Common use of Conditions of Contest Clause in Contracts

Conditions of Contest. Notwithstanding the foregoing, no contest with respect to a Tax Claim will be required or permitted pursuant to this Section 12.2, and NRG shall be required to pay the applicable Taxes without contest, unless: (A) within thirty (30) days after notice by the Tax Indemnitee to NRG of such Tax Claim, NRG shall request in writing to the Tax Indemnitee that such Tax Claim be contested, provided that if a shorter period is required for taking action with respect to such Tax Claim and the Tax Indemnitee notifies NRG of such requirement, NRG shall use reasonable best efforts to request such contest within such shorter period, and such Tax Indemnitee shall take no action for as long as it is legally able to do so, (B) no Lease Event of Default has occurred and is continuing, (C) there is no risk of sale, forfeiture or loss of, or the creation of a Lien (other than a Lease Permitted Lien) on the Facility, Owner Lessor’s or Owner Participant’s interest in the Facility, the Facility Site, the Undivided Interest, the Ground Interest or any portion or Component thereof or any interest therein as a result of such Tax Claim; provided that this clause (C) shall not apply if NRG shall have posted and maintained a bond or otherwise provided security for NRG’s obligations under Section 12.2 satisfactory to the Tax Indemnitee in its reasonable discretion, or the Tax is fully paid in either manner specified in clause (E) below, (D) there is no risk of imposition of any criminal penalties, (E) if such contest involves payment of such Tax, NRG will either advance to the Tax Indemnitee on an interest-free basis and with no after-tax cost to such Tax Indemnitee (a “Tax Advance”) or pay such Tax Indemnitee the amount payable by NRG pursuant to Section 12.2(a) above with respect to such Tax, and such Tax Indemnitee shall promptly pay to NRG any net Tax Benefit recognized which results from any imputed interest deduction arising from such interest free Tax Advance plus any net Tax Benefit recognized which result from making any such payment. (F) NRG agrees to pay (and pays on demand) and with no after-tax cost to such Tax Indemnitee all reasonable costs, losses and expenses incurred by the Tax Indemnitee in connection with the contest of such claim (including, without limitation, all reasonable legal, accounting and investigatory fees and disbursements), (G) the Tax Indemnitee has been provided at NRG’s sole expense with an opinion, reasonably acceptable to such Tax Indemnitee, of independent tax counsel of recognized standing selected by NRG and reasonably acceptable to the Tax Indemnitee to the effect that there is a Reasonable Basis for contesting such Tax Claim, (H) in the case of a judicial appeal, no appeal to the U.S. Supreme Court shall be required of the Tax Indemnitee or shall be permitted by NRG. (I) In the case of a judicial contest, NRG shall have delivered to the Tax Indemnitee a written acknowledgment of its liability under this Section 12.2 for such Taxes, provided, however, that NRG shall not be bound by its acknowledgment of liability if the contest is resolved on the basis of a written decision of the adjudicator that clearly indicates the basis for the conclusion that NRG has no liability under this Section 12.2 with respect to such Tax, unless NRG’s conduct of the contest has materially prejudiced the Tax Indemnitee.

Conditions of Contest. Notwithstanding the foregoing, no contest with respect to a Tax Claim will be required or permitted pursuant to this Section 12.2SECTION 10.2, and NRG Xxxxx City shall be required to pay the applicable Taxes without contest, unless: (A) within thirty (30) 30 days after notice by the Tax Indemnitee to NRG Xxxxx City of such Tax Claim, NRG Xxxxx City shall request in writing to the Tax Indemnitee that such Tax Claim be contested, provided PROVIDED that if a shorter period is required for taking action with respect to such Tax Claim and the Tax Indemnitee notifies NRG Xxxxx City of such requirement, NRG Xxxxx City shall use reasonable best efforts to request such contest within a reasonable time period (taking into account the time required to take action) after its receipt of notice within such shorter period, and such Tax Indemnitee shall take no action for as long as it is legally able to do so, (B) no Lease Event of Default has occurred and is continuing, (C) there is no risk of sale, forfeiture or loss of, or the creation of a Lien (other than a Lease Permitted Lien) on the Facility, Owner Lessor’s 's or Owner Participant’s 's interest in the Facility, the Facility Site, the Undivided Interest, the Ground Interest or any portion or Component thereof or any interest therein as a result of such Tax Claim; provided PROVIDED that this clause (C) shall not apply if NRG Xxxxx City shall have posted and maintained a bond or otherwise provided security for NRG’s Xxxxx City's obligations under Section 12.2 SECTION 10.2, in each case satisfactory to the Tax Indemnitee in its reasonable discretionas to coverage and credit, or the Tax is fully paid in either manner specified in clause (E) below, (D) there is no risk of imposition of any criminal liability or penalties, (E) if such contest involves payment of such Tax, NRG Xxxxx City will either advance to the Tax Indemnitee on an interest-free basis and with no after-tax cost to such Tax Indemnitee (a “Tax Advance”"TAX ADVANCE") or pay such Tax Indemnitee the amount payable by NRG Xxxxx City pursuant to Section 12.2(aSECTION 10.2(A) above with respect to such Tax, and such Tax Indemnitee shall promptly pay to NRG Xxxxx City any net Tax Benefit recognized which results from any imputed interest deduction arising from such interest free Tax Advance plus any net Tax Benefit recognized which result results from making any such paymentpayment (determined using the assumptions set forth in the second sentence of the definition of After-Tax Basis). (F) NRG Xxxxx City agrees to pay (and pays on demand) and with no after-tax cost to such Tax Indemnitee all reasonable costs, losses and expenses incurred by the Tax Indemnitee in connection with the contest of such claim (including, without limitation, all reasonable legal, accounting and investigatory fees and disbursements), (G) the Tax Indemnitee has been provided at NRG’s Xxxxx City's sole expense with an opinion, reasonably acceptable to such Tax Indemnitee, of independent tax counsel of recognized standing selected by NRG Xxxxx City and reasonably acceptable to the Tax Indemnitee to the effect that there is a Reasonable Basis for contesting such Tax Claim; PROVIDED that if the subject matter of the contest shall have previously been decided by a court of competent jurisdiction pursuant to the contest provisions of this SECTION 10.2(G), such opinion shall be that as a result of a change in law or fact, it is more likely than not that the Tax Indemnitee will prevail, (H) in the case of a judicial appeal, no appeal to the U.S. Supreme Court shall be required of the Tax Indemnitee or shall be permitted by NRGXxxxx City. (I) In the case of a judicial contest, NRG Xxxxx City shall have delivered to the Tax Indemnitee a written acknowledgment of its liability under this Section 12.2 SECTION 10.2 for such Taxes, providedPROVIDED, howeverHOWEVER, that NRG Xxxxx City shall not be bound by its acknowledgment of liability if the contest is resolved on the basis of a written decision of the adjudicator that clearly indicates the basis for the conclusion that NRG Xxxxx City has no liability under this Section 12.2 SECTION 10.2 with respect to such Tax, unless NRG’s Xxxxx City's conduct of the contest has materially prejudiced the Tax Indemnitee.

Conditions of Contest. Notwithstanding the foregoing, no contest with respect to a Tax Claim will be required or permitted pursuant to this Section SECTION 12.2, and NRG EME shall be required to pay the applicable Taxes without contest, unless: (A1) within thirty (30) 30 days after notice by the Tax Indemnitee to NRG EME of such Tax Claim, NRG EME shall request in writing to the Tax Indemnitee that such Tax Claim be contested, provided PROVIDED that if a shorter period is required for taking action with respect to such Tax Claim and the Tax Indemnitee notifies NRG EME of such requirement, NRG EME shall use reasonable best efforts to request such contest within such shorter period, and such Tax Indemnitee shall take no action for as long as it is legally able to do so, (B2) no Lease Event of Default has occurred and is continuing, (C3) there is no risk of sale, forfeiture or loss of, or the creation of a Lien (other than a Lease Permitted Lien) on the Facility, Owner Lessor’s 's or Owner Participant’s 's interest in the Facility, the Facility Site, the Undivided Interest, the Ground Interest or any portion or Component thereof or any interest therein as a result of such Tax Claim; provided PROVIDED that this clause (C3) shall not apply if NRG EME shall have posted and maintained a bond or otherwise provided security for NRG’s EME's obligations under Section SECTION 12.2 satisfactory to the Tax Indemnitee in its reasonable discretion, or the Tax is fully paid in either manner specified in clause (E5) below, (D4) there is no risk of imposition of any criminal penalties, (E5) if such contest involves payment of such Tax, NRG EME will either advance to the Tax Indemnitee on an interest-free basis and with no after-tax cost to such Tax Indemnitee (a “Tax Advance”"TAX ADVANCE") or pay such Tax Indemnitee the amount payable by NRG EME pursuant to Section SECTION 12.2(a) above with respect to such Tax, and such Tax Indemnitee shall promptly pay to NRG EME any net Tax Benefit recognized which results from any imputed interest deduction arising from such interest free Tax Advance plus any net Tax Benefit recognized which result from making any such payment. (F6) NRG EME agrees to pay (and pays on demand) and with no after-tax cost to such Tax Indemnitee all reasonable costs, losses and expenses incurred by the Tax Indemnitee in connection with the contest of such claim (including, without limitationlimita- tion, all reasonable legal, accounting and investigatory fees and disbursements), (G7) the Tax Indemnitee has been provided at NRG’s EME's sole expense with an opinion, reasonably acceptable to such Tax Indemnitee, of independent tax counsel of recognized standing selected by NRG EME and reasonably acceptable to the Tax Indemnitee to the effect that there is a Reasonable Basis for contesting such Tax Claim, (H) 8) in the case of a judicial appeal, no appeal to the U.S. Supreme Court shall be required of the Tax Indemnitee or shall be permitted by NRGEME. (I9) In the case of a judicial contest, NRG EME shall have delivered to the Tax Indemnitee a written acknowledgment of its liability under this Section SECTION 12.2 for such Taxes, providedPROVIDED, howeverHOWEVER, that NRG EME shall not be bound by its acknowledgment of liability if the contest is resolved on the basis of a written decision of the adjudicator that clearly indicates the basis for the conclusion that NRG EME has no liability under this Section SECTION 12.2 with respect to such Tax, unless NRG’s EME's conduct of the contest has materially prejudiced the Tax Indemnitee.

Conditions of Contest. Notwithstanding the foregoing, in no event shall the Company be permitted to contest with respect to a (or shall the Tax Claim will be required or permitted pursuant to this Section 12.2, and NRG shall Indemnitee be required to pay the applicable Taxes without contest, unless: ) any Tax Claim (A) within thirty (30) days after notice by if the Tax Indemnitee to NRG contest of such Tax Claim, NRG shall request in writing to the Tax Indemnitee that such Tax Claim be contested, provided that if involves a shorter period is required for taking action with respect to such Tax Claim and the Tax Indemnitee notifies NRG of such requirement, NRG shall use reasonable best efforts to request such contest within such shorter period, and such Tax Indemnitee shall take no action for as long as it is legally able to do so, (B) no Lease Event of Default has occurred and is continuing, (C) there is no material risk of sale, forfeiture or loss of, or the creation of a any material Lien (other than a Lease Permitted Lien) on the Facility, Owner Lessor’s or Owner Participant’s interest in the Facility, the Facility Site, the Undivided Interest, the Ground Interest or any portion or Component thereof unless the Company has adequate reserves or any interest therein as a result of such Tax Claim; provided that this clause (C) shall not apply if NRG shall have posted and maintained a bond or otherwise provided other security for NRG’s obligations under Section 12.2 satisfactory to the relevant Tax Indemnitee in its reasonable discretion, or the Tax is fully Taxes shall have been paid in either manner specified in clause (E) below, , (B) if a Significant Company Default or a Company Event of Default has occurred and is continuing, (C) unless the Company shall have agreed to pay and shall pay, to such Tax Indemnitee on demand, and on an After-Tax Basis, all reasonable out-of-pocket costs and expenses that such Tax Indemnitee may incur in connection with contesting the asserted Taxes, including all reasonable legal, accounting and investigatory fees and disbursements, (D) there unless the Company shall have provided the Tax Indemnitee with an opinion of counsel selected by the Company and reasonably acceptable to the Tax Indemnitee that a reasonable basis exists for the contest of such Tax Claim; provided, that if the contested issue shall have previously been decided by a court of competent jurisdiction pursuant to the contest provisions of this Section 12.2(g), such opinion shall be that, as a result of a change in law or fact, it is no risk of imposition of any criminal penalties, more likely than not that the Tax Indemnitee will prevail, (E) unless, if such contest involves payment of such the Tax, NRG will the Company either advance advances to the Tax Indemnitee on an interest-free basis basis, and with no after-tax cost to such Tax Indemnitee Indemnitee, the amount of such Tax (a “Tax Advance”) or pay pays such Tax Indemnitee the amount payable by NRG pursuant to the Company under this Section 12.2(a) above 12.2 with respect to such Tax, and such Tax Indemnitee shall promptly pay to NRG any net Tax Benefit recognized which results from any imputed interest deduction arising from such interest free Tax Advance plus any net Tax Benefit recognized which result from making any such payment. (F) NRG agrees unless the amount of the Taxes in controversy, taking into account the amount of all similar and logically related Taxes with respect to pay the transactions contemplated by the Operative Documents in respect of the Facility that could be raised in any other year (and pays on demandincluding any future year) and with no after-tax cost not barred by the statute of limitations, exceeds $10,000, (G) unless the Company shall acknowledge in writing its liability to such Tax Indemnitee all reasonable costs, losses and expenses incurred by indemnify the Tax Indemnitee hereunder in connection with respect of such Tax Claim if the contest is not successful; provided, that such acknowledgment of such claim (including, without limitation, all reasonable legal, accounting and investigatory fees and disbursements), (G) liability will not be binding if the contest is resolved on a basis from which it can be established that the Company would not be required to indemnify the Tax Indemnitee has been provided at NRG’s sole expense with an opinionunder this Section 12.2 in the absence of such acknowledgement, reasonably acceptable to such Tax Indemnitee, of independent tax counsel of recognized standing selected by NRG and reasonably acceptable to the Tax Indemnitee to the effect that there is a Reasonable Basis for contesting such Tax Claim, or (H) in the case of a judicial appeal, no if the appeal is to the U.S. Supreme Court shall be required of the Tax Indemnitee or shall be permitted by NRGCourt. (I) In the case of a judicial contest, NRG shall have delivered to the Tax Indemnitee a written acknowledgment of its liability under this Section 12.2 for such Taxes, provided, however, that NRG shall not be bound by its acknowledgment of liability if the contest is resolved on the basis of a written decision of the adjudicator that clearly indicates the basis for the conclusion that NRG has no liability under this Section 12.2 with respect to such Tax, unless NRG’s conduct of the contest has materially prejudiced the Tax Indemnitee.

Conditions of Contest. Notwithstanding the foregoing, no contest with respect to a Tax Claim will be required or permitted pursuant to this Section 12.210.2, and NRG Xxxxx City shall be required to pay the applicable Taxes without contest, unless: (A) within thirty (30) 30 days after notice by the Tax Indemnitee to NRG Xxxxx City of such Tax Claim, NRG Xxxxx City shall request in writing to the Tax Indemnitee that such Tax Claim be contested, provided that if a shorter period is required for taking action with respect to such Tax Claim and the Tax Indemnitee notifies NRG Xxxxx City of such requirement, NRG Xxxxx City shall use reasonable best efforts to request such contest within a reasonable time period (taking into account the time required to take action) after its receipt of notice within such shorter period, and such Tax Indemnitee shall take no action for as long as it is legally able to do so, (B) no Lease Event of Default has occurred and is continuing, (C) there is no risk of sale, forfeiture or loss of, or the creation of a Lien (other than a Lease Permitted Lien) on the Facility, Owner Lessor’s 's or Owner Participant’s 's interest in the Facility, the Facility Site, the Undivided Interest, the Ground Interest or any portion or Component thereof or any interest therein as a result of such Tax Claim; provided that this clause (C) shall not apply if NRG Xxxxx City shall have posted and maintained a bond or otherwise provided security for NRG’s Xxxxx City's obligations under Section 12.2 10.2, in each case satisfactory to the Tax Indemnitee in its reasonable discretionas to coverage and credit, or the Tax is fully paid in either manner specified in clause (E) below, (D) there is no risk of imposition of any criminal liability or penalties, (E) if such contest involves payment of such Tax, NRG Xxxxx City will either advance to the Tax Indemnitee on an interest-free basis and with no after-tax cost to such Tax Indemnitee (a “"Tax Advance”") or pay such Tax Indemnitee the amount payable by NRG Xxxxx City pursuant to Section 12.2(a10.2(a) above with respect to such Tax, and such Tax Indemnitee shall promptly pay to NRG Xxxxx City any net Tax Benefit recognized which results from any imputed interest deduction arising from such interest free Tax Advance plus any net Tax Benefit recognized which result results from making any such paymentpayment (determined using the assumptions set forth in the second sentence of the definition of After-Tax Basis). (F) NRG Xxxxx City agrees to pay (and pays on demand) and with no after-tax cost to such Tax Indemnitee all reasonable costs, losses and expenses incurred by the Tax Indemnitee in connection with the contest of such claim (including, without limitation, all reasonable legal, accounting and investigatory fees and disbursements), (G) the Tax Indemnitee has been provided at NRG’s Xxxxx City's sole expense with an opinion, reasonably acceptable to such Tax Indemnitee, of independent tax counsel of recognized standing selected by NRG Xxxxx City and reasonably acceptable to the Tax Indemnitee to the effect that there is a Reasonable Basis for contesting such Tax Claim; provided that if the subject matter of the contest shall have previously been decided by a court of competent jurisdiction pursuant to the contest provisions of this Section 10.2(g), such opinion shall be that as a result of a change in law or fact, it is more likely than not that the Tax Indemnitee will prevail, (H) in the case of a judicial appeal, no appeal to the U.S. Supreme Court shall be required of the Tax Indemnitee or shall be permitted by NRGXxxxx City. (I) In the case of a judicial contest, NRG Xxxxx City shall have delivered to the Tax Indemnitee a written acknowledgment of its liability under this Section 12.2 10.2 for such Taxes, provided, however, that NRG Xxxxx City shall not be bound by its acknowledgment of liability if the contest is resolved on the basis of a written decision of the adjudicator that clearly indicates the basis for the conclusion that NRG Xxxxx City has no liability under this Section 12.2 10.2 with respect to such Tax, unless NRG’s Xxxxx City's conduct of the contest has materially prejudiced the Tax Indemnitee.

Conditions of Contest. Notwithstanding the foregoing, in no contest with respect to event shall the Lessee be permitted or a Tax Claim will be required or permitted pursuant to this Section 12.2, and NRG shall Indemnitee be required to pay contest (or to continue the applicable Taxes without contestcontest of) any Tax Claim, unless: (A1) within thirty (30) 30 days after notice by the Tax Indemnitee to NRG the Lessee of such Tax Claim, NRG the Lessee shall request in writing to the Tax Indemnitee that such Tax Claim be contested, ; provided that if a shorter period is required for taking action with respect to such Tax Claim and the Tax Indemnitee notifies NRG the Lessee of such requirement, NRG the Lessee shall use reasonable best efforts to request such contest within such shorter period, and such Tax Indemnitee shall take no action for as long as it is legally able to do so, (B2) no Lease Default or Lease Event of Default has occurred and is continuing, (C3) there is (i) no realistic risk of sale, forfeiture or loss of, or the creation of a Lien (other than a Lease Permitted Lien) on the Facility, Owner Lessor’s 's or Owner Participant’s Lessor Parent's interest in the Facility, the Facility Site, the Undivided Interest, the Ground Interest Property or any material portion or Component thereof or any interest therein (other than a Permitted Lien) and (ii) no risk of the imposition of criminal penalties as a result of such Tax Claim; provided that this clause (C3)(i) shall not apply if NRG shall have posted and maintained a bond or otherwise provided security for NRG’s obligations under Section 12.2 satisfactory to the Tax Indemnitee in its reasonable discretion, or the Tax is fully paid in either manner specified in clause (E4) belowbelow or the Lessee posts security satisfactory to the Tax Indemnitee, (D) there is no risk of imposition of any criminal penalties, (E4) if such contest involves payment of such Tax, NRG the Lessee will either advance to the Tax Indemnitee on an interest-free basis and with at no after-after tax cost to such Tax Indemnitee (a “"Tax --- Advance”") or pay such Tax Indemnitee the amount payable by NRG the Lessee ------- pursuant to Section 12.2(a) 4.1 above with respect to such Tax, and such Tax Indemnitee shall promptly pay to NRG any net Tax Benefit recognized which results from any imputed interest deduction arising from such interest free Tax Advance plus any net Tax Benefit recognized which result from making any such payment., (F5) NRG the Lessee agrees to pay (and pays pay on demand) and with at no after-after tax cost to such Tax Indemnitee all reasonable costs, losses costs and expenses incurred by the Tax Indemnitee in connection with the contest of such claim (including, without limitation, including all reasonable legal, accounting and investigatory legal fees and disbursements), (G6) the Tax Indemnitee has been provided at NRG’s the Lessee's sole expense with an opinion, reasonably acceptable to such Tax Indemnitee, opinion of independent tax counsel of recognized standing selected by NRG the Lessee and reasonably acceptable to the Tax Indemnitee to the effect that there is a Reasonable Basis for contesting such Tax Claim, (H7) the amount of Taxes in controversy, taking into account the amount of all similar and logically related Taxes with respect to the transactions contemplated by the Operative Documents that could be raised in any other year (including any future year) not barred by the statute of limitations, exceeds $30,000, (8) the Lessee shall acknowledge in writing its liability to indemnify the Tax Indemnitee hereunder in respect of such claim if the contest is not successful, provided that such acknowledgment of -------- liability shall not be binding if the contest is resolved on a basis from which it can be established that the Lessee would not be required to indemnify the Tax Indemnitee under this Section 4 in the absence of such acknowledgment, and (9) in the case of a judicial appeal, no appeal to the U.S. Supreme Court shall be required of the Tax Indemnitee or shall be permitted by NRGthe Lessee. (I) In the case of a judicial contest, NRG shall have delivered to the Tax Indemnitee a written acknowledgment of its liability under this Section 12.2 for such Taxes, provided, however, that NRG shall not be bound by its acknowledgment of liability if the contest is resolved on the basis of a written decision of the adjudicator that clearly indicates the basis for the conclusion that NRG has no liability under this Section 12.2 with respect to such Tax, unless NRG’s conduct of the contest has materially prejudiced the Tax Indemnitee.

Conditions of Contest. Notwithstanding the foregoing, in no event shall the Facility Lessee be permitted to contest with respect to a (nor shall the Tax Claim will be required or permitted pursuant to this Section 12.2, and NRG shall Indemnitee be required to pay the applicable Taxes without contest, unless) any Tax Claim: (A1) unless within thirty (30) 30 days after notice by the Tax Indemnitee to NRG the Facility Lessee of such Tax Claim, NRG the Facility Lessee shall request in writing to the Tax Indemnitee that such Tax Claim be contested, contested provided that if a shorter period is required for taking action with respect to such Tax Claim and the Tax Indemnitee notifies NRG the Facility Lessee of such requirement, NRG the Facility Lessee shall use reasonable best efforts to request such contest within such shorter period, and such Tax Indemnitee shall take no action for as long as it is legally able to do so, (B2) no if a Lease Event of Default has occurred and is continuing, (C3) if there is no a risk of sale, forfeiture or loss of, or the creation of a Lien (other than a Lease Permitted Lien) on the Facility, Owner Lessor’s 's or Owner Participant’s 's interest in the Facility, the Facility Site, the Undivided Interest, the Ground Interest or any portion or Component thereof or any interest therein as a result of such Tax ClaimClaim (other than a Permitted Lien); provided that this clause (C3) shall not apply if NRG shall have posted and maintained a bond or otherwise provided the Facility Lessee posts security for NRG’s obligations under Section 12.2 satisfactory to the Tax Indemnitee in its reasonable discretionIndemnitee, or the Tax is fully paid in either manner specified in clause (E5) below, (D4) if there is no a risk of imposition of any criminal liability or criminal penalties, (E5) if unless, where such contest involves payment of such Tax, NRG will the Facility Lessee shall have either advance advanced to the Tax Indemnitee on an interest-free basis and with no after-tax cost to such Tax Indemnitee (a “"Tax Advance”") or pay paid such Tax Indemnitee the amount payable by NRG the Facility Lessee pursuant to Section 12.2(a10.2(a) above with respect to such Tax, , (6) unless the Facility Lessee shall have agreed to pay and shall pay to such Tax Indemnitee shall promptly pay to NRG any net Tax Benefit recognized which results from any imputed interest deduction arising from such interest free Tax Advance plus any net Tax Benefit recognized which result from making any such payment. (F) NRG agrees to pay (and pays on demand) and with no an after-tax cost basis to such Tax Indemnitee all reasonable costs, losses and expenses incurred by the Tax Indemnitee in connection with the contest of such claim (including, without limitation, including all reasonable legal, accounting and investigatory fees and disbursements), (G7) unless the Tax Indemnitee has been provided provided, at NRG’s the Facility Lessee's sole expense expense, with an opinion, reasonably acceptable to such Tax Indemnitee, opinion of independent tax counsel of recognized standing selected by NRG the Facility Lessee and reasonably acceptable to the Tax Indemnitee to the effect that there is a Reasonable Basis exists for contesting such Tax Claim,, and (H) 8) unless the Facility Lessee shall have acknowledged in writing its liability to indemnify the case of a judicial appeal, no appeal to the U.S. Supreme Court shall be required Owner Participant in respect of the Tax Indemnitee or shall be permitted by NRG. (I) In claim if the case of a judicial contest, NRG shall have delivered to the Tax Indemnitee a written acknowledgment of its liability under this Section 12.2 for such Taxes, contest is not successful; provided, however, that NRG shall not be bound by its such acknowledgment of liability will not be binding if the contest is resolved on a clearly articulated basis which establishes that the basis of a written decision of Facility Lessee is not liable to the adjudicator that clearly indicates the basis for the conclusion that NRG has no liability under this Section 12.2 with respect to such Tax, unless NRG’s conduct of the contest has materially prejudiced the Tax IndemniteeOwner Participant.

Conditions of Contest. Notwithstanding the foregoing, no contest with respect to a Tax Claim will be required or permitted pursuant to this Section 12.2SECTION 6.3, and NRG Guarantor shall be required to pay the applicable Taxes without contest, unless: (A1) within thirty (30) days after notice by the Tax Indemnitee to NRG Guarantor of such Tax Claim, NRG Guarantor shall request in writing to the Tax Indemnitee that such Tax Claim be contested, provided that if a shorter period is required for taking action with respect to such Tax Claim and the Tax Indemnitee notifies NRG Guarantor of such requirement, NRG Guarantor shall use reasonable best efforts be required to request such contest within such shorter period, and such Tax Indemnitee shall take no action for as long as it is legally able to do so, (B2) no Lease Event of Default has occurred and is continuing, (C3) there is no risk of sale, forfeiture or loss of, or the creation of a Lien (other than a Lease Permitted Lien) on the Facility, Owner Lessor’s or Owner Participant’s interest in the Facility, the Facility Site, the Undivided Interest, the Ground Interest or any portion or Component thereof Leased Equipment or any interest therein as a result of such Tax Claim; provided PROVIDED that this clause (C3) shall not apply if NRG Guarantor shall have posted and maintained a bond or otherwise provided security for NRG’s Guarantor's obligations under Section 12.2 SECTION 6.3 satisfactory to the Tax Indemnitee in its reasonable discretion, or the Tax is fully paid in either manner specified in clause (E5) below, (D4) there is no risk of imposition of any criminal penalties, (E5) if such contest involves payment of such Tax, NRG Guarantor will either advance to the Tax Indemnitee on an interest-free basis and with no after-tax cost to such Tax Indemnitee (a “Tax Advance”"TAX ADVANCE") or pay such Tax Indemnitee the amount payable by NRG Guarantor pursuant to Section 12.2(aSECTION 6.3(a) above with respect to such Tax, and such Tax Indemnitee shall promptly pay to NRG Guarantor any net Tax Benefit recognized which results from any imputed interest deduction arising from such interest free Tax Advance plus any net Tax Benefit recognized which result from making any such payment., and (F6) NRG Guarantor agrees to pay (and pays on demand) and with no after-tax cost to such Tax Indemnitee all reasonable costs, losses and expenses incurred by the Tax Indemnitee in connection with the contest of such claim (including, without limitation, all reasonable legal, accounting and investigatory fees and disbursements), (G) the Tax Indemnitee has been provided at NRG’s sole expense with an opinion, reasonably acceptable to such Tax Indemnitee, of independent tax counsel of recognized standing selected by NRG and reasonably acceptable to the Tax Indemnitee to the effect that there is a Reasonable Basis for contesting such Tax Claim, (H) in the case of a judicial appeal, no appeal to the U.S. Supreme Court shall be required of the Tax Indemnitee or shall be permitted by NRG. (I) In the case of a judicial contest, NRG shall have delivered to the Tax Indemnitee a written acknowledgment of its liability under this Section 12.2 for such Taxes, provided, however, that NRG shall not be bound by its acknowledgment of liability if the contest is resolved on the basis of a written decision of the adjudicator that clearly indicates the basis for the conclusion that NRG has no liability under this Section 12.2 with respect to such Tax, unless NRG’s conduct of the contest has materially prejudiced the Tax Indemnitee.

Conditions of Contest. Notwithstanding the foregoing, no contest with respect to a Tax Claim will be required or permitted pursuant to this Section 12.214.2, and NRG Midwest shall be required to pay the applicable Taxes without contest, unless: (A1) within thirty (30) 30 days after notice by the Tax Indemnitee to NRG Midwest of such Tax Claim, NRG Midwest shall request in writing to the Tax Indemnitee that such Tax Claim be contested, provided that if a shorter period is required for taking action with respect to such Tax Claim and the Tax Indemnitee notifies NRG Midwest of such requirement, NRG Midwest shall use reasonable best efforts to request such contest within such shorter period, and such Tax Indemnitee shall take no action for as long as it is legally able to do so, (B2) no Lease Event of Default has occurred and is continuing, (C3) there is no risk of sale, forfeiture or loss of, or the creation of a Lien (other than a Lease Permitted Lien) on the Facility, Owner Lessor’s 's or Owner Participant’s 's interest in the Facility, the Facility Site, the Undivided Interest, the Ground Interest or any portion or Component thereof or any interest therein as a result of such Tax Claim; provided PROVIDED that this clause (C3) shall not apply if NRG Midwest shall have posted and maintained a bond or otherwise provided security for NRG’s Midwest's obligations under Section 12.2 14.2 satisfactory to the Tax Indemnitee in its reasonable discretion, or the Tax is fully paid in either manner specified in clause (E5) below, (D4) there is no risk of imposition of any criminal penalties, (E5) if such contest involves payment of such Tax, NRG Midwest will either advance to the Tax Indemnitee on an interest-free basis and with no after-tax cost to such Tax Indemnitee (a “Tax Advance”"TAX ADVANCE") or pay such Tax Indemnitee the amount payable by NRG Midwest pursuant to Section 12.2(a14.2(a) above with respect to such Tax, and such Tax Indemnitee shall promptly pay to NRG Midwest any net Tax Benefit recognized which results from any imputed interest deduction arising from such interest free Tax Advance plus any net Tax Benefit recognized which result from making any such payment. (F6) NRG Midwest agrees to pay (and pays on demand) and with no after-tax cost to such Tax Indemnitee all reasonable costs, losses and expenses incurred by the Tax Indemnitee in connection with the contest of such claim (including, without limitation, all reasonable legal, accounting and investigatory fees and disbursements), (G7) the Tax Indemnitee has been provided at NRG’s Midwest's sole expense with an opinion, reasonably acceptable to such Tax Indemnitee, of independent tax counsel of recognized standing selected by NRG Midwest and reasonably acceptable to the Tax Indemnitee to the effect that there is a Reasonable Basis for contesting such Tax Claim, (H) 8) in the case of a judicial appeal, no appeal to the U.S. Supreme Court shall be required of the Tax Indemnitee or shall be permitted by NRGMidwest. (I9) In the case of a judicial contest, NRG Midwest shall have delivered to the Tax Indemnitee a written acknowledgment of its liability under this Section 12.2 14.2 for such Taxes, providedPROVIDED, howeverHOWEVER, that NRG Midwest shall not be bound by its acknowledgment of liability if the contest is resolved on the basis of a written decision of the adjudicator that clearly indicates the basis for the conclusion that NRG Midwest has no liability under this Section 12.2 14.2 with respect to such Tax, unless NRG’s Midwest's conduct of the contest has materially prejudiced the Tax Indemnitee.

Conditions of Contest. Notwithstanding the foregoing, in no contest with respect to event shall TVA be permitted or a Tax Claim will be required or permitted pursuant to this Section 12.2, and NRG shall Indemnitee be required to pay contest (or to continue the applicable Taxes without contestcontest of) any Tax Claim, unless: (A1) within thirty (30) 30 days after notice by the Tax Indemnitee to NRG TVA of such Tax Claim, NRG TVA shall request in writing to the Tax Indemnitee that such Tax Claim be contested, ; provided that if a shorter period is required for taking action with respect to such Tax Claim and the Tax Indemnitee notifies NRG TVA of such requirement, NRG TVA shall use reasonable best efforts to request such contest within such shorter period, and such Tax Indemnitee shall take no action for as long as it is legally able to do so, (B2) no Lease Event of Default has occurred and is continuing, (C3) there is (i) no risk of sale, forfeiture or loss of, or the creation of a Lien (other than a Lease Permitted Lien) on the Facility, Owner Lessor’s or Owner Participant’s interest in the Facility, the Facility Site, the Undivided Interest, the Ground Interest Network or any portion or Component thereof or any interest therein (other than a Permitted Lien) and (ii) no risk of the imposition of criminal penalties as a result of such Tax Claim; provided that this clause (C3) shall not apply if NRG shall have posted and maintained a bond or otherwise provided security for NRG’s obligations under Section 12.2 satisfactory to the Tax Indemnitee in its reasonable discretion, or the Tax is fully paid in either manner specified in clause (E4) belowbelow or TVA posts security satisfactory to the Tax Indemnitee, (D) there is no risk of imposition of any criminal penalties, (E4) if such contest involves payment of such Tax, NRG TVA will either advance to the Tax Indemnitee on an interest-free basis and with no after-tax cost to such Tax Indemnitee (a “Tax Advance”) or pay such Tax Indemnitee the amount payable by NRG TVA pursuant to Section 12.2(a9.2(a) above with respect to such Tax, and such Tax Indemnitee shall promptly pay to NRG any net Tax Benefit recognized which results from any imputed interest deduction arising from such interest free Tax Advance plus any net Tax Benefit recognized which result from making any such payment., (F5) NRG TVA agrees to pay (and pays pay on demand) and with no after-tax cost to such Tax Indemnitee all reasonable costs, losses costs and expenses incurred by the Tax Indemnitee in connection with the contest of such claim (including, without limitation, including all reasonable legal, accounting and investigatory legal fees and disbursements), (G6) the Tax Indemnitee has been provided at NRGTVA’s sole expense with an opinion, reasonably acceptable to such Tax Indemnitee, opinion of independent tax counsel of recognized standing selected by NRG TVA and reasonably acceptable to the Tax Indemnitee to the effect that there is a Reasonable Basis for contesting such Tax Claim, (H7) the amount of Taxes in controversy, taking into account the amount of all similar and logically related Taxes with respect to the transactions contemplated by Operative Documents that could be raised in any other year (including any future year) not barred by the statute of limitations, exceeds $50,000, (8) TVA shall acknowledge in writing its liability to indemnify the Tax Indemnitee hereunder in respect of such claim if the contest is not successful, provided that such acknowledgment of liability shall not be binding if the contest is resolved on a basis from which it can be established that TVA would not be required to indemnify the Tax Indemnitee under this Section 9.2 in the absence of such acknowledgment, and (9) in the case of a judicial appeal, no appeal to the U.S. Supreme Court shall be required of the Tax Indemnitee or shall be permitted by NRGTVA. (I) In the case of a judicial contest, NRG shall have delivered to the Tax Indemnitee a written acknowledgment of its liability under this Section 12.2 for such Taxes, provided, however, that NRG shall not be bound by its acknowledgment of liability if the contest is resolved on the basis of a written decision of the adjudicator that clearly indicates the basis for the conclusion that NRG has no liability under this Section 12.2 with respect to such Tax, unless NRG’s conduct of the contest has materially prejudiced the Tax Indemnitee.

Conditions of Contest. Notwithstanding the foregoing, in no contest with respect to event shall the Lessee be permitted or a Tax Claim will be required or permitted pursuant to this Section 12.2, and NRG shall Indemnitee be required to pay contest (or to continue the applicable Taxes without contestcontest of) any Tax Claim, unless: (A1) within thirty (30) 30 days after notice by the Tax Indemnitee to NRG the Lessee of such Tax Claim, NRG the Lessee shall request in writing to the Tax Indemnitee that such Tax Claim be contested, ; provided that if a shorter period is required for taking action with respect to such Tax Claim and the Tax Indemnitee notifies NRG the Lessee of such requirement, NRG the Lessee shall use reasonable best efforts to request such contest within such shorter period, and such Tax Indemnitee shall take no action for as long as it is legally able to do so, (B2) no Lease Default or Lease Event of Default has occurred and is continuing, (C3) there is (i) no realistic risk of sale, forfeiture or loss of, or the creation of a Lien (other than a Lease Permitted Lien) on the Facility, Owner Lessor’s 's or Owner Participant’s Lessor Parent's interest in the Facility, the Facility Site, the Undivided Interest, the Ground Interest Property or any material portion or Component thereof or any interest therein (other than a Permitted Lien) and (ii) no risk of the imposition of criminal penalties as a result of such Tax Claim; provided that this clause (C3)(i) shall not apply if NRG shall have posted and maintained a bond or otherwise provided security for NRG’s obligations under Section 12.2 satisfactory to the Tax Indemnitee in its reasonable discretion, or the Tax is fully paid in either manner specified in clause (E4) belowbelow or the Lessee posts security satisfactory to the Tax Indemnitee, (D) there is no risk of imposition of any criminal penalties, (E4) if such contest involves payment of such Tax, NRG the Lessee will either advance to the Tax Indemnitee on an interest-free basis and with at no after-after tax cost to such Tax Indemnitee (a “"Tax --- Advance”") or pay such Tax Indemnitee the amount payable by NRG the Lessee ------- pursuant to Section 12.2(a) 4.1 above with respect to such Tax, and such Tax Indemnitee shall promptly pay to NRG any net Tax Benefit recognized which results from any imputed interest deduction arising from such interest free Tax Advance plus any net Tax Benefit recognized which result from making any such payment., (F5) NRG the Lessee agrees to pay (and pays pay on demand) and with at no after-after tax cost to such Tax Indemnitee all reasonable costs, losses costs and expenses incurred by the Tax Indemnitee in connection with the contest of such claim (including, without limitation, including all reasonable legal, accounting and investigatory legal fees and disbursements), (G6) the Tax Indemnitee has been provided at NRG’s the Lessee's sole expense with an opinion, reasonably acceptable to such Tax Indemnitee, opinion of independent tax counsel of recognized standing selected by NRG the Lessee and reasonably acceptable to the Tax Indemnitee to the effect that there is a Reasonable Basis for contesting such Tax Claim, (H7) the amount of Taxes in controversy, taking into account the amount of all similar and logically related Taxes with respect to the transactions contemplated by the Operative Documents that could be raised in any other year (including any future year) not barred by the statute of limitations, exceeds $30,000, (8) the Lessee shall acknowledge in writing its liability to indemnify the Tax Indemnitee hereunder in respect of such claim if the contest is not successful, provided that such -------- acknowledgment of liability shall not be binding if the contest is resolved on a basis from which it can be established that the Lessee would not be required to indemnify the Tax Indemnitee under this Section 4 in the absence of such acknowledgment, and (9) in the case of a judicial appeal, no appeal to the U.S. Supreme Court shall be required of the Tax Indemnitee or shall be permitted by NRGthe Lessee. (I) In the case of a judicial contest, NRG shall have delivered to the Tax Indemnitee a written acknowledgment of its liability under this Section 12.2 for such Taxes, provided, however, that NRG shall not be bound by its acknowledgment of liability if the contest is resolved on the basis of a written decision of the adjudicator that clearly indicates the basis for the conclusion that NRG has no liability under this Section 12.2 with respect to such Tax, unless NRG’s conduct of the contest has materially prejudiced the Tax Indemnitee.

Conditions of Contest. Notwithstanding the foregoing, no contest with respect to a Tax Claim will be required or permitted pursuant to this Section 12.28.2, and NRG Old Dominion shall be required to pay the applicable Taxes without contest, unless: (Ai) within thirty (30) 30 days after notice by the Tax Indemnitee to NRG Old Dominion of such Tax Claim, NRG Old Dominion shall request in writing to the Tax Indemnitee that such Tax Claim be contested, provided PROVIDED that if a shorter period is required for taking action with respect to such Tax Claim and the Tax Indemnitee notifies NRG Old Dominion of such requirement, NRG Old Dominion shall use reasonable best efforts to request such contest within such shorter period, and such Tax Indemnitee shall take no action for as long as it is legally able to do so, (Bii) no Lease Event of Default under the Operating Equipment Agreement or the Operating Foundation Agreement has occurred and is continuing, (Ciii) there is no risk of sale, forfeiture or loss of, or the creation of a Lien (other than a Lease Permitted Lien) on the Facility, Owner Lessor’s or Owner Participant’s interest in the Facility, the Facility Site, the Undivided Interest, the Ground Owner's Unit 2 Interest or any portion or Component thereof or any interest therein as a result of such Tax Claim; provided , PROVIDED that this clause (Ciii) shall not apply if NRG shall have posted and maintained a bond or otherwise provided Old Dominion posts security for NRG’s obligations under Section 12.2 satisfactory to the Tax Indemnitee in its reasonable discretionIndemnitee, or the Tax is fully paid in either manner specified in clause (Eiv) below, (D) there is no risk of imposition of any criminal penalties, (Eiv) if such contest involves payment of such Tax, NRG Old Dominion will either advance to the Tax Indemnitee on an interest-free basis (without reduction for any Tax savings that the Tax Indemnitee may realize as a result of the payment of such Tax) and with no after-after tax cost to such Tax Indemnitee or the Owner Participant, which advance will be repaid in full by the Tax Indemnitee upon the conclusion of the contest (a “"Tax Advance”") or pay such Tax Indemnitee the amount payable by NRG Old Dominion pursuant to Section 12.2(aparagraph (a) above with respect to such Tax, and such Tax Indemnitee shall promptly pay to NRG any net Tax Benefit recognized which results from any imputed interest deduction arising from such interest free Tax Advance plus any net Tax Benefit recognized which result from making any such payment., (Fv) NRG Old Dominion agrees to pay (and pays on demand) and with no after-after tax cost to such Tax Indemnitee or the Owner Participant all reasonable costs, losses costs and expenses incurred by the Tax Indemnitee in connection with the contest of such claim (including, without limitation, all reasonable legal, accounting and investigatory fees and disbursementsdisbursements of counsel), (Gvi) the Tax Indemnitee has been provided at NRG’s Old Dominion's sole expense with an opinion, reasonably acceptable to such Tax Indemnitee, of independent tax counsel of recognized standing selected by NRG Old Dominion and reasonably acceptable to the Tax Indemnitee to the effect that there is a Reasonable Basis reasonable basis for contesting such Tax Claim,, and (Hvii) the amount of Taxes in controversy, taking into account the case amount of a judicial appeal, no appeal to the U.S. Supreme Court shall be required of the Tax Indemnitee or shall be permitted by NRG. (I) In the case of a judicial contest, NRG shall have delivered to the Tax Indemnitee a written acknowledgment of its liability under this Section 12.2 for such Taxes, provided, however, that NRG shall not be bound by its acknowledgment of liability if the contest is resolved on the basis of a written decision of the adjudicator that clearly indicates the basis for the conclusion that NRG has no liability under this Section 12.2 all similar and logically related Taxes with respect to such Taxthe transactions contemplated by Operative Documents that could be raised in any other year (including any future year) not barred by the statute of limitations, unless NRG’s conduct of the contest has materially prejudiced the Tax Indemniteeexceeds $50,000.

Conditions of Contest. Notwithstanding the foregoing, no contest with respect to a Tax Claim will be required or permitted pursuant to this Section 12.210.2, and NRG SEMA shall be required to pay the applicable ------------ Taxes without contest, unless: (A1) within thirty (30) 30 days after notice by the Tax Indemnitee to NRG SEMA of such Tax Claim, NRG SEMA shall request in writing to the Tax Indemnitee that such Tax Claim be contested, provided that if a shorter period is required for taking action with respect to such Tax Claim and the Tax Indemnitee notifies NRG SEMA of such requirementrequirement within a reasonable time period (taking into account the time required to take action) after its receipt of notice, NRG shall use reasonable best efforts to request such contest within such shorter period, and such Tax Indemnitee shall take no action for as long as it is legally able to do so, (B2) no Lease Event of Default has occurred and is continuing, (C3) there is no material risk of sale, forfeiture or loss of, or the creation of a Lien (other than a Lease Permitted Lien) on the Facility, Owner Lessor’s 's or Owner Participant’s 's interest in the Facility, the Facility Site, the Undivided Interest, the Ground Interest or any portion or Component thereof or any interest therein as a result of such Tax Claim; provided that this clause (C3) shall not apply if NRG SEMA shall have adequate reserves (taking into account the amount of the Tax Claim and the likelihood of success of a contest) or shall have posted and maintained a bond or otherwise provided security for NRG’s SEMA's obligations under Section 12.2 satisfactory to the Tax Indemnitee in its reasonable discretion------- 10.2, or the Tax is fully paid in either manner specified in clause (E5) ---- below, (D4) there is no risk of imposition of any criminal liability or penalties, (E5) if such contest involves payment of such Tax, NRG SEMA will either advance to the Tax Indemnitee on an interest-free basis and with no after-tax cost to such Tax Indemnitee (a “"Tax Advance”") or pay such Tax ----------- Indemnitee the amount payable by NRG SEMA pursuant to Section 12.2(a10.2(a) above --------------- with respect to such Tax, and such Tax Indemnitee shall promptly pay to NRG SEMA any net Tax Benefit recognized which results from any imputed interest deduction arising from such interest free Tax Advance XXXXXXXXX PARTICIPATION AGREEMENT (L1) -------------------------------------- plus any net Tax Benefit recognized which result results from making any such paymentpayment (determined using the assumptions set forth in the second sentence of the definition of After-Tax Basis). (F6) NRG SEMA agrees to pay (and pays on demand) and with no after-tax cost to such Tax Indemnitee all reasonable costs, losses and expenses incurred by the Tax Indemnitee in connection with the contest of such claim (including, without limitation, all reasonable legal, accounting and investigatory fees and disbursements), (G7) the Tax Indemnitee has been provided at NRG’s SEMA's sole expense with an opinion, reasonably acceptable to such Tax Indemnitee, opinion of independent tax counsel of recognized standing selected by NRG SEMA and reasonably acceptable to the Tax Indemnitee to the effect that there is a Reasonable Basis for contesting such Tax Claim,; provided, that if the -------- subject matter of the contest shall be of a continuing nature and shall have been previously decided by a court of competent jurisdiction pursuant to the contest provisions of this Section 10.2(g), unless there shall have --------------- been a change in law (or interpretation thereof) or a change in facts after the date with respect to which such previous contest shall have been decided, and the Tax Indemnitee shall have received an opinion of independent tax counsel selected by SEMA and reasonably acceptable to the Tax Indemnitee to the effect that as a result of the change in law (or interpretation thereof) or a change in facts, it is more likely than not that the Tax Indemnitee will prevail in such contest. (H) 8) in the case of a judicial appeal, no appeal to the U.S. Supreme Court shall be required of the Tax Indemnitee or shall be permitted by NRG.Indemnitee, and (I9) In the case of a judicial contest, NRG SEMA shall have delivered to the Tax Indemnitee a written acknowledgment of its liability under this Section 12.2 10.2 for such ------------ Taxes, provided, however, that NRG such acknowledgment shall not be required other than to the extent that the basis for the taxing authority's claim is or becomes reasonably clear; provided, further, that SEMA shall not be bound by its acknowledgment of liability if the contest is resolved on the basis of a written decision opinion of the adjudicator that clearly indicates that the basis for the conclusion that NRG is one for which SEMA has no liability under this Section 12.2 10.2 with respect to such Tax, unless NRG’s conduct of the contest has materially prejudiced the Tax Indemnitee.. ------------

Conditions of Contest. Notwithstanding the foregoing, no contest with respect to a Tax Claim will be required or permitted pursuant to this Section 12.29.2, and NRG the Lessee shall be required to pay the applicable Taxes without contest, unless: (A1) within thirty (30) 30 days after written notice by the Tax Indemnitee to NRG the Lessee of such Tax Claim (or such shorter period, to be specified by the Tax Indemnitee in such notice, as required for taking action with respect to such Tax Claim), NRG the Lessee shall request in writing to the Tax Indemnitee that such Tax Claim be contested, provided that if a shorter period is required for taking action with respect to such Tax Claim and the Tax Indemnitee notifies NRG of such requirement, NRG shall use reasonable best efforts to request such contest within such shorter period, and such Tax Indemnitee shall take no action for as long as it is legally able to do so, (B2) no Material Default or Lease Event of Default has occurred and is continuing, (C3) there is no reasonably foreseeable risk of sale, forfeiture or loss of, or the creation of a any Lien (other than a Lease Permitted Lien) on the Facilityon, Owner Lessor’s or Owner Participant’s interest in the Facility, the Facility Site, the Undivided Interest, the Ground Interest Interest, or any portion or Component thereof or any interest therein as a result of such Tax Claim; provided that this clause (C) shall not apply if NRG shall have posted and maintained a bond or otherwise provided security for NRG’s obligations under Section 12.2 satisfactory to the Tax Indemnitee in its reasonable discretion, or the Tax is fully paid in either manner specified in clause (E) below, (D4) there is no reasonably foreseeable risk of imposition of any criminal penaltiespenalties or liabilities, (E5) if such contest involves payment of such Tax, NRG will either advance the Lessee has advanced such amount necessary to pay the Tax to the Tax Indemnitee or its Affiliates on an interest-free basis and with no after-tax Tax cost to such Tax Indemnitee (a “Tax Advance”) or pay such Tax Indemnitee the amount payable by NRG pursuant to Section 12.2(a) above with respect to such Tax, and such Tax Indemnitee shall promptly pay to NRG any net Tax Benefit recognized which results from any imputed interest deduction arising from such interest free Tax Advance plus any net Tax Benefit recognized which result from making any such payment.), (F6) NRG agrees the Lessee has agreed to pay (and pays on demand) ), and with no after-tax Tax cost to such Tax Indemnitee or its Affiliates, all reasonable costs, losses and expenses incurred by the Tax Indemnitee in connection with the contest of such claim (including, without limitation, all reasonable legal, accounting and investigatory fees and disbursementsdisbursements and penalties, interest and additions to Tax), (G7) if the subject matter of such claim shall be of a continuing or recurring nature and shall have previously been decided pursuant to this paragraph (g), there shall have been a change in law after such previously decided claim and such Tax Indemnitee has been provided receives, at NRGthe Lessee’s sole expense with cost, an opinion, reasonably acceptable to opinion of counsel selected by such Tax Indemnitee, of independent tax counsel of recognized standing selected by NRG Indemnitee and reasonably acceptable to the Tax Indemnitee Lessee to the effect that there such change is a Reasonable Basis for contesting such Tax Claimfavorable to the position asserted in the previous contest, (H) in the case of a judicial appeal, 8) no appeal to the U.S. Supreme Court shall be required of the Tax Indemnitee or shall be permitted by NRG.permitted, and (I9) In in the case of a judicial contestTax Claim other than a Lessee-Controlled Contest, NRG the amount of the claim and all future related claims exceeds $25,000 and, if requested by the Tax Indemnitee, the Lessee shall have delivered to the Tax Indemnitee an opinion of Independent Tax Counsel that there is a written acknowledgment of its liability under this Section 12.2 for reasonable basis to contest such Taxes, provided, however, that NRG shall not be bound by its acknowledgment of liability if the contest is resolved on the basis of a written decision of the adjudicator that clearly indicates the basis for the conclusion that NRG has no liability under this Section 12.2 with respect to such Tax, unless NRG’s conduct of the contest has materially prejudiced the Tax IndemniteeClaim.

Conditions of Contest. Notwithstanding the foregoing, no contest with respect to a Tax Claim will be required or permitted pursuant to this Section 12.28.2, and NRG Old Dominion shall be required to pay the applicable Taxes without contest, unless: (Ai) within thirty (30) 30 days after notice by the Tax Indemnitee to NRG Old Dominion of such Tax Claim, NRG Old Dominion shall request in writing to the Tax Indemnitee that such Tax Claim be contested, provided PROVIDED that if a shorter period is required for taking action with respect to such Tax Claim and the Tax Indemnitee notifies NRG Old Dominion of such requirement, NRG Old Dominion shall use reasonable best efforts to request such contest within such shorter period, and such Tax Indemnitee shall take no action for as long as it is legally able to do so, (Bii) no Lease Payment Default or Event of Default under the Equipment Operating Lease or the Foundation Operating Lease has occurred and is continuing, (Ciii) there is no risk of sale, forfeiture or loss of, or the creation of a Lien (other than a Lease Permitted Lien) on the Facility, Owner Lessor’s or Owner Participant’s interest in the Facility, the Facility Site, the Undivided Interest, the Ground Interest Clover Unit 1 or any portion or Component thereof or any interest therein as a result of such Tax Claim; provided , PROVIDED that this clause (Ciii) shall not apply so long as the long term unsecured debt of the guarantor shall be rated at least Baa3 by Moody's or BBB- by S&P, or if NRG xxxxxx of such entities no longer rates the guarantor's long term, unsecured debt, a comparable "investment grade" rating by a successor national rating agency rating the guarantor's long term unsecured debt; and PROVIDED, FURTHER, that if at any time the foregoing credit standard is not met, Old Dominion shall have posted and maintained a bond no longer be entitled to contest or otherwise provided to continue any existing contest of any matter unless Old Dominion shall post security for NRG’s obligations under Section 12.2 satisfactory to the Tax Indemnitee in its reasonable discretion, or the Tax is fully paid in either manner specified in clause (E) belowIndemnitee, (D) there is no risk of imposition of any criminal penalties, (Eiv) if such contest involves payment of such Tax, NRG Old Dominion will either advance to the Tax Indemnitee on an interest-free basis (without reduction for any Tax savings that the Tax Indemnitee may realize as a result of the payment of such Tax) and with no without after-tax cost to such Tax Indemnitee or the Owner Participant, which advance will be repaid in full by the Tax Indemnitee upon the conclusion of the contest (a “"Tax Advance”") or pay such Tax Indemnitee the amount payable by NRG Old Dominion pursuant to Section 12.2(aparagraph (a) above with respect to such Tax, and such Tax Indemnitee shall promptly pay to NRG any net Tax Benefit recognized which results from any imputed interest deduction arising from such interest free Tax Advance plus any net Tax Benefit recognized which result from making any such payment., (Fv) NRG Old Dominion agrees to pay (and pays on demand) and with no without after-tax cost to such Tax Indemnitee or the Owner Participant all reasonable costs, losses costs and expenses incurred by the Tax Indemnitee in connection with the contest of such claim (including, without limitation, all reasonable legal, accounting and investigatory fees and disbursementsdisbursements of counsel), (Gvi) the Tax Indemnitee has been provided at NRG’s Old Dominion's sole expense with an opinion, reasonably acceptable to such Tax Indemnitee, of independent tax counsel of recognized standing selected by NRG Old Dominion and reasonably acceptable to the Tax Indemnitee to the effect that there is a Reasonable Basis reasonable basis for contesting such Tax Claim,, and (Hvii) the amount of Taxes in controversy, taking into account the case amount of a judicial appeal, no appeal to the U.S. Supreme Court shall be required of the Tax Indemnitee or shall be permitted by NRG. (I) In the case of a judicial contest, NRG shall have delivered to the Tax Indemnitee a written acknowledgment of its liability under this Section 12.2 for such Taxes, provided, however, that NRG shall not be bound by its acknowledgment of liability if the contest is resolved on the basis of a written decision of the adjudicator that clearly indicates the basis for the conclusion that NRG has no liability under this Section 12.2 all similar and logically related Taxes with respect to such Taxthe transactions contemplated by Operative Documents that could be raised in any other year (including any future year) not barred by the statute of limitations, unless NRG’s conduct of the contest has materially prejudiced the Tax Indemniteeexceeds $75,000.

Conditions of Contest. Notwithstanding the foregoing, no contest with respect to a Tax Claim will be required or permitted pursuant to this Section 12.29.2, and NRG the Company shall be required to pay the applicable Taxes without contest, unless: (A1) within thirty (30) 30 days after notice by the Tax Indemnitee to NRG the Company of such Tax Claim, NRG the Company shall request in writing to the Tax Indemnitee that such Tax Claim be contested, contested provided that if a shorter period is required for taking action with respect to such Tax Claim and the Tax Indemnitee notifies NRG the Company of such requirement, NRG the Company shall use reasonable best efforts to request such contest within such shorter period, and such Tax Indemnitee shall take no action for as long as it is legally able to do so, (B2) no Significant Lease Default or Lease Event of Default has occurred and is continuing, (C3) there is no material risk of sale, forfeiture or loss of, or the creation of a material Lien (other than a Lease Permitted Lien) on the Facility, Owner Lessor’s 's or Owner Participant’s 's interest in the Facility, the Facility Site, the Undivided Interest, the Ground Interest or any portion or Component thereof or any interest therein as a result of the contest of such Tax ClaimClaim (other than a Permitted Lien); provided that this clause (C3) shall not apply if NRG shall have posted and maintained a bond or otherwise provided the Company posts security for NRG’s obligations under Section 12.2 satisfactory to the Tax Indemnitee in its reasonable discretion, or the Tax is fully paid in either manner specified in clause (E5) below, (D4) there is no risk of imposition of any criminal penaltiespenalties as a result of the contest of such Tax Claim, (E5) if such contest involves payment of such Tax, NRG the Company will either advance to the Tax Indemnitee on an interest-free basis and with no after-tax cost to such Tax Indemnitee (a “"Tax Advance”") or ----------- pay such Tax Indemnitee the amount payable by NRG the Company pursuant to Section 12.2(a9.2(a) above with respect to such Tax, and such Tax Indemnitee shall promptly pay to NRG any net Tax Benefit recognized which results from any imputed interest deduction arising from such interest free Tax Advance plus any net Tax Benefit recognized which result from making any such payment., (F6) NRG the Company agrees to pay (and pays pay on demand) and with no after-tax cost to such Tax Indemnitee all reasonable costs, losses and expenses incurred by the Tax Indemnitee in connection with the contest of such claim (including, without limitation, including all reasonable legal, accounting and investigatory fees and disbursements), (G7) (the amount of the Taxes in controversy, taking into account the amount of all similar and logically related Taxes with respect to the transactions contemplated by Operative Documents that could be raised in any other year (including any future year) not barred by the statute of limitations, exceeds $10,000, (8) the Company shall acknowledge in writing its liability to indemnify the Tax Indemnitee hereunder in respect of such Tax Claim if the contest is not successful, provided that such acknowledgment of liability will not be binding if the contest is resolved on a basis from which it can be established that the Company would not be required to indemnify the Tax Indemnitee under this Section 9.2 in the absence of such acknowledgement, (9) the Tax Indemnitee has been provided at NRG’s the Company's sole expense with an opinion, reasonably acceptable to such Tax Indemnitee, of independent tax counsel of recognized standing selected by NRG the Company and reasonably acceptable to the Tax Indemnitee to the effect that there is a Reasonable Basis for contesting such Tax Claim,, and (H10) in the case of a judicial appeal, no appeal to the U.S. Supreme Court shall be required of the Tax Indemnitee or shall be permitted by NRG. (I) In the case of a judicial contest, NRG shall have delivered to the Tax Indemnitee a written acknowledgment of its liability under this Section 12.2 for such Taxes, provided, however, that NRG shall not be bound by its acknowledgment of liability if the contest is resolved on the basis of a written decision of the adjudicator that clearly indicates the basis for the conclusion that NRG has no liability under this Section 12.2 with respect to such Tax, unless NRG’s conduct of the contest has materially prejudiced the Tax Indemnitee.

Conditions of Contest. Notwithstanding the foregoing, no contest with respect to a Tax Claim will be required or permitted pursuant to this Section 12.211.2, and NRG Oglethorpe shall be required to pay the applicable Taxes without contest, unless: (Ai) within thirty (30) 30 days after notice by the Tax Indemnitee to NRG Oglethorpe of such Tax Claim, NRG Oglethorpe shall request in writing to the Tax Indemnitee that such Tax Claim be contested, provided that if a shorter period is required for taking action with respect to such Tax Claim and the Tax Indemnitee notifies NRG Oglethorpe of such requirement, NRG Oglethorpe shall use reasonable best efforts to request such contest within such shorter period, and such Tax Indemnitee shall take no action for as long as it is legally able to do so, (Bii) no Bankruptcy Default or Payment Default under the Facility Lease or Sublease Bankruptcy Default, Sublease Payment Default or Sublease Event of Default has occurred and is continuing, (Ciii) there is no risk of sale, forfeiture or loss of, or the creation of a Lien (other than a Lease Permitted Lien) on the Facility, Owner Facility Lessor’s or Owner Participant’s interest in the Facility, the Facility Site, the Undivided Interest, the Ground 's Rocky Mountain Interest or any portion or Component thereof or any interest therein as a result of such Tax Claim; , provided that this clause (Ciii) shall not apply if NRG shall have posted and maintained a bond or otherwise provided Oglethorpe posts security for NRG’s obligations under Section 12.2 satisfactory to the Tax Indemnitee in its reasonable sole discretion, or the Tax is fully paid in either manner specified in clause (Ev) below, (Div) there is no risk of imposition of any criminal penalties, (Ev) if such contest involves payment of such Tax, NRG Oglethorpe will either advance to the Tax Indemnitee on an interest-free basis (without reduction for any Tax savings that the Tax Indemnitee may realize as a result of the payment of such Tax) and with no after-after tax cost to such Tax Indemnitee or the Owner Participant (a “"Tax Advance”") or pay such Tax Indemnitee the amount payable by NRG Oglethorpe pursuant to Section 12.2(a11.2(a) above with respect to such Tax, and such Tax Indemnitee shall promptly pay to NRG any net Tax Benefit recognized which results from any imputed interest deduction arising from such interest free Tax Advance plus any net Tax Benefit recognized which result from making any such payment., (Fvi) NRG Oglethorpe agrees to pay (and pays on demand) and with no after-after tax cost to such Tax Indemnitee or the Owner Participant all reasonable costs, losses costs and expenses incurred by the Tax Indemnitee in connection with the contest of such claim (including, without limitation, all reasonable legal, accounting and investigatory fees and disbursementsdisbursements of counsel), (Gvii) the Tax Indemnitee has been provided at NRG’s Oglethorpe's sole expense with an opinion, reasonably acceptable to such Tax Indemnitee, of independent tax counsel of recognized standing selected by NRG Oglethorpe and reasonably acceptable to the Tax Indemnitee to the effect that there is a Reasonable Basis reasonable basis within the meaning of ABA Formal Opinion No. 85-352 for contesting such Tax ClaimClaim or in the case of an appeal from an adverse lower court decision, that it is more likely than not that the lower court's opinion would be reversed or substantially modified, (Hviii) the amount of Taxes in controversy, taking into account the amount of all similar and logically related Taxes with respect to the transactions contemplated by Operative Documents that could be raised in any other year (including any future year) not barred by the statute of limitations, exceeds $50,000, (ix) Oglethorpe shall acknowledge in writing its liability to indemnify the Tax Indemnitee hereunder in respect of such claim if the contest is not successful, provided that such acknowledgment of liability will not be binding if the contest is resolved by the final decision of a court of competent jurisdiction on a clearly articulated basis which establishes that Oglethorpe would not be responsible to indemnify the Tax Indemnity under subsection 11.2(a) hereof in the absence of such acknowledgement, and (x) in the case of a judicial appeal, no appeal to the U.S. Supreme Court shall be required of the Tax Indemnitee or shall be permitted by NRGpermitted. (I) In the case of a judicial contest, NRG shall have delivered to the Tax Indemnitee a written acknowledgment of its liability under this Section 12.2 for such Taxes, provided, however, that NRG shall not be bound by its acknowledgment of liability if the contest is resolved on the basis of a written decision of the adjudicator that clearly indicates the basis for the conclusion that NRG has no liability under this Section 12.2 with respect to such Tax, unless NRG’s conduct of the contest has materially prejudiced the Tax Indemnitee.

Conditions of Contest. Notwithstanding the foregoing, no contest with respect to a Tax Claim will be required or permitted pursuant to this Section 12.210.2, and NRG SEMA shall be required to pay the applicable Taxes ------------ without contest, unless: (A1) within thirty (30) 30 days after notice by the Tax Indemnitee to NRG SEMA of such Tax Claim, NRG SEMA shall request in writing to the Tax Indemnitee that such Tax Claim be contested, provided that if a shorter period is required for taking action with respect to such Tax Claim and the Tax Indemnitee notifies NRG SEMA of such requirementrequirement within a reasonable time period (taking into account the time required to take action) after its receipt of notice, NRG shall use reasonable best efforts to request such contest within such shorter period, and such Tax Indemnitee shall take no action for as long as it is legally able to do so, (B2) no Lease Event of Default has occurred and is continuing, (C3) there is no material risk of sale, forfeiture or loss of, or the creation of a Lien (other than a Lease Permitted Lien) on the Facility, Owner Lessor’s 's or Owner Participant’s 's interest in the Facility, the Facility Site, the Undivided Interest, the Ground Interest or any portion or Component thereof or any interest therein as a result of such Tax Claim; provided that this clause (C3) shall not apply if NRG SEMA shall have adequate reserves (taking into account the amount of the Tax Claim and the likelihood of success of a contest) or shall have posted and maintained a bond or otherwise provided security for NRG’s SEMA's obligations under Section 12.2 satisfactory to the Tax Indemnitee in its reasonable discretion------- 10.2, or the Tax is fully paid in either manner specified in clause (E5) ---- below, (D4) there is no risk of imposition of any criminal liability or penalties, (E5) if such contest involves payment of such Tax, NRG SEMA will either advance to the Tax Indemnitee on an interest-free basis and with no after-tax cost to such Tax Indemnitee (a “"Tax Advance”") or pay such Tax ----------- Indemnitee the amount payable by NRG SEMA pursuant to Section 12.2(a10.2(a) above --------------- with respect to such Tax, and such Tax Indemnitee shall promptly pay to NRG SEMA any net Tax Benefit recognized which results from any imputed interest deduction arising from such interest free Tax Advance plus any net Tax Benefit recognized which result results from making any such paymentpayment (determined using the assumptions set forth in the second sentence of the definition of After-Tax Basis). (F6) NRG SEMA agrees to pay (and pays on demand) and with no after-tax cost to such Tax Indemnitee all reasonable costs, losses and expenses incurred by the Tax Indemnitee in connection with the contest of such claim (including, without limitation, all reasonable legal, accounting and investigatory fees and disbursements), (G7) the Tax Indemnitee has been provided at NRG’s SEMA's sole expense with an opinion, reasonably acceptable to such Tax Indemnitee, opinion of independent tax counsel of recognized standing selected by NRG SEMA and reasonably acceptable to the Tax Indemnitee to the effect that there is a Reasonable Basis for contesting such Tax Claim,; provided, that if the -------- subject matter of the contest shall be of a continuing nature and shall have been previously decided by a court of competent jurisdiction pursuant to the contest provisions of this Section 10.2(g), unless there shall have --------------- been a change in law (or interpretation thereof) or a change in facts after the date with respect to which such previous contest shall have been decided, and the Tax Indemnitee shall have received an opinion of independent tax counsel selected by SEMA and reasonably acceptable to the Tax Indemnitee to the effect that as a result of the change in law (or interpretation thereof) or a change in facts, it is more likely than not that the Tax Indemnitee will prevail in such contest. (H) 8) in the case of a judicial appeal, no appeal to the U.S. Supreme Court shall be required of the Tax Indemnitee or shall be permitted by NRG.Indemnitee, and (I9) In the case of a judicial contest, NRG SEMA shall have delivered to the Tax Indemnitee a written acknowledgment of its liability under this Section 12.2 10.2 for such ------------ Taxes, provided, however, that NRG such acknowledgment shall not be required other than to the extent that the basis for the taxing authority's claim is or becomes reasonably clear; provided, further, that SEMA shall not be bound by its acknowledgment of liability if the contest is resolved on the basis of a written decision opinion of the adjudicator that clearly indicates that the basis for the conclusion that NRG is one for which SEMA has no liability under this Section 12.2 10.2 with respect to such Tax, unless NRG’s conduct of the contest has materially prejudiced the Tax Indemnitee.. ------------

Conditions of Contest. Notwithstanding the foregoing, no contest with respect to a Tax Claim will be required or permitted pursuant to this Section 12.2SECTION 10.2, and NRG Xxxxx City shall be required to pay the applicable Taxes without contest, unless: (A) within thirty (30) 30 days after notice by the Tax Indemnitee to NRG Xxxxx City of such Tax Claim, NRG Xxxxx City shall request in writing to the Tax Indemnitee that such Tax Claim be contested, provided PROVIDED that if a shorter period is required for taking action with respect to such Tax Claim and the Tax Indemnitee notifies NRG Xxxxx City of such requirement, NRG Xxxxx City shall use reasonable best efforts to request such contest within a reasonable time period (taking into account the time required to take action) after its receipt of notice within such shorter period, and such Tax Indemnitee shall take no action for as long as it is legally able to do so, (B) no Lease Event of Default has occurred and is continuing, (C) there is no risk of sale, forfeiture or loss of, or the creation of a Lien (other than a Lease Permitted Lien) on the Facility, Owner Lessor’s 's or Owner Participant’s 's interest in the Facility, the Facility Site, the Undivided Interest, the Ground Interest or 67 any portion or Component thereof or any interest therein as a result of such Tax Claim; provided PROVIDED that this clause (C) shall not apply if NRG Xxxxx City shall have posted and maintained a bond or otherwise provided security for NRG’s Xxxxx City's obligations under Section 12.2 SECTION 10.2, in each case satisfactory to the Tax Indemnitee in its reasonable discretionas to coverage and credit, or the Tax is fully paid in either manner specified in clause (E) below, (D) there is no risk of imposition of any criminal liability or penalties, (E) if such contest involves payment of such Tax, NRG Xxxxx City will either advance to the Tax Indemnitee on an interest-free basis and with no after-tax cost to such Tax Indemnitee (a “Tax Advance”"TAX ADVANCE") or pay such Tax Indemnitee the amount payable by NRG Xxxxx City pursuant to Section 12.2(aSECTION 10.2(a) above with respect to such Tax, and such Tax Indemnitee shall promptly pay to NRG Xxxxx City any net Tax Benefit recognized which results from any imputed interest deduction arising from such interest free Tax Advance plus any net Tax Benefit recognized which result results from making any such paymentpayment (determined using the assumptions set forth in the second sentence of the definition of After-Tax Basis). (F) NRG Xxxxx City agrees to pay (and pays on demand) and with no after-tax cost to such Tax Indemnitee all reasonable costs, losses and expenses incurred by the Tax Indemnitee in connection with the contest of such claim (including, without limitation, all reasonable legal, accounting and investigatory fees and disbursements), (G) the Tax Indemnitee has been provided at NRG’s Xxxxx City's sole expense with an opinion, reasonably acceptable to such Tax Indemnitee, of independent tax counsel of recognized standing selected by NRG Xxxxx City and reasonably acceptable to the Tax Indemnitee to the effect that there is a Reasonable Basis for contesting such Tax Claim; PROVIDED that if the subject matter of the contest shall have previously been decided by a court of competent jurisdiction pursuant to the contest provisions of this SECTION 10.2(g), such opinion shall be that as a result of a change in law or fact, it is more likely than not that the Tax Indemnitee will prevail, (H) in the case of a judicial appeal, no appeal to the U.S. Supreme Court shall be required of the Tax Indemnitee or shall be permitted by NRGXxxxx City. (I) In the case of a judicial contest, NRG Xxxxx City shall have delivered to the Tax Indemnitee a written acknowledgment of its liability under this Section 12.2 SECTION 10.2 for such Taxes, providedPROVIDED, howeverHOWEVER, that NRG Xxxxx City shall not be bound by its acknowledgment of liability if the contest is resolved on the basis of a written decision of the adjudicator that clearly indicates the basis for the conclusion that NRG Xxxxx City has no liability under this Section 12.2 SECTION 10.2 with respect to such Tax, unless NRG’s Xxxxx City's conduct of the contest has materially prejudiced the Tax Indemnitee.

Conditions of Contest. Notwithstanding the foregoing, no contest with respect to a Tax Claim will be required or permitted pursuant to this Section 12.29.2, and NRG the Lessee shall be required to pay the applicable Taxes without contest, unless: (A1) within thirty (30) 30 days after written notice by the Tax Indemnitee to NRG the Lessee of such Tax Claim (or such shorter period, to be specified by the Tax Indemnitee in such notice, as required for taking action with respect to such Tax Claim), NRG the Lessee shall request in writing to the Tax Indemnitee that such Tax Claim be contested, provided that if a shorter period is required for taking action with respect to such Tax Claim and the Tax Indemnitee notifies NRG of such requirement, NRG shall use reasonable best efforts to request such contest within such shorter period, and such Tax Indemnitee shall take no action for as long as it is legally able to do so, (B2) no Material Default or Lease Event of Default has occurred and is continuing, (C3) there is no reasonably foreseeable risk of sale, forfeiture or loss of, or the creation of a any Lien (other than a Lease Permitted Lien) on the Facilityon, Owner Lessor’s or Owner Participant’s interest in the Facility, the Facility Site, the Undivided Interest, the Ground Interest Interest, or any portion or Component thereof or any interest therein as a result of such Tax Claim; provided that this clause (C) shall not apply if NRG shall have posted and maintained a bond or otherwise provided security for NRG’s obligations under Section 12.2 satisfactory to the Tax Indemnitee in its reasonable discretion, or the Tax is fully paid in either manner specified in clause (E) below, (D4) there is no reasonably foreseeable risk of imposition of any criminal penaltiespenalties or liabilities, (E5) if such contest involves payment of such Tax, NRG will either advance the Lessee has advanced such amount necessary to pay the Tax to the Tax Indemnitee or its Affiliates on an interest-free basis and with no after-tax Tax cost to such Tax Indemnitee (a “Tax Advance”) or pay such Tax Indemnitee the amount payable by NRG pursuant to Section 12.2(a) above with respect to such Tax, and such Tax Indemnitee shall promptly pay to NRG any net Tax Benefit recognized which results from any imputed interest deduction arising from such interest free Tax Advance plus any net Tax Benefit recognized which result from making any such payment.), (F6) NRG agrees the Lessee has agreed to pay (and pays on demand) ), and with no after-tax Tax cost to such Tax Indemnitee or its Affiliates, all reasonable costs, losses and expenses incurred by the Tax Indemnitee in connection with the contest of such claim (including, without limitation, all reasonable legal, 58 accounting and investigatory fees and disbursementsdisbursements and penalties, interest and additions to Tax), (G7) if the subject matter of such claim shall be of a continuing or recurring nature and shall have previously been decided pursuant to this paragraph (g), there shall have been a change in law after such previously decided claim and such Tax Indemnitee has been provided receives, at NRGthe Lessee’s sole expense with cost, an opinion, reasonably acceptable to opinion of counsel selected by such Tax Indemnitee, of independent tax counsel of recognized standing selected by NRG Indemnitee and reasonably acceptable to the Tax Indemnitee Lessee to the effect that there such change is a Reasonable Basis for contesting such Tax Claimfavorable to the position asserted in the previous contest, (H) in the case of a judicial appeal, 8) no appeal to the U.S. Supreme Court shall be required of the Tax Indemnitee or shall be permitted by NRG.permitted, and (I9) In in the case of a judicial contestTax Claim other than a Lessee-Controlled Contest, NRG the amount of the claim and all future related claims exceeds $25,000 and, if requested by the Tax Indemnitee, the Lessee shall have delivered to the Tax Indemnitee an opinion of Independent Tax Counsel that there is a written acknowledgment of its liability under this Section 12.2 for reasonable basis to contest such Taxes, provided, however, that NRG shall not be bound by its acknowledgment of liability if the contest is resolved on the basis of a written decision of the adjudicator that clearly indicates the basis for the conclusion that NRG has no liability under this Section 12.2 with respect to such Tax, unless NRG’s conduct of the contest has materially prejudiced the Tax IndemniteeClaim.

Conditions of Contest. Notwithstanding Not withstanding the foregoing, in no event shall the Sublessee be permitted to contest with respect or continue to a contest (or shall the Tax Indemnitee be required to contest or continue to contest) any Tax Claim will be required or permitted pursuant to this Section 12.2, and NRG shall be required to pay the applicable Taxes without contest21.1, unless: (A) within thirty (30) 30 days after notice by the Tax Indemnitee to NRG the Sublessee of such Tax ClaimClaim (or such shorter period as is reasonably specified by the Tax Indemnitee if any contest of such Tax Claim must be commence prior to the expiration of such 30-day period), NRG the Sublessee shall request in writing to the Tax Indemnitee that such Tax Claim be contested, provided that if a shorter period is required for taking action with respect to such Tax Claim and the Tax Indemnitee notifies NRG of such requirement, NRG shall use reasonable best efforts to request such contest within such shorter period, and such Tax Indemnitee shall take no action for as long as it is legally able to do so, (B) no Lease Sublease Event of Default has occurred and is continuingoccurring, (C) there is no material risk of sale, forfeiture or loss of, or the creation of a material Lien on the Facility or any Component or portion thereof as a result of the contest of such Tax Claim (other than a Lease Permitted Lien) on the Facility, Owner Lessor’s or Owner Participant’s interest in the Facility, the Facility Site, the Undivided Interest, the Ground Interest or any portion or Component thereof or any interest therein as a result of such Tax Claim); provided that this clause (C3) shall not apply if NRG shall have posted and maintained the Sublessee posts a bond or otherwise provided other security for NRG’s obligations under Section 12.2 (which may include cash reserves) reasonably satisfactory to the Tax Indemnitee in its reasonable discretion, or the Tax is Taxes are fully paid in either manner specified in clause (E5) below, (D) there is no material risk of imposition of any criminal penaltiesliability to the Tax Indemnitee as a result of the contest of such Tax Claim, (E) if such contest involves payment of such TaxTaxes, NRG will the Sublessee either advance advances to the Tax Indemnitee (on an interest-free basis and with no afteran After-tax cost to Tax Basis) the amount of such Tax Indemnitee payment (a “Tax Advance”) or pay such pays the Tax Indemnitee (on an After-Tax Basis) the amount payable by NRG the Sublessee pursuant to Section 12.2(a21.1(a) above with respect to such Tax, and such Tax Indemnitee shall promptly pay to NRG any net Tax Benefit recognized which results from any imputed interest deduction arising from such interest free Tax Advance plus any net Tax Benefit recognized which result from making any such payment.Taxes, (F) NRG the Sublessee agrees to pay (and pays shall pay on demand) demand and with no afteron an After-tax cost to such Tax Indemnitee Basis all reasonable costs, losses out-of-pocket costs and expenses incurred by that the Tax Indemnitee may incur in connection with the contest of such claim Tax Claim (including, without limitation, including all reasonable legal, accounting and investigatory fees and disbursements), (G) the amount of the Taxes in controversy, taking into account the amount of all similar and logically related Taxes with respect to the transactions contemplated by the Operative Documents and the Facility Sublease Documents that could be raised in any other year (including any future year) not barred by the statute of limitations, exceeds $25,000, and (H) the Tax Indemnitee has been provided at NRG’s sole expense with an opinion, reasonably acceptable to such Tax Indemnitee, opinion of independent tax counsel of recognized standing selected by NRG the Sublessee and reasonably acceptable to the Tax Indemnitee to the effect that there is a Reasonable Basis for contesting such Tax Claim, (H) in the case of a judicial appeal, no appeal to the U.S. Supreme Court shall be required of the Tax Indemnitee or shall be permitted by NRG. (I) In the case of a judicial contest, NRG shall have delivered to the Tax Indemnitee a written acknowledgment of its liability under this Section 12.2 for such Taxes, provided, however, that NRG shall not be bound by its acknowledgment of liability if the contest is resolved on the basis of a written decision of the adjudicator that clearly indicates the basis for the conclusion that NRG has no liability under this Section 12.2 with respect to such Tax, unless NRG’s conduct of the contest has materially prejudiced the Tax Indemnitee.