Common use of Seller Indemnification Clause in Contracts

Seller Indemnification. (a) Subject to the limitations set forth in this Article XI, if the Closing occurs, then from and after the Closing Date Seller shall indemnify and hold Buyer Parties and Buyer Parties’ Affiliates (including the Companies) and their respective officers, directors, partners, members, employees and agents thereof harmless from and against any and all Losses arising out of, based upon, attributable to or resulting from: (i) any breach of any representation or warranty of Seller contained in Article IV or any inaccuracy in the certificate delivered to Buyer Parties pursuant to Section 8.3, (ii) any breach of any agreement or covenant on the part of Seller contained in this Agreement, (iii) any act, event or omission occurring prior to the Closing Date (and not otherwise constituting an Assumed Liability) in the conduct by Seller or any of the Companies of the Business, including, without limitation, legal, labor, environmental, contractual, regulatory, tax, title and ownership issues, (iv) the Retained Liabilities, (v) any Legal Proceedings identified on Schedule 4.7, (vi) any amounts for which the Buyer Parties are indemnified by the Seller pursuant to Section 6.3(b)(vi)(A) or (B), and (vii) any amounts the Seller is obligated to pay pursuant to Section 6.3(g)(ii). (b) The foregoing shall not apply to any breach of Seller’s representations and warranties set forth in Section 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 any matters relating to Taxes shall be as provided in Articles VII.

Seller Indemnification. (a) Subject to the limitations set forth in provisions of this Article XIIX, if the Closing occurs, then Seller agrees from and after the Closing Date Seller shall to indemnify Purchaser, the Company and hold Buyer Parties and Buyer Parties’ Affiliates (including the Companies) their respective Affiliates, and their respective officers, directors, employees, agents, partners, memberssuccessors and assigns (each, employees a "Purchaser Indemnified Party"), against and agents thereof 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 any and all Losses assets or otherwise) (the foregoing, collectively, "Losses"), arising out ofof the following (collectively, based upon, attributable to or resulting from:the "Indemnity Matters"): (i) any the breach of any representation or warranty of Seller contained in Article IV this Agreement or in any inaccuracy in the certificate delivered to Buyer Parties pursuant to Section 8.3,hereto; (ii) any the breach of any agreement or covenant on the part of Seller contained in this Agreement,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, event failure to act or omission occurring 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 Date (and not otherwise constituting an Assumed Liability) in the conduct connection with any alleged market manipulation and/or illegal trading activities conducted by Seller or any of Seller's Affiliates in the Companies of power markets in the Business, including, without limitation, legal, labor, environmental, contractual, regulatory, tax, title and ownership issues, (iv) the Retained Liabilities, (v) any Legal Proceedings identified on Schedule 4.7, (vi) any amounts for which the Buyer Parties are indemnified by the Seller pursuant to Section 6.3(b)(vi)(A) or (B), and (vii) any amounts the Seller is obligated to pay pursuant to Section 6.3(g)(ii)Western United States. (b) The foregoing Seller shall not apply 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 Seller’s representations and warranties 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 4.109.1. (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 breach additional Losses that are incurred. (e) Any claim made against Seller for indemnification of any covenants set forth 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 Article VIIrespect of such Losses pursuant to the terms hereof shall be limited to, it being agreed and understood 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 Buyer’s sole and exclusive remedies for any matters relating to Taxes Indemnification Cap shall not be as provided in Articles VIIless than zero.

Seller Indemnification. (a) Subject to the limitations set forth in this Article XI, if the Closing occurs, then from and after the Closing Date Date, Seller shall indemnify and hold Buyer Parties and Buyer Parties’ Affiliates (including the Companies) and their its respective officers, directors, partners, members, employees and agents thereof harmless from and against any and all Losses arising out of, based upon, attributable to or resulting from: (i) any breach of any representation or warranty of Seller contained in Article IV or any inaccuracy in the certificate delivered to Buyer Parties pursuant to Section 8.3, (ii) any breach of any agreement or covenant on the part of Seller contained in this Agreement, (iii) any Losses arising out of any act, event or omission occurring prior to the Closing Date (and not otherwise constituting an Assumed Liability) in the conduct by Seller or any of the Companies RVEP of the Business, including, without limitation, legal, labor, environmental, contractual, regulatory, tax, title and ownership issues,, and (iv) the Retained Liabilities, (v) any Legal Proceedings identified on Schedule 4.7, (vi) any amounts for which the Buyer Parties are indemnified by the Seller pursuant to Section 6.3(b)(vi)(A) or (B), and (vii) any amounts the Seller is obligated to pay pursuant to Section 6.3(g)(ii). (b) The foregoing shall not apply to any breach of Seller’s representations and warranties set forth in Section 4.104.7, or to any breach of any Seller’s covenants set forth in Article VII, it being agreed and understood that the Buyer’s sole and exclusive remedies for any matters relating to Taxes shall be as provided in Articles Article VII.

Seller Indemnification. (a) Subject to the limitations set forth in this Article XI, if the Closing occurs, then from and after the Closing Date Date, Seller shall indemnify and hold Buyer Parties and Buyer Parties’ Affiliates (including the Companies) and their respective officers, directors, partners, members, employees and agents thereof harmless from and against any and all Losses arising out of, based upon, attributable to or resulting from: (i) any breach of any representation or warranty of Seller contained in Article IV or any inaccuracy in the certificate delivered to Buyer Parties pursuant to Section 8.3,; (ii) any breach of any agreement or covenant on the part of Seller contained in this Agreement,; (iii) any Losses arising out of any act, event or omission occurring prior to the Closing Date (and not otherwise constituting an Assumed Liability) in the conduct by Seller or any of the Companies of the Business, including, without limitation, legal, labor, environmental, contractual, regulatory, tax, title and ownership issues,; and (iv) the Retained Liabilities, (v) any Legal Proceedings identified on Schedule 4.7, (vi) any amounts for which the Buyer Parties are indemnified by the Seller pursuant to Section 6.3(b)(vi)(A) or (B), and (vii) any amounts the Seller is obligated to pay pursuant to Section 6.3(g)(ii). (b) The foregoing shall not apply to any breach of Seller’s representations and warranties set forth in Section 4.104.7, or to any breach of any Seller’s covenants set forth in Article VII, it being agreed and understood that the Buyer’s sole and exclusive remedies for any matters relating to Taxes shall be as provided in Articles Article VII.

Seller Indemnification. (a) Subject to the limitations set forth in this Article XI, if the Closing occurs, then from From and after the Closing Date Closing, Seller shall be liable for, and Seller shall indemnify the Purchaser Indemnified Parties against, and hold Buyer Parties and Buyer Parties’ Affiliates (including the Companies) and their respective officersthem harmless from, directors, partners, members, employees and agents thereof harmless from and against any and all Losses arising out of, based upon, attributable to or resulting from: (i) all liability for Taxes owed by the Company and any Company Subsidiaries and Taxes owed with respect to the Purchased Assets, in each case, for any Pre-Closing Tax Period and the portion of a Straddle Period allocable to the Pre-Closing Tax Period (including, without limitation, Taxes incurred in connection with the sale of the Shares, the Asset Transfers and any other transactions contemplated by this Agreement), except to the extent of any such Taxes that are reflected on the Statement of Company Net Book Value (if and to the extent any such amount reflected on the Statement of Company Net Book Value has not reduced the amount of any payment previously made under this Section 8.2(a) or Section 8.2(b) of this Agreement); (ii) all liability for Taxes owed by any member of the WMCI Tax Group (other than the Company and the Company Subsidiaries) for any taxable period (including, without limitation, Taxes incurred in connection with the sale of the Purchased Assets, the Shares, the Asset Transfers and any other transactions contemplated by this Agreement); (iii) any breach of any representation or warranty of Seller contained in Article IV or any inaccuracy in the certificate delivered to Buyer Parties pursuant to Section 8.3, (ii) any breach of any agreement or covenant on the part of Seller contained in this Agreement, (iii) any act, event or omission occurring prior to the Closing Date (and not otherwise constituting an Assumed Liability) in the conduct by Seller or any of the Companies of the Business, including, without limitation, legal, labor, environmental, contractual, regulatory, tax, title and ownership issues, 4.28; (iv) all liability for Transfer Taxes incurred in connection with the Retained Liabilities, transactions contemplated by this Agreement and (v) any Legal Proceedings identified on Schedule 4.7, (vi) any amounts all liability for which the Buyer Parties are indemnified by the Seller pursuant to Section 6.3(b)(vi)(A) or (B), and (vii) any amounts the Seller is obligated to pay pursuant to Section 6.3(g)(ii). (b) The foregoing shall not apply reasonable legal fees and expenses attributable to any breach of Seller’s representations and warranties set forth item in Section 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 any matters relating to Taxes shall be as provided in Articles VIIforegoing clauses.