Common use of Tax Benefit Clause in Contracts

Tax Benefit. If, as the result of any Taxes paid or indemnified against by the Facility Lessee under this Section 9.2, the aggregate Taxes actually paid by the Tax Indemnitee for any taxable year and not subject to indemnification pursuant to this Section 9.2 are less (whether by reason of a deduction, credit, allocation or apportionment of income or otherwise) than the amount of such Taxes that otherwise would have been payable by such Tax Indemnitee (a "Tax Benefit"), then to the extent such Tax Benefit was not taken into account in determining the amount of indemnification payable by the Facility Lessee under paragraph (a) or (c) above and provided no Significant Lease Default or Lease Event of Default shall have occurred and be continuing (in which event the payment provided under this Section 9.2(e) shall be deferred until the Significant Lease Default or Lease Event of Default has been cured), such Tax Indemnitee shall pay to the Facility Lessee the lesser of (A) (y) the amount of such Tax Benefit, plus (z) an amount equal to any United States federal, state or local income tax benefit resulting to the Tax Indemnitee from the payment under clause (y) above and this clause (z) (determined using the same assumptions as set forth in the second sentence under the definition of After-Tax Basis) and (B) the amount of the indemnity paid pursuant to this Section 9.2 giving rise to such Tax Benefit; provided, however, that any excess of (A) over (B) shall be carried forward and reduce the Facility Lessee's obligations to make subsequent payments to such Tax Indemnitee pursuant to this Section 9.2. If it is subsequently determined that the Tax Indemnitee was not entitled to such Tax Benefit, the portion of such Tax Benefit that is required to be repaid or recaptured will be treated as Taxes for which the Facility Lessee must indemnify the Tax Indemnitee pursuant to this Section 9.2 without regard to paragraph (b) hereof. Notwithstanding anything to the contrary herein, each Certificateholder Indemnitee shall determine the allocation of any tax benefits, savings, credit, deduction or allocation in its sole good faith discretion and each position to be taken on its tax return shall be in its sole control and it shall not be required to disclose any tax return or related documentation to any Person.

Tax Benefit. If, as the result by reason of any Taxes paid payment made to or indemnified against for the account of an Indemnitee by the Facility Lessee under this Section 9.2, the aggregate Taxes actually paid by the Tax Indemnitee for any taxable year and not subject to indemnification pursuant to this Section 9.2 are less 10 or Section 13 hereof, such Indemnitee subsequently actually realizes a tax deduction or credit (whether by reason of a deduction, credit, allocation or apportionment of income or otherwiseincluding foreign tax credit and any reduction in Taxes) than not previously taken into account in computing the amount of such Taxes that otherwise would have been payable by payment, such Tax Indemnitee (a "Tax Benefit")shall promptly pay to Lessee, but only if there shall then to the extent such Tax Benefit was not taken into account in determining the amount of indemnification payable by the Facility Lessee under paragraph (a) or (c) above and provided be no Significant Lease Default or Lease Event of Default and if Lessee shall have occurred made all payments then due and be continuing (in which event owing to such Indemnitee under the payment provided under this Section 9.2(e) shall be deferred until the Significant Lease Default or Lease Event of Default has been cured)Operative Documents, such Tax Indemnitee shall pay to the Facility Lessee the lesser of (A) (y) the amount of such Tax Benefit, plus (z) an amount equal to any United States federalthe sum of (i) the actual reduction in Taxes, state if any, realized by such Indemnitee which is attributable to such deduction or local income tax benefit resulting to credit and (ii) the Tax Indemnitee from the payment under clause (y) above and this clause (z) (determined using reduction calculated on the same assumptions basis as set forth the gross up in the second sentence under the definition Section 10(e) hereof in Taxes realized by such Indemnitee as a result of After-Tax Basis) and (B) the amount of the indemnity paid any payment made by such Indemnitee pursuant to this Section 9.2 giving rise to such Tax Benefitsentence; provided, however, that any excess of (A) over (B) such Indemnitee shall not be carried forward and reduce the Facility Lessee's obligations obligated to make subsequent payments to such Tax Indemnitee any payment pursuant to this Section 9.2. If it is subsequently determined 10 or Section 13 hereof to the extent that the Tax Indemnitee was not entitled amount calculated pursuant to (i) above would exceed (A) the amount of all prior payments by Lessee to such Tax BenefitIndemnitee, the portion of such Tax Benefit that is required to be repaid or recaptured will be treated as Taxes for which the Facility Lessee must indemnify the Tax Indemnitee pursuant to this Section 9.2 without regard to paragraph (b) 10 or Section 13 hereof. Notwithstanding anything to the contrary herein, each Certificateholder Indemnitee shall determine the allocation net of any tax benefits, savings, credit, deduction or allocation amount paid in its sole good faith discretion and each position respect of Taxes required to be taken on its tax return shall be paid by such Indemnitee in its sole control and it shall not be required respect of the receipt or accrual of such amounts received by such Indemnitee from Lessee, less (B) the portion of all prior payments computed pursuant to disclose any tax return or related documentation (i) above by such Indemnitee to any PersonLessee hereunder.

Tax Benefit. If, as the result of any Taxes paid or indemnified against by the Facility Lessee NRG under this Section 9.212.2, the aggregate Taxes actually paid by the Tax Indemnitee in connection with such payment for any taxable year and not subject to indemnification pursuant to this Section 9.2 12.2 are less (whether by reason of a deduction, credit, allocation or apportionment of income or otherwise) than the amount of such Taxes that otherwise would have been payable by such Tax Indemnitee (a "“Tax Benefit"”), ; then to the extent such Tax Benefit was not taken into account in determining the amount of indemnification payable by the Facility Lessee NRG under paragraph (a) or (c) above and provided no Significant Lease Default or Lease Event of Default shall have occurred and be continuing (in which event the payment provided under this Section 9.2(e12.2(e) shall be deferred until the Significant Lease Default or Lease Event of Default has been cured), such Tax Indemnitee shall pay to the Facility Lessee NRG the lesser of (A) (y) the amount of such Tax Benefit, plus (z) an amount equal to any United States federal, state or local income tax benefit resulting to the Tax Indemnitee from the payment under clause (y) above and this clause (z) (determined using the same assumptions as set forth in the second sentence under the definition of After-Tax Basis) and (B) the amount of the indemnity paid pursuant to this Section 9.2 12.2 giving rise to such Tax Benefit; provided, however, provided that any excess of the amount described in clause (A) over the amount described in clause (B) shall be carried forward and applied to reduce the Facility Lessee's pro tanto any subsequent obligations of NRG to make subsequent payments payment to such Tax Indemnitee pursuant to this Section 9.212.2. If it is subsequently determined that the Tax Indemnitee was not entitled to such Tax Benefit, the portion of such Tax Benefit that is required to be repaid or recaptured will be treated as Taxes for which the Facility Lessee NRG must indemnify the Tax Indemnitee pursuant to this Section 9.2 12.2 without regard to paragraph (b) hereof. Notwithstanding anything to the contrary herein, each Certificateholder Indemnitee shall determine the allocation of any tax benefits, savings, credit, deduction or allocation in its sole good faith discretion and each position to be taken on its tax return shall be in its sole control and it shall not be required to disclose any tax return or related documentation to any Person.

Tax Benefit. If, as the result of any Taxes paid or indemnified against by the Facility Lessee Xxxxx City under this Section 9.2SECTION 10.2, the aggregate Taxes actually paid by the Tax Indemnitee in connection with such payment for any taxable year and not subject to indemnification pursuant to this Section 9.2 SECTION 10.2 are less (whether by reason of a deduction, credit, allocation or apportionment of income or otherwise) than the amount of such Taxes that otherwise would have been payable by such Tax Indemnitee (a "Tax BenefitTAX BENEFIT"), ; then to the extent such Tax Benefit was not taken into account in determining the amount of indemnification payable by the Facility Lessee Xxxxx City under paragraph (a) or (c) above and provided no Significant Material Lease Default or Lease Event of Default shall have occurred and be continuing (in which event the payment provided under this Section 9.2(eSECTION 10.2(E) shall be deferred until the Significant Material Lease Default or Lease Event of Default has been cured), such Tax Indemnitee shall pay to the Facility Lessee Xxxxx City the lesser of (A) (y) the amount of such Tax Benefit, plus (z) an amount equal to any United States federal, state or local income tax benefit resulting to the Tax Indemnitee from the payment under clause (y) above and this clause (z) (determined using the same assumptions as set forth in the second sentence under the definition of After-Tax Basis) and (B) the amount of the indemnity paid pursuant to this Section 9.2 SECTION 10.2 giving rise to such Tax Benefit; provided, however, PROVIDED that any excess of the amount described in clause (A) over the amount described in clause (B) shall be carried forward and applied to reduce the Facility Lessee's pro tanto any subsequent obligations of Xxxxx City to make subsequent payments payment to such Tax Indemnitee pursuant to this Section 9.2SECTION 10.2. If it is subsequently determined that the Tax Indemnitee was not entitled to such Tax Benefit, the portion of such Tax Benefit that is required to be repaid or recaptured will be treated as Taxes for which the Facility Lessee Xxxxx City must indemnify the Tax Indemnitee pursuant to this Section 9.2 SECTION 10.2 without regard to paragraph (b) hereof. Notwithstanding anything to the contrary herein, each Certificateholder Indemnitee shall determine the allocation of any tax benefits, savings, credit, deduction or allocation in its sole good faith discretion and each position to be taken on its tax return shall be in its sole control and it shall not be required to disclose any tax return or related documentation to any Person.

Tax Benefit. IfIf either Agent, any Lender or either L/C Issuer determines, in its sole discretion, that its current obligation to pay Taxes (other than estimated Taxes) has been reduced or that it has received a refund it would otherwise not have received (a “Tax Reduction”) as the a result of a Tax credit or other Tax benefit in connection with any deduction, withholding or payment of Tax that gives rise to the payment by a Borrower of Indemnified Taxes paid or indemnified against by the Facility Lessee under this Section 9.2, the aggregate Other Taxes actually paid by the Tax Indemnitee for any taxable year and not subject to indemnification pursuant to this Section 9.2 are less (whether by reason of a deduction, credit, allocation or apportionment of income or otherwise) than the amount of such Taxes that otherwise would have been payable by such Tax Indemnitee (a "Tax Benefit")3.01, then such Agent, Lender or L/C Issuer shall, to the extent such Tax Benefit was not taken into account that it can do so, in determining the amount of indemnification payable by the Facility Lessee under paragraph (a) or (c) above and provided no Significant Lease Default or Lease Event of Default shall have occurred and be continuing (in which event the payment provided under this Section 9.2(e) shall be deferred until the Significant Lease Default or Lease Event of Default has been cured)its sole discretion, such Tax Indemnitee shall pay without prejudice to the Facility Lessee the lesser of (A) (y) the amount its retention of such Tax Benefitcredit or benefit and without any other adverse Tax consequences to it, plus (z) an amount equal to any United States federal, state or local income tax benefit resulting to the Tax Indemnitee from the payment under clause (y) above and this clause (z) (determined using the same assumptions as set forth in the second sentence under the definition of After-Tax Basis) and (B) pay such Borrower the amount of the indemnity paid pursuant Tax Reduction as such Agent, Lender or L/C Issuer shall, in its sole discretion, have determined to this Section 9.2 giving rise be attributable to the relevant credit deduction, withholding or payment of Tax and as will leave such Agent, Lender or L/C Issuer in no better or worse position than it would have been in if there had been no such credit deduction, withholding or payment of Tax; provided that such Borrower, upon the request of such Agent, Lender or L/C Issuer, agrees in writing (in a form acceptable to such Agent, Lender or L/C Issuer in its sole discretion) to repay the amount paid over to such Borrower (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to such Agent, Lender or L/C Issuer in the event such Agent, Lender or L/C Issuer is required to repay such Tax Benefitcredit or other Tax benefit or such Tax credit or other Tax benefit no longer results in a Tax Reduction (on a cumulative basis) of such Agent’s, Lender’s or L/C Issuer’s Taxes; providedprovided further, however, that any excess of (A) over (Bthis Section 3.01(g) shall be carried forward not apply if a Default has occurred and reduce the Facility Lessee's obligations to make subsequent payments to such Tax Indemnitee pursuant to this Section 9.2is continuing or if there has been an Event of Default. If it is subsequently determined that the Tax Indemnitee was not entitled to such Tax Benefit, the portion of such Tax Benefit that is required to be repaid or recaptured will be treated as Taxes for which the Facility Lessee must indemnify the Tax Indemnitee pursuant to this Section 9.2 without regard to paragraph (b) hereof. Notwithstanding anything to the contrary herein, each Certificateholder Indemnitee shall determine the allocation of any tax benefits, savings, credit, deduction or allocation in its sole good faith discretion and each position to be taken on its tax return shall be in its sole control and it This subsection shall not be required construed to disclose require either Agent, any tax return Lender or related documentation any L/C Issuer to make available its Tax returns (or any other information relating to its Taxes that it deems confidential) to any Borrower or any other Person.

Tax Benefit. If, as the result of any Taxes paid or indemnified against by the Facility Lessee EME under this Section 9.2SECTION 12.2, the aggregate Taxes actually paid by the Tax Indemnitee in connection with such payment for any taxable year and not subject to indemnification pursuant to this Section 9.2 SECTION 12.2 are less (whether by reason of a deduction, credit, allocation or apportionment of income or otherwise) than the amount of such Taxes that otherwise would have been payable by such Tax Indemnitee (a "Tax BenefitTAX BENEFIT"), ; then to the extent such Tax Benefit was not taken into account in determining the amount of indemnification payable by the Facility Lessee EME under paragraph (a) or (c) above and provided no Significant Lease Default or Lease Event of Default shall have occurred and be continuing (in which event the payment provided under this Section 9.2(eSECTION 12.2(e) shall be deferred until the Significant Lease Default or Lease Event of Default has been cured), such Tax Indemnitee shall pay to the Facility Lessee EME the lesser of (A) (y) the amount of such Tax Benefit, plus (z) an amount equal to any United States federal, state or local income tax benefit resulting to the Tax Indemnitee from the payment under clause (y) above and this clause (z) (determined using the same assumptions as set forth in the second sentence under the definition of After-Tax Basis) and (B) the amount of the indemnity paid pursuant to this Section 9.2 SECTION 12.2 giving rise to such Tax Benefit; provided, however, PROVIDED that any excess of the amount described in clause (A) over the amount described in clause (B) shall be carried forward and applied to reduce the Facility Lessee's pro tanto any subsequent obligations of EME to make subsequent payments payment to such Tax Indemnitee pursuant to this Section 9.2SECTION 12.2. If it is subsequently determined that the Tax Indemnitee was not entitled to such Tax Benefit, the portion of such Tax Benefit that is required to be repaid or recaptured will be treated as Taxes for which the Facility Lessee EME must indemnify the Tax Indemnitee pursuant to this Section 9.2 SECTION 12.2 without regard to paragraph (b) hereof. Notwithstanding anything to the contrary herein, each Certificateholder Indemnitee shall determine the allocation of any tax benefits, savings, credit, deduction or allocation in its sole good faith discretion and each position to be taken on its tax return shall be in its sole control and it shall not be required to disclose any tax return or related documentation to any Person.

Tax Benefit. If, as the result of any Taxes paid or ----------- indemnified against by the Facility Lessee under this Section 9.24, the aggregate Taxes actually paid payable by the Tax Indemnitee in connection with such payment for any taxable year and not subject to indemnification pursuant to this Section 9.2 period are less (whether by reason of a deduction, credit, allocation or apportionment of income or otherwiseotherwise and computed on the basis of the highest generally applicable Tax rates applicable) than the amount of such Taxes that otherwise would have been payable by such Tax Indemnitee (a "Tax Benefit"), then ----------- to the extent such Tax Benefit was not taken into account in determining the amount of indemnification payable by the Facility Lessee under paragraph (a) or (c) Section 4.1 above and provided no Significant Lease Default or Lease Event of Default shall have occurred and be continuing (in which event the payment provided under this Section 9.2(e) 4.5 shall be deferred until the Significant Lease Default or Lease Event of Default has been cured), such Tax Indemnitee shall pay to the Facility Lessee the lesser of (A) (y) the amount of such Tax Benefit, plus (z) an amount equal to any United States federal, state or local income tax Tax benefit resulting to the actually realized by such Tax Indemnitee from as a result of the payment under clause (y) above and this clause (z) (such benefit to be determined using on the same assumptions as set forth in basis of the second sentence under the definition of After-highest generally applicable Tax Basisrates applicable) and (B) the amount of the indemnity indemnity(ies) paid pursuant to this Section 9.2 4 giving rise to such Tax Benefit; provided, however, that any excess of (A) over (B) shall be carried forward and reduce the Facility Lessee's obligations to make subsequent payments to such Tax Indemnitee pursuant to this Section 9.2. If it is subsequently determined that the Tax Indemnitee was not entitled to such Tax Benefit, the portion of such Tax Benefit that is required to be repaid or recaptured will be treated as Taxes for which the Facility Lessee must shall indemnify the Tax Indemnitee pursuant to this Section 9.2 4 without regard to paragraph Section 4.2 (b) hereof. Notwithstanding anything to the contrary herein, each Certificateholder Indemnitee shall determine the allocation of any tax benefits, savings, credit, deduction or allocation in its sole good faith discretion and each position to be taken on its tax return shall be in its sole control and it shall not be required to disclose any tax return or related documentation to any Personexcept Section 4.2(iii)).

Tax Benefit. If, as the result The amount of any indemnity provided in this Agreement shall be reduced (but not below zero) by the amount of any reduction in Taxes paid or indemnified against by the Facility Lessee under this Section 9.2, the aggregate Taxes actually paid by the Tax Indemnitee for any taxable year and not subject to indemnification pursuant to this Section 9.2 are less (whether by reason of a deduction, credit, allocation or apportionment of income or otherwise) than the amount of such Taxes that otherwise would have been payable by any Buyer Indemnified Party or the Company (after the Closing) as a result of the Losses giving rise to such Tax Indemnitee indemnity Claim. If the indemnity amount is paid prior to the Buyer Indemnified Parties or the Company (after the Closing) realizing a "Tax Benefit")reduction in Taxes in connection with the Claims giving rise to such payment, and the Buyer Indemnified Parties or the Company (after the Closing) subsequently realize such reduction in Taxes, then to the extent such Tax Benefit was not taken into account in determining the amount of indemnification payable by the Facility Lessee under paragraph (a) or (c) above and provided no Significant Lease Default or Lease Event of Default shall have occurred and be continuing (in which event the payment provided under this Section 9.2(e) shall be deferred until the Significant Lease Default or Lease Event of Default has been cured), such Tax Indemnitee Buyer Indemnified Parties shall pay to or at the Facility Lessee direction of the lesser Seller Representative (on behalf of (A) (ySellers) the amount of such Tax Benefitreduction in Taxes (but not in excess of the indemnification payment or payments actually received with respect to such Claims). For purposes of the preceding two sentences, plus the Buyer Indemnified Parties or the Company (zafter the Closing) an amount equal shall be deemed to any United States federalhave realized a reduction in Taxes with respect to a taxable year if, state or local income tax benefit resulting and to the Tax Indemnitee extent that, the Buyer Indemnified Parties' or the Company's (after the Closing) cumulative liability for Taxes from the payment under clause Closing Date through the end of such taxable year, calculated by excluding any Tax items attributable to the Losses from all taxable years and excluding any amounts received by the Buyer Indemnified Parties from Sellers for indemnification for such Losses, exceeds the Buyer Indemnified Parties' or the Company's (yafter the Closing) above and this clause (z) (determined using actual cumulative liability for Taxes through the same assumptions as set forth in the second sentence under the definition end of After-such taxable year, calculated by taking into account any Tax Basis) and (B) items attributable to the amount of the indemnity paid pursuant Losses for all taxable years (to this Section 9.2 giving rise to the extent permitted by relevant Tax law and treating such Tax Benefit; provided, however, that items as the last items claimed for any excess of (A) over (B) shall be carried forward and reduce the Facility Lessee's obligations to make subsequent payments to such Tax Indemnitee pursuant to this Section 9.2. If it is subsequently determined that the Tax Indemnitee was not entitled to such Tax Benefit, the portion of such Tax Benefit that is required to be repaid or recaptured will be treated as Taxes for which the Facility Lessee must indemnify the Tax Indemnitee pursuant to this Section 9.2 without regard to paragraph (b) hereof. Notwithstanding anything to the contrary herein, each Certificateholder Indemnitee shall determine the allocation of any tax benefits, savings, credit, deduction or allocation in its sole good faith discretion and each position to be taken on its tax return shall be in its sole control and it shall not be required to disclose any tax return or related documentation to any Persontaxable year).

Tax Benefit. IfIn the event of a Loss, as the result evaluation thereof shall be net of any Taxes paid or indemnified against tax benefit actually realized by the Facility Lessee under this Section 9.2INDEMNIFIED PARTY (it being understood that any such benefit shall be paid in the first instance by the INDEMNIFYING PARTY and reimbursed by the INDEMNIFIED PARTY upon the realization of the benefit). Notwithstanding the general nature of the foregoing, the aggregate Taxes actually it is understood and agreed that (a) any VAT reassessment shall be paid by the Tax Indemnitee for INDEMNIFYING PARTY only to the extent that the amount resulting from such reassessment shall not be deductible or reimbursable the following month; (b) any taxable year and not subject to indemnification pursuant to this Section 9.2 are less (whether VAT reassessment shall be paid by reason of a deductionthe INDEMNIFYING PARTY and, credit, allocation or apportionment of income or otherwise) than if the amount of such Taxes that reassessment can be collected from a third parties or otherwise would have been payable by such Tax Indemnitee (a "Tax Benefit")reimbursed, then to the extent such Tax Benefit was not taken into account in determining the amount of indemnification payable shall be refunded by the Facility Lessee under paragraph (a) or INDEMNIFIED PARTY (c) above and provided no Significant Lease Default or Lease Event any tax reassessment which represent a mere rescheduling of Default shall have occurred and be continuing (in which event the payment provided under this Section 9.2(e) shall be deferred until the Significant Lease Default or Lease Event of Default has been cured), such Tax Indemnitee shall pay to the Facility Lessee the lesser of (A) (y) the amount due (such as reversal of such Tax Benefit, plus (zprovision or capitalization of overhead or administrative costs) an amount equal to any United States federal, state or local income tax benefit resulting to the Tax Indemnitee from the payment under clause (y) above and this clause (z) (determined using the same assumptions as set forth in the second sentence under the definition of After-Tax Basis) and (B) the amount of the indemnity paid pursuant to this Section 9.2 giving rise to such Tax Benefit; provided, however, that any excess of (A) over (B) shall be carried forward and reduce the Facility Lessee's obligations to make subsequent payments to such Tax Indemnitee pursuant to this Section 9.2. If it is subsequently determined that the Tax Indemnitee was not entitled to such Tax Benefit, the portion of such Tax Benefit that is required to be repaid or recaptured will be treated as Taxes for which the Facility Lessee must indemnify the Tax Indemnitee pursuant to this Section 9.2 without regard to paragraph (b) hereof. Notwithstanding anything to the contrary herein, each Certificateholder Indemnitee shall determine the allocation of any tax benefits, savings, credit, deduction or allocation in its sole good faith discretion and each position to be taken on its tax return shall be in its sole control and it shall not be required included in the Loss, provided that said tax reassessment gives rise to disclose an equivalent tax cut for the following fiscal year or years. Any amounts due by the Indemnifying Party to the Indemnified Party shall be paid in the first instance by the former to the latter under this AGREEMENT and should such amounts be covered under an insurance policy or any tax return other XXXXXX.XXX Xxxxxxxx PIE Carine BARBELIVIEN /s/ ST /s/ FP /s/ CB Xxxxxxx XXXXXXX IN-COM GALILEO /s/ MF /s/ [Illegible] /s/ [Illegible] [LOGO] PICTORIS ACQUISITION AGREEMENT guarantee granted by a third party, the INDEMNIFIED PARTY shall, after having actually received such amounts, reimburse the INDEMNIFYING PARTY. In all cases in which the INDEMNIFYING PARTY makes a prior payment to the INDEMNIFIED PARTY which is to be later reimbursed, the rights of the latter shall enure to the former under the principle of subrogation (paiement subrogatoire). In addition, any and all amounts due by the INDEMNIFYING PARTY to the INDEMNIFIED PARTY under this AGREEMENT shall be set off against any and all amounts resulting out of any decrease in the liabilities or related documentation to any Personincrease in the assets of the COMPANY as shown in the accounts of the COMPANY at the time of the CLAIMS NOTICE.

Tax Benefit. If, If the payment of the amount for which indemnification is provided under Section 11.2 or Section 11.4 gives rise to a currently realizable Tax Savings (as defined below) to the result of any Taxes paid or indemnified against by the Facility Lessee under this Section 9.2Indemnified Party, the aggregate Taxes actually paid indemnity payment shall be reduced by the Tax Indemnitee for any taxable year and not subject to indemnification pursuant to this Section 9.2 are less (whether by reason of a deduction, credit, allocation or apportionment of income or otherwise) than the amount of such Taxes that otherwise would have been payable by such the Tax Indemnitee (a "Tax Benefit"), then Savings available to the Indemnified Party. To the extent such amount does not give rise to a currently realizable Tax Benefit was not taken into account Savings, if such amount gives rise to a Tax Savings to the Indemnified Party that are currently realizable (as defined below) in determining any of the amount of indemnification payable by the Facility Lessee under paragraph three (a3) or (c) above and provided no Significant Lease Default or Lease Event of Default shall have occurred and be continuing (in which event tax years following the payment provided under this Section 9.2(e) shall be deferred until of the Significant Lease Default or Lease Event of Default has been cured)amount, such Tax Indemnitee Indemnified Party shall pay refund to the Facility Lessee the lesser of (A) (y) Indemnifying Party the amount of such Tax BenefitSavings when, plus as and if realized. For the purposes of this Agreement, any subsequently realized Tax Savings in any of the three (z3) an years following payment of the amount equal to any United States federal, state or local income tax benefit resulting to the Tax Indemnitee from the payment under clause (y) above and this clause (z) (determined using the same assumptions shall be treated as set forth though it were a reduction in the second sentence under the definition of After-Tax Basis) and (B) the amount of the initial indemnity paid payment, and the Liabilities of the parties shall be re-determined as though both occurred at or prior to the time of the indemnity payment. For purposes of this Section 11.7(b), a “Tax Savings” means an amount by which the Tax liability of the Indemnified Party (or Affiliates of or group of corporations including the Indemnified Party) is reduced (including without limitation, by deduction, reduction of income by virtue of increased tax basis or otherwise, entitlement to refund, credit or otherwise) plus any related interest received from the relevant Tax Governmental Authority. Where an Indemnified Party has other losses, deductions, credits or items available to it, the Tax Savings from any losses, deductions, credits or items relating to the indemnity payment shall be deemed to be realized first before any other losses, deductions, credits or items are realized. For the purposes of this Section 11.7(b), a Tax Savings is “currently realizable” to the extent that such Tax Savings will actually be realized in the current taxable period or year (including through a carryback to a prior taxable period). In the event that there should be a determination disallowing the Tax Savings, the Indemnifying Party shall be liable to refund to the Indemnified Party the amount of any related reduction previously allowed or payments previously made to the Indemnifying Party pursuant to this Section 9.2 giving rise to such Tax Benefit; provided, however, that any excess 11.7(b). The amount of (A) over (B) the refunded reduction or payment shall be carried forward and reduce the Facility Lessee's obligations to make subsequent payments to such Tax Indemnitee pursuant to deemed a payment under Section 11.6(d) of this Section 9.2. If it is subsequently determined that the Tax Indemnitee was not entitled to such Tax Benefit, the portion of such Tax Benefit that is required to be repaid or recaptured will be treated as Taxes for which the Facility Lessee must indemnify the Tax Indemnitee pursuant to this Section 9.2 without regard to paragraph (b) hereof. Notwithstanding anything to the contrary herein, each Certificateholder Indemnitee shall determine the allocation of any tax benefits, savings, credit, deduction or allocation in its sole good faith discretion and each position to be taken on its tax return shall be in its sole control and it shall not be required to disclose any tax return or related documentation to any PersonAgreement.

Tax Benefit. If, as the result of any Taxes paid or indemnified against by the Facility Lessee AEE under this Section 9.210.2, the aggregate Taxes actually paid by the Tax Indemnitee for any taxable year and not subject to indemnification pursuant to this Section 9.2 10.2 are less (whether by reason of a deduction, credit, allocation or apportionment of income or otherwise) than the amount of such Taxes that otherwise would have been payable by such Tax Indemnitee (a "Tax Benefit"), then to the extent such Tax Benefit was not taken into account in determining the amount of indemnification payable by the Facility Lessee AEE under paragraph (a) or (c) above and provided no Significant Lease Material Default or Lease Event of Default shall have occurred and be continuing (in 66 73 which event the payment provided under this Section 9.2(e10.2(e) shall be deferred until the Significant Lease Material Default or Lease Event of Default has been cured), such Tax Indemnitee shall pay to the Facility Lessee AEE the lesser of (A) (yA)(y) the amount of such Tax Benefit, plus (z) an amount equal to any United States federal, state or local income tax benefit resulting to the Tax Indemnitee from the payment under clause (y) above and this clause (z) (determined using the same assumptions as set forth in the second sentence under the definition of After-Tax Basis) and (B) the amount of the indemnity paid pursuant to this Section 9.2 10.2 giving rise to such Tax Benefit; provided, howeverthat, that any excess of (A) over (B) shall be carried forward and reduce in either case, the Facility Lessee's obligations to make subsequent payments to such Tax Indemnitee may offset any amount due under this Section 10.2(e) against payments or indemnitees then due by AEE pursuant to this Section 9.2the Operative Documents. If it is subsequently determined that the Tax Indemnitee was not entitled to such Tax Benefit, the portion of such Tax Benefit that is required to be repaid or recaptured will shall be treated as Taxes for which the Facility Lessee AEE must indemnify the Tax Indemnitee pursuant to this Section 9.2 10.2, without regard to paragraph (b) hereof. Notwithstanding anything to the contrary herein, each Certificateholder Indemnitee shall determine the allocation of any tax benefits, savings, credit, deduction or allocation in its sole good faith discretion and each position to be taken on its tax return shall be in its sole control and it shall not be required to disclose any tax return or related documentation to any PersonSections 10.2(b).

Tax Benefit. IfThe amount of any and all Damages for which indemnification is provided pursuant to this Article 8 or Article 9 will be net of any Tax benefit realized by an Indemnified Party in the taxable year such Damage is incurred (taking into account any Tax cost or reduction in Tax basis and such Tax benefits by reason of receipt of the indemnification payment that was not included in the computation of the Damages) to the extent actually received by, or paid in kind to, the Indemnified Party with respect to such Damages or any of the circumstances giving rise thereto. In connection therewith, if, at any time following payment in full by the Indemnifying Party of any amounts of Damages due hereunder, the Indemnified Party realizes any Tax benefit, in the taxable year such Damage is incurred (or the succeeding three taxable years), relating to the circumstances giving rise to such Damages, the Indemnified Party will promptly remit to the Indemnifying Party such Tax benefit in an amount not to exceed the amount of the corresponding indemnification payment made by the Indemnifying Party. For this purpose, the Indemnified Party shall be deemed to realize a Tax benefit with respect to a taxable year if, and to the extent that, the Indemnified Party’s cumulative liability for Taxes through the end of such taxable year, calculated by excluding any Tax items attributable to the Damages from such taxable year, exceeds the Indemnified Party’s actual cumulative liability for Taxes through the end of such taxable year, calculated by taking into account any Tax items attributable to the Losses for such taxable years (to the extent permitted by relevant Tax Law and treating such Tax items as the result of any Taxes paid or indemnified against by the Facility Lessee under this Section 9.2, the aggregate Taxes actually paid by the Tax Indemnitee last items claimed for any taxable year year) and not subject taking into account, for all purposes, any increase in Tax refunds and related interest paid by a Governmental Entity with respect thereto. Notwithstanding anything herein to the contrary, no Indemnified Party shall be entitled to indemnification pursuant to or reimbursement under any provision of this Section 9.2 are less (whether by reason of a deduction, credit, allocation or apportionment of income or otherwise) than the Agreement for any amount of such Taxes that otherwise would have been payable by such Tax Indemnitee (a "Tax Benefit"), then to the extent such Tax Benefit was not taken into account in determining Person or its Affiliate has been indemnified or reimbursed for such amount under any other provision of this Agreement or any other Transaction Agreement. Notwithstanding any other provisions of this Agreement to the amount of indemnification payable by contrary, the Facility Lessee under paragraph (a) or (c) above and provided no Significant Lease Default or Lease Event of Default Indemnifying Party shall have occurred and be continuing (in which event the payment provided under this Section 9.2(e) shall be deferred until the Significant Lease Default or Lease Event of Default has been cured), such Tax Indemnitee shall pay no indemnification obligations to the Facility Lessee extent that any Indemnified Party affirmatively causes or contributes to, or knowingly fails to take actions that causes or contributes to, the lesser of (A) (y) the amount of such Tax Benefit, plus (z) an amount equal to any United States federal, state or local income tax benefit resulting to the Tax Indemnitee from the payment under clause (y) above and this clause (z) (determined using the same assumptions as set forth in the second sentence under the definition of After-Tax Basis) and (B) the amount of the indemnity paid pursuant to this Section 9.2 conditions giving rise to such Tax Benefitany indemnifiable Damages; provided, however, that any excess of (A) over (B) this limitation on the Indemnifying Party’s indemnification obligations shall be carried forward and reduce the Facility Lessee's obligations to make subsequent payments to such Tax Indemnitee pursuant to this Section 9.2. If it is subsequently determined that the Tax Indemnitee was not entitled to such Tax Benefit, the portion of such Tax Benefit that is required to be repaid or recaptured will be treated as Taxes for which the Facility Lessee must indemnify the Tax Indemnitee pursuant to this Section 9.2 without regard to paragraph (b) hereof. Notwithstanding anything apply only to the contrary herein, each Certificateholder Indemnitee shall determine extent of the allocation of any tax benefits, savings, credit, deduction Indemnified Party’s cause or allocation in its sole good faith discretion and each position contribution to be taken on its tax return shall be in its sole control and it shall not be required to disclose any tax return or related documentation to any Personthe Damages.

Tax Benefit. If, as the result of any Taxes paid or indemnified against by the Facility Lessee Guarantor under this Section 9.2SECTION 6.3, the aggregate Taxes actually paid by the Tax Indemnitee in connection with such payment for any taxable tax able year and not subject to indemnification pursuant to this Section 9.2 SECTION 6.3 are less (whether by reason of a deductiondeduc tion, credit, allocation or apportionment of income or otherwise) than the amount of such Taxes that otherwise would have been payable by such Tax Indemnitee (a "Tax BenefitTAX BENEFIT"), ; then to the extent such Tax Benefit was not taken into account in determining the amount of indemnification payable by the Facility Lessee Guarantor under paragraph (a) or (c) above and provided no Significant Lease Default or Lease Event of Default shall have occurred and be continuing (in which event the payment provided under this Section 9.2(eSECTION 6.3(e) shall be deferred until the Significant Lease Default or Lease Event of Default has been cured), such Tax Indemnitee shall pay to the Facility Lessee Guarantor the lesser of (A) (y) the amount of such Tax Benefit, plus (z) an amount equal to any United States federal, state or local income tax benefit resulting to the Tax Indemnitee from the payment under clause (y) above and this clause (z) (determined using the same assumptions as set forth in the second sentence under the definition of After-Tax Basis) and (B) the amount of the indemnity paid pursuant to this Section 9.2 SECTION 6.3 giving rise to such Tax Benefit; provided, however, provided that any excess of the amount described in clause (A) over the amount described in clause (B) shall be carried forward and applied to reduce the Facility Lessee's pro tanto any subsequent obligations of Guarantor to make subsequent payments payment to such Tax Indemnitee pursuant to this Section 9.2SECTION 6.3. If it is subsequently determined that the Tax Indemnitee was not entitled to such Tax Benefit, the portion of such Tax Benefit that is required to be repaid or recaptured will be treated as Taxes for which the Facility Lessee Guarantor must indemnify the Tax Indemnitee pursuant to this Section 9.2 SECTION 6.3 without regard to paragraph (b) hereof. Notwithstanding anything to the contrary herein, each Certificateholder Indemnitee shall determine the allocation of any tax benefits, savings, credit, deduction or allocation in its sole good faith discretion and each position to be taken on its tax return shall be in its sole control and it shall not be required to disclose any tax return or related documentation to any Person.

Tax Benefit. If, as If the result of amount with respect to which any Taxes paid or indemnified against by the Facility Lessee claim is made under this Section 9.2ARTICLE 10 (an "Indemnity Claim") gives rise to a currently realizable Tax Benefit (as defined below) to the party making the claim, the aggregate Taxes actually paid indemnity payment shall be reduced by the Tax Indemnitee for any taxable year and not subject to indemnification pursuant to this Section 9.2 are less (whether by reason of a deduction, credit, allocation or apportionment of income or otherwise) than the amount of such Taxes that otherwise would have been payable by such the Tax Indemnitee (a "Tax Benefit"), then Benefit available to the party making the claim. To the extent such Indemnity Claim does not give rise to a currently realizable Tax Benefit, if the amount with respect to which any Indemnity Claim is made gives rise to a subsequently realized Tax Benefit was not taken into account in determining to the amount of indemnification payable by party that made the Facility Lessee under paragraph (a) or (c) above and provided no Significant Lease Default or Lease Event of Default shall have occurred and be continuing (in which event the payment provided under this Section 9.2(e) shall be deferred until the Significant Lease Default or Lease Event of Default has been cured)claim, such Tax Indemnitee party shall pay refund to the Facility Lessee the lesser of (A) (y) indemnifying party the amount of such Tax BenefitBenefit when, plus (z) an amount equal to as and if realized. For the purposes of this Agreement, any United States federal, state or local income tax benefit resulting to the subsequently realized Tax Indemnitee from the payment under clause (y) above and this clause (z) (determined using the same assumptions Benefit shall be treated as set forth though it were a reduction in the second sentence under the definition of After-Tax Basis) and (B) the amount of the initial Indemnity Claim, and the liabilities of the parties shall be re- determined as though both occurred at or prior to the time of the indemnity paid payment. For purposes of this Section 10.4(e), a "Tax Benefit" means an amount by which the tax liability of the indemnified party (or group of corporations including the indemnified party) is reduced (including, without limitation, by deduction, reduction of income, by virtue of increased tax basis or otherwise, entitlement to refund, credit or otherwise) plus any related interest received from the relevant taxing authority. Where a party has other losses, deductions, credits or items available to it, the Tax Benefit from any losses, deductions, credits or items relating to the Indemnity Claim shall be deemed to be realized proportionately with any other losses, deductions, credits or items. For purposes of this Section 10.4(e), a Tax Benefit is "currently realizable" to the extent it can be reasonably anticipated that such Tax Benefit will be realized in the current taxable period or year or in any tax return with respect thereto (including through a carryback to a prior taxable period) or in any taxable period or year prior to the date of the Indemnity Claim. In the event that there should be a determination disallowing the Tax Benefit, the indemnifying party shall be liable to refund to the indemnified party the amount of any related reduction previously allowed or payments previously made to the indemnifying party pursuant to this Section 9.2 giving rise to such Tax Benefit; provided, however, that any excess 10.4(e). The amount of (A) over (B) the refunded reduction or payment shall be carried forward and reduce the Facility Lessee's obligations to make subsequent payments to such Tax Indemnitee pursuant to deemed a payment under this Section 9.2. If it is subsequently determined that the Tax Indemnitee was not entitled 10.4(e) and thus shall be paid subject to such Tax Benefit, the portion of such Tax Benefit that is required to be repaid or recaptured will be treated as Taxes for which the Facility Lessee must indemnify the Tax Indemnitee pursuant to any applicable reductions under this Section 9.2 without regard to paragraph (b) hereof. Notwithstanding anything to the contrary herein, each Certificateholder Indemnitee shall determine the allocation of any tax benefits, savings, credit, deduction or allocation in its sole good faith discretion and each position to be taken on its tax return shall be in its sole control and it shall not be required to disclose any tax return or related documentation to any Person10.4(e).

Tax Benefit. If, as If the result of amount with respect to which any Taxes paid or indemnified against by the Facility Lessee claim is made under this Section 9.26. gives rise to a realizable Tax benefit to the indemnified party, the aggregate Taxes actually paid indemnity payment shall be reduced by the Tax Indemnitee for any taxable year and not subject to indemnification pursuant to this Section 9.2 are less (whether by reason of a deduction, credit, allocation or apportionment of income or otherwise) than the amount of such Taxes that otherwise would have been payable the Tax benefit realizable by such Tax Indemnitee (a "Tax Benefit"), then to the extent such Tax Benefit was not taken into account in determining party making the claim. The amount of any claim for which indemnification payable by the Facility Lessee under paragraph (a) or (c) above and is provided no Significant Lease Default or Lease Event of Default shall have occurred and also be continuing (in which event the payment provided under this Section 9.2(e) shall be deferred until the Significant Lease Default or Lease Event of Default has been cured), such Tax Indemnitee shall pay to the Facility Lessee the lesser of (A) (y) increased to take account of any net tax cost incurred by the amount of such Tax Benefit, plus (z) an amount equal to any United States federal, state or local income tax benefit resulting to the Tax Indemnitee indemnified party arising from the payment under clause receipt of indemnity payments hereunder (y) above and this clause (z) (determined using the same assumptions as set forth in the second sentence under the definition of After-Tax Basisgrossed up for such increase) and (B) reduced to take account of any net tax benefit realized by the indemnified party arising from the incurrence or payment of any such Loss. In computing the amount of any such tax cost or tax benefit, the indemnity paid pursuant to this Section 9.2 giving rise to such Tax Benefit; provided, however, that any excess of (A) over (B) indemnified party shall be carried forward and reduce deemed to recognize all other items of income, gain, loss, deduction or credit before recognizing any item arising from the Facility Lessee's obligations to make subsequent payments to such Tax Indemnitee pursuant to this Section 9.2receipt of any indemnity payment hereunder or the incurrence or payment of any indemnified Loss. If it is subsequently determined that the Tax Indemnitee was not entitled to such Tax Benefit, the portion of such Tax Benefit that is required to Any indemnification payment hereunder shall initially be repaid or recaptured will be treated as Taxes for which the Facility Lessee must indemnify the Tax Indemnitee pursuant to this Section 9.2 made without regard to this paragraph and shall be increased or reduced to reflect any such net tax cost (bincluding gross-up) hereofor net tax benefit only after the indemnified party has Actually Realized such cost or benefit. For purposes of this Agreement, an indemnified party shall be deemed to have "Actually Realized" a net tax cost or a net tax benefit to the extent that, and at such time as, the amount of Taxes payable by such indemnified party is increased above or reduced below, as the case may be, the amount of Taxes that such indemnified party would be required to pay but for the receipt of the indemnity payment or the incurrence or payment of such Loss, as the case may be. The amount of any increase or reduction hereunder shall be adjusted to reflect any final determination (which shall include the execution of Form 870-AD or successor form) with respect to the indemnified party's liability for taxes, and payments among the parties to reflect such adjustment shall be made if necessary. In the event subsequent facts result in a reduction of a tax benefit (due, for instance, to a carryback of losses), the amount of such tax benefit shall be repaid to the indemnified party by the indemnifying party. In the event the parties dispute the amount of any tax benefit to which a party claims it is entitled under this Section 6.10., such dispute shall not delay the payment of the underlying indemnification amount, and the amount of such tax benefit that did not reduce the indemnification payment due to a dispute shall, to the extent it is ultimately determined to be due, shall be paid at the time such dispute is resolved. Notwithstanding anything contained herein, the parties agree that any payments made to each other pursuant to the contrary herein, each Certificateholder Indemnitee shall determine the allocation provisions of any tax benefits, savings, credit, deduction or allocation in its sole good faith discretion and each position to be taken on its tax return Section 6 shall be in its sole control reported for Federal and it shall not be required State income tax purposes as an adjustment to disclose any tax return or related documentation to any Personthe purchase price.

Tax Benefit. If, as the result of any Taxes paid or indemnified against by the Facility Lessee Company under this Section 9.212.2, the aggregate Taxes actually paid by the Tax Indemnitee in connection with such payment for any taxable year and not subject to indemnification pursuant to this Section 9.2 are less (whether by reason of a deduction, credit, allocation or apportionment of income or otherwise) than the amount of such Taxes that otherwise would have been payable by such Tax Indemnitee (a "“Tax Benefit"”), then to the extent such Tax Benefit was not taken into account in determining the amount of indemnification payable by the Facility Lessee under paragraph (a) or (cSection 12.2(a) above and provided no Significant Lease Company Default or Lease Company Event of Default shall have occurred and be continuing (in which event the payment provided under this Section 9.2(e12.2(e) shall be deferred until the Significant Lease Company Default or Lease Company Event of Default has been cured), such Tax Indemnitee shall pay to the Facility Lessee Company the lesser of (A) (y) the amount of such Tax Benefit, Benefit plus (z) an amount equal to any United States federal, state or local income tax benefit resulting to the realized by such Tax Indemnitee from as a result of the payment under clause (y) above and this clause (z) (determined using the same assumptions as set forth in the second sentence under the definition of After-Tax Basis) and (B) the amount of the indemnity indemnity(ies) paid pursuant to this Section 9.2 12.2 giving rise to such Tax Benefit; provided, however, that any excess of the amount described in clause (A) over the amount described in clause (B) shall be carried forward and applied to reduce pro tanto any subsequent obligations of the Facility Lessee's obligations Company to make subsequent payments payment to such Tax Indemnitee pursuant to this Section 9.212.2. If it is subsequently determined that the Tax Indemnitee was not entitled to such Tax Benefit, the portion of such Tax Benefit that is required to be repaid or recaptured will be treated as Taxes for which the Facility Lessee Company must indemnify the Tax Indemnitee pursuant to this Section 9.2 12.2 without regard to paragraph Section 12.2(b) (b) hereof. Notwithstanding anything to the contrary herein, each Certificateholder Indemnitee shall determine the allocation of any tax benefits, savings, credit, deduction or allocation in its sole good faith discretion and each position to be taken on its tax return shall be in its sole control and it shall not be required to disclose any tax return or related documentation to any Personother than Section 12.2(b)(iii)).

Tax Benefit. If, as the result of any Taxes paid or indemnified against by the Facility Lessee under this Section 9.2, the aggregate Taxes actually paid by the Tax Indemnitee for any taxable year and not subject to indemnification pursuant to this Section 9.2 are less (whether by reason of a deduction, credit, allocation or apportionment of income or otherwise) than the amount of such Taxes that otherwise would have been payable by such Tax Indemnitee (a "“Tax Benefit"”), then to the extent such Tax Benefit was not taken into account in determining the amount of indemnification payable by the Facility Lessee under paragraph (a) or (c) above and provided no Significant Lease Material Default or Lease Event of Default shall have occurred and be continuing (in which event the payment provided under this Section 9.2(e) shall be deferred until the Significant Lease Material Default or Lease Event of Default has been cured), such Tax Indemnitee shall pay to the Facility Lessee the lesser of (Ai) (yA) the amount of such Tax Benefit, plus (zB) an amount equal to any United States federal, state or local income tax benefit resulting to additional Tax Savings realized by the Tax Indemnitee from as a result of the payment under clause (yA) above and this clause (z) (determined using the same assumptions as set forth in the second sentence under the definition of After-Tax BasisB) and (Bii) the amount of the indemnity paid pursuant to this Section 9.2 giving rise to such Tax Benefit; provided, however, that any excess of (Ai) over (Bii) shall be carried forward and reduce the Facility Lessee's ’s obligations to make subsequent payments to such Tax Indemnitee pursuant to this Section 9.2. If it is subsequently determined that the Tax Indemnitee was not entitled to such Tax Benefit, the portion of such Tax Benefit that is required to be repaid or recaptured will be treated as Taxes for which the Facility Lessee must indemnify the Tax Indemnitee pursuant to this Section 9.2 without regard to paragraph (b) hereofhereof (other than clauses (v) and (xii) of paragraph (b)). Notwithstanding anything to the contrary herein, each Certificateholder Tax Indemnitee and the Lessee shall determine the allocation of any tax Tax benefits, savings, credit, deduction or allocation in its sole good faith discretion and each position to be taken on its tax Tax return shall be in its sole control and it shall not be required to disclose any tax Tax return or related documentation to any Person.

Tax Benefit. IfIn the event of a Loss, as the result evaluation thereof shall be net of any Taxes paid or indemnified against tax benefit actually realized by the Facility Lessee under this Section 9.2INDEMNIFIED PARTY (it being understood that any such benefit shall be paid in the first instance by the INDEMNIFYING PARTY and reimbursed by the INDEMNIFIED PARTY upon the realization of the benefit). Notwithstanding the general nature of the foregoing, the aggregate Taxes actually it is understood and agreed that (a) any VAT reassessment shall be paid by the Tax Indemnitee for INDEMNIFYING PARTY only to the extent that the amount resulting from such reassessment shall not be deductible or reimbursable the following month; (b) any taxable year and not subject to indemnification pursuant to this Section 9.2 are less (whether VAT reassessment shall be paid by reason of a deductionthe INDEMNIFYING PARTY and, credit, allocation or apportionment of income or otherwise) than if the amount of such Taxes that reassessment can be collected from a third parties or otherwise would have been payable by such Tax Indemnitee (a "Tax Benefit")reimbursed, then to the extent such Tax Benefit was not taken into account in determining the amount of indemnification payable shall be refunded by the Facility Lessee under paragraph (a) or INDEMNIFIED PARTY (c) above and provided no Significant Lease Default or Lease Event any tax reassessment which represent a mere rescheduling of Default shall have occurred and be continuing (in which event the payment provided under this Section 9.2(e) shall be deferred until the Significant Lease Default or Lease Event of Default has been cured), such Tax Indemnitee shall pay to the Facility Lessee the lesser of (A) (y) the amount due (such as reversal of such Tax Benefit, plus (zprovision or capitalization of overhead or administrative costs) an amount equal to any United States federal, state or local income tax benefit resulting to the Tax Indemnitee from the payment under clause (y) above and this clause (z) (determined using the same assumptions as set forth in the second sentence under the definition of After-Tax Basis) and (B) the amount of the indemnity paid pursuant to this Section 9.2 giving rise to such Tax Benefit; provided, however, that any excess of (A) over (B) shall be carried forward and reduce the Facility Lessee's obligations to make subsequent payments to such Tax Indemnitee pursuant to this Section 9.2. If it is subsequently determined that the Tax Indemnitee was not entitled to such Tax Benefit, the portion of such Tax Benefit that is required to be repaid or recaptured will be treated as Taxes for which the Facility Lessee must indemnify the Tax Indemnitee pursuant to this Section 9.2 without regard to paragraph (b) hereof. Notwithstanding anything to the contrary herein, each Certificateholder Indemnitee shall determine the allocation of any tax benefits, savings, credit, deduction or allocation in its sole good faith discretion and each position to be taken on its tax return shall be in its sole control and it shall not be required included in the Loss, provided that said tax reassessment gives rise to disclose an equivalent tax cut for the following fiscal year or years. Any amounts due by the Indemnifying Party to the Indemnified Party shall be paid in the first instance by the former to the latter under this AGREEMENT and should such amounts be covered under an insurance policy or any tax return other guarantee granted by a third party, the INDEMNIFIED PARTY shall, after having actually received such amounts, reimburse the INDEMNIFYING PARTY. In all cases in which the INDEMNIFYING PARTY makes a prior payment to the INDEMNIFIED PARTY which is to be later reimbursed, the rights of the latter shall enure to the former under the principle of subrogation (paiement subrogatoire). In addition, any and all amounts due by the INDEMNIFYING PARTY to the INDEMNIFIED PARTY under this AGREEMENT shall be set off against any and all amounts resulting out of any decrease in the liabilities or related documentation to any Personincrease in the assets of the COMPANY as shown in the accounts of the COMPANY at the time of the CLAIMS NOTICE.

Tax Benefit. If, If the payment of the amount for which indemnification is provided under Section 11.2 or Section 11.4 gives rise to a currently realizable Tax Savings (as defined below) to the result of any Taxes paid or indemnified against by the Facility Lessee under this Section 9.2Indemnified Party, the aggregate Taxes actually paid indemnity payment shall be reduced by the Tax Indemnitee for any taxable year and not subject to indemnification pursuant to this Section 9.2 are less (whether by reason of a deduction, credit, allocation or apportionment of income or otherwise) than the amount of such Taxes that otherwise would have been payable by such the Tax Indemnitee (a "Tax Benefit"), then Savings available to the Indemnified Party. To the extent such amount does not give rise to a currently realizable Tax Benefit was not taken into account in determining Savings, if such amount gives rise to a subsequently realized Tax Savings to the amount of indemnification payable by the Facility Lessee under paragraph (a) or (c) above and provided no Significant Lease Default or Lease Event of Default shall have occurred and be continuing (in which event the payment provided under this Section 9.2(e) shall be deferred until the Significant Lease Default or Lease Event of Default has been cured)Indemnified Party, such Tax Indemnitee Indemnified Party shall pay refund to the Facility Lessee the lesser of (A) (y) Indemnifying Party the amount of such Tax BenefitSavings when, plus (z) an amount equal to as and if realized. For the purposes of this Agreement, any United States federal, state or local income tax benefit resulting to the subsequently realized Tax Indemnitee from the payment under clause (y) above and this clause (z) (determined using the same assumptions Savings shall be treated as set forth though it were a reduction in the second sentence under the definition of After-Tax Basis) and (B) the amount of the initial indemnity paid payment, and the Liabilities of the parties shall be re-determined as though both occurred at or prior to the time of the indemnity payment. For purposes of this Section 11.7(b), a “Tax Savings” means an amount by which the Tax liability of the Indemnified Party (or Affiliates of or group of corporations including the Indemnified Party) is reduced (including without limitation, by deduction, reduction of income by virtue of increased tax basis or otherwise, entitlement to refund, credit or otherwise) plus any related interest received from the relevant Tax related Governmental Authority. Where an Indemnified Party has other losses, deductions, credits or items available to it, the Tax Savings from any losses, deductions, credits or items relating to the indemnity payment shall be deemed to be realized first before any other losses, deductions, credits or items are realized. For the purposes of this Section 11.7(b), a Tax Savings is “currently realizable” to the extent that it can be reasonably anticipated that such Tax Savings will be realized in the current taxable period or year or in any Tax Return with respect thereto (including through a carryback to a prior taxable period) or in any taxable period or year prior to the date of the indemnity payment. In the event that there should be a determination disallowing the Tax Savings, the Indemnifying Party shall be liable to refund to the Indemnified Party the amount of any related reduction previously allowed or payments previously made to the Indemnifying Party pursuant to this Section 9.2 giving rise to such Tax Benefit; provided, however, that any excess 11.7(b). The amount of (A) over (B) the refunded reduction or payment shall be carried forward and reduce the Facility Lessee's obligations to make subsequent payments to such Tax Indemnitee pursuant to deemed a payment under Section 11.6(d) of this Section 9.2. If it is subsequently determined that the Tax Indemnitee was not entitled to such Tax Benefit, the portion of such Tax Benefit that is required to be repaid or recaptured will be treated as Taxes for which the Facility Lessee must indemnify the Tax Indemnitee pursuant to this Section 9.2 without regard to paragraph (b) hereof. Notwithstanding anything to the contrary herein, each Certificateholder Indemnitee shall determine the allocation of any tax benefits, savings, credit, deduction or allocation in its sole good faith discretion and each position to be taken on its tax return shall be in its sole control and it shall not be required to disclose any tax return or related documentation to any PersonAgreement.

Tax Benefit. If, as the result of any Taxes paid or indemnified against by the Facility Lessee Oglethorpe under this Section 9.211.2, the aggregate Taxes actually paid by the Tax Indemnitee for any taxable year and not subject to indemnification pursuant to this Section 9.2 11.2 are less (whether by reason of a deduction, credit, allocation or apportionment of income or otherwise) than the amount of such Taxes that otherwise would have been payable by such Tax Indemnitee (a "Tax Benefit"), then to the extent such Tax Benefit was not taken into account in determining the amount of indemnification payable by the Facility Lessee Oglethorpe under paragraph (a) or (c) above and provided no Significant Lease Bankruptcy Default, Payment Default or Event of Default under the Facility Lease or a Sublease Bankruptcy Default, Sublease Payment Default or Sublease Event of Default shall have occurred and be continuing (in which event the payment provided under this Section 9.2(e) shall be deferred until the Significant Lease Default or Lease Event of Default has been cured)continuing, such Tax Indemnitee shall pay to the Facility Lessee Oglethorpe the lesser of (A) (y) the amount of such Tax Benefit, plus (z) an amount equal to any United States federal, state or local income tax benefit resulting to the Tax Indemnitee from the payment under clause (y) above and this clause (z) (determined using the same assumptions as set forth in the second sentence under the definition of After-Tax Basis) and (B) the amount of the indemnity paid pursuant to this Section 9.2 11.2 giving rise to such Tax Benefit; provided, however, that any excess of (A) over (B) shall be carried forward and reduce the Facility Lessee's obligations to make subsequent payments to such Tax Indemnitee pursuant to this Section 9.2. If it is subsequently determined that the Tax Indemnitee was not entitled to such Tax Benefit, the portion of such Tax Benefit that is required to be repaid or recaptured will be treated as Taxes for which the Facility Lessee Oglethorpe must indemnify the Tax Indemnitee pursuant to this Section 9.2 11.2 without regard to paragraph (b) hereof. Notwithstanding anything to the contrary herein, each Certificateholder Indemnitee shall determine the allocation of any tax benefits, savings, credit, deduction or allocation in its sole good faith discretion and each position to be taken on its tax return shall be in its sole control and it shall not be required to disclose any tax return or related documentation to any Person.

Tax Benefit. If, as the result of any Taxes paid or indemnified against by the Facility Lessee AEE under this Section 9.210.2, the aggregate Taxes actually paid by the Tax Indemnitee for any taxable year and not subject to indemnification pursuant to this Section 9.2 10.2 are less (whether by reason of a deduction, credit, allocation or apportionment of income or otherwise) than the amount of such Taxes that otherwise would have been payable by such Tax Indemnitee (a "Tax Benefit"), then to the extent such Tax Benefit was not taken into account in determining the amount of indemnification payable by the Facility Lessee AEE under paragraph (a) or (c) above and provided no Significant Lease Material Default or Lease Event of Default shall have occurred and be continuing (in which event the payment provided under this Section 9.2(e10.2(e) shall be deferred until the Significant Lease Material Default or Lease Event of Default has been cured), such Tax Indemnitee shall pay to the Facility Lessee AEE the lesser of (A) (yA)(y) the amount of such Tax Benefit, plus (z) an amount equal to any United States federal, state or local income tax benefit resulting to the Tax Indemnitee from the payment under clause (y) above and this clause (z) (determined using the same assumptions as set forth in the second sentence under the definition of After-Tax Basis) and (B) the amount of the indemnity paid pursuant to this Section 9.2 10.2 giving rise to such Tax Benefit; provided, howeverthat, that any excess of (A) over (B) shall be carried forward and reduce in either case, the Facility Lessee's obligations to make subsequent payments to such Tax Indemnitee may offset any amount due under this Section 10.2(e) against payments or indemnitees then due by AEE pursuant to this Section 9.2the Operative Documents. If it is subsequently determined that the Tax Indemnitee was not entitled to such Tax Benefit, the portion of such Tax Benefit that is required to be repaid or recaptured will shall be treated as Taxes for which the Facility Lessee AEE must indemnify the Tax Indemnitee pursuant to this Section 9.2 10.2, without regard to paragraph (b) hereof. Notwithstanding anything to the contrary herein, each Certificateholder Indemnitee shall determine the allocation of any tax benefits, savings, credit, deduction or allocation in its sole good faith discretion and each position to be taken on its tax return shall be in its sole control and it shall not be required to disclose any tax return or related documentation to any PersonSections 10.2(b).

Tax Benefit. If, as the result of any Taxes paid or indemnified against by the Facility Lessee under this Section 9.210.2, the aggregate Taxes actually paid by the Tax Indemnitee in connection with such payment for any taxable year and not subject to indemnification pursuant to this Section 9.2 10.2 are less (whether by reason of a deduction, credit, allocation or apportionment of income or otherwise) than the amount of such Taxes that otherwise would have been payable by such Tax Indemnitee (a "Tax Benefit"), ; then to the extent such Tax Benefit was not taken into account in determining the amount of indemnification payable by the Facility Lessee under paragraph (a) or (c) above and provided no Significant Lease Default or Lease Event of Default shall have occurred and be continuing (in which event the amount of the payment to the Facility Lessee provided under this Section 9.2(e10.2(e) shall be deferred until the Significant Lease Default or Lease Event of Default has been cured), such Tax Indemnitee shall pay to the Facility Lessee the lesser of (A) (y) the amount of such Tax Benefit, plus (z) an amount equal to any United States federal, state or local income tax benefit resulting to the Tax Indemnitee from the payment under clause (y) above and this clause (z) (determined using the same assumptions as set forth in the second sentence under the definition of After-Tax Basis) and (B) the amount of the indemnity paid pursuant to this Section 9.2 10.2 giving rise to such Tax Benefit; provided, however, that any excess of (A) over (B) shall be carried forward and reduce the Facility Lessee's obligations to make subsequent payments to such Tax Indemnitee pursuant to this Section 9.2. If it is subsequently determined that the Tax Indemnitee was not entitled to such Tax Benefit, the portion of such Tax Benefit that is required to be repaid or recaptured will be treated as Taxes for which the Facility Lessee must Conemaugh Participation Agreement 65 71 indemnify the Tax Indemnitee pursuant to this Section 9.2 10.2 without regard to paragraph (b) hereof. Notwithstanding anything to the contrary herein, each Certificateholder Indemnitee shall determine the allocation of any tax benefits, savings, credit, deduction or allocation in its sole good faith discretion and each position to be taken on its tax return shall be in its sole control and it shall not be required to disclose any tax return or related documentation to any Person.

Tax Benefit. If, as the result of any Taxes paid or indemnified against by the Facility Lessee Xxxxx City under this Section 9.210.2, the aggregate Taxes actually paid by the Tax Indemnitee in connection with such payment for any taxable year and not subject to indemnification pursuant to this Section 9.2 10.2 are less (whether by reason of a deduction, credit, allocation or apportionment of income or otherwise) than the amount of such Taxes that otherwise would have been payable by such Tax Indemnitee (a "Tax Benefit"), ; then to the extent such Tax Benefit was not taken into account in determining the amount of indemnification payable by the Facility Lessee Xxxxx City under paragraph (a) or (c) above and provided no Significant Material Lease Default or Lease Event of Default shall have occurred and be continuing (in which event the payment provided under this Section 9.2(e10.2(e) shall be deferred until the Significant Material Lease Default or Lease Event of Default has been cured), such Tax Indemnitee shall pay to the Facility Lessee Xxxxx City the lesser of (A) (y) the amount of such Tax Benefit, plus (z) an amount equal to any United States federal, state or local income tax benefit resulting to the Tax Indemnitee from the payment under clause (y) above and this clause (z) (determined using the same assumptions as set forth in the second sentence under the definition of After-Tax Basis) and (B) the amount of the indemnity paid pursuant to this Section 9.2 10.2 giving rise to such Tax Benefit; provided, however, provided that any excess of the amount described in clause (A) over the amount described in clause (B) shall be carried forward and applied to reduce the Facility Lessee's pro tanto any subsequent obligations of Xxxxx City to make subsequent payments payment to such Tax Indemnitee pursuant to this Section 9.210.2. If it is subsequently determined that the Tax Indemnitee was not entitled to such Tax Benefit, the portion of such Tax Benefit that is required to be repaid or recaptured will be treated as Taxes for which the Facility Lessee Xxxxx City must indemnify the Tax Indemnitee pursuant to this Section 9.2 10.2 without regard to paragraph (b) hereof. Notwithstanding anything to the contrary herein, each Certificateholder Indemnitee shall determine the allocation of any tax benefits, savings, credit, deduction or allocation in its sole good faith discretion and each position to be taken on its tax return shall be in its sole control and it shall not be required to disclose any tax return or related documentation to any Person.

Tax Benefit. IfIf any Agent, any Lender or any L/C Issuer determines, in its sole discretion, that its current obligation to pay Taxes (other than estimated Taxes) has been reduced or that it has received a refund it would otherwise not have received (a “Tax Reduction”) as the a result of a Tax credit or other Tax benefit in connection with any deduction, withholding or payment of Tax that gives rise to the payment by a Borrower of Indemnified Taxes paid or indemnified against by the Facility Lessee under this Section 9.2, the aggregate Other Taxes actually paid by the Tax Indemnitee for any taxable year and not subject to indemnification pursuant to this Section 9.2 are less (whether by reason of a deduction, credit, allocation or apportionment of income or otherwise) than the amount of such Taxes that otherwise would have been payable by such Tax Indemnitee (a "Tax Benefit")3.01, then such Agent, Lender or L/C Issuer shall, to the extent such Tax Benefit was not taken into account that it can do so, in determining the amount of indemnification payable by the Facility Lessee under paragraph (a) or (c) above and provided no Significant Lease Default or Lease Event of Default shall have occurred and be continuing (in which event the payment provided under this Section 9.2(e) shall be deferred until the Significant Lease Default or Lease Event of Default has been cured)its sole discretion, such Tax Indemnitee shall pay without prejudice to the Facility Lessee the lesser of (A) (y) the amount its retention of such Tax Benefitcredit or benefit and without any other adverse Tax consequences to it, plus (z) an amount equal to any United States federal, state or local income tax benefit resulting to the Tax Indemnitee from the payment under clause (y) above and this clause (z) (determined using the same assumptions as set forth in the second sentence under the definition of After-Tax Basis) and (B) pay such Borrower the amount of the indemnity paid pursuant Tax Reduction as such Agent, Lender or L/C Issuer shall, in its sole discretion, have determined to this Section 9.2 giving rise be attributable to the relevant credit deduction, withholding or payment of Tax and as will leave such Agent, Lender or L/C Issuer in no better or worse position than it would have been in if there had been no such credit deduction, withholding or payment of Tax; provided that such Borrower, upon the request of such Agent, Lender or L/C Issuer, agrees in writing (in a form acceptable to such Tax Benefit; providedAgent, however, that any excess of (ALender or L/C Issuer in its sole discretion) to repay the amount paid over (B) shall be carried forward and reduce the Facility Lessee's obligations to make subsequent payments to such Tax Indemnitee pursuant to this Section 9.2. If it is subsequently determined that Borrower (plus any penalties, interest or other charges imposed by the Tax Indemnitee was not entitled relevant Governmental Authority) to such Tax BenefitAgent, Lender or L/C Issuer in the portion of event such Tax Benefit that Agent, Lender or L/C Issuer is required to be repaid repay such Tax credit or recaptured will be treated as Taxes for which the Facility Lessee must indemnify the other Tax Indemnitee pursuant to benefit or such Tax credit or other Tax benefit no longer results in a Tax Reduction (on a cumulative basis) of such Agent’s, Lender’s or L/C Issuer’s Taxes; provided further, that this Section 9.2 without regard to paragraph (b3.01(g) hereofshall not apply if a Default has occurred and is continuing or if there has been an Event of Default. Notwithstanding anything to the contrary herein, each Certificateholder Indemnitee shall determine the allocation of any tax benefits, savings, credit, deduction or allocation in its sole good faith discretion and each position to be taken on its tax return shall be in its sole control and it This subsection shall not be required construed to disclose require any tax return Agent, any Lender or related documentation any L/C Issuer to make available its Tax returns (or any other information relating to its Taxes that it deems confidential) to any Borrower or any other Person.

Tax Benefit. If, as the result of any Taxes paid or indemnified against by the Facility Lessee Construction Supervisor under this Section 9.2the Indemnity, the aggregate Taxes actually paid by the Tax Indemnitee Indemnified Party for any taxable year and not subject to indemnification pursuant to this Section 9.2 the Indemnity are less (whether by reason of a deduction, credit, allocation or apportionment of income or otherwise) than the amount of such Taxes that otherwise would have been payable by such Tax Indemnitee Indemnified Party (a "Tax Benefit"), then to the extent such Tax Benefit was not taken into account in determining the amount of indemnification payable by the Facility Lessee under paragraph (a) or (c) above and provided no Significant Lease Default or Lease Event of Default shall have occurred and be continuing (in which event the payment provided under this Section 9.2(e) shall be deferred until the Significant Lease Default or Lease Event of Default has been cured)Construction Supervisor, such Tax Indemnitee Indemnified Party shall pay to the Facility Lessee Construction Supervisor the lesser of (A) (y) the amount of such Tax Benefit, plus (z) an amount equal to any United States federal, state or local income tax benefit resulting to the Tax Indemnitee Indemnified Party from the payment under clause (y) above and this clause (z) (determined using the same assumptions as set forth in the second sentence under the definition of After-Tax Basis) and (B) the amount of the indemnity paid pursuant to this Section 9.2 Indemnified Party payment giving rise to such Tax Benefit; provided, however, that any excess of (A) over (B) shall be carried forward and reduce the Facility Lessee's obligations to make subsequent payments to such Tax Indemnitee pursuant to this Section 9.2. If it is subsequently determined that the Tax Indemnitee Indemnified Party was not entitled to such Tax Benefit, the portion of such Tax Benefit that is required to be repaid or recaptured will be treated as Taxes for which the Facility Lessee Construction Supervisor must indemnify the Tax Indemnitee Indemnified Party pursuant to this Section 9.2 without regard to paragraph (b) hereofthe Indemnity. Notwithstanding anything to the contrary herein, each Certificateholder Indemnitee the Indemnified Party shall determine the allocation of any tax benefits, savings, credit, deduction or allocation in its sole discretion to be exercised in good faith discretion and each position to be taken on its tax return shall be in its sole control and it shall not be required to disclose any tax return or related documentation to any Person.

Tax Benefit. If, as the result of any Taxes paid or indemnified against by the Facility Lessee SEMA under this Section 9.210.2, the aggregate Taxes ------------ actually paid by the Tax Indemnitee in connection with such payment for any taxable year and not subject to indemnification pursuant to this Section 9.2 10.2 ------------ are less (whether by reason of a deduction, credit, allocation or apportionment of income or otherwise) than the amount of such Taxes that otherwise would have been payable by such Tax Indemnitee (a "Tax Benefit"), ; then to the extent such ----------- Tax Benefit was not taken into account in determining the amount of indemnification payable by the Facility Lessee SEMA under paragraph (a) or (c) above and provided no Significant Lease Default or Lease Event of Default shall have occurred and be continuing (in which event the payment provided under this Section 9.2(e10.2(e) shall --------------- be deferred until the Significant Lease Default or Lease Event of Default has been cured), such Tax Indemnitee shall pay to the Facility Lessee SEMA the lesser of (A) (y) the amount of such Tax Benefit, plus (z) an amount equal to any United States federal, state or local income tax benefit resulting to the Tax Indemnitee from the payment under clause (y) above and this clause (z) (determined using the same assumptions as set forth in the second sentence under the definition of After-Tax Basis) and (B) the amount of the indemnity paid pursuant to this Section 9.2 10.2 giving rise to such Tax Benefit; provided, however, provided that any excess of the ------------- amount described in clause (A) over the amount described in clause (B) shall be carried forward and applied to reduce the Facility Lessee's pro tanto any subsequent obligations of SEMA to make subsequent payments payment to such Tax Indemnitee pursuant to this Section 9.210.2. If it ------------ is subsequently determined that the Tax Indemnitee was not entitled to such Tax Benefit, the portion of such Tax Benefit that is required to be repaid or recaptured will be treated as Taxes for which the Facility Lessee SEMA must indemnify the Tax Indemnitee pursuant to this Section 9.2 10.2 without regard to paragraph Section 10.2(b) other ------------ --------------- than Section 10.2(b)(iii), (bv), (vii), (xii) hereofand (xvi). Notwithstanding anything to the contrary herein, each Certificateholder Indemnitee shall determine the allocation of any tax benefits, savings, credit, deduction or allocation in its sole good faith discretion and each position to be taken on its tax return shall be in its sole control and it shall not be required to disclose any tax return or related documentation to any Person.-------------------- --- ----- ----- -----

Tax Benefit. If, as the result of any Taxes paid or indemnified against by the Facility Lessee Midwest under this Section 9.214.2, the aggregate Taxes actually paid by the Tax Indemnitee in connection with such payment for any taxable year and not subject to indemnification pursuant to this Section 9.2 14.2 are less (whether by reason of a deduction, credit, allocation or apportionment of income or otherwise) than the amount of such Taxes that otherwise would have been payable by such Tax Indemnitee (a "Tax BenefitTAX BENEFIT"), ; then to the extent such Tax Benefit was not taken into account in determining the amount of indemnification payable by the Facility Lessee Midwest under paragraph (a) or (c) above and provided no Significant Lease Default or Lease Event of Default shall have occurred and be continuing (in which event the payment provided under this Section 9.2(e14.2(e) shall be deferred until the Significant Lease Default or Lease Event of Default has been cured), such Tax Indemnitee shall pay to the Facility Lessee Midwest the lesser of (A) (y) the amount of such Tax Benefit, plus (z) an amount equal to any United States federal, state or local income tax benefit resulting to the Tax Indemnitee from the payment under clause (y) above and this clause (z) (determined using the same assumptions as set forth in the second sentence under the definition of After-Tax Basis) and (B) the amount of the indemnity paid pursuant to this Section 9.2 14.2 giving rise to such Tax Benefit; provided, however, provided that any excess of the amount described in clause (A) over the amount described in clause (B) shall be carried forward and applied to reduce the Facility Lessee's pro tanto any subsequent obligations of Midwest to make subsequent payments payment to such Tax Indemnitee pursuant to this Section 9.214.2. If it is subsequently determined that the Tax Indemnitee was not entitled to such Tax Benefit, the portion of such Tax Benefit that is required to be repaid or recaptured will be treated as Taxes for which the Facility Lessee Midwest must indemnify the Tax Indemnitee pursuant to this Section 9.2 14.2 without regard to paragraph (b) hereof. Notwithstanding anything to the contrary herein, each Certificateholder Indemnitee shall determine the allocation of any tax benefits, savings, credit, deduction or allocation in its sole good faith discretion and each position to be taken on its tax return shall be in its sole control and it shall not be required to disclose any tax return or related documentation to any Person.

Tax Benefit. If, as the result of any Taxes paid or indemnified against by the Facility Lessee SEMA under this Section 9.210.2, the aggregate Taxes actually paid by ------------ the Tax Indemnitee in connection with such payment for any taxable year and not subject to indemnification pursuant to this Section 9.2 10.2 are less (whether by ------------ reason of a deduction, credit, allocation or apportionment of income or otherwise) than the amount of such Taxes that otherwise would have been payable by such Tax Indemnitee (a "Tax Benefit"), ; then to the extent such Tax Benefit ----------- was not taken into account in determining the amount of indemnification payable by the Facility Lessee SEMA under paragraph (a) or (c) above and provided no Significant Lease Default or Lease Event of Default shall have occurred and be continuing (in which event the payment provided under this Section 9.2(e10.2(e) shall be deferred until the --------------- Significant Lease Default or Lease Event of Default has been cured), such Tax Indemnitee shall pay to the Facility Lessee SEMA the lesser of (A) (y) the amount of such Tax Benefit, plus (z) an amount equal to any United States federal, state or local income tax benefit resulting to the Tax Indemnitee from the payment under clause (y) above and this clause (z) (determined using the same assumptions as set forth in the second sentence under the definition of After-Tax Basis) and (B) the amount of the indemnity paid pursuant to this Section 9.2 10.2 giving rise to ------------ such Tax Benefit; provided, however, provided that any excess of the amount described in clause (A) over the amount described in clause (B) shall be carried forward and applied to reduce the Facility Lessee's pro tanto any subsequent obligations of SEMA to make subsequent payments payment to such Tax Indemnitee pursuant to this Section 9.210.2. If it is subsequently determined that ------------ the Tax Indemnitee was not entitled to such Tax Benefit, the portion of such Tax Benefit that is required to be repaid or recaptured will be treated as Taxes for which the Facility Lessee SEMA must indemnify the Tax Indemnitee pursuant to this Section 9.2 10.2 ------------ without regard to paragraph Section 10.2(b) other than Section 10.2(b)(iii), (bv), (vii), --------------- -------------------- --- ----- (xii) hereofand (xvi). Notwithstanding anything to the contrary herein, each Certificateholder Indemnitee shall determine the allocation of any tax benefits, savings, credit, deduction or allocation in its sole good faith discretion and each position to be taken on its tax return shall be in its sole control and it shall not be required to disclose any tax return or related documentation to any Person.----- ----- XXXXXXXXX PARTICIPATION AGREEMENT (L1) --------------------------------------

Tax Benefit. If, as the result of any Taxes paid or indemnified ----------- against by the Facility Lessee Company under this Section 9.2, the aggregate Taxes actually paid by the Tax Indemnitee in connection with such payment for any taxable year and not subject to indemnification pursuant to this Section 9.2 are less (whether by reason of a deduction, credit, allocation or apportionment of income or otherwise) than the amount of such Taxes that otherwise would have been payable by such Tax Indemnitee (a "Tax Benefit"), ; then to the extent such ----------- Tax Benefit was not taken into account in determining the amount of indemnification payable by the Facility Lessee under paragraph (a) or (cSection 9.2(a) above and provided no Significant Lease Default or Lease Event of Default shall have occurred and be continuing (in which event the payment provided under this Section 9.2(e) shall be deferred until the Significant Lease Default or Lease Event of Default has been cured), such Tax Indemnitee shall pay to the Facility Lessee Company the lesser of (A) (y) the amount of such Tax Benefit, plus (z) an amount equal to any United States federal, state or local income tax benefit resulting to the realized by such Tax Indemnitee from as a result of the payment under clause (y) above and this clause (z) (such benefit to be determined using the same assumptions as set forth in the second sentence under the definition of After-Tax Basis) and (B) the amount of the indemnity indemnity(ies) paid pursuant to this Section 9.2 giving rise to such Tax Benefit; provided, however, that any excess of (A) over (B) shall be carried forward and reduce the Facility Lessee's obligations to make subsequent payments to such Tax Indemnitee pursuant to this Section 9.2. If it is subsequently determined that the Tax Indemnitee was not entitled to such Tax Benefit, the portion of such Tax Benefit that is required to be repaid or recaptured will be treated as Taxes for which the Facility Lessee Company must indemnify the Tax Indemnitee pursuant to this Section 9.2 without regard to paragraph Section 9.2(b) (bother than 9.2(b)(iii) hereof. Notwithstanding anything to the contrary herein, each Certificateholder Indemnitee shall determine the allocation of any tax benefits, savings, credit, deduction or allocation in its sole good faith discretion and each position to be taken on its tax return shall be in its sole control and it shall not be required to disclose any tax return or related documentation to any Person).

Tax Benefit. If, as the result of any Taxes paid or indemnified against by the Facility Lessee Xxxxx City under this Section 9.2SECTION 10.2, the aggregate Taxes actually paid by the Tax Indemnitee in connection with such payment for any taxable year and not subject to indemnification pursuant to this Section 9.2 SECTION 10.2 are less (whether by reason of a deduction, credit, allocation or apportionment of income or otherwise) than the amount of such Taxes that otherwise would have been payable by such Tax Indemnitee (a "Tax BenefitTAX BENEFIT"), ; then to the extent such Tax Benefit was not taken into account in determining the amount of indemnification payable by the Facility Lessee Xxxxx City under paragraph (a) or (c) above and provided no Significant Material Lease Default or Lease Event of Default shall have occurred and be continuing (in which event the payment provided under this Section 9.2(eSECTION 10.2(e) shall be deferred until the Significant Material Lease Default or Lease Event of Default has been cured), such Tax Indemnitee shall pay to the Facility Lessee Xxxxx City the lesser of (A) (y) the amount of such Tax Benefit, plus (z) an amount equal to any United States federal, state or local income tax benefit resulting to the Tax Indemnitee from the payment under clause (y) above and this clause (z) (determined using the same assumptions as set forth in the second sentence under the definition of After-Tax Basis) and (B) the amount of the indemnity paid pursuant to this Section 9.2 SECTION 10.2 giving rise to such Tax Benefit; provided, however, PROVIDED that any excess of the amount described in clause (A) over the amount described in clause (B) shall be carried forward and applied to reduce the Facility Lessee's pro tanto any subsequent obligations of Xxxxx City to make subsequent payments payment to such Tax Indemnitee pursuant to this Section 9.2SECTION 10.2. If it is subsequently determined that the Tax Indemnitee was not entitled to such Tax Benefit, the portion of such Tax Benefit that is required to be repaid or recaptured will be treated as Taxes for which the Facility Lessee Xxxxx City must indemnify the Tax Indemnitee pursuant to this Section 9.2 SECTION 10.2 without regard to paragraph (b) hereof. Notwithstanding anything to the contrary herein, each Certificateholder Indemnitee shall determine the allocation of any tax benefits, savings, credit, deduction or allocation in its sole good faith discretion and each position to be taken on its tax return shall be in its sole control and it shall not be required to disclose any tax return or related documentation to any Person.

Tax Benefit. If, as the result of any Taxes paid or indemnified against by the Facility Lessee All indemnification payments under this Section 9.2, the aggregate Taxes actually Article VII shall be paid by the indemnifying party net of any “Tax Indemnitee Benefit” attributable to the indemnified party. For purposes of this Agreement, the term “Tax Benefit” means, with respect to a taxable year of a Person and without duplication, the excess, if any, of (i) such Person’s cumulative liability for Taxes through the end of such taxable year, calculated by excluding any Tax items attributable to the payment at issue for all taxable years, over (ii) such Person’s actual cumulative liability for Taxes through the end of such taxable year, calculated by taking into account any Tax items attributable to the payment at issue for all taxable years (to the extent permitted by relevant Tax law and treating such Tax items as the last items claimed for any taxable year and not subject to indemnification pursuant to this Section 9.2 are less (whether by reason of a deduction, credit, allocation or apportionment of income or otherwise) than the amount of such Taxes that otherwise would have been payable by such Tax Indemnitee (a "Tax Benefit"year), then to the extent such Tax Benefit was not taken into account in determining the amount of indemnification payable by the Facility Lessee under paragraph (a) or (c) above and provided no Significant Lease Default or Lease Event of Default shall have occurred and be continuing (in which event the payment provided under this Section 9.2(e) shall be deferred until the Significant Lease Default or Lease Event of Default has been cured), such Tax Indemnitee shall pay to the Facility Lessee the lesser of (A) (y) the amount of such Tax Benefit, plus (z) an amount equal to any United States federal, state or local income tax benefit resulting to the Tax Indemnitee from the payment under clause (y) above and this clause (z) (determined using the same assumptions as set forth in the second sentence under the definition of After-Tax Basis) and (B) the amount of the indemnity paid pursuant to this Section 9.2 giving rise to such Tax Benefit; provided, however, that any excess of (A) over net operating loss carrybacks from future taxable years shall not reduce the Tax Benefit; (B) shall be carried forward and if all or a portion of the Tax Benefit associated with a payment is expected to reduce such Person’s Taxes in one or more taxable years subsequent to the Facility Lessee's obligations to make subsequent payments to such Tax Indemnitee taxable year in which an indemnification payment is due pursuant to this Section 9.2. If it is subsequently determined that Agreement, the Tax Indemnitee was not entitled Benefit for the taxable year in which such indemnification payment is due shall be equal to such Tax Benefitthe portion, the portion if any, of such Tax Benefit that is required actually reduces such Person’s Taxes as described above for such taxable year (and/or one or more prior taxable years), with the indemnifying party making the indemnification payment without reduction for any future Tax Benefit, on a present-value basis or otherwise; and (C) that to be repaid or recaptured will be treated as Taxes for the extent the indemnified party recognizes a Tax Benefit with respect to a payment in any future taxable year(s) with respect to which the Facility Lessee must indemnify indemnified party has received one or more indemnification payments, the indemnified party shall pay the amount of such Tax Benefit to the indemnifying party as such Tax Benefit is actually recognized by the indemnified party (but not in excess of the indemnification payment(s) actually received from the indemnifying party with respect to the payment generating the Tax Indemnitee pursuant to this Section 9.2 without regard to paragraph (b) hereof. Notwithstanding anything to the contrary herein, each Certificateholder Indemnitee shall determine the allocation of any tax benefits, savings, credit, deduction or allocation in its sole good faith discretion and each position to be taken on its tax return shall be in its sole control and it shall not be required to disclose any tax return or related documentation to any PersonBenefit).

Tax Benefit. IfThe amount of any and all Damages sustained by or with respect to an Acquired Company for which indemnification is provided pursuant to this Article 8 will be net of any Tax benefit realized by an Indemnified Party with respect to such Damages or any of the circumstances giving rise thereto in the taxable year such Damage is incurred or in the next succeeding taxable year. In connection therewith, if, at any time following payment in full by the Indemnifying Party of any amounts of Damages due hereunder, the Indemnified Party actually realizes any Tax benefit in the taxable year such Damage is incurred or in the next succeeding taxable year, relating to the circumstances giving rise to such Damages, the Indemnified Party will promptly remit to the Indemnifying Party such Tax benefit in an amount not to exceed the amount of the corresponding indemnification payment made by the Indemnifying Party. For this purpose, the Indemnified Party shall be deemed to realize a Tax benefit with respect to a taxable year if, and to the extent that, the Indemnified Party’s cumulative liability for Taxes in the taxable year in which the Damage is incurred and in the next succeeding taxable year, calculated by excluding any Tax items attributable to the Damages from income in each such taxable year, exceeds the Indemnified Party’s actual cumulative liability for Taxes in such taxable years, calculated by taking into account any Tax items attributable to the Damages for such taxable years (to the extent permitted by relevant Tax Law and treating such Tax items as the result of any Taxes paid or indemnified against by the Facility Lessee under this Section 9.2, the aggregate Taxes actually paid by the Tax Indemnitee last items claimed for any taxable year year) and not subject taking into account, for all purposes, any increase in Tax refunds and related interest paid by a Taxing Authority with respect thereto. If and to indemnification pursuant to this Section 9.2 are less the extent that (whether by reason of a deduction, credit, allocation or apportionment of income or otherwisei) than the amount of such Taxes that otherwise would have a Tax benefit has been payable by such Tax Indemnitee (a "Tax Benefit"), then to the extent such Tax Benefit was not taken into account in determining computing the amount of indemnification payable by the Facility Lessee under paragraph (a) or (c) above and provided no Significant Lease Default or Lease Event of Default shall have occurred and be continuing (in which event the payment provided any Damage under this Section 9.2(e8.5(c) shall be deferred until or paid to an Indemnifying Party under the Significant Lease Default immediately preceding sentence, and (ii) in a subsequent audit or Lease Event other proceeding the applicable Indemnified Party is required to pay additional Taxes as a result of Default has been cured), the disallowance of such Tax Indemnitee benefit, the applicable Indemnifying Party shall promptly pay to the Facility Lessee the lesser of (A) (y) the amount of such Tax Benefit, plus (z) an amount equal to any United States federal, state or local income tax benefit resulting to the Tax Indemnitee from the payment under clause (y) above and this clause (z) (determined using the same assumptions as set forth in the second sentence under the definition of After-Tax Basis) and (B) applicable Indemnified Party the amount of the indemnity paid pursuant to this Section 9.2 giving rise to such Tax Benefit; provided, however, that any excess of (A) over (B) shall be carried forward and reduce additional Taxes resulting from the Facility Lessee's obligations to make subsequent payments to such Tax Indemnitee pursuant to this Section 9.2. If it is subsequently determined that the Tax Indemnitee was not entitled to such Tax Benefit, the portion disallowance of such Tax Benefit that is required to be repaid or recaptured will be treated as Taxes for which the Facility Lessee must indemnify the Tax Indemnitee pursuant to this Section 9.2 without regard to paragraph (b) hereof. Notwithstanding anything to the contrary herein, each Certificateholder Indemnitee shall determine the allocation of any tax benefits, savings, credit, deduction or allocation in its sole good faith discretion and each position to be taken on its tax return shall be in its sole control and it shall not be required to disclose any tax return or related documentation to any Personbenefit.