9.2(a)(iv) and any other proceedings or matters arising from the same or related facts and/or circumstances as such specifically identified proceedings or matters, to the extent that such claims arise out of conduct or activities prior to Closing (collectively, the "Shared Special Indemnity Matters"); (vd) any liability for labor claims filed after this date but related to the working period prior to the date of Seller for which any Transfer Group Company is liable signature of this Agreement, by ex-employees of ▇▇▇▇▇▇.▇▇▇ or becomes liable solely by the employees that were transferred from ▇▇▇▇▇▇.▇▇▇ to Mandic Internet, as a result of Seller's direct the spin-off of ▇▇▇▇▇▇.▇▇▇; (e) any liability or indirect ownership obligation of ▇▇▇▇▇▇.▇▇▇ or control any other affiliate of such entity IMPSAT, which was not transferred to Mandic Internet in view of the spin-off of ▇▇▇▇▇▇.▇▇▇; (f) any liability or obligation arising out of the tangible and not intangible assets transferred to Mandic Internet, as a result of any act, failure to act or agreement the spin-off of such entity, regardless of whether it is alleged that Seller caused such Transfer Group Company to take such act, to fail to act, or to enter into such agreement); solely for the purposes of clarity, it is acknowledged and agreed that the liabilities in this Section 9.2(a)(v) shall not include the matters described in Section 9.2(a)(i), Section 9.2(a)(ii), Section 9.2(a)(iii), Section 9.2(a)(iv) or Article X; or▇▇▇▇▇▇.▇▇▇; (vig) any liability arising fromor obligation attributed by Mandic Internet's clients, for services rendered before the signature of this Agreement; (h) any liability or obligation attributed to the relevant parties of the Contracts signed by and transferred to Mandic Internet, related to or based on (x) alleged market manipulation and/or illegal trading activities conducted the period prior to Closing by any Transfer Group Company in the power markets located in the Western United States or (y) any improper action or improper inaction by any Transfer Group Company prior to the Closing in connection with any alleged market manipulation and/or illegal trading activities conducted by Seller or any of Seller's Affiliates in the power markets in the Western United States.this Agreement; and (b) Seller shall not be required to indemnify any Purchaser Indemnified Party pursuant to this Section 9.2 to the extent otherwise indemnifiable Losses (i) resulted Any liability or obligation arising from fraud, gross negligence, bad faith or willful misconduct non-compliance of the obligations assumed by ▇▇▇▇▇▇.▇▇▇ under Section 4.1.8 of this Agreement. Seller's obligations to indemnify for Purchaser, (ii) are the effect of a loss by the Company of its market based rate authority for a period of time up to twenty-four (24) months (it being understood that Purchaser 's losses under this agreement shall be indemnified for effects of a loss by the Company of its market based rate authority for a period in excess of twenty-four (24) months, but accrue only for such excess period), provided that Purchaser shall not be indemnified for a loss by any Transfer Group Company of its market based rate authority for any period after the third (3rd) annual anniversary of Closing); provided further that if the aggregate amount of Losses for which Purchaser is entitled to indemnification in connection with the loss by any Transfer Group Company of market based rate authority will not exceed the lesser of (x) the agreed sale price of wholesale power to a buyer, minus the adjusted price to that buyer after application of cost-based caps required by the loss of market based rate authority and (y) $1,000,000, or (iii) have been reserved for on the Company's balance sheet as such losses exceeds one percent of the 2002 Balance Sheet Date (to the extent such reserve is also on the Company's balance sheet as of the Closing Date for purposes of Schedule 2.1(a)) or otherwise have resulted in a reduction in the Purchase Price pursuant to the purchase price adjustment provisions herein. (c) No claim may be asserted nor may any action be commenced against Price, and then Seller pursuant to clause (i) or (ii) of Section 9.2(a) for breach of any representation or warranty or Pre-Closing Covenant, unless written notice of such claim or action (satisfying the requirements of Section 9.4(a) or Section 9.4(b), as applicable) is received by Seller on or prior to the date on which the representation or warranty or Pre-Closing Covenant on which such claim or action is based ceases to survive as set forth in Section 9.1. (d) No claim may be made against Seller for indemnification pursuant to Sections 9.2(a)(i) or 9.2(a)(ii) unless the aggregate amount of all Losses of Purchaser Indemnified Parties upon which valid claims are based pursuant to Section 9.2(a)(i) and 9.2(a)(ii) (without taking into account the provisions of Section 9.5(a)) shall exceed an amount equal to $12.5 million (the "Basket Amount"), provided that, once such Losses equal or exceed the Basket Amount (without taking into account the provisions of Section 9.5(a)), subject to the other limitations in this Article IX, Purchaser may recover the entire Basket Amount and any additional Losses that are incurred. (e) Any claim made against Seller for indemnification of Losses pursuant to Sections 9.2(a)(i), 9.2(a)(ii), 9.2(a)(iv), 9.2(a)(v) or 9.2(a)(vi) shall be recoverable only from the amounts deposited with the Indemnification Escrow Agent pursuant to Section 2.3(a)(ii)liable for all such losses, and the amounts paid to all parties (including Seller pursuant to Section 9.5(a)) in respect of such Losses pursuant to the terms hereof shall be limited to, in the aggregate, the Indemnification Cap. The "Indemnification Cap" means an amount equal to (i) $94 million, minus (ii) the Pre-Closing Settlement Amount, plus (iii) the Purchaser Settlement Amount; provided that the Indemnification Cap shall not be less than zeroinitial one percent amount.

Seller Indemnification. (a) Subject to the provisions of this Article IX, The Seller agrees from and after the Closing Date to indemnify Purchaserand hold harmless the Depositor, the Company Representative and their respective Affiliateseach Underwriter and each person, if any, who controls the Depositor, the Representative or each Underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act as follows: (i) against any and their respective officersall loss, directorsliability, employeesclaim, agentsdamage and expense whatsoever, partners, successors and assigns (each, a "Purchaser Indemnified Party"), against and hold them harmless from all liabilities, losses, damages, claims, reasonable and documented costs and expenses (including reasonable attorney's fees) actually suffered or incurred by them (including by way of set-off against assets or otherwise) (the foregoing, collectively, "Losses")as incurred, arising out of any untrue statement or alleged untrue statement of a material fact included in the following (collectivelySeller Information, the "Indemnity Matters"): (i) the breach of Subservicer Information or any representation or warranty of Seller similar information contained in this Agreement the Prospectus or any amendment or supplement thereto, or the omission or alleged omission from the Seller Information or the Subservicer Information or such similar information of a material fact necessary in any certificate delivered pursuant heretoorder to make the statements therein, in the light of the circumstances under which they were made, not misleading; (ii) against any and all loss, liability, claim, damage and expense whatsoever, as incurred, to the breach extent of the aggregate amount paid in settlement of any Pre-Closing Covenant litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or of any claim whatsoever, based upon any such untrue statement or omission, or any such alleged untrue statement or omission; provided that any such settlement is effected with the written consent of the Seller;; and (iii) against any and all expense whatsoever, as incurred (including the breach fees and disbursements of counsel chosen by the indemnified parties), reasonably incurred in investigating, preparing or defending against any Post-Closing Covenant litigation, or any investigation or proceeding by Seller; (iv) the proceedings any governmental agency or matters specifically identified as "Shared Special Indemnity Matters" on Schedule 9.2(a)(iv) and body, commenced or threatened, or any other proceedings claim whatsoever, based upon any such untrue statement or matters arising from the same omission, or related facts and/or circumstances as any such specifically identified proceedings alleged untrue statement or mattersomission, to the extent that any such claims arise out of conduct or activities prior to Closing (collectively, the "Shared Special Indemnity Matters"); (v) any liability of Seller for which any Transfer Group Company expense is liable or becomes liable solely as a result of Seller's direct or indirect ownership or control of such entity (and not as a result of any act, failure to act or agreement of such entity, regardless of whether it is alleged that Seller caused such Transfer Group Company to take such act, to fail to act, or to enter into such agreement); solely for the purposes of clarity, it is acknowledged and agreed that the liabilities in this Section 9.2(a)(v) shall not include the matters described in Section 9.2(a)(i), Section 9.2(a)(ii), Section 9.2(a)(iii), Section 9.2(a)(iv) or Article X; or (vi) any liability arising from, related to or based on (x) alleged market manipulation and/or illegal trading activities conducted prior to Closing by any Transfer Group Company in the power markets located in the Western United States or (y) any improper action or improper inaction by any Transfer Group Company prior to the Closing in connection with any alleged market manipulation and/or illegal trading activities conducted by Seller or any of Seller's Affiliates in the power markets in the Western United States. (b) Seller shall not be required to indemnify any Purchaser Indemnified Party pursuant to this Section 9.2 to the extent otherwise indemnifiable Losses (i) resulted from fraud, gross negligence, bad faith or willful misconduct of Purchaser, (ii) are the effect of a loss by the Company of its market based rate authority for a period of time up to twenty-four (24) months (it being understood that Purchaser shall be indemnified for effects of a loss by the Company of its market based rate authority for a period in excess of twenty-four (24) months, but only for such excess period), provided that Purchaser shall not be indemnified for a loss by any Transfer Group Company of its market based rate authority for any period after the third (3rd) annual anniversary of Closing); provided further that the aggregate amount of Losses for which Purchaser is entitled to indemnification in connection with the loss by any Transfer Group Company of market based rate authority will not exceed the lesser of (x) the agreed sale price of wholesale power to a buyer, minus the adjusted price to that buyer after application of cost-based caps required by the loss of market based rate authority and (y) $1,000,000, or (iii) have been reserved for on the Company's balance sheet as of the 2002 Balance Sheet Date (to the extent such reserve is also on the Company's balance sheet as of the Closing Date for purposes of Schedule 2.1(a)) or otherwise have resulted in a reduction in the Purchase Price pursuant to the purchase price adjustment provisions herein. (c) No claim may be asserted nor may any action be commenced against Seller pursuant to paid under clause (i) or (ii) of Section 9.2(aabove. (b) for breach Each indemnified party shall give notice as promptly as reasonably practicable to the Seller of any representation action commenced against it in respect of which indemnity may be sought hereunder, but failure to so notify the Seller shall not relieve the Seller from any liability hereunder to the extent it is not materially prejudiced as a result thereof and in any event shall not relieve it from any liability which it may have otherwise than on account of this indemnity agreement. Counsel to the indemnified parties shall be selected by them, subject to the consent of the Seller (which consent shall not be unreasonably withheld). The Seller may participate at its own expense in the defense of any such action; provided, however, that counsel to the Seller shall not (except with the consent of the indemnified party) also be counsel to the indemnified party. In no event shall the Seller be liable for fees and expenses of more than one counsel (in addition to any local counsel) separate from their own counsel for all indemnified parties in connection with any one action or warranty separate but similar or Pre-Closing Covenantrelated actions in the same jurisdiction arising out of the same general allegations or circumstances. The Seller shall not, without the prior written consent of the indemnified parties, settle or compromise or consent to the entry of any judgment with respect to any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever in respect of which indemnification or contribution could be sought under this Section (whether or not the indemnified parties are actual or potential parties thereto), unless such settlement, compromise or consent (i) includes an unconditional release of each indemnified party from all liability arising out of such litigation, investigation, proceeding or claim and (ii) does not include a statement as to or an admission of fault, culpability or a failure to act by or on behalf of any indemnified party. (c) If at any time an indemnified party shall have requested the Seller to reimburse the indemnified party for fees and expenses of counsel, the Seller agrees that it shall be liable for any settlement of the nature contemplated by Section 3.01(a)(ii) effected without its written consent if (i) such settlement is entered into more than 45 days after receipt by the Seller of the aforesaid request, (ii) the Seller shall have received notice of the terms of such claim or action settlement at least 30 days prior to such settlement being entered into and (satisfying iii) the requirements of Section 9.4(a) or Section 9.4(b), as applicable) is received by Seller on or shall not have reimbursed such indemnified party in accordance with such request prior to the date on which the representation or warranty or Pre-Closing Covenant on which such claim or action is based ceases to survive as set forth in Section 9.1. (d) No claim may be made against Seller for indemnification pursuant to Sections 9.2(a)(i) or 9.2(a)(ii) unless the aggregate amount of all Losses of Purchaser Indemnified Parties upon which valid claims are based pursuant to Section 9.2(a)(i) and 9.2(a)(ii) (without taking into account the provisions of Section 9.5(a)) shall exceed an amount equal to $12.5 million (the "Basket Amount"), provided that, once such Losses equal or exceed the Basket Amount (without taking into account the provisions of Section 9.5(a)), subject to the other limitations in this Article IX, Purchaser may recover the entire Basket Amount and any additional Losses that are incurred. (e) Any claim made against Seller for indemnification of Losses pursuant to Sections 9.2(a)(i), 9.2(a)(ii), 9.2(a)(iv), 9.2(a)(v) or 9.2(a)(vi) shall be recoverable only from the amounts deposited with the Indemnification Escrow Agent pursuant to Section 2.3(a)(ii), and the amounts paid to all parties (including Seller pursuant to Section 9.5(a)) in respect of such Losses pursuant settlement; provided, however, that the Seller shall not be liable for such settlement if it has notified the indemnified party in writing that it objects to the terms hereof shall be limited to, of such settlement within 30 days after receipt of the notice described in the aggregate, the Indemnification Cap. The "Indemnification Cap" means an amount equal to (i) $94 million, minus clause (ii) above or that it objects to the Pre-Closing Settlement Amount, plus (iii) the Purchaser Settlement Amount; provided that the Indemnification Cap shall not be less than zerorequested fees and expenses within 45 days after receipt of such request.

Seller Indemnification. (a) Subject to each of the provisions of applicable limitations set forth in this Article IXV, Seller agrees from Sellers shall, and after the Closing Date to cause their Subsidiaries to, jointly and severally, indemnify Purchaser, the Company Buyer and its Affiliates and their respective Affiliatesdirectors, and their respective managers, members, officers, directors, employees, agents, partners, successors and assigns (each, a "Purchaser “Buyer Indemnified Party")” and collectively, against the “Buyer Indemnified Parties”) and hold each of them harmless from all liabilitiesand against and pay on behalf of or reimburse such Buyer Indemnified Parties in respect of any loss, lossesliability, damagesdemand, claimsclaim, action, cause of action, cost, damage, charge, fine or expense (including interest, penalties, settlement payments, assessments, judgments, awards and reasonable attorneys’, accountants’ and documented other professionals’ fees and expenses, court costs and expenses (including all reasonable attorney's fees) actually suffered amounts paid in investigation, defense or incurred by them (including by way settlement of set-off against assets or otherwise) (any of the foregoing, including in connection with enforcing the provisions of this Article V) (collectively, "“Losses")” and individually, a “Loss”) imposed on, sustained, incurred or suffered by, any Buyer Indemnified Party, whether in respect of third party claims or claims between the Parties, directly or indirectly relating to, arising out of the following (collectively, the "Indemnity Matters"):or in connection with: (i) the breach any and all breaches of any representation or warranty of Seller made by Sellers contained in this Agreement or in any certificate delivered pursuant heretothe Patent Assignment Agreement, the Assignment and Assumption and Bill of Sale or the Local Transfer Agreements, in each case, other than the Assumed Liabilities described in Section 5.2(c)(iii); (ii) the breach any and all breaches of any Pre-Closing Covenant by Sellercovenant, agreement or obligation made by, or to be performed by, Sellers contained in this Agreement or in the Patent Assignment Agreement, the Assignment and Assumption and Bill of Sale or the Local Transfer Agreements; (iii) the breach of any Post-Closing Covenant by Sellerall Excluded Assets; (iv) all Excluded Liabilities, including those Excluded Liabilities set forth on Section 5.2(a)(iv) of the proceedings or matters specifically identified as "Shared Special Indemnity Matters" on Schedule 9.2(a)(iv) and any other proceedings or matters arising from the same or related facts and/or circumstances as such specifically identified proceedings or matters, to the extent that such claims arise out of conduct or activities prior to Closing (collectively, the "Shared Special Indemnity Matters");Sellers Disclosure Schedules; or (v) any liability of Seller for which any Transfer Group Company is liable or becomes liable solely as a result of Seller's direct or indirect ownership or control of such entity (and not as a result of any act, failure to act or agreement of such entity, regardless of whether it is alleged that Seller caused such Transfer Group Company to take such act, to fail to act, or to enter into such agreement); solely for the purposes of clarity, it is acknowledged and agreed that the liabilities in this Section 9.2(a)(v) shall not include the matters described in Section 9.2(a)(i), Section 9.2(a)(ii), Section 9.2(a)(iii), Section 9.2(a)(iv) or Article X; or (vi) any liability arising from, related to or based on (x) alleged market manipulation and/or illegal trading activities conducted prior to Closing by any Transfer Group Company in the power markets located in the Western United States or (y) any improper action or improper inaction by any Transfer Group Company prior to the Closing in connection with any alleged market manipulation and/or illegal trading activities conducted by Seller or any of Seller's Affiliates in the power markets in the Western United States. (b) Seller shall not be required to indemnify any Purchaser Indemnified Party pursuant to this Section 9.2 to the extent otherwise indemnifiable Losses (i) resulted from fraud, gross negligence, bad faith or willful misconduct of Purchaser, (ii) are the effect of a loss by the Company of its market based rate authority for a period of time up to twenty-four (24) months (it being understood that Purchaser shall be indemnified for effects of a loss by the Company of its market based rate authority for a period in excess of twenty-four (24) months, but only for such excess period), provided that Purchaser shall not be indemnified for a loss by any Transfer Group Company of its market based rate authority for any period after the third (3rd) annual anniversary of Closing); provided further that the aggregate amount of Losses for which Purchaser is entitled to indemnification in connection with the loss by any Transfer Group Company of market based rate authority will not exceed the lesser of (x) the agreed sale price of wholesale power to a buyer, minus the adjusted price to that buyer after application of cost-based caps required by the loss of market based rate authority and (y) $1,000,000, or (iii) have been reserved for Fraud on the Company's balance sheet as part of the 2002 Balance Sheet Date (to the extent such reserve is also on the Company's balance sheet as of the Closing Date for purposes of Schedule 2.1(a)) Sellers or otherwise have resulted their representatives in a reduction in the Purchase Price pursuant to the purchase price adjustment provisions hereinentering into this Agreement. (c) No claim may be asserted nor may any action be commenced against Seller pursuant to clause (i) or (ii) of Section 9.2(a) for breach of any representation or warranty or Pre-Closing Covenant, unless written notice of such claim or action (satisfying the requirements of Section 9.4(a) or Section 9.4(b), as applicable) is received by Seller on or prior to the date on which the representation or warranty or Pre-Closing Covenant on which such claim or action is based ceases to survive as set forth in Section 9.1. (d) No claim may be made against Seller for indemnification pursuant to Sections 9.2(a)(i) or 9.2(a)(ii) unless the aggregate amount of all Losses of Purchaser Indemnified Parties upon which valid claims are based pursuant to Section 9.2(a)(i) and 9.2(a)(ii) (without taking into account the provisions of Section 9.5(a)) shall exceed an amount equal to $12.5 million (the "Basket Amount"), provided that, once such Losses equal or exceed the Basket Amount (without taking into account the provisions of Section 9.5(a)), subject to the other limitations in this Article IX, Purchaser may recover the entire Basket Amount and any additional Losses that are incurred. (e) Any claim made against Seller for indemnification of Losses pursuant to Sections 9.2(a)(i), 9.2(a)(ii), 9.2(a)(iv), 9.2(a)(v) or 9.2(a)(vi) shall be recoverable only from the amounts deposited with the Indemnification Escrow Agent pursuant to Section 2.3(a)(ii), and the amounts paid to all parties (including Seller pursuant to Section 9.5(a)) in respect of such Losses pursuant to the terms hereof shall be limited to, in the aggregate, the Indemnification Cap. The "Indemnification Cap" means an amount equal to (i) $94 million, minus (ii) the Pre-Closing Settlement Amount, plus (iii) the Purchaser Settlement Amount; provided that the Indemnification Cap shall not be less than zero.

Seller Indemnification. Seller will defend, indemnify and hold harmless the Purchaser Indemnified Parties from and against any and all Damages arising out of or resulting from: (a) Subject any breach of the representations and warranties of Seller contained in Section 4.1 and Sections 4.2(a)(i), (ii), (iv) (with respect to the provisions information set forth on Exhibits A and B), (vii) (with respect to Schedule I, items 1, 2, 8, 11, 18, 19 and 21) and (viii); (b) any breach of this Article IX, any covenant or agreement to be performed by Seller agrees from and after the Closing Date to indemnify PurchaserDate; (c) any investigative, administrative or judicial proceeding commenced or threatened by any Person, including, without limitation, Fireside Bank v. ▇▇▇▇▇▇▇▇, Case No. 10C01602, in the Company Superior Court of the State of California, County of Los Angeles – Southeast District, whether or not Purchaser shall be designated as a party or a potential party thereto and their respective Affiliateswhether based on any federal, and their respective officersstate or foreign laws, directorsstatutes, employeesrules or regulations, agents, partners, successors and assigns (each, a "Purchaser Indemnified Party"), against and hold them harmless from all liabilities, losses, damages, claims, reasonable and documented costs and expenses (including reasonable attorney's fees) actually suffered on common law or incurred by them (including by way of set-off against assets equitable cause or on contract or otherwise) (the foregoing, collectivelythat may be imposed on, "Losses")incurred by, or asserted against Purchaser in any manner relating to or arising out of the following (collectively, the "Indemnity Matters"): (i) the breach of any representation or warranty of Seller contained in this Agreement or in any certificate delivered pursuant hereto; (ii) the breach of any Pre-Closing Covenant by Seller; (iii) the breach of any Post-Closing Covenant by Seller; (iv) the proceedings or matters specifically identified as "Shared Special Indemnity Matters" on Schedule 9.2(a)(iv) and any other proceedings or matters Purchased Assets arising from the same events or related facts and/or circumstances as such specifically identified proceedings or matters, alleged events occurring prior to the extent that such claims arise out of conduct or activities prior to Closing (collectivelyDate, the "Shared Special Indemnity Matters"); (v) any liability of Seller for which any Transfer Group Company is liable or becomes liable solely excluding Damages arising as a result of Purchaser's actions; and (d) any Excluded Liabilities; provided, however, that Seller's direct or indirect ownership or control of such entity (and not as a result of any act, failure to act or agreement of such entity, regardless of whether it is alleged that Seller caused such Transfer Group Company to take such act, to fail to act, or to enter into such agreement); solely for the purposes of clarity, it is acknowledged and agreed that the liabilities in ’s indemnification obligations under this Section 9.2(a)(v7.4 with respect to the representations and warranties contained in S▇▇▇▇▇▇▇ ▇.▇(▇), (▇), (▇), (▇), (▇), (▇), (▇), (▇), (▇), (▇), (▇) and (q) shall not include the matters described in Section 9.2(a)(i), Section 9.2(a)(ii), Section 9.2(a)(iii), Section 9.2(a)(iv) or Article X; or (vi) any liability arising from, related only apply to or based on (x) alleged market manipulation and/or illegal trading activities conducted prior to Closing by any Transfer Group Company breaches thereof that are identified in the power markets located in the Western United States or one (y1) any improper action or improper inaction by any Transfer Group Company prior to year period following the Closing Date and, provided, further, in connection with any alleged market manipulation and/or illegal trading activities conducted by no event shall Seller or any of Seller's Affiliates in the power markets in the Western United States. (bbe responsible for Damages under Section 7.4(a) Seller shall not be required to indemnify any Purchaser Indemnified Party pursuant to this Section 9.2 to the extent otherwise indemnifiable Losses (i) resulted from fraud, gross negligence, bad faith or willful misconduct of Purchaser, (ii) are the effect of a loss by the Company of its market based rate authority for a period of time up to twenty-four (24) months (it being understood that Purchaser shall be indemnified for effects of a loss by the Company of its market based rate authority for a period in excess of twenty-four (24) monthsthe amount equal to the Purchase Price; provided, but only for such excess period)further, provided that no indemnity demand will be made by Purchaser shall not be indemnified for a loss by any Transfer Group Company of its market based rate authority for any period after the third (3rd) annual anniversary of Closing); provided further that until the aggregate amount of Losses for which demands made by Purchaser is entitled to indemnification in connection with the loss by any Transfer Group Company of market based rate authority will not exceed the lesser of (x) the agreed sale price of wholesale power to a buyerunder this Section 7.4 exceeds $100,000, minus the adjusted price to that buyer after application of cost-based caps required by the loss of market based rate authority and (y) $1,000,000, or (iii) once such amount shall have been reserved for on reached, Seller shall pay Purchaser the Company's balance sheet as of the 2002 Balance Sheet Date (to the extent such reserve is also on the Company's balance sheet as of the Closing Date for purposes of Schedule 2.1(a)) or otherwise have resulted in a reduction in the Purchase Price pursuant to the purchase price adjustment provisions herein. (c) No claim may be asserted nor may any action be commenced against Seller pursuant to clause (i) or (ii) of Section 9.2(a) for breach of any representation or warranty or Pre-Closing Covenant, unless written notice entire amount of such claim or action (satisfying the requirements of Section 9.4(a) or Section 9.4(b), as applicable) is received by Seller on or prior to the date on which the representation or warranty or Pre-Closing Covenant on which such claim or action is based ceases to survive as set forth in Section 9.1demands. (d) No claim may be made against Seller for indemnification pursuant to Sections 9.2(a)(i) or 9.2(a)(ii) unless the aggregate amount of all Losses of Purchaser Indemnified Parties upon which valid claims are based pursuant to Section 9.2(a)(i) and 9.2(a)(ii) (without taking into account the provisions of Section 9.5(a)) shall exceed an amount equal to $12.5 million (the "Basket Amount"), provided that, once such Losses equal or exceed the Basket Amount (without taking into account the provisions of Section 9.5(a)), subject to the other limitations in this Article IX, Purchaser may recover the entire Basket Amount and any additional Losses that are incurred. (e) Any claim made against Seller for indemnification of Losses pursuant to Sections 9.2(a)(i), 9.2(a)(ii), 9.2(a)(iv), 9.2(a)(v) or 9.2(a)(vi) shall be recoverable only from the amounts deposited with the Indemnification Escrow Agent pursuant to Section 2.3(a)(ii), and the amounts paid to all parties (including Seller pursuant to Section 9.5(a)) in respect of such Losses pursuant to the terms hereof shall be limited to, in the aggregate, the Indemnification Cap. The "Indemnification Cap" means an amount equal to (i) $94 million, minus (ii) the Pre-Closing Settlement Amount, plus (iii) the Purchaser Settlement Amount; provided that the Indemnification Cap shall not be less than zero.

Seller Indemnification. (ai) Subject to the provisions of this Article IX, Seller agrees from shall indemnify Buyer and after the Closing Date to indemnify Purchaser, the Company and their respective Affiliates, and each of their respective officers, directors, employees, agents, partnersrepresentatives, Affiliates, successors and permitted assigns (each, a "Purchaser Indemnified Party"), against and hold them harmless from all liabilities, losses, damages, claims, reasonable and documented costs and expenses (including reasonable attorney's fees) actually suffered or incurred by them (including by way of set-off against assets or otherwise) (the foregoing, collectively, "Losses"), arising out of the following (collectively, the "Indemnity Matters"):“Buyer Parties”) and hold each of them harmless from and against and pay on behalf of or reimburse such Buyer Parties in respect of any loss, liability, damage, debt, obligation, deficiency, fine, claim, cause of action or other loss, fee, cost or expense of any kind or nature whatsoever, except as provided in Section 6.1(a) and regardless of when asserted (including, without limitation, interest, penalties, reasonable attorneys’ fees and expenses, court costs and all amounts paid in investigation, defense or settlement of any of the foregoing) to the extent of the actual amount thereof (collectively, “Losses” and individually, a “Loss”) which any such Buyer Party may suffer, sustain or become subject to, as a result of, in connection with, relating or incidental to or by virtue of, (A) any misrepresentation or the breach of any representation or warranty made by the Company contained in this Agreement (other than the representations and warranties contained in Article IV of this Agreement), or any Schedule hereto or any certificate delivered by the Company or Seller to Buyer with respect hereto or thereto in connection with the transactions contemplated hereby, or (B) the breach of any covenant or agreement made by the Company or Seller contained in this Agreement or Schedule hereto or any certificate delivered by the Company to Buyer with respect hereto or thereto in connection with the transactions contemplated by this Agreement. (iii) Seller shall, jointly and severally, indemnify the Buyer Parties and hold each of them harmless from and against and pay on behalf of or reimburse such Buyer Parties in respect of any Loss which any such Buyer Party may suffer, sustain or become subject to, as the result of, in connection with, relating to or incidental to or by virtue of: (A) the breach of any representation or warranty of made by Seller contained in Article IV of this Agreement Agreement, or in any certificate delivered pursuant hereto; by Seller to Buyer with respect hereto or thereto in connection with the transactions contemplated hereby; or (iiB) the breach of any Pre-Closing Covenant covenant or agreement made by Seller;Seller contained in this Agreement, or any certificate delivered by Seller to Buyer with respect hereto or thereto in connection with the transactions contemplated hereby. (iii) Notwithstanding the breach of any Post-Closing Covenant by Seller; (iv) the proceedings foregoing or matters specifically identified as "Shared Special Indemnity Matters" on Schedule 9.2(a)(iv) and any other proceedings or matters arising from the same or related facts and/or circumstances as such specifically identified proceedings or matters, anything else contained in this Agreement to the extent that such claims arise out of conduct or activities prior contrary, Buyer shall be entitled to Closing (collectively, the "Shared Special Indemnity Matters"); (v) set-off any liability of Seller for which any Transfer Group Company is liable or becomes liable solely as a result of Seller's direct or indirect ownership or control of such entity (and not as a result of any act, failure all amounts finally determined to act or agreement of such entity, regardless of whether it is alleged that Seller caused such Transfer Group Company to take such act, to fail to act, or to enter into such agreement); solely for the purposes of clarity, it is acknowledged and agreed that the liabilities in this Section 9.2(a)(v) shall not include the matters described in Section 9.2(a)(i), Section 9.2(a)(ii), Section 9.2(a)(iii), Section 9.2(a)(iv) or Article X; or (vi) any liability arising from, related to or based on (x) alleged market manipulation and/or illegal trading activities conducted prior to Closing by any Transfer Group Company in the power markets located in the Western United States or (y) any improper action or improper inaction by any Transfer Group Company prior to the Closing in connection with any alleged market manipulation and/or illegal trading activities conducted by Seller or any of Seller's Affiliates in the power markets in the Western United States. (b) Seller shall not be required to indemnify any Purchaser Indemnified Party owing pursuant to this Section 9.2 to the extent otherwise indemnifiable Losses (i6.2(a) resulted from fraud, gross negligence, bad faith or willful misconduct of Purchaser, (ii) are the effect of a loss by the Company of its market based rate authority for a period of time up to twenty-four (24) months (it being understood that Purchaser shall be indemnified for effects of a loss by the Company of its market based rate authority for a period in excess of twenty-four (24) months, but only for such excess period), provided that Purchaser shall not be indemnified for a loss by any Transfer Group Company of its market based rate authority for any period after the third (3rd) annual anniversary of Closing); provided further that the aggregate amount of Losses for which Purchaser is entitled to indemnification in connection with the loss by any Transfer Group Company of market based rate authority will not exceed the lesser of (x) the agreed sale price of wholesale power to a buyer, minus the adjusted price to that buyer after application of cost-based caps required by the loss of market based rate authority and (y) $1,000,000, or (iii) have been reserved for on the Company's balance sheet as of the 2002 Balance Sheet Date (to the extent such reserve is also on the Company's balance sheet as of the Closing Date for purposes of Schedule 2.1(a)) or otherwise have resulted in a reduction in against the Purchase Price Consideration. Any Liability or amount owing pursuant to the purchase price adjustment provisions herein. (c) No claim may be asserted nor may any action be commenced against Seller pursuant to clause (i) or (ii) of Section 9.2(a) for breach of any representation or warranty or Pre-Closing Covenant, unless written notice of such claim or action (satisfying the requirements of Section 9.4(a) or Section 9.4(b), as applicable) is received by Seller on or prior to the date on which the representation or warranty or Pre-Closing Covenant on which such claim or action is based ceases to survive as set forth in Section 9.1. (d) No claim may be made against Seller for indemnification pursuant to Sections 9.2(a)(i) or 9.2(a)(ii) unless the aggregate amount of all Losses of Purchaser Indemnified Parties upon which valid claims are based pursuant to Section 9.2(a)(i) and 9.2(a)(ii) (without taking into account the provisions of Section 9.5(a)6.2(a)(i)(A) shall exceed be limited to an amount equal to $12.5 million (the "Basket Amount"), provided that, once such Losses equal or exceed the Basket Amount (without taking into account the provisions of Section 9.5(a)), subject to the other limitations in this Article IX, Purchaser may recover the entire Basket Amount and any additional Losses that are incurredPurchase Price Consideration. (e) Any claim made against Seller for indemnification of Losses pursuant to Sections 9.2(a)(i), 9.2(a)(ii), 9.2(a)(iv), 9.2(a)(v) or 9.2(a)(vi) shall be recoverable only from the amounts deposited with the Indemnification Escrow Agent pursuant to Section 2.3(a)(ii), and the amounts paid to all parties (including Seller pursuant to Section 9.5(a)) in respect of such Losses pursuant to the terms hereof shall be limited to, in the aggregate, the Indemnification Cap. The "Indemnification Cap" means an amount equal to (i) $94 million, minus (ii) the Pre-Closing Settlement Amount, plus (iii) the Purchaser Settlement Amount; provided that the Indemnification Cap shall not be less than zero.

Seller Indemnification. (a) Subject to the provisions of Except as otherwise provided in this Article IX, Seller agrees from and after the Closing Date to indemnify Purchaser9, the Company Seller will indemnify, hold harmless and reimburse the Buyer and its Affiliates and their respective Affiliatessuccessors or assigns, and their respective directors, officers, directors, employees, agents, partners, successors consultants and assigns agents (each, a the "Purchaser Indemnified PartyBuyer Protected Parties"), against ) for any and hold them harmless from all liabilitiesclaims, losses, liabilities, damages, claimspenalties, reasonable and documented fines, costs and expenses (including, in the case of any matter referred to in subsection (c) hereof, all costs related to cleanup, remediation, monitoring and reporting, and, in any case, including reasonable attorney's attorneys' fees) actually suffered , court costs and settlement costs but excluding, except in the case of third party claims, consequential, incidental, exemplary or incurred by them (including by way of set-off against assets or otherwisepunitive damages) (the foregoingindividually, a "Loss", collectively, "Losses")) incurred by the Buyer Protected Parties as a result of, with respect to, or arising out of the following of, (collectively, the "Indemnity Matters"): (ia) the any breach or inaccuracy of any representation or warranty of the Seller set forth in this Agreement or the certificate delivered to the Buyer pursuant to Section 7.1 hereof; (b) any breach of or noncompliance by the Seller with any covenant of the Seller contained in this Agreement or in any certificate delivered pursuant hereto; Agreement; (iic) the breach existence of any Pre-Closing Covenant hazardous or toxic substances, contaminants, pollutants and/or other materials regulated under the Environmental Laws (as defined in Section 2.23 hereof) on the properties located in Norwood, Massachusetts occupied by Seller; the Company or owned by entities in which the Company has an economic interest; (iiid) matters disclosed as "challenged" in Section 2.15 of the Disclosure Schedule, (e) failure by the Seller to cooperate with the Buyer in connection with making the election contemplated in Section 9.8(h) hereof, and (f) the breach operation or ownership by the Company, the Seller or any of their Affiliates, or any Postliabilities or claims existing or arising with respect to, any subsidiary, division, business or product line not owned or operated by the Company on the Closing Date; including, without limitation, the wireless and radio businesses, Cellular Infrastructure Supply, Inc., Restor-Closing Covenant by Seller; (iv) the proceedings or matters specifically identified as "Shared Special Indemnity Matters" on Schedule 9.2(a)(iv) AIT, Inc., Westec Communications, Inc., World Access Telecommunications Group, Inc., World Access Telecommunications Group Limited, Sunrise Sierra, Inc., and any other proceedings subsidiary, division, business or matters product line associated with the Seller or the Company that is not being acquired by the Buyer pursuant to this Agreement; and further including, without limitation, any obligations under, or Losses arising from with respect to, the same or related facts and/or circumstances as such specifically identified proceedings or mattersMaster Manufacturing and Purchase Agreement between the Company and SCI Technology, Inc. to the extent that such claims arise out Agreement pertains to the wireless or radio businesses; provided that, with respect to subsection (d) of conduct or activities prior to Closing (collectivelythis Section, the "Shared Special Indemnity Matters"); (v) any liability of Seller for which any Transfer Group Company is liable or becomes liable solely agrees to indemnify the Buyer Protected Parties as a result of Seller's direct or indirect ownership or control of such entity (and not as a result of any act, failure to act or agreement of such entity, regardless of whether it is alleged that Seller caused such Transfer Group Company to take such act, to fail to act, or to enter into such agreement); solely for the purposes of clarity, it is acknowledged and agreed that the liabilities in contemplated by this Section 9.2(a)(v) shall not include only with respect to any Losses attributable to the matters described in Section 9.2(a)(i), Section 9.2(a)(ii), Section 9.2(a)(iii), Section 9.2(a)(iv) or Article X; or (vi) any liability arising from, related to or based on (x) alleged market manipulation and/or illegal trading activities conducted prior to Closing by any Transfer Group Company in operation of the power markets located in the Western United States or (y) any improper action or improper inaction by any Transfer Group Company prior to the Closing in connection with any alleged market manipulation and/or illegal trading activities conducted by Seller or any of Seller's Affiliates in the power markets in the Western United StatesDate. (b) Seller shall not be required to indemnify any Purchaser Indemnified Party pursuant to this Section 9.2 to the extent otherwise indemnifiable Losses (i) resulted from fraud, gross negligence, bad faith or willful misconduct of Purchaser, (ii) are the effect of a loss by the Company of its market based rate authority for a period of time up to twenty-four (24) months (it being understood that Purchaser shall be indemnified for effects of a loss by the Company of its market based rate authority for a period in excess of twenty-four (24) months, but only for such excess period), provided that Purchaser shall not be indemnified for a loss by any Transfer Group Company of its market based rate authority for any period after the third (3rd) annual anniversary of Closing); provided further that the aggregate amount of Losses for which Purchaser is entitled to indemnification in connection with the loss by any Transfer Group Company of market based rate authority will not exceed the lesser of (x) the agreed sale price of wholesale power to a buyer, minus the adjusted price to that buyer after application of cost-based caps required by the loss of market based rate authority and (y) $1,000,000, or (iii) have been reserved for on the Company's balance sheet as of the 2002 Balance Sheet Date (to the extent such reserve is also on the Company's balance sheet as of the Closing Date for purposes of Schedule 2.1(a)) or otherwise have resulted in a reduction in the Purchase Price pursuant to the purchase price adjustment provisions herein. (c) No claim may be asserted nor may any action be commenced against Seller pursuant to clause (i) or (ii) of Section 9.2(a) for breach of any representation or warranty or Pre-Closing Covenant, unless written notice of such claim or action (satisfying the requirements of Section 9.4(a) or Section 9.4(b), as applicable) is received by Seller on or prior to the date on which the representation or warranty or Pre-Closing Covenant on which such claim or action is based ceases to survive as set forth in Section 9.1. (d) No claim may be made against Seller for indemnification pursuant to Sections 9.2(a)(i) or 9.2(a)(ii) unless the aggregate amount of all Losses of Purchaser Indemnified Parties upon which valid claims are based pursuant to Section 9.2(a)(i) and 9.2(a)(ii) (without taking into account the provisions of Section 9.5(a)) shall exceed an amount equal to $12.5 million (the "Basket Amount"), provided that, once such Losses equal or exceed the Basket Amount (without taking into account the provisions of Section 9.5(a)), subject to the other limitations in this Article IX, Purchaser may recover the entire Basket Amount and any additional Losses that are incurred. (e) Any claim made against Seller for indemnification of Losses pursuant to Sections 9.2(a)(i), 9.2(a)(ii), 9.2(a)(iv), 9.2(a)(v) or 9.2(a)(vi) shall be recoverable only from the amounts deposited with the Indemnification Escrow Agent pursuant to Section 2.3(a)(ii), and the amounts paid to all parties (including Seller pursuant to Section 9.5(a)) in respect of such Losses pursuant to the terms hereof shall be limited to, in the aggregate, the Indemnification Cap. The "Indemnification Cap" means an amount equal to (i) $94 million, minus (ii) the Pre-Closing Settlement Amount, plus (iii) the Purchaser Settlement Amount; provided that the Indemnification Cap shall not be less than zero.

Seller Indemnification. (a) Subject Without derogating from the above, subject to the provisions of limitations and exceptions set forth in this Article IX‎Article 9, Seller agrees from and after the Closing Date to Closing, Seller shall indemnify Purchaserand hold harmless Acquirer, the Company and their respective Affiliates, and their respective officers, directors, agents and employees, agentsand each Person, partnersif any, successors who controls or may control Acquirer within the meaning of the Securities Act (each of the foregoing being referred to individually as an "Acquirer Indemnified Person" and assigns collectively as "Acquirer Indemnified Persons") from and against any and all Indemnifiable Damages (each, a "Purchaser Indemnified Party"), against and hold them harmless from all liabilities, losses, damages, claims, provided that any Indemnifiable Damages pursuant to Section 9.2(a)(viii) shall be limited to any reasonable and documented out-of-pocket third party costs and expenses (including reasonable attorney's legal fees, any settlement amount or final court award) actually suffered or incurred by them (including by way Acquirer or the Company in connection with defending, settling, or paying any final and non-appealable court judgment in connection with any litigation against the Company in respect of setthe BWC Matter where CGI and/or BWC, the Ohio Department of Administrative Services or a related Ohio government entity are plaintiff or defendant), to the extent directly or indirectly, whether or not due to a third-off against assets or otherwise) (the foregoing, collectively, "Losses")party claim, arising out of, resulting from or in connection with: (i) any failure of any representation or warranty made by the following Company or Seller contained in Section ‎2.1(a) (Organization, Standing, Power and Subsidiaries), Section ‎2.1(e) (Capital Structure), Section ‎2.3 (Authority; Non-contravention), Section ‎2.10 (Taxes), Article 3 or, solely as it relates to the requirement of Section 7.3(a)(i), in the certificate required to be delivered to Acquirer at the Closing pursuant to Section 1.3(b)(ii) (collectively, the "Indemnity MattersSpecial Representations" and together with clause (iii) (but only to the extent that the Indemnifiable Damages under such clause (iii) shall have resulted from facts and circumstances other than those underlying Indemnifiable Damages under clause (ii) below) and clauses (iv)-(viii) below of this Section ‎9.2(a), the "):Fundamental Claims") to be true and correct; (iii) the breach any failure of any representation or warranty of made by the Company or Seller contained in this Agreement (other than the Special Representations) or, solely as it relates to the requirement of Section 7.3(a)(ii) or the last sentence of Section 7.3(a), in the certificate required to be delivered to Acquirer at the Closing pursuant to Section 1.3(b)(ii) to be true and correct; (iii) any breach of, or default in connection with, any of the covenants, agreements or obligations made by the Company or Seller herein or in any certificate delivered pursuant heretoother agreements contemplated by this Agreement, the Share Purchase or the other Transactions to the extent such breach or default occurs at or prior to the Closing; (iv) any breach of, or default in connection with, any of the covenants, agreements or obligations made by Seller herein or in any other agreements contemplated by this Agreement, the Share Purchase or the other Transactions to the extent such breach or default occurs after the Closing; (v) any Pre-Closing Taxes and Taxes described in Section ‎1.6 to the extent not included in the calculation of Company Net Working Capital; (vi) any claims by any then current or former holder or alleged then-current or former holder of any Equity Interests of the Company, in their capacity as such or relating to their employment, services or relationship with the Company (including any predecessors), arising out of, resulting from payments allegedly due to them as holders of Equity Interests; (vii) any Fraud, willful misconduct or willful misrepresentation in connection with the Transactions; and (viii) any reasonable out-of-pocket third party costs (including reasonable legal fees, any settlement amount or final court award) incurred by Acquirer or the Company in connection with defending, settling, or paying any final and non-appealable court judgment in connection with any litigation against the Company in respect of the BWC Matter where CGI and/or BWC, the Ohio Department of Administrative Services or a related Ohio government entity are plaintiff or defendant (“Litigation Claims”). (b) Materiality standards or qualifications in any representation, warranty or covenant shall be taken into account only in determining whether a breach of or default in connection with such representation, warranty or covenant (or failure of any representation or warranty to be true and correct) exists, and shall not be taken into account in determining the amount of any Indemnifiable Damages with respect to such breach, default or failure to be true and correct. Any indemnity payments made under this Agreement shall be treated as purchase price adjustments for federal and state income tax purposes. Seller shall not have (x) any right of contribution, indemnification or right of advancement from the Company or Acquirer with respect to any Indemnifiable Damages claimed by an Acquirer Indemnified Person or (y) any right of subrogation against the Company or Acquirer with respect to any indemnification of an Acquirer Indemnified Person by reason of any of the matters set forth in this Section 9.2. (c) The obligations of Seller under Section 9.2 shall be subject to the following limitations: (i) except in case of Fraud, willful misconduct or willful misrepresentation, Seller shall not have any liability for Indemnifiable Damages under Section 9.2(a)(ii) or Section 9.2(a)(iii) (but only to the extent that the Indemnifiable Damages under such Section ‎9.2(a)(iii) shall have resulted from the same facts and circumstances underlying Indemnifiable Damages under such Section 9.2(a)(ii)) unless and until the aggregate of all Indemnifiable Damages under such subsections for which Seller would otherwise be required to provide indemnification exceeds on a cumulative basis an amount equal to $500,000, and then only to the extent of such excess; (ii) except in case of Fraud, willful misconduct or willful misrepresentation, Seller shall not have any liability for Indemnifiable Damages under Section 9.2(a)(ii) or Section 9.2(a)(iii) (but only to the breach extent that the Indemnifiable Damages under such Section ‎9.2 (a)(iii) shall have resulted from the same facts and circumstances underlying Indemnifiable Damages under such Section 9.2(a)(ii)) to the extent the aggregate amount of Indemnifiable Damages under such subsections for which Seller would otherwise be required to provide indemnification exceeds the amounts available from the Escrow General Fund (or, if the Escrow General Fund is not established, exceeds the amount of the Seller Cap). Except in case of Fraud, willful misconduct or willful misrepresentation, the sole source of recovery for any Pre-Closing Covenant by Indemnifiable Damages under Section 9.2(a)(ii) and Section 9.2(a)(iii) (but only to the extent that the Indemnifiable Damages under such Section ‎9.2 (a)(iii) shall have resulted from the same facts and circumstances underlying Indemnifiable Damages under such Section 9.2(a)‎(ii)) shall be from the Escrow General Fund and, if the Acquirer Insurance Policy is obtained, under the Acquirer Insurance Policy, and the Acquirer Indemnified Persons shall not be permitted to seek recovery directly from Seller, provided that if the Escrow General Fund is not established, then the Acquirer Indemnified Persons shall be permitted to seek recovery directly from Seller, but only to the extent the aggregate amount of Indemnifiable Damages under such subsections does not exceed the amount of the Seller Cap; (iii) the breach obligation of Seller to indemnify the Indemnified Persons against any Indemnifiable Damage under Section 9.2 shall be net of any PostTax Benefits (defined below) actually recognized by the Indemnified Persons (or in the case of an Indemnified Person that is a flow-through entity for income Tax purposes, by the Indemnified Person and its ultimate beneficial owners) with respect to such Indemnifiable Damages. However, to the extent that an Indemnified Person recognizes such Tax Benefits after the indemnification payment, the Indemnified Person shall pay the amount of such Tax Benefits (but not in excess of the indemnification payment or payments actually received from Seller with respect to such Indemnifiable Damage) to Seller as such Tax Benefits are actually recognized by the Indemnified Person. For this purpose, the Indemnified Person shall be deemed to recognize a "Tax Benefit" with respect to Indemnifiable Damages for a taxable year if, and only to the extent that, the Indemnified Person’s cumulative liability for Taxes through the end of such taxable year, calculated by excluding any Tax items attributable to the Indemnifiable Damages from all taxable years (through the tax year that includes the third annual anniversary of the date on which the indemnification claim has been made, exceeds the Indemnified Person’s actual cumulative liability for Taxes through the end of such taxable year (through the tax year that includes the third annual anniversary of the date on which the indemnification claim has been made, calculated by taking into account any Tax items attributable to the Indemnifiable Damages for all taxable years (through the tax year that includes the third annual anniversary of the date on which the indemnification claim has been made) (to the extent permitted by relevant Tax Laws and treating such Tax items as the last items claimed for any taxable year). For purposes of the foregoing calculation, the Indemnified Person shall be deemed to include any consolidated or combined group of which it is a member. For the avoidance of doubt, any payment (including but not limited to any Pre-Closing Covenant Tax Refund) paid to Seller by SellerAcquirer under Section 6.12 shall not be considered a “Tax Benefit” under this Section 9.2; (iv) all Indemnifiable Damages shall be reduced by the proceedings amount of insurance proceeds or matters specifically identified as "Shared Special Indemnity Matters" on Schedule 9.2(a)(iv) other cash receipts or sources of reimbursement actually received by any Acquirer Indemnified Person from third parties, including third party insurers and including under the Acquirer Insurance Policy, if obtained, with respect to such Indemnifiable Damages or the underlying reasons therefor. Acquirer and the Company shall use commercially reasonable efforts to seek recovery under the Acquirer Insurance Policy, if obtained, and the E&O & Cyber Tail Insurance Coverage, and Acquirer and the Company will assign such right of recovery or reimbursement (and any other proceedings or matters arising from payment received in connection therewith) to Seller upon payment of any such Indemnifiable Damages under this Section 9.2. For clarity, Acquirer shall be required to seek recovery under the same or related facts and/or circumstances Acquirer Insurance Policy, if obtained, and the E&O & Cyber Tail Insurance Coverage, as such specifically identified proceedings or mattersapplicable, for all Acquirer Covered Losses to the extent of the coverage then available under such policies. No party shall take any action to provide that such claims arise out a right of conduct subrogation shall accrue or activities prior inure to Closing (collectively, the "Shared Special Indemnity Matters"benefit of any source of any amounts described in this Section 9.2(c)(iv); (v) Seller shall not have any liability of Seller for which any Transfer Group Company is liable or becomes liable solely Indemnifiable Damages to the extent such Indemnifiable Damages were reflected as a result Liability or contra asset in the calculation of Seller's direct or indirect ownership or control of such entity Company Net Working Capital; (and not as a result of any act, failure to act or agreement of such entity, regardless of whether it is alleged that Seller caused such Transfer Group Company to take such act, to fail to act, or to enter into such agreement); solely for the purposes of clarity, it is acknowledged and agreed that the liabilities in this Section 9.2(a)(vvi) Acquirer shall not include the matters described in be entitled to bring any claim for indemnification under Section 9.2(a)(i), Section 9.2(a)(ii), ) or Section 9.2(a)(iii), Section 9.2(a)(iv) or Article X; or (vi) for any liability arising from, related to or based on (x) alleged market manipulation and/or illegal trading activities conducted prior to Closing by any Transfer Group Company in the power markets located in the Western United States or (y) any improper action or improper inaction by any Transfer Group Company prior to the Closing in connection with any alleged market manipulation and/or illegal trading activities conducted by Seller or any of Seller's Affiliates in the power markets in the Western United States. (b) Seller shall not be required to indemnify any Purchaser Indemnified Party matter that Acquirer has raised pursuant to this Section 9.2 to the extent otherwise indemnifiable Losses (i) resulted from fraud, gross negligence, bad faith or willful misconduct of Purchaser, (ii) are the effect of a loss by the Company of its market based rate authority for a period of time up to twenty-four (24) months (it being understood that Purchaser shall be indemnified for effects of a loss by the Company of its market based rate authority for a period in excess of twenty-four (24) months, but only for such excess period), provided that Purchaser shall not be indemnified for a loss by any Transfer Group Company of its market based rate authority for any period after the third (3rd) annual anniversary of Closing); provided further that the aggregate amount of Losses for which Purchaser is entitled to indemnification 1.2 in connection with the loss by any Transfer Group Company of market based rate authority will not exceed the lesser of (x) the agreed sale price of wholesale power to a buyer, minus the adjusted price to that buyer after application of cost-based caps required by the loss of market based rate authority and (y) $1,000,000, or (iii) have been reserved for on the Company's balance sheet as determination of the 2002 Balance Sheet Date Final Net Working Capital; and (vii) Except in case of Fraud, and notwithstanding anything to the extent such reserve is also on the Company's balance sheet as of the Closing Date for purposes of Schedule 2.1(a)) or otherwise have resulted contrary in a reduction this Agreement and in the Purchase Price pursuant addition to the purchase price adjustment provisions herein. (c) No claim may be asserted nor may any action be commenced against Seller pursuant to clause (i) or (ii) of Section 9.2(a) for breach of any representation or warranty or Pre-Closing Covenant, unless written notice of such claim or action (satisfying the requirements of Section 9.4(a) or Section 9.4(b), as applicable) is received by Seller on or prior to the date on which the representation or warranty or Pre-Closing Covenant on which such claim or action is based ceases to survive as all other limitations set forth in this Section 9.1. (d) No claim may 9.2, the amount of all indemnification payments required to be made against by Seller for indemnification pursuant to Sections 9.2(a)(i) through (vii), shall not, individually or 9.2(a)(iiin the aggregate, exceed the Consideration, and with respect to Litigation Claims pursuant to Section 9.2(a)(viii), indemnification shall not exceed the Litigation Claims Cap. (viii) unless Any Net Settlement Amount shall be reduced by the amount, if any, by which (x) $5,000,000 exceeds (y) the aggregate amount of all Losses of Purchaser Indemnified Parties upon which valid claims are based BWC Payment Amounts made to Seller pursuant to Section 9.2(a)(i1.4(e) and 9.2(a)(ii) (without taking into account the provisions of Section 9.5(a)) shall exceed an amount equal to $12.5 million (the "Basket Adjusted Net Settlement Amount"), provided thatcalculated as of the date of the underlying Litigation Claim (the "BWC Claim Date"). By way of example and for illustration purposes only, once if Seller receives the aggregate amount of $2,000,000 pursuant to the mechanism set forth in Section 1.4(e), then the Net Settlement Amount shall be reduced by $3,000,000 ($5,000,000 minus $2,000,000). To the extent Acquirer receives a payment from Seller (whether from the Escrow Fundamental Fund or directly from Seller) pursuant to Section 9.2(a)(viii), and subsequent to such Losses equal payment, the Company collects additional BWC Receivables and Seller receives any BWC Payment Amount pursuant to Section 1.4(e) or exceed the Basket Amount Company receives any recovery under the E&O & Cyber Tail Insurance Coverage, then the Litigation Claims Cap (without taking and any underlying calculations) shall be recalculated to reflect such additional BWC Payment Amounts pursuant to Section 1.4(e) and/or additional recovery under the E&O & Cyber Tail Insurance Coverage and (A) any amount paid by Seller (whether from the Escrow Fundamental Fund or directly by Seller) that is in excess of the recalculated Litigation Claims Cap shall be paid by Acquirer to Seller within five (5) Business Days of receipt of such amounts (or to the extent that such amount was paid out of the Escrow Fundamental Fund and the date by which payment is to be made is prior to the Escrow Fundamental Release Date, such amount shall be deposited by Acquirer back into account the provisions Escrow Fundamental Fund) or (B) any amount of the recalculated Litigation Claims Cap that is in excess of the amount paid by Seller (whether from the Escrow Fundamental Fund or directly by Seller) shall be recovered by Acquirer by payment from the Escrow Fundamental Fund or directly from Seller within five (5) Business Days of receipt of such amounts. In addition to the requirements of Section 9.5(a)9.2(c)(iv), subject Acquirer shall seek (and shall cause its Affiliates, including the Company, to seek) recovery under the other limitations in this Article IX, Purchaser may recover the entire Basket Amount and any additional Losses that are incurredE&O & Cyber Tail Insurance Coverage. (eix) Any claim made against In the event Acquirer and Seller for indemnification have any dispute over any calculation of Losses pursuant to Sections 9.2(a)(ithe Litigation Claims Cap (or any underlying calculations), 9.2(a)(ii)Acquirer and Seller shall confer in good faith for a period of up to ten (10) Business Days following written notice of such disagreement from either party in an attempt to resolve such dispute, 9.2(a)(iv), 9.2(a)(v) or 9.2(a)(vi) and any resolution by them shall be recoverable only from in writing and shall be final and binding on the amounts deposited with the Indemnification Escrow Agent pursuant to Section 2.3(a)(ii)parties and, and the amounts paid to all parties (including Seller pursuant to Section 9.5(a)) in respect of such Losses pursuant to the terms hereof extent such differences remain unresolved after such ten (10) Business Day period, such differences shall be limited to, resolved by the Reviewing Accountant utilizing the procedures outlined in the aggregate, the Indemnification Cap. The "Indemnification Cap" means an amount equal to (i) $94 million, minus (ii) the Pre-Closing Settlement Amount, plus (iii) the Purchaser Settlement Amount; provided that the Indemnification Cap shall not be less than zeroSection 1.2(e).

Seller Indemnification. (a) Subject to The Seller shall indemnify the provisions Purchaser, each Affiliate of the Purchaser, each successor and assign of each such person, and each representative of each of the foregoing (for purposes of this Article IXSection 8.02, Seller agrees from and after the Closing Date to indemnify Purchasereach such person in its capacity as indemnitee hereunder, the Company and their respective Affiliates, and their respective officers, directors, employees, agents, partners, successors and assigns (each, a an "Purchaser Indemnified PartyIndemnitee"), against with respect to, and hold each of them harmless from and against, any and all liabilities, losses, damages, claims, reasonable and documented costs and expenses (including reasonable attorney's fees) actually suffered or incurred by them (including by way of set-off against assets or otherwise) (the foregoing, collectively, "Losses")Losses resulting from, arising out of the following (collectivelyof, the "Indemnity Matters"): or relating to (i) the Seller's breach of any representation representation, warranty, covenant, or warranty agreement of the Seller contained in this Agreement or any Transaction Agreement, and (ii) the Specified Liabilities. To the extent that the Seller's undertakings in this Section 8.02 may be unenforceable, the Seller shall contribute the maximum amount that it is permitted to contribute under applicable law to the payment and satisfaction of all Losses incurred by any certificate delivered pursuant heretoIndemnitee. (b) An Indemnitee shall give the Seller notice (for purposes of this Section 8.02, a "Loss Notice") of any matter which such Indemnitee has determined has given or could reasonably be expected to give rise to a right of indemnification under this Agreement within thirty (30) days of such determination, stating the amount of the Loss, if known, and method of computation thereof, and describing in reasonable detail the facts and circumstances upon which such determination is based; provided, however, that the failure to provide such notice shall not release the Seller from any of its obligations under this Article VIII except to the extent the Seller is materially prejudiced by such failure and shall not relieve the Seller from any other obligation or liability that it may have to any Indemnitee otherwise than under this Article VIII. (c) The Seller's obligations and liabilities hereunder with respect to Losses arising from claims of any third party which are subject to the indemnification provided for in this Section 8.02 (for purposes of this Section 8.02, "Third-Party Claims") shall be governed by and contingent upon the following additional terms and conditions: (i) If an Indemnitee receives notice of any Third-Party Claim, such Indemnitee shall give the Seller notice of such Third-Party Claim within thirty (30) days after the receipt of such notice by such Indemnitee; provided, however, that the failure to provide such notice shall not release the Seller from any of its obligations under this Section 8.02 except to the extent the Seller is materially prejudiced by such failure and shall not relieve the Seller from any other obligation or liability that it may have to any Indemnitee otherwise than under this Section 8.02; (ii) If the breach Seller acknowledges in writing its obligation to indemnify an Indemnitee against any Losses that may result from such Third-Party Claim, then the Seller shall be entitled to assume and control the defense of any Presuch Third-Closing Covenant by Seller; Party Claim at its expense and through counsel of its choice (iiiwhich counsel shall be reasonably acceptable to such Indemnitee) if it gives notice of its intention to do so to such Indemnitee within five (5) Business Days after the breach receipt of any Post-Closing Covenant by Seller; (iv) such notice from such Indemnitee; provided, however, that if there exists or is reasonably likely to exist a conflict of interest that would make it inappropriate in the proceedings or matters specifically identified as "Shared Special Indemnity Matters" on Schedule 9.2(a)(iv) judgment of such Indemnitee, in its sole and any other proceedings or matters arising from absolute discretion, for the same or related facts and/or circumstances counsel to represent both such Indemnitee and the Seller, then all Indemnitees with respect to any such Third-Party Claim shall, collectively, be entitled to retain one counsel of their own selection, in each jurisdiction for which such Indemnitees determine counsel is required, at the Seller's expense. If the Seller exercises its right to undertake any such defense against any such Third-Party Claim as provided above, the Indemnitee shall cooperate with the Seller in such specifically identified proceedings or matters, defense and make available to the extent that such claims arise out of conduct or activities prior to Closing (collectivelySeller, at the "Shared Special Indemnity Matters"); (v) any liability of Seller for which any Transfer Group Company is liable or becomes liable solely as a result of Seller's direct expense, all witnesses, pertinent records, materials, and information in such Indemnitee's possession or indirect ownership or under such Indemnitee's control of such entity (and not relating thereto as a result of any act, failure to act or agreement of such entity, regardless of whether it is alleged that Seller caused such Transfer Group Company to take such act, to fail to act, or to enter into such agreement); solely for the purposes of clarity, it is acknowledged and agreed that the liabilities in this Section 9.2(a)(v) shall not include the matters described in Section 9.2(a)(i), Section 9.2(a)(ii), Section 9.2(a)(iii), Section 9.2(a)(iv) or Article X; or (vi) any liability arising from, related to or based on (x) alleged market manipulation and/or illegal trading activities conducted prior to Closing by any Transfer Group Company in the power markets located in the Western United States or (y) any improper action or improper inaction by any Transfer Group Company prior to the Closing in connection with any alleged market manipulation and/or illegal trading activities conducted by Seller or any of Seller's Affiliates in the power markets in the Western United States. (b) Seller shall not be required to indemnify any Purchaser Indemnified Party pursuant to this Section 9.2 to the extent otherwise indemnifiable Losses (i) resulted from fraud, gross negligence, bad faith or willful misconduct of Purchaser, (ii) are the effect of a loss by the Company of its market based rate authority for a period of time up to twenty-four (24) months (it being understood that Purchaser shall be indemnified for effects of a loss by the Company of its market based rate authority for a period in excess of twenty-four (24) months, but only for such excess period), provided that Purchaser shall not be indemnified for a loss by any Transfer Group Company of its market based rate authority for any period after the third (3rd) annual anniversary of Closing); provided further that the aggregate amount of Losses for which Purchaser is entitled to indemnification in connection with the loss by any Transfer Group Company of market based rate authority will not exceed the lesser of (x) the agreed sale price of wholesale power to a buyer, minus the adjusted price to that buyer after application of cost-based caps reasonably required by the loss of market based rate authority and (y) $1,000,000, or (iii) have been reserved for on the Company's balance sheet as of the 2002 Balance Sheet Date (to the extent such reserve is also on the Company's balance sheet as of the Closing Date for purposes of Schedule 2.1(a)) or otherwise have resulted in a reduction in the Purchase Price pursuant to the purchase price adjustment provisions herein. (c) No claim may be asserted nor may any action be commenced against Seller pursuant to clause (i) or (ii) of Section 9.2(a) for breach of any representation or warranty or Pre-Closing Covenant, unless written notice of such claim or action (satisfying the requirements of Section 9.4(a) or Section 9.4(b), as applicable) is received by Seller on or prior to the date on which the representation or warranty or Pre-Closing Covenant on which such claim or action is based ceases to survive as set forth in Section 9.1. (d) No claim may be made against Seller for indemnification pursuant to Sections 9.2(a)(i) or 9.2(a)(ii) unless the aggregate amount of all Losses of Purchaser Indemnified Parties upon which valid claims are based pursuant to Section 9.2(a)(i) and 9.2(a)(ii) (without taking into account the provisions of Section 9.5(a)) shall exceed an amount equal to $12.5 million (the "Basket Amount"), provided that, once such Losses equal or exceed the Basket Amount (without taking into account the provisions of Section 9.5(a)), subject to the other limitations in this Article IX, Purchaser may recover the entire Basket Amount and any additional Losses that are incurred. (e) Any claim made against Seller for indemnification of Losses pursuant to Sections 9.2(a)(i), 9.2(a)(ii), 9.2(a)(iv), 9.2(a)(v) or 9.2(a)(vi) shall be recoverable only from the amounts deposited with the Indemnification Escrow Agent pursuant to Section 2.3(a)(ii), and the amounts paid to all parties (including Seller pursuant to Section 9.5(a)) in respect of such Losses pursuant to the terms hereof shall be limited toSeller. Similarly, in the aggregateevent that an Indemnitee is, directly or indirectly, conducting the defense against any such Third-Party Claim, the Indemnification Cap. The "Indemnification Cap" means an amount equal Seller shall cooperate with such Indemnitee in such defense and make available to (i) $94 millionsuch Indemnitee, minus (ii) at the Pre-Closing Settlement AmountSeller's expense, plus (iii) all such witnesses, records, materials, and information in the Purchaser Settlement Amount; provided that Seller's possession or under the Indemnification Cap shall not be less than zero.Seller's control relating thereto as is reasonably required by such

Seller Indemnification. (a) Subject to the provisions of Except as otherwise provided in this Article IX11, Seller agrees from and after the Closing Date to indemnify Purchaserin Article 7 and Sections 5.2 and 12.8, the Company Seller will indemnify and their respective Affiliates, reimburse the Buyer for any and their respective officers, directors, employees, agents, partners, successors and assigns (each, a "Purchaser Indemnified Party"), against and hold them harmless from all liabilitiesclaims, losses, liabilities, damages, claimspenalties, reasonable and documented fines, costs and expenses (including reasonable attorney's fees) actually suffered or incurred by them (including by way of set-off against assets or otherwiseattorneys' fees and court costs) (the foregoing, collectively, "Losses") incurred by the Buyer and its Affiliates and their successors or assigns, and their respective directors, officers, employees, consultants and agents (the "Buyer Protected Parties"), as a result of, with respect to, or arising out of the following (collectively, the "Indemnity Matters"):of: (i) except as to Sections 3.1, 3.2 and 3.7, any breach or inaccuracy of any representation or warranty of the Seller set forth in this Agreement; (ii) any breach of, or noncompliance by the Seller with, any covenant or agreement of the Seller contained in this Agreement to be performed after the Closing; (iii) the Excluded Assets; (iv) any liabilities or obligations for which Seller has assumed responsibility under Article 7 hereof; (v) those matters set forth in Section 11.8(i); (vi) any of the Excluded Liabilities; (vii) ownership of the Assets or operation of the Business prior to the Closing Date (except with respect to any Environmental liability for which Seller's indemnifiable shall be limited to the period of Seller's ownership of the Assets or operation of the Business prior to the Closing Date); provided, however, that Seller has no obligation to indemnify Buyer for any Loss arising from, with respect to, or resulting from any matters or information disclosed to Buyer in this Agreement or the Schedules to this Agreement; and (viii) any breach or inaccuracy of any representation or warranty of Seller contained in this Agreement or in any certificate delivered pursuant hereto; (ii) the breach of any Pre-Closing Covenant by Seller; (iii) the breach of any Post-Closing Covenant by Seller; (iv) the proceedings or matters specifically identified as "Shared Special Indemnity Matters" set forth on Schedule 9.2(a)(iv) Sections 3.1, 3.2 and any other proceedings or matters arising from the same or related facts and/or circumstances as such specifically identified proceedings or matters, to the extent that such claims arise out of conduct or activities prior to Closing (collectively, the "Shared Special Indemnity Matters"); (v) any liability of Seller for which any Transfer Group Company is liable or becomes liable solely as a result of Seller's direct or indirect ownership or control of such entity (and not as a result of any act, failure to act or agreement of such entity, regardless of whether it is alleged that Seller caused such Transfer Group Company to take such act, to fail to act, or to enter into such agreement); solely for the purposes of clarity, it is acknowledged and agreed that the liabilities in this Section 9.2(a)(v) shall not include the matters described in Section 9.2(a)(i), Section 9.2(a)(ii), Section 9.2(a)(iii), Section 9.2(a)(iv) or Article X; or (vi) any liability arising from, related to or based on (x) alleged market manipulation and/or illegal trading activities conducted prior to Closing by any Transfer Group Company in the power markets located in the Western United States or (y) any improper action or improper inaction by any Transfer Group Company prior to the Closing in connection with any alleged market manipulation and/or illegal trading activities conducted by Seller or any of Seller's Affiliates in the power markets in the Western United States3.7. (b) Notwithstanding anything in the foregoing to the contrary, subject to Section 11.3(b) (Time to Assert Claims) and Section 11.4 (Deductible), Seller's obligation for indemnity under Section 11.1(i) and Section 11.1(vii) shall be only for one-half of any Losses up to a maximum liability for Seller shall not be required to indemnify any Purchaser Indemnified Party of $5,000,000 (which is Seller's maximum obligation pursuant to this Section 9.2 to the extent otherwise indemnifiable such Sections in respect of Buyer's Losses (i) resulted from fraud, gross negligence, bad faith or willful misconduct in an aggregate amount of Purchaser, (ii) are the effect of a loss by the Company of its market based rate authority for a period of time up to twenty-four (24) months (it being understood that Purchaser shall be indemnified for effects of a loss by the Company of its market based rate authority for a period in excess of twenty-four (24) months, but only for such excess period), provided that Purchaser shall not be indemnified for a loss by any Transfer Group Company of its market based rate authority for any period after the third (3rd) annual anniversary of Closing$10,000,000); provided further however that the aggregate amount of Losses for which Purchaser is entitled such limitation shall not apply to indemnification in connection with the loss by any Transfer Group Company of market based rate authority will not exceed the lesser of (x) the agreed sale price of wholesale power Seller's obligation to a buyerindemnify Buyer under Sections 5.8, minus the adjusted price to that buyer after application of cost-based caps required by the loss of market based rate authority and (y) $1,000,000, or (iii) have been reserved for on the Company's balance sheet as of the 2002 Balance Sheet Date (to the extent such reserve is also on the Company's balance sheet as of the Closing Date for purposes of Schedule 2.1(a)) or otherwise have resulted in a reduction in the Purchase Price pursuant to the purchase price adjustment provisions herein. (c) No claim may be asserted nor may any action be commenced against Seller pursuant to clause (i) or (ii) of Section 9.2(a) for breach of any representation or warranty or Pre-Closing Covenant, unless written notice of such claim or action (satisfying the requirements of Section 9.4(a) or Section 9.4(b11.1(iii), as applicable) is received by Seller on or prior to the date on which the representation or warranty or Pre-Closing Covenant on which such claim or action is based ceases to survive as set forth in Section 9.1. (d) No claim may be made against Seller for indemnification pursuant to Sections 9.2(a)(i) or 9.2(a)(ii) unless the aggregate amount of all Losses of Purchaser Indemnified Parties upon which valid claims are based pursuant to Section 9.2(a)(i) and 9.2(a)(ii) (without taking into account the provisions of Section 9.5(a)) shall exceed an amount equal to $12.5 million (the "Basket Amount"11.1(iv), provided that, once such Losses equal or exceed the Basket Amount (without taking into account the provisions of Section 9.5(a)11.1(v), subject to the other limitations in this Article IX, Purchaser may recover the entire Basket Amount and any additional Losses that are incurred. (e) Any claim made against Seller for indemnification of Losses pursuant to Sections 9.2(a)(i11.1(vi), 9.2(a)(ii11.1(viii), 9.2(a)(iv)11.8, 9.2(a)(v) 12.8 and Article 7 or 9.2(a)(vi) shall be recoverable only from the amounts deposited with the Indemnification Escrow Agent pursuant to Section 2.3(a)(ii), and the amounts paid to all parties (including Seller pursuant to Section 9.5(a)) in respect of such Losses pursuant to the terms hereof shall be limited to, in the aggregate, the Indemnification Cap. The "Indemnification Cap" means an amount equal to (i) $94 million, minus (ii) the Pre-Closing Settlement Amount, plus (iii) the Purchaser Settlement Amount; provided that the Indemnification Cap shall not be less than zeroSeller's fraud or willful breaches or misconduct.

Seller Indemnification. (a) Subject to the provisions of this Article X, and except as otherwise provided in Article IX, Seller agrees from and after the Closing Date Date, Seller agrees to indemnify Purchaser, the Company and their respective Affiliates, and their respective officers, directors, employees, agents, partners, successors and assigns (each, a "Purchaser Indemnified Party"), Parties against and hold them harmless from any and all liabilities, losses, damages, claims, reasonable and documented costs and expenses (including reasonable attorney's fees) Losses actually suffered or incurred by them (including by way of set-off against assets or otherwise) (the foregoing, collectively, "Losses"), arising out of the following (collectively, the "Indemnity Matters"):following: (i) the breach of any representation or warranty of Seller contained in this Agreement Agreement; PROVIDED, HOWEVER, that in determining whether Seller is liable pursuant to this Section 10.2(a)(i) for any breach of any representation or warranty contained in Section 4.7 of this Agreement, the qualification of any certificate delivered pursuant heretosuch representation or warranty by reference to materiality, including any reference to the qualification "SELLER MATERIAL ADVERSE EFFECT" or "TRANSFER GROUP MATERIAL ADVERSE EFFECT" shall be disregarded and ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ion of whether any such representation or warranty has been breached shall be made without regard to any such qualification or whether such breach is material or constitutes a Seller Material Adverse Effect or Transfer Group Material Adverse Effect. Notwithstanding the fo▇▇▇▇▇▇▇, ▇▇▇ the purposes of this Section 10.2(a)(i), no representation or warranty in Section 4.7 containing a qualification by reference to materiality, including any reference to "SELLER MATERIAL ADVERSE EFFECT" or "TRANSFER GROUP MATERIAL ADVERSE EFFECT," shall be considered to ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ unless the Losses to the Purchaser Indemnified Parties resulting from such breach exceed $500,000 (the "INDIVIDUAL BASKET AMOUNT") per individual breach (or series of related breaches arising out of the same event) of such representation or warranty; PROVIDED, that, once such Losses for such individual breach (or series of related breaches arising out of the same event) of such representation or warranty equal or exceed the Individual Basket Amount, subject to the other limitations in this Article X (including, without limitation, satisfaction of the Basket Amount set forth in Section 10.2(d)), Seller shall be liable to the Purchaser Indemnified Parties for the entire amount of such Losses in excess of the Basket Amount (for the avoidance of doubt, each individual breach, or series of related breaches arising out of the same event, of a representation or warranty shall be separately applied towards the Individual Basket Amount and such individual breaches, or series of related breaches arising out of the same event, shall not be aggregated with other breaches for purposes of determining whether the Individual Basket Amount has been reached); (ii) the breach of any Pre-Closing Covenant by Seller;; or (iii) the breach of any Post-Closing Covenant by Seller; (iv) the proceedings or matters specifically identified as "Shared Special Indemnity Matters" on Schedule 9.2(a)(iv) and any other proceedings or matters arising from the same or related facts and/or circumstances as such specifically identified proceedings or matters, to the extent that such claims arise out of conduct or activities prior to Closing (collectively, the "Shared Special Indemnity Matters"); (v) any liability of Seller for which any Transfer Group Company is liable or becomes liable solely as a result of Seller's direct or indirect ownership or control of such entity (and not as a result of any act, failure to act or agreement of such entity, regardless of whether it is alleged that Seller caused such Transfer Group Company to take such act, to fail to act, or to enter into such agreement); solely for the purposes of clarity, it is acknowledged and agreed that the liabilities in this Section 9.2(a)(v) shall not include the matters described in Section 9.2(a)(i), Section 9.2(a)(ii), Section 9.2(a)(iii), Section 9.2(a)(iv) or Article X; or (vi) any liability arising from, related to or based on (x) alleged market manipulation and/or illegal trading activities conducted prior to Closing by any Transfer Group Company in the power markets located in the Western United States or (y) any improper action or improper inaction by any Transfer Group Company prior to the Closing in connection with any alleged market manipulation and/or illegal trading activities conducted by Seller or any of Seller's Affiliates in the power markets in the Western United States. (b) Seller shall not be required to indemnify any Purchaser Indemnified Party pursuant to this Section 9.2 10.2 or Sections 9.10 or 9.11 to the extent otherwise indemnifiable Losses or claims pursuant to this Section 10.2 or Sections 9.10 or 9.11 (i) resulted from fraud, gross negligence, bad faith or willful misconduct of Purchaser, Purchaser or (ii) are the effect of a loss by the Company of its market based rate authority for a period of time up to twenty-four (24) months (it being understood that Purchaser shall be indemnified for effects of a loss by the Company of its market based rate authority for a period in excess of twenty-four (24) months, but only for such excess period), provided that Purchaser shall not be indemnified for a loss by any Transfer Group Company of its market based rate authority for any period after the third (3rd) annual anniversary of Closing); provided further that the aggregate amount of Losses for which Purchaser is entitled to indemnification in connection with the loss by any Transfer Group Company of market based rate authority will not exceed the lesser of (x) the agreed sale price of wholesale power to a buyer, minus the adjusted price to that buyer after application of cost-based caps required by the loss of market based rate authority and (y) $1,000,000, or (iii) have been reserved for on the Company's balance sheet as of the 2002 Balance Sheet Date (to the extent such reserve is also on the Company's balance sheet as of the Closing Date for purposes of Schedule 2.1(a)) or otherwise have resulted in a reduction in the Purchase Price pursuant to the purchase price adjustment provisions hereinin this Agreement. (c) No claim may be asserted nor may any action be commenced against Seller pursuant to clause (ithis Section 10.2(a) or (ii) of Section 9.2(a) Sections 9.10 or 9.11 for breach of any representation or warranty or warranty, Pre-Closing CovenantCovenant or Post-Closing Covenant or a claim pursuant to Sections 9.10 or 9.11, unless written notice of such claim or action (satisfying the requirements of Section 9.4(a) or Section 9.4(b), as applicable10.4) is received by Seller on or prior to the date on which the representation or warranty warranty, Pre-Closing Covenant or PrePost-Closing Covenant on which such claim or action action, or claim pursuant to Sections 9.10 or 9.11, is based ceases to survive as set forth in Section 9.1in, as applicable, Sections 9.10, 9.11 or 10.1. (d) No claim may be made against Seller for indemnification pursuant to Sections 9.2(a)(i10.2(a)(i) or 9.2(a)(iiand 10.2(a)(ii) unless the aggregate amount of all Losses of the Purchaser Indemnified Parties upon which valid claims are based pursuant to Section 9.2(a)(i) and 9.2(a)(ii) (without taking into account the provisions of Section 9.5(a)) such sections shall exceed an amount equal to $12.5 million 1,000,000 (the "Basket AmountBASKET AMOUNT"), provided that, once such and then Seller shall only be responsible for indemnification of Losses equal or exceed in excess of the Basket Amount (without taking into account the provisions of Section 9.5(a)), subject to the other limitations in this Article IX, Purchaser may recover the entire Basket Amount and any additional Losses that are incurredAmount. (e) Any claim made against The amounts paid by Seller for indemnification of Losses under this Agreement pursuant to Sections 9.2(a)(i), 9.2(a)(ii), 9.2(a)(iv), 9.2(a)(v10.2(a)(i) or 9.2(a)(viand 10.2(a)(ii) shall be recoverable only from the amounts deposited with the Indemnification Escrow Agent pursuant to Section 2.3(a)(ii), and the amounts paid to all parties (including Seller pursuant to Section 9.5(a)) in respect of such Losses pursuant to the terms hereof shall be limited to, in the aggregate, the Indemnification Cap. The "Indemnification Cap" means an amount equal to $3,500,000 (the "INDEMNIFICATION CAP"). (f) No claim may be asserted nor may any action be commenced against Seller pursuant to this Section 10.2 or Sections 9.10 or 9.11 for breach of any representation or warranty, Pre-Closing Covenant or Post-Closing Covenant or claim pursuant to Sections 9.10 or 9.11 to the extent that (i) $94 millionPurchaser had a reasonable opportunity, minus but failed, in good faith to mitigate the Loss including, but not limited to, the failure to use commercially reasonable efforts to recover under a policy of insurance or under a contractual right of set-off or indemnity, or (ii) such Loss arises from or was caused by actions taken or failed to be taken by Purchaser or any of its Affiliates after the Pre-Closing Settlement AmountClosing. (g) Notwithstanding anything to the contrary contained herein or in any Transaction Document, plus (iii) the Purchaser Settlement Amount; provided that amounts paid by Seller for indemnification under this Agreement and the Indemnification Cap Transaction Documents shall not be less than zeroin no event exceed, in the aggregate, the Purchase Price.

Seller Indemnification. (a) Subject to the provisions of this Article IXSection 10.3, Seller agrees from and after the Closing Date Closing, the Seller Parties, on a several basis, and not on a joint basis, based on his/her/its Proportionate Share, agree to indemnify PurchaserBuyer, its Affiliates, the Company Company, the Company’s Subsidiaries, their members and any of their successors and assigns, and any of their respective Affiliates, and their respective officers, directorsagents, employees, agentsRepresentatives, partnersofficers, successors managers and assigns directors (each, a "Purchaser the “Buyer Indemnified Party"Parties”), against against, and hold them Buyer Indemnified Parties harmless from from, any and all liabilities, losses, damages, claims, reasonable and documented costs and expenses (including reasonable attorney's fees) actually Losses suffered or incurred by them (including by way of set-off against assets or otherwise) (any Buyer Indemnified Party to the foregoing, collectively, "Losses"), extent arising out of the following (collectively, the "Indemnity Matters"):of: (ia) the any breach of or any inaccuracy in any representation or warranty made by (A) each Seller in Article VI of this Agreement solely with respect to himself/herself/itself or (B) the Seller contained Parties in Article VII of this Agreement; (b) any breach of or failure by the Seller Parties or any of their respective Affiliates to perform any covenant, agreement or obligation set out in this Agreement or in any certificate delivered pursuant heretoother Document (including the Non-Compete) solely with respect to himself/herself/itself; (iic) any Company Transaction Expenses that remain unpaid as of immediately prior to the breach Closing and are not taken into account in the final determination of any Prethe Other Post-Closing Covenant by SellerAmounts; (iiid) any Indebtedness that remains unpaid as of immediately prior to the breach Closing and is not taken into account in the final determination of any the Other Post-Closing Covenant by Seller; (iv) the proceedings or matters specifically identified as "Shared Special Indemnity Matters" on Schedule 9.2(a)(iv) and any other proceedings or matters arising from the same or related facts and/or circumstances as such specifically identified proceedings or matters, to the extent that such claims arise out of conduct or activities prior to Closing (collectively, the "Shared Special Indemnity Matters"); (v) any liability of Seller for which any Transfer Group Company is liable or becomes liable solely as a result of Seller's direct or indirect ownership or control of such entity (and not as a result of any act, failure to act or agreement of such entity, regardless of whether it is alleged that Seller caused such Transfer Group Company to take such act, to fail to act, or to enter into such agreement); solely for the purposes of clarity, it is acknowledged and agreed that the liabilities in this Section 9.2(a)(v) shall not include the matters described in Section 9.2(a)(i), Section 9.2(a)(ii), Section 9.2(a)(iii), Section 9.2(a)(iv) or Article XAmounts; or (vie) any liability arising fromdemand, related to claim, suit, cause of action, proceeding or based on (x) alleged market manipulation and/or illegal trading activities conducted prior to Closing assessment brought by any Transfer Group current or former member, equity holder, warrantholder or option holder of any Seller Party or any Affiliate of any Seller Party (in such Person’s capacity as such) against Buyer, the Company in the power markets located in the Western United States or (y) any improper action or improper inaction by any Transfer Group Company prior to the Closing of its Subsidiaries in connection with this Agreement, the transactions contemplated hereby or thereby, including any alleged market manipulation and/or illegal trading activities conducted by Seller or any of Seller's Affiliates in the power markets in the Western United States. (b) Seller shall not be required to indemnify any Purchaser Indemnified Party pursuant to this Section 9.2 to the extent otherwise indemnifiable Losses (i) resulted from fraud, gross negligence, bad faith or willful misconduct of Purchaser, (ii) are the effect of a loss by the Company of its market based rate authority for a period of time up to twenty-four (24) months (it being understood claim that Purchaser shall be indemnified for effects of a loss by the Company of its market based rate authority for a period in excess of twenty-four (24) months, but only for such excess period), provided that Purchaser shall not be indemnified for a loss by any Transfer Group Company of its market based rate authority for any period after the third (3rd) annual anniversary of Closing); provided further that the aggregate amount of Losses for which Purchaser is entitled to indemnification in connection with the loss by any Transfer Group Company of market based rate authority will not exceed the lesser of (x) the agreed sale price of wholesale power to a buyer, minus the adjusted price to that buyer after application of cost-based caps required by the loss of market based rate authority and (y) $1,000,000, or (iii) have been reserved for on the Company's balance sheet as of the 2002 Balance Sheet Date (to the extent such reserve is also on the Company's balance sheet as of the Closing Date for purposes of Schedule 2.1(a)) or otherwise have resulted in a reduction in the Purchase Price pursuant or any other amount was not properly distributed to the purchase price adjustment provisions hereinsuch Person. (c) No claim may be asserted nor may any action be commenced against Seller pursuant to clause (i) or (ii) of Section 9.2(a) for breach of any representation or warranty or Pre-Closing Covenant, unless written notice of such claim or action (satisfying the requirements of Section 9.4(a) or Section 9.4(b), as applicable) is received by Seller on or prior to the date on which the representation or warranty or Pre-Closing Covenant on which such claim or action is based ceases to survive as set forth in Section 9.1. (d) No claim may be made against Seller for indemnification pursuant to Sections 9.2(a)(i) or 9.2(a)(ii) unless the aggregate amount of all Losses of Purchaser Indemnified Parties upon which valid claims are based pursuant to Section 9.2(a)(i) and 9.2(a)(ii) (without taking into account the provisions of Section 9.5(a)) shall exceed an amount equal to $12.5 million (the "Basket Amount"), provided that, once such Losses equal or exceed the Basket Amount (without taking into account the provisions of Section 9.5(a)), subject to the other limitations in this Article IX, Purchaser may recover the entire Basket Amount and any additional Losses that are incurred. (e) Any claim made against Seller for indemnification of Losses pursuant to Sections 9.2(a)(i), 9.2(a)(ii), 9.2(a)(iv), 9.2(a)(v) or 9.2(a)(vi) shall be recoverable only from the amounts deposited with the Indemnification Escrow Agent pursuant to Section 2.3(a)(ii), and the amounts paid to all parties (including Seller pursuant to Section 9.5(a)) in respect of such Losses pursuant to the terms hereof shall be limited to, in the aggregate, the Indemnification Cap. The "Indemnification Cap" means an amount equal to (i) $94 million, minus (ii) the Pre-Closing Settlement Amount, plus (iii) the Purchaser Settlement Amount; provided that the Indemnification Cap shall not be less than zero.

Seller Indemnification. (a) Subject to The Seller will defend and indemnify the provisions of this Article IX, Seller agrees from and after the Closing Date to indemnify PurchaserTrust Depositor, the Company Trust, the Trustees, any agents of the Trustees and their respective Affiliates, the Certificateholders and their respective officers, directors, employees, agents, partners, successors and assigns Noteholders (each, a an "Purchaser Indemnified PartyINDEMNIFIED PARTY")) against any and all costs, against and hold them harmless from all liabilitiesexpenses, losses, damages, claimsclaims and liabilities, joint or several, including reasonable and documented costs fees and expenses of counsel and expenses of litigation (including reasonable attorney's fees) actually suffered or incurred by them (including by way of set-off against assets or otherwise) (the foregoing, collectively, "LossesCOSTS"), ) arising out of the following (collectively, the "Indemnity Matters"): or resulting from (i) this Agreement or the breach Sale and Servicing Agreement or the use, ownership or operation of any Equipment by the Seller or the Servicer or any Affiliate of either thereof, (ii) any representation or warranty of or covenant made by the Seller contained in this Agreement being untrue or incorrect (subject to the third sentence of the preamble to Article III of this Agreement above), and (iii) any untrue statement or alleged untrue statement of a material fact contained in the Prospectus or in any certificate delivered pursuant hereto; (ii) amendment thereto or the breach omission or alleged omission to state therein a material fact necessary to make the statements therein, in light of any Pre-Closing Covenant by Seller; (iii) the breach of any Post-Closing Covenant by Seller; (iv) the proceedings or matters specifically identified as "Shared Special Indemnity Matters" on Schedule 9.2(a)(iv) and any other proceedings or matters arising from the same or related facts and/or circumstances as such specifically identified proceedings or mattersin which they were made, not misleading, in each case to the extent extent, but only to the extent, that such claims arise out of conduct untrue statement or activities prior alleged untrue statement was made in conformity with information furnished to Closing (collectivelythe Trust Depositor by the Seller specifically for use therein; PROVIDED, the "Shared Special Indemnity Matters"); (v) any liability of Seller for which any Transfer Group Company is liable or becomes liable solely as a result of Seller's direct or indirect ownership or control of such entity (and not as a result of any actHOWEVER, failure to act or agreement of such entity, regardless of whether it is alleged that Seller caused such Transfer Group Company to take such act, to fail to act, or to enter into such agreement); solely for the purposes of clarity, it is acknowledged and agreed that the liabilities in this Section 9.2(a)(v) shall not include the matters described in Section 9.2(a)(i), Section 9.2(a)(ii), Section 9.2(a)(iii), Section 9.2(a)(iv) or Article X; or (vi) any liability arising from, related to or based on (x) alleged market manipulation and/or illegal trading activities conducted prior to Closing by any Transfer Group Company in the power markets located in the Western United States or (y) any improper action or improper inaction by any Transfer Group Company prior to the Closing in connection with any alleged market manipulation and/or illegal trading activities conducted by Seller or any of Seller's Affiliates in the power markets in the Western United States. (b) Seller shall not be required to so indemnify any Purchaser such Indemnified Party pursuant to this Section 9.2 for such Costs to the extent otherwise indemnifiable Losses (i) resulted that such Cost shall be due to or arise from fraud, gross negligencethe willful misfeasance, bad faith or willful misconduct gross negligence of Purchasersuch Indemnified Party, (ii) are or the effect failure of such Indemnified Party to comply with any express undertaking, agreement or covenant made by such Indemnified Party in a loss by Transaction Document to which it is a party. Notwithstanding any other provision of this Agreement, the Company obligation of its market based rate authority for a period of time up to twenty-four (24) months (it being understood that Purchaser shall be indemnified for effects of a loss by the Company of its market based rate authority for a period in excess of twenty-four (24) months, but only for such excess period), provided that Purchaser Seller under this Section 6.01 shall not be indemnified for terminate upon a loss by any Service Transfer Group Company of its market based rate authority for any period after the third (3rd) annual anniversary of Closing); provided further that the aggregate amount of Losses for which Purchaser is entitled pursuant to indemnification in connection with the loss by any Transfer Group Company of market based rate authority will not exceed the lesser of (x) the agreed sale price of wholesale power to a buyer, minus the adjusted price to that buyer after application of cost-based caps required by the loss of market based rate authority and (y) $1,000,000, or (iii) have been reserved for on the Company's balance sheet as Article VIII of the 2002 Balance Sheet Date (to the extent such reserve is also on the Company's balance sheet as Sale and Servicing Agreement and shall survive any termination of the Closing Date for purposes of Schedule 2.1(a)) that agreement or otherwise have resulted in a reduction in the Purchase Price pursuant to the purchase price adjustment provisions hereinthis Agreement. (c) No claim may be asserted nor may any action be commenced against Seller pursuant to clause (i) or (ii) of Section 9.2(a) for breach of any representation or warranty or Pre-Closing Covenant, unless written notice of such claim or action (satisfying the requirements of Section 9.4(a) or Section 9.4(b), as applicable) is received by Seller on or prior to the date on which the representation or warranty or Pre-Closing Covenant on which such claim or action is based ceases to survive as set forth in Section 9.1. (d) No claim may be made against Seller for indemnification pursuant to Sections 9.2(a)(i) or 9.2(a)(ii) unless the aggregate amount of all Losses of Purchaser Indemnified Parties upon which valid claims are based pursuant to Section 9.2(a)(i) and 9.2(a)(ii) (without taking into account the provisions of Section 9.5(a)) shall exceed an amount equal to $12.5 million (the "Basket Amount"), provided that, once such Losses equal or exceed the Basket Amount (without taking into account the provisions of Section 9.5(a)), subject to the other limitations in this Article IX, Purchaser may recover the entire Basket Amount and any additional Losses that are incurred. (e) Any claim made against Seller for indemnification of Losses pursuant to Sections 9.2(a)(i), 9.2(a)(ii), 9.2(a)(iv), 9.2(a)(v) or 9.2(a)(vi) shall be recoverable only from the amounts deposited with the Indemnification Escrow Agent pursuant to Section 2.3(a)(ii), and the amounts paid to all parties (including Seller pursuant to Section 9.5(a)) in respect of such Losses pursuant to the terms hereof shall be limited to, in the aggregate, the Indemnification Cap. The "Indemnification Cap" means an amount equal to (i) $94 million, minus (ii) the Pre-Closing Settlement Amount, plus (iii) the Purchaser Settlement Amount; provided that the Indemnification Cap shall not be less than zero.

Seller Indemnification. (a) Subject to the provisions of this Article X, and except as otherwise provided in Article IX, Seller agrees from and after the Closing Date Date, Sellers agree, severally and not jointly, and in the case of Enron severally and jointly, to indemnify Purchaser, the Company and their respective Affiliates, and their respective officers, directors, employees, agents, partners, successors and assigns (each, a "Purchaser Indemnified Party"), Parties against and hold them harmless from any and all liabilities, losses, damages, claims, reasonable and documented costs and expenses (including reasonable attorney's fees) Losses actually suffered or incurred by them (including by way of set-off against assets or otherwise) (the foregoing, collectively, "Losses"), arising out of the following (collectively, the "Indemnity Matters"):following: (i) the breach of any representation or warranty of Seller Sellers contained in this Agreement Agreement; provided, however, that in determining whether Sellers are liable pursuant to this Section 10.2(a)(i) for any breach of any representation or warranty contained in Section 4.7 of this Agreement, the qualification of any certificate delivered pursuant heretosuch representation or warranty by reference to materiality, including any reference to the qualification "Seller Material Adverse Effect" or "Transfer Group Material Adverse Effect" shall be disregarded and ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ion of whether any such representation or warranty has been breached shall be made without regard to any such qualification or whether such breach is material or constitutes a Seller Material Averse Effect or Transfer Group Material Adverse Effect. Notwithstanding the f▇▇▇▇▇▇▇▇, ▇▇▇ the purposes of this Section 10.2(a)(i), no representation or warranty in Section 4.7 containing a qualification by reference to materiality, including any reference to "Seller Material Adverse Effect" or "Transfer Group Material Adverse Effect," shall be considered to ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ unless the Losses to the Purchaser Indemnified Parties resulting from such breach exceed $7,500,000 (the "Individual Basket Amount") per individual breach (or series of related breaches arising out of the same event) of such representation or warranty; provided that, once such Losses for such individual breach (or series of related breaches arising out of the same event) of such representation or warranty equal or exceed the Individual Basket Amount, subject to the other limitations in this Article X (including, without limitation, satisfaction of the Basket Amount set forth in Section 10.2(d)), Sellers shall be liable to the Purchaser Indemnified Parties for the entire amount of such Losses in excess of the Basket Amount (for the avoidance of doubt, each individual breach, or series of related breaches arising out of the same event, of a representation or warranty shall be separately applied towards the Individual Basket Amount and such individual breaches, or series of related breaches arising out of the same event, shall not be aggregated with other breaches for purposes of determining whether the Individual Basket Amount has been reached); (ii) the breach of any Pre-Closing Covenant by Seller;Sellers; or (iii) the breach of any Post-Closing Covenant by SellerSellers; (iv) the proceedings or matters specifically identified as "Shared Special Indemnity Matters" on Schedule 9.2(a)(iv) and any other proceedings or matters arising from the same or related facts and/or circumstances as such specifically identified proceedings or matters, to the extent that such claims arise out of conduct or activities prior to Closing (collectively, the "Shared Special Indemnity Matters"); (v) any liability of Seller for which any Transfer Group Company is liable or becomes liable solely as a result of Seller's direct or indirect ownership or control of such entity (and not as a result of any act, failure to act or agreement of such entity, regardless of whether it is alleged that Seller caused such Transfer Group Company to take such act, to fail to act, or to enter into such agreement); solely for the purposes of clarity, it is acknowledged and agreed that the liabilities in this Section 9.2(a)(v) shall not include the matters described in Section 9.2(a)(i), Section 9.2(a)(ii), Section 9.2(a)(iii), Section 9.2(a)(iv) or Article X; or (vi) any liability arising from, related to or based on (x) alleged market manipulation and/or illegal trading activities conducted prior to Closing by any Transfer Group Company in the power markets located in the Western United States or (y) any improper action or improper inaction by any Transfer Group Company prior to the Closing in connection with any alleged market manipulation and/or illegal trading activities conducted by Seller or any of Seller's Affiliates in the power markets in the Western United States. (b) Seller Sellers shall not be required to indemnify any Purchaser Indemnified Party pursuant to this Section 9.2 10.2 or Sections 9.10, 9.11 or 9.12 to the extent otherwise indemnifiable Losses or claims pursuant to this Section 10.2 or Sections 9.10, 9.11 or 9.12 (i) resulted from fraud, gross negligence, bad faith or willful misconduct of Purchaser, Purchaser or (ii) are the effect of a loss by the Company of its market based rate authority for a period of time up to twenty-four (24) months (it being understood that Purchaser shall be indemnified for effects of a loss by the Company of its market based rate authority for a period in excess of twenty-four (24) months, but only for such excess period), provided that Purchaser shall not be indemnified for a loss by any Transfer Group Company of its market based rate authority for any period after the third (3rd) annual anniversary of Closing); provided further that the aggregate amount of Losses for which Purchaser is entitled to indemnification in connection with the loss by any Transfer Group Company of market based rate authority will not exceed the lesser of (x) the agreed sale price of wholesale power to a buyer, minus the adjusted price to that buyer after application of cost-based caps required by the loss of market based rate authority and (y) $1,000,000, or (iii) have been reserved for on the Company's balance sheet as of the 2002 Balance Sheet Date (to the extent such reserve is also on the Company's balance sheet as of the Closing Date for purposes of Schedule 2.1(a)) or otherwise have resulted in a reduction in the Purchase Price pursuant to the purchase price adjustment provisions hereinin this Agreement. (c) No claim may be asserted nor may any action be commenced against Seller Sellers pursuant to clause (ithis Section 10.2(a) or (ii) of Section 9.2(a) Sections 9.10, 9.11 or 9.12 for breach of any representation or warranty or warranty, Pre-Closing CovenantCovenant or Post-Closing Covenant or a claim pursuant to Sections 9.10, 9.11 or 9.12, unless written notice of such claim or action (satisfying the requirements of Section 9.4(a) or Section 9.4(b), as applicable10.4) is received by Seller Sellers on or prior to the date on which the representation or warranty warranty, Pre-Closing Covenant or PrePost-Closing Covenant on which such claim or action action, or claim pursuant to Sections 9.10, 9.11 or 9.12, is based ceases to survive as set forth in Section 9.1in, as applicable, Sections 9.10, 9.11, 9.12 or 10.1. (d) No claim may be made against Seller Sellers for indemnification pursuant to Sections 9.2(a)(i10.2(a)(i) or 9.2(a)(iiand 10.2(a)(ii) unless the aggregate amount of all Losses of the Purchaser Indemnified Parties upon which valid claims are based pursuant to Section 9.2(a)(i) and 9.2(a)(ii) (without taking into account the provisions of Section 9.5(a)) such sections shall exceed an amount equal to $12.5 million 15,000,000 (the "Basket Amount"), provided that, once such and then Sellers shall only be responsible for indemnification of Losses equal or exceed in excess of the Basket Amount (without taking into account the provisions of Section 9.5(a)), subject to the other limitations in this Article IX, Purchaser may recover the entire Basket Amount and any additional Losses that are incurredAmount. (e) Any claim made against Seller The amounts paid by all Sellers for indemnification of Losses under this Agreement pursuant to Sections 9.2(a)(i), 9.2(a)(ii), 9.2(a)(iv), 9.2(a)(v10.2(a)(i) or 9.2(a)(viand 10.2(a)(ii) shall be recoverable only from the amounts deposited with the Indemnification Escrow Agent pursuant to Section 2.3(a)(ii), and the amounts paid to all parties (including Seller pursuant to Section 9.5(a)) in respect of such Losses pursuant to the terms hereof shall be limited to, in the aggregate, the Indemnification Cap. The "Indemnification Cap" means an amount equal to $50,000,000 (the "Indemnification Cap"), with each Seller limited to an amount equal to the product of its Percentage Interest multiplied by the Indemnification Cap. (f) With respect to any successful claims for indemnification by the Purchaser Indemnified Parties under this Agreement, each Seller shall only be liable for and obligated to pay an amount equal to the product of its Percentage Interest multiplied by the amount of Losses (including Taxes) for which Sellers are obligated to pay to the Purchaser Indemnified Parties hereunder, (g) No claim may be asserted nor may any action be commenced against Sellers pursuant to this Section 10.2 or Sections 9.10, 9.11 or 9.12 for breach of any representation or warranty, Pre-Closing Covenant or Post-Closing Covenant or claim pursuant to Sections 9.10, 9.11 or 9.12 to the extent that (i) $94 millionPurchaser had a reasonable opportunity, minus but failed, in good faith to mitigate the Loss including, but not limited to, the failure to use commercially reasonable efforts to recover under a policy of insurance or under a contractual right of set-off or indemnity, or (ii) such Loss arises from or was caused by actions taken or failed to be taken by Purchaser or any of its Affiliates after the PreClosing. (h) All claims for indemnification made by Purchaser in accordance with this Section 10.2 or Sections 9.10, 9.11 or 9.12 shall, to the extent due and payable, be treated as an allowed administrative expense claim (to the extent agreed upon or ordered by the Bankruptcy Court on a final non-Closing Settlement Amountappealable basis) under section 503(b)(1)(A) of the Bankruptcy Code against the applicable Sellers. (i) Notwithstanding anything to the contrary contained herein or in any Transaction Document, plus (iii1) Sellers shall have no obligation or liability under this Agreement or the Transaction Documents for any Losses (including Taxes) incurred by Purchaser or its Affiliates that have been or will be indemnified by Sellers under the Contribution Agreement, and (2) the amounts paid by all Sellers for indemnification under this Agreement, the Citrus Trading Gas Contract Indemnification Agreement, the Transaction Documents and the Contribution Agreement shall in no event exceed, in the aggregate, the Purchase Price, with each Seller limited to an amount equal to the product of its Percentage Interest multiplied by the Purchase Price. (j) Notwithstanding anything herein to the contrary, each Purchaser Settlement Amount; provided Indemnified Party shall only be entitled to indemnification pursuant to Article IX or this Article X for that percentage of a Loss (including Taxes) suffered by a Citrus Group Company or Northern Border Company to the Indemnification Cap shall not be less than zeroextent of Sellers' indirect equity interest percentage as of the Closing Date in such Citrus Group Company or Northern Border Company.

Seller Indemnification. Seller and each Related Party (awhich, following the Canadian Reorganization, shall not include CWS or Manalta Investment Company Ltd. but, rather, New Holdco) Subject to the provisions of this Article IX, Seller agrees from shall jointly and after the Closing Date to severally indemnify Purchaser, the Company and their respective Affiliatesits representative members, and their respective managers, officers, directors, employees, agents, partners, successors and assigns and Affiliates (each, a the "Purchaser Indemnified PartyParties"), against ) and hold them the Purchaser Indemnified Parties harmless from and against any and all liabilitiesDamages based upon, losses, damages, claims, reasonable and documented costs and expenses (including reasonable attorney's fees) actually suffered attributable to or incurred by them (including by way of set-off against assets or otherwise) (the foregoing, collectively, "Losses"), arising out of the following (collectively, the "Indemnity Matters"):resulting from: (ia) the breach failure of any representation or warranty of Seller contained Seller, the Company or any Related Party set forth in this Agreement or the Ancillary Documents, or any representation or warranty contained in any certificate delivered by pursuant heretoto this Agreement, to be true and correct as of the dates made; (iib) the breach of any Pre-Closing Covenant by covenant or other agreement on the part of Seller, the Company or any Related Party under this Agreement or the Ancillary Documents; (iiic) any acts, errors, omissions, operations or other activities of or relating to the breach of any Post-Company and its Business with respect to periods prior to the Closing Covenant by SellerDate; (ivd) the proceedings or matters specifically identified as "Shared Special Indemnity Matters" on Schedule 9.2(a)(iv) and any other proceedings or matters arising from the same or related facts and/or circumstances as such specifically identified proceedings or matters, to the extent that such claims arise out of conduct or activities prior to Closing (collectively, the "Shared Special Indemnity Matters")Rejected Liabilities; (ve) any liability and all of items which are listed in Schedule 3.12 hereto; (f) the employment, termination of employment, compensation or employee benefits of any nature owed to any Employees (or the beneficiary of any Employee) that arises out of or relates to the employment relationship between the Company and any such employee or former employee prior to the Closing Date or the termination of such relationship. Without limiting the foregoing, Seller shall be responsible for which (1) the payment of any Transfer Group Company is liable severance payment or becomes liable solely benefits that become due to any Employee or former employee as a result of Seller's direct or indirect ownership or control the termination of such entity (and not as a result of any act, failure to act Employee or agreement of such entity, regardless of whether it is alleged that Seller caused such Transfer Group Company to take such act, to fail to act, or to enter into such agreement); solely for the purposes of clarity, it is acknowledged and agreed that the liabilities in this Section 9.2(a)(v) shall not include the matters described in Section 9.2(a)(i), Section 9.2(a)(ii), Section 9.2(a)(iii), Section 9.2(a)(iv) or Article X; or (vi) any liability arising from, related to or based on (x) alleged market manipulation and/or illegal trading activities conducted prior to Closing by any Transfer Group Company in the power markets located in the Western United States or (y) any improper action or improper inaction by any Transfer Group Company prior to the Closing in connection with any alleged market manipulation and/or illegal trading activities conducted by Seller or any of Seller's Affiliates in the power markets in the Western United States. (b) Seller shall not be required to indemnify any Purchaser Indemnified Party pursuant to this Section 9.2 to the extent otherwise indemnifiable Losses (i) resulted from fraud, gross negligence, bad faith or willful misconduct of Purchaser, (ii) are the effect of a loss former employee by the Company on or before the Closing Date, (2) all legally mandated continuation coverage, including "COBRA" coverage required under Sections 601 to 608 of its market based rate authority ERISA and 4980B of the Code, for a period Employees of time up to twenty-four (24) months (it being understood that Purchaser shall be indemnified for effects of the Business and their covered dependents who had or have a loss of coverage due to a " qualifying event" (within the meaning of Section 603 of ERISA) due to a termination of employment by Seller, and (3) any contributions due under any benefit plans of the Company of its market based rate authority for a period in excess of twenty-four (24) months, but only for such excess period), provided that Purchaser shall not be indemnified for a loss by any Transfer Group Company of its market based rate authority for any period after the third (3rd) annual anniversary of Closing); provided further that the aggregate amount of Losses for which Purchaser is entitled to indemnification in connection with the loss by any Transfer Group Company of market based rate authority will not exceed the lesser of (x) the agreed sale price of wholesale power to a buyer, minus the adjusted price to that buyer after application of cost-based caps required by the loss of market based rate authority and (y) $1,000,000, or (iii) have been reserved for on the Company's balance sheet as of the 2002 Balance Sheet Date (to the extent such reserve is also on the Company's balance sheet as of the Closing Date for purposes of Schedule 2.1(a)) or otherwise have resulted in a reduction in the Purchase Price pursuant to the purchase price adjustment provisions herein. (c) No claim may be asserted nor may any action be commenced against Seller pursuant to clause (i) or (ii) of Section 9.2(a) for breach of any representation or warranty or Pre-Closing Covenant, unless written notice of such claim or action (satisfying the requirements of Section 9.4(a) or Section 9.4(b), as applicable) is received by Seller on or prior to Closing, as well as the date payment of any withdrawal liability that exists on or prior to Closing, or which would exist if a complete withdrawal were to occur immediately prior to the representation or warranty or Pre-Closing Covenant on which such claim or action is based ceases to survive as set forth in Section 9.1.Closing; and (dg) No claim may be made against Seller for indemnification pursuant to Sections 9.2(a)(i) or 9.2(a)(ii) unless the aggregate amount of any and all Losses of Purchaser Indemnified Parties upon which valid claims are based pursuant to Section 9.2(a)(i) actions, suits, proceedings, claims, demands, assessments, judgments, costs and 9.2(a)(ii) expenses (including, without taking into account the provisions of Section 9.5(a)) shall exceed an amount equal to $12.5 million (the "Basket Amount")limitation, provided that, once such Losses equal or exceed the Basket Amount (without taking into account the provisions of Section 9.5(a)), subject to the other limitations in this Article IX, Purchaser may recover the entire Basket Amount reasonable legal fees and any additional Losses that are incurred. (e) Any claim made against Seller for indemnification of Losses pursuant to Sections 9.2(a)(i), 9.2(a)(ii), 9.2(a)(iv), 9.2(a)(v) or 9.2(a)(vi) shall be recoverable only from the amounts deposited with the Indemnification Escrow Agent pursuant to Section 2.3(a)(ii)expenses, and travel costs and expenses) incident to any of the amounts paid foregoing or incurred in investigating or attempting to all parties (including Seller pursuant avoid the same or to Section 9.5(a)) oppose the imposition thereof, or in respect of such Losses pursuant to the terms hereof shall be limited toenforcing this indemnity. For certainty, in the aggregate, the Indemnification Cap. The "Indemnification Cap" means an amount equal to (i) $94 million, minus (ii) the Pre-Closing Settlement Amount, plus (iii) the Purchaser Settlement Amount; provided event that the Indemnification Cap licence of station WNC261 at Honolulu, Hawaii utilizing the D-Group Channels 1-4 is not renewed by the FCC, Purchaser acknowledges and agrees that it shall not be less than zeroentitled to any indemnification for any claim resulting from such non-renewal.