Common use of Excluded Taxes Clause in Contracts

Excluded Taxes. The indemnity provided for in paragraph (a) above shall not extend to any of the following Taxes (the "Excluded Taxes"): Taxes imposed by the United States federal government or any state or local government, any political subdivision of any of the foregoing, imposed on, based on or measured by gross or net income, receipts, capital gain, capital or net worth, or conduct of business (other than, in each case, Taxes that are or are in the nature of sales, transaction privilege taxes, use, rental, license, value added (to the extent value added taxes are not imposed in clear and direct substitution for income taxes) or property taxes) ("Income Taxes"), including any such Taxes collected by way of withholding, minimum or alternative minimum taxes, and franchise taxes; provided that this exclusion (i) shall not affect any express requirement that payments be made on an "after-tax" basis; Taxes imposed on a Tax Indemnitee other than a Certificateholder Indemnitee that are attributable to any act, event or omission by such Tax Indemnitee that occurs after expiration or other termination of the Facility Lease and surrender of the Undivided Interest to the Owner Lessor or its successors (or in the case of a Certificateholder Indemnitee, Taxes imposed for any period after the repayment of the Lease Debt) in accordance with the Facility Lease, (as opposed to any act, event or omission occurring prior to or simultaneous with such expiration, termination or surrender (or, in the case of a Certificateholder Indemnitee, such repayment)), provided that this exclusion shall not apply so long as a Lease Event of Default shall have occurred and be continuing; Taxes imposed on a Tax Indemnitee that are attributable to the gross negligence or willful misconduct of such Tax Indemnitee, unless such negligence or misconduct is imputed to such Tax Indemnitee solely as a result of its participation in the transactions contemplated by the Operative Documents and the South Point Ground Lease (giving effect to its assignment to the Owner Lessor pursuant to the Assignment Agreement) and not as a result of any action or inaction by such Tax Indemnitee; Taxes imposed on a Tax Indemnitee arising from a breach by such Tax Indemnitee of any of its representations, warranties or covenants under any Operative Document except to the extent attributable to any breach by the Facility Lessee or any other Calpine Party of any covenant, representation or warranty contained in any Operative Document; Taxes (A) that are attributable to any voluntary direct or indirect assignment, sale, transfer or other voluntary disposition or an involuntary direct or indirect transfer or disposition arising out of or caused by a bankruptcy or similar proceeding for relief of debtors in which such Tax Indemnitee is a debtor or a foreclosure by a creditor of (1) in the case of the Owner Lessor or the Owner Participant, the Owner Participant of all or part of its Member Interest or Undivided Interest, (2) in the case of the Owner Lessor or the Owner Participant, the Owner Lessor of all or part of its interest in the Facility or the Facility Site (other than to a successor Lessor Manager), or (3) in the case of the Indenture Trustee, the Indenture Trustee of any interest in the Lease Debt or the Indenture Estate, or (4) in the case of the Owner Lessor or the Owner Participant any direct or indirect interest in the Owner Lessor or the Owner Participant, including by reason of an election made pursuant to Section 338 of the Code, in each case to the extent imposed by reason of any transfer described in this clause (v)(A), or (B) to the extent that, under law in effect on the date of the transfer such Taxes exceed the amount of Taxes that would be indemnified hereunder had there been no such assignment, sale, transfer or other voluntary disposition, unless such transfer or disposition occurs during the continuance of a Lease Event of Default or is otherwise pursuant to the Facility Lessee's exercise of its rights under the Operative Documents; provided that this exclusion shall not apply with respect to any initial syndication of interests in the Owner Participant accomplished prior to December 29, 2001; Taxes imposed on a Tax Indemnitee that would not have been imposed but for the creation or existence of any Owner Lessor's Lien or Owner Participant's Lien attributable to such Tax Indemnitee; Taxes that are included as a part of the cost of the Facility; Taxes imposed on the Lessor Manager or the Indenture Trustee that are based on or measured by the fees or other compensation received by the Lessor Manager or Indenture Trustee for acting in their respective capacities. With respect to the Owner Participant, Taxes for which the Facility Lessee is obligated to indemnify the Owner Participant under the Tax Indemnity Agreement (or which are expressly excluded from indemnification thereunder); 57 Taxes that are imposed on a Tax Indemnitee (other than a Certificateholder Indemnitee) resulting from the Owner Lessor not being treated as a grantor trust or other conduit entity for federal, state or local income tax purposes, but only to the extent such Taxes exceed Taxes indemnified hereunder that otherwise would have been imposed and are otherwise indemnifiable; Taxes imposed on a Tax Indemnitee that are attributable to the failure of such Tax Indemnitee to comply with certification, information, documentation, reporting or other similar requirements concerning the nationality, residence, identity or connection with the jurisdiction imposing such Taxes; provided that the foregoing exclusion shall only apply if such compliance is required by statute or regulation of the jurisdiction imposing such Taxes as a precondition to relief or exemption from or reduction in such Taxes, such Tax Indemnitee is eligible to comply with such requirement, the Facility Lessee shall have given such Tax Indemnitee timely written notice of such requirement and the Tax Indemnitee shall have determined in good faith that compliance with any such requirement shall not result in any identified non-immaterial adverse effect to its interests or to those of its Affiliates; Taxes consisting of interest, penalties, additions to tax or fines resulting from a failure of such Tax Indemnitee to properly and timely file returns as required by a taxing authority unless such failure is attributable to the Facility Lessee not providing information that it is expressly required to provide under the Operative Documents; Taxes imposed on any Tax Indemnitee resulting from an amendment, modification, supplement to or waiver of any provision of, any Operative Document which amendment, modification, supplement or waiver was not requested by or consented to by the Facility Lessee, and as to which the Facility Lessee is not a party and the Tax Indemnitee (or, in the case of the Owner Participant, the Owner Lessor if acting at the express direction of the Owner Participant or any Related Party) is a party, provided that this exclusion shall not apply if such amendment, modification, supplement or waiver (A) was required by applicable law or the Operative Documents, (B) may be necessary or appropriate to, and is in conformity with, any amendment to any Operative Document requested by the Facility Lessee in writing, or (C) was expressly consented to by a Calpine Party in writing; Taxes imposed as a result of, or in connection with, any "prohibited transaction," within the meaning of Section 4975 of the Code, Section 406 of ERISA or any comparable laws of any Governmental Entity, engaged in by any Tax Indemnitee (which for this purpose shall include any ERISA Affiliate thereof) resulting from the breach by such Tax Indemnitee of any of its representations or warranties contained in Section 3.4(g) or Section 8.2 of the Participation Agreement; Taxes to the extent such Taxes would not have been imposed on a Tax Indemnitee if such Tax Indemnitee were a United States Person; and Taxes imposed that would not have been imposed on a Tax Indemnitee but for the activities in the taxing jurisdiction of such Tax Indemnitee or any Affiliate thereof unrelated to the transactions contemplated by the Operative Documents other than Taxes that are or are in the nature of sales, transaction privilege taxes, use, rental or license taxes, value added taxes (except to the extent value added taxes are imposed in clear and direct substitution for income taxes) or property taxes.

Excluded Taxes. The indemnity provided for If Landlord requires Tenant to pay any Impositions directly to the applicable taxing authority or other party entitled to collect the same, Tenant shall furnish Landlord with receipts showing payment of such Impositions and other amounts prior to delinquency; except that Tenant may in paragraph (a) above good faith by appropriate proceedings contest the validity, applicability or amount of any asserted Imposition, and pending such contest Tenant shall not extend to any be deemed in default of this subparagraph (or subparagraphs 9.(t) or 9.(u)) because of the following Taxes (the "Excluded Taxes"): Taxes imposed by the United States federal government or any state or local government, any political subdivision of any of the foregoing, imposed on, based on or measured by gross or net income, receipts, capital gain, capital or net worth, or conduct of business (other than, in each case, Taxes that are or are in the nature of sales, transaction privilege taxes, use, rental, license, value added (to the extent value added taxes are not imposed in clear and direct substitution for income taxes) or property taxes) ("Income Taxes"), including any such Taxes collected by way of withholding, minimum or alternative minimum taxes, and franchise taxes; provided that this exclusion (i) shall not affect any express requirement that payments be made on an "after-tax" basis; Taxes imposed on a Tax Indemnitee other than a Certificateholder Indemnitee that are attributable to any act, event or omission by such Tax Indemnitee that occurs after expiration or other termination of the Facility Lease and surrender of the Undivided Interest to the Owner Lessor or its successors (or in the case of a Certificateholder Indemnitee, Taxes imposed for any period after the repayment of the Lease Debt) in accordance with the Facility Lease, (as opposed to any act, event or omission occurring prior to or simultaneous with such expiration, termination or surrender (or, in the case of a Certificateholder Indemnitee, such repayment)), provided that this exclusion shall not apply so long as a Lease Event of Default shall have occurred and be continuing; Taxes imposed on a Tax Indemnitee that are attributable to the gross negligence or willful misconduct of such Tax Indemnitee, unless such negligence or misconduct is imputed to such Tax Indemnitee solely as a result of its participation in the transactions contemplated by the Operative Documents and the South Point Ground Lease (giving effect to its assignment to the Owner Lessor pursuant to the Assignment Agreement) and not as a result of any action or inaction by such Tax Indemnitee; Taxes imposed on a Tax Indemnitee arising from a breach by such Tax Indemnitee of any of its representations, warranties or covenants under any Operative Document except to the extent attributable to any breach by the Facility Lessee or any other Calpine Party of any covenant, representation or warranty contained in any Operative Document; Taxes (A) that are attributable to any voluntary direct or indirect assignment, sale, transfer or other voluntary disposition or an involuntary direct or indirect transfer or disposition arising out of or caused by a bankruptcy or similar proceeding for relief of debtors in which such Tax Indemnitee is a debtor or a foreclosure by a creditor of contested Imposition if (1) within sixty (60) days after being asked to do so by Landlord, Tenant bonds over to the satisfaction of Landlord any lien asserted against the Leased Property and alleged to secure an amount in the case excess of $1,000,000 because of the Owner Lessor or the Owner Participant, the Owner Participant of all or part of its Member Interest or Undivided Interestcontested Imposition, (2) Tenant diligently prosecutes such contest to completion in the case of the Owner Lessor or the Owner Participanta manner reasonably satisfactory to Landlord, the Owner Lessor of all or part of its interest in the Facility or the Facility Site (other than to a successor Lessor Manager), or and (3) Tenant promptly causes to be paid any amount adjudged by a court of competent jurisdiction to be due, with all costs, penalties and interest thereon, promptly after such judgment becomes final; provided, however, that in the case of the Indenture Trustee, the Indenture Trustee of any interest in the Lease Debt or the Indenture Estate, or (4) in the case of the Owner Lessor or the Owner Participant any direct or indirect interest in the Owner Lessor or the Owner Participant, including by reason of an election made pursuant to Section 338 of the Code, in event each case to the extent imposed by reason of any transfer described in this clause (v)(A), or (B) to the extent that, under law in effect on the date of the transfer such Taxes exceed the amount of Taxes that would contest shall be indemnified hereunder had there been no such assignment, sale, transfer or other voluntary disposition, unless such transfer or disposition occurs during the continuance of a Lease Event of Default or is otherwise pursuant to the Facility Lessee's exercise of its rights under the Operative Documents; provided that this exclusion shall not apply with respect to any initial syndication of interests in the Owner Participant accomplished prior to December 29, 2001; Taxes imposed on a Tax Indemnitee that would not have been imposed but for the creation or existence of any Owner Lessor's Lien or Owner Participant's Lien attributable to such Tax Indemnitee; Taxes that are included as a part of the cost of the Facility; Taxes imposed on the Lessor Manager or the Indenture Trustee that are based on or measured by the fees or other compensation received by the Lessor Manager or Indenture Trustee for acting in their respective capacities. With respect to the Owner Participant, Taxes for which the Facility Lessee is obligated to indemnify the Owner Participant under the Tax Indemnity Agreement (or which are expressly excluded from indemnification thereunder); 57 Taxes that are imposed on a Tax Indemnitee (other than a Certificateholder Indemnitee) resulting from the Owner Lessor not being treated as a grantor trust or other conduit entity for federal, state or local income tax purposes, but only to the extent such Taxes exceed Taxes indemnified hereunder that otherwise would have been imposed and are otherwise indemnifiable; Taxes imposed on a Tax Indemnitee that are attributable to the failure of such Tax Indemnitee to comply with certification, information, documentation, reporting or other similar requirements concerning the nationality, residence, identity or connection with the jurisdiction imposing such Taxes; provided that the foregoing exclusion shall only apply if such compliance is required by statute or regulation of the jurisdiction imposing such Taxes as a precondition to relief or exemption from or reduction in such Taxes, such Tax Indemnitee is eligible to comply with such requirement, the Facility Lessee shall have given such Tax Indemnitee timely written notice of such requirement concluded and the Tax Indemnitee shall have determined in good faith that compliance with any such requirement shall not result in any identified non-immaterial adverse effect to its interests or to those of its Affiliates; Taxes consisting of interestImpositions, penalties, additions to tax or fines resulting from a failure of such Tax Indemnitee to properly interest and timely file returns as required by a taxing authority unless such failure is attributable costs shall be paid prior to the Facility Lessee not providing information that it is expressly required to provide under the Operative Documents; Taxes imposed on date (i) any Tax Indemnitee resulting from an amendmentcriminal action may be instituted against Landlord or its directors, modification, supplement to officers or waiver of any provision of, any Operative Document which amendment, modification, supplement or waiver was not requested by or consented to by the Facility Lessee, and as to which the Facility Lessee is not a party and the Tax Indemnitee (or, in the case employees because of the Owner Participant, nonpayment thereof or (ii) any writ or order is issued under which any property owned by Landlord (including the Owner Lessor if acting at the express direction of the Owner Participant or any Related Party) is a party, provided that this exclusion shall not apply if such amendment, modification, supplement or waiver (A) was required by applicable law or the Operative Documents, (BLeased Property) may be necessary seized or appropriate to, and is in conformity with, sold or any amendment to other action may be taken against Landlord or any Operative Document requested property owned by the Facility Lessee in writing, or (C) was expressly consented to by a Calpine Party in writing; Taxes imposed as a result of, or in connection with, any "prohibited transaction," within the meaning of Section 4975 Landlord because of the Code, Section 406 of ERISA or any comparable laws of any Governmental Entity, engaged in by any Tax Indemnitee nonpayment thereof. (which for this purpose shall include any ERISA Affiliate thereof) resulting from the breach by such Tax Indemnitee of any of its representations or warranties contained in Section 3.4(g) or Section 8.2 of the Participation Agreement; Taxes to the extent such Taxes would not have been imposed on a Tax Indemnitee if such Tax Indemnitee were a United States Person; and Taxes imposed that would not have been imposed on a Tax Indemnitee but for the activities in the taxing jurisdiction of such Tax Indemnitee or any Affiliate thereof unrelated to the transactions contemplated by the Operative Documents other than Taxes that are or are in the nature of sales, transaction privilege taxes, use, rental or license taxes, value added taxes (except to the extent value added taxes are imposed in clear and direct substitution for income taxes) or property taxes.q)

Excluded Taxes. The indemnity provided for If Landlord requires Tenant to pay any Impositions directly to the applicable taxing authority or other party entitled to collect the same, Tenant shall furnish Landlord with receipts showing payment of such Impositions and other amounts prior to delinquency; except that Tenant may in paragraph (a) above good faith by appropriate proceedings contest the validity, applicability or amount of any asserted Imposition, and pending such contest Tenant shall not extend to any be deemed in default of this subparagraph (or subparagraphs 8.(t) or 8.(u)) because of the following Taxes (the "Excluded Taxes"): Taxes imposed by the United States federal government or any state or local government, any political subdivision of any of the foregoing, imposed on, based on or measured by gross or net income, receipts, capital gain, capital or net worth, or conduct of business (other than, in each case, Taxes that are or are in the nature of sales, transaction privilege taxes, use, rental, license, value added (to the extent value added taxes are not imposed in clear and direct substitution for income taxes) or property taxes) ("Income Taxes"), including any such Taxes collected by way of withholding, minimum or alternative minimum taxes, and franchise taxes; provided that this exclusion (i) shall not affect any express requirement that payments be made on an "after-tax" basis; Taxes imposed on a Tax Indemnitee other than a Certificateholder Indemnitee that are attributable to any act, event or omission by such Tax Indemnitee that occurs after expiration or other termination of the Facility Lease and surrender of the Undivided Interest to the Owner Lessor or its successors (or in the case of a Certificateholder Indemnitee, Taxes imposed for any period after the repayment of the Lease Debt) in accordance with the Facility Lease, (as opposed to any act, event or omission occurring prior to or simultaneous with such expiration, termination or surrender (or, in the case of a Certificateholder Indemnitee, such repayment)), provided that this exclusion shall not apply so long as a Lease Event of Default shall have occurred and be continuing; Taxes imposed on a Tax Indemnitee that are attributable to the gross negligence or willful misconduct of such Tax Indemnitee, unless such negligence or misconduct is imputed to such Tax Indemnitee solely as a result of its participation in the transactions contemplated by the Operative Documents and the South Point Ground Lease (giving effect to its assignment to the Owner Lessor pursuant to the Assignment Agreement) and not as a result of any action or inaction by such Tax Indemnitee; Taxes imposed on a Tax Indemnitee arising from a breach by such Tax Indemnitee of any of its representations, warranties or covenants under any Operative Document except to the extent attributable to any breach by the Facility Lessee or any other Calpine Party of any covenant, representation or warranty contained in any Operative Document; Taxes (A) that are attributable to any voluntary direct or indirect assignment, sale, transfer or other voluntary disposition or an involuntary direct or indirect transfer or disposition arising out of or caused by a bankruptcy or similar proceeding for relief of debtors in which such Tax Indemnitee is a debtor or a foreclosure by a creditor of contested Imposition if (1) within sixty (60) days after being asked to do so by Landlord, Tenant bonds over to the satisfaction of Landlord any lien asserted against the Leased Property and alleged to secure an amount in the case excess of $500,000 because of the Owner Lessor or the Owner Participant, the Owner Participant of all or part of its Member Interest or Undivided Interestcontested Imposition, (2) Tenant diligently prosecutes such contest to completion in the case of the Owner Lessor or the Owner Participanta manner reasonably satisfactory to Landlord, the Owner Lessor of all or part of its interest in the Facility or the Facility Site (other than to a successor Lessor Manager), or and (3) Tenant promptly causes to be paid any amount adjudged by a court of competent jurisdiction to be due, with all costs, penalties and interest thereon, promptly after such judgment becomes final; provided, however, that in the case of the Indenture Trustee, the Indenture Trustee of any interest in the Lease Debt or the Indenture Estate, or (4) in the case of the Owner Lessor or the Owner Participant any direct or indirect interest in the Owner Lessor or the Owner Participant, including by reason of an election made pursuant to Section 338 of the Code, in event each case to the extent imposed by reason of any transfer described in this clause (v)(A), or (B) to the extent that, under law in effect on the date of the transfer such Taxes exceed the amount of Taxes that would contest shall be indemnified hereunder had there been no such assignment, sale, transfer or other voluntary disposition, unless such transfer or disposition occurs during the continuance of a Lease Event of Default or is otherwise pursuant to the Facility Lessee's exercise of its rights under the Operative Documents; provided that this exclusion shall not apply with respect to any initial syndication of interests in the Owner Participant accomplished prior to December 29, 2001; Taxes imposed on a Tax Indemnitee that would not have been imposed but for the creation or existence of any Owner Lessor's Lien or Owner Participant's Lien attributable to such Tax Indemnitee; Taxes that are included as a part of the cost of the Facility; Taxes imposed on the Lessor Manager or the Indenture Trustee that are based on or measured by the fees or other compensation received by the Lessor Manager or Indenture Trustee for acting in their respective capacities. With respect to the Owner Participant, Taxes for which the Facility Lessee is obligated to indemnify the Owner Participant under the Tax Indemnity Agreement (or which are expressly excluded from indemnification thereunder); 57 Taxes that are imposed on a Tax Indemnitee (other than a Certificateholder Indemnitee) resulting from the Owner Lessor not being treated as a grantor trust or other conduit entity for federal, state or local income tax purposes, but only to the extent such Taxes exceed Taxes indemnified hereunder that otherwise would have been imposed and are otherwise indemnifiable; Taxes imposed on a Tax Indemnitee that are attributable to the failure of such Tax Indemnitee to comply with certification, information, documentation, reporting or other similar requirements concerning the nationality, residence, identity or connection with the jurisdiction imposing such Taxes; provided that the foregoing exclusion shall only apply if such compliance is required by statute or regulation of the jurisdiction imposing such Taxes as a precondition to relief or exemption from or reduction in such Taxes, such Tax Indemnitee is eligible to comply with such requirement, the Facility Lessee shall have given such Tax Indemnitee timely written notice of such requirement concluded and the Tax Indemnitee shall have determined in good faith that compliance with any such requirement shall not result in any identified non-immaterial adverse effect to its interests or to those of its Affiliates; Taxes consisting of interestImpositions, penalties, additions to tax or fines resulting from a failure of such Tax Indemnitee to properly interest and timely file returns as required by a taxing authority unless such failure is attributable costs shall be paid prior to the Facility Lessee not providing information that it is expressly required to provide under the Operative Documents; Taxes imposed on date (i) any Tax Indemnitee resulting from an amendmentcriminal action may be instituted against Landlord or its directors, modification, supplement to officers or waiver of any provision of, any Operative Document which amendment, modification, supplement or waiver was not requested by or consented to by the Facility Lessee, and as to which the Facility Lessee is not a party and the Tax Indemnitee (or, in the case employees because of the Owner Participant, nonpayment thereof or (ii) any writ or order is issued under which any property owned by Landlord (including the Owner Lessor if acting at the express direction of the Owner Participant or any Related Party) is a party, provided that this exclusion shall not apply if such amendment, modification, supplement or waiver (A) was required by applicable law or the Operative Documents, (BLeased Property) may be necessary seized or appropriate to, and is in conformity with, sold or any amendment to other action may be taken against Landlord or any Operative Document requested property owned by the Facility Lessee in writing, or (C) was expressly consented to by a Calpine Party in writing; Taxes imposed as a result of, or in connection with, any "prohibited transaction," within the meaning of Section 4975 Landlord because of the Code, Section 406 of ERISA or any comparable laws of any Governmental Entity, engaged in by any Tax Indemnitee (which for this purpose shall include any ERISA Affiliate nonpayment thereof) resulting from the breach by such Tax Indemnitee of any of its representations or warranties contained in Section 3.4(g) or Section 8.2 of the Participation Agreement; Taxes to the extent such Taxes would not have been imposed on a Tax Indemnitee if such Tax Indemnitee were a United States Person; and Taxes imposed that would not have been imposed on a Tax Indemnitee but for the activities in the taxing jurisdiction of such Tax Indemnitee or any Affiliate thereof unrelated to the transactions contemplated by the Operative Documents other than Taxes that are or are in the nature of sales, transaction privilege taxes, use, rental or license taxes, value added taxes (except to the extent value added taxes are imposed in clear and direct substitution for income taxes) or property taxes.

Excluded Taxes. The indemnity provided Any and all payments by Borrower to or for in paragraph (a) above shall not extend to any of the following Taxes (the "Excluded Taxes"): Taxes imposed by the United States federal government or any state or local government, any political subdivision account of any Lender or Administrative Agent hereunder or under any other Loan Document shall be made free and clear of the foregoing, imposed on, based on and without deduction for any and all present or measured by gross or net income, receipts, capital gain, capital or net worth, or conduct of business (other than, in each case, Taxes that are or are in the nature of sales, transaction privilege future taxes, useduties, rentallevies, licenseimposts, value added (to the extent value added taxes are not imposed in clear and direct substitution for income taxes) deductions, charges or property taxes) ("Income Taxes"), including any such Taxes collected by way of withholding, minimum or alternative minimum taxeswithholdings, and franchise taxes; provided that this exclusion (i) shall not affect any express requirement that payments be made on an "after-tax" basis; Taxes imposed on a Tax Indemnitee other than a Certificateholder Indemnitee that are attributable to any actall liabilities with respect thereto, event or omission by such Tax Indemnitee that occurs after expiration or other termination of the Facility Lease and surrender of the Undivided Interest to the Owner Lessor or its successors (or in the case of a Certificateholder Indemnitee, Taxes imposed for any period after the repayment of the Lease Debt) in accordance with the Facility Lease, (as opposed to any act, event or omission occurring prior to or simultaneous with such expiration, termination or surrender (orexcluding, in the case of a Certificateholder Indemniteeeach Lender and Administrative Agent, such repayment)any taxes (including franchise taxes and taxes imposed on or measured by net income or profits), provided that this exclusion shall not apply so long as a Lease Event of Default shall have occurred and be continuing; Taxes imposed on a Tax Indemnitee that are attributable to the gross negligence or willful misconduct of such Tax Indemnitee, unless such negligence or misconduct is imputed to such Tax Indemnitee solely as a result of its participation in the transactions contemplated by the Operative Documents and the South Point Ground Lease (giving effect to its assignment to the Owner Lessor pursuant to the Assignment Agreement) and not as a result of any action or inaction by such Tax Indemnitee; Taxes imposed on a Tax Indemnitee arising from a breach by such Tax Indemnitee of any of its representations, warranties or covenants under any Operative Document except to the extent attributable to any breach by the Facility Lessee or any other Calpine Party of any covenant, representation or warranty contained in any Operative Document; Taxes (A) that are attributable to any voluntary direct or indirect assignment, sale, transfer or other voluntary disposition or an involuntary direct or indirect transfer or disposition arising out of or caused by a bankruptcy or similar proceeding for relief of debtors in which such Tax Indemnitee is a debtor or a foreclosure by a creditor of (1) in the case of the Owner Lessor or the Owner Participant, the Owner Participant of all or part of its Member Interest or Undivided Interest, (2) in the case of the Owner Lessor or the Owner Participant, the Owner Lessor of all or part of its interest in the Facility or the Facility Site (other than to a successor Lessor Manager), or (3) in the case of the Indenture Trustee, the Indenture Trustee of any interest in the Lease Debt or the Indenture Estate, or (4) in the case of the Owner Lessor or the Owner Participant any direct or indirect interest in the Owner Lessor or the Owner Participant, including by reason of an election made pursuant to Section 338 of the Code, in each case to the extent imposed by reason of any transfer described in this clause (v)(A)connection between, as applicable, such Lender or Administrative Agent and the relevant taxing jurisdiction, including, without limitation, a connection arising from such Person being or having been a citizen, domiciliary, or resident of such jurisdiction, being organized in such jurisdiction, or having had a permanent establishment or fixed place of business therein, but excluding a connection arising solely from such Person having executed, delivered, performed its obligations or received any payment under this Credit Agreement (Ball such non-excluded taxes, duties, levies, imposts, deductions, charges, withholdings, and liabilities being hereinafter referred to as "TAXES"). If Borrower shall be required by law to deduct any Taxes from or in respect of any sum payable under this Credit Agreement or any other Loan Document to any Lender or Administrative Agent: (i) the sum payable shall be increased as necessary so that after making all required deductions (including deductions applicable to additional sums payable under this SECTION 4.6) such Lender or Administrative Agent receives an amount equal to the extent that, under law in effect on the date of the transfer such Taxes exceed the amount of Taxes that sum it would be indemnified hereunder have received had there been no such assignment, sale, transfer deductions been made; (ii) Borrower shall make such deductions; (iii) Borrower shall pay the full amount deducted to the relevant taxation authority or other voluntary dispositionauthority in accordance with applicable law; and (iv) Borrower shall furnish to Administrative Agent, unless such transfer at its address for notice under this Credit Agreement, the original or disposition occurs during the continuance a certified copy of a Lease Event of Default or is otherwise pursuant to the Facility Lessee's exercise of its rights under the Operative Documents; provided that this exclusion shall not apply with respect to any initial syndication of interests in the Owner Participant accomplished prior to December 29, 2001; Taxes imposed on a Tax Indemnitee that would not have been imposed but for the creation or existence of any Owner Lessor's Lien or Owner Participant's Lien attributable to such Tax Indemnitee; Taxes that are included as a part of the cost of the Facility; Taxes imposed on the Lessor Manager or the Indenture Trustee that are based on or measured by the fees or other compensation received by the Lessor Manager or Indenture Trustee for acting in their respective capacities. With respect to the Owner Participant, Taxes for which the Facility Lessee is obligated to indemnify the Owner Participant under the Tax Indemnity Agreement (or which are expressly excluded from indemnification thereunder); 57 Taxes that are imposed on a Tax Indemnitee (other than a Certificateholder Indemnitee) resulting from the Owner Lessor not being treated as a grantor trust or other conduit entity for federal, state or local income tax purposes, but only to the extent such Taxes exceed Taxes indemnified hereunder that otherwise would have been imposed and are otherwise indemnifiable; Taxes imposed on a Tax Indemnitee that are attributable to the failure of such Tax Indemnitee to comply with certification, information, documentation, reporting or other similar requirements concerning the nationality, residence, identity or connection with the jurisdiction imposing such Taxes; provided that the foregoing exclusion shall only apply if such compliance is required by statute or regulation of the jurisdiction imposing such Taxes as a precondition to relief or exemption from or reduction in such Taxes, such Tax Indemnitee is eligible to comply with such requirement, the Facility Lessee shall have given such Tax Indemnitee timely written notice of such requirement and the Tax Indemnitee shall have determined in good faith that compliance with any such requirement shall not result in any identified non-immaterial adverse effect to its interests or to those of its Affiliates; Taxes consisting of interest, penalties, additions to tax or fines resulting from a failure of such Tax Indemnitee to properly and timely file returns as required by a taxing authority unless such failure is attributable to the Facility Lessee not providing information that it is expressly required to provide under the Operative Documents; Taxes imposed on any Tax Indemnitee resulting from an amendment, modification, supplement to or waiver of any provision of, any Operative Document which amendment, modification, supplement or waiver was not requested by or consented to by the Facility Lessee, and as to which the Facility Lessee is not a party and the Tax Indemnitee (or, in the case of the Owner Participant, the Owner Lessor if acting at the express direction of the Owner Participant or any Related Party) is a party, provided that this exclusion shall not apply if such amendment, modification, supplement or waiver (A) was required by applicable law or the Operative Documents, (B) may be necessary or appropriate to, and is in conformity with, any amendment to any Operative Document requested by the Facility Lessee in writing, or (C) was expressly consented to by a Calpine Party in writing; Taxes imposed as a result of, or in connection with, any "prohibited transaction," within the meaning of Section 4975 of the Code, Section 406 of ERISA or any comparable laws of any Governmental Entity, engaged in by any Tax Indemnitee (which for this purpose shall include any ERISA Affiliate receipt evidencing payment thereof) resulting from the breach by such Tax Indemnitee of any of its representations or warranties contained in Section 3.4(g) or Section 8.2 of the Participation Agreement; Taxes to the extent such Taxes would not have been imposed on a Tax Indemnitee if such Tax Indemnitee were a United States Person; and Taxes imposed that would not have been imposed on a Tax Indemnitee but for the activities in the taxing jurisdiction of such Tax Indemnitee or any Affiliate thereof unrelated to the transactions contemplated by the Operative Documents other than Taxes that are or are in the nature of sales, transaction privilege taxes, use, rental or license taxes, value added taxes (except to the extent value added taxes are imposed in clear and direct substitution for income taxes) or property taxes.

Excluded Taxes. The indemnity provided for in paragraph Lessee shall have no obligation under Section 21.1(a) or (ac) above shall not extend to indemnify an Indemnitee for: Taxes imposed by withholding or otherwise, based on, or measured by the income (including gross income), earnings, receipts, capital, franchise, excess profits or conduct of business of such Indemnitee or any of the following its Affiliates (collectively “Income Taxes”), including, without limitation, income Taxes, withholding Taxes, capital gains Taxes, minimum and alternative minimum Taxes, accumulated earnings Taxes, personal holding company Taxes and branch profits and branch interest Taxes (but, for clarity, not including (i) sales, use and value added Taxes, (ii) rental Taxes not in the "Excluded nature of an income Tax, (iii) property and ad valorem Taxes"): Taxes , and (iv) license or similar Taxes) imposed by the United States federal government or States, any state or local government, or any political subdivision foreign government; provided, however, that in the case of any Taxes imposed by any Governmental Authority located outside the United States, the exclusion of Income Taxes under this clause (g) shall not apply if and to the extent that such Income Taxes are imposed solely as a result of (w) the inaccuracy or breach of any of the foregoingrepresentations, imposed onwarranties, based on covenants or measured by gross or net income, receipts, capital gain, capital or net worth, or conduct agreements of business (other than, in each case, Taxes that are or are Lessee in the nature Operative Documents, (x) an Event of salesDefault, transaction privilege taxes(y) the operation, use, rentalpresence or registration of any Item of Equipment in such jurisdiction or (z) the presence of Lessee or Lessee making payments (or having been deemed to have made payments) from or performing any other actions in such jurisdiction; any Tax imposed on or with respect to any sale or other transfer by such Indemnitee of such Indemnitee's interest in the Aircraft pursuant to Section 25.2 or otherwise, license, value added (to the extent value added taxes are not imposed in clear and direct substitution for income taxes) or property taxes) ("Income Taxes"), including any such Taxes collected by way of withholding, minimum or alternative minimum taxes, and franchise taxes; provided that the exclusion in this exclusion clause (iii) shall not affect any express requirement that payments be made on an "after-tax" basis; Taxes imposed on a Tax Indemnitee other than a Certificateholder Indemnitee that are attributable apply to any act, event sale or omission by such Tax Indemnitee transfer that occurs after expiration or other termination of the Facility Lease and surrender of the Undivided Interest to the Owner Lessor or its successors (or in the case of a Certificateholder Indemnitee, Taxes imposed for any period after the repayment of the Lease DebtA) in accordance connection with the Facility Lease, (as opposed exercise of remedies pursuant to any act, event or omission occurring prior to or simultaneous with such expiration, termination or surrender (or, in the case of a Certificateholder Indemnitee, such repayment)), provided that this exclusion shall not apply so long as a Lease an Event of Default shall have occurred and be continuingDefault, an Event of Loss, or any maintenance, repair, overhaul, pooling, interchange, exchange, removal, replacement, substitution, modification, improvement, or alteration of any Item of Equipment, or (B) at Lessee's request, or (C) pursuant to a requirement in any Operative Document or any applicable Law; Taxes imposed on a any Tax Indemnitee that are attributable to the gross negligence or willful misconduct of such Tax Indemnitee, unless such negligence Indemnitee or misconduct is imputed to such Tax Indemnitee solely as a result any of its participation Affiliates; Taxes in respect of any period (i) prior to commencement of the transactions contemplated by Lease or (ii) after the Operative Documents and expiration or earlier termination of the South Point Ground Lease (giving effect to its assignment with respect to the Owner Aircraft and delivery of possession of such Aircraft to Lessor, or placement in storage of such Aircraft at the request of Lessor pursuant (or, if such Aircraft is not so delivered or placed in storage, the discharge in full of Lessee’s obligations to pay all amounts then payable by Lessee under the Lease), provided, however, that clause (ii) of this exclusion (a) shall not apply to any Taxes accruing or otherwise related to occurrences or matters arising prior to or simultaneously with the events described in clause (ii) of this exclusion or to Taxes relating to payments made by Lessee to or for the benefit of such Indemnitee under the Lease following the events described in clause (ii) of this exclusion; Xxxxxxxxxx XX-600-2C10; MSN 10070 Taxes that are attributable to the Assignment Agreement) and not as a result of any action or inaction by such Tax Indemnitee; Taxes imposed on a Tax Indemnitee arising from a breach by such Tax Indemnitee or any of its Affiliates of any of its representations, warranties or covenants under in any Operative Document except to the extent attributable to that such breach arises as a result of any breach by the Facility Lessee of a representation, warranty or any other Calpine Party of any covenant, representation or warranty contained covenant in any Operative Document; Taxes resulting from the failure of such Indemnitee to comply with its obligations under Section 21.5 hereof except to the extent that failure arises as a result of any breach by Lessee of a representation, warranty or covenant in any Operative Document or Lessee’s obligations under Section 21.5; Taxes resulting from the failure of such Indemnitee to be a “United States person” within the meaning of Section 7701(a)(30) of the Code; Taxes imposed as a result of activities of such Indemnitee in the jurisdiction imposing such Taxes unrelated to the transactions (including the exercise of remedies) contemplated by the Lease; Taxes imposed against a transferee of such Indemnitee (or a subsequent transferee) to the extent of the excess of such Taxes over the amount of such Taxes that would have been imposed had there not been such a transfer; provided, however, that this clause (i) shall not apply to (A) that are attributable the extent necessary to make any voluntary direct payment on an After-Tax Basis as described in Section 21.4(c) hereof or indirect assignment, sale, (B) a transfer made in connection with any exercise by Lessor of its remedies under Article 24 hereof or other voluntary disposition or an involuntary direct or indirect transfer or disposition arising out of or caused by a bankruptcy or similar proceeding for relief of debtors in which such Tax Indemnitee is a debtor or a foreclosure by a creditor of (1) applicable Law in the case of the Owner Lessor or the Owner Participant, the Owner Participant of all or part of its Member Interest or Undivided Interest, (2) in the case of the Owner Lessor or the Owner Participant, the Owner Lessor of all or part of its interest in the Facility or the Facility Site (other than to a successor Lessor Manager), or (3) in the case of the Indenture Trustee, the Indenture Trustee of any interest in the Lease Debt or the Indenture Estate, or (4) in the case of the Owner Lessor or the Owner Participant any direct or indirect interest in the Owner Lessor or the Owner Participant, including by reason of an election made pursuant to Section 338 of the Code, in each case to the extent imposed by reason of any transfer described in this clause (v)(A), or (B) to the extent that, under law in effect on the date of the transfer such Taxes exceed the amount of Taxes that would be indemnified hereunder had there been no such assignment, sale, transfer or other voluntary disposition, unless such transfer or disposition occurs during the continuance of a Lease Event of Default or is otherwise pursuant to the Facility Lessee's exercise of its rights under the Operative Documents; provided that this exclusion shall not apply with respect to any initial syndication of interests in the Owner Participant accomplished prior to December 29, 2001Default; Taxes imposed on a Tax Indemnitee that would not have been imposed but for the creation or existence of any Owner a Lessor's Lien or Owner Participant's Lien attributable to such Tax Indemnitee’s Lien; Taxes that are included as a part (for the avoidance of the cost of the Facility; Taxes imposed on the Lessor Manager or the Indenture Trustee that are based on or measured by the fees or other compensation received by the Lessor Manager or Indenture Trustee for acting in their respective capacities. With respect to the Owner Participantdoubt, Taxes for which the Facility Lessee is obligated to indemnify the Owner Participant under the Tax Indemnity Agreement (or which are expressly excluded from indemnification thereunder); 57 Taxes that are imposed on a Tax Indemnitee (other than a Certificateholder Indemnitee) resulting from the Owner Lessor not being treated as a grantor trust or other conduit entity for federal, state or local income tax purposes, but only to the extent such Taxes exceed Taxes indemnified hereunder that otherwise would have been imposed and are otherwise indemnifiable; Taxes imposed on a Tax Indemnitee that are attributable to the failure of such Tax Indemnitee to comply with certification, information, documentation, reporting or other similar requirements concerning the nationality, residence, identity or connection with the jurisdiction imposing such Taxes; provided that the foregoing exclusion shall only apply if such compliance is required by statute or regulation of the jurisdiction imposing such Taxes as a precondition to relief or exemption from or reduction in such Taxes, such Tax Indemnitee is eligible to comply with such requirement, the Facility Lessee shall have given such Tax Indemnitee timely written notice of such requirement and the Tax Indemnitee shall have determined in good faith that compliance with any such requirement shall not result in any identified non-immaterial adverse effect to its interests or to those of its Affiliates; Taxes consisting of including interest, penalties, fines and additions to tax tax) imposed on such Indemnitee as a result of such Indemnitee’s failure to file any return or fines report that it is legally required to file or to pay any Tax it is legally required to pay unless such failure results from Lessee’s breach of its obligations in any Operative Document; Taxes to the extent resulting from a failure of such Tax Indemnitee to properly provide any certificate, documentation or other evidence requested in writing by Lessee and timely file returns required under applicable Law as required by a taxing authority unless such failure is attributable condition to the Facility Lessee not providing information that it is expressly required allowance of a reduction in such Tax, but only if such Indemnitee was legally eligible to provide under the Operative Documentssuch certificate, documentation or other evidence without, in such Indemnitee’s good faith judgement, any adverse consequence (other than de minimis costs) to such Indemnitee for which Lessee has not indemnified it in a manner reasonably satisfactory to such Indemnitee; Taxes imposed on any Tax Indemnitee resulting from an amendment, modification, supplement to or waiver of any provision of, any Operative Document which amendment, modification, supplement or waiver was not requested by or consented to by the Facility Lessee, and as to which the Facility Lessee is not a party and the Tax Indemnitee (or, in the case of the Owner Participant, the Owner Lessor if acting at the express direction of the Owner Participant or any Related Party) is a party, provided that this exclusion shall not apply if such amendment, modification, supplement or waiver (A) was required by applicable law or the Operative Documents, (B) may be necessary or appropriate to, and is in conformity with, any amendment to any Operative Document requested by the Facility Lessee in writing, or (C) was expressly consented to by a Calpine Party in writing; Taxes imposed as a result of, or of its engaging in connection with, any "a “prohibited transaction," ” within the meaning of Section 4975 of the Code, Section 406 Code or under Subtitle B of ERISA Title I of ERISA; or Taxes that are imposed solely as a result of or otherwise arise in connection with any comparable laws of any Governmental Entity, engaged in by any Tax Indemnitee (which for this purpose shall include any ERISA Affiliate thereof) resulting from financing arrangement between the breach by such Tax Indemnitee of Lessor or any of its representations or warranties contained in Section 3.4(g) or Section 8.2 of the Participation Agreement; Taxes Affiliates and any Financing Party with respect to the extent such Taxes would not have been imposed on a Tax Indemnitee if such Tax Indemnitee were a United States Person; and Taxes imposed that would not have been imposed on a Tax Indemnitee but for the activities an interest in the taxing jurisdiction Aircraft. Xxxxxxxxxx XX-600-2C10; MSN 10070 No Reduction for Withholding. Lessee agrees that all amounts payable by Lessee (or by any other Person on account of such Tax Indemnitee or any Affiliate thereof unrelated obligation of Lessee) pursuant to the transactions contemplated by the Operative Documents shall be paid without any deduction or withholding on account of any Taxes, monetary transfer fees, or other than Taxes that are charges or are in the nature withholdings of salesany nature, transaction privilege taxes, use, rental or license taxes, value added taxes (except to the extent value added taxes are imposed that the deduction or withholding of any Tax is required by applicable Law, in clear which event Lessee shall (i) if such Tax is not an Excluded Tax, pay to the Person entitled to receive such payment (the "Payee") such additional amount as is necessary so that the Payee receives, after such deduction or withholding (including any withholding with respect to such additional amount), an amount equal to the amount that the Payee would have received if such deduction or withholding had not been made and direct substitution for income taxes(ii) deliver to Lessor within sixty (60) days after the date of such payment an official receipt of the relevant taxing authority showing that Lessee paid to such taxing authority the full amount of the Tax required to be deducted or property taxeswithheld.

Excluded Taxes. The indemnity provided for in paragraph (a) above shall not extend to any of the following Taxes (the "Excluded Taxes"): Taxes imposed by the United States federal government or any state or local government, any political subdivision of any of the foregoing, imposed on, based on or measured by gross or net income, receipts, capital gain, capital or net worth, or conduct of business (other than, in each case, Taxes that are or are in the nature of sales, transaction privilege taxes, use, rental, license, value added (to the extent value added taxes are not imposed in clear and direct substitution for income taxes) or property taxes) ("Income Taxes"), including any such Taxes collected by way of withholding, minimum or alternative minimum taxes, and franchise taxes; provided that this exclusion (i) shall not affect any express requirement that payments be made on an "after-tax" basis; Taxes imposed on a Tax Indemnitee other than a Certificateholder Indemnitee that are attributable to any act, event or omission by such Tax Indemnitee that occurs after expiration or other termination of the Facility Lease and surrender of the Undivided Interest to the Owner Lessor or its successors (or in the case of a Certificateholder Indemnitee, Taxes imposed for any period after the repayment of the Lease Debt) in accordance with the Facility Lease, (as opposed to any act, event or omission occurring prior to or simultaneous with such expiration, termination or surrender (or, in the case of a Certificateholder Indemnitee, such repayment)), provided that this exclusion shall not apply so long as a Lease Event of Default shall have occurred and be continuing; Taxes imposed on a Tax Indemnitee that are attributable to the gross negligence or willful misconduct of such Tax Indemnitee, unless such negligence or misconduct is imputed to such Tax Indemnitee solely as a result of its participation in the transactions contemplated by the Operative Documents and the South Point Ground FILOT Lease (giving effect to its assignment to the Owner Lessor pursuant to the Assignment Agreement) and not as a result of any action or inaction by such Tax Indemnitee; Taxes imposed on a Tax Indemnitee arising from a breach by such Tax Indemnitee of any of its representations, warranties or covenants under any Operative Document except to the extent attributable to any breach by the Facility Lessee or any other Calpine Party of any covenant, representation or warranty contained in any Operative Document; Taxes (A) that are attributable to any voluntary direct or indirect assignment, sale, transfer or other voluntary disposition or an involuntary direct or indirect transfer or disposition arising out of or caused by a bankruptcy or similar proceeding for relief of debtors in which such Tax Indemnitee is a debtor or a foreclosure by a creditor of (1) in the case of the Owner Lessor or the Owner Participant, the Owner Participant of all or part of its Member Interest or Undivided Interest, (2) in the case of the Owner Lessor or the Owner Participant, the Owner Lessor of all or part of its interest in the Facility or the Facility Site (other than to a successor Lessor Manager), or (3) in the case of the Indenture Trustee, the Indenture Trustee of any interest in the Lease Debt or the Indenture Estate, or (4) in the case of the Owner Lessor or the Owner Participant any direct or indirect interest in the Owner Lessor or the Owner Participant, including by reason of an election made pursuant to Section 338 of the Code, in each case to the extent imposed by reason of any transfer described in this clause (v)(A), or (B) to the extent that, under law in effect on the date of the transfer such Taxes exceed the amount of Taxes that would be indemnified hereunder had there been no such assignment, sale, transfer or other voluntary disposition, unless such transfer or disposition occurs during the continuance of a Lease Event of Default or is otherwise pursuant to the Facility Lessee's exercise of its rights under the Operative Documents; provided that this exclusion shall not apply with respect to any initial syndication of interests in the Owner Participant accomplished prior to December 29, 2001; Taxes imposed on a Tax Indemnitee that would not have been imposed but for the creation or existence of any Owner Lessor's Lien or Owner Participant's Lien attributable to such Tax Indemnitee; Taxes that are included as a part of the cost of the Facility; Taxes imposed on the Lessor Manager or the Indenture Trustee that are based on or measured by the fees or other compensation received by the Lessor Manager or Indenture Trustee for acting in their respective capacities. With respect to the Owner Participant, Taxes for which the Facility Lessee is obligated to indemnify the Owner Participant under the Tax Indemnity Agreement (or which are expressly excluded from indemnification thereunder); 57 Taxes that are imposed on a Tax Indemnitee (other than a Certificateholder Indemnitee) resulting from the Owner Lessor not being treated as a grantor trust or other conduit entity for federal, state or local income tax purposes, but only to the extent such Taxes exceed Taxes indemnified hereunder that otherwise would have been imposed and are otherwise indemnifiable; Taxes imposed on a Tax Indemnitee that are attributable to the failure of such Tax Indemnitee to comply with certification, information, documentation, reporting or other similar requirements concerning the nationality, residence, identity or connection with the jurisdiction imposing such Taxes; provided that the foregoing exclusion shall only apply if such compliance is required by statute or regulation of the jurisdiction imposing such Taxes as a precondition to relief or exemption from or reduction in such Taxes, such Tax Indemnitee is eligible to comply with such requirement, the Facility Lessee shall have given such Tax Indemnitee timely written notice of such requirement and the Tax Indemnitee shall have determined in good faith that compliance with any such requirement shall not result in any identified non-immaterial adverse effect to its interests or to those of its Affiliates; Taxes consisting of interest, penalties, additions to tax or fines resulting from a failure of such Tax Indemnitee to properly and timely file returns as required by a taxing authority unless such failure is attributable to the Facility Lessee not providing information that it is expressly required to provide under the Operative Documents; Taxes imposed on any Tax Indemnitee resulting from an amendment, modification, supplement to or waiver of any provision of, any Operative Document which amendment, modification, supplement or waiver was not requested by or consented to by the Facility Lessee, and as to which the Facility Lessee is not a party and the Tax Indemnitee (or, in the case of the Owner Participant, the Owner Lessor if acting at the express direction of the Owner Participant or any Related Party) is a party, provided that this exclusion shall not apply if such amendment, modification, supplement or waiver (A) was required by applicable law or the Operative Documents, (B) may be necessary or appropriate to, and is in conformity with, any amendment to any Operative Document requested by the Facility Lessee in writing, or (C) was expressly consented to by a Calpine Party in writing; Taxes imposed as a result of, or in connection with, any "prohibited transaction," within the meaning of Section 4975 of the Code, Section 406 of ERISA or any comparable laws of any Governmental Entity, engaged in by any Tax Indemnitee (which for this purpose shall include any ERISA Affiliate thereof) resulting from the breach by such Tax Indemnitee of any of its representations or warranties contained in Section 3.4(g) or Section 8.2 of the Participation Agreement; Taxes to the extent such Taxes would not have been imposed on a Tax Indemnitee if such Tax Indemnitee were a United States Person; and Taxes imposed that would not have been imposed on a Tax Indemnitee but for the activities in the taxing jurisdiction of such Tax Indemnitee or any Affiliate thereof unrelated to the transactions contemplated by the Operative Documents other than Taxes that are or are in the 60 nature of sales, transaction privilege taxes, use, rental or license taxes, taxes or value added taxes (except to the extent value added taxes are imposed in clear and direct substitution for income taxes) or property taxes.

Excluded Taxes. The indemnity provided for in paragraph (a) above shall not extend to any of the following Taxes (the "Excluded Taxes"): Taxes imposed by the United States federal government or any state or local government, any political subdivision of any of the foregoing, imposed on, based on or measured by gross or net income, receipts, capital gain, capital or net worth, or conduct of business (other than, in each case, Taxes that are or are in the nature of sales, transaction privilege taxes, use, rental, license, value added (to the extent value added taxes are not imposed in clear and direct substitution for income taxes) or property taxes) ("Income Taxes"), including any such Taxes collected by way of withholding, minimum or alternative minimum taxes, and franchise taxes; provided that this exclusion (i) shall not affect any express requirement that payments be made on an "after-tax" basis; Taxes imposed on a Tax Indemnitee other than a Certificateholder Indemnitee that are attributable to any act, event or omission by such Tax Indemnitee that occurs after expiration or other termination of the Facility Lease and surrender of the Undivided Interest to the Owner Lessor or its successors (or in the case of a Certificateholder Indemnitee, Taxes imposed for any period after the repayment of the Lease Debt) in accordance with the Facility Lease, (as opposed to any act, event or omission occurring prior to or simultaneous with such expiration, termination or surrender (or, in the case of a Certificateholder Indemnitee, such repayment)), provided that this exclusion shall not apply so long as a Lease Event of Default shall have occurred and be continuing; Taxes imposed on a Tax Indemnitee that are attributable to the gross negligence or willful misconduct of such Tax Indemnitee, unless such negligence or misconduct is imputed to such Tax Indemnitee solely as a result of its participation in the transactions contemplated by the Operative Documents and the South Point Ground Lease (giving effect to its assignment to the Owner Lessor pursuant to the Assignment Agreement) and not as a result of any action or inaction by such Tax Indemnitee; Taxes imposed on a Tax Indemnitee arising from a breach by such Tax Indemnitee of any of its representations, warranties or covenants under any Operative Document except to the extent attributable to any breach by the Facility Lessee or any other Calpine Party of any covenant, representation or warranty contained in any Operative Document; Taxes (A) that are attributable to any voluntary direct or indirect assignment, sale, transfer or other voluntary disposition or an involuntary direct or indirect transfer or disposition arising out of or caused by a bankruptcy or similar proceeding for relief of debtors in which such Tax Indemnitee is a debtor or a foreclosure by a creditor of (1) in the case of the Owner Lessor or the Owner Participant, the Owner Participant of all or part of its Member Interest or Undivided Interest, (2) in the case of the Owner Lessor or the Owner Participant, the Owner Lessor of all or part of its interest in the Facility or the Facility Site (other than to a successor Lessor Manager), or (3) in the case of the Indenture Trustee, the Indenture Trustee of any interest in the Lease Debt or the Indenture Estate, or (4) in the case of the Owner Lessor or the Owner Participant any direct or indirect interest in the Owner Lessor or the Owner Participant, including by reason of an election made pursuant to Section 338 of the Code, in each case to the extent imposed by reason of any transfer described in this clause (v)(A), or (B) to the extent that, under law in effect on the date of the transfer such Taxes exceed the amount of Taxes that would be indemnified hereunder had there been no such assignment, sale, transfer or other voluntary disposition, unless such transfer or disposition occurs during the continuance of a Lease Event of Default or is otherwise pursuant to the Facility Lessee's exercise of its rights under the Operative Documents; provided that this exclusion shall not apply with respect to any initial syndication of interests in the Owner Participant accomplished prior to December 29, 2001; Taxes imposed on a Tax Indemnitee that would not have been imposed but for the creation or existence of any Owner Lessor's Lien or Owner Participant's Lien attributable to such Tax Indemnitee; Taxes that are included as a part of the cost of the Facility; Taxes imposed on the Lessor Manager or the Indenture Trustee that are based on or measured by the fees or other compensation received by the Lessor Manager or Indenture Trustee for acting in their respective capacities. With respect to the Owner Participant, Taxes for which the Facility Lessee is obligated to indemnify the Owner Participant under the Tax Indemnity Agreement (or which are expressly excluded from indemnification thereunder); 57 Taxes that are imposed on a Tax Indemnitee (other than a Certificateholder Indemnitee) resulting from the Owner Lessor not being treated as a grantor trust or other conduit entity for federal, state or local income tax purposes, but only to the extent such Taxes exceed Taxes indemnified hereunder that otherwise would have been imposed and are otherwise indemnifiable; Taxes imposed on a Tax Indemnitee that are attributable to the failure of such Tax Indemnitee to comply with certification, information, documentation, reporting or other similar requirements concerning the nationality, residence, identity or connection with the jurisdiction imposing such Taxes; provided that the foregoing exclusion shall only apply if such compliance is required by statute or regulation of the jurisdiction imposing such Taxes as a precondition to relief or exemption from or reduction in such Taxes, such Tax Indemnitee is eligible to comply with such requirement, the Facility Lessee shall have given such Tax Indemnitee timely written notice of such requirement and the Tax Indemnitee shall have determined in good faith that compliance with any such requirement shall not result in any identified non-immaterial adverse effect to its interests or to those of its Affiliates; Taxes consisting of interest, penalties, additions to tax or fines resulting from a failure of such Tax Indemnitee to properly and timely file returns as required by a taxing authority unless such failure is attributable to the Facility Lessee not providing information that it is expressly required to provide under the Operative Documents; Taxes imposed on any Tax Indemnitee resulting from an amendment, modification, supplement to or waiver of any provision of, any Operative Document which amendment, modification, supplement or waiver was not requested by or consented to by the Facility Lessee, and as to which the Facility Lessee is not a party and the Tax Indemnitee (or, in the case of the Owner Participant, the Owner Lessor if acting at the express direction of the Owner Participant or any Related Party) is a party, provided that this exclusion shall not apply if such amendment, modification, supplement or waiver (A) was required by applicable law or the Operative Documents, (B) may be necessary or appropriate to, and is in conformity with, any amendment to any Operative Document requested by the Facility Lessee in writing, or (C) was expressly consented to by a Calpine Party in writing; Taxes imposed as a result of, or in connection with, any "prohibited transaction," within the meaning of Section 4975 of the Code, Section 406 of ERISA or any comparable laws of any Governmental Entity, engaged in by any Tax Indemnitee (which for this purpose shall include any ERISA Affiliate thereof) resulting from the breach by such Tax Indemnitee of any of its representations or warranties contained in Section 3.4(g) or Section 8.2 of the Participation Agreement; Taxes to the extent such Taxes would not have been imposed on a Tax Indemnitee if such Tax Indemnitee were a United States Person; and Taxes imposed that would not have been imposed on a Tax Indemnitee but for the activities in the taxing jurisdiction of such Tax Indemnitee or any Affiliate thereof unrelated to the transactions contemplated by the Operative Documents other than Taxes that are or are in the nature of sales, transaction privilege taxes, use, rental or license taxes, value added taxes (except to the extent value added taxes are imposed in clear and direct substitution for income taxes) or property taxes.

Excluded Taxes. The indemnity provided for in paragraph (a) above shall not extend to any of the following Taxes (the "Excluded Taxes"): Taxes imposed by the United States federal government or any state or local government, any political subdivision of any of the foregoing, imposed on, based on or measured by gross or net income, receipts, capital gain, capital or net worth, or conduct of business (other than, in each case, Taxes that are or are in the nature of sales, transaction privilege taxes, use, rental, license, value added (to the extent value added taxes are not imposed in clear and direct substitution for income taxes) or property taxes) ("Income Taxes"), including any such Taxes collected by way of withholding, minimum or alternative minimum taxes, and franchise taxes; provided that this exclusion (i) shall not affect any express requirement that payments be made on an "after-tax" basis; Taxes imposed on a Tax Indemnitee other than a Certificateholder Indemnitee that are attributable to any act, event or omission by such Tax Indemnitee that occurs after expiration or other termination of the Facility Lease and surrender of the Undivided Interest to the Owner Lessor or its successors (or in the case of a Certificateholder Indemnitee, Taxes imposed for any period after the repayment of the Lease Debt) in accordance with the Facility Lease, (as opposed to any act, event or omission occurring prior to or simultaneous with such expiration, termination or surrender (or, in the case of a Certificateholder Indemnitee, such repayment)), provided that this exclusion shall not apply so long as a Lease Event of Default shall have occurred and be continuing; Taxes imposed on a Tax Indemnitee that are attributable to the gross negligence or willful misconduct of such Tax Indemnitee, unless such negligence or misconduct is imputed to such Tax Indemnitee solely as a result of its participation in the transactions contemplated by the Operative Documents and the South Point Ground Lease (giving effect to its assignment to the Owner Lessor pursuant to the Assignment Agreement) and not as a result of any action or inaction by such Tax Indemnitee; Taxes imposed on a Tax Indemnitee arising from a breach by such Tax Indemnitee of any of its representations, warranties or covenants under any Operative Document except to the extent attributable to any breach by the Facility Lessee or any other Calpine Party of any covenant, representation or warranty contained in any Operative Document; Taxes (ATaxes(A) that are attributable to any voluntary direct or indirect assignment, sale, transfer or other voluntary disposition or an involuntary direct or indirect transfer or disposition arising out of or caused by a bankruptcy or similar proceeding for relief of debtors in which such Tax Indemnitee is a debtor or a foreclosure by a creditor of (1) in the case of the Owner Lessor or the Owner Participant, the Owner Participant of all or part of its Member Interest or Undivided Interest, (2) in the case of the Owner Lessor or the Owner Participant, the Owner Lessor of all or part of its interest in the Facility or the Facility Site (other than to a successor Lessor Manager), or (3) in the case of the Indenture Trustee, the Indenture Trustee of any interest in the Lease Debt or the Indenture Estate, or (4) in the case of the Owner Lessor or the Owner Participant any direct or indirect interest in the Owner Lessor or the Owner Participant, including by reason of an election made pursuant to Section 338 of the Code, in each case to the extent imposed by reason of any transfer described in this clause (v)(A), or (B) to the extent that, under law in effect on the date of the transfer such Taxes exceed the amount of Taxes that would be indemnified hereunder had there been no such assignment, sale, transfer or other voluntary disposition, unless such transfer or disposition occurs during the continuance of a Lease Event of Default or is otherwise pursuant to the Facility Lessee's exercise of its rights under the Operative Documents; provided that this exclusion shall not apply with respect to any initial syndication of interests in the Owner Participant accomplished prior to December 29, 2001; Taxes imposed on a Tax Indemnitee that would not have been imposed but for the creation or existence of any Owner Lessor's Lien or Owner Participant's Lien attributable to such Tax Indemnitee; Taxes that are included as a part of the cost of the Facility; Taxes imposed on the Lessor Manager or the Indenture Trustee that are based on or measured by the fees or other compensation received by the Lessor Manager or Indenture Trustee for acting in their respective capacities. With respect to the Owner Participant, Taxes for which the Facility Lessee is obligated to indemnify the Owner Participant under the Tax Indemnity Agreement (or which are expressly excluded from indemnification thereunder); 57 Taxes that are imposed on a Tax Indemnitee (other than a Certificateholder Indemnitee) resulting from the Owner Lessor not being treated as a grantor trust or other conduit entity for federal, state or local income tax purposes, but only to the extent such Taxes exceed Taxes indemnified hereunder that otherwise would have been imposed and are otherwise indemnifiable; Taxes imposed on a Tax Indemnitee that are attributable to the failure of such Tax Indemnitee to comply with certification, information, documentation, reporting or other similar requirements concerning the nationality, residence, identity or connection with the jurisdiction imposing such Taxes; provided that the foregoing exclusion shall only apply if such compliance is required by statute or regulation of the jurisdiction imposing such Taxes as a precondition to relief or exemption from or reduction in such Taxes, such Tax Indemnitee is eligible to comply with such requirement, the Facility Lessee shall have given such Tax Indemnitee timely written notice of such requirement and the Tax Indemnitee shall have determined in good faith that compliance with any such requirement shall not result in any identified non-immaterial adverse effect to its interests or to those of its Affiliates; Taxes consisting of interest, penalties, additions to tax or fines resulting from a failure of such Tax Indemnitee to properly and timely file returns as required by a taxing authority unless such failure is attributable to the Facility Lessee not providing information that it is expressly required to provide under the Operative Documents; Taxes imposed on any Tax Indemnitee resulting from an amendment, modification, supplement to or waiver of any provision of, any Operative Document which amendment, modification, supplement or waiver was not requested by or consented to by the Facility Lessee, and as to which the Facility Lessee is not a party and the Tax Indemnitee (or, in the case of the Owner Participant, the Owner Lessor if acting at the express direction of the Owner Participant or any Related Party) is a party, provided that this exclusion shall not apply if such amendment, modification, supplement or waiver (A) was required by applicable law or the Operative Documents, (B) may be necessary or appropriate to, and is in conformity with, any amendment to any Operative Document requested by the Facility Lessee in writing, or (C) was expressly consented to by a Calpine Party in writing; Taxes imposed as a result of, or in connection with, any "prohibited transaction," within the meaning of Section 4975 of the Code, Section 406 of ERISA or any comparable laws of any Governmental Entity, engaged in by any Tax Indemnitee (which for this purpose shall include any ERISA Affiliate thereof) resulting from the breach by such Tax Indemnitee of any of its representations or warranties contained in Section 3.4(g) or Section 8.2 of the Participation Agreement; Taxes to the extent such Taxes would not have been imposed on a Tax Indemnitee if such Tax Indemnitee were a United States Person; and Taxes imposed that would not have been imposed on a Tax Indemnitee but for the activities in the taxing jurisdiction of such Tax Indemnitee or any Affiliate thereof unrelated to the transactions contemplated by the Operative Documents other than Taxes that are or are in the nature of sales, transaction privilege taxes, use, rental or license taxes, value added taxes (except to the extent value added taxes are imposed in clear and direct substitution for income taxes) or property taxes.

Excluded Taxes. The indemnity provided for in paragraph (a) above shall not extend to any of the following Taxes (the "Excluded Taxes"): Taxes imposed by the United States federal government or any state or local government, any political subdivision of any of the foregoing, imposed on, based on or measured by gross or net income, receipts, capital gain, capital or net worth, or conduct of business (other than, in each case, Taxes that are or are in the nature of sales, transaction privilege taxes, use, rental, license, value added (to the extent value added taxes are not imposed in clear and direct substitution for income taxes) or property taxes) ("Income Taxes"), including any such Taxes collected by way of withholding, minimum or alternative minimum taxes, and franchise taxes; provided that this exclusion (i) shall not affect any express requirement that payments be made on an "after-tax" basis; Taxes imposed on a Tax Indemnitee other than a Certificateholder Indemnitee that are attributable to any act, event or omission by such Tax Indemnitee that occurs after expiration or other termination of the Facility Lease and surrender of the Undivided Interest to the Owner Lessor or its successors (or in the case of a Certificateholder Indemnitee, Taxes imposed for any period after the repayment of the Lease Debt) in accordance with the Facility Lease, (as opposed to any act, event or omission occurring prior to or simultaneous with such expiration, termination or surrender (or, in the case of a Certificateholder Indemnitee, such repayment)), provided that this exclusion shall not apply so long as a Lease Event of Default shall have occurred and be continuing; Taxes imposed on a Tax Indemnitee that are attributable to the gross negligence or willful misconduct of such Tax Indemnitee, unless such negligence or misconduct is imputed to such Tax Indemnitee solely as a result of its participation in the transactions contemplated by the Operative Documents and the South Point Ground FILOT Lease (giving effect to its assignment to the Owner Lessor pursuant to the Assignment Agreement) and not as a result of any action or inaction by such Tax Indemnitee; Taxes imposed on a Tax Indemnitee arising from a breach by such Tax Indemnitee of any of its representations, warranties or covenants under any Operative Document except to the extent attributable to any breach by the Facility Lessee or any other Calpine Party of any covenant, representation or warranty contained in any Operative Document; Taxes (ATaxes(A) that are attributable to any voluntary direct or indirect assignment, sale, transfer or other voluntary disposition or an involuntary direct or indirect transfer or disposition arising out of or caused by a bankruptcy or similar proceeding for relief of debtors in which such Tax Indemnitee is a debtor or a foreclosure by a creditor of (1) in the case of the Owner Lessor or the Owner Participant, the Owner Participant of all or part of its Member Interest or Undivided Interest, (2) in the case of the Owner Lessor or the Owner Participant, the Owner Lessor of all or part of its interest in the Facility or the Facility Site (other than to a successor Lessor Manager), or (3) in the case of the Indenture Trustee, the Indenture Trustee of any interest in the Lease Debt or the Indenture Estate, or (4) in the case of the Owner Lessor or the Owner Participant any direct or indirect interest in the Owner Lessor or the Owner Participant, including by reason of an election made pursuant to Section 338 of the Code, in each case to the extent imposed by reason of any transfer described in this clause (v)(A), or (B) to the extent that, under law in effect on the date of the transfer such Taxes exceed the amount of Taxes that would be indemnified hereunder had there been no such assignment, sale, transfer or other voluntary disposition, unless such transfer or disposition occurs during the continuance of a Lease Event of Default or is otherwise pursuant to the Facility Lessee's exercise of its rights under the Operative Documents; provided that this exclusion shall not apply with respect to any initial syndication of interests in the Owner Participant accomplished prior to December 29, 2001; Taxes imposed on a Tax Indemnitee that would not have been imposed but for the creation or existence of any Owner Lessor's Lien or Owner Participant's Lien attributable to such Tax Indemnitee; Taxes that are included as a part of the cost of the Facility; Taxes imposed on the Lessor Manager or the Indenture Trustee that are based on or measured by the fees or other compensation received by the Lessor Manager or Indenture Trustee for acting in their respective capacities. With respect to the Owner Participant, Taxes for which the Facility Lessee is obligated to indemnify the Owner Participant under the Tax Indemnity Agreement (or which are expressly excluded from indemnification thereunder); 57 Taxes that are imposed on a Tax Indemnitee (other than a Certificateholder Indemnitee) resulting from the Owner Lessor not being treated as a grantor trust or other conduit entity for federal, state or local income tax purposes, but only to the extent such Taxes exceed Taxes indemnified hereunder that otherwise would have been imposed and are otherwise indemnifiable; Taxes imposed on a Tax Indemnitee that are attributable to the failure of such Tax Indemnitee to comply with certification, information, documentation, reporting or other similar requirements concerning the nationality, residence, identity or connection with the jurisdiction imposing such Taxes; provided that the foregoing exclusion shall only apply if such compliance is required by statute or regulation of the jurisdiction imposing such Taxes as a precondition to relief or exemption from or reduction in such Taxes, such Tax Indemnitee is eligible to comply with such requirement, the Facility Lessee shall have given such Tax Indemnitee timely written notice of such requirement and the Tax Indemnitee shall have determined in good faith that compliance with any such requirement shall not result in any identified non-immaterial adverse effect to its interests or to those of its Affiliates; Taxes consisting of interest, penalties, additions to tax or fines resulting from a failure of such Tax Indemnitee to properly and timely file returns as required by a taxing authority unless such failure is attributable to the Facility Lessee not providing information that it is expressly required to provide under the Operative Documents; Taxes imposed on any Tax Indemnitee resulting from an amendment, modification, supplement to or waiver of any provision of, any Operative Document which amendment, modification, supplement or waiver was not requested by or consented to by the Facility Lessee, and as to which the Facility Lessee is not a party and the Tax Indemnitee (or, in the case of the Owner Participant, the Owner Lessor if acting at the express direction of the Owner Participant or any Related Party) is a party, provided that this exclusion shall not apply if such amendment, modification, supplement or waiver (A) was required by applicable law or the Operative Documents, (B) may be necessary or appropriate to, and is in conformity with, any amendment to any Operative Document requested by the Facility Lessee in writing, or (C) was expressly consented to by a Calpine Party in writing; Taxes imposed as a result of, or in connection with, any "prohibited transaction," within the meaning of Section 4975 of the Code, Section 406 of ERISA or any comparable laws of any Governmental Entity, engaged in by any Tax Indemnitee (which for this purpose shall include any ERISA Affiliate thereof) resulting from the breach by such Tax Indemnitee of any of its representations or warranties contained in Section 3.4(g) or Section 8.2 of the Participation Agreement; Taxes to the extent such Taxes would not have been imposed on a Tax Indemnitee if such Tax Indemnitee were a United States Person; and Taxes imposed that would not have been imposed on a Tax Indemnitee but for the activities in the taxing jurisdiction of such Tax Indemnitee or any Affiliate thereof unrelated to the transactions contemplated by the Operative Documents other than Taxes that are or are in the 60 nature of sales, transaction privilege taxes, use, rental or license taxes, taxes or value added taxes (except to the extent value added taxes are imposed in clear and direct substitution for income taxes) or property taxes.

Excluded Taxes. The indemnity provided for in paragraph Lessee shall have no obligation under Section 21.1(a) or (ac) above shall not extend to indemnify an Indemnitee for: Taxes imposed by withholding or otherwise, based on, or measured by the income (including gross income), earnings, receipts, capital, franchise, excess profits or conduct of business of such Indemnitee or any of the following its Affiliates (collectively “Income Taxes”), including, without limitation, income Taxes, withholding Taxes, capital gains Taxes, minimum and alternative minimum Taxes, accumulated earnings Taxes, personal holding company Taxes and branch profits and branch interest Taxes (but, for clarity, not including (i) sales, use and value added Taxes, (ii) rental Taxes not in the "Excluded nature of an income Tax, (iii) property and ad valorem Taxes"): Taxes , and (iv) license or similar Taxes) imposed by the United States federal government or States, any state or local government, or any political subdivision foreign government; provided, however, that in the case of any Taxes imposed by any Governmental Authority located outside the United States, the exclusion of Income Taxes under this clause (g) shall not apply if and to the extent that such Income Taxes are imposed solely as a result of (w) the inaccuracy or breach of any of the foregoingrepresentations, imposed onwarranties, based on covenants or measured by gross or net income, receipts, capital gain, capital or net worth, or conduct agreements of business (other than, in each case, Taxes that are or are Lessee in the nature Operative Documents, (x) an Event of salesDefault, transaction privilege taxes(y) the operation, use, rentalpresence or registration of any Item of Equipment in such jurisdiction or (z) the presence of Lessee or Lessee making payments (or having been deemed to have made payments) from or performing any other actions in such jurisdiction; any Tax imposed on or with respect to any sale or other transfer by such Indemnitee of such Indemnitee's interest in the Aircraft pursuant to Section 25.2 or otherwise, license, value added (to the extent value added taxes are not imposed in clear and direct substitution for income taxes) or property taxes) ("Income Taxes"), including any such Taxes collected by way of withholding, minimum or alternative minimum taxes, and franchise taxes; provided that the exclusion in this exclusion clause (iii) shall not affect any express requirement that payments be made on an "after-tax" basis; Taxes imposed on a Tax Indemnitee other than a Certificateholder Indemnitee that are attributable apply to any act, event sale or omission by such Tax Indemnitee transfer that occurs after expiration or other termination of the Facility Lease and surrender of the Undivided Interest to the Owner Lessor or its successors (or in the case of a Certificateholder Indemnitee, Taxes imposed for any period after the repayment of the Lease DebtA) in accordance connection with the Facility Lease, (as opposed exercise of remedies pursuant to any act, event or omission occurring prior to or simultaneous with such expiration, termination or surrender (or, in the case of a Certificateholder Indemnitee, such repayment)), provided that this exclusion shall not apply so long as a Lease an Event of Default shall have occurred and be continuingDefault, an Event of Loss, or any maintenance, repair, overhaul, pooling, interchange, exchange, removal, replacement, substitution, modification, improvement, or alteration of any Item of Equipment, or (B) at Lessee's request, or (C) pursuant to a requirement in any Operative Document or any applicable Law; Taxes imposed on a any Tax Indemnitee that are attributable to the gross negligence or willful misconduct of such Tax Indemnitee, unless such negligence Indemnitee or misconduct is imputed to such Tax Indemnitee solely as a result any of its participation Affiliates; Taxes in respect of any period (i) prior to commencement of the transactions contemplated by Lease or (ii) after the Operative Documents and expiration or earlier termination of the South Point Ground Lease (giving effect to its assignment with respect to the Owner Aircraft and delivery of possession of such Aircraft to Lessor, or placement in storage of such Aircraft at the request of Lessor pursuant (or, if such Aircraft is not so delivered or placed in storage, the discharge in full of Lessee’s obligations to pay all amounts then payable by Lessee under the Lease), provided, however, that clause (ii) of this exclusion (a) shall not apply to any Taxes accruing or otherwise related to occurrences or matters arising prior to or simultaneously with the events described in clause (ii) of this exclusion or to Taxes relating to payments Xxxxxxxxxx XX-600-2C10; MSN 10070 made by Lessee to or for the benefit of such Indemnitee under the Lease following the events described in clause (ii) of this exclusion; Taxes that are attributable to the Assignment Agreement) and not as a result of any action or inaction by such Tax Indemnitee; Taxes imposed on a Tax Indemnitee arising from a breach by such Tax Indemnitee or any of its Affiliates of any of its representations, warranties or covenants under in any Operative Document except to the extent attributable to that such breach arises as a result of any breach by the Facility Lessee of a representation, warranty or any other Calpine Party of any covenant, representation or warranty contained covenant in any Operative Document; Taxes resulting from the failure of such Indemnitee to comply with its obligations under Section 21.5 hereof except to the extent that failure arises as a result of any breach by Lessee of a representation, warranty or covenant in any Operative Document or Lessee’s obligations under Section 21.5; Taxes resulting from the failure of such Indemnitee to be a “United States person” within the meaning of Section 7701(a)(30) of the Code; Taxes imposed as a result of activities of such Indemnitee in the jurisdiction imposing such Taxes unrelated to the transactions (including the exercise of remedies) contemplated by the Lease; Taxes imposed against a transferee of such Indemnitee (or a subsequent transferee) to the extent of the excess of such Taxes over the amount of such Taxes that would have been imposed had there not been such a transfer; provided, however, that this clause (i) shall not apply to (A) that are attributable the extent necessary to make any voluntary direct payment on an After-Tax Basis as described in Section 21.4(c) hereof or indirect assignment, sale, (B) a transfer made in connection with any exercise by Lessor of its remedies under Article 24 hereof or other voluntary disposition or an involuntary direct or indirect transfer or disposition arising out of or caused by a bankruptcy or similar proceeding for relief of debtors in which such Tax Indemnitee is a debtor or a foreclosure by a creditor of (1) applicable Law in the case of the Owner Lessor or the Owner Participant, the Owner Participant of all or part of its Member Interest or Undivided Interest, (2) in the case of the Owner Lessor or the Owner Participant, the Owner Lessor of all or part of its interest in the Facility or the Facility Site (other than to a successor Lessor Manager), or (3) in the case of the Indenture Trustee, the Indenture Trustee of any interest in the Lease Debt or the Indenture Estate, or (4) in the case of the Owner Lessor or the Owner Participant any direct or indirect interest in the Owner Lessor or the Owner Participant, including by reason of an election made pursuant to Section 338 of the Code, in each case to the extent imposed by reason of any transfer described in this clause (v)(A), or (B) to the extent that, under law in effect on the date of the transfer such Taxes exceed the amount of Taxes that would be indemnified hereunder had there been no such assignment, sale, transfer or other voluntary disposition, unless such transfer or disposition occurs during the continuance of a Lease Event of Default or is otherwise pursuant to the Facility Lessee's exercise of its rights under the Operative Documents; provided that this exclusion shall not apply with respect to any initial syndication of interests in the Owner Participant accomplished prior to December 29, 2001Default; Taxes imposed on a Tax Indemnitee that would not have been imposed but for the creation or existence of any Owner a Lessor's Lien or Owner Participant's Lien attributable to such Tax Indemnitee’s Lien; Taxes that are included as a part (for the avoidance of the cost of the Facility; Taxes imposed on the Lessor Manager or the Indenture Trustee that are based on or measured by the fees or other compensation received by the Lessor Manager or Indenture Trustee for acting in their respective capacities. With respect to the Owner Participantdoubt, Taxes for which the Facility Lessee is obligated to indemnify the Owner Participant under the Tax Indemnity Agreement (or which are expressly excluded from indemnification thereunder); 57 Taxes that are imposed on a Tax Indemnitee (other than a Certificateholder Indemnitee) resulting from the Owner Lessor not being treated as a grantor trust or other conduit entity for federal, state or local income tax purposes, but only to the extent such Taxes exceed Taxes indemnified hereunder that otherwise would have been imposed and are otherwise indemnifiable; Taxes imposed on a Tax Indemnitee that are attributable to the failure of such Tax Indemnitee to comply with certification, information, documentation, reporting or other similar requirements concerning the nationality, residence, identity or connection with the jurisdiction imposing such Taxes; provided that the foregoing exclusion shall only apply if such compliance is required by statute or regulation of the jurisdiction imposing such Taxes as a precondition to relief or exemption from or reduction in such Taxes, such Tax Indemnitee is eligible to comply with such requirement, the Facility Lessee shall have given such Tax Indemnitee timely written notice of such requirement and the Tax Indemnitee shall have determined in good faith that compliance with any such requirement shall not result in any identified non-immaterial adverse effect to its interests or to those of its Affiliates; Taxes consisting of including interest, penalties, fines and additions to tax tax) imposed on such Indemnitee as a result of such Indemnitee’s failure to file any return or fines report that it is legally required to file or to pay any Tax it is legally required to pay unless such failure results from Lessee’s breach of its obligations in any Operative Document; Taxes to the extent resulting from a failure of such Tax Indemnitee to properly provide any certificate, documentation or other evidence requested in writing by Lessee and timely file returns required under applicable Law as required by a taxing authority unless such failure is attributable condition to the Facility Lessee not providing information that it is expressly required allowance of a reduction in such Tax, but only if such Indemnitee was legally eligible to provide under the Operative Documentssuch certificate, documentation or other evidence without, in such Indemnitee’s good faith judgement, any adverse consequence (other than de minimis costs) to such Indemnitee for which Lessee has not indemnified it in a manner reasonably satisfactory to such Indemnitee; Taxes imposed on any Tax Indemnitee resulting from an amendment, modification, supplement to or waiver of any provision of, any Operative Document which amendment, modification, supplement or waiver was not requested by or consented to by the Facility Lessee, and as to which the Facility Lessee is not a party and the Tax Indemnitee (or, in the case of the Owner Participant, the Owner Lessor if acting at the express direction of the Owner Participant or any Related Party) is a party, provided that this exclusion shall not apply if such amendment, modification, supplement or waiver (A) was required by applicable law or the Operative Documents, (B) may be necessary or appropriate to, and is in conformity with, any amendment to any Operative Document requested by the Facility Lessee in writing, or (C) was expressly consented to by a Calpine Party in writing; Taxes imposed as a result of, or of its engaging in connection with, any "a “prohibited transaction," ” within the meaning of Section 4975 of the Code, Section 406 Code or under Subtitle B of ERISA Title I of ERISA; or Xxxxxxxxxx XX-600-2C10; MSN 10070 Taxes that are imposed solely as a result of or otherwise arise in connection with any comparable laws of any Governmental Entity, engaged in by any Tax Indemnitee (which for this purpose shall include any ERISA Affiliate thereof) resulting from financing arrangement between the breach by such Tax Indemnitee of Lessor or any of its representations or warranties contained in Section 3.4(g) or Section 8.2 of the Participation Agreement; Taxes Affiliates and any Financing Party with respect to the extent such Taxes would not have been imposed on a Tax Indemnitee if such Tax Indemnitee were a United States Person; and Taxes imposed that would not have been imposed on a Tax Indemnitee but for the activities an interest in the taxing jurisdiction Aircraft. No Reduction for Withholding. Lessee agrees that all amounts payable by Lessee (or by any other Person on account of such Tax Indemnitee or any Affiliate thereof unrelated obligation of Lessee) pursuant to the transactions contemplated by the Operative Documents shall be paid without any deduction or withholding on account of any Taxes, monetary transfer fees, or other than Taxes that are charges or are in the nature withholdings of salesany nature, transaction privilege taxes, use, rental or license taxes, value added taxes (except to the extent value added taxes are imposed that the deduction or withholding of any Tax is required by applicable Law, in clear which event Lessee shall (i) if such Tax is not an Excluded Tax, pay to the Person entitled to receive such payment (the "Payee") such additional amount as is necessary so that the Payee receives, after such deduction or withholding (including any withholding with respect to such additional amount), an amount equal to the amount that the Payee would have received if such deduction or withholding had not been made and direct substitution for income taxes(ii) deliver to Lessor within sixty (60) days after the date of such payment an official receipt of the relevant taxing authority showing that Lessee paid to such taxing authority the full amount of the Tax required to be deducted or property taxeswithheld.

Excluded Taxes. The indemnity provided for in paragraph (a) above shall not extend For the purposes of this Section 2.10, “Excluded Taxes” means, with respect to any Lender Party, the Administrative Agent and any other Person entitled to receive a payment to be made by or on account of any obligation of the following Borrower hereunder or under the Notes (each of which is called herein a “Tax Indemnitee”), (i) any Taxes (which are imposed on or with respect to, or measured by, the "Excluded Taxes"): Taxes net income of such Tax Indemnitee and which are imposed by the United States federal of America, or by any government or any state or local government, any political subdivision of any of the foregoing, imposed on, based on or measured by gross or net income, receipts, capital gain, capital or net worth, or conduct of business (other than, in each case, Taxes that are or are taxation authority in the nature jurisdiction under the laws of sales, transaction privilege taxes, use, rental, license, value added (to the extent value added taxes are not imposed in clear and direct substitution for income taxes) or property taxes) ("Income Taxes"), including any such Taxes collected by way of withholding, minimum or alternative minimum taxes, and franchise taxes; provided that this exclusion (i) shall not affect any express requirement that payments be made on an "after-tax" basis; Taxes imposed on a Tax Indemnitee other than a Certificateholder Indemnitee that are attributable to any act, event or omission by which such Tax Indemnitee that occurs after expiration or other termination of the Facility Lease and surrender of the Undivided Interest to the Owner Lessor or its successors (is organized or in the case of a Certificateholder Indemnitee, Taxes imposed for any period after the repayment of the Lease Debt) in accordance with the Facility Lease, (as opposed to any act, event or omission occurring prior to or simultaneous with such expiration, termination or surrender (which its principal office is located or, in the case of a Certificateholder Indemniteeany Lender Party, such repayment)), provided that this exclusion shall not apply so long as a Lease Event of Default shall have occurred and be continuing; Taxes imposed on a Tax Indemnitee that are attributable to the gross negligence or willful misconduct of such Tax Indemnitee, unless such negligence or misconduct is imputed to such Tax Indemnitee solely as a result of its participation in the transactions contemplated by the Operative Documents and the South Point Ground Lease (giving effect to its assignment to the Owner Lessor pursuant to the Assignment Agreement) and not as a result of any action or inaction by such Tax Indemnitee; Taxes imposed on a Tax Indemnitee arising from a breach by such Tax Indemnitee of which any of its representations, warranties or covenants under any Operative Document except to the extent attributable to any breach by the Facility Lessee or any other Calpine Party of any covenant, representation or warranty contained in any Operative Document; Taxes (A) that are attributable to any voluntary direct or indirect assignment, sale, transfer or other voluntary disposition or an involuntary direct or indirect transfer or disposition arising out of or caused by a bankruptcy or similar proceeding for relief of debtors in which such Tax Indemnitee Applicable Lending Offices is a debtor or a foreclosure by a creditor of (1) in the case of the Owner Lessor or the Owner Participant, the Owner Participant of all or part of its Member Interest or Undivided Interest, (2) in the case of the Owner Lessor or the Owner Participant, the Owner Lessor of all or part of its interest in the Facility or the Facility Site (other than to a successor Lessor Manager), or (3) in the case of the Indenture Trustee, the Indenture Trustee of any interest in the Lease Debt or the Indenture Estate, or (4) in the case of the Owner Lessor or the Owner Participant any direct or indirect interest in the Owner Lessor or the Owner Participant, including by reason of an election made pursuant to Section 338 of the Code, in each case to the extent imposed by reason of any transfer described in this clause (v)(A), or (B) to the extent that, under law in effect on the date of the transfer such Taxes exceed the amount of Taxes that would be indemnified hereunder had there been no such assignment, sale, transfer or other voluntary disposition, unless such transfer or disposition occurs during the continuance of a Lease Event of Default or is otherwise pursuant to the Facility Lessee's exercise of its rights under the Operative Documents; provided that this exclusion shall not apply with respect to any initial syndication of interests in the Owner Participant accomplished prior to December 29, 2001; Taxes imposed on a Tax Indemnitee that would not have been imposed but for the creation or existence of any Owner Lessor's Lien or Owner Participant's Lien attributable to such Tax Indemnitee; Taxes that are included as a part of the cost of the Facility; Taxes imposed on the Lessor Manager or the Indenture Trustee that are based on or measured by the fees or other compensation received by the Lessor Manager or Indenture Trustee for acting in their respective capacities. With respect to the Owner Participant, Taxes for which the Facility Lessee is obligated to indemnify the Owner Participant under the Tax Indemnity Agreement (or which are expressly excluded from indemnification thereunder); 57 Taxes that are imposed on a Tax Indemnitee (other than a Certificateholder Indemnitee) resulting from the Owner Lessor not being treated as a grantor trust or other conduit entity for federal, state or local income tax purposes, but only to the extent such Taxes exceed Taxes indemnified hereunder that otherwise would have been imposed and are otherwise indemnifiable; Taxes imposed on a Tax Indemnitee that are attributable to the failure of such Tax Indemnitee to comply with certification, information, documentation, reporting or other similar requirements concerning the nationality, residence, identity or connection with the jurisdiction imposing such Taxes; provided that the foregoing exclusion shall only apply if such compliance is required by statute or regulation of the jurisdiction imposing such Taxes as a precondition to relief or exemption from or reduction in such Taxes, such Tax Indemnitee is eligible to comply with such requirement, the Facility Lessee shall have given such Tax Indemnitee timely written notice of such requirement and the Tax Indemnitee shall have determined in good faith that compliance with any such requirement shall not result in any identified non-immaterial adverse effect to its interests or to those of its Affiliates; Taxes consisting of interest, penalties, additions to tax or fines resulting from a failure of such Tax Indemnitee to properly and timely file returns as required by a taxing authority unless such failure is attributable to the Facility Lessee not providing information that it is expressly required to provide under the Operative Documents; Taxes imposed on any Tax Indemnitee resulting from an amendment, modification, supplement to or waiver of any provision of, any Operative Document which amendment, modification, supplement or waiver was not requested by or consented to by the Facility Lessee, and as to which the Facility Lessee is not a party and the Tax Indemnitee (located or, in the case of the Owner ParticipantAdministrative Agent, in which it has an office location at which it performs its duties as Administrative Agent, (ii) in the Owner Lessor if acting at case of any Lender Party or Administrative Agent that is organized under the express direction laws of a jurisdiction outside the Owner Participant or United States of America, any Related Party) is a party, provided withholding tax that this exclusion shall not apply if such amendment, modification, supplement or waiver (A) is in effect and applies to amounts payable by the Borrower under this Agreement, the Notes or any other Loan Document to or for the benefit of such Lender Party at the time such Lender Party becomes a party to this Agreement (or designates a new Applicable Lending Office) except, in the case of any Lender Party that becomes a party to this Agreement or designates a new Applicable Lending Office after the Original Closing Date, to the extent that such Lender Party is entitled at the time it designates a new Applicable Lending Office, or to the extent that such Lender Party’s assignor was required by applicable law entitled at the time such Lender Party becomes a party to this Agreement, as the case may be, to receive additional amounts from the Borrower with respect to any withholding tax pursuant to Section 2.10(a), or the Operative Documents, (B) may be necessary is attributable to such Lender Party’s failure to comply with Section 2.10(f) or appropriate tosuch Administrative Agent’s failure to comply with Section 2.10(f) or 9.07(d), and is in conformity with, other than by reason of not being eligible for any amendment to any Operative Document requested by the Facility Lessee in writingexception from, or (C) was expressly consented to by a Calpine Party in writing; Taxes imposed as a result reduced rate of, or withholding upon completion of the Internal Revenue Service Form at the time required, (iii) any Tax that is imposed in connection withwith any sale, any "prohibited transaction," within the meaning of Section 4975 of the Codeassignment, Section 406 of ERISA transfer or any comparable laws of any Governmental Entity, engaged in other disposition by any Tax Indemnitee (which for this purpose shall include of all or any ERISA Affiliate thereof) resulting from the breach by such Tax Indemnitee of any part of its representations interest in this Agreement, the Notes or warranties contained any other Loan Documents other than during the continuance of an Event of Default, and (iv) any Tax imposed by any government or other taxation authority in Section 3.4(g) or Section 8.2 of the Participation Agreement; Taxes any jurisdiction to the extent such Taxes would not have been imposed on Tax is attributable to a Tax Indemnitee if connection between such jurisdiction and such Tax Indemnitee were other than a United States Person; and Taxes imposed that would not have been imposed on a Tax Indemnitee but for the activities in the taxing jurisdiction of such Tax Indemnitee or any Affiliate thereof unrelated to connection arising from the transactions contemplated by this Agreement and the Operative Documents other than Taxes that are or are in the nature of sales, transaction privilege taxes, use, rental or license taxes, value added taxes (except to the extent value added taxes are imposed in clear and direct substitution for income taxes) or property taxesLoan Documents.

Excluded Taxes. The Notwithstanding anything herein to the contrary, the Tax indemnity provided for in paragraph (aunder this Section 8.2(e) above shall not extend to cover Tax Liabilities resulting from any action taken after the Closing on the Closing Date by Buyer, the Companies or any of their respective Affiliates that is outside the following ordinary course of business and not contemplated by this Agreement. (ii) Without limiting the generality or effect of any other provision hereof, from and after the Closing, Buyer shall indemnify Seller and its officers, directors, employees, agents, representatives and Affiliates and hold each of them harmless against all Taxes (A) of the "Excluded Companies properly allocable to a Tax period or portion thereof beginning after the Closing Date, (B) Buyer’s share of the Transfer Taxes"): Taxes imposed , if any, as set forth in Section 8.2(a), and (C) described in clauses (B) and (C) of the definition of Assumed Taxes. (iii) Payment by the United States federal government or any state or local government, any political subdivision indemnifying party of any amount due under this Section 8.2(e) shall be made within 10 Business Days following written notice by the Indemnified Party that payment of the foregoing, imposed on, based on or measured by gross or net income, receipts, capital gain, capital or net worth, or conduct of business (other than, in each case, Taxes that are or are in the nature of sales, transaction privilege taxes, use, rental, license, value added (such amounts to the extent value added taxes are not imposed in clear and direct substitution for income taxes) or property taxes) ("Income Taxes"), including any such Taxes collected by way of withholding, minimum or alternative minimum taxes, and franchise taxesappropriate Taxing authority is due; provided that this exclusion (i) the indemnifying party shall not affect be required to make any express requirement that payments be made on an "after-tax" basis; Taxes imposed on a Tax Indemnitee other payment earlier than a Certificateholder Indemnitee that are attributable to any act, event or omission by such Tax Indemnitee that occurs after expiration or other termination of the Facility Lease and surrender of the Undivided Interest five Business Days before it is due to the Owner Lessor or its successors (or in appropriate Taxing authority. In the case of a Certificateholder Indemnitee, Taxes imposed for any period after the repayment of the Lease Debt) Tax that is contested in accordance with the Facility Leaseprovisions of Section 8.2(e) below, (as opposed payment of the Tax to any act, event or omission occurring prior to or simultaneous with such expiration, termination or surrender (or, in the case of a Certificateholder Indemnitee, such repayment)), provided that this exclusion appropriate Taxing authority shall not apply so long be considered to be due earlier than the date a final determination to such effect is made by the appropriate Taxing authority or court. (iv) The parties agree that any indemnification payment made pursuant to this Section 8.2(e) shall be treated as a Lease Event of Default shall have occurred and be continuing; Taxes imposed on a Tax Indemnitee that are attributable an adjustment to the gross negligence or willful misconduct of such Purchase Price for Tax Indemniteepurposes, unless such negligence or misconduct is imputed otherwise required by applicable Law. (v) Any disputes between the parties with respect to such the Tax Indemnitee solely as a result of its participation matters regarding the Companies in the transactions contemplated Section 8.2 shall be resolved by the Operative Documents Accounting Firm, whose fees and the South Point Ground Lease expenses shall be borne in accordance with Section 4.5(b). (giving effect vi) For purposes of this Section 8.2, Taxes (other than Transfer Taxes) with respect to its assignment a Straddle Period shall be allocated to the Owner Lessor pursuant to portion of the Assignment Agreement) Straddle Period ending on and not as a result of any action or inaction by such Tax Indemnitee; Taxes imposed on a Tax Indemnitee arising from a breach by such Tax Indemnitee of any of its representations, warranties or covenants under any Operative Document except to including the extent attributable to any breach by the Facility Lessee or any other Calpine Party of any covenant, representation or warranty contained in any Operative Document; Taxes Closing Date (A) that are attributable to any voluntary direct or indirect assignment, sale, transfer or other voluntary disposition or an involuntary direct or indirect transfer or disposition arising out of or caused by a bankruptcy or similar proceeding for relief of debtors in which such Tax Indemnitee is a debtor or a foreclosure by a creditor of (1) in the case of any real or personal property Taxes, ad valorem Taxes and similar periodic Taxes, by multiplying the Owner Lessor or amount of such Taxes for the Owner Participantentire Straddle Period by a fraction, the Owner Participant numerator of all or part which is the number of its Member Interest or Undivided Interest, days during the Straddle Period up to and including the Closing Date and the denominator of which is the number of days in the entire Straddle Period and (2B) in the case of all other Taxes, by way of a closing of books, as though the Owner Lessor relevant taxable period had ended on the Closing Date (provided that exemptions, allowances or deductions that are calculated on an annual basis, such as the Owner Participantdeduction for depreciation, shall be apportioned on a daily basis). Notwithstanding the Owner Lessor of all or part of its interest in the Facility or the Facility Site (other than foregoing, any deductions attributable to Transaction Expenses that have not been reflected on a successor Lessor Manager)Seller Tax Return shall, or (3) in the case of the Indenture Trusteeinsofar as permissible, the Indenture Trustee of any interest in the Lease Debt or the Indenture Estate, or (4) in the case of the Owner Lessor or the Owner Participant any direct or indirect interest in the Owner Lessor or the Owner Participant, including by reason of an election made pursuant to Section 338 of the Code, in each case be allocated to the extent imposed by reason of any transfer described in this clause taxable period ending on or before the Closing Date. (v)(A), or (Bvii) Notwithstanding anything to the extent thatcontrary herein, under law in effect on the date of the transfer such Taxes exceed Seller and Buyer agree that Seller makes no representation, warranty, and provides no other assurance, with respect to the amount of Taxes that would be indemnified hereunder had there been no such assignmentany Tax Attributes of the Companies, sale, transfer or other voluntary disposition, unless such transfer or disposition occurs during the continuance of a Lease Event of Default or is otherwise pursuant to the Facility Lessee's exercise of its rights under the Operative Documents; provided that this exclusion shall not apply with respect to any initial syndication of interests in the Owner Participant accomplished prior to December 29, 2001; Taxes imposed availability on a Tax Indemnitee that would not have been imposed but for and after the creation or existence Closing Date of any Owner Lessor's Lien or Owner Participant's Lien attributable to such Tax Indemnitee; Taxes that are included as a part Attributes of the cost of the Facility; Taxes imposed on the Lessor Manager or the Indenture Trustee that are based on or measured by the fees or other compensation received by the Lessor Manager or Indenture Trustee for acting in their respective capacities. With respect to the Owner Participant, Taxes for which the Facility Lessee is obligated to indemnify the Owner Participant under the Tax Indemnity Agreement (or which are expressly excluded from indemnification thereunder); 57 Taxes that are imposed on a Tax Indemnitee (other than a Certificateholder Indemnitee) resulting from the Owner Lessor not being treated as a grantor trust or other conduit entity for federal, state or local income tax purposes, but only to the extent such Taxes exceed Taxes indemnified hereunder that otherwise would have been imposed and are otherwise indemnifiable; Taxes imposed on a Tax Indemnitee that are attributable to the failure of such Tax Indemnitee to comply with certification, information, documentation, reporting or other similar requirements concerning the nationality, residence, identity or connection with the jurisdiction imposing such Taxes; provided that the foregoing exclusion shall only apply if such compliance is required by statute or regulation of the jurisdiction imposing such Taxes as a precondition to relief or exemption from or reduction in such Taxes, such Tax Indemnitee is eligible to comply with such requirement, the Facility Lessee shall have given such Tax Indemnitee timely written notice of such requirement and the Tax Indemnitee shall have determined in good faith that compliance with any such requirement shall not result in any identified non-immaterial adverse effect to its interests or to those of its Affiliates; Taxes consisting of interest, penalties, additions to tax or fines resulting from a failure of such Tax Indemnitee to properly and timely file returns as required by a taxing authority unless such failure is attributable to the Facility Lessee not providing information that it is expressly required to provide under the Operative Documents; Taxes imposed on any Tax Indemnitee resulting from an amendment, modification, supplement to or waiver of any provision of, any Operative Document which amendment, modification, supplement or waiver was not requested by or consented to by the Facility Lessee, and as to which the Facility Lessee is not a party and the Tax Indemnitee (or, in the case of the Owner Participant, the Owner Lessor if acting at the express direction of the Owner Participant or any Related Party) is a party, provided that this exclusion shall not apply if such amendment, modification, supplement or waiver (A) was required by applicable law or the Operative Documents, (B) may be necessary or appropriate to, and is in conformity with, any amendment to any Operative Document requested by the Facility Lessee in writing, or (C) was expressly consented to by a Calpine Party in writing; Taxes imposed as a result of, or in connection with, any "prohibited transaction," within the meaning of Section 4975 of the Code, Section 406 of ERISA or any comparable laws of any Governmental Entity, engaged in by any Tax Indemnitee (which for this purpose shall include any ERISA Affiliate thereof) resulting from the breach by such Tax Indemnitee of any of its representations or warranties contained in Section 3.4(g) or Section 8.2 of the Participation Agreement; Taxes to the extent such Taxes would not have been imposed on a Tax Indemnitee if such Tax Indemnitee were a United States Person; and Taxes imposed that would not have been imposed on a Tax Indemnitee but for the activities in the taxing jurisdiction of such Tax Indemnitee or any Affiliate thereof unrelated to the transactions contemplated by the Operative Documents other than Taxes that are or are in the nature of sales, transaction privilege taxes, use, rental or license taxes, value added taxes (except to the extent value added taxes are imposed in clear and direct substitution for income taxes) or property taxesCompanies.

Excluded Taxes. The indemnity provided for in paragraph (a) above shall not extend to any of the following Taxes (the "Excluded Taxes"): Taxes imposed by the United States federal government or any state or local government, any political subdivision of any of the foregoing, imposed on, based on or measured by gross or a Recipient’s net income, receipts, capital gain, capital or net worth, or conduct of business income (other than, in each case, Taxes that are or are in the nature of sales, transaction privilege taxes, use, rental, license, value added (to the extent value added taxes are not imposed in clear and direct substitution for income taxes) or property taxes) ("Income Taxes"however denominated), including any such franchise Taxes collected by way of withholding, minimum or alternative minimum taxes, and franchise taxes; provided that this exclusion branch profits Taxes (i) shall not affect any express requirement that payments be made on an "after-tax" basis; Taxes imposed on a Tax Indemnitee other than a Certificateholder Indemnitee that are attributable to any act, event or omission by such Tax Indemnitee that occurs after expiration or other termination of the Facility Lease and surrender of the Undivided Interest to the Owner Lessor or its successors (or in the case of a Certificateholder Indemnitee, Taxes imposed for any period after the repayment of the Lease Debt) in accordance with the Facility Lease, (as opposed to any act, event or omission occurring prior to or simultaneous with such expiration, termination or surrender (or, in the case of a Certificateholder Indemnitee, such repayment)), provided that this exclusion shall not apply so long as a Lease Event of Default shall have occurred and be continuing; Taxes imposed on a Tax Indemnitee that are attributable to the gross negligence or willful misconduct of such Tax Indemnitee, unless such negligence or misconduct is imputed to such Tax Indemnitee solely as a result of such Recipient being organized under the laws of, or having its participation in the transactions contemplated by the Operative Documents and the South Point Ground Lease (giving effect to its assignment to the Owner Lessor pursuant to the Assignment Agreement) and not as a result of any action principal office or inaction by such Tax Indemnitee; Taxes imposed on a Tax Indemnitee arising from a breach by such Tax Indemnitee of any of its representations, warranties or covenants under any Operative Document except to the extent attributable to any breach by the Facility Lessee or any other Calpine Party of any covenant, representation or warranty contained in any Operative Document; Taxes (A) that are attributable to any voluntary direct or indirect assignment, sale, transfer or other voluntary disposition or an involuntary direct or indirect transfer or disposition arising out of or caused by a bankruptcy or similar proceeding for relief of debtors in which such Tax Indemnitee is a debtor or a foreclosure by a creditor of (1) in the case of the Owner Lessor or the Owner Participantapplicable Lending Office located in, the Owner Participant of all or part of its Member Interest or Undivided Interest, (2) in the case of the Owner Lessor or the Owner Participant, the Owner Lessor of all or part of its interest in the Facility or the Facility Site (other than to a successor Lessor Manager)jurisdiction imposing such Tax, or (3ii) in the case of the Indenture Trustee, the Indenture Trustee of any interest in the Lease Debt or the Indenture Estate, or constituting Other Connection Taxes; and (4b) in the case of the Owner Lessor or the Owner Participant any direct or indirect interest in the Owner Lessor or the Owner Participant, including by reason of an election made U.S. federal withholding Taxes imposed pursuant to Section 338 of the Code, in each case to the extent FATCA. In no event shall “Excluded Taxes” include any withholding Tax imposed on amounts paid by reason of any transfer described in this clause (v)(A), or (B) to the extent that, under law in effect on the date of the transfer such Taxes exceed the amount of Taxes that would be indemnified hereunder had there been no such assignment, sale, transfer or other voluntary disposition, unless such transfer or disposition occurs during the continuance behalf of a Lease foreign Obligor. Extraordinary Expenses: all costs, expenses or advances incurred by Lender during a Default or Event of Default or is otherwise pursuant an Obligor’s Insolvency Proceeding, including those relating to the Facility Lessee's (a) any audit, inspection, repossession, storage, repair, appraisal, insurance, manufacture, preparation or advertising for sale, sale, collection, or other preservation of or realization upon any Collateral; (b) any action, arbitration or other proceeding (whether instituted by or against Lender, any Obligor, any creditor(s) of an Obligor or any other Person) in any way relating to any Collateral, Lender’s Lien, Loan Documents, Letters of Credit or Obligations, including any lender liability or other Claims; (c) exercise of its any rights under or remedies of Lender in, or the Operative Documentsmonitoring of, any Insolvency Proceeding; provided that this exclusion shall not apply (d) settlement or satisfaction of taxes, charges or Liens with respect to any initial syndication of interests in the Owner Participant accomplished prior to December 29, 2001Collateral; Taxes imposed on a Tax Indemnitee that would not have been imposed but for the creation or existence (e) any Enforcement Action; and (f) negotiation and documentation of any Owner Lessor's Lien modification, waiver, workout, restructuring or Owner Participant's Lien attributable forbearance with respect to such Tax Indemnitee; Taxes that are included as a part any Loan Documents or Obligations. Such costs, expenses and advances include transfer fees, Other Taxes, storage fees, insurance costs, permit fees, utility reservation and standby fees, reasonable legal fees, appraisal fees, brokers’ and auctioneers’ fees and commissions, accountants’ fees, environmental study fees, wages and salaries paid to employees of any Obligor or independent contractors in liquidating any Collateral, and travel expenses. FATCA: Sections 1471 through 1474 of the cost of the Facility; Taxes imposed on the Lessor Manager Code (including any amended or the Indenture Trustee that are based on or measured by the fees or other compensation received by the Lessor Manager or Indenture Trustee for acting in their respective capacities. With respect to the Owner Participant, Taxes for which the Facility Lessee is obligated to indemnify the Owner Participant under the Tax Indemnity Agreement (or which are expressly excluded from indemnification thereunder); 57 Taxes that are imposed on a Tax Indemnitee (other than a Certificateholder Indemnitee) resulting from the Owner Lessor successor version if substantively comparable and not being treated as a grantor trust or other conduit entity for federal, state or local income tax purposes, but only to the extent such Taxes exceed Taxes indemnified hereunder that otherwise would have been imposed and are otherwise indemnifiable; Taxes imposed on a Tax Indemnitee that are attributable to the failure of such Tax Indemnitee materially more onerous to comply with certification, information, documentation, reporting or other similar requirements concerning the nationality, residence, identity or connection with the jurisdiction imposing such Taxes; provided that the foregoing exclusion shall only apply if such compliance is required by statute or regulation of the jurisdiction imposing such Taxes as a precondition to relief or exemption from or reduction in such Taxes, such Tax Indemnitee is eligible to comply with such requirement, the Facility Lessee shall have given such Tax Indemnitee timely written notice of such requirement and the Tax Indemnitee shall have determined in good faith that compliance with any such requirement shall not result in any identified non-immaterial adverse effect to its interests or to those of its Affiliates; Taxes consisting of interest, penalties, additions to tax or fines resulting from a failure of such Tax Indemnitee to properly and timely file returns as required by a taxing authority unless such failure is attributable to the Facility Lessee not providing information that it is expressly required to provide under the Operative Documents; Taxes imposed on any Tax Indemnitee resulting from an amendment, modification, supplement to or waiver of any provision of, any Operative Document which amendment, modification, supplement or waiver was not requested by or consented to by the Facility Lesseewith), and as any agreements entered into pursuant to which the Facility Lessee is not a party and the Tax Indemnitee (or, in the case of the Owner Participant, the Owner Lessor if acting at the express direction of the Owner Participant or any Related PartySection 1471(b)(1) is a party, provided that this exclusion shall not apply if such amendment, modification, supplement or waiver (A) was required by applicable law or the Operative Documents, (B) may be necessary or appropriate to, and is in conformity with, any amendment to any Operative Document requested by the Facility Lessee in writing, or (C) was expressly consented to by a Calpine Party in writing; Taxes imposed as a result of, or in connection with, any "prohibited transaction," within the meaning of Section 4975 of the Code, Section 406 of ERISA or any comparable laws of any Governmental Entity, engaged in by any Tax Indemnitee (which for this purpose shall include any ERISA Affiliate thereof) resulting from the breach by such Tax Indemnitee of any of its representations or warranties contained in Section 3.4(g) or Section 8.2 of the Participation Agreement; Taxes to the extent such Taxes would not have been imposed on a Tax Indemnitee if such Tax Indemnitee were a United States Person; and Taxes imposed that would not have been imposed on a Tax Indemnitee but for the activities in the taxing jurisdiction of such Tax Indemnitee or any Affiliate thereof unrelated to the transactions contemplated by the Operative Documents other than Taxes that are or are in the nature of sales, transaction privilege taxes, use, rental or license taxes, value added taxes (except to the extent value added taxes are imposed in clear and direct substitution for income taxes) or property taxes.

Excluded Taxes. The indemnity provided for in paragraph (a) above Notwithstanding anything contained herein to the contrary, Xxxxxx's obligation hereunder shall not extend include any assessment levied prior to the completion date, nor any special assessment levied in respect of public or quasi-public improvements necessary for the construction or operation of any property other than the leased premises, including without limitation, the installation of water or sewer mains or the construction, paving or widening of public streets or roads for the benefit of such other property. Nothing herein contained shall be construed to include as taxes and assessments levied or imposed upon the leased premises any inheritance, estate, succession, transfer, gift, franchise, corporation, income or net profit tax that is or may be imposed on Lessor. Taxes and assessments for the first year of the following Taxes (term and for the "Excluded Taxes"): Taxes imposed by the United States federal government or any state or local government, any political subdivision of any last year of the foregoingterm (including, imposed onif applicable, based on the first option term or measured by gross or net income, receipts, capital gain, capital or net worth, or conduct of business (other than, in each case, Taxes that are or are in the nature of sales, transaction privilege taxes, use, rental, license, value added (to the extent value added taxes are not imposed in clear and direct substitution for income taxes) or property taxes) ("Income Taxes"second option term), including shall be prorated. If any such Taxes collected by way of withholdingassessment or charge is payable in installments, minimum or alternative minimum taxesXxxxxx's obligation in respect thereof shall be determined as if Xxxxxx had elected to pay the assessment in installments, and franchise taxes; provided that this exclusion (i) Lessee shall not affect any express requirement that payments be made on an "after-tax" basis; Taxes imposed on a Tax Indemnitee other than a Certificateholder Indemnitee that are attributable to any act, event responsible for only those installments or omission by such Tax Indemnitee that occurs after expiration or other termination parts of the Facility Lease and surrender of the Undivided Interest to the Owner Lessor or its successors (or in the case of a Certificateholder Indemnitee, Taxes imposed for any period after the repayment of the Lease Debt) in accordance with the Facility Lease, (as opposed to any act, event or omission occurring prior to or simultaneous with such expiration, termination or surrender (or, in the case of a Certificateholder Indemnitee, such repayment)), provided that this exclusion shall not apply so long as a Lease Event of Default shall have occurred and installments which would be continuing; Taxes imposed on a Tax Indemnitee that are attributable to the gross negligence term of this Lease (including the first or willful misconduct second option term, if exercised). Lessor shall cause the leased premises to become a separate tax parcel as soon as practicable after the date hereof and, in all events, prior to the completion date. If Lessor shall fail to cause the leased premises to become a separate tax parcel at the time Lessee's obligation to pay taxes shall commence hereunder, Lessee's obligation to pay such taxes shall be limited to the taxes based on the value of the Building, and a pro rata share of the taxes based on the value of the land in the tax parcel, which pro rata share shall be equal to the product of such Tax Indemnitee, unless such negligence or misconduct is imputed to such Tax Indemnitee solely as a result taxes based on the value of its participation the land in the transactions contemplated tax parcel multiplied by a fraction, the Operative Documents numerator of which is the area in square feet of the leased premises and the South Point Ground Lease (giving effect to its assignment to denominator of which is the Owner Lessor pursuant to the Assignment Agreement) and not as a result of any action or inaction by such Tax Indemnitee; Taxes imposed on a Tax Indemnitee arising from a breach by such Tax Indemnitee of any of its representations, warranties or covenants under any Operative Document except to the extent attributable to any breach by the Facility Lessee or any other Calpine Party of any covenant, representation or warranty contained area in any Operative Document; Taxes (A) that are attributable to any voluntary direct or indirect assignment, sale, transfer or other voluntary disposition or an involuntary direct or indirect transfer or disposition arising out of or caused by a bankruptcy or similar proceeding for relief of debtors in which such Tax Indemnitee is a debtor or a foreclosure by a creditor of (1) in the case square feet of the Owner Lessor or the Owner Participant, the Owner Participant of all or part of its Member Interest or Undivided Interest, (2) in the case of the Owner Lessor or the Owner Participant, the Owner Lessor of all or part of its interest in the Facility or the Facility Site (other than to a successor Lessor Manager), or (3) in the case of the Indenture Trustee, the Indenture Trustee of any interest in the Lease Debt or the Indenture Estate, or (4) in the case of the Owner Lessor or the Owner Participant any direct or indirect interest in the Owner Lessor or the Owner Participant, including by reason of an election made pursuant to Section 338 of the Code, in each case to the extent imposed by reason of any transfer described in this clause (v)(A), or (B) to the extent that, under law in effect on the date of the transfer such Taxes exceed the amount of Taxes that would be indemnified hereunder had there been no such assignment, sale, transfer or other voluntary disposition, unless such transfer or disposition occurs during the continuance of a Lease Event of Default or is otherwise pursuant to the Facility Lessee's exercise of its rights under the Operative Documents; provided that this exclusion shall not apply with respect to any initial syndication of interests in the Owner Participant accomplished prior to December 29, 2001; Taxes imposed on a Tax Indemnitee that would not have been imposed but for the creation or existence of any Owner Lessor's Lien or Owner Participant's Lien attributable to such Tax Indemnitee; Taxes that are included as a part of the cost of the Facility; Taxes imposed on the Lessor Manager or the Indenture Trustee that are based on or measured by the fees or other compensation received by the Lessor Manager or Indenture Trustee for acting in their respective capacities. With respect to the Owner Participant, Taxes for which the Facility Lessee is obligated to indemnify the Owner Participant under the Tax Indemnity Agreement (or which are expressly excluded from indemnification thereunder); 57 Taxes that are imposed on a Tax Indemnitee (other than a Certificateholder Indemnitee) resulting from the Owner Lessor not being treated as a grantor trust or other conduit entity for federal, state or local income entire tax purposes, but only to the extent such Taxes exceed Taxes indemnified hereunder that otherwise would have been imposed and are otherwise indemnifiable; Taxes imposed on a Tax Indemnitee that are attributable to the failure of such Tax Indemnitee to comply with certification, information, documentation, reporting or other similar requirements concerning the nationality, residence, identity or connection with the jurisdiction imposing such Taxes; provided that the foregoing exclusion shall only apply if such compliance is required by statute or regulation of the jurisdiction imposing such Taxes as a precondition to relief or exemption from or reduction in such Taxes, such Tax Indemnitee is eligible to comply with such requirement, the Facility Lessee shall have given such Tax Indemnitee timely written notice of such requirement and the Tax Indemnitee shall have determined in good faith that compliance with any such requirement shall not result in any identified non-immaterial adverse effect to its interests or to those of its Affiliates; Taxes consisting of interest, penalties, additions to tax or fines resulting from a failure of such Tax Indemnitee to properly and timely file returns as required by a taxing authority unless such failure is attributable to the Facility Lessee not providing information that it is expressly required to provide under the Operative Documents; Taxes imposed on any Tax Indemnitee resulting from an amendment, modification, supplement to or waiver of any provision of, any Operative Document which amendment, modification, supplement or waiver was not requested by or consented to by the Facility Lessee, and as to which the Facility Lessee is not a party and the Tax Indemnitee (or, in the case of the Owner Participant, the Owner Lessor if acting at the express direction of the Owner Participant or any Related Party) is a party, provided that this exclusion shall not apply if such amendment, modification, supplement or waiver (A) was required by applicable law or the Operative Documents, (B) may be necessary or appropriate to, and is in conformity with, any amendment to any Operative Document requested by the Facility Lessee in writing, or (C) was expressly consented to by a Calpine Party in writing; Taxes imposed as a result of, or in connection with, any "prohibited transaction," within the meaning of Section 4975 of the Code, Section 406 of ERISA or any comparable laws of any Governmental Entity, engaged in by any Tax Indemnitee (which for this purpose shall include any ERISA Affiliate thereof) resulting from the breach by such Tax Indemnitee of any of its representations or warranties contained in Section 3.4(g) or Section 8.2 of the Participation Agreement; Taxes to the extent such Taxes would not have been imposed on a Tax Indemnitee if such Tax Indemnitee were a United States Person; and Taxes imposed that would not have been imposed on a Tax Indemnitee but for the activities in the taxing jurisdiction of such Tax Indemnitee or any Affiliate thereof unrelated to the transactions contemplated by the Operative Documents other than Taxes that are or are in the nature of sales, transaction privilege taxes, use, rental or license taxes, value added taxes (except to the extent value added taxes are imposed in clear and direct substitution for income taxes) or property taxesparcel.

Excluded Taxes. The indemnity provided for in paragraph (a) above shall not extend to any of the following Taxes (the "Excluded Taxes"): Taxes imposed by the United States federal government or any state or local government, any political subdivision of any of the foregoing, imposed on, based on or measured by gross or net income, receipts, capital gain, capital or net worth, or conduct of business (other than, in each case, Taxes that are or are in the nature of sales, transaction privilege taxes, use, rental, license, value added (to the extent value added taxes are not imposed in clear and direct substitution for income taxes) or property taxes) ("Income Taxes"), including any such Taxes collected by way of withholding, minimum or alternative minimum taxes, and franchise taxes; provided that this exclusion (i) shall not affect any express requirement that payments be made on an "after-tax" basis; Taxes imposed on a Tax Indemnitee other than a Certificateholder Indemnitee that are attributable to any act, event or omission by such Tax Indemnitee that occurs after expiration or other termination of the Facility Lease and surrender of the Undivided Interest to the Owner Lessor or its successors (or in the case of a Certificateholder Indemnitee, Taxes imposed for any period after the repayment of the Lease Debt) in accordance with the Facility Lease, (as opposed to any act, event or omission occurring prior to or simultaneous with such expiration, termination or surrender (or, in the case of a Certificateholder Indemnitee, such repayment)), provided that this exclusion shall not apply so long as a Lease Event of Default shall have occurred and be continuing; Taxes imposed on a Tax Indemnitee that are attributable to the gross negligence or willful misconduct of such Tax Indemnitee, unless such negligence or misconduct is imputed to such Tax Indemnitee solely as a result of its participation in the transactions contemplated by the Operative Documents and the South Point Ground FILOT Lease (giving effect to its assignment to the Owner Lessor pursuant to the Assignment Agreement) and not as a result of any action or inaction by such Tax Indemnitee; Taxes imposed on a Tax Indemnitee arising from a breach by such Tax Indemnitee of any of its representations, warranties or covenants under any Operative Document except to the extent attributable to any breach by the Facility Lessee or any other Calpine Party of any covenant, representation or warranty contained in any Operative Document; Taxes (ATaxes(A) that are attributable to any voluntary direct or indirect assignment, sale, transfer or other voluntary disposition or an involuntary direct or indirect transfer or disposition arising out of or caused by a bankruptcy or similar proceeding for relief of debtors in which such Tax Indemnitee is a debtor or a foreclosure by a creditor of (1) in the case of the Owner Lessor or the Owner Participant, the Owner Participant of all or part of its Member Interest or Undivided Interest, (2) in the case of the Owner Lessor or the Owner Participant, the Owner Lessor of all or part of its interest in the Facility or the Facility Site (other than to a successor Lessor Manager), or (3) in the case of the Indenture Trustee, the Indenture Trustee of any interest in the Lease Debt or the Indenture Estate, or (4) in the case of the Owner Lessor or the Owner Participant any direct or indirect interest in the Owner Lessor or the Owner Participant, including by reason of an election made pursuant to Section 338 of the Code, in each case to the extent imposed by reason of any transfer described in this clause (v)(A), or (B) to the extent that, under law in effect on the date of the transfer such Taxes exceed the amount of Taxes that would be indemnified hereunder had there been no such assignment, sale, transfer or other voluntary disposition, unless such transfer or disposition occurs during the continuance of a Lease Event of Default or is otherwise pursuant to the Facility Lessee's exercise of its rights under the Operative Documents; provided that this exclusion shall not apply with respect to any initial syndication of interests in the Owner Participant accomplished prior to December 29, 2001; Taxes imposed on a Tax Indemnitee that would not have been imposed but for the creation or existence of any Owner Lessor's Lien or Owner Participant's Lien attributable to such Tax Indemnitee; Taxes that are included as a part of the cost of the Facility; Taxes imposed on the Lessor Manager or the Indenture Trustee that are based on or measured by the fees or other compensation received by the Lessor Manager or Indenture Trustee for acting in their respective capacities. With respect to the Owner Participant, Taxes for which the Facility Lessee is obligated to indemnify the Owner Participant under the Tax Indemnity Agreement (or which are expressly excluded from indemnification thereunder); 57 Taxes that are imposed on a Tax Indemnitee (other than a Certificateholder Indemnitee) resulting from the Owner Lessor not being treated as a grantor trust or other conduit entity for federal, state or local income tax purposes, but only to the extent such Taxes exceed Taxes indemnified hereunder that otherwise would have been imposed and are otherwise indemnifiable; Taxes imposed on a Tax Indemnitee that are attributable to the failure of such Tax Indemnitee to comply with certification, information, documentation, reporting or other similar requirements concerning the nationality, residence, identity or connection with the jurisdiction imposing such Taxes; provided that the foregoing exclusion shall only apply if such compliance is required by statute or regulation of the jurisdiction imposing such Taxes as a precondition to relief or exemption from or reduction in such Taxes, such Tax Indemnitee is eligible to comply with such requirement, the Facility Lessee shall have given such Tax Indemnitee timely written notice of such requirement and the Tax Indemnitee shall have determined in good faith that compliance with any such requirement shall not result in any identified non-immaterial adverse effect to its interests or to those of its Affiliates; Taxes consisting of interest, penalties, additions to tax or fines resulting from a failure of such Tax Indemnitee to properly and timely file returns as required by a taxing authority unless such failure is attributable to the Facility Lessee not providing information that it is expressly required to provide under the Operative Documents; Taxes imposed on any Tax Indemnitee resulting from an amendment, modification, supplement to or waiver of any provision of, any Operative Document which amendment, modification, supplement or waiver was not requested by or consented to by the Facility Lessee, and as to which the Facility Lessee is not a party and the Tax Indemnitee (or, in the case of the Owner Participant, the Owner Lessor if acting at the express direction of the Owner Participant or any Related Party) is a party, provided that this exclusion shall not apply if such amendment, modification, supplement or waiver (A) was required by applicable law or the Operative Documents, (B) may be necessary or appropriate to, and is in conformity with, any amendment to any Operative Document requested by the Facility Lessee in writing, or (C) was expressly consented to by a Calpine Party in writing; Taxes imposed as a result of, or in connection with, any "prohibited transaction," within the meaning of Section 4975 of the Code, Section 406 of ERISA or any comparable laws of any Governmental Entity, engaged in by any Tax Indemnitee (which for this purpose shall include any ERISA Affiliate thereof) resulting from the breach by such Tax Indemnitee of any of its representations or warranties contained in Section 3.4(g) or Section 8.2 of the Participation Agreement; Taxes to the extent such Taxes would not have been imposed on a Tax Indemnitee if such Tax Indemnitee were a United States Person; and Taxes imposed that would not have been imposed on a Tax Indemnitee but for the activities in the taxing jurisdiction of such Tax Indemnitee or any Affiliate thereof unrelated to the transactions contemplated by the Operative Documents other than Taxes that are or are in the nature of sales, transaction privilege taxes, use, rental or license taxes, taxes or value added taxes (except to the extent value added taxes are imposed in clear and direct substitution for income taxes) or property taxes.

Excluded Taxes. The indemnity provided (c) For purposes of Section 11.1(a) and (b), whenever it is necessary --------------- --- to determine the liability for in paragraph (a) above shall not extend to any Taxes of the following Taxes (Company or a Subsidiary for a Straddle Period, the "Excluded Taxes"): Taxes imposed by the United States federal government or any state or local government, any political subdivision of any determination of the foregoingTaxes of the Company or such Subsidiary for the portion of the Straddle Period ending on and including, imposed onand the portion of the Straddle Period beginning after, based on the Closing Date shall be determined by assuming that the Straddle Period consisted of two taxable years or measured by gross or net periods, one which ended at the close of the Closing Date and the other which began at the beginning of the day following the Closing Date, and items of income, receipts, capital gain, capital deduction, loss or net worthcredit of the Company or such Subsidiary for the Straddle Period shall be allocated between such two taxable years or periods on a "closing of the books basis" by assuming that the books of the Company or such Subsidiary were closed at the close of the Closing Date and Tribune shall prepare and bear the cost of its preparing any financial statements required to determine the tax liabilities of the Company for the period ended on the Closing Date; provided, or conduct of business (other thanhowever, in each case, Taxes that are or are in the nature of sales, transaction privilege taxes, use, rental, license, value added (to the extent value added taxes are not imposed in clear and direct substitution for income taxes) or property taxes) ("Income Taxes"), including any such Taxes collected by way of withholding, minimum or alternative minimum taxes, and franchise taxes; provided that this exclusion -------- ------- (i) transactions occurring on the Closing Date that are properly allocable to the portion of the Closing Date after the Closing shall not affect any express requirement be allocated to the taxable year or period that payments be made is deemed to begin at the beginning of the day following the Closing Date, (ii) exemptions, allowances or deductions that are calculated on an "after-tax" annual basis; Taxes imposed , such as the deduction for depreciation, shall be apportioned between such two taxable years or periods on a Tax Indemnitee daily basis and (iii) other than a Certificateholder Indemnitee items of income, gain, deduction, loss or credit for the month in which the Closing Date occurs shall be allocated between such two taxable years or periods by allocating an equal amount of such items to each calendar day in such month, except that are attributable to any act, event or omission by such Tax Indemnitee that occurs after expiration or other termination of the Facility Lease and surrender of the Undivided Interest extraordinary items described in Treas. Reg. (S) 1.150276(b)(2)(ii)(C) shall be allocated to the Owner Lessor or its successors (or in day that they are taken into account. Notwithstanding the case foregoing provisions of a Certificateholder Indemnitee, Taxes imposed for any period after the repayment of the Lease Debt) in accordance with the Facility Lease, (as opposed to any act, event or omission occurring prior to or simultaneous with such expiration, termination or surrender (or, in the case of a Certificateholder Indemnitee, such repayment)this Section 11.1(c), provided that this exclusion shall not apply so long as a Lease Event of Default shall have occurred and be continuing; Taxes imposed on a Tax Indemnitee that are attributable to the gross negligence or willful misconduct of such Tax Indemnitee, unless such negligence or misconduct is imputed to such Tax Indemnitee solely as a result of its participation in if --------------- the transactions contemplated by this Agreement result in the Operative Documents and reassessment of the South Point Ground Lease (giving effect to its assignment to the Owner Lessor pursuant to the Assignment Agreement) and not as a result value of any action property owned by the Company or inaction by such any Subsidiary for property Tax Indemnitee; Taxes imposed on a Tax Indemnitee arising from a breach by such Tax Indemnitee purposes, or the imposition of any of its representations, warranties or covenants under any Operative Document except to property Taxes at a rate which is different than the extent attributable to any breach by the Facility Lessee or any other Calpine Party of any covenant, representation or warranty contained in any Operative Document; Taxes (A) rate that are attributable to any voluntary direct or indirect assignment, sale, transfer or other voluntary disposition or an involuntary direct or indirect transfer or disposition arising out of or caused by a bankruptcy or similar proceeding for relief of debtors in which such Tax Indemnitee is a debtor or a foreclosure by a creditor of (1) in the case of the Owner Lessor or the Owner Participant, the Owner Participant of all or part of its Member Interest or Undivided Interest, (2) in the case of the Owner Lessor or the Owner Participant, the Owner Lessor of all or part of its interest in the Facility or the Facility Site (other than to a successor Lessor Manager), or (3) in the case of the Indenture Trustee, the Indenture Trustee of any interest in the Lease Debt or the Indenture Estate, or (4) in the case of the Owner Lessor or the Owner Participant any direct or indirect interest in the Owner Lessor or the Owner Participant, including by reason of an election made pursuant to Section 338 of the Code, in each case to the extent imposed by reason of any transfer described in this clause (v)(A), or (B) to the extent that, under law in effect on the date of the transfer such Taxes exceed the amount of Taxes that would be indemnified hereunder had there been no such assignment, sale, transfer or other voluntary disposition, unless such transfer or disposition occurs during the continuance of a Lease Event of Default or is otherwise pursuant to the Facility Lessee's exercise of its rights under the Operative Documents; provided that this exclusion shall not apply with respect to any initial syndication of interests in the Owner Participant accomplished prior to December 29, 2001; Taxes imposed on a Tax Indemnitee that would not have been imposed but for the creation or existence of any Owner Lessor's Lien or Owner Participant's Lien attributable to such Tax Indemnitee; Taxes that are included as a part of the cost of the Facility; Taxes imposed on the Lessor Manager or the Indenture Trustee that are based on or measured by the fees or other compensation received by the Lessor Manager or Indenture Trustee for acting in their respective capacities. With respect to the Owner Participant, Taxes for which the Facility Lessee is obligated to indemnify the Owner Participant under the Tax Indemnity Agreement (or which are expressly excluded from indemnification thereunder); 57 Taxes that are imposed on a Tax Indemnitee (other than a Certificateholder Indemnitee) resulting from the Owner Lessor not being treated as a grantor trust or other conduit entity for federal, state or local income tax purposes, but only to the extent such Taxes exceed Taxes indemnified hereunder that otherwise would have been imposed and are otherwise indemnifiable; Taxes imposed on a Tax Indemnitee that are attributable to the failure of such Tax Indemnitee to comply with certification, information, documentation, reporting or other similar requirements concerning the nationality, residence, identity or connection with the jurisdiction imposing such Taxes; provided that the foregoing exclusion shall only apply if such compliance is required by statute or regulation of the jurisdiction imposing such Taxes as a precondition to relief or exemption from or reduction in such Taxestransactions had not occurred, such Tax Indemnitee is eligible to comply with such requirement, the Facility Lessee shall have given such Tax Indemnitee timely written notice of such requirement and the Tax Indemnitee shall have determined in good faith that compliance with any such requirement shall not result in any identified non-immaterial adverse effect to its interests or to those of its Affiliates; Taxes consisting of interest, penalties, additions to tax or fines resulting from a failure of such Tax Indemnitee to properly and timely file returns as required by a taxing authority unless such failure is attributable to the Facility Lessee not providing information that it is expressly required to provide under the Operative Documents; Taxes imposed on any Tax Indemnitee resulting from an amendment, modification, supplement to or waiver of any provision of, any Operative Document which amendment, modification, supplement or waiver was not requested by or consented to by the Facility Lessee, and as to which the Facility Lessee is not a party and the Tax Indemnitee (or, in the case of the Owner Participant, the Owner Lessor if acting at the express direction of the Owner Participant or any Related Party) is a party, provided that this exclusion shall not apply if such amendment, modification, supplement or waiver then (A) was required by applicable law or the Operative Documentsportion of such property Taxes for the portion of the Straddle Period ending on and including the Closing Date shall be determined on a daily basis, using the assessed value and Tax rate that would have applied had such transactions not occurred, and (B) may be necessary or appropriate to, and is in conformity with, any amendment to any Operative Document requested by the Facility Lessee in writing, or (C) was expressly consented to by a Calpine Party in writing; portion of such property Taxes imposed as a result of, or in connection with, any "prohibited transaction," within the meaning of Section 4975 of the Code, Section 406 of ERISA or any comparable laws of any Governmental Entity, engaged in by any Tax Indemnitee (which for this purpose shall include any ERISA Affiliate thereof) resulting from the breach by such Tax Indemnitee of any of its representations or warranties contained in Section 3.4(g) or Section 8.2 of the Participation Agreement; Taxes to the extent such Taxes would not have been imposed on a Tax Indemnitee if such Tax Indemnitee were a United States Person; and Taxes imposed that would not have been imposed on a Tax Indemnitee but for the activities in the taxing jurisdiction portion of such Tax Indemnitee or any Affiliate thereof unrelated to Straddle Period beginning after the transactions contemplated by Closing Date shall be the Operative Documents other than total property Taxes that are or are for the Straddle Period minus the amount described in the nature clause (A) of sales, transaction privilege taxes, use, rental or license taxes, value added taxes (except to the extent value added taxes are imposed in clear and direct substitution for income taxes) or property taxesthis sentence.

Excluded Taxes. The indemnity provided Any and all payments by the Borrower to or for in paragraph (a) above shall not extend to any the account of the following Taxes (the "Excluded Taxes"): Taxes imposed by the United States federal government Administrative Agent or any state Lender under any Loan Document shall be made free and clear of and without deduction for any and all present or local government, any political subdivision of any of the foregoing, imposed on, based on or measured by gross or net income, receipts, capital gain, capital or net worth, or conduct of business (other than, in each case, Taxes that are or are in the nature of sales, transaction privilege future taxes, useduties, rentallevies, licenseimposts, value added (to the extent value added taxes are not imposed in clear and direct substitution for income taxes) deductions, assessments, fees, withholdings or property taxes) ("Income Taxes"), including any such Taxes collected by way of withholding, minimum or alternative minimum taxessimilar charges, and franchise taxes; provided that this exclusion (i) shall not affect any express requirement that payments be made on an "after-tax" basis; Taxes imposed on a Tax Indemnitee other than a Certificateholder Indemnitee that are attributable to any act, event or omission by such Tax Indemnitee that occurs after expiration or other termination of the Facility Lease and surrender of the Undivided Interest to the Owner Lessor or its successors (or in the case of a Certificateholder Indemnitee, Taxes imposed for any period after the repayment of the Lease Debt) in accordance with the Facility Lease, (as opposed to any act, event or omission occurring prior to or simultaneous with such expiration, termination or surrender (or, in the case of a Certificateholder Indemnitee, such repayment)), provided that this exclusion shall not apply so long as a Lease Event of Default shall have occurred and be continuing; Taxes imposed on a Tax Indemnitee that are attributable to the gross negligence or willful misconduct of such Tax Indemnitee, unless such negligence or misconduct is imputed to such Tax Indemnitee solely as a result of its participation in the transactions contemplated by the Operative Documents and the South Point Ground Lease (giving effect to its assignment to the Owner Lessor pursuant to the Assignment Agreement) and not as a result of any action or inaction by such Tax Indemnitee; Taxes imposed on a Tax Indemnitee arising from a breach by such Tax Indemnitee of any of its representations, warranties or covenants under any Operative Document except to the extent attributable to any breach by the Facility Lessee or any other Calpine Party of any covenant, representation or warranty contained in any Operative Document; Taxes (A) that are attributable to any voluntary direct or indirect assignment, sale, transfer or other voluntary disposition or an involuntary direct or indirect transfer or disposition arising out of or caused by a bankruptcy or similar proceeding for relief of debtors in which such Tax Indemnitee is a debtor or a foreclosure by a creditor of (1) in the case of the Owner Lessor or the Owner Participant, the Owner Participant of all or part of its Member Interest or Undivided Interest, (2) in the case of the Owner Lessor or the Owner Participant, the Owner Lessor of all or part of its interest in the Facility or the Facility Site (other than to a successor Lessor Manager), or (3) in the case of the Indenture Trustee, the Indenture Trustee of any interest in the Lease Debt or the Indenture Estate, or (4) in the case of the Owner Lessor or the Owner Participant any direct or indirect interest in the Owner Lessor or the Owner Participant, including by reason of an election made pursuant to Section 338 of the Code, in each case to the extent imposed by reason of any transfer described in this clause (v)(A), or (B) to the extent that, under law in effect on the date of the transfer such Taxes exceed the amount of Taxes that would be indemnified hereunder had there been no such assignment, sale, transfer or other voluntary disposition, unless such transfer or disposition occurs during the continuance of a Lease Event of Default or is otherwise pursuant to the Facility Lessee's exercise of its rights under the Operative Documents; provided that this exclusion shall not apply liabilities with respect to any initial syndication of interests in the Owner Participant accomplished prior to December 29thereto, 2001; Taxes imposed on a Tax Indemnitee that would not have been imposed but for the creation or existence of any Owner Lessor's Lien or Owner Participant's Lien attributable to such Tax Indemnitee; Taxes that are included as a part of the cost of the Facility; Taxes imposed on the Lessor Manager or the Indenture Trustee that are based on or measured by the fees or other compensation received by the Lessor Manager or Indenture Trustee for acting in their respective capacities. With respect to the Owner Participant, Taxes for which the Facility Lessee is obligated to indemnify the Owner Participant under the Tax Indemnity Agreement (or which are expressly excluded from indemnification thereunder); 57 Taxes that are imposed on a Tax Indemnitee (other than a Certificateholder Indemnitee) resulting from the Owner Lessor not being treated as a grantor trust or other conduit entity for federal, state or local income tax purposes, but only to the extent such Taxes exceed Taxes indemnified hereunder that otherwise would have been imposed and are otherwise indemnifiable; Taxes imposed on a Tax Indemnitee that are attributable to the failure of such Tax Indemnitee to comply with certification, information, documentation, reporting or other similar requirements concerning the nationality, residence, identity or connection with the jurisdiction imposing such Taxes; provided that the foregoing exclusion shall only apply if such compliance is required by statute or regulation of the jurisdiction imposing such Taxes as a precondition to relief or exemption from or reduction in such Taxes, such Tax Indemnitee is eligible to comply with such requirement, the Facility Lessee shall have given such Tax Indemnitee timely written notice of such requirement and the Tax Indemnitee shall have determined in good faith that compliance with any such requirement shall not result in any identified non-immaterial adverse effect to its interests or to those of its Affiliates; Taxes consisting of interest, penalties, additions to tax or fines resulting from a failure of such Tax Indemnitee to properly and timely file returns as required by a taxing authority unless such failure is attributable to the Facility Lessee not providing information that it is expressly required to provide under the Operative Documents; Taxes imposed on any Tax Indemnitee resulting from an amendment, modification, supplement to or waiver of any provision of, any Operative Document which amendment, modification, supplement or waiver was not requested by or consented to by the Facility Lessee, and as to which the Facility Lessee is not a party and the Tax Indemnitee (orexcluding, in the case of the Owner ParticipantAdministrative Agent and each Lender, taxes imposed on or measured by its net income, profit, business activity and franchise taxes imposed on it (in lieu of net income taxes), by the jurisdiction (or any political subdivision thereof) under the Laws of which the Administrative Agent or such Lender, as the case may be, is organized or maintains a lending office (all such non-excluded taxes, duties, levies, imposts, deductions, assessments, fees, withholdings or similar charges, and liabilities being hereinafter referred to as “Taxes”). If the Borrower shall be required by any Laws to deduct any Taxes from or in respect of any sum payable under any Loan Document to the Administrative Agent or any Lender, (i) the sum payable shall be increased as necessary so that after making all required deductions (including deductions applicable to additional sums payable under this Section 4.6), the Owner Lessor if acting at Administrative Agent and such Lender receives an amount equal to the express direction of the Owner Participant or any Related Party) is a party, provided that this exclusion shall not apply if sum it would have received had no such amendment, modification, supplement or waiver (A) was required by applicable law or the Operative Documentsdeductions been made, (Bii) may be necessary the Borrower shall make such deductions, (iii) the Borrower shall pay the full amount deducted to the relevant taxation authority or appropriate toother authority in accordance with applicable Laws, and is in conformity with(iv) within 30 days after the date of such payment, any amendment the Borrower shall furnish to any Operative Document requested by the Facility Lessee in writing, or (C) was expressly consented to by a Calpine Party in writing; Taxes imposed as a result of, or in connection with, any "prohibited transaction," within the meaning of Section 4975 of the Code, Section 406 of ERISA or any comparable laws of any Governmental Entity, engaged in by any Tax Indemnitee Administrative Agent (which for this purpose shall include any ERISA Affiliate forward the same to such Lender) the original or a certified copy of a receipt evidencing payment thereof) resulting from the breach by such Tax Indemnitee of any of its representations or warranties contained in Section 3.4(g) or Section 8.2 of the Participation Agreement; Taxes to the extent such Taxes would not have been imposed on a Tax Indemnitee if such Tax Indemnitee were a United States Person; and Taxes imposed that would not have been imposed on a Tax Indemnitee but for the activities in the taxing jurisdiction of such Tax Indemnitee or any Affiliate thereof unrelated to the transactions contemplated by the Operative Documents other than Taxes that are or are in the nature of sales, transaction privilege taxes, use, rental or license taxes, value added taxes (except to the extent value added taxes are imposed in clear and direct substitution for income taxes) or property taxes.

Excluded Taxes. The indemnity provided Notwithstanding anything to the contrary, the amount of any Losses subject to a claim for in paragraph (aindemnification under this Section 8.1(a) above shall not extend to any be subject to, and shall not be included in the calculation of the following limitations set forth in Section 10.3, other than Section 10.3(b)(iv). Notwithstanding anything in this Agreement to the contrary, the Buyer Indemnitees shall not have the right to indemnification under this Agreement for any Taxes that are based on or relate to Taxes: (the "Excluded Taxes"): Taxes imposed by the United States federal government or any state or local government, any political subdivision A) that result from Buyer’s breach of any of the foregoing, imposed on, based on or measured by gross or net income, receipts, capital gain, capital or net worth, or conduct of business (other than, in each case, Taxes that are or are in the nature of sales, transaction privilege taxes, use, rental, license, value added (to the extent value added taxes are not imposed in clear and direct substitution for income taxes) or property taxes) ("Income Taxes"), including any such Taxes collected by way of withholding, minimum or alternative minimum taxes, and franchise taxes; provided that this exclusion (i) shall not affect any express requirement that payments be made on an "after-tax" basis; Taxes imposed on a Tax Indemnitee other than a Certificateholder Indemnitee that are attributable to any act, event or omission by such Tax Indemnitee that occurs after expiration or other termination of the Facility Lease and surrender of the Undivided Interest to the Owner Lessor or its successors (or in the case of a Certificateholder Indemnitee, Taxes imposed for any period after the repayment of the Lease Debt) in accordance with the Facility Lease, (as opposed to any act, event or omission occurring prior to or simultaneous with such expiration, termination or surrender (or, in the case of a Certificateholder Indemnitee, such repayment)), provided that this exclusion shall not apply so long as a Lease Event of Default shall have occurred and be continuing; Taxes imposed on a Tax Indemnitee that are attributable to the gross negligence or willful misconduct of such Tax Indemnitee, unless such negligence or misconduct is imputed to such Tax Indemnitee solely as a result of its participation in the transactions contemplated by the Operative Documents and the South Point Ground Lease (giving effect to its assignment to the Owner Lessor pursuant to the Assignment Agreement) and not as a result of any action or inaction by such Tax Indemnitee; Taxes imposed on a Tax Indemnitee arising from a breach by such Tax Indemnitee of any of its representations, warranties or covenants under any Operative Document except to the extent attributable to any breach by the Facility Lessee or any other Calpine Party of any covenant, representation or warranty contained in any Operative Document; Taxes (A) that are attributable to any voluntary direct or indirect assignment, sale, transfer or other voluntary disposition or an involuntary direct or indirect transfer or disposition arising out of or caused by a bankruptcy or similar proceeding for relief of debtors in which such Tax Indemnitee is a debtor or a foreclosure by a creditor of (1) in the case of the Owner Lessor or the Owner Participant, the Owner Participant of all or part of its Member Interest or Undivided Interest, (2) in the case of the Owner Lessor or the Owner Participant, the Owner Lessor of all or part of its interest in the Facility or the Facility Site (other than to a successor Lessor Manager), or (3) in the case of the Indenture Trustee, the Indenture Trustee of any interest in the Lease Debt or the Indenture Estate, or (4) in the case of the Owner Lessor or the Owner Participant any direct or indirect interest in the Owner Lessor or the Owner Participant, including by reason of an election made pursuant to Section 338 of the Code, in each case to the extent imposed by reason of any transfer described in this clause (v)(A), Article VIII or (B) to the extent thatsuch Taxes were included as a liability in the determination of Closing Date Net Working Capital. For purposes of this Section 8.1(a), under law references to “Losses” and “Taxes” shall be deemed to include amounts that would have constituted “Losses” or “Taxes” but for the set-off or other utilization of any loss, deduction, credit or other Tax asset attributable to any Post-Closing Tax Period. Notwithstanding anything to the contrary in effect this Agreement, this Section 8.1(a) shall survive the Closing until the ninetieth (90th) day after the expiration of the statute of limitations period applicable thereto. (b) Buyer shall be responsible for, and shall indemnify and hold the Sellers Indemnitees harmless from and against (i) any Taxes attributable to or imposed on the date of the transfer such Taxes exceed the amount of Taxes that would be indemnified hereunder had there been no such assignment, sale, transfer or other voluntary disposition, unless such transfer or disposition occurs during the continuance of a Lease Event of Default or is otherwise pursuant to the Facility Lessee's exercise of its rights under the Operative Documents; provided that this exclusion shall not apply Purchased Assets with respect to any initial syndication of interests in taxable period beginning after the Owner Participant accomplished prior to December 29, 2001; Taxes imposed on a Tax Indemnitee that would not have been imposed but for Closing Date and the creation or existence portion of any Owner Lessor's Lien or Owner Participant's Lien attributable Straddle Period beginning after the Closing Date (a “Post-Closing Tax Period”), and (ii) Transfer Taxes borne by Buyer pursuant to such Tax IndemniteeSection 8.3; Taxes provided, that are included as a part of the cost of the Facility; Taxes imposed on the Lessor Manager or the Indenture Trustee that are based on or measured by the fees or other compensation received by the Lessor Manager or Indenture Trustee for acting in their respective capacities. With respect notwithstanding anything to the Owner Participantcontrary in this Agreement, Buyer shall not be responsible for and shall not indemnify and hold the Sellers Indemnitees harmless from and against any Taxes for which the Facility Lessee is obligated to indemnify the Owner Participant under the Tax Indemnity Agreement (or which are expressly excluded from indemnification thereunder); 57 Taxes that are imposed on a Tax Indemnitee (other than a Certificateholder Indemniteedescribed in this Section 8.1(b) resulting from the Owner Lessor not being treated as a grantor trust or other conduit entity for federal, state or local income tax purposes, but only to the extent that Buyer and its Affiliates (including, after the Closing, the Purchased Entities) are 52 entitled to indemnification or reimbursement from the Sellers for such Taxes exceed Taxes indemnified hereunder that otherwise would have been imposed and are otherwise indemnifiable; Taxes imposed on a Tax Indemnitee that are attributable pursuant to the failure Section 8.1(a) or Section 8.5. (c) For purposes of such Tax Indemnitee to comply with certification, information, documentation, reporting or other similar requirements concerning the nationality, residence, identity or connection with the jurisdiction imposing such Taxes; provided that the foregoing exclusion shall only apply if such compliance is required by statute or regulation of the jurisdiction imposing such Taxes as a precondition to relief or exemption from or reduction in such Taxes, such Tax Indemnitee is eligible to comply with such requirement, the Facility Lessee shall have given such Tax Indemnitee timely written notice of such requirement and the Tax Indemnitee shall have determined in good faith that compliance with any such requirement shall not result in any identified non-immaterial adverse effect to its interests or to those of its Affiliates; Taxes consisting of interest, penalties, additions to tax or fines resulting from a failure of such Tax Indemnitee to properly and timely file returns as required by a taxing authority unless such failure is attributable to the Facility Lessee not providing information that it is expressly required to provide under the Operative Documents; Taxes imposed on any Tax Indemnitee resulting from an amendment, modification, supplement to or waiver of any provision of, any Operative Document which amendment, modification, supplement or waiver was not requested by or consented to by the Facility Lessee, and as to which the Facility Lessee is not a party and the Tax Indemnitee (orthis Agreement, in the case of the Owner Participant, the Owner Lessor if acting at the express direction of the Owner Participant or any Related Party) is a party, provided that this exclusion shall not apply if such amendment, modification, supplement or waiver (A) was required by applicable law or the Operative Documents, (B) may be necessary or appropriate to, and is in conformity with, any amendment to any Operative Document requested by the Facility Lessee in writing, or (C) was expressly consented to by a Calpine Party in writing; Taxes imposed as a result of, or in connection with, any "prohibited transaction," within the meaning of Section 4975 of the Code, Section 406 of ERISA or any comparable laws of any Governmental Entity, engaged in by any Tax Indemnitee (which for this purpose shall include any ERISA Affiliate thereof) resulting from the breach by such Tax Indemnitee of any of its representations or warranties contained in Section 3.4(g) or Section 8.2 of the Participation Agreement; Taxes to the extent such Taxes would not have been imposed on a Tax Indemnitee if such Tax Indemnitee were a United States Person; and Taxes imposed that would not have been imposed on a Tax Indemnitee but for the activities in the taxing jurisdiction of such Tax Indemnitee or any Affiliate thereof unrelated to the transactions contemplated by the Operative Documents other than Taxes that are or are payable with respect to a Straddle Period, the portion of any such Taxes that is allocable to the portion of the period ending on (and including) the Closing Date shall be: (i) in the nature case of salesany ad valorem or property Taxes, transaction privilege taxesdeemed to be the amount of such Taxes for the entire Straddle Period, usemultiplied by a fraction the numerator of which is the number of calendar days in the portion of the Straddle Period that ends on (and includes) the Closing Date and the denominator of which is the number of calendar days in the entire Straddle Period and (ii) in the case of all other Taxes, rental or license taxes, value added taxes be deemed to equal the amount which would be payable if the relevant taxable period ended at the end of the day on the Closing Date. (except d) Whenever in accordance with this Article VIII the Sellers shall be required to the extent value added taxes are imposed in clear and direct substitution for income taxespay Buyer an amount pursuant to Section 8.1(a) or property taxes.Buyer shall be required to pay the Sellers an amount pursuant to Section 8.1(b), such payments shall be made the later of thirty (30) days after such payments are requested or ten (10) days before the requesting Party is required to pay the related Tax liability. Section 8.2

Excluded Taxes. The indemnity provided for in paragraph (a) above shall not extend to any of the following Taxes (the "Excluded Taxes"): Taxes imposed by the United States federal government or any state or local government, any political subdivision of any of the foregoing, imposed on, based on or measured by gross or net income, receipts, capital gain, capital or net worth, or conduct of business (other than, in each case, Taxes that are or are in the nature of sales, transaction privilege taxes, use, rental, license, value added (to the extent value added taxes are not imposed in clear and direct substitution for income taxes) or property taxes) ("Income Taxes"), including any such Taxes collected by way of withholding, minimum or alternative minimum taxes, and franchise taxes; provided that this exclusion (i) shall not affect any express requirement that payments be made on an "after-tax" basis; Taxes imposed on a Tax Indemnitee other than a Certificateholder Indemnitee that are attributable to any act, event or omission by such Tax Indemnitee that occurs after expiration or other termination of the Facility Lease and surrender of the Undivided Interest to the Owner Lessor or its successors (or in the case of a Certificateholder Indemnitee, Taxes imposed for any period after the repayment of the Lease Debt) in accordance with the Facility Lease, (as opposed to any act, event or omission occurring prior to or simultaneous with such expiration, termination or surrender (or, in the case of a Certificateholder Indemnitee, such repayment)), provided that this exclusion shall not apply so long as a Lease Event of Default shall have occurred and be continuing; Taxes imposed on a Tax Indemnitee that are attributable to the gross negligence or willful misconduct of such Tax Indemnitee, unless such negligence or misconduct is imputed to such Tax Indemnitee solely as a result of its participation in the transactions contemplated by the Operative Documents and the South Point Ground FILOT Lease (giving effect to its assignment to the Owner Lessor pursuant to the Assignment Agreement) and not as a result of any action or inaction by such Tax Indemnitee; Taxes imposed on a Tax Indemnitee arising from a breach by such Tax Indemnitee of any of its representations, warranties or covenants under any Operative Document except to the extent attributable to any breach by the Facility Lessee or any other Calpine Party of any covenant, representation or warranty contained in any Operative Document; Taxes (A) that are attributable to any voluntary direct or indirect assignment, sale, transfer or other voluntary disposition or an involuntary direct or indirect transfer or disposition arising out of or caused by a bankruptcy or similar proceeding for relief of debtors in which such Tax Indemnitee is a debtor or a foreclosure by a creditor of (1) in the case of the Owner Lessor or the Owner Participant, the Owner Participant of all or part of its Member Interest or Undivided Interest, (2) in the case of the Owner Lessor or the Owner Participant, the Owner Lessor of all or part of its interest in the Facility or the Facility Site (other than to a successor Lessor Manager), or (3) in the case of the Indenture Trustee, the Indenture Trustee of any interest in the Lease Debt or the Indenture Estate, or (4) in the case of the Owner Lessor or the Owner Participant any direct or indirect interest in the Owner Lessor or the Owner Participant, including by reason of an election made pursuant to Section 338 of the Code, in each case to the extent imposed by reason of any transfer described in this clause (v)(A), or (B) to the extent that, under law in effect on the date of the transfer such Taxes exceed the amount of Taxes that would be indemnified hereunder had there been no such assignment, sale, transfer or other voluntary disposition, unless such transfer or disposition occurs during the continuance of a Lease Event of Default or is otherwise pursuant to the Facility Lessee's exercise of its rights under the Operative Documents; provided that this exclusion shall not apply with respect to any initial syndication of interests in the Owner Participant accomplished prior to December 29, 2001; Taxes imposed on a Tax Indemnitee that would not have been imposed but for the creation or existence of any Owner Lessor's Lien or Owner Participant's Lien attributable to such Tax Indemnitee; Taxes that are included as a part of the cost of the Facility; Taxes imposed on the Lessor Manager or the Indenture Trustee that are based on or measured by the fees or other compensation received by the Lessor Manager or Indenture Trustee for acting in their respective capacities. With respect to the Owner Participant, Taxes for which the Facility Lessee is obligated to indemnify the Owner Participant under the Tax Indemnity Agreement (or which are expressly excluded from indemnification thereunder); 57 Taxes that are imposed on a Tax Indemnitee (other than a Certificateholder Indemnitee) resulting from the Owner Lessor not being treated as a grantor trust or other conduit entity for federal, state or local income tax purposes, but only to the extent such Taxes exceed Taxes indemnified hereunder that otherwise would have been imposed and are otherwise indemnifiable; Taxes imposed on a Tax Indemnitee that are attributable to the failure of such Tax Indemnitee to comply with certification, information, documentation, reporting or other similar requirements concerning the nationality, residence, identity or connection with the jurisdiction imposing such Taxes; provided that the foregoing exclusion shall only apply if such compliance is required by statute or regulation of the jurisdiction imposing such Taxes as a precondition to relief or exemption from or reduction in such Taxes, such Tax Indemnitee is eligible to comply with such requirement, the Facility Lessee shall have given such Tax Indemnitee timely written notice of such requirement and the Tax Indemnitee shall have determined in good faith that compliance with any such requirement shall not result in any identified non-immaterial adverse effect to its interests or to those of its Affiliates; Taxes consisting of interest, penalties, additions to tax or fines resulting from a failure of such Tax Indemnitee to properly and timely file returns as required by a taxing authority unless such failure is attributable to the Facility Lessee not providing information that it is expressly required to provide under the Operative Documents; Taxes imposed on any Tax Indemnitee resulting from an amendment, modification, supplement to or waiver of any provision of, any Operative Document which amendment, modification, supplement or waiver was not requested by or consented to by the Facility Lessee, and as to which the Facility Lessee is not a party and the Tax Indemnitee (or, in the case of the Owner Participant, the Owner Lessor if acting at the express direction of the Owner Participant or any Related Party) is a party, provided that this exclusion shall not apply if such amendment, modification, supplement or waiver (A) was required by applicable law or the Operative Documents, (B) may be necessary or appropriate to, and is in conformity with, any amendment to any Operative Document requested by the Facility Lessee in writing, or (C) was expressly consented to by a Calpine Party in writing; Taxes imposed as a result of, or in connection with, any "prohibited transaction," within the meaning of Section 4975 of the Code, Section 406 of ERISA or any comparable laws of any Governmental Entity, engaged in by any Tax Indemnitee (which for this purpose shall include any ERISA Affiliate thereof) resulting from the breach by such Tax Indemnitee of any of its representations or warranties contained in Section 3.4(g) or Section 8.2 of the Participation Agreement; Taxes to the extent such Taxes would not have been imposed on a Tax Indemnitee if such Tax Indemnitee were a United States Person; and Taxes imposed that would not have been imposed on a Tax Indemnitee but for the activities in the taxing jurisdiction of such Tax Indemnitee or any Affiliate thereof unrelated to the transactions contemplated by the Operative Documents other than Taxes that are or are in the nature of sales, transaction privilege taxes, use, rental or license taxes, taxes or value added taxes (except to the extent value added taxes are imposed in clear and direct substitution for income taxes) or property taxes.