Common use of Excluded Taxes Clause in Contracts

Excluded Taxes. The indemnity provided for in paragraph (a) above shall not extend to any of the following Taxes (the “Excluded Taxes”): (i) Taxes imposed on, based on or measured by gross or net income or receipts or capital or net worth (other than sales, use, property, ad valorem, rental, stamp, transfer, excise, license and value added taxes, and other than franchise tax imposed by the State of Illinois upon the Owner Participant, the Owner Lessor or their respective Affiliates under the Business Corporation Act of 1983, as amended, or any successor legislation thereto); (ii) Taxes attributable to any period after expiration or other termination of the Facility Lease and, where required by the Facility Lease, return of the Facility to the Owner Lessor or its designee in accordance with the Facility Lease (or, in the case of the Lease Indenture Trustee, after the repayment of the Lessor Notes); (iii) Taxes imposed on a Tax Indemnitee attributable to the gross negligence or willful misconduct of such Tax Indemnitee or any Related Party of such Tax Indemnitee; (iv) Taxes in the nature of capital gain, accumulated earnings, personal holding company, excess profits, succession or estate, minimum, alternative minimum, preference, franchise, conduct of business and other similar taxes (other than franchise tax imposed by the State of Illinois upon the Owner Participant, the Owner Lessor or their respective Affiliates under the Business Corporation Act of 1983, as amended, or any successor legislation thereto); (v) Taxes imposed on a Tax Indemnitee that arise out of, or are caused by, any act or omission of such Tax Indemnitee (or any Related Party thereof) that is expressly prohibited by any Operative Document or by a breach by such Tax Indemnitee (or any Related Party thereof) of any of its representations, warranties or covenants under any Operative Document; (vi) Taxes arising out of, or caused by, any voluntary assignment, sale, transfer or other voluntary disposition, or any involuntary transfer or disposition resulting from a bankruptcy or similar proceeding for relief of debtors in which such Tax Indemnitee is a debtor, by (or a foreclosure by a creditor of) (A) the Owner Participant of any of its Beneficial Interest, (B) the Owner Lessor of all or any of its interest in the Facility or the Facility Site, or (C) the Lease Indenture Trustee of any interest in the Lessor Notes or the Indenture Estate unless (i) such transfer or disposition occurs during the continuance of a Lease Event of Default, or (ii) such transfer or disposition is required under, or occurs pursuant to, the Operative Documents and the price paid is other than Fair Market Sales Value; (vii) Taxes arising in connection with Owner Participant’s Liens or Owner Lessor’s Liens; (viii) Taxes imposed on any assignee or successor-in-interest to a Tax Indemnitee to the extent any such Taxes exceed the Taxes that would have been imposed had no assignment or transfer taken place determined under the law as in effect on the date of transfer; provided that this exclusion shall not apply to the computation of the gross-up amounts necessary to make a payment on an After-Tax Basis, nor to a transferee, assignee or successor in interest that acquires the interest of a Tax Indemnitee pursuant to a transfer or disposition in connection with the exercise of remedies during the continuance of a Lease Event of Default; (ix) Taxes that are included as a part of Transaction Costs; (x) Taxes imposed on, based on, or measured by any compensation that any Owner Trustee or the Lease Indenture Trustee receives for its services; (xi) any U.S. federal income taxes, including with respect to the Owner Participant, Taxes for which NRG is obligated to indemnify the Owner Participant under the Tax Indemnity Agreement (or which are expressly excluded from indemnification thereunder); (xii) other than with respect to the Certificateholders, the Lease Indenture Trustee and the Pass Through Trustee or any Related Party in respect of any thereof (a “Lender Indemnitee”), Taxes resulting from the Owner Lessor not being treated as a grantor trust or a nonentity for federal, state or local income tax purposes; (xiii) Taxes attributable to the failure of any Tax Indemnitee to comply with certification, information, documentation, reporting or other similar requirements concerning the nationality, residence, identity, connection with the jurisdiction imposing such Taxes or other similar matters; provided that the foregoing exclusion shall only apply if such Tax Indemnitee is eligible and obligated to comply with such requirement and shall have been given timely written notice of such requirement by NRG; (xiv) Taxes imposed on a Tax Indemnitee where the Tax Indemnitee’s breach of its contest obligations under Section 12.2(g) effectively precludes NRG’s ability to contest the Taxes; (xv) Taxes imposed on any Tax Indemnitee resulting from an amendment, modification, supplement or waiver to any Operative Document which was not requested by Midwest or NRG and as to which Midwest or NRG is not a party and the Tax Indemnitee (or, in the case of the Owner Participant, the Facility Lessor if acting at the express direction of the Owner Participant) is a party unless such amendment, modification, supplement or waiver (A) was required by applicable law or the Operative Documents, (B) may be necessary or appropriate to, and is in conformity with, any amendment, modification, supplement or waiver to any Operative Document agreed to by Midwest or NRG in writing, or (C) is made while a Lease Event of Default shall have occurred and be continuing; (xvi) Taxes imposed under Section 4975 of the Code, Section 406 of ERISA or any comparable laws of any governmental authority to the extent resulting from action by such Tax Indemnitee other than, in the case of the Owner Participant, the taking of any action at the request or direction of NRG; (xvii) Taxes imposed to the extent such Taxes result from the Tax Indemnitee (and in the case of the Owner Lessor, only if acting at the written direction of the Owner Participant) being organized under the laws of a jurisdiction other than the United States or any State thereof (other than, in the case of a Lender Indemnitee, such Taxes which did not exist under law in effect on the date such Lender Indemnitee became a party to this transaction); (xviii) Any Taxes imposed on a Tax Indemnitee to the extent that such taxes would not have been imposed but for the activities of such Tax Indemnitee unrelated to the transactions contemplated hereby; (xix) Taxes imposed on a Tax Indemnitee in the nature of interest, penalties, fines and additions to tax (i) payable as a result of such Tax Indemnitee’s failure to file, in a procedurally proper manner and on a timely basis, any tax reports, returns or statements as to which NRG has timely notified such Tax Indemnitee in writing of the requirement to file, unless such failure is otherwise caused by the failure of NRG to fulfill its obligations, if any, with respect to such return (including provision of information sufficient to enable such Tax Indemnitee to file such report, return or statement), or (ii) to the extent not attributable to or resulting from Taxes for which an indemnity is provided hereunder; and (xx) Taxes for as long as such Taxes are being contested pursuant to the contest provisions contained in Section 12.2(g).

Excluded Taxes. The indemnity provided for in paragraph (a) above shall not extend to any of the following Taxes (the “"Excluded Taxes”): (i) "): Taxes imposed by the United States federal government or any state or local government, any political subdivision of any of the foregoing, imposed on, based on or measured by gross or net income or receipts or income, receipts, capital gain, capital or net worth worth, or conduct of business (other than than, in each case, Taxes that are or are in the nature of sales, transaction privilege taxes, use, property, ad valorem, rental, stamplicense, transfer, excise, license and value added (to the extent value added taxes are not imposed in clear and direct substitution for income taxes) or property taxes) ("Income Taxes"), including any such Taxes collected by way of withholding, minimum or alternative minimum taxes, and franchise taxes; provided that this exclusion (i) shall not affect any express requirement that payments be made on an "after-tax" basis; Taxes imposed on a Tax Indemnitee other than franchise tax imposed by the State of Illinois upon the Owner Participant, the Owner Lessor or their respective Affiliates under the Business Corporation Act of 1983, as amended, or any successor legislation thereto); (ii) Taxes a Certificateholder Indemnitee that are attributable to any period act, event or omission by such Tax Indemnitee that occurs after expiration or other termination of the Facility Lease and, where required by the Facility Lease, return and surrender of the Facility Undivided Interest to the Owner Lessor or its designee successors (or in the case of a Certificateholder Indemnitee, Taxes imposed for any period after the repayment of the Lease Debt) in accordance with the Facility Lease Lease, (as opposed to any act, event or omission occurring prior to or simultaneous with such expiration, termination or surrender (or, in the case of the a Certificateholder Indemnitee, such repayment)), provided that this exclusion shall not apply so long as a Lease Indenture Trustee, after the repayment Event of the Lessor Notes); (iii) Default shall have occurred and be continuing; Taxes imposed on a Tax Indemnitee that are attributable to the gross negligence or willful misconduct of such Tax Indemnitee, unless such negligence or misconduct is imputed to such Tax Indemnitee solely as a result of its participation in the transactions contemplated by the Operative Documents and the South Point Ground Lease (giving effect to its assignment to the Owner Lessor pursuant to the Assignment Agreement) and not as a result of any action or any Related Party of inaction by such Tax Indemnitee; (iv) Taxes in the nature of capital gain, accumulated earnings, personal holding company, excess profits, succession or estate, minimum, alternative minimum, preference, franchise, conduct of business and other similar taxes (other than franchise tax imposed by the State of Illinois upon the Owner Participant, the Owner Lessor or their respective Affiliates under the Business Corporation Act of 1983, as amended, or any successor legislation thereto); (v) ; Taxes imposed on a Tax Indemnitee that arise out of, or are caused by, any act or omission of such Tax Indemnitee (or any Related Party thereof) that is expressly prohibited by any Operative Document or by arising from a breach by such Tax Indemnitee (or any Related Party thereof) of any of its representations, warranties or covenants under any Operative Document except to the extent attributable to any breach by the Facility Lessee or any other Calpine Party of any covenant, representation or warranty contained in any Operative Document; ; Taxes (viA) Taxes arising out of, or caused by, that are attributable to any voluntary direct or indirect assignment, sale, transfer or other voluntary disposition, disposition or any an involuntary direct or indirect transfer or disposition resulting from arising out of or caused by a bankruptcy or similar proceeding for relief of debtors in which such Tax Indemnitee is a debtor, by (debtor or a foreclosure by a creditor ofof (1) (A) in the case of the Owner Lessor or the Owner Participant, the Owner Participant of any all or part of its Beneficial Member Interest or Undivided Interest, (B2) in the case of the Owner Lessor or the Owner Participant, the Owner Lessor of all or any part of its interest in the Facility or the Facility SiteSite (other than to a successor Lessor Manager), or (C3) in the Lease case of the Indenture Trustee, the Indenture Trustee of any interest in the Lessor Notes Lease Debt or the Indenture Estate Estate, or (4) in the case of the Owner Lessor or the Owner Participant any direct or indirect interest in the Owner Lessor or the Owner Participant, including by reason of an election made pursuant to Section 338 of the Code, in each case to the extent imposed by reason of any transfer described in this clause (v)(A), or (B) to the extent that, under law in effect on the date of the transfer such Taxes exceed the amount of Taxes that would be indemnified hereunder had there been no such assignment, sale, transfer or other voluntary disposition, unless (i) such transfer or disposition occurs during the continuance of a Lease Event of Default, Default or (ii) such transfer or disposition is required under, or occurs otherwise pursuant to, to the Facility Lessee's exercise of its rights under the Operative Documents and the price paid is other than Fair Market Sales Value; (vii) Taxes arising in connection with Owner Participant’s Liens or Owner Lessor’s Liens; (viii) Taxes imposed on any assignee or successor-in-interest to a Tax Indemnitee to the extent any such Taxes exceed the Taxes that would have been imposed had no assignment or transfer taken place determined under the law as in effect on the date of transferDocuments; provided that this exclusion shall not apply with respect to any initial syndication of interests in the computation of the gross-up amounts necessary Owner Participant accomplished prior to make a payment December 29, 2001; Taxes imposed on an After-Tax Basis, nor to a transferee, assignee or successor in interest that acquires the interest of a Tax Indemnitee pursuant that would not have been imposed but for the creation or existence of any Owner Lessor's Lien or Owner Participant's Lien attributable to a transfer or disposition in connection with the exercise of remedies during the continuance of a Lease Event of Default; (ix) such Tax Indemnitee; Taxes that are included as a part of Transaction Costs; (x) the cost of the Facility; Taxes imposed on, on the Lessor Manager or the Indenture Trustee that are based on, on or measured by any the fees or other compensation that any Owner Trustee received by the Lessor Manager or the Lease Indenture Trustee receives for its services; (xi) any U.S. federal income taxes, including with acting in their respective capacities. With respect to the Owner Participant, Taxes for which NRG the Facility Lessee is obligated to indemnify the Owner Participant under the Tax Indemnity Agreement (or which are expressly excluded from indemnification thereunder); ; 57 Taxes that are imposed on a Tax Indemnitee (xii) other than with respect to the Certificateholders, the Lease Indenture Trustee and the Pass Through Trustee or any Related Party in respect of any thereof (a “Lender Certificateholder Indemnitee”), Taxes ) resulting from the Owner Lessor not being treated as a grantor trust or a nonentity other conduit entity for federal, state or local income tax purposes; (xiii) , but only to the extent such Taxes exceed Taxes indemnified hereunder that otherwise would have been imposed and are otherwise indemnifiable; Taxes imposed on a Tax Indemnitee that are attributable to the failure of any such Tax Indemnitee to comply with certification, information, documentation, reporting or other similar requirements concerning the nationality, residence, identity, identity or connection with the jurisdiction imposing such Taxes or other similar mattersTaxes; provided that the foregoing exclusion shall only apply if such compliance is required by statute or regulation of the jurisdiction imposing such Taxes as a precondition to relief or exemption from or reduction in such Taxes, such Tax Indemnitee is eligible and obligated to comply with such requirement and requirement, the Facility Lessee shall have been given such Tax Indemnitee timely written notice of such requirement by NRG; (xiv) Taxes imposed on a and the Tax Indemnitee where the Tax Indemnitee’s breach shall have determined in good faith that compliance with any such requirement shall not result in any identified non-immaterial adverse effect to its interests or to those of its contest obligations Affiliates; Taxes consisting of interest, penalties, additions to tax or fines resulting from a failure of such Tax Indemnitee to properly and timely file returns as required by a taxing authority unless such failure is attributable to the Facility Lessee not providing information that it is expressly required to provide under Section 12.2(g) effectively precludes NRG’s ability to contest the Taxes; (xv) Operative Documents; Taxes imposed on any Tax Indemnitee resulting from an amendment, modification, supplement to or waiver to of any provision of, any Operative Document which amendment, modification, supplement or waiver was not requested by Midwest or NRG consented to by the Facility Lessee, and as to which Midwest or NRG the Facility Lessee is not a party and the Tax Indemnitee (or, in the case of the Owner Participant, the Facility Owner Lessor if acting at the express direction of the Owner ParticipantParticipant or any Related Party) is a party unless party, provided that this exclusion shall not apply if such amendment, modification, supplement or waiver (A) was required by applicable law or the Operative Documents, (B) may be necessary or appropriate to, and is in conformity with, any amendment, modification, supplement or waiver amendment to any Operative Document agreed to requested by Midwest or NRG the Facility Lessee in writing, or (C) is made while was expressly consented to by a Lease Event of Default shall have occurred and be continuing; (xvi) Calpine Party in writing; Taxes imposed under as a result of, or in connection with, any "prohibited transaction," within the meaning of Section 4975 of the Code, Section 406 of ERISA or any comparable laws of any governmental authority to the extent Governmental Entity, engaged in by any Tax Indemnitee (which for this purpose shall include any ERISA Affiliate thereof) resulting from action the breach by such Tax Indemnitee other than, of any of its representations or warranties contained in the case Section 3.4(g) or Section 8.2 of the Owner Participant, the taking of any action at the request or direction of NRG; (xvii) Participation Agreement; Taxes imposed to the extent such Taxes result from the Tax Indemnitee (and in the case of the Owner Lessor, only if acting at the written direction of the Owner Participant) being organized under the laws of a jurisdiction other than the United States or any State thereof (other than, in the case of a Lender Indemnitee, such Taxes which did would not exist under law in effect on the date such Lender Indemnitee became a party to this transaction); (xviii) Any Taxes have been imposed on a Tax Indemnitee to the extent if such Tax Indemnitee were a United States Person; and Taxes imposed that such taxes would not have been imposed on a Tax Indemnitee but for the activities in the taxing jurisdiction of such Tax Indemnitee or any Affiliate thereof unrelated to the transactions contemplated hereby; (xix) by the Operative Documents other than Taxes imposed on a Tax Indemnitee that are or are in the nature of interestsales, penaltiestransaction privilege taxes, fines and additions to tax use, rental or license taxes, value added taxes (i) payable as a result of such Tax Indemnitee’s failure to file, in a procedurally proper manner and on a timely basis, any tax reports, returns or statements as to which NRG has timely notified such Tax Indemnitee in writing of the requirement to file, unless such failure is otherwise caused by the failure of NRG to fulfill its obligations, if any, with respect to such return (including provision of information sufficient to enable such Tax Indemnitee to file such report, return or statement), or (ii) except to the extent not attributable to value added taxes are imposed in clear and direct substitution for income taxes) or resulting from Taxes for which an indemnity is provided hereunder; and (xx) Taxes for as long as such Taxes are being contested pursuant to the contest provisions contained in Section 12.2(g)property taxes.

Excluded Taxes. The indemnity provided for in paragraph (a) above shall not extend to any of the following Taxes (the “Excluded Taxes”"EXCLUDED TAXES"): (i) Taxes imposed by the United States federal government, or Taxes imposed on, based on or measured by gross or net income or receipts or capital or net worth (in each case, other than Taxes that are or are in the nature of sales, use, property, ad valorem, rental, stamp, transfer, excise, license license, and value added taxes, and other than franchise tax imposed taxes or Taxes collected by withholding against payments under the State of Illinois upon the Owner ParticipantExisting Debt, the Owner Lease Indenture or the Lessor Notes or their respective Affiliates under the Business Corporation Act of 1983, as amendedTaxes arising out of, or any successor legislation theretoin connection with or related to the matters described); (ii) Taxes attributable to any period after expiration or other termination of the Facility Lease and, where required by the Facility Lease, return of the Facility to the Owner Lessor or its designee in accordance with the Facility Lease (or, in the case of the Lease Indenture TrusteeTrustee and the Security Agent, after the repayment of the Lessor Notes) and not as a result of any act, event or omission occurring prior to or simultaneous with such expiration, termination or surrender (or in the case of the Noteholders, the Lease Indenture Trustee, the Security Agent, the Lease Indenture Company or any Related Party in respect of any thereof (each, a "Lender Indemnitee"), such repayment), provided that this exclusion shall not apply so long as a Lease Event of Default shall have occurred and be continuing; (iii) Taxes imposed on a Tax Indemnitee attributable to the gross negligence or willful misconduct of such Tax Indemnitee or any Related Party of such Tax Indemnitee; (iv) Taxes in the nature of capital gain, accumulated earnings, personal holding company, excess profits, succession or estate, minimum, alternative minimum, preference, franchise, conduct of business and other similar taxes (in each case, other than franchise tax imposed Taxes that are or are in the nature of sales, use, property, ad valorem, rental, stamp, transfer, excise, license, and value added taxes or Taxes collected by the State of Illinois upon the Owner Participant, the Owner Lessor or their respective Affiliates withholding against payments under the Business Corporation Act of 1983, as amended, Lease Indenture or any successor legislation theretothe Lessor Notes); (v) Taxes imposed on a Tax Indemnitee that arise out of, or are caused by, any act or omission of such Tax Indemnitee (or any Related Party thereof) that is expressly prohibited by any Operative Document or by a breach by such Tax Indemnitee (or any Related Party thereof) of any of its representations, warranties or covenants under any Operative Document, except to the extent attributable to any acts or omissions of the Facility Lessee or any sublessee, transferee or assignee of the Facility Lessee; (vi) Taxes arising out of, or caused by, any voluntary assignment, sale, transfer or other voluntary disposition, or any involuntary transfer or disposition resulting from a bankruptcy or similar proceeding for relief of debtors in which such Tax Indemnitee is a debtor, by (or a foreclosure by a creditor of) ) (A) the Owner Participant of any of its Beneficial Lessor Membership Interest, (B) the Owner Lessor of all or any of its interest in the Facility or the Facility Site, or (C) the Lease Indenture Trustee Security Agent of any interest in the Lessor Notes or the Indenture Estate unless unless (i) such transfer or disposition occurs during the continuance of a Lease Event of Default, or (ii) such transfer or disposition is required under, or occurs pursuant to, the Operative Documents and the price paid is other than Fair Market Sales Value; (vii) in the case of a Tax Indemnitee that is the Owner Participant or a Related Party thereto, Taxes arising in connection with Owner Participant’s Participant Liens or in the case of a Tax Indemnitee that is the Owner Lessor’s Lessor or a Related Party thereto, Taxes arising in connection with Owner Lessor Liens; (viii) Taxes imposed on any assignee or successor-in-interest to a Tax Indemnitee to the extent any such Taxes exceed the Taxes that would have been imposed had no assignment or transfer taken place determined under the law as in effect on the date of transfer; provided that this exclusion shall not apply to the computation of the gross-up amounts necessary to make a payment on an After-Tax Basis, nor to a transferee, assignee or successor in interest that acquires the interest of a Tax Indemnitee pursuant to a an assignment, transfer or disposition in connection with the exercise of remedies during the continuance of a Material Lease Default or Lease Event of Default; (ix) Taxes that are properly included as a part of Transaction CostsExpenses; (x) Taxes imposed on, based on, or measured by any compensation that any Owner Trustee Manager, the Security Agent or the Lease Indenture Trustee receives for its services; (xi) any U.S. federal income taxes, including with respect to the Owner Participant, Taxes U.S. federal income taxes for which NRG Xxxxx City is obligated to indemnify the Owner Participant under the Tax Indemnity Agreement (or which are expressly excluded from indemnification thereunder); (xii) other than with respect to the Certificateholders, the Lease Indenture Trustee and the Pass Through Trustee or any Related Party in respect of any thereof (a “Lender Indemnitee”), Taxes resulting from the Owner Lessor not being treated as a grantor trust trust, a nonentity or a nonentity pass-through or disregarded entity for federal, state or local income tax purposes; (xiii) Taxes attributable to the failure of any Tax Indemnitee to comply with certification, information, documentation, reporting or other similar requirements concerning the nationality, residence, identity, connection with the jurisdiction imposing such Taxes or other similar matters; provided that the foregoing exclusion shall only apply if such Tax Indemnitee is eligible and obligated under applicable law or the Operative Documents to comply with such requirement and shall have been given timely written notice of such requirement by NRGor on behalf of Xxxxx City; (xiv) Taxes imposed on a Tax Indemnitee where the Tax Indemnitee’s 's breach of its contest obligations under Section 12.2(gSECTION 10.2(G) effectively precludes NRG’s Xxxxx City's ability to contest the Taxes; (xv) Taxes imposed on any Tax Indemnitee resulting from an amendment, modification, supplement or waiver to any Operative Document which was not requested by Midwest or NRG Xxxxx City and as to which Midwest or NRG Xxxxx City is not a party and the Tax Indemnitee (or, in the case of the Owner Participant, the Facility Owner Lessor if acting at the express direction of the Owner Participant) is a party unless such amendment, modification, supplement or waiver (A) was required by applicable law or the Operative Documents, (B) may be necessary or appropriate to, and is in conformity with, any amendment, modification, supplement or waiver to any Operative Document agreed to or requested by Midwest or NRG Xxxxx City in writing, or (C) is made while a Lease Event of Default shall have occurred and be continuing; (xvi) Taxes imposed under Section 4975 of the Code, Section 406 of ERISA or any comparable laws of any governmental authority to the extent resulting from action by any breach of any of the representations or warranties of such Tax Indemnitee other than, set forth in the case of the Owner Participant, the taking of any action at the request or direction of NRGSECTION 3.4(G) hereof; (xvii) Taxes imposed to the extent such Taxes result from the Tax Indemnitee (and in the case of the Owner Lessor, only if acting at the written direction of the Owner Participant) being organized under the laws of a jurisdiction other than the United States or any State thereof (other than, in the case of a Lender Indemnitee, such Taxes which did not exist under law in effect on the date such Lender Indemnitee became a party to this transaction); (xviii) Any Taxes (other than Taxes that are or are in the nature of sales, use, property, ad valorem, rental, stamp, transfer, excise, license and value added taxes or Taxes collected by withholding against payments under the Lease Indenture or the Lessor Notes) imposed on a Tax Indemnitee to the extent that such taxes would not have been imposed but for the activities of such Tax Indemnitee unrelated to the transactions contemplated hereby; (xix) Taxes imposed on a Tax Indemnitee in the nature of interest, penalties, fines and additions to tax (i) payable as a result of such Tax Indemnitee’s 's failure to file, in a procedurally proper manner and on a timely basis, any tax reports, returns or statements as to which NRG Xxxxx City has timely notified such Tax Indemnitee in writing of the requirement to file, unless such failure is otherwise caused by the failure of NRG Xxxxx City to fulfill its obligations, if any, with respect to such return (including provision of information sufficient to enable such Tax Indemnitee to file such report, return or statement), or (ii) to the extent not attributable to or resulting from Taxes for which an indemnity is provided hereunder; and (xx) Taxes for as long as such Taxes are being contested pursuant to the contest provisions contained in Section 12.2(gSECTION 10.2(G) (subject to the Tax Indemnitee's right to obtain a Tax Advance pursuant to SECTION 10.2(G)(III)(5)).

Excluded Taxes. The indemnity provided for in paragraph (a) above shall not extend to any of the following Taxes (the “Excluded Taxes”"EXCLUDED TAXES"): (i) Taxes imposed on, based on or measured mea- sured by gross or net income or receipts or capital or net worth (other than sales, use, property, ad valorem, rental, stamp, transfer, excise, license and value added taxes, and other than franchise tax imposed by the State of Illinois upon the Owner Participant, the Owner Lessor or their respective Affiliates under the Business Corporation Act of 1983, as amended, or any successor legislation thereto); (ii) Taxes attributable to any period after expiration or other termination of the Facility Lease and, where required by the Facility Lease, return of the Facility to the Owner Lessor or its designee in accordance with the Facility Lease (or, in the case of the Lease Indenture Trustee, after the repayment of the Lessor Notes); (iii) Taxes imposed on a Tax Indemnitee attributable to the gross negligence or willful misconduct of such Tax Indemnitee or any Related Party of such Tax Indemnitee; (iv) Taxes in the nature of capital gain, accumulated earnings, personal holding company, excess profits, succession or estate, minimum, alternative minimum, preference, franchise, conduct of business and other similar taxes (other than franchise tax imposed by the State of Illinois upon the Owner ParticipantPartici- pant, the Owner Lessor or their respective Affiliates under the Business Busi- ness Corporation Act of 1983, as amended, or any successor legislation thereto); (v) Taxes imposed on a Tax Indemnitee that arise out of, or are caused by, any act or omission of such Tax Indemnitee (or any Related Party thereof) that is expressly prohibited by any Operative Document or by a breach by such Tax Indemnitee (or any Related Party thereof) of any of its representations, warranties or covenants under any Operative Document; (vi) Taxes arising out of, or caused by, any voluntary assignment, sale, transfer or other voluntary disposition, or any involuntary transfer or disposition resulting from a bankruptcy or similar proceeding for relief of debtors in which such Tax Indemnitee is a debtor, by (or a foreclosure by a creditor of) (A) the Owner Participant of any of its Beneficial Interest, (B) the Owner Lessor of all or any of its interest in the Facility or the Facility Site, or (C) the Lease Indenture Trustee of any interest in the Lessor Notes or the Indenture Estate unless (i) such transfer or disposition occurs during the continuance of a Lease Event of Default, or (ii) such transfer or disposition is required under, or occurs pursuant to, the Operative Documents and the price paid is other than Fair Market Sales Value; (vii) Taxes arising in connection with Owner Participant’s 's Liens or Owner Lessor’s 's Liens; (viii) Taxes imposed on any assignee or successor-in-interest to a Tax Indemnitee to the extent any such Taxes exceed the Taxes that would have been imposed had no assignment or transfer taken place determined under the law as in effect on the date of transfer; provided PROVIDED that this exclusion shall not apply to the computation compu- tation of the gross-up amounts necessary to make a payment on an After-Tax Basis, nor to a transferee, assignee or successor in interest that acquires the interest of a Tax Indemnitee pursuant to a transfer or disposition in connection with the exercise of remedies during the continuance of a Lease Event of Default; (ix) Taxes that are included as a part of Transaction Costs; (x) Taxes imposed on, based on, or measured mea- sured by any compensation that any Owner Trustee or the Lease Indenture Trustee receives for its services; (xi) any U.S. federal income taxes, including with respect to the Owner Participant, Taxes for which NRG EME is obligated to indemnify the Owner Participant under the Tax Indemnity Indem- nity Agreement (or which are expressly excluded from indemnification thereunder); (xii) other than with respect to the Certificateholders, the Lease Indenture Trustee and the Pass Through Trustee Trustees or any Related Party in respect of any thereof (a “Lender Indemnitee”"LENDER INDEMNITEE"), Taxes resulting from the Owner Lessor not being treated as a grantor trust or a nonentity for federal, state or local income tax purposes; (xiii) Taxes attributable to the failure of any Tax Indemnitee to comply with certification, information, documentation, reporting or other similar requirements concerning the nationality, residence, identity, connection with the jurisdiction imposing such Taxes or other similar matters; provided PROVIDED that the foregoing exclusion shall only apply if such Tax Indemnitee is eligible and obligated to comply with such requirement and shall have been given timely written notice of such requirement by NRGEME; (xiv) Taxes imposed on a Tax Indemnitee where the Tax Indemnitee’s 's breach of its contest obligations under Section SECTION 12.2(g) effectively precludes NRG’s EME's ability to contest the Taxes; (xv) Taxes imposed on any Tax Indemnitee resulting from an amendment, modification, supplement or waiver to any Operative Document which was not requested by Midwest or NRG EME and as to which Midwest or NRG EME is not a party and the Tax Indemnitee (or, in the case of the Owner Participant, the Facility Lessor if acting at the express direction of the Owner Participant) is a party unless such amendment, modification, supplement or waiver (A) was required by applicable law or the Operative Documents, (B) may be necessary or appropriate to, and is in conformity with, any amendment, modification, supplement or waiver to any Operative Document agreed to by Midwest or NRG EME in writing, or (C) is made while a Lease Event of Default shall have occurred and be continuing; (xvi) Taxes imposed under Section 4975 of the Code, Section 406 of ERISA or any comparable laws of any governmental authority to the extent resulting from action by such Tax Indemnitee other than, in the case of the Owner Participant, the taking of any action at the request or direction of NRGEME; (xvii) Taxes imposed to the extent such Taxes result from the Tax Indemnitee (and in the case of the Owner Lessor, only if acting at the written direction of the Owner Participant) being organized under the laws of a jurisdiction other than the United States or any State thereof (other than, in the case of a Lender Indemnitee, such Taxes which did not exist under law in effect on the date such Lender Indemnitee became a party to this transaction); (xviii) Any Taxes imposed on a Tax Indemnitee to the extent that such taxes would not have been imposed but for the activities of such Tax Indemnitee unrelated to the transactions transac- tions contemplated hereby; (xix) Taxes imposed on a Tax Indemnitee in the nature of interest, penalties, fines and additions to tax (i) payable as a result of such Tax Indemnitee’s 's failure to file, in a procedurally proper manner and on a timely basis, any tax reports, returns or statements as to which NRG EME has timely notified such Tax Indemnitee in writing of the requirement to file, unless such failure is otherwise caused by the failure of NRG EME to fulfill its obligations, if any, with respect to such return (including provision of information sufficient to enable such Tax Indemnitee to file such report, return or statement), or (ii) to the extent not attributable to or resulting from Taxes for which an indemnity is provided hereunder; and (xx) Taxes for as long as such Taxes are being contested pursuant to the contest provisions contained in Section SEC- TION 12.2(g).

Excluded Taxes. The indemnity provided for in paragraph (a) above Excluded Taxes shall not extend to mean any of the following Taxes (imposed on or with respect to the “Excluded Taxes”):Administrative Agent, any Lender or an Issuer or required to be withheld from a payment to such Person: (i) Any Taxes imposed on, based on or measured by gross or net income (however denominated), franchise Taxes, and branch profits Taxes imposed on such Lender, such Issuer or receipts the Administrative Agent, as the case may be, (A) by the jurisdiction under the laws of which such Lender or capital the Administrative Agent, as the case may be, is organized or net worth by any political subdivision thereof or imposed as a result of a Lender having its principal office or applicable lending office or Notional Funding Office in the Jurisdiction imposing the Tax, or (B) as a result of a present or former connection between such Lender, such Issuer or the Administrative Agent and the jurisdiction imposing such Tax (other than salesconnections arising from such Lender, useAdministrative Agent or such Issuer having executed, propertydelivered, ad valorembecome a party to, rentalperformed its obligations under, stampreceived payments under, transferreceived or perfected a security interest under, excise, license and value added taxes, and engaged in any other than franchise tax imposed by the State of Illinois upon the Owner Participant, the Owner Lessor transaction pursuant to or their respective Affiliates under the Business Corporation Act of 1983, as amendedenforced any Loan Document, or sold or assigned an interest in any successor legislation theretoLoan or Loan Document); (ii) Taxes attributable to any period after expiration or other termination of the Facility Lease and, where required by the Facility Lease, return of the Facility to the Owner Lessor or its designee in accordance with the Facility Lease (or, in In the case of the Lease Indenture Trustee, after the repayment of the Lessor Notes); (iii) Taxes imposed on a Tax Indemnitee attributable to the gross negligence each Lender or willful misconduct of such Tax Indemnitee or any Related Party of such Tax Indemnitee; (iv) Taxes in the nature of capital gain, accumulated earnings, personal holding company, excess profits, succession or estate, minimum, alternative minimum, preference, franchise, conduct of business and other similar taxes (other than franchise tax imposed by the State of Illinois upon the Owner Participant, the Owner Lessor or their respective Affiliates under the Business Corporation Act of 1983, as amended, or any successor legislation thereto); (v) Taxes imposed on a Tax Indemnitee that arise out of, or are caused byIssuer, any act or omission of such Tax Indemnitee (or any Related Party thereof) that is expressly prohibited by any Operative Document or by a breach by such Tax Indemnitee (or any Related Party thereof) of any of its representationsUnited States federal withholding Taxes, warranties or covenants under any Operative Document; (vi) Taxes arising out of, or caused by, any voluntary assignment, sale, transfer or other voluntary disposition, or any involuntary transfer or disposition resulting from a bankruptcy or similar proceeding for relief of debtors in which such Tax Indemnitee is a debtor, by (or a foreclosure by a creditor of) (A) the Owner Participant of any of its Beneficial Interest, (B) the Owner Lessor of all or any of its interest in the Facility or the Facility Site, or (C) the Lease Indenture Trustee of any interest in the Lessor Notes or the Indenture Estate unless (i) such transfer or disposition occurs during the continuance of a Lease Event of Default, or (ii) such transfer or disposition is required under, or occurs pursuant to, the Operative Documents and the price paid is other than Fair Market Sales Value; (vii) Taxes arising in connection with Owner Participant’s Liens or Owner Lessor’s Liens; (viii) Taxes imposed on any assignee or successor-in-interest to a Tax Indemnitee to the extent any that such Taxes exceed withholding is imposed on amounts payable to or for the Taxes that would have been imposed had no assignment account of such Lender or transfer taken place determined under the law as in effect on the date of transfer; provided that this exclusion shall not apply to the computation of the gross-up amounts necessary to make a payment on an After-Tax Basis, nor such Issuer with respect to a transfereeLoan, assignee Letter of Credit or successor in interest that acquires the interest of a Tax Indemnitee Commitment pursuant to a transfer or disposition in connection with the exercise of remedies during the continuance of a Lease Event of Default; (ix) Taxes law that are included as a part of Transaction Costs; (x) Taxes imposed on, based on, or measured by any compensation that any Owner Trustee or the Lease Indenture Trustee receives for its services; (xi) any U.S. federal income taxes, including with respect to the Owner Participant, Taxes for which NRG is obligated to indemnify the Owner Participant under the Tax Indemnity Agreement (or which are expressly excluded from indemnification thereunder); (xii) other than with respect to the Certificateholders, the Lease Indenture Trustee and the Pass Through Trustee or any Related Party in respect of any thereof (a “Lender Indemnitee”), Taxes resulting from the Owner Lessor not being treated as a grantor trust or a nonentity for federal, state or local income tax purposes; (xiii) Taxes attributable to the failure of any Tax Indemnitee to comply with certification, information, documentation, reporting or other similar requirements concerning the nationality, residence, identity, connection with the jurisdiction imposing such Taxes or other similar matters; provided that the foregoing exclusion shall only apply if such Tax Indemnitee is eligible and obligated to comply with such requirement and shall have been given timely written notice of such requirement by NRG; (xiv) Taxes imposed on a Tax Indemnitee where the Tax Indemnitee’s breach of its contest obligations under Section 12.2(g) effectively precludes NRG’s ability to contest the Taxes; (xv) Taxes imposed on any Tax Indemnitee resulting from an amendment, modification, supplement or waiver to any Operative Document which was not requested by Midwest or NRG and as to which Midwest or NRG is not a party and the Tax Indemnitee (or, in the case of the Owner Participant, the Facility Lessor if acting at the express direction of the Owner Participant) is a party unless such amendment, modification, supplement or waiver (A) was required by applicable law or the Operative Documents, (B) may be necessary or appropriate to, and is in conformity with, any amendment, modification, supplement or waiver to any Operative Document agreed to by Midwest or NRG in writing, or (C) is made while a Lease Event of Default shall have occurred and be continuing; (xvi) Taxes imposed under Section 4975 of the Code, Section 406 of ERISA or any comparable laws of any governmental authority to the extent resulting from action by such Tax Indemnitee other than, in the case of the Owner Participant, the taking of any action at the request or direction of NRG; (xvii) Taxes imposed to the extent such Taxes result from the Tax Indemnitee (and in the case of the Owner Lessor, only if acting at the written direction of the Owner Participant) being organized under the laws of a jurisdiction other than the United States or any State thereof (other than, in the case of a Lender Indemnitee, such Taxes which did not exist under law in effect existed on the date such Lender Indemnitee or such Issuer became a party to this transaction);Agreement (including FATCA) or on the date such Lender or such Issuer changes its lending office or Notional Funding Office; provided that this clause (ii) shall not apply to a Lender or Issuer that became a Lender or Issuer as a result of an assignment made or other action taken at the request of the Parent, or (xviiiiii) Any Taxes imposed on a Tax Indemnitee to the extent that the obligation to make such taxes indemnification or to pay such additional amounts would not have been imposed arisen but for the activities gross negligence, willful misconduct or bad faith of such Tax Indemnitee unrelated to the transactions contemplated hereby; (xix) Taxes imposed on a Tax Indemnitee in the nature of interest, penalties, fines and additions to tax (i) payable as a result of Lender or such Tax Indemnitee’s failure to file, in a procedurally proper manner and on a timely basis, any tax reports, returns Issuer or statements as to which NRG has timely notified such Tax Indemnitee in writing of the requirement to file, unless such failure is otherwise caused by the failure of NRG such Lender or such Issuer to fulfill its obligations, if any, comply with respect to such return (including provision the provisions of information sufficient to enable such Tax Indemnitee to file such report, return or statement), or (ii) to the extent not attributable to or resulting from Taxes for which an indemnity is provided hereunder; and (xx) Taxes for as long as such Taxes are being contested pursuant to the contest provisions contained in Section 12.2(g4.09(g).

Excluded Taxes. The indemnity provided for in paragraph (a) Section 4.1 -------------- above shall not extend be subject to exclusion for Taxes that are attributable to or arise as a result of any of the following Taxes (the “"Excluded Taxes”"): (i) Taxes imposed on, based on or measured by gross or net income or receipts or capital or receipts, capital, franchise, net worth or "doing business" taxes, in each case whether paid directly or by means of withholding, other than, in each case, (other than x) Taxes that are or are in the nature of sales, use, propertyrental, value added, ad valorem, rental, stamp, transfer, excise, license and value added taxes, and other than franchise tax imposed by the State of Illinois upon the Owner Participant, the Owner Lessor or their respective Affiliates under the Business Corporation Act of 1983, as amendedproperty, or similar taxes and (y) the Michigan Single Business Tax for any successor legislation thereto)taxable year beginning after the sixth anniversary of the Closing Date but only up to a maximum of $26,927 for any such taxable year; (ii) Taxes attributable to any period after expiration or other termination of the Facility Lease and, where required Term and the payment in full of all amounts payable by the Facility Lease, return of Lessee under the Facility to the Owner Lessor or its designee in accordance with the Facility Lease (or, in the case of the Lease Indenture Trustee, after the repayment of the Lessor Notes)Operative Documents; (iii) Taxes imposed on a Tax Indemnitee attributable to the gross negligence or willful misconduct of such Tax Indemnitee or any Related Party of Affiliate thereof unless such negligence or misconduct is imputed to such Tax IndemniteeIndemnitee or Affiliate solely as a result of its participation in the transactions contemplated by the Operative Documents and not as a result of any action or inaction by such Tax Indemnitee or Affiliate; (iv) Taxes in the nature of capital gain, accumulated earnings, personal holding company, excess profits, succession or estate, minimum, alternative minimum, preference, franchise, conduct of business and other similar taxes (taxes, other than franchise tax imposed by than, in each case, Taxes that are or are in the State nature of Illinois upon the Owner Participantsales, the Owner Lessor use, rental, value added, ad valorem, property or their respective Affiliates under the Business Corporation Act of 1983, as amended, or any successor legislation thereto)similar taxes; (v) Taxes imposed on a Tax Indemnitee that arise out of, or are caused by, any act or omission of such Tax Indemnitee (or any Related Party Affiliate thereof) that is expressly prohibited by any the Operative Document Documents or by a breach by such Tax Indemnitee (or any Related Party Affiliate thereof) of any of its representations, warranties or covenants under any Operative Document except to the extent attributable to any breach by the Lessee of any covenant, representation or warranty contained in any Operative Document; (vi) Taxes arising out of, or caused by, (i) any voluntary assignment, sale, transfer or other voluntary dispositiondisposition (except incremental ad valorem, property, or similar taxes that arise due to the price or terms of an assignment or transfer itself) or (ii) any involuntary assignment, sale, transfer or other disposition resulting from a bankruptcy or similar proceeding for relief of debtors in which such Tax Indemnitee is a debtor, by (debtor or a foreclosure by a creditor of) of the Tax Indemnitee of (A) the Owner Participant Lessor Parent of any of its Beneficial Interest, interest in the Lessor or (B) the Owner Lessor of all or any of its interest in the Facility or the Facility SiteProperty unless, or (C) the Lease Indenture Trustee of any interest in the Lessor Notes or the Indenture Estate unless (i) each case, such assignment, sale, transfer or other disposition (1) occurs during the continuance of a Lease Event of Default, (2) occurs pursuant to a casualty, or the Lessee's exercise of a right under the Operative Documents, (3) results from any merger or consolidation of the Lessee or (ii4) results from any sublease, assignment, rebuilding, modification, substitution, improvement, replacement or addition of or to the Property by the Lessee but only if the Lessor has not consented to such transfer or disposition action under the relevant provision of the Lease, if such consent is required under, or occurs pursuant to, the Operative Documents and the price paid is other than Fair Market Sales Value;required. (vii) Taxes arising in connection with Owner Participant’s that would not have arose but for the creation of or the existence of Lessor Parent's Liens or Owner Lessor’s 's Liens; (viii) Taxes imposed on any assignee or successor-in-interest to a Tax Indemnitee to the extent any such Taxes exceed the Taxes that would have been imposed had no assignment or transfer taken place determined under the law as in effect on the date of transfer; provided transfer (excluding however, any such incremental ad valorem, property or similar taxes that this exclusion shall not apply arise due to the computation price or terms of the gross-up amounts necessary to make a payment on an After-Tax Basis, nor to a transferee, assignee assignment or successor in interest that acquires the interest of a Tax Indemnitee pursuant to a transfer or disposition in connection with the exercise of remedies during the continuance of a Lease Event of Defaultitself); (ix) Taxes that are included as a part of Transaction Coststhe Lessor's Purchase Price; (x) Taxes imposed on, based on, or measured by any compensation that any Owner Trustee or the Lease Indenture Trustee receives for its services; (xi) any U.S. federal income taxes, including with With respect to the Owner ParticipantLessor Parent, Taxes for which NRG the Lessee is obligated to indemnify the Owner Participant Lessor Parent under the Tax Indemnity Agreement (or which are expressly excluded from indemnification thereunder); (xii) other than with respect to the Certificateholders, the Lease Indenture Trustee and the Pass Through Trustee or any Related Party in respect of any thereof (a “Lender Indemnitee”), Taxes resulting from the Owner Lessor not being treated as a grantor trust or a nonentity for federal, state or local income tax purposes; (xiiixi) Taxes attributable to the failure of any the Tax Indemnitee to comply with certification, information, documentation, reporting or other similar requirements concerning the nationality, residence, identity, connection with the jurisdiction imposing such Taxes or other similar matters; , provided that the foregoing exclusion shall -------- apply only apply if such Tax Indemnitee is eligible and obligated to comply with such requirement and requirement, the Lessee shall have been given such Tax Indemnitee timely written notice of such requirement and the Tax Indemnitee shall have determined in good faith that compliance with any such requirement shall not result in any identified non-immaterial adverse effect to its interests or to those of its Affiliates provided further, however ------------------------- that the immediately preceding proviso shall not apply if such certification, information, documentation, reporting or other similar requirements are required by NRGlaw or regulation; (xivxii) Taxes imposed on a Tax Indemnitee where the Tax Indemnitee’s 's breach of its contest obligations under Section 12.2(g) 4.7 hereof effectively precludes NRG’s the Lessee's ability to contest the Taxes; (xvxiii) Taxes to the extent imposed on any Tax Indemnitee resulting from an amendment, modification, supplement or waiver to any Operative Document which was not requested by Midwest or NRG the Lessee and as to which Midwest or NRG the Lessee is not a party and the Tax Indemnitee (or, in the case of the Owner Participant, the Facility Lessor if acting at the express direction of the Owner Participantor any Affiliate thereof) is a party unless such amendment, modification, supplement or waiver (A) was required by applicable law Applicable Law or the Operative Documents, (B) may be necessary or appropriate to, and is in conformity with, any amendment, modification, supplement or waiver amendment to any Operative Document agreed to requested by Midwest the Lessee in writing or NRG in writingrequired by Applicable Law, or (C) is made while a Lease Event of Default shall have occurred and be continuing;continuing or (D) was expressly consented to by the Lessee or any of its Affiliates in writing; and (xvixiv) Taxes imposed under Section 4975 of the Code, Section 406 Code or under subtitle B of ERISA or any comparable laws Title I of any governmental authority to the extent resulting from action by such Tax Indemnitee other than, in the case of the Owner Participant, the taking of any action at the request or direction of NRG; (xvii) Taxes imposed to the extent such Taxes result from the Tax Indemnitee (and in the case of the Owner Lessor, only if acting at the written direction of the Owner Participant) being organized under the laws of a jurisdiction other than the United States or any State thereof (other than, in the case of a Lender Indemnitee, such Taxes which did not exist under law in effect on the date such Lender Indemnitee became a party to this transaction); (xviii) Any Taxes imposed on a Tax Indemnitee to the extent that such taxes would not have been imposed but for the activities of such Tax Indemnitee unrelated to the transactions contemplated hereby; (xix) Taxes imposed on a Tax Indemnitee in the nature of interest, penalties, fines and additions to tax (i) payable as a result of such Tax Indemnitee’s failure to file, in a procedurally proper manner and on a timely basis, any tax reports, returns or statements as to which NRG has timely notified such Tax Indemnitee in writing of the requirement to file, unless such failure is otherwise caused by the failure of NRG to fulfill its obligations, if any, with respect to such return (including provision of information sufficient to enable such Tax Indemnitee to file such report, return or statement), or (ii) to the extent not attributable to or resulting from Taxes for which an indemnity is provided hereunder; and (xx) Taxes for as long as such Taxes are being contested pursuant to the contest provisions contained in Section 12.2(g)ERISA.

Excluded Taxes. The indemnity provided for in paragraph (a) above shall not extend For the purposes of this Section 2.10, -------------- "Excluded Taxes" means, with respect to any Lender Party, the Administrative -------------- Agent and any other Person entitled to receive a payment to be made by or on account of any obligation of the following Taxes Borrower hereunder or under the Notes (the “Excluded Taxes”): each of which is called herein a "Tax Indemnitee"), (i) any Taxes which are imposed onon -------------- or with respect to, based on or measured by gross or by, the net income or receipts or capital or net worth (other than sales, use, property, ad valorem, rental, stamp, transfer, excise, license of such Tax Indemnitee and value added taxes, and other than franchise tax which are imposed by the State United States of Illinois upon America, or by any government or other taxation authority in the Owner Participant, the Owner Lessor or their respective Affiliates jurisdiction under the Business Corporation Act laws of 1983which such Tax Indemnitee is organized or in which its principal office is located or, as amendedin the case of any Lender Party, or in which any successor legislation thereto); (ii) Taxes attributable to any period after expiration or other termination of the Facility Lease and, where required by the Facility Lease, return of the Facility to the Owner Lessor or its designee in accordance with the Facility Lease (Applicable Lending Offices is located or, in the case of the Lease Indenture TrusteeAdministrative Agent, after the repayment of the Lessor Notes); (iii) Taxes imposed on a Tax Indemnitee attributable to the gross negligence or willful misconduct of such Tax Indemnitee or any Related Party of such Tax Indemnitee; (iv) Taxes in the nature of capital gain, accumulated earnings, personal holding company, excess profits, succession or estate, minimum, alternative minimum, preference, franchise, conduct of business and other similar taxes (other than franchise tax imposed by the State of Illinois upon the Owner Participant, the Owner Lessor or their respective Affiliates under the Business Corporation Act of 1983, as amended, or any successor legislation thereto); (v) Taxes imposed on a Tax Indemnitee that arise out of, or are caused by, any act or omission of such Tax Indemnitee (or any Related Party thereof) that is expressly prohibited by any Operative Document or by a breach by such Tax Indemnitee (or any Related Party thereof) of any of its representations, warranties or covenants under any Operative Document; (vi) Taxes arising out of, or caused by, any voluntary assignment, sale, transfer or other voluntary disposition, or any involuntary transfer or disposition resulting from a bankruptcy or similar proceeding for relief of debtors in which such Tax Indemnitee is a debtorit has an office location at which it performs its duties as Administrative Agent, by (or a foreclosure by a creditor of) (A) the Owner Participant of any of its Beneficial Interest, (B) the Owner Lessor of all or any of its interest in the Facility or the Facility Site, or (C) the Lease Indenture Trustee of any interest in the Lessor Notes or the Indenture Estate unless (i) such transfer or disposition occurs during the continuance of a Lease Event of Default, or (ii) such transfer or disposition is required under, or occurs pursuant to, the Operative Documents and the price paid is other than Fair Market Sales Value; (vii) Taxes arising in connection with Owner Participant’s Liens or Owner Lessor’s Liens; (viii) Taxes imposed on any assignee or successor-in-interest to a Tax Indemnitee to the extent any such Taxes exceed the Taxes that would have been imposed had no assignment or transfer taken place determined under the law as in effect on the date of transfer; provided that this exclusion shall not apply to the computation of the gross-up amounts necessary to make a payment on an After-Tax Basis, nor to a transferee, assignee or successor in interest that acquires the interest of a Tax Indemnitee pursuant to a transfer or disposition in connection with the exercise of remedies during the continuance of a Lease Event of Default; (ix) Taxes that are included as a part of Transaction Costs; (x) Taxes imposed on, based on, or measured by any compensation that any Owner Trustee or the Lease Indenture Trustee receives for its services; (xi) any U.S. federal income taxes, including with respect to the Owner Participant, Taxes for which NRG is obligated to indemnify the Owner Participant under the Tax Indemnity Agreement (or which are expressly excluded from indemnification thereunder); (xii) other than with respect to the Certificateholders, the Lease Indenture Trustee and the Pass Through Trustee or any Related Party in respect of any thereof (a “Lender Indemnitee”), Taxes resulting from the Owner Lessor not being treated as a grantor trust or a nonentity for federal, state or local income tax purposes; (xiii) Taxes attributable to the failure of any Tax Indemnitee to comply with certification, information, documentation, reporting or other similar requirements concerning the nationality, residence, identity, connection with the jurisdiction imposing such Taxes or other similar matters; provided that the foregoing exclusion shall only apply if such Tax Indemnitee is eligible and obligated to comply with such requirement and shall have been given timely written notice of such requirement by NRG; (xiv) Taxes imposed on a Tax Indemnitee where the Tax Indemnitee’s breach of its contest obligations under Section 12.2(g) effectively precludes NRG’s ability to contest the Taxes; (xv) Taxes imposed on any Tax Indemnitee resulting from an amendment, modification, supplement or waiver to any Operative Document which was not requested by Midwest or NRG and as to which Midwest or NRG is not a party and the Tax Indemnitee (or, in the case of the Owner Participant, the Facility Lessor if acting at the express direction of the Owner Participant) any Lender Party or Administrative Agent that is a party unless such amendment, modification, supplement or waiver (A) was required by applicable law or the Operative Documents, (B) may be necessary or appropriate to, and is in conformity with, any amendment, modification, supplement or waiver to any Operative Document agreed to by Midwest or NRG in writing, or (C) is made while a Lease Event of Default shall have occurred and be continuing; (xvi) Taxes imposed under Section 4975 of the Code, Section 406 of ERISA or any comparable laws of any governmental authority to the extent resulting from action by such Tax Indemnitee other than, in the case of the Owner Participant, the taking of any action at the request or direction of NRG; (xvii) Taxes imposed to the extent such Taxes result from the Tax Indemnitee (and in the case of the Owner Lessor, only if acting at the written direction of the Owner Participant) being organized under the laws of a jurisdiction other than outside the United States 00 Xxxxxx Xxxxxx xx Xxxxxxx, any withholding tax that (A) is in effect and applies to amounts payable by the Borrower under this Agreement, the Notes or any State thereof other Loan Document to or for the benefit of such Lender Party at the time such Lender Party becomes a party to this Agreement (other thanor designates a new Applicable Lending Office) except, in the case of a any Lender Indemnitee, such Taxes which did not exist under law in effect on the date such Lender Indemnitee became Party that becomes a party to this transaction); (xviii) Any Taxes imposed on Agreement or designates a Tax Indemnitee new Applicable Lending Office after the Closing Date, to the extent that such taxes would not have been imposed but for Lender Party is entitled at the activities of such Tax Indemnitee unrelated time it designates a new Applicable Lending Office, or to the transactions contemplated hereby; (xix) Taxes imposed on extent that such Lender Party's assignor was entitled at the time such Lender Party becomes a Tax Indemnitee in party to this Agreement, as the nature of interestcase may be, penalties, fines and additions to tax (i) payable as a result of such Tax Indemnitee’s failure to file, in a procedurally proper manner and on a timely basis, any tax reports, returns or statements as to which NRG has timely notified such Tax Indemnitee in writing of receive additional amounts from the requirement to file, unless such failure is otherwise caused by the failure of NRG to fulfill its obligations, if any, Borrower with respect to such return (including provision of information sufficient any withholding tax pursuant to enable such Tax Indemnitee to file such report, return or statementSection 2.10(a), or (iiB) is attributable to such Lender Party's failure to comply with Section 2.10(f) or such Administrative Agent's failure to comply with Section 2.10(f) or 9.07(d), other than by reason of not being eligible for any exception from, or reduced rate of, withholding upon completion of the Internal Revenue Service Form at the time required, (iii) any Tax that is imposed in connection with any sale, assignment, transfer or other disposition by any Tax Indemnitee of all or any part of its interest in this Agreement, the Notes or any other Loan Documents other than during the continuance of an Event of Default, and (iv) any Tax imposed by any government or other taxation authority in any jurisdiction to the extent not such Tax is attributable to or resulting a connection between such jurisdiction and such Tax Indemnitee other than a connection arising from Taxes for which an indemnity is provided hereunder; and (xx) Taxes for as long as such Taxes are being contested pursuant to the contest provisions contained in Section 12.2(g)transactions contemplated by this Agreement and the other Loan Documents.

Excluded Taxes. The indemnity provided Borrower shall have no obligation under Section 2.08(a) to indemnify any Tax Indemnitee for in paragraph (a) above shall not extend to any of the following Taxes (the each an “Excluded TaxesTax”): (i) Taxes any Tax which is imposed on, based on or measured by gross or the net income or receipts or capital or net worth (other than sales, use, property, ad valorem, rental, stamp, transfer, excise, license and value added taxes, and other than franchise tax imposed by the State of Illinois upon the Owner Participant, the Owner Lessor or their respective Affiliates under the Business Corporation Act of 1983, as amended, or any successor legislation thereto); (ii) Taxes attributable to any period after expiration or other termination of the Facility Lease and, where required by the Facility Lease, return of the Facility to the Owner Lessor or its designee in accordance with the Facility Lease (or, in the case of the Lease Indenture Trustee, after the repayment of the Lessor Notes); (iii) Taxes imposed on a Tax Indemnitee attributable to the gross negligence or willful misconduct of such Tax Indemnitee by any government or other taxing authority in any Related Party of such Tax Indemnitee; (iv) Taxes in the nature of capital gain, accumulated earnings, personal holding company, excess profits, succession or estate, minimum, alternative minimum, preference, franchise, conduct of business and other similar taxes (other than franchise tax imposed by the State of Illinois upon the Owner Participant, the Owner Lessor or their respective Affiliates jurisdiction under the Business Corporation Act laws of 1983, as amended, or any successor legislation thereto); (v) Taxes imposed on a Tax Indemnitee that arise out of, or are caused by, any act or omission of which such Tax Indemnitee (is incorporated or any Related Party thereof) that is expressly prohibited by any Operative Document otherwise organized or by a breach by such Tax Indemnitee (or any Related Party thereof) of any of its representations, warranties or covenants under any Operative Document; (vi) Taxes arising out of, or caused by, any voluntary assignment, sale, transfer or other voluntary disposition, or any involuntary transfer or disposition resulting from a bankruptcy or similar proceeding for relief of debtors in which such Tax Indemnitee is a debtor, by (or a foreclosure by a creditor of) (A) the Owner Participant of any of its Beneficial Interest, (B) the Owner Lessor of all or any of its interest in the Facility or the Facility Site, or (C) the Lease Indenture Trustee of any interest in the Lessor Notes or the Indenture Estate unless (i) such transfer or disposition occurs during the continuance of a Lease Event of Default, or (ii) such transfer or disposition is required under, or occurs pursuant to, the Operative Documents and the price paid is other than Fair Market Sales Value; (vii) Taxes arising in connection with Owner Participant’s Liens or Owner Lessor’s Liens; (viii) Taxes imposed on any assignee or successor-in-interest to a Tax Indemnitee to the extent any such Taxes exceed the Taxes that would have been imposed had no assignment or transfer taken place determined under the law as in effect on the date of transfer; provided that this exclusion shall not apply to the computation of the gross-up amounts necessary to make a payment on has an After-Tax Basis, nor to a transferee, assignee or successor in interest that acquires the interest of a Tax Indemnitee pursuant to a transfer or disposition in connection with the exercise of remedies during the continuance of a Lease Event of Default; (ix) Taxes that are included as a part of Transaction Costs; (x) Taxes imposed on, based on, or measured by any compensation that any Owner Trustee or the Lease Indenture Trustee receives for its services; (xi) any U.S. federal income taxes, including with respect to the Owner Participant, Taxes for which NRG is obligated to indemnify the Owner Participant under the Tax Indemnity Agreement (or which are expressly excluded from indemnification thereunder); (xii) other than with respect to the Certificateholders, the Lease Indenture Trustee and the Pass Through Trustee or any Related Party in respect of any thereof (a “Lender Indemnitee”), Taxes resulting from the Owner Lessor not being treated as a grantor trust or a nonentity for federal, state or local income tax purposes; (xiii) Taxes attributable to the failure of any Tax Indemnitee to comply with certification, information, documentation, reporting office or other similar requirements concerning the nationality, residence, identity, connection with the jurisdiction imposing such Taxes or other similar mattersfixed place of business; provided that the foregoing exclusion in this Section 2.08(b) shall only apply if such Tax Indemnitee is eligible and obligated not apply, with respect to comply with such requirement and shall have been given timely written notice of such requirement by NRG; (xiv) Taxes imposed on a Tax Indemnitee where the any Tax Indemnitee’s breach of its contest obligations under Section 12.2(g) effectively precludes NRG’s ability , to contest the following Taxes; (xv) Taxes imposed on any Tax Indemnitee resulting from an amendment, modification, supplement or waiver to any Operative Document which was not requested by Midwest or NRG and as to which Midwest or NRG is not a party and the Tax Indemnitee (or, in the case of the Owner Participant, the Facility Lessor if acting at the express direction of the Owner Participant) is a party unless such amendment, modification, supplement or waiver : (A) was required by applicable law any Tax that is taken into account to calculate the payment of any indemnity or the Operative Documentsother amount on an after-tax basis pursuant to Section 2.08(d), or (B) may be necessary or appropriate to, and is in conformity with, any amendment, modification, supplement or waiver to any Operative Document agreed to by Midwest or NRG in writing, or (C) is made while a Lease Event of Default shall have occurred and be continuing; (xvi) Taxes imposed under Section 4975 of the Code, Section 406 of ERISA or any comparable laws of any governmental authority Tax to the extent resulting from action that such Tax is a result of, and would not have been incurred by such Tax Indemnitee but for, any of the following: (1) the registration, operation, use, location or presence of any Vessel or any other than, Collateral in the case jurisdiction in which the government or other taxing authority imposing such Tax is located (the “Taxing Jurisdiction”), or (2) the organization of the Owner Participant, the taking of Borrower or any action at the request or direction of NRG; (xvii) Taxes imposed to the extent such Taxes result from the Tax Indemnitee (and in the case of the Owner Lessor, only if acting at the written direction of the Owner Participant) being organized Guarantor under the laws of, or the presence of a jurisdiction other than any place of business of the United States Borrower or any State thereof Guarantor or any Affiliate of the Borrower or any Guarantor in, or any act or activity of the Borrower or any Guarantor or any Affiliate or agent of the Borrower or any Guarantor in, the Taxing Jurisdiction, or (other than3) the payment by or on behalf of the Borrower or any Guarantor of any amount payable pursuant to any Loan Document in or from the Taxing Jurisdiction, or (4) the execution, delivery, filing, recording, performance or enforcement of any of the Loan Documents in the case Taxing Jurisdiction, or (5) any other connection between the Taxing Jurisdiction and the Borrower or any Guarantor, or any Affiliate or agent of a Lender Indemniteethe Borrower or any Guarantor, such Taxes which did not exist under law in effect on or any of the date such Lender Indemnitee became a party to this transaction);Collateral; or (xviiiii) Any Taxes any penalty, fine, addition to tax or interest imposed on a such Tax Indemnitee to the extent that such taxes penalty, fine, addition to tax or interest is caused by, and would not have been imposed payable but for the activities of such Tax Indemnitee unrelated to the transactions contemplated hereby; (xixA) Taxes imposed on a Tax Indemnitee in the nature of interest, penalties, fines and additions to tax (i) payable as a result of such Tax Indemnitee’s failure to file, in a procedurally proper manner and on a timely basis, any tax reports, returns or statements as to which NRG has timely notified such Tax Indemnitee in writing of the requirement to file, unless such failure is otherwise caused by the failure of NRG to fulfill its obligations, if any, with respect to such return (including provision of information sufficient to enable by such Tax Indemnitee to file any Tax return which such reportTax Indemnitee is required by applicable law to file with respect to any Excluded Tax described in clause (i) of this Section 2.08(b) before the time such penalty, return fine, addition to tax or statement)interest (as the case may be) accrued with respect to such Tax return, or (iiB) the failure by such Tax Indemnitee to pay any Excluded Tax described in clause (i) of this Section 2.08(b) which such Tax Indemnitee is required by applicable law to pay before the time such penalty, fine, addition to tax or interest (as the case may be) began to accrue with respect to such Excluded Tax payment. (iii) any penalty, fine, addition to tax or interest imposed on such Tax Indemnitee to the extent that such penalty, fine, addition to tax or interest is caused by, and would not attributable have been payable but for, (A) the failure by such Tax Indemnitee to or resulting from Taxes file any Tax return which such Tax Indemnitee is required by applicable law to file with respect to any Tax, described Section 2.08(a), and for which an such Tax Indemnitee is seeking indemnity is provided hereunder; and from Borrower or Guarantor, before the time such penalty, fine, addition to tax or interest (xxas the case may be) Taxes for as long as accrued with respect to such Taxes are being contested pursuant Tax return, or (B) the failure by such Tax Indemnitee to the contest provisions contained pay any Tax described in Section 12.2(g2.08(a), and for which such Tax Indemnitee is seeking indemnity from Borrower or Guarantor, which such Tax Indemnitee is required by applicable law to pay before the time such penalty, fine, addition to tax or interest (as the case may be) began to accrue with respect to such Tax payment provided however that this clause (iii) of this Section 2.08(b) shall not be applicable to any Tax described in or arising because of the conditions described in Section 2.08(b)(i)(B) or any Tax return with respect to any Tax described in or arising because of the conditions described Section 2.08(b)(i)(B).

Excluded Taxes. The indemnity provided for in paragraph (a) Section -------------- 4.1 above shall not extend be subject to exclusion for Taxes that are attributable to or arise as a result of any of the following Taxes (the “"Excluded Taxes”"): (i) Taxes imposed on, based on or measured by gross or net income or receipts or capital or receipts, capital, franchise, net worth or "doing business" taxes, in each case whether paid directly or by means of withholding, other than, in each case, (other than x) Taxes that are or are in the nature of sales, use, propertyrental, value added, ad valorem, rental, stamp, transfer, excise, license and value added taxes, and other than franchise tax imposed by the State of Illinois upon the Owner Participant, the Owner Lessor or their respective Affiliates under the Business Corporation Act of 1983, as amendedproperty, or similar taxes and (y) the Michigan Single Business Tax for any successor legislation thereto)taxable year beginning after the sixth anniversary of the Closing Date but only up to a maximum of $21,290 for any such taxable year; (ii) Taxes attributable to any period after expiration or other termination of the Facility Lease and, where required Term and the payment in full of all amounts payable by the Facility Lease, return of Lessee under the Facility to the Owner Lessor or its designee in accordance with the Facility Lease (or, in the case of the Lease Indenture Trustee, after the repayment of the Lessor Notes)Operative Documents; (iii) Taxes imposed on a Tax Indemnitee attributable to the gross negligence or willful misconduct of such Tax Indemnitee or any Related Party of Affiliate thereof unless such negligence or misconduct is imputed to such Tax IndemniteeIndemnitee or Affiliate solely as a result of its participation in the transactions contemplated by the Operative Documents and not as a result of any action or inaction by such Tax Indemnitee or Affiliate; (iv) Taxes in the nature of capital gain, accumulated earnings, personal holding company, excess profits, succession or estate, minimum, alternative minimum, preference, franchise, conduct of business and other similar taxes (taxes, other than franchise tax imposed by than, in each case, Taxes that are or are in the State nature of Illinois upon the Owner Participantsales, the Owner Lessor use, rental, value added, ad valorem, property or their respective Affiliates under the Business Corporation Act of 1983, as amended, or any successor legislation thereto)similar taxes; (v) Taxes imposed on a Tax Indemnitee that arise out of, or are caused by, any act or omission of such Tax Indemnitee (or any Related Party Affiliate thereof) that is expressly prohibited by any the Operative Document Documents or by a breach by such Tax Indemnitee (or any Related Party Affiliate thereof) of any of its representations, warranties or covenants under any Operative Document except to the extent attributable to any breach by the Lessee of any covenant, representation or warranty contained in any Operative Document; (vi) Taxes arising out of, or caused by, (i) any voluntary assignment, sale, transfer or other voluntary dispositiondisposition (except incremental ad valorem, property, or similar taxes that arise due to the price or terms of an assignment or transfer itself) or (ii) any involuntary assignment, sale, transfer or other disposition resulting from a bankruptcy or similar proceeding for relief of debtors in which such Tax Indemnitee is a debtor, by (debtor or a foreclosure by a creditor of) of the Tax Indemnitee of (A) the Owner Participant Lessor Parent of any of its Beneficial Interest, interest in the Lessor or (B) the Owner Lessor of all or any of its interest in the Facility or the Facility SiteProperty unless, or (C) the Lease Indenture Trustee of any interest in the Lessor Notes or the Indenture Estate unless (i) each case, such assignment, sale, transfer or other disposition (1) occurs during the continuance of a Lease Event of Default, (2) occurs pursuant to a casualty, or the Lessee's exercise of a right under the Operative Documents, (3) results from any merger or consolidation of the Lessee or (ii4) results from any sublease, assignment, rebuilding, modification, substitution, improvement, replacement or addition of or to the Property by the Lessee but only if the Lessor has not consented to such transfer or disposition action under the relevant provision of the Lease, if such consent is required under, or occurs pursuant to, the Operative Documents and the price paid is other than Fair Market Sales Value;required. (vii) Taxes arising in connection with Owner Participant’s that would not have arose but for the creation of or the existence of Lessor Parent's Liens or Owner Lessor’s 's Liens; (viii) Taxes imposed on any assignee or successor-in-interest to a Tax Indemnitee to the extent any such Taxes exceed the Taxes that would have been imposed had no assignment or transfer taken place determined under the law as in effect on the date of transfer; provided transfer (excluding however, any such incremental ad valorem, property or similar taxes that this exclusion shall not apply arise due to the computation price or terms of the gross-up amounts necessary to make a payment on an After-Tax Basis, nor to a transferee, assignee assignment or successor in interest that acquires the interest of a Tax Indemnitee pursuant to a transfer or disposition in connection with the exercise of remedies during the continuance of a Lease Event of Defaultitself); (ix) Taxes that are included as a part of Transaction Coststhe Lessor's Purchase Price; (x) Taxes imposed on, based on, or measured by any compensation that any Owner Trustee or the Lease Indenture Trustee receives for its services; (xi) any U.S. federal income taxes, including with With respect to the Owner ParticipantLessor Parent, Taxes for which NRG the Lessee is is obligated to indemnify the Owner Participant Lessor Parent under the Tax Indemnity Agreement (or which are expressly excluded from indemnification thereunder); (xii) other than with respect to the Certificateholders, the Lease Indenture Trustee and the Pass Through Trustee or any Related Party in respect of any thereof (a “Lender Indemnitee”), Taxes resulting from the Owner Lessor not being treated as a grantor trust or a nonentity for federal, state or local income tax purposes; (xiiixi) Taxes attributable to the failure of any the Tax Indemnitee to comply with certification, information, documentation, reporting or other similar requirements concerning the nationality, residence, identity, connection with the jurisdiction imposing such Taxes or other similar matters; , provided that the foregoing exclusion -------- shall apply only apply if such Tax Indemnitee is eligible and obligated to comply with such requirement and requirement, the Lessee shall have been given such Tax Indemnitee timely written notice of such requirement and the Tax Indemnitee shall have determined in good faith that compliance with any such requirement shall not result in any identified non-immaterial adverse effect to its interests or to those of its Affiliates provided further, however that -------- ---------------- the immediately preceding proviso shall not apply if such certification, information, documentation, reporting or other similar requirements are required by NRGlaw or regulation; (xivxii) Taxes imposed on a Tax Indemnitee where the Tax Indemnitee’s 's breach of its contest obligations under Section 12.2(g) 4.7 hereof effectively precludes NRG’s the Lessee's ability to contest the Taxes; (xvxiii) Taxes to the extent imposed on any Tax Indemnitee resulting from an amendment, modification, supplement or waiver to any Operative Document which was not requested by Midwest or NRG the Lessee and as to which Midwest or NRG the Lessee is not a party and the Tax Indemnitee (or, in the case of the Owner Participant, the Facility Lessor if acting at the express direction of the Owner Participantor any Affiliate thereof) is a party unless such amendment, modification, supplement or waiver (A) was required by applicable law Applicable Law or the Operative Documents, (B) may be necessary or appropriate to, and is in conformity with, any amendment, modification, supplement or waiver amendment to any Operative Document agreed to requested by Midwest the Lessee in writing or NRG in writingrequired by Applicable Law, or (C) is made while a Lease Event of Default shall have occurred and be continuing;continuing or (D) was expressly consented to by the Lessee or any of its Affiliates in writing; and (xvixiv) Taxes imposed under Section 4975 of the Code, Section 406 Code or under subtitle B of ERISA or any comparable laws Title I of any governmental authority to the extent resulting from action by such Tax Indemnitee other than, in the case of the Owner Participant, the taking of any action at the request or direction of NRG; (xvii) Taxes imposed to the extent such Taxes result from the Tax Indemnitee (and in the case of the Owner Lessor, only if acting at the written direction of the Owner Participant) being organized under the laws of a jurisdiction other than the United States or any State thereof (other than, in the case of a Lender Indemnitee, such Taxes which did not exist under law in effect on the date such Lender Indemnitee became a party to this transaction); (xviii) Any Taxes imposed on a Tax Indemnitee to the extent that such taxes would not have been imposed but for the activities of such Tax Indemnitee unrelated to the transactions contemplated hereby; (xix) Taxes imposed on a Tax Indemnitee in the nature of interest, penalties, fines and additions to tax (i) payable as a result of such Tax Indemnitee’s failure to file, in a procedurally proper manner and on a timely basis, any tax reports, returns or statements as to which NRG has timely notified such Tax Indemnitee in writing of the requirement to file, unless such failure is otherwise caused by the failure of NRG to fulfill its obligations, if any, with respect to such return (including provision of information sufficient to enable such Tax Indemnitee to file such report, return or statement), or (ii) to the extent not attributable to or resulting from Taxes for which an indemnity is provided hereunder; and (xx) Taxes for as long as such Taxes are being contested pursuant to the contest provisions contained in Section 12.2(g)ERISA.

Excluded Taxes. The indemnity provided for in paragraph (aLessee shall have no obligation under Section 14.1(a) above shall not extend to any of the following Taxes (the “Excluded Taxes”):indemnify an Indemnified Party for: (i) Taxes any Tax imposed on, based on or measured by gross or the total net income or receipts or capital or net worth of such Indemnified Party except to the extent that such Tax would not have been payable in the absence of (other than salesA) the registration, use, propertypresence, ad valorem, rental, stamp, transfer, excise, license and value added taxes, and or other than franchise tax imposed by the State connection of Illinois upon the Owner Participant, the Owner Lessor any Item of Equipment in or their respective Affiliates under the Business Corporation Act of 1983, as amendedwith, or any successor legislation thereto)act or omission of Lessee or any Affiliate, agent, representative, or contractor of Lessee or any person using or having possession, custody, or control of any Item of Equipment in, the jurisdiction imposing such Tax, (B) the inaccuracy or breach of any of the representations, warranties, covenants or agreements of Lessee in the Operative Documents, or (C) a Lease Event of Default; (ii) Taxes attributable any Tax imposed on or with respect to any period after expiration sale or other termination transfer by such Indemnified Party of such Indemnified Party's interest in the Facility Aircraft pursuant to Section 17.2(b), provided that the exclusion in this clause (ii) shall not apply to any sale or transfer that occurs (A) in connection with or as a result of a Lease andDefault, where required by a Lease Event of Default, an Event of Loss, or any maintenance, repair, overhaul, pooling, interchange, exchange, removal, replacement, substitution, modification, improvement, or alteration of any Item of Equipment, (B) at Lessee's request, or (C) pursuant to a requirement in any Operative Document or any applicable Law; [**]—Confidential treatment has been requested for the Facility Lease, return of the Facility to the Owner Lessor or its designee in accordance bracketed portions. The confidential redacted portion has been omitted and filed separately with the Facility Lease (or, in the case of the Lease Indenture Trustee, after the repayment of the Lessor Notes); Securities and Exchange Commission. (iii) Taxes imposed on a any Tax Indemnitee attributable to the extent that such Indemnified Party's liability for such Tax is caused directly by, and would not have been incurred but for, the gross negligence or willful misconduct of such Tax Indemnitee or any Related Party of such Tax IndemniteeIndemnified Party; (iv) Taxes in the nature of capital gain, accumulated earnings, personal holding company, excess profits, succession or estate, minimum, alternative minimum, preference, franchise, conduct of business and other similar taxes (other than franchise tax imposed by the State of Illinois upon the Owner Participant, the Owner Lessor or their respective Affiliates under the Business Corporation Act of 1983, as amended, or any successor legislation thereto); (v) Taxes imposed on a Tax Indemnitee that arise out of, or are caused by, any act or omission of such Tax Indemnitee (or any Related Party thereof) that is expressly prohibited by any Operative Document or by a breach by such Tax Indemnitee (or any Related Party thereof) of any of its representations, warranties or covenants under any Operative Document; (vi) Taxes arising out of, or caused by, any voluntary assignment, sale, transfer or other voluntary disposition, or any involuntary transfer or disposition resulting from a bankruptcy or similar proceeding for relief of debtors in which such Tax Indemnitee is a debtor, by (or a foreclosure by a creditor of) (A) the Owner Participant of any of its Beneficial Interest, (B) the Owner Lessor of all or any of its interest in the Facility or the Facility Site, or (C) the Lease Indenture Trustee of any interest in the Lessor Notes or the Indenture Estate unless (i) such transfer or disposition occurs during the continuance of a Lease Event of Default, or (ii) such transfer or disposition is required under, or occurs pursuant to, the Operative Documents and the price paid is other than Fair Market Sales Value; (vii) Taxes arising in connection with Owner Participant’s Liens or Owner Lessor’s Liens; (viii) Taxes imposed on any assignee or successor-in-interest to a Tax Indemnitee to the extent any such Taxes exceed the Taxes that would have been imposed had no assignment or transfer taken place determined under the law as in effect on the date of transfer; provided that this exclusion shall not apply to the computation of the gross-up amounts necessary to make a payment on an After-Tax Basis, nor to a transferee, assignee or successor in interest that acquires the interest of a Tax Indemnitee pursuant to a transfer or disposition in connection with the exercise of remedies during the continuance of a Lease Event of Default; (ix) Taxes that are included as a part of Transaction Costs; (x) Taxes imposed on, based on, or measured by any compensation that any Owner Trustee or the Lease Indenture Trustee receives for its services; (xi) any U.S. federal income taxes, including with respect to the Owner Participant, Taxes for which NRG is obligated to indemnify the Owner Participant under the Tax Indemnity Agreement (or which are expressly excluded from indemnification thereunder); (xii) other than with respect to the Certificateholders, the Lease Indenture Trustee and the Pass Through Trustee or any Related Party in respect of any thereof (a “Lender Indemnitee”), Taxes resulting from the Owner Lessor not being treated as a grantor trust or a nonentity for federal, state or local income tax purposes; (xiii) Taxes attributable to the failure of any Tax Indemnitee to comply with certification, information, documentation, reporting or other similar requirements concerning the nationality, residence, identity, connection with the jurisdiction imposing such Taxes or other similar matters; provided that the foregoing exclusion shall only apply if such Tax Indemnitee is eligible and obligated to comply with such requirement and shall have been given timely written notice of such requirement by NRG; (xiv) Taxes imposed on a Tax Indemnitee where the Tax Indemnitee’s breach of its contest obligations under Section 12.2(g) effectively precludes NRG’s ability to contest the Taxes; (xv) Taxes imposed on any Tax Indemnitee resulting from an amendment, modification, supplement or waiver to any Operative Document which was not requested by Midwest or NRG and as to which Midwest or NRG is not a party and the Tax Indemnitee (or, in the case of the Owner Participant, the Facility Lessor if acting at the express direction of the Owner Participant) is a party unless such amendment, modification, supplement or waiver (A) was required by applicable law or the Operative Documents, (B) may be necessary or appropriate to, and is in conformity with, any amendment, modification, supplement or waiver to any Operative Document agreed to by Midwest or NRG in writing, or (C) is made while a Lease Event of Default shall have occurred and be continuing; (xvi) Taxes imposed under Section 4975 of the Code, Section 406 of ERISA or any comparable laws of any governmental authority to the extent resulting from action by such Tax Indemnitee other than, in the case of the Owner Participant, the taking of any action at the request or direction of NRG; (xvii) Taxes imposed to the extent such Taxes result from the Tax Indemnitee (and in the case of the Owner Lessor, only if acting at the written direction of the Owner Participant) being organized under the laws of a jurisdiction other than the United States or any State thereof (other than, in the case of a Lender Indemnitee, such Taxes which did not exist under law in effect on the date such Lender Indemnitee became a party to this transaction); (xviii) Any Taxes imposed on a Tax Indemnitee to the extent that such taxes would not have been imposed but for the activities of such Tax Indemnitee unrelated to the transactions contemplated hereby; (xix) Taxes imposed on a Tax Indemnitee in the nature of interest, penalties, fines and additions to tax (i) payable as a result of such Tax Indemnitee’s failure to file, in a procedurally proper manner and on a timely basis, any tax reports, returns or statements as to which NRG has timely notified such Tax Indemnitee in writing of the requirement to file, unless such failure is otherwise caused by the failure of NRG to fulfill its obligations, if any, with respect to such return (including provision of information sufficient to enable such Tax Indemnitee to file such report, return or statement), or (ii) to the extent not attributable to or resulting from Taxes for which an indemnity is provided hereunder; and (xx) Taxes for as long as such Taxes are being contested pursuant to the contest provisions contained in Section 12.2(g).

Excluded Taxes. The indemnity provided for in paragraph (aSection 12.2(a) above shall not extend to any of the following Taxes (the “Excluded Taxes”): (i) Taxes imposed on, based on or measured by gross or net income or receipts or capital or net worth (other than Taxes that are, or are in the nature of, sales, use, propertystamp, license, ad valorem, rentalvalue added, stamp, transfer, excise, license and value added rental or property taxes, and other than franchise tax imposed by the State of Illinois upon the Owner Participant, the Owner Lessor or their respective Affiliates under the Business Corporation Act of 1983, as amended, or any successor legislation thereto); (ii) Taxes attributable to any period (A) in the case of a Tax Indemnitee other than the Noteholders, the Indenture Trustee and the Depositary Bank, after expiration or other termination of the Facility Lease and, where required by the Facility Lease, return and surrender of the Facility to the Owner Lessor or its designee in accordance with the Facility Lease successors or (or, B) in the case of the Lease Noteholders, the Indenture TrusteeTrustee and the Depositary Bank, after the repayment of the Lessor NotesNotes and all other amounts due to the Noteholders under the Operative Documents, except to the extent such Taxes are related to or arose from payments made pursuant to the Operative Documents or events, acts or omissions occurring, or matters arising prior to or simultaneous with such expiration, termination or surrender (or repayment in the case of the Lessor Notes and other amounts due to the Noteholders, the Indenture Trustee or the Depositary Bank under the Operative Documents), provided that the exclusion set forth in this clause (ii) shall not apply so long as a Company Event of Default shall have occurred and be continuing; (iii) Taxes imposed on a Tax Indemnitee attributable to the fraud, gross negligence or willful misconduct of such Tax Indemnitee or any Related Party of such Tax IndemniteeAffiliate thereof; (iv) Taxes in the nature of capital gain, accumulated earnings, personal holding company, excess profits, succession or estate, minimum, alternative minimum, preference, franchise, conduct of business and other similar taxes (other than franchise tax imposed by the State of Illinois upon the Owner Participant, the Owner Lessor or their respective Affiliates under the Business Corporation Act of 1983, as amendedTaxes that are, or any successor legislation theretoare in the nature of, sales, use, stamp, license, ad valorem, value added, rental or property taxes); (v) Taxes imposed on a any Tax Indemnitee that arise out of, or are caused by, attributable to any act (or omission omission) of such Tax Indemnitee (or any Related Party thereof) that is expressly prohibited (or required) by any the Operative Document Documents or by a breach by such Tax Indemnitee (or any Related Party Affiliate thereof) ), or the inaccuracy of any of its representations, warranties or covenants under any Operative Document unless attributable to the breach by the Company of its obligations under an Operative Document; (vi) Taxes arising out ofthat would not arise but for, or that are caused by, any voluntary assignment, sale, transfer (direct or other voluntary disposition, indirect) or any involuntary transfer (direct or disposition indirect) resulting from a any bankruptcy or similar proceeding for relief of debtors in which such Tax Indemnitee is a debtor, by (or a foreclosure by a creditor of) of such Tax Indemnitee (A) by the Owner Participant of all or any of its Beneficial the Member Interest, (B) by the Owner Lessor of all or any of its interest in the Facility or the Ground Interest or any other interest in the Lessor Estate, if any, securing the Company’s obligations under the Facility SiteLease or any portion or component thereof or interest therein, or (C) the Lease Indenture Trustee by a Noteholder of any interest in the Lessor Notes or the Indenture Estate unless collateral relating thereto or (iD) by a Certificateholder of any interest in the Certificates or the collateral relating thereto, unless, in each case, such transfer or disposition occurs during the continuance continuation of a Lease Company Event of Default, the transfer results from an Event of Loss or (ii) such transfer a Deemed Loss or disposition is required under, or occurs pursuant to, from the Company’s exercise of its rights under the Operative Documents and Documents) or where the purchase price paid is other less than Fair Market Sales Value; (vii) In the case of a Tax Indemnitee that is (A) the Owner Participant or a Related Party thereto, Taxes arising in connection with that would not arise but for Owner Participant’s Liens or (B) in the case of a Tax Indemnitee that is the Owner Lessor or a Related Party thereto, Taxes that would not arise but for Owner Lessor’s Liens; (viii) Taxes imposed on any assignee or successor-in-interest to a Tax Indemnitee (including any transfer by merger, consolidation, liquidation, reorganization or otherwise by operation of law) to the extent any such Taxes exceed the Taxes that would have been imposed had no assignment or transfer taken place determined under the law as in effect on the date of transferplace; provided provided, that this exclusion (A) shall not apply to the computation for purposes of the determining gross-up amounts necessary and payments required to make a payment be made on an After-Tax Basis, nor Basis and (B) shall not apply to a transferee, assignee or successor in successor-in-interest that acquires the interest of a Tax Indemnitee pursuant to a transfer or disposition in connection with the exercise of remedies during the continuance of a Lease Company Event of Default or a Significant Company Default; (ix) Taxes that are properly included as a part of Transaction CostsExpenses or the Facility Cost; (x) Taxes imposed on, based on, or measured by any compensation that any Owner Trustee the Independent Manager, the Pass Through Trustees, the Depositary Bank or the Lease Indenture Trustee receives for its services; (xi) any U.S. federal income taxes, including with respect to the Owner Participant, Taxes for which NRG the Company is obligated to indemnify the Owner Participant under the Tax Indemnity Agreement (or which are expressly excluded from indemnification thereunder); (xii) other than with respect Taxes imposed on or withheld from payments made to any Tax Indemnitee attributable to the Certificateholders, the Lease Indenture Trustee and the Pass Through Trustee or any Related Party in respect of any thereof (a “Lender Indemnitee”), Taxes resulting from the Owner Lessor not Tax Indemnitee being treated as other than a grantor trust or U.S. Person (as defined in section 7701(a)(30) of the Code), except to the extent such determination is attributable to a nonentity for federal, state or local income tax purposeschange in law; (xiii) Taxes attributable to the failure of any a Tax Indemnitee to comply on a timely basis with certification, information, documentation, reporting or other similar requirements concerning the taxation, nationality, residence, identity, connection with the jurisdiction imposing such Taxes or other similar matters; provided provided, that the foregoing exclusion shall only apply if such Tax Indemnitee is eligible and obligated to comply with such requirement and (other than with respect to the provision of a W-8BEN, W-8ECI, W-8IMY or W-9 form) shall have been given timely written notice of such requirement by NRGthe Company and the Tax Indemnitee shall have determined in good faith that compliance with any such requirement shall not result in any material adverse effect to it or its Affiliate’s interests (where such certification, information, documentation, reporting or similar requirement is not otherwise required to be made by the Tax Indemnitee under applicable law), unless the Tax Indemnitee shall have been indemnified by the Company against such consequences in a manner which is reasonably satisfactory to the Tax Indemnitee; (xiv) Taxes imposed on a Tax Indemnitee where the Tax Indemnitee’s breach of its contest obligations under Section 12.2(g) effectively precludes NRGthe Company’s ability to contest the TaxesTax; (xv) Taxes imposed on any Tax Indemnitee resulting from an amendment, modification, supplement or waiver amendment to any Operative Document which that was not requested by Midwest or NRG the Company and as to which Midwest or NRG the Company is not a party and the Tax Indemnitee (or, in the case of the Owner Participant, the Facility Lessor Owner Lessor, if acting at the express direction of the Owner Participant) is a party unless such amendment, modification, supplement or waiver amendment (Ai) was required by applicable law Applicable Law or the Operative Documents, (Bii) may be is necessary or appropriate to, and is in conformity with, to conform with any amendment, modification, supplement or waiver amendment to any Operative Document agreed to requested by Midwest or NRG the Company in writing, writing or (Ciii) is made while during the continuance of a Lease Company Event of Default shall have occurred and be continuingDefault; (xvi) Taxes imposed under Section 4975 of the Code, Section 406 Code or under Subtitle B of Title I of ERISA on a particular Tax Indemnitee as a result of a breach of representation or any comparable laws of any governmental authority covenant given by such Indemnitee under Section 6.4(h), 6.5 or 9.10 with respect to the extent resulting from action by such Tax Indemnitee other thansource of funds used to provide the Lessor Notes or the Equity Contributions, in the case of the Owner Participant, the taking of any action at the request or direction of NRGas applicable; (xvii) Taxes imposed to the extent such Taxes result from the Tax Indemnitee (and in the case or collected under Sections 1441 through 1446 of the Owner Lessor, only if acting at the written direction of the Owner Participant) being organized under the laws of a jurisdiction other than the United States or any State thereof (other than, in the case of a Lender Indemnitee, such Taxes which did not exist under law in effect on the date such Lender Indemnitee became a party to this transaction)Code; (xviii) Any Taxes in the nature of an intangible or similar tax imposed on a leasehold property interest; (xix) Taxes (other than Taxes that are or are in the nature of sales, use, property, ad valorem, rental, stamp, transfer, excise, license and value added taxes or Taxes collected by withholding against payments under the Indenture or the Lessor Notes) to the extent imposed as a result of the situs, organization, place of business or the activities of the Tax Indemnitee in the jurisdiction imposing such Taxes (other than a place of business, situs or activities attributable to the Tax Indemnitee solely by reason of (A) the transactions contemplated by the Operative Documents, (B) the Company being organized or having its place of business in the taxing jurisdiction, (C) any part of the Facility being located, operated or used in the taxing jurisdiction or (D) any payment contemplated by the Operative Documents being made by or on behalf of the Company from the taxing jurisdiction); (xx) Penalties, additions to Tax or interest imposed on a Tax Indemnitee attributable to the extent that such taxes would not have been imposed but for the activities of such Tax Indemnitee unrelated Indemnitee’s failure to comply with the transactions contemplated herebyrequirements imposed on it under Section 6011, 6111 or 6112 of the Code or the Treasury Regulations promulgated thereunder; (xixxxi) Taxes imposed on the Owner Lessor or any Related Party attributable to the Owner Lessor being treated as other than a disregarded entity or pass through entity for tax purposes; (xxii) Taxes imposed on a Tax Indemnitee in the nature of interest, penalties, fines and additions to tax (i) payable as a result of such Tax Indemnitee’s failure to file, in a procedurally proper manner and on a timely basis, any tax reports, returns or statements as to which NRG has timely notified such Tax Indemnitee in writing of the requirement to file, unless such failure is otherwise caused by the failure of NRG to fulfill its obligations, if any, with respect to such return (including provision of information sufficient to enable such Tax Indemnitee to file such report, return or statement), or (ii) to the extent not attributable to or resulting from Taxes for which an indemnity is provided hereunderpayroll tax; and (xxxxiii) Taxes for as long as such Taxes that are being contested pursuant in good faith in an appropriate proceeding while such proceeding is pending or subject to any appeal pending a final judgment, subject the contest provisions contained Owner Participant’s right to obtain an advance in accordance with Section 12.2(g12.2(g)(iii)(E).

Excluded Taxes. The indemnity provided for in paragraph (a) above shall not extend to any of the following Taxes (the “Excluded Taxes”): (i) Taxes imposed on, based on or measured by gross or a Recipient’s net income or receipts or capital or net worth (other than saleshowever denominated), use, property, ad valorem, rental, stamp, transfer, excise, license franchise Taxes and value added taxes, and other than franchise tax imposed by the State branch profits Taxes (i) as a result of Illinois upon the Owner Participant, the Owner Lessor or their respective Affiliates such Recipient being organized under the Business Corporation Act of 1983, as amended, or any successor legislation thereto); (ii) Taxes attributable to any period after expiration or other termination of the Facility Lease and, where required by the Facility Lease, return of the Facility to the Owner Lessor or its designee in accordance with the Facility Lease (or, in the case of the Lease Indenture Trustee, after the repayment of the Lessor Notes); (iii) Taxes imposed on a Tax Indemnitee attributable to the gross negligence or willful misconduct of such Tax Indemnitee or any Related Party of such Tax Indemnitee; (iv) Taxes in the nature of capital gain, accumulated earnings, personal holding company, excess profits, succession or estate, minimum, alternative minimum, preference, franchise, conduct of business and other similar taxes (other than franchise tax imposed by the State of Illinois upon the Owner Participant, the Owner Lessor or their respective Affiliates under the Business Corporation Act of 1983, as amended, or any successor legislation thereto); (v) Taxes imposed on a Tax Indemnitee that arise out laws of, or are caused byhaving its principal office or applicable Lending Office located in, any act or omission of the jurisdiction imposing such Tax Indemnitee (or any Related Party thereof) that is expressly prohibited by any Operative Document or by a breach by such Tax Indemnitee (or any Related Party thereof) of any of its representations, warranties or covenants under any Operative Document; (vi) Taxes arising out of, or caused by, any voluntary assignment, sale, transfer or other voluntary disposition, or any involuntary transfer or disposition resulting from a bankruptcy or similar proceeding for relief of debtors in which such Tax Indemnitee is a debtor, by (or a foreclosure by a creditor of) (A) the Owner Participant of any of its Beneficial Interest, (B) the Owner Lessor of all or any of its interest in the Facility or the Facility Site, or (C) the Lease Indenture Trustee of any interest in the Lessor Notes or the Indenture Estate unless (i) such transfer or disposition occurs during the continuance of a Lease Event of DefaultTax, or (ii) such transfer constituting Other Connection Taxes; and (b) U.S. federal withholding Taxes imposed pursuant to FATCA. In no event shall “Excluded Taxes” include any withholding Tax imposed on amounts paid by or disposition is required underon behalf of a foreign Obligor. Extraordinary Expenses: all costs, expenses or advances incurred by Lender during a Default or Event of Default or an Obligor’s Insolvency Proceeding, including those relating to (a) any audit, inspection, repossession, storage, repair, appraisal, insurance, manufacture, preparation or advertising for sale, sale, collection, or occurs pursuant toother preservation of or realization upon any Collateral; (b) any action, the Operative Documents and the price paid is arbitration or other than Fair Market Sales Value; proceeding (viiwhether instituted by or against Lender, any Obligor, any creditor(s) Taxes arising of an Obligor or any other Person) in connection with Owner Participantany way relating to any Collateral, Lender’s Liens Lien, Loan Documents, Letters of Credit or Owner Lessor’s Liens; Obligations, including any lender liability or other Claims; (viiic) Taxes imposed on any assignee or successor-in-interest to a Tax Indemnitee to the extent any such Taxes exceed the Taxes that would have been imposed had no assignment or transfer taken place determined under the law as in effect on the date of transfer; provided that this exclusion shall not apply to the computation of the gross-up amounts necessary to make a payment on an After-Tax Basis, nor to a transferee, assignee or successor in interest that acquires the interest of a Tax Indemnitee pursuant to a transfer or disposition in connection with the exercise of any rights or remedies during the continuance of a Lease Event of Default; (ix) Taxes that are included as a part of Transaction Costs; (x) Taxes imposed on, based onLender in, or measured by the monitoring of, any compensation that any Owner Trustee Insolvency Proceeding; (d) settlement or the Lease Indenture Trustee receives for its services; (xi) any U.S. federal income satisfaction of taxes, including charges or Liens with respect to the Owner Participantany Collateral; (e) any Enforcement Action; and (f) negotiation and documentation of any modification, Taxes for which NRG is obligated to indemnify the Owner Participant under the Tax Indemnity Agreement (waiver, workout, restructuring or which are expressly excluded from indemnification thereunder); (xii) other than forbearance with respect to the Certificateholdersany Loan Documents or Obligations. Such costs, the Lease Indenture Trustee expenses and the Pass Through Trustee or any Related Party in respect advances include transfer fees, Other Taxes, storage fees, insurance costs, permit fees, utility reservation and standby fees, reasonable legal fees, appraisal fees, brokers’ and auctioneers’ fees and commissions, accountants’ fees, environmental study fees, wages and salaries paid to employees of any thereof Obligor or independent contractors in liquidating any Collateral, and travel expenses. FATCA: Sections 1471 through 1474 of the Code (a “Lender Indemnitee”including any amended or successor version if substantively comparable and not materially more onerous to comply with), Taxes resulting from the Owner Lessor not being treated as a grantor trust or a nonentity for federal, state or local income tax purposes; (xiiiand any agreements entered into pursuant to Section 1471(b)(1) Taxes attributable to the failure of any Tax Indemnitee to comply with certification, information, documentation, reporting or other similar requirements concerning the nationality, residence, identity, connection with the jurisdiction imposing such Taxes or other similar matters; provided that the foregoing exclusion shall only apply if such Tax Indemnitee is eligible and obligated to comply with such requirement and shall have been given timely written notice of such requirement by NRG; (xiv) Taxes imposed on a Tax Indemnitee where the Tax Indemnitee’s breach of its contest obligations under Section 12.2(g) effectively precludes NRG’s ability to contest the Taxes; (xv) Taxes imposed on any Tax Indemnitee resulting from an amendment, modification, supplement or waiver to any Operative Document which was not requested by Midwest or NRG and as to which Midwest or NRG is not a party and the Tax Indemnitee (or, in the case of the Owner Participant, the Facility Lessor if acting at the express direction of the Owner Participant) is a party unless such amendment, modification, supplement or waiver (A) was required by applicable law or the Operative Documents, (B) may be necessary or appropriate to, and is in conformity with, any amendment, modification, supplement or waiver to any Operative Document agreed to by Midwest or NRG in writing, or (C) is made while a Lease Event of Default shall have occurred and be continuing; (xvi) Taxes imposed under Section 4975 of the Code, Section 406 of ERISA or any comparable laws of any governmental authority to the extent resulting from action by such Tax Indemnitee other than, in the case of the Owner Participant, the taking of any action at the request or direction of NRG; (xvii) Taxes imposed to the extent such Taxes result from the Tax Indemnitee (and in the case of the Owner Lessor, only if acting at the written direction of the Owner Participant) being organized under the laws of a jurisdiction other than the United States or any State thereof (other than, in the case of a Lender Indemnitee, such Taxes which did not exist under law in effect on the date such Lender Indemnitee became a party to this transaction); (xviii) Any Taxes imposed on a Tax Indemnitee to the extent that such taxes would not have been imposed but for the activities of such Tax Indemnitee unrelated to the transactions contemplated hereby; (xix) Taxes imposed on a Tax Indemnitee in the nature of interest, penalties, fines and additions to tax (i) payable as a result of such Tax Indemnitee’s failure to file, in a procedurally proper manner and on a timely basis, any tax reports, returns or statements as to which NRG has timely notified such Tax Indemnitee in writing of the requirement to file, unless such failure is otherwise caused by the failure of NRG to fulfill its obligations, if any, with respect to such return (including provision of information sufficient to enable such Tax Indemnitee to file such report, return or statement), or (ii) to the extent not attributable to or resulting from Taxes for which an indemnity is provided hereunder; and (xx) Taxes for as long as such Taxes are being contested pursuant to the contest provisions contained in Section 12.2(g).

Excluded Taxes. The indemnity provided for in paragraph (a) above shall not extend to any of the following Taxes (the “"Excluded Taxes”"): (i) Taxes (other than any sales, use, license, stamp, value added, rental, property, transfer Taxes or Taxes imposed under Section 4975 of the Code or under Part 5 of subtitle B of Title I of ERISA or Taxes in the nature thereof) imposed on, based on or measured by gross or (I) net income (including any capital gain, minimum taxes or receipts taxes on items of tax preference), or (II) gross income, net or gross receipts, capital or net worth worth, imposed by (y) the U.S. federal government or (other than sales, use, property, ad valorem, rental, stamp, transfer, excise, license and value added taxes, and other than franchise tax imposed by with respect to the Lender or the Bank) the State of Illinois upon Georgia or (z) any other jurisdiction in which the Owner ParticipantTax Indemnitee is subject to such Taxes by reason of transactions or activities unrelated to the transactions contemplated by the Transaction Documents or by reason of the presence of any office or other property of such Tax Indemnitee in such jurisdiction (except to the extent such Taxes are imposed as a result of (1) the location, operation or use of any portion or Component of the Owner Lessor Facility in such jurisdiction, (2) the location, presence, activities or their respective Affiliates under the Business Corporation Act place of 1983business of Facility Lessee, as amended, Oglethorpe or any successor legislation theretoother Facility Sublessee Person in such jurisdiction or (3) the making of any payments from such jurisdiction by or on behalf of a Facility Sublessee Person); (ii) Accumulated earnings, withholding, personal holding company, excess profits, succession or estate, franchise, conduct of business, and other similar Taxes (other than any sales, use, license, stamp, value added, rental, property, transfer Taxes or Taxes imposed under Section 4975 of the Code or under Part 5 of subtitle B of Title I of ERISA or Taxes in the nature thereof) imposed by (y) the U.S. federal government or (other than with respect to the Lender or the Bank) the State of Georgia or (z) any other jurisdiction in which the Tax Indemnitee is subject to such Taxes by reason of transactions or activities unrelated to the transactions contemplated by the Transaction Documents or by reason of the presence of any office or other property of such Tax Indemnitee in such jurisdiction (except to the extent such Taxes are imposed as a result of (1) the location, operation or use of any portion or Component of the Facility in such jurisdiction, (2) the location, presence, activities or place of business of Facility Lessee, Oglethorpe or any other Facility Sublessee Person in such jurisdiction or (3) the making of any payments from such jurisdiction by or on behalf of a Facility Sublessee Person); (iii) Taxes attributable to any period after the expiration of the Facility Sublease Term or other earlier termination of the Facility Lease and, where Sublease and any required by the Facility Lease, return of the Facility Undivided Interest to the Owner Lessor Co-Trustee, unless and to the extent such Taxes are attributable to actions, omissions or its designee events occurring in accordance connection with the exercise of remedies pursuant to section 17 of the Facility Lease (or, in the case or section 17 of the Facility Sublease following the occurrence and continuance of an Event of Default under the Facility Lease Indenture Trusteeor a Sublease Event of Default, after respectively, provided that the repayment exception set forth in this clause (iii) shall not apply to Taxes to the extent (A) such Taxes are related to or arise from payments made under the Operative Documents after, or events, acts or omissions occurring or matters arising prior to or simultaneously with, the time set forth above or (B) as long as Oglethorpe or an Affiliate is the Head Lessor under the Head Lease, such Taxes as are caused by, or imposed in connection with, an action by Oglethorpe (or such Affiliate) as Head Lessor that is prohibited or not permitted under the terms of the Lessor Notes)Head Lease; (iiiiv) Taxes imposed on a Tax Indemnitee attributable to that result from the breach by such Tax Indemnitee or any Affiliate thereof of any of its representations, warranties or covenants in any of the Operative Documents or the gross negligence or willful misconduct of such Tax Indemnitee or any Related Party of such Tax Indemnitee; (iv) Taxes in the nature of capital gain, accumulated earnings, personal holding company, excess profits, succession or estate, minimum, alternative minimum, preference, franchise, conduct of business and other similar taxes (other than franchise tax imposed by the State of Illinois upon the Owner Participant, the Owner Lessor or their respective Affiliates under the Business Corporation Act of 1983, as amended, or any successor legislation thereto)Affiliate; (v) Taxes imposed on a Tax Indemnitee that arise out ofthe Owner Participant, the Co-Trustee, the Owner Trustee or are caused by, any act or omission of such Tax Indemnitee (or any Related Party thereof) that is expressly prohibited by any Operative Document or by a breach by such Tax Indemnitee (or any Related Party thereof) of any of its representations, warranties or covenants under any Operative Document; (vi) Taxes the Trust Estate arising out of, or caused by, any voluntary assignment, sale, transfer or other voluntary disposition, disposition or any an involuntary transfer or disposition resulting from a bankruptcy or similar proceeding for relief of debtors in which such Tax Indemnitee is a debtor, by (debtor or a foreclosure by a creditor ofof such Tax Indemnitee (i) (A) by the Owner Participant of its Beneficial Interest or a portion thereof or any interest in any Operative Document, (ii) by the Co-Trustee of the Facility Lessor's Undivided Interest or any portion or Component thereof or interest therein, any Operative Document, or any interest in or arising under any of its Beneficial Interest, (B) the Owner Lessor of all or any of its interest in the Facility or the Facility Site, foregoing or (Ciii) the Lease Indenture Trustee of any interest in the Lessor Notes or the Indenture Estate unless Owner Participant, other than a disposition (iw) such transfer or disposition occurs in connection with an Event of Loss, (x) during the continuance of an Event of Default under the Facility Lease or a Lease Sublease Event of Default, (y) resulting from the exercise of rights or performance of obligations by Oglethorpe or any other Facility Sublessor Person under the Transaction Documents (including, without limitation, any repair, replacement, Modification or substitution of or to the Facility or any Component thereof, the exercise of Facility Lessee's rights under Section 13 or 14 of the Facility Lease, Oglethorpe's rights under Section 13 or 14 of the Facility Sublease, the exercise of the Purchase Option under the Facility Lease or the Sublease Purchase Option, the Return of the Undivided Interest) or from the action of the Facility Sublessee or (iiz) such in connection with the transactions contemplated to occur on the Closing Date (other than the transfer or disposition is required underby the Trust Companies of the Beneficial Interest to the Owner Participant); (vi) Taxes, or occurs pursuant toimposed on the Owner Participant, the Operative Documents and Co-Trustee, the price paid is other than Fair Market Sales ValueOwner Trustee or the Trust Estate arising in connection with Facility Lessor's Liens or Owner Participant's Liens; (vii) Taxes arising in connection with Owner Participant’s Liens or Owner Lessor’s Liens; (viii) Otherwise indemnifiable Taxes imposed on against a transferee or assignee of any assignee or successor-in-interest to a Tax Indemnitee to the extent any of the excess of such otherwise indemnifiable Taxes exceed over the amount of such Taxes that would have been imposed had no assignment or transfer taken place determined under the law as in effect on the date of transfer; original Tax Indemnitee had such transfer or assignment not occurred (provided that this exclusion shall not apply to the computation calculation of the grossAfter-up amounts necessary Tax Basis for any payment required to make a payment be made on an After-Tax Basis, nor Basis or to a transferee, assignee or successor in interest that acquires the interest of a Tax Indemnitee pursuant to a transfer or disposition transfers in connection with an Event of Default under the exercise of remedies during the continuance of Facility Lease or a Lease Sublease Event of Default); (viii) Taxes that are included (and paid) as a part of the Transaction Costs; (ix) Taxes that are included imposed on the Co-Trustee, the Owner Trustee, the Lender or the Bank with respect to any fees or other compensation received by the Co-Trustee, the Owner Trustee, Lender, or the Bank respectively, in its capacity as such, other than with respect to Taxes on the Lender or the Bank imposed by the State of Georgia (unless the State of Georgia is a part jurisdiction described in clause (z) of Transaction CostsSection 11.2(b)(i) hereof with respect to the Lender or the Bank and such Taxes); (x) Taxes that would not have been imposed on, based on, or measured by any compensation that any Owner Trustee or the Lease Indenture Trustee receives but for its services; (xi) any U.S. federal income taxes, including with respect to the Owner Participant, Taxes for which NRG is obligated to indemnify the Owner Participant under the Tax Indemnity Agreement (or which are expressly excluded from indemnification thereunder); (xii) other than with respect to the Certificateholders, the Lease Indenture Trustee and the Pass Through Trustee or any Related Party in respect of any thereof (a “Lender Indemnitee”), Taxes resulting from the Owner Lessor not being treated as a grantor trust or a nonentity for federal, state or local income tax purposes; (xiii) Taxes attributable to the failure of any a Tax Indemnitee to comply with certification, information, documentation, reporting or other similar requirements concerning the nationality, residence, identity, connection with the jurisdiction imposing such Taxes or other similar matters; provided that the foregoing exclusion shall only apply if (i) such Tax Indemnitee is eligible and obligated to comply with such requirement and shall have been given timely written notice of such requirement by NRG; Oglethorpe, (xivii) Taxes imposed on a such Tax Indemnitee where the Tax Indemnitee’s breach shall have determined that compliance with such requirement will not have, or create any material risk of its contest obligations under Section 12.2(g) effectively precludes NRG’s ability having, any adverse consequence to contest the Taxes; (xv) Taxes imposed on any such Tax Indemnitee resulting from an amendment, modification, supplement or waiver to any Operative Document which was not requested by Midwest or NRG and as to which Midwest or NRG Affiliate thereof that is not a party and indemnified against by Oglethorpe to the reasonable satisfaction of the Tax Indemnitee (or, in the case of the Owner Participant, the Facility Lessor if acting at the express direction of the Owner Participant) is a party unless such amendment, modification, supplement or waiver (A) was required by applicable law or the Operative Documents, (B) may be necessary or appropriate to, and is in conformity with, any amendment, modification, supplement or waiver to any Operative Document agreed to by Midwest or NRG in writing, or (C) is made while a Lease Event of Default shall have occurred and be continuing; (xvi) Taxes imposed under Section 4975 of the Code, Section 406 of ERISA or any comparable laws of any governmental authority to the extent resulting from action by such Tax Indemnitee other than, in the case of the Owner Participant, the taking of any action at the request or direction of NRG; (xvii) Taxes imposed to the extent such Taxes result from the Tax Indemnitee (and in the case of the Owner Lessor, only if acting at the written direction of the Owner Participant) being organized under the laws of a jurisdiction other than the United States or any State thereof (other than, in the case of a Lender Indemnitee, such Taxes which did not exist under law in effect on the date such Lender Indemnitee became a party to this transaction); (xviii) Any Taxes imposed on a Tax Indemnitee to the extent that such taxes would not have been imposed but for the activities of such Tax Indemnitee unrelated to the transactions contemplated hereby; (xix) Taxes imposed on a Tax Indemnitee in the nature of interest, penalties, fines and additions to tax (i) payable as a result of such Tax Indemnitee’s failure to file, in a procedurally proper manner and on a timely basis, any tax reports, returns or statements as to which NRG has timely notified such Tax Indemnitee in writing of the requirement to file, unless such failure is otherwise caused by the failure of NRG to fulfill its obligations, if any, with respect to such return (including provision of information sufficient to enable such Tax Indemnitee to file such report, return or statement), or (ii) to the extent not attributable to or resulting from Taxes for which an indemnity is provided hereunder; and (xx) Taxes for as long as such Taxes are being contested pursuant to the contest provisions contained in Section 12.2(g).

Excluded Taxes. The indemnity provided for in paragraph (aLessee shall have no obligation under Section 14.1(a) above shall not extend to any of the following Taxes (the “Excluded Taxes”):indemnify an Indemnified Party for: (i) Taxes any Tax imposed on, based on or measured by gross or the total net income or receipts or capital or net worth of such Indemnified Party except to the extent that such Tax would not have been payable in the absence of (other than salesA) the registration, use, propertypresence, ad valorem, rental, stamp, transfer, excise, license and value added taxes, and or other than franchise tax imposed by the State connection of Illinois upon the Owner Participant, the Owner Lessor any Item of Equipment in or their respective Affiliates under the Business Corporation Act of 1983, as amendedwith, or any successor legislation thereto)act or omission of Lessee or any Affiliate, agent, representative, or contractor of Lessee or any person using or having possession, custody, or control of any Item of Equipment in, the jurisdiction imposing such Tax, (B) the inaccuracy or breach of any of the representations, warranties, covenants or agreements of Lessee in the Operative Documents, or (C) a Lease Event of Default; (ii) Taxes attributable any Tax imposed on or with respect to any period after expiration sale or other termination transfer by such Indemnified Party of such Indemnified Party’s interest in the Facility Aircraft pursuant to Section 17.2(b), provided that the exclusion in this clause (ii) shall not apply to any sale or transfer that occurs (A) in connection with or as a result of a Lease andDefault, where required by a Lease Event of Default, an Event of Loss, or any maintenance, repair, overhaul, pooling, [**] — Confidential treatment has been requested for the Facility Lease, return of the Facility to the Owner Lessor or its designee in accordance bracketed portions. The confidential redacted portion has been omitted and filed separately with the Facility Lease Securities and Exchange Commission. interchange, exchange, removal, replacement, substitution, modification, improvement, or alteration of any Item of Equipment, (orB) at Lessee’s request, or (C) pursuant to a requirement in the case of the Lease Indenture Trustee, after the repayment of the Lessor Notes)any Operative Document or any applicable Law; (iii) Taxes imposed on a any Tax Indemnitee attributable to the extent that such Indemnified Party’s liability for such Tax is caused directly by, and would not have been incurred but for, the gross negligence or willful misconduct of such Tax Indemnitee or any Related Party of such Tax IndemniteeIndemnified Party; (iv) Taxes in the nature case of capital gaina transferee of Lessor’s interest in the Aircraft pursuant to Section 17.2(b), accumulated earnings, personal holding company, excess profits, succession or estate, minimum, alternative minimum, preference, franchise, conduct of business and other similar taxes (other than franchise tax imposed by the State of Illinois upon the Owner Participant, the Owner Lessor or their respective Affiliates under the Business Corporation Act of 1983, as amended, or any successor legislation thereto); (v) Taxes imposed on a Tax Indemnitee that arise out of, the transferee or are caused by, any act or omission of such Tax Indemnitee (or any Related Party thereof) that is expressly prohibited by any Operative Document or by a breach by such Tax Indemnitee (or any Related Party thereof) of any of its representations, warranties or covenants under any Operative Document; (vi) Taxes arising out of, or caused by, any voluntary assignment, sale, transfer or other voluntary disposition, or any involuntary transfer or disposition resulting from a bankruptcy or similar proceeding for relief of debtors in which such Tax Indemnitee is a debtor, by (or a foreclosure by a creditor of) (A) on payments to the Owner Participant of any of its Beneficial Interest, (B) the Owner Lessor of all or any of its interest in the Facility or the Facility Site, or (C) the Lease Indenture Trustee of any interest in the Lessor Notes or the Indenture Estate unless (i) such transfer or disposition occurs during the continuance of a Lease Event of Default, or (ii) such transfer or disposition is required under, or occurs pursuant to, the Operative Documents and the price paid is other than Fair Market Sales Value; (vii) Taxes arising in connection with Owner Participant’s Liens or Owner Lessor’s Liens; (viii) Taxes imposed on any assignee or successor-in-interest to a Tax Indemnitee transferee to the extent any that, under applicable Law in effect on the date of the transfer to such transferee, the amount of such Taxes exceed exceeds the amount of Taxes that would have been imposed had no assignment or transfer taken place determined under the law as in effect on the date of transfer; transferor to such transferee or on payments to such transferor and indemnified against hereunder if such transfer had not occurred, provided that the exclusion in this exclusion clause (iv) shall not apply to the computation of the gross-up amounts necessary to make a payment on an After-Tax Basis, nor to a transferee, assignee or successor in interest transferee Lessor that acquires its interest in the interest of a Tax Indemnitee Aircraft pursuant to a transfer or disposition in connection with the exercise of remedies during the continuance of a Lease Event of Default;; and (ixv) Taxes any Irish value added Tax imposed on Owner Participant that are included as a is solely attributable to Owner Participant being resident for value added Tax purposes in Ireland, provided that the exclusion in this clause (v) shall not apply to any Irish value added Tax that is imposed in part of Transaction Costs; or in whole due to (xA) Taxes imposed onthe registration, based onuse, presence, or measured by other connection of any compensation that any Owner Trustee Item of Equipment in or the Lease Indenture Trustee receives for its services; (xi) any U.S. federal income taxeswith, including with respect to the Owner Participant, Taxes for which NRG is obligated to indemnify the Owner Participant under the Tax Indemnity Agreement (or which are expressly excluded from indemnification thereunder); (xii) other than with respect to the Certificateholders, the Lease Indenture Trustee and the Pass Through Trustee an act or omission of Lessee or any Related Party in respect Affiliate, agent, representative, or contractor of Lessee or any person using or having possession, custody, or control of any thereof (a “Lender Indemnitee”)Item of Equipment in, Taxes resulting from the Owner Lessor not being treated as a grantor trust or a nonentity for federal, state or local income tax purposes; (xiii) Taxes attributable to the failure of any Tax Indemnitee to comply with certification, information, documentation, reporting or other similar requirements concerning the nationality, residence, identity, connection with the jurisdiction imposing such Taxes or other similar matters; provided that the foregoing exclusion shall only apply if such Tax Indemnitee is eligible and obligated to comply with such requirement and shall have been given timely written notice of such requirement by NRG; (xiv) Taxes imposed on a Tax Indemnitee where the Tax Indemnitee’s breach of its contest obligations under Section 12.2(g) effectively precludes NRG’s ability to contest the Taxes; (xv) Taxes imposed on any Tax Indemnitee resulting from an amendment, modification, supplement or waiver to any Operative Document which was not requested by Midwest or NRG and as to which Midwest or NRG is not a party and the Tax Indemnitee (or, in the case of the Owner Participant, the Facility Lessor if acting at the express direction of the Owner Participant) is a party unless such amendment, modification, supplement or waiver (A) was required by applicable law or the Operative DocumentsIrish value added Tax, (B) may be necessary the inaccuracy or appropriate tobreach of any of the representations, and is warranties, covenants, or agreements of Lessee in conformity with, any amendment, modification, supplement or waiver to any the Operative Document agreed to by Midwest or NRG in writingDocuments, or (C) is made while a Lease Event of Default Default; provided, however, that notwithstanding anything to the contrary in this Section 14.1(b) or elsewhere in the Operative Documents, Lessee shall have occurred an obligation to indemnify and be continuing; (xvi) hold harmless each Indemnified Party for any Taxes imposed under Section 4975 of the Codeby Hawaii, Section 406 of ERISA any locality, or any comparable laws of any governmental other taxing authority to the extent resulting from action by such Tax Indemnitee other than, in the case of the Owner Participant, the taking of any action at the request or direction of NRG; (xvii) Taxes imposed to the extent such Taxes result from the Tax Indemnitee (and in the case of the Owner Lessor, only if acting at the written direction of the Owner Participant) being organized under the laws of a jurisdiction other than the United States or any State thereof (other than, including general excise and use Taxes but excluding net income Taxes that are excluded pursuant to Section 14.1(b)(i)) in the case respect of a Lender Indemnitee, such Taxes which did not exist under law in effect on the date such Lender Indemnitee became a party to this transaction); (xviii) Any Taxes imposed on a Tax Indemnitee to the extent that such taxes would not have been imposed but for the activities of such Tax Indemnitee unrelated to the transactions contemplated hereby; (xix) Taxes imposed on a Tax Indemnitee in the nature of interest, penalties, fines and additions to tax (i) payable as a result of such Tax Indemnitee’s failure to file, in a procedurally proper manner and on a timely basis, any tax reports, returns or statements as to which NRG has timely notified such Tax Indemnitee in writing of the requirement to file, unless such failure is otherwise caused by the failure of NRG to fulfill its obligationsOperative Documents, if any, with respect to such return (including provision of information sufficient to enable such Tax Indemnitee to file such report, return or statement), or (ii) to and the extent not attributable to or resulting from Taxes for which an indemnity is provided hereunder; and (xx) Taxes for as long as such Taxes are being contested pursuant to the contest provisions exclusions contained in this Section 12.2(g)14.1(b) shall have no application to any such Taxes.

Excluded Taxes. The indemnity provided for in paragraph (aSection 9.2(a) -------------- above shall not extend to any Tax that is attributable to or arises as a result of any of the following Taxes following: (the “"Excluded Taxes”):"): -------------- (i) Taxes imposed on, based on or measured by gross or net income or receipts or capital or net worth (other than Taxes that are, or are in the nature of sales, use, propertystamp, ad valorem, rental, stamplicense, transfervalue added, excise, license and value added property or other similar taxes, and other than franchise tax imposed by the State of Illinois upon the Owner Participant, the Owner Lessor or their respective Affiliates under the Business Corporation Act of 1983, as amended, or any successor legislation thereto); (ii) Taxes attributable to any period after expiration or other termination of the Facility Lease andTerm, where required by the Facility Leaseif applicable, return and surrender of the Facility to the Owner Lessor or its designee successors in accordance each case in compliance with the Facility Lease (or, in the case of the Lease Indenture TrusteeTrustee or Pass Through Trustees, after the repayment of the Lessor Notes); (iii) Taxes imposed on a Tax Indemnitee attributable to the fraud, gross negligence or willful misconduct of such Tax Indemnitee or any Related Party of such Tax IndemniteeAffiliate thereof; (iv) Taxes in the nature of capital gain, accumulated earnings, personal holding company, excess profits, succession or estate, minimum, alternative minimum, preference, franchise, conduct of business and other similar taxes (other than franchise tax imposed by the State of Illinois upon the Owner Participant, the Owner Lessor or their respective Affiliates under the Business Corporation Act of 1983, as amendedTaxes that are, or any successor legislation theretoare in the nature of sales, use, stamp, ad valorem, rental, license, value added, property or other similar taxes); (v) Taxes imposed on a Tax Indemnitee that arise out of, or are caused by, any act or omission of such Tax Indemnitee (or any Related Party Affiliate thereof) that is expressly prohibited by any the Operative Document Documents (other than the Lease Indenture Trustee or by the Pass Through Trustees, unless the act, omission or breach is the result of such Person's negligence or their willful misconduct) or a breach by such Tax Indemnitee (or any Related Party Affiliate thereof) or the inaccuracy of any of its representations, warranties or covenants under any Operative Document, unless attributable to the Company (or any Related Party thereof) or breach by the Company (or any Related Party thereof) of its obligations under the Operative Documents; (vi) Taxes arising out of, or caused by, any voluntary assignment, sale, transfer or other voluntary disposition, disposition (direct or indirect) or any involuntary assignment, sale, transfer or other disposition (direct or indirect) resulting from a bankruptcy or similar proceeding for relief of debtors in which such Tax Indemnitee is a debtor, by (debtor or a foreclosure by a creditor of) of such Tax Indemnitee (A) by the Owner Participant of all or any of its Beneficial Interest, interest in an Owner Lessor or (B) by the Owner Lessor of all or any of its interest in the Facility, the Facility Site or the collateral, if any, securing the obligations of the Company under the Facility SiteLease, or any portion or component thereof of interest therein or (C) by the Lease Indenture Trustee of any interest in the Lessor Notes Lease Debt or the Indenture Estate unless any collateral relating thereto (unless, in each case, such assignment, sale, transfer or other disposition (i) such transfer or disposition occurs during the continuance continuation of a Lease Event of Default, or (ii) such arises in connection with a sale or other transfer of the Facility to the Facility Lessee or disposition is required under, (iii) arises from a sale of the Facility or occurs pursuant to, the Operative Documents and the price paid is a Unit to a party other than Fair Market Sales Valuethe Facility Lessee pursuant to and in accordance with Section 10, 13 or 14 of the Facility Lease, but the amount otherwise payable by the Company pursuant to this clause (iii) shall be reduced to the extent the proceeds from the sale are in excess of the Termination Value applicable to the Facility or the Unit; (vii) in the case of a Tax Indemnitee that is the Owner Participant or a Related Party thereto, Taxes arising in connection with Owner Participant’s 's Liens or in the case of a Tax Indemnity that is the Owner Lessor or a Related Party thereto, Taxes arising in connection with Owner Lessor’s 's Liens; (viii) Taxes imposed on any assignee or successor-in-in- interest to a Tax Indemnitee (including any transfer by merger, consolidation, liquidation, reorganization or otherwise by operation of law) to the extent any such Taxes exceed the Taxes that would have been imposed had no assignment or transfer taken place determined under the law as in effect on the date of the transfer; provided that this exclusion (A) shall not apply to the computation of the gross-up amounts necessary to make a payment on an After-Tax Basis, nor and (B) shall not apply to a transferee, assignee or successor in successor-in-interest that acquires the interest of a Tax Indemnitee pursuant to a transfer or disposition in connection with the exercise of remedies during the continuance of a Lease Event of Default; (ix) Taxes that are actually and properly included as a part of Transaction CostsCosts or the Purchase Price; (x) Taxes imposed on, based on, or measured by any compensation that any Owner Trustee Lessor Manager, Pass Through Trustees or the Lease Indenture Trustee receives for its services; (xi) any U.S. federal income taxes, including with With respect to the Owner Participant, Taxes for which NRG the Company is obligated to indemnify the Owner Participant under the Tax Indemnity Agreement (or which are expressly excluded from indemnification thereunder); (xii) other than with respect Taxes imposed on any Tax Indemnitee attributable to the Certificateholders, the Lease Indenture Trustee and the Pass Through Trustee or any Related Party in respect of any thereof (a “Lender Indemnitee”), Taxes resulting from the Owner Lessor not Tax Indemnitee being treated as other than a grantor trust or a nonentity for federal, state or local income tax purposesU.S. Person (as defined in Section 7701(a)(30) of the Code); (xiii) Taxes attributable to the failure of any the Tax Indemnitee to comply on a timely basis with certification, information, documentation, reporting or other similar requirements concerning the taxation, nationality, residence, identity, connection with the jurisdiction imposing such Taxes or other similar matters; provided that the foregoing exclusion shall only apply if (A) such Tax Indemnitee is eligible and obligated to comply with such requirement and shall have been given timely written notice of such requirement by NRGthe Company and (B) in instances where such certification, information, documentation, reporting or similar requirement is not otherwise required to be made by the Tax Indemnitee under Applicable Law (other than merely as a precondition to Tax relief), compliance with any such requirement shall not result in any material adverse effect to its interests or to those of its Related Parties (unless the Indemnitee shall have been indemnified against such consequences in a manner which is satisfactory to the Indemnitee from or guaranteed by an entity that meets the Minimum Credit Standard); (xiv) Taxes imposed on a Tax Indemnitee where the Tax Indemnitee’s 's breach of its contest obligations under Section 12.2(g9.2(g) effectively precludes NRG’s materially adversely affects the Company's ability to contest the Taxes; (xv) Taxes imposed on any Tax Indemnitee resulting from an amendment, modification, supplement or waiver to any Operative Document or Facility Agreement which was not requested by Midwest or NRG and as to which Midwest or NRG is not a party and the Tax Indemnitee (or, in the case of the Owner Participant, the Facility Lessor if acting at the express direction of the Owner Participant) is a party Company unless such amendment, modification, supplement or waiver (A) was required by applicable law or Applicable Law, the Operative DocumentsDocuments or Facility Agreement, (B) may be is necessary or appropriate to, and is in conformity with, to conform with any amendment, modification, supplement or waiver to any Operative Document agreed to or Facility Agreement requested by Midwest or NRG the Company in writing, or (C) is made while a Lease Event of Default shall have occurred and be continuing; (xvi) Taxes imposed under Section 4975 of the Code, Section 406 Code or under subtitle B of Title I of ERISA or any comparable laws of any governmental authority to the extent resulting from action by such Tax Indemnitee other thanwhich, in the case of the Owner Participant, arise out of or are caused by a breach of the taking of any action at the request or direction of NRGOwner Participant's representation under Section 3.4(g) hereof; (xvii) Taxes imposed to the extent such Taxes result from the Tax Indemnitee (and in the case or collected under Section 1441 through 1446 of the Owner Lessor, only if acting at the written direction of the Owner Participant) being organized under the laws of a jurisdiction other than the United States or any State thereof (other than, in the case of a Lender Indemnitee, such Taxes which did not exist under law in effect on the date such Lender Indemnitee became a party to this transaction)Code; (xviii) Any Other than Taxes imposed by New York State, taxes to the extent imposed as a result of the situs, organization, place of business or the activities of the Tax Indemnitee in the jurisdiction imposing such Tax (other than a place of business, situs or activities attributable to the Tax Indemnitee solely by reason of (1) the transactions contemplated by the Operative Documents; (2) the Company being organized or having its place of business in the taxing jurisdiction; (3) any part of the Facility being located, operated or used in the taxing jurisdiction; or (4) any payment contemplated by the Operative Documents being made by or on behalf of the Company from the taxing jurisdiction); (xix) Penalties, additions to tax or interest imposed on a Tax Indemnitee attributable to such Tax Indemnitee's failure to comply with the requirements imposed on it under Section 6011, 6111 or 6112 of the Code or the Regulations promulgated thereunder; provided, however; that this exclusion shall not apply to the extent of any penalties, additions to tax or interest that such taxes would not have been imposed but for the activities of such Tax Indemnitee unrelated to the transactions contemplated hereby; (xix) Taxes are imposed on a Tax Indemnitee in due to any failure to properly and timely register the nature of interest, penalties, fines and additions to tax (i) payable transaction contemplated by the Operative Documents as a result of such Tax Indemnitee’s failure confidential tax shelter under and pursuant to file, in a procedurally proper manner and on a timely basis, any tax reports, returns or statements as to which NRG has timely notified such Tax Indemnitee in writing Section 6111 of the requirement to file, unless such failure is otherwise caused by the failure of NRG to fulfill its obligations, if any, with respect to such return (including provision of information sufficient to enable such Tax Indemnitee to file such report, return or statement), or (ii) to the extent not attributable to or resulting from Taxes for which an indemnity is provided hereunderCode; and (xx) Taxes imposed on an Owner Lessor or any Related Party attributable to such Owner Lessor being treated as other than a disregarded entity or pass through entity for as long as such Taxes are being contested pursuant tax purposes. Notwithstanding anything herein to the contest provisions contained in Section 12.2(g)contrary, the Company (but without duplication of indemnities) will indemnify the Owner Participant, the OP Member, the Lessor Manager, the OP Guarantor and the Owner Lessor on an After-Tax Basis for any failure to withhold on the Certificates or the Notes, provided, however, that upon payment of such indemnity, the Company shall be subrogated to any rights which the indemnified party may have against the party responsible for the failure to withhold.

Excluded Taxes. The indemnity provided for in paragraph (a) above shall not extend to any of the following Taxes (the “Excluded Taxes”"EXCLUDED TAXES"): (i) Taxes imposed by the United States federal government, or Taxes imposed on, based on or measured by gross or net income or receipts or capital or net worth (in each case, other than Taxes that are or are in the nature of sales, use, property, ad valorem, rental, stamp, transfer, excise, license license, and value added taxes, and other than franchise tax imposed taxes or Taxes collected by withholding against payments under the State of Illinois upon the Owner ParticipantExisting Debt, the Owner Lease Indenture or the Lessor Notes or their respective Affiliates under the Business Corporation Act of 1983, as amendedTaxes arising out of, or any successor legislation theretoin connection with or related to the matters described); (ii) Taxes attributable to any period after expiration or other termination of the Facility Lease and, where required by the Facility Lease, return of the Facility to the Owner Lessor or its designee in accordance with the Facility Lease (or, in the case of the Lease Indenture TrusteeTrustee and the Security Agent, after the repayment of the Lessor Notes) and not as a result of any act, event or omission occurring prior to or simultaneous with such expiration, termination or surrender (or in the case of the Noteholders, the Lease Indenture Trustee, the Security Agent, the Lease Indenture Company or any Related Party in respect of any thereof (each, a "Lender Indemnitee"), such repayment), provided that this exclusion shall not apply so long as a Lease Event of Default shall have occurred and be continuing; (iii) Taxes imposed on a Tax Indemnitee attributable to the gross negligence or willful misconduct of such Tax Indemnitee or any Related Party of such Tax Indemnitee; (iv) Taxes in the nature of capital gain, accumulated earnings, personal holding company, excess profits, succession or estate, minimum, alternative minimum, preference, franchise, conduct of business and other similar taxes (in each case, other than franchise tax imposed Taxes that are or are in the nature of sales, use, property, ad valorem, rental, stamp, transfer, excise, license, and value added taxes or Taxes collected by the State of Illinois upon the Owner Participant, the Owner Lessor or their respective Affiliates withholding against payments under the Business Corporation Act of 1983, as amended, Lease Indenture or any successor legislation theretothe Lessor Notes); (v) Taxes imposed on a Tax Indemnitee that arise out of, or are caused by, any act or omission of such Tax Indemnitee (or any Related Party thereof) that is expressly prohibited by any Operative Document or by a breach by such Tax Indemnitee (or any Related Party thereof) of any of its representations, warranties or covenants under any Operative Document, except to the extent attributable to any acts or omissions of the Facility Lessee or any sublessee, transferee or assignee of the Facility Lessee; (vi) Taxes arising out of, or caused by, any voluntary assignment, sale, transfer or other voluntary disposition, or any involuntary transfer or disposition resulting from a bankruptcy or similar proceeding for relief of debtors in which such Tax Indemnitee is a debtor, by (or a foreclosure by a creditor of) ) (A) the Owner Participant of any of its Beneficial Lessor Membership Interest, (B) the Owner Lessor of all or any of its interest in the Facility or the Facility Site, or (C) the Lease Indenture Trustee Security Agent of any interest in the Lessor Notes or the Indenture Estate unless (i) such transfer or disposition occurs during the continuance of a Lease Event of Default, or (ii) such transfer or disposition is required under, or occurs pursuant to, the Operative Documents and the price paid is other than Fair Market Sales Value; (vii) in the case of a Tax Indemnitee that is the Owner Participant or a Related Party thereto, Taxes arising in connection with Owner Participant’s Participant Liens or in the case of a Tax Indemnitee that is the Owner Lessor’s Lessor or a Related Party thereto, Taxes arising in connection with Owner Lessor Liens; (viii) Taxes imposed on any assignee or successor-in-interest to a Tax Indemnitee to the extent any such Taxes exceed the Taxes that would have been imposed had no assignment or transfer taken place determined under the law as in effect on the date of transfer; provided that this exclusion shall not apply to the computation of the gross-up amounts necessary to make a payment on an After-Tax Basis, nor to a transferee, assignee or successor in interest that acquires the interest of a Tax Indemnitee pursuant to a an assignment, transfer or disposition in connection with the exercise of remedies during the continuance of a Material Lease Default or Lease Event of Default; (ix) Taxes that are properly included as a part of Transaction CostsExpenses; (x) Taxes imposed on, based on, or measured by any compensation that any Owner Trustee Manager, the Security Agent or the Lease Indenture Trustee receives for its services; (xi) any U.S. federal income taxes, including with respect to the Owner Participant, Taxes U.S. federal income taxes for which NRG Xxxxx City is obligated to indemnify the Owner Participant under the Tax Indemnity Agreement (or which are expressly excluded from indemnification thereunder); (xii) other than with respect to the Certificateholders, the Lease Indenture Trustee and the Pass Through Trustee or any Related Party in respect of any thereof (a “Lender Indemnitee”), Taxes resulting from the Owner Lessor not being treated as a grantor trust trust, a nonentity or a nonentity pass-through or disregarded entity for federal, state or local income tax purposes; (xiii) Taxes attributable to the failure of any Tax Indemnitee to comply with certification, information, documentation, reporting or other similar requirements concerning the nationality, residence, identity, connection with the jurisdiction imposing such Taxes or other similar matters; provided that the foregoing exclusion shall only apply if such Tax Indemnitee is eligible and obligated under applicable law or the Operative Documents to comply with such requirement and shall have been given timely written notice of such requirement by NRGor on behalf of Xxxxx City; (xiv) Taxes imposed on a Tax Indemnitee where the Tax Indemnitee’s 's breach of its contest obligations under Section 12.2(gSECTION 10.2(G) effectively precludes NRG’s Xxxxx City's ability to contest the Taxes; (xv) Taxes imposed on any Tax Indemnitee resulting from an amendment, modification, supplement or waiver to any Operative Document which was not requested by Midwest or NRG Xxxxx City and as to which Midwest or NRG Xxxxx City is not a party and the Tax Indemnitee (or, in the case of the Owner Participant, the Facility Owner Lessor if acting at the express direction of the Owner Participant) is a party unless such amendment, modification, supplement or waiver (A) was required by applicable law or the Operative Documents, (B) may be necessary or appropriate to, and is in conformity with, any amendment, modification, supplement or waiver to any Operative Document agreed to or requested by Midwest or NRG Xxxxx City in writing, or (C) is made while a Lease Event of Default shall have occurred and be continuing; (xvi) Taxes imposed under Section 4975 of the Code, Section 406 of ERISA or any comparable laws of any governmental authority to the extent resulting from action by any breach of any of the representations or warranties of such Tax Indemnitee other than, set forth in the case of the Owner Participant, the taking of any action at the request or direction of NRGSECTION 3.4(G) hereof; (xvii) Taxes imposed to the extent such Taxes result from the Tax Indemnitee (and in the case of the Owner Lessor, only if acting at the written direction of the Owner Participant) being organized under the laws of a jurisdiction other than the United States or any State thereof (other than, in the case of a Lender Indemnitee, such Taxes which did not exist under law in effect on the date such Lender Indemnitee became a party to this transaction); (xviii) Any Taxes (other than Taxes that are or are in the nature of sales, use, property, ad valorem, rental, stamp, transfer, excise, license and value added taxes or Taxes collected by withholding against payments under the Lease Indenture or the Lessor Notes) imposed on a Tax Indemnitee to the extent that such taxes would not have been imposed but for the activities of such Tax Indemnitee unrelated to the transactions contemplated hereby; (xix) Taxes imposed on a Tax Indemnitee in the nature of interest, penalties, fines and additions to tax (i) payable as a result of such Tax Indemnitee’s 's failure to file, in a procedurally proper manner and on a timely basis, any tax reports, returns or statements as to which NRG Xxxxx City has timely notified such Tax Indemnitee in writing of the requirement to file, unless such failure is otherwise caused by the failure of NRG Xxxxx City to fulfill its obligations, if any, with respect to such return (including provision of information sufficient to enable such Tax Indemnitee to file such report, return or statement), or (ii) to the extent not attributable to or resulting from Taxes for which an indemnity is provided hereunder; and (xx) Taxes for as long as such Taxes are being contested pursuant to the contest provisions contained in Section 12.2(gSECTION 10.2(G) (subject to the Tax Indemnitee's right to obtain a Tax Advance pursuant to SECTION 10.2(G)(III)(5)).

Excluded Taxes. The indemnity provided for in paragraph (a) above shall not extend to any of the following Taxes (the “"Excluded Taxes”): (i) "): Taxes imposed by the United States federal government or any state or local government, any political subdivision of any of the foregoing, imposed on, based on or measured by gross or net income or receipts or income, receipts, capital gain, capital or net worth worth, or conduct of business (other than than, in each case, Taxes that are or are in the nature of sales, use, property, ad valorem, rental, stamplicense, transfer, excise, license and value added (to the extent value added taxes are not imposed in clear and direct substitution for income taxes) or property taxes) ("Income Taxes"), including any such Taxes collected by way of withholding, minimum or alternative minimum taxes, and franchise taxes; provided that this exclusion (i) shall not affect any express requirement that payments be made on an "after-tax" basis; Taxes imposed on a Tax Indemnitee other than franchise tax imposed by the State of Illinois upon the Owner Participant, the Owner Lessor or their respective Affiliates under the Business Corporation Act of 1983, as amended, or any successor legislation thereto); (ii) Taxes a Certificateholder Indemnitee that are attributable to any period act, event or omission by such Tax Indemnitee that occurs after expiration or other termination of the Facility Lease and, where required by the Facility Lease, return and surrender of the Facility Undivided Interest to the Owner Lessor or its designee successors (or in the case of a Certificateholder Indemnitee, Taxes imposed for any period after the repayment of the Lease Debt) in accordance with the Facility Lease Lease, (as opposed to any act, event or omission occurring prior to or simultaneous with such expiration, termination or surrender (or, in the case of the a Certificateholder Indemnitee, such repayment)), provided that this exclusion shall not apply so long as a Lease Indenture Trustee, after the repayment Event of the Lessor Notes); (iii) Default shall have occurred and be continuing; Taxes imposed on a Tax Indemnitee that are attributable to the gross negligence or willful misconduct of such Tax Indemnitee, unless such negligence or misconduct is imputed to such Tax Indemnitee solely as a result of its participation in the transactions contemplated by the Operative Documents and not as a result of any action or any Related Party of inaction by such Tax Indemnitee; (iv) Taxes in the nature of capital gain, accumulated earnings, personal holding company, excess profits, succession or estate, minimum, alternative minimum, preference, franchise, conduct of business and other similar taxes (other than franchise tax imposed by the State of Illinois upon the Owner Participant, the Owner Lessor or their respective Affiliates under the Business Corporation Act of 1983, as amended, or any successor legislation thereto); (v) ; Taxes imposed on a Tax Indemnitee that arise out of, or are caused by, any act or omission of such Tax Indemnitee (or any Related Party thereof) that is expressly prohibited by any Operative Document or by arising from a breach by such Tax Indemnitee (or any Related Party thereof) of any of its representations, warranties or covenants under any Operative Document except to the extent attributable to any breach by the Facility Lessee or any other Calpine Party of any covenant, representation or warranty contained in any Operative Document; ; Taxes (viA) Taxes arising out of, or caused by, that are attributable to any voluntary direct or indirect assignment, sale, transfer or other voluntary disposition, disposition or any an involuntary direct or indirect transfer or disposition resulting from arising out of or caused by a bankruptcy or similar proceeding for relief of debtors in which such Tax Indemnitee is a debtor, by (debtor or a foreclosure by a creditor ofof (1) (A) in the case of the Owner Lessor or the Owner Participant, the Owner Participant of any all or part of its Beneficial Member Interest or Undivided Interest, (B2) in the case of the Owner Lessor or the Owner Participant, the Owner Lessor of all or any part of its interest in the Facility or the Facility SiteSite (other than to a successor Lessor Manager), or (C3) in the Lease case of the Indenture Trustee, the Indenture Trustee of any interest in the Lessor Notes Lease Debt or the Indenture Estate Estate, or (4) in the case of the Owner Lessor or the Owner Participant any direct or indirect interest in the Owner Lessor or the Owner Participant, including by reason of an election made pursuant to Section 338 of the Code, in each case to the extent imposed by reason of any transfer described in this clause (v)(A), or (B) to the extent that, under law in effect on the date of the transfer such Taxes exceed the amount of Taxes that would be indemnified hereunder had there been no such assignment, sale, transfer or other voluntary disposition, unless (i) such transfer or disposition occurs during the continuance of a Lease Event of Default, Default or (ii) such transfer or disposition is required under, or occurs otherwise pursuant to, to the Facility Lessee's exercise of its rights under the Operative Documents and the price paid is other than Fair Market Sales Value; (vii) Taxes arising in connection with Owner Participant’s Liens or Owner Lessor’s Liens; (viii) Taxes imposed on any assignee or successor-in-interest to a Tax Indemnitee to the extent any such Taxes exceed the Taxes that would have been imposed had no assignment or transfer taken place determined under the law as in effect on the date of transferDocuments; provided that this exclusion shall not apply with respect to any initial syndication of interests in the computation of the gross-up amounts necessary Owner Participant accomplished prior to make a payment December 29, 2001; Taxes imposed on an After-Tax Basis, nor to a transferee, assignee or successor in interest that acquires the interest of a Tax Indemnitee pursuant that would not have been imposed but for the creation or existence of any Owner Lessor's Lien or Owner Participant's Lien attributable to a transfer or disposition in connection with the exercise of remedies during the continuance of a Lease Event of Default; (ix) such Tax Indemnitee; Taxes that are included as a part of Transaction Costs; (x) the cost of the Facility; Taxes imposed on, on the Lessor Manager or the Indenture Trustee that are based on, on or measured by any the fees or other compensation that any Owner Trustee received by the Lessor Manager or the Lease Indenture Trustee receives for its services; (xi) any U.S. federal income taxes, including with acting in their respective capacities. With respect to the Owner Participant, Taxes for which NRG the Facility Lessee is obligated to indemnify the Owner Participant under the Tax Indemnity Agreement (or which are expressly excluded from indemnification thereunder); ; Taxes that are imposed on a Tax Indemnitee (xii) other than with respect to the Certificateholders, the Lease Indenture Trustee and the Pass Through Trustee or any Related Party in respect of any thereof (a “Lender Certificateholder Indemnitee”), Taxes ) resulting from the Owner Lessor not being treated as a grantor trust or a nonentity other conduit entity for federal, state or local income tax purposes; (xiii) , but only to the extent such Taxes exceed Taxes indemnified hereunder that otherwise would have been imposed and are otherwise indemnifiable; Taxes imposed on a Tax Indemnitee that are attributable to the failure of any such Tax Indemnitee to comply with certification, information, documentation, reporting or other similar requirements concerning the nationality, residence, identity, identity or connection with the jurisdiction imposing such Taxes or other similar mattersTaxes; provided that the foregoing exclusion shall only apply if such compliance is required by statute or regulation of the jurisdiction imposing such Taxes as a precondition to relief or exemption from or reduction in such Taxes, such Tax Indemnitee is eligible and obligated to comply with such requirement and requirement, the Facility Lessee shall have been given such Tax Indemnitee timely written notice of such requirement by NRG; (xiv) Taxes imposed on a and the Tax Indemnitee where the Tax Indemnitee’s breach shall have determined in good faith that compliance with any such requirement shall not result in any identified non-immaterial adverse effect to its interests or to those of its contest obligations Affiliates; Taxes consisting of interest, penalties, additions to tax or fines resulting from a failure of such Tax Indemnitee to properly and timely file returns as required by a taxing authority unless such failure is attributable to the Facility Lessee not providing information that it is expressly required to provide under Section 12.2(g) effectively precludes NRG’s ability to contest the Taxes; (xv) Operative Documents; Taxes imposed on any Tax Indemnitee resulting from an amendment, modification, supplement to or waiver to of any provision of, any Operative Document which amendment, modification, supplement or waiver was not requested by Midwest or NRG consented to by the Facility Lessee, and as to which Midwest or NRG the Facility Lessee is not a party and the Tax Indemnitee (or, in the case of the Owner Participant, the Facility Owner Lessor if acting at the express direction of the Owner ParticipantParticipant or any Related Party) is a party unless party, provided that this exclusion shall not apply if such amendment, modification, supplement or waiver (A) was required by applicable law or the Operative Documents, (B) may be necessary or appropriate to, and is in conformity with, any amendment, modification, supplement or waiver amendment to any Operative Document agreed to requested by Midwest or NRG the Facility Lessee in writing, or (C) is made while was expressly consented to by a Lease Event of Default shall have occurred and be continuing; (xvi) Calpine Party in writing; Taxes imposed under as a result of, or in connection with, any "prohibited transaction," within the meaning of Section 4975 of the Code, Section 406 of ERISA or any comparable laws of any governmental authority to the extent Governmental Entity, engaged in by any Tax Indemnitee (which for this purpose shall include any ERISA Affiliate thereof) resulting from action the breach by such Tax Indemnitee other than, of any of its representations or warranties contained in the case Section 3.4(g) or Section 8.2 of the Owner Participant, the taking of any action at the request or direction of NRG; (xvii) Participation Agreement; Taxes imposed to the extent such Taxes result from the Tax Indemnitee (and in the case of the Owner Lessor, only if acting at the written direction of the Owner Participant) being organized under the laws of a jurisdiction other than the United States or any State thereof (other than, in the case of a Lender Indemnitee, such Taxes which did would not exist under law in effect on the date such Lender Indemnitee became a party to this transaction); (xviii) Any Taxes have been imposed on a Tax Indemnitee to the extent if such Tax Indemnitee were a United States Person; and Taxes imposed that such taxes would not have been imposed on a Tax Indemnitee but for the activities in the taxing jurisdiction of such Tax Indemnitee or any Affiliate thereof unrelated to the transactions contemplated hereby; (xix) by the Operative Documents other than Taxes imposed on a Tax Indemnitee that are or are in the nature of interestsales, penaltiesuse, fines and additions to tax rental or license taxes, value added taxes (i) payable as a result of such Tax Indemnitee’s failure to file, in a procedurally proper manner and on a timely basis, any tax reports, returns or statements as to which NRG has timely notified such Tax Indemnitee in writing of the requirement to file, unless such failure is otherwise caused by the failure of NRG to fulfill its obligations, if any, with respect to such return (including provision of information sufficient to enable such Tax Indemnitee to file such report, return or statement), or (ii) except to the extent not attributable to value added taxes are imposed in clear and direct substitution for income taxes) or resulting from Taxes for which an indemnity is provided hereunder; and (xx) Taxes for as long as such Taxes are being contested pursuant to the contest provisions contained in Section 12.2(g)property taxes.

Excluded Taxes. The indemnity provided for in paragraph (a) above Excluded Taxes shall not extend to mean any of the following Taxes (imposed on or with respect to the “Excluded Taxes”):Administrative Agent, any Lender or an Issuer or required to be withheld from a payment to such Person: (i) Any Taxes imposed on, based on or measured by gross or net income (however denominated), franchise Taxes, and branch profits Taxes imposed on such Lender, such Issuer or receipts the Administrative Agent, as the case may be, (A) by the jurisdiction under the laws of which such Lender, such Issuer or capital the Administrative Agent, as the case may be, is organized or net worth by any political subdivision thereof or imposed as a result of such Lender, the Issuer, or Administrative Agent having its principal office or applicable lending office or Notional Funding Office in the Jurisdiction imposing the Tax, or (B) as a result of a present or former connection between such Lender, such Issuer or the Administrative Agent and the jurisdiction imposing such Tax (other than salesconnections arising from such Lender, useAdministrative Agent or such Issuer having executed, propertydelivered, ad valorembecome a party to, rentalperformed its obligations under, stampreceived payments under, transferreceived or perfected a security interest under, excise, license and value added taxes, and engaged in any other than franchise tax imposed by the State of Illinois upon the Owner Participant, the Owner Lessor transaction pursuant to or their respective Affiliates under the Business Corporation Act of 1983, as amendedenforced any Loan Document, or sold or assigned an interest in any successor legislation theretoLoan or Loan Document); (ii) Taxes attributable to any period after expiration or other termination of the Facility Lease and, where required by the Facility Lease, return of the Facility to the Owner Lessor or its designee in accordance with the Facility Lease (or, in In the case of each Lender or Issuer, any United States federal withholding Taxes, to the Lease Indenture Trusteeextent that such withholding is imposed on amounts payable to or for the account of such Lender or such Issuer with respect to a Loan, after Letter of Credit or Commitment pursuant to a law that existed on the repayment date such Lender or such Issuer became a party to this Agreement or on the date such Lender or such Issuer changes its lending office or Notional Funding Office; provided that this clause (ii) shall not apply to a Lender or Issuer that became a Lender or Issuer as a result of an assignment made or other action taken at the request of the Lessor Notes)Parent; (iii) Any Taxes imposed on a Tax Indemnitee attributable to the extent that the obligation to make such indemnification or to pay such additional amounts would not have arisen but for gross negligence or negligence, willful misconduct or bad faith of such Tax Indemnitee Lender or any Related Party such Issuer or the failure of such Tax Indemnitee;Lender or such Issuer to comply with the provisions of Section 4.09(g); and (iv) Taxes in the nature of capital gain, accumulated earnings, personal holding company, excess profits, succession or estate, minimum, alternative minimum, preference, franchise, conduct of business and other similar taxes (other than franchise tax imposed by the State of Illinois upon the Owner Participant, the Owner Lessor or their respective Affiliates under the Business Corporation Act of 1983, as amended, or any successor legislation thereto); (v) Taxes imposed on a Tax Indemnitee that arise out of, or are caused by, any act or omission of such Tax Indemnitee (or any Related Party thereof) that is expressly prohibited by any Operative Document or by a breach by such Tax Indemnitee (or any Related Party thereof) of any of its representations, warranties or covenants under any Operative Document; (vi) Taxes arising out of, or caused by, any voluntary assignment, sale, transfer or other voluntary disposition, or any involuntary transfer or disposition resulting from a bankruptcy or similar proceeding for relief of debtors in which such Tax Indemnitee is a debtor, by (or a foreclosure by a creditor of) (A) the Owner Participant of any of its Beneficial Interest, (B) the Owner Lessor of all or any of its interest in the Facility or the Facility Site, or (C) the Lease Indenture Trustee of any interest in the Lessor Notes or the Indenture Estate unless (i) such transfer or disposition occurs during the continuance of a Lease Event of Default, or (ii) such transfer or disposition is required under, or occurs pursuant to, the Operative Documents and the price paid is other than Fair Market Sales Value; (vii) Taxes arising in connection with Owner Participant’s Liens or Owner Lessor’s Liens; (viii) Taxes imposed on any assignee or successor-in-interest to a Tax Indemnitee to the extent any such Taxes exceed the Taxes that would have been imposed had no assignment or transfer taken place determined under the law as in effect on the date of transfer; provided that this exclusion shall not apply to the computation of the gross-up amounts necessary to make a payment on an After-Tax Basis, nor to a transferee, assignee or successor in interest that acquires the interest of a Tax Indemnitee pursuant to a transfer or disposition in connection with the exercise of remedies during the continuance of a Lease Event of Default; (ix) Taxes that are included as a part of Transaction Costs; (x) Taxes imposed on, based on, or measured by any compensation that any Owner Trustee or the Lease Indenture Trustee receives for its services; (xi) any U.S. Any United States federal income taxes, including with respect to the Owner Participant, Taxes for which NRG is obligated to indemnify the Owner Participant under the Tax Indemnity Agreement (or which are expressly excluded from indemnification thereunder); (xii) other than with respect to the Certificateholders, the Lease Indenture Trustee and the Pass Through Trustee or any Related Party in respect of any thereof (a “Lender Indemnitee”), Taxes resulting from the Owner Lessor not being treated as a grantor trust or a nonentity for federal, state or local income tax purposes; (xiii) Taxes attributable to the failure of any Tax Indemnitee to comply with certification, information, documentation, reporting or other similar requirements concerning the nationality, residence, identity, connection with the jurisdiction imposing such Taxes or other similar matters; provided that the foregoing exclusion shall only apply if such Tax Indemnitee is eligible and obligated to comply with such requirement and shall have been given timely written notice of such requirement by NRG; (xiv) Taxes imposed on a Tax Indemnitee where the Tax Indemnitee’s breach of its contest obligations under Section 12.2(g) effectively precludes NRG’s ability to contest the Taxes; (xv) Taxes imposed on any Tax Indemnitee resulting from an amendment, modification, supplement or waiver to any Operative Document which was not requested by Midwest or NRG and as to which Midwest or NRG is not a party and the Tax Indemnitee (or, in the case of the Owner Participant, the Facility Lessor if acting at the express direction of the Owner Participant) is a party unless such amendment, modification, supplement or waiver (A) was required by applicable law or the Operative Documents, (B) may be necessary or appropriate to, and is in conformity with, any amendment, modification, supplement or waiver to any Operative Document agreed to by Midwest or NRG in writing, or (C) is made while a Lease Event of Default shall have occurred and be continuing; (xvi) withholding Taxes imposed under Section 4975 of the Code, Section 406 of ERISA or any comparable laws of any governmental authority to the extent resulting from action by such Tax Indemnitee other than, in the case of the Owner Participant, the taking of any action at the request or direction of NRG; (xvii) Taxes imposed to the extent such Taxes result from the Tax Indemnitee (and in the case of the Owner Lessor, only if acting at the written direction of the Owner Participant) being organized under the laws of a jurisdiction other than the United States or any State thereof (other than, in the case of a Lender Indemnitee, such Taxes which did not exist under law in effect on the date such Lender Indemnitee became a party to this transaction); (xviii) Any Taxes imposed on a Tax Indemnitee to the extent that such taxes would not have been imposed but for the activities of such Tax Indemnitee unrelated to the transactions contemplated hereby; (xix) Taxes imposed on a Tax Indemnitee in the nature of interest, penalties, fines and additions to tax (i) payable as a result of such Tax Indemnitee’s failure to file, in a procedurally proper manner and on a timely basis, any tax reports, returns or statements as to which NRG has timely notified such Tax Indemnitee in writing of the requirement to file, unless such failure is otherwise caused by the failure of NRG to fulfill its obligations, if any, with respect to such return (including provision of information sufficient to enable such Tax Indemnitee to file such report, return or statement), or (ii) to the extent not attributable to or resulting from Taxes for which an indemnity is provided hereunder; and (xx) Taxes for as long as such Taxes are being contested pursuant to the contest provisions contained in Section 12.2(g)FATCA.

Excluded Taxes. The indemnity provided for in paragraph (a) above shall not extend to any of the following Taxes (the “"Excluded Taxes”): (i) "): Taxes imposed by the United States federal government or any state or local government, any political subdivision of any of the foregoing, imposed on, based on or measured by gross or net income or receipts or income, receipts, capital gain, capital or net worth worth, or conduct of business (other than than, in each case, Taxes that are or are in the nature of sales, transaction privilege taxes, use, property, ad valorem, rental, stamplicense, transfer, excise, license and value added (to the extent value added taxes are not imposed in clear and direct substitution for income taxes) or property taxes) ("Income Taxes"), including any such Taxes collected by way of withholding, minimum or alternative minimum taxes, and franchise taxes; provided that this exclusion (i) shall not affect any express requirement that payments be made on an "after-tax" basis; Taxes imposed on a Tax Indemnitee other than franchise tax imposed by the State of Illinois upon the Owner Participant, the Owner Lessor or their respective Affiliates under the Business Corporation Act of 1983, as amended, or any successor legislation thereto); (ii) Taxes a Certificateholder Indemnitee that are attributable to any period act, event or omission by such Tax Indemnitee that occurs after expiration or other termination of the Facility Lease and, where required by the Facility Lease, return and surrender of the Facility Undivided Interest to the Owner Lessor or its designee successors (or in the case of a Certificateholder Indemnitee, Taxes imposed for any period after the repayment of the Lease Debt) in accordance with the Facility Lease Lease, (as opposed to any act, event or omission occurring prior to or simultaneous with such expiration, termination or surrender (or, in the case of the a Certificateholder Indemnitee, such repayment)), provided that this exclusion shall not apply so long as a Lease Indenture Trustee, after the repayment Event of the Lessor Notes); (iii) Default shall have occurred and be continuing; Taxes imposed on a Tax Indemnitee that are attributable to the gross negligence or willful misconduct of such Tax Indemnitee, unless such negligence or misconduct is imputed to such Tax Indemnitee solely as a result of its participation in the transactions contemplated by the Operative Documents and the South Point Ground Lease (giving effect to its assignment to the Owner Lessor pursuant to the Assignment Agreement) and not as a result of any action or any Related Party of inaction by such Tax Indemnitee; (iv) Taxes in the nature of capital gain, accumulated earnings, personal holding company, excess profits, succession or estate, minimum, alternative minimum, preference, franchise, conduct of business and other similar taxes (other than franchise tax imposed by the State of Illinois upon the Owner Participant, the Owner Lessor or their respective Affiliates under the Business Corporation Act of 1983, as amended, or any successor legislation thereto); (v) ; Taxes imposed on a Tax Indemnitee that arise out of, or are caused by, any act or omission of such Tax Indemnitee (or any Related Party thereof) that is expressly prohibited by any Operative Document or by arising from a breach by such Tax Indemnitee (or any Related Party thereof) of any of its representations, warranties or covenants under any Operative Document except to the extent attributable to any breach by the Facility Lessee or any other Calpine Party of any covenant, representation or warranty contained in any Operative Document; (vi; Taxes(A) Taxes arising out of, or caused by, that are attributable to any voluntary direct or indirect assignment, sale, transfer or other voluntary disposition, disposition or any an involuntary direct or indirect transfer or disposition resulting from arising out of or caused by a bankruptcy or similar proceeding for relief of debtors in which such Tax Indemnitee is a debtor, by (debtor or a foreclosure by a creditor ofof (1) (A) in the case of the Owner Lessor or the Owner Participant, the Owner Participant of any all or part of its Beneficial Member Interest or Undivided Interest, (B2) in the case of the Owner Lessor or the Owner Participant, the Owner Lessor of all or any part of its interest in the Facility or the Facility SiteSite (other than to a successor Lessor Manager), or (C3) in the Lease case of the Indenture Trustee, the Indenture Trustee of any interest in the Lessor Notes Lease Debt or the Indenture Estate Estate, or (4) in the case of the Owner Lessor or the Owner Participant any direct or indirect interest in the Owner Lessor or the Owner Participant, including by reason of an election made pursuant to Section 338 of the Code, in each case to the extent imposed by reason of any transfer described in this clause (v)(A), or (B) to the extent that, under law in effect on the date of the transfer such Taxes exceed the amount of Taxes that would be indemnified hereunder had there been no such assignment, sale, transfer or other voluntary disposition, unless (i) such transfer or disposition occurs during the continuance of a Lease Event of Default, Default or (ii) such transfer or disposition is required under, or occurs otherwise pursuant to, to the Facility Lessee's exercise of its rights under the Operative Documents and the price paid is other than Fair Market Sales Value; (vii) Taxes arising in connection with Owner Participant’s Liens or Owner Lessor’s Liens; (viii) Taxes imposed on any assignee or successor-in-interest to a Tax Indemnitee to the extent any such Taxes exceed the Taxes that would have been imposed had no assignment or transfer taken place determined under the law as in effect on the date of transferDocuments; provided that this exclusion shall not apply with respect to any initial syndication of interests in the computation of the gross-up amounts necessary Owner Participant accomplished prior to make a payment December 29, 2001; Taxes imposed on an After-Tax Basis, nor to a transferee, assignee or successor in interest that acquires the interest of a Tax Indemnitee pursuant that would not have been imposed but for the creation or existence of any Owner Lessor's Lien or Owner Participant's Lien attributable to a transfer or disposition in connection with the exercise of remedies during the continuance of a Lease Event of Default; (ix) such Tax Indemnitee; Taxes that are included as a part of Transaction Costs; (x) the cost of the Facility; Taxes imposed on, on the Lessor Manager or the Indenture Trustee that are based on, on or measured by any the fees or other compensation that any Owner Trustee received by the Lessor Manager or the Lease Indenture Trustee receives for its services; (xi) any U.S. federal income taxes, including with acting in their respective capacities. With respect to the Owner Participant, Taxes for which NRG the Facility Lessee is obligated to indemnify the Owner Participant under the Tax Indemnity Agreement (or which are expressly excluded from indemnification thereunder); ; 57 Taxes that are imposed on a Tax Indemnitee (xii) other than with respect to the Certificateholders, the Lease Indenture Trustee and the Pass Through Trustee or any Related Party in respect of any thereof (a “Lender Certificateholder Indemnitee”), Taxes ) resulting from the Owner Lessor not being treated as a grantor trust or a nonentity other conduit entity for federal, state or local income tax purposes; (xiii) , but only to the extent such Taxes exceed Taxes indemnified hereunder that otherwise would have been imposed and are otherwise indemnifiable; Taxes imposed on a Tax Indemnitee that are attributable to the failure of any such Tax Indemnitee to comply with certification, information, documentation, reporting or other similar requirements concerning the nationality, residence, identity, identity or connection with the jurisdiction imposing such Taxes or other similar mattersTaxes; provided that the foregoing exclusion shall only apply if such compliance is required by statute or regulation of the jurisdiction imposing such Taxes as a precondition to relief or exemption from or reduction in such Taxes, such Tax Indemnitee is eligible and obligated to comply with such requirement and requirement, the Facility Lessee shall have been given such Tax Indemnitee timely written notice of such requirement by NRG; (xiv) Taxes imposed on a and the Tax Indemnitee where the Tax Indemnitee’s breach shall have determined in good faith that compliance with any such requirement shall not result in any identified non-immaterial adverse effect to its interests or to those of its contest obligations Affiliates; Taxes consisting of interest, penalties, additions to tax or fines resulting from a failure of such Tax Indemnitee to properly and timely file returns as required by a taxing authority unless such failure is attributable to the Facility Lessee not providing information that it is expressly required to provide under Section 12.2(g) effectively precludes NRG’s ability to contest the Taxes; (xv) Operative Documents; Taxes imposed on any Tax Indemnitee resulting from an amendment, modification, supplement to or waiver to of any provision of, any Operative Document which amendment, modification, supplement or waiver was not requested by Midwest or NRG consented to by the Facility Lessee, and as to which Midwest or NRG the Facility Lessee is not a party and the Tax Indemnitee (or, in the case of the Owner Participant, the Facility Owner Lessor if acting at the express direction of the Owner ParticipantParticipant or any Related Party) is a party unless party, provided that this exclusion shall not apply if such amendment, modification, supplement or waiver (A) was required by applicable law or the Operative Documents, (B) may be necessary or appropriate to, and is in conformity with, any amendment, modification, supplement or waiver amendment to any Operative Document agreed to requested by Midwest or NRG the Facility Lessee in writing, or (C) is made while was expressly consented to by a Lease Event of Default shall have occurred and be continuing; (xvi) Calpine Party in writing; Taxes imposed under as a result of, or in connection with, any "prohibited transaction," within the meaning of Section 4975 of the Code, Section 406 of ERISA or any comparable laws of any governmental authority to the extent Governmental Entity, engaged in by any Tax Indemnitee (which for this purpose shall include any ERISA Affiliate thereof) resulting from action the breach by such Tax Indemnitee other than, of any of its representations or warranties contained in the case Section 3.4(g) or Section 8.2 of the Owner Participant, the taking of any action at the request or direction of NRG; (xvii) Participation Agreement; Taxes imposed to the extent such Taxes result from the Tax Indemnitee (and in the case of the Owner Lessor, only if acting at the written direction of the Owner Participant) being organized under the laws of a jurisdiction other than the United States or any State thereof (other than, in the case of a Lender Indemnitee, such Taxes which did would not exist under law in effect on the date such Lender Indemnitee became a party to this transaction); (xviii) Any Taxes have been imposed on a Tax Indemnitee to the extent if such Tax Indemnitee were a United States Person; and Taxes imposed that such taxes would not have been imposed on a Tax Indemnitee but for the activities in the taxing jurisdiction of such Tax Indemnitee or any Affiliate thereof unrelated to the transactions contemplated hereby; (xix) by the Operative Documents other than Taxes imposed on a Tax Indemnitee that are or are in the nature of interestsales, penaltiestransaction privilege taxes, fines and additions to tax use, rental or license taxes, value added taxes (i) payable as a result of such Tax Indemnitee’s failure to file, in a procedurally proper manner and on a timely basis, any tax reports, returns or statements as to which NRG has timely notified such Tax Indemnitee in writing of the requirement to file, unless such failure is otherwise caused by the failure of NRG to fulfill its obligations, if any, with respect to such return (including provision of information sufficient to enable such Tax Indemnitee to file such report, return or statement), or (ii) except to the extent not attributable to value added taxes are imposed in clear and direct substitution for income taxes) or resulting from Taxes for which an indemnity is provided hereunder; and (xx) Taxes for as long as such Taxes are being contested pursuant to the contest provisions contained in Section 12.2(g)property taxes.

Excluded Taxes. The indemnity provided for in paragraph (a) above shall not extend to any Taxes (including any Taxes collected by withholding) to the extent attributable to, arising as a result of, or that would not have occurred but for any of the following Taxes (the “"Excluded Taxes”):"): -------------- (i) Taxes imposed on, based on or measured by gross or net income or receipts or capital or net worth (other than Taxes that are or are in the nature of sales, use, property, ad valorem, rental, stampvalue added, transfer, excise, ad valorem or license and value added taxes, and other than franchise tax imposed taxes or Taxes collected by the State of Illinois upon the Owner Participant, the Owner Lessor or their respective Affiliates withholding against payments under the Business Corporation Act of 1983, as amended, Lease Indenture or any successor legislation theretothe Lessor Notes); (ii) Taxes attributable to any period after expiration or other termination of the Facility Lease and, where required by the Facility Lease, return of the Facility to the Owner Lessor or its designee designee, in each case, in accordance with the Facility Lease (or, in the case of the Lease Indenture Trustee, after the repayment of the Lessor Notes); (iii) Taxes imposed on a Tax Indemnitee attributable to the fraud, gross negligence or willful misconduct of such Tax Indemnitee or any Related Party of such Tax Indemnitee; (iv) Taxes in the nature of capital gain, accumulated earnings, personal holding company, excess profits, succession or estate, minimum, alternative minimum, preference, franchise, conduct of business and other similar taxes (other than franchise tax imposed by Taxes that are or are in the State nature of Illinois upon the Owner Participantsales, the Owner Lessor use, property, rental, value added, ad valorem or their respective Affiliates under the Business Corporation Act of 1983, as amended, or any successor legislation theretolicense taxes); (v) Taxes imposed on a Tax Indemnitee that arise out of, or are caused by, or would not have occurred but for, any act or omission of such Tax Indemnitee (or any Related Party thereof) that is expressly prohibited prohibited, or omission of an act that is expressly required, as the case may be, by any Operative Document or by a breach by such Tax Indemnitee (or any Related Party thereof) of any of its representations, warranties or covenants under any Operative Document; provided, however, that for purposes of this -------- ------- XXXXXXXXX PARTICIPATION AGREEMENT (L1) -------------------------------------- exclusion, no acts or omissions of the Facility Lessee or any sublessee, transferee or assignee of the Facility Lessee shall be imputed to the Tax Indemnitee; (vi) Taxes arising out of, or caused by, any voluntary assignment, sale, transfer or other voluntary disposition, or any involuntary transfer or disposition resulting from a bankruptcy or similar proceeding for relief of debtors in which such Tax Indemnitee is a debtor, by (or a foreclosure by a creditor of) ) (A) the Owner Participant of any of its Beneficial Lessor Membership Interest, (B) the Owner Lessor of all or any of its interest in the Facility or the Facility Site, or (C) the Lease Indenture Trustee of any interest in the Lessor Notes or the Indenture Estate unless (i) unless, in each case, such assignment, sale, transfer or disposition occurs during the continuance of a Lease Event of Default, or (ii) such transfer or disposition is required under, or occurs pursuant to, the Operative Documents and the price paid is other than Fair Market Sales Value; (vii) Taxes arising in connection with Owner Participant’s Liens or Owner Lessor’s Liens; (viii) Taxes imposed on any assignee or successor-in-interest to a Tax Indemnitee to the extent any such Taxes exceed the Taxes that would have been imposed had no assignment or transfer taken place determined under the law as in effect on the date of transfer; provided that this exclusion shall not apply to the computation of the gross-up amounts necessary to make a payment on an After-Tax Basis, nor to a transferee, assignee or successor in interest that acquires the interest of a Tax Indemnitee pursuant to a transfer or disposition in connection with the exercise of remedies during the continuance of a Lease Event of Default; (ixvii) in the case of a Tax Indemnitee that is the Owner Participant or a Related Party thereto, Taxes arising in connection with Owner Participant's Liens or in the case of a Tax Indemnitee that is the Owner Lessor or a Related Party thereto, Taxes arising in connection with Owner Lessor Liens; (viii) Taxes that are actually included as a part of Transaction CostsExpenses or the Purchase Price; (xix) Taxes imposed on, based on, or measured by any compensation that any the Owner Manager, Lease Indenture Trustee or the Lease Indenture Pass Through Trustee receives for its services; (xix) any U.S. federal income taxes (including, without limitation, withholding taxes, including with respect to the Owner Participant, Taxes for which NRG is obligated to indemnify the Owner Participant under the Tax Indemnity Agreement (or which are expressly excluded from indemnification thereunder); (xiixi) other than with respect to the CertificateholdersNoteholders, the Lease Indenture Trustee and the Pass Through Trustee Trustees or any Related Party in respect of any thereof (a “Lender Indemnitee”)thereof, Taxes resulting from the Owner Lessor not being treated as (1) a grantor trust U.S. Person (as defined in Section 7701(a)(30) of the Code) or (2) a nonentity disregarded entity or pass through entity for federal, state or local income tax purposes; (xiiixii) other than with respect to the Owner Lessor, the Owner Participant, the Equity Investor or any of their Affiliates, Taxes attributable to the failure of any Tax Indemnitee to comply on a timely basis with certification, information, documentation, reporting or other similar requirements concerning the taxation, nationality, residence, identity, connection with the jurisdiction imposing such Taxes or other similar matters; provided that the foregoing exclusion shall only apply if such Tax Indemnitee is eligible and obligated to comply with such requirement and shall have been given timely written notice of such requirement by NRGSEMA; provided -------- that, other than in respect of the XXXXXXXXX PARTICIPATION AGREEMENT (L1) -------------------------------------- filing or furnishing of IRS Forms W-8 ECI, X-0 XXX, X-0 or 1042S or any successor thereto, the foregoing exclusion shall not apply if the Tax Indemnitee shall have determined in good faith that compliance with any such requirement will result in any unindemnified material adverse effect to its interests or to those of its Related Parties (in instances where such certification, information, documentation, reporting or similar requirement is not otherwise required to be made by the Tax Indemnitee under the Operative Documents or Requirement of Law); (xivxiii) Taxes imposed on a Tax Indemnitee where the attributable to such Tax Indemnitee’s 's breach of its contest obligations under Section 12.2(g10.2(g) effectively precludes NRG’s ability --------------- (but only to contest the Taxesextent attributable to such breach); (xvxiv) Taxes imposed on any Tax Indemnitee resulting from an amendment, modification, supplement or waiver (an "Amendment") to any Operative Document which was not requested by Midwest or NRG and as to which Midwest or NRG is not a party and the Tax Indemnitee (or, in the case of the Owner Participant, the Facility Lessor if acting at the express direction of the Owner Participant) is a party SEMA unless such amendment, modification, supplement or waiver Amendment (A) was required by applicable law or the Operative Documents, (B) may be is necessary or appropriate to, and is in conformity with, to conform with any amendment, modification, supplement or waiver Amendment to any Operative Document agreed to requested by Midwest or NRG SEMA in writing; provided that such conforming -------- Amendment was entered into contemporaneously with the Amendment requested by SEMA and SEMA consented to such conforming Amendment, or (C) is made while as a result of a Lease Event of Default that shall have occurred and be continuing; (xvixv) Taxes imposed under Section 4975 of the Code, Section 406 subtitle B of Title I of ERISA or any comparable laws of any governmental authority to which result from the extent resulting from action by incorrectness or absence of any representations or warranties of such Tax Indemnitee other than, set forth in the case of the Owner Participant, the taking of any action at the request Section 3.4(g) or direction of NRG;referred -------------- to in Section 9.2; ----------- (xviixvi) Taxes imposed to the extent such Taxes result from the Tax Indemnitee (and in the case of the Owner Lessor, only if acting at the written direction of the Owner Participant) being organized under the laws of a jurisdiction other than the United States or any State thereof thereof; (other than, in xvii) Taxes imposed under Sections 1441 through 1446 of the case of a Lender Indemnitee, such Taxes which did not exist under law in effect on the date such Lender Indemnitee became a party to this transaction)Code; (xviii) Any Taxes in the nature of a value-added tax that is imposed on a Tax Indemnitee to the extent that such taxes would not have been imposed but for the activities in lieu of such Tax Indemnitee unrelated to the transactions contemplated herebyan income tax; (xix) Taxes imposed on a Tax Indemnitee in the nature of interest, penalties, fines and additions to tax (i) payable as a result of such Tax Indemnitee’s 's failure to file, in a procedurally proper manner and on a timely basis, any tax reports, returns or statements as to which NRG SEMA has timely notified such Tax Indemnitee in writing of the requirement to file, unless such failure is otherwise caused by the failure of NRG to fulfill its obligationsand, if anyrequired hereunder, with respect to has prepared such return filing, XXXXXXXXX PARTICIPATION AGREEMENT (including provision of information sufficient to enable such Tax Indemnitee to file such report, return or statement), L1) -------------------------------------- or (ii) to the extent not attributable to or resulting from Taxes for which an indemnity is provided hereunder; and (xx) Taxes for as long as such Taxes are being contested pursuant to the contest provisions contained in Section 12.2(g10.2(g) (subject to --------------- the Tax Indemnitee's right to obtain a Tax Advance pursuant to Section ------- 10.2(g)(iii)(5).. ---------------

Excluded Taxes. The indemnity provided for in paragraph (a) above shall not extend to any of the following Taxes (the “"Excluded Taxes”): (i) "): Taxes imposed by the United States federal government or any state or local government, any political subdivision of any of the foregoing, imposed on, based on or measured by gross or net income or receipts or income, receipts, capital gain, capital or net worth worth, or conduct of business (other than than, in each case, Taxes that are or are in the nature of sales, use, property, ad valorem, rental, stamplicense, transfer, excise, license and value added (to the extent value added taxes are not imposed in clear and direct substitution for income taxes) or property taxes) ("Income Taxes"), including any such Taxes collected by way of withholding, minimum or alternative minimum taxes, and franchise taxes; provided that this exclusion (i) shall not affect any express requirement that payments be made on an "after-tax" basis; Taxes imposed on a Tax Indemnitee other than franchise tax imposed by the State of Illinois upon the Owner Participant, the Owner Lessor or their respective Affiliates under the Business Corporation Act of 1983, as amended, or any successor legislation thereto); (ii) Taxes a Certificateholder Indemnitee that are attributable to any period act, event or omission by such Tax Indemnitee that occurs after expiration or other termination of the Facility Lease and, where required by the Facility Lease, return and surrender of the Facility Undivided Interest to the Owner Lessor or its designee successors (or in the case of a Certificateholder Indemnitee, Taxes imposed for any period after the repayment of the Lease Debt) in accordance with the Facility Lease Lease, (as opposed to any act, event or omission occurring prior to or simultaneous with such expiration, termination or surrender (or, in the case of the a Certificateholder Indemnitee, such repayment)), provided that this exclusion shall not apply so long as a Lease Indenture Trustee, after the repayment Event of the Lessor Notes); (iii) Default shall have occurred and be continuing; Taxes imposed on a Tax Indemnitee that are attributable to the gross negligence or willful misconduct of such Tax Indemnitee, unless such negligence or misconduct is imputed to such Tax Indemnitee solely as a result of its participation in the transactions contemplated by the Operative Documents and the FILOT Lease (giving effect to its assignment to the Owner Lessor pursuant to the Assignment Agreement) and not as a result of any action or any Related Party of inaction by such Tax Indemnitee; (iv) Taxes in the nature of capital gain, accumulated earnings, personal holding company, excess profits, succession or estate, minimum, alternative minimum, preference, franchise, conduct of business and other similar taxes (other than franchise tax imposed by the State of Illinois upon the Owner Participant, the Owner Lessor or their respective Affiliates under the Business Corporation Act of 1983, as amended, or any successor legislation thereto); (v) ; Taxes imposed on a Tax Indemnitee that arise out of, or are caused by, any act or omission of such Tax Indemnitee (or any Related Party thereof) that is expressly prohibited by any Operative Document or by arising from a breach by such Tax Indemnitee (or any Related Party thereof) of any of its representations, warranties or covenants under any Operative Document except to the extent attributable to any breach by the Facility Lessee or any other Calpine Party of any covenant, representation or warranty contained in any Operative Document; (vi; Taxes(A) Taxes arising out of, or caused by, that are attributable to any voluntary direct or indirect assignment, sale, transfer or other voluntary disposition, disposition or any an involuntary direct or indirect transfer or disposition resulting from arising out of or caused by a bankruptcy or similar proceeding for relief of debtors in which such Tax Indemnitee is a debtor, by (debtor or a foreclosure by a creditor ofof (1) (A) in the case of the Owner Lessor or the Owner Participant, the Owner Participant of any all or part of its Beneficial Member Interest or Undivided Interest, (B2) in the case of the Owner Lessor or the Owner Participant, the Owner Lessor of all or any part of its interest in the Facility or the Facility SiteSite (other than to a successor Lessor Manager), or (C3) in the Lease case of the Indenture Trustee, the Indenture Trustee of any interest in the Lessor Notes Lease Debt or the Indenture Estate Estate, or (4) in the case of the Owner Lessor or the Owner Participant any direct or indirect interest in the Owner Lessor or the Owner Participant, including by reason of an election made pursuant to Section 338 of the Code, in each case to the extent imposed by reason of any transfer described in this clause (v)(A), or (B) to the extent that, under law in effect on the date of the transfer such Taxes exceed the amount of Taxes that would be indemnified hereunder had there been no such assignment, sale, transfer or other voluntary disposition, unless (i) such transfer or disposition occurs during the continuance of a Lease Event of Default, Default or (ii) such transfer or disposition is required under, or occurs otherwise pursuant to, to the Facility Lessee's exercise of its rights under the Operative Documents and the price paid is other than Fair Market Sales Value; (vii) Taxes arising in connection with Owner Participant’s Liens or Owner Lessor’s Liens; (viii) Taxes imposed on any assignee or successor-in-interest to a Tax Indemnitee to the extent any such Taxes exceed the Taxes that would have been imposed had no assignment or transfer taken place determined under the law as in effect on the date of transferDocuments; provided that this exclusion shall not apply with respect to any initial syndication of interests in the computation of the gross-up amounts necessary Owner Participant accomplished prior to make a payment December 29, 2001; Taxes imposed on an After-Tax Basis, nor to a transferee, assignee or successor in interest that acquires the interest of a Tax Indemnitee pursuant that would not have been imposed but for the creation or existence of any Owner Lessor's Lien or Owner Participant's Lien attributable to a transfer or disposition in connection with the exercise of remedies during the continuance of a Lease Event of Default; (ix) such Tax Indemnitee; Taxes that are included as a part of Transaction Costs; (x) the cost of the Facility; Taxes imposed on, on the Lessor Manager or the Indenture Trustee that are based on, on or measured by any the fees or other compensation that any Owner Trustee received by the Lessor Manager or the Lease Indenture Trustee receives for its services; (xi) any U.S. federal income taxes, including with acting in their respective capacities. With respect to the Owner Participant, Taxes for which NRG the Facility Lessee is obligated to indemnify the Owner Participant under the Tax Indemnity Agreement (or which are expressly excluded from indemnification thereunder); ; Taxes that are imposed on a Tax Indemnitee (xii) other than with respect to the Certificateholders, the Lease Indenture Trustee and the Pass Through Trustee or any Related Party in respect of any thereof (a “Lender Certificateholder Indemnitee”), Taxes ) resulting from the Owner Lessor not being treated as a grantor trust or a nonentity other conduit entity for federal, state or local income tax purposes; (xiii) , but only to the extent such Taxes exceed Taxes indemnified hereunder that otherwise would have been imposed and are otherwise indemnifiable; Taxes imposed on a Tax Indemnitee that are attributable to the failure of any such Tax Indemnitee to comply with certification, information, documentation, reporting or other similar requirements concerning the nationality, residence, identity, identity or connection with the jurisdiction imposing such Taxes or other similar mattersTaxes; provided that the foregoing exclusion shall only apply if such compliance is required by statute or regulation of the jurisdiction imposing such Taxes as a precondition to relief or exemption from or reduction in such Taxes, such Tax Indemnitee is eligible and obligated to comply with such requirement and requirement, the Facility Lessee shall have been given such Tax Indemnitee timely written notice of such requirement by NRG; (xiv) Taxes imposed on a and the Tax Indemnitee where the Tax Indemnitee’s breach shall have determined in good faith that compliance with any such requirement shall not result in any identified non-immaterial adverse effect to its interests or to those of its contest obligations Affiliates; Taxes consisting of interest, penalties, additions to tax or fines resulting from a failure of such Tax Indemnitee to properly and timely file returns as required by a taxing authority unless such failure is attributable to the Facility Lessee not providing information that it is expressly required to provide under Section 12.2(g) effectively precludes NRG’s ability to contest the Taxes; (xv) Operative Documents; Taxes imposed on any Tax Indemnitee resulting from an amendment, modification, supplement to or waiver to of any provision of, any Operative Document which amendment, modification, supplement or waiver was not requested by Midwest or NRG consented to by the Facility Lessee, and as to which Midwest or NRG the Facility Lessee is not a party and the Tax Indemnitee (or, in the case of the Owner Participant, the Facility Owner Lessor if acting at the express direction of the Owner ParticipantParticipant or any Related Party) is a party unless party, provided that this exclusion shall not apply if such amendment, modification, supplement or waiver (A) was required by applicable law or the Operative Documents, (B) may be necessary or appropriate to, and is in conformity with, any amendment, modification, supplement or waiver amendment to any Operative Document agreed to requested by Midwest or NRG the Facility Lessee in writing, or (C) is made while was expressly consented to by a Lease Event of Default shall have occurred and be continuing; (xvi) Calpine Party in writing; Taxes imposed under as a result of, or in connection with, any "prohibited transaction," within the meaning of Section 4975 of the Code, Section 406 of ERISA or any comparable laws of any governmental authority to the extent Governmental Entity, engaged in by any Tax Indemnitee (which for this purpose shall include any ERISA Affiliate thereof) resulting from action the breach by such Tax Indemnitee other than, of any of its representations or warranties contained in the case Section 3.4(g) or Section 8.2 of the Owner Participant, the taking of any action at the request or direction of NRG; (xvii) Participation Agreement; Taxes imposed to the extent such Taxes result from the Tax Indemnitee (and in the case of the Owner Lessor, only if acting at the written direction of the Owner Participant) being organized under the laws of a jurisdiction other than the United States or any State thereof (other than, in the case of a Lender Indemnitee, such Taxes which did would not exist under law in effect on the date such Lender Indemnitee became a party to this transaction); (xviii) Any Taxes have been imposed on a Tax Indemnitee to the extent if such Tax Indemnitee were a United States Person; and Taxes imposed that such taxes would not have been imposed on a Tax Indemnitee but for the activities in the taxing jurisdiction of such Tax Indemnitee or any Affiliate thereof unrelated to the transactions contemplated hereby; (xix) by the Operative Documents other than Taxes imposed on a Tax Indemnitee that are or are in the 60 nature of interestsales, penaltiesuse, fines and additions to tax rental or license taxes or value added taxes (i) payable as a result of such Tax Indemnitee’s failure to file, in a procedurally proper manner and on a timely basis, any tax reports, returns or statements as to which NRG has timely notified such Tax Indemnitee in writing of the requirement to file, unless such failure is otherwise caused by the failure of NRG to fulfill its obligations, if any, with respect to such return (including provision of information sufficient to enable such Tax Indemnitee to file such report, return or statement), or (ii) except to the extent not attributable to value added taxes are imposed in clear and direct substitution for income taxes) or resulting from Taxes for which an indemnity is provided hereunder; and (xx) Taxes for as long as such Taxes are being contested pursuant to the contest provisions contained in Section 12.2(g)property taxes.

Excluded Taxes. The indemnity provided for in paragraph With respect to the Agent, any Lender, the L/C Issuer or any other recipient of any payment to be made by or on account of any obligation of the Borrower hereunder, (a) above shall not extend to any of the following Taxes (the “Excluded Taxes”): (i) Taxes taxes imposed on, based on or measured by gross or its overall net income (however denominated), and franchise taxes imposed on it (in lieu of net income taxes) as a result of a connection between the Agent, such Lender or receipts the L/C Issuer and the jurisdiction of the Governmental Authority imposing such tax or capital any political subdivision or net worth taxing authority thereof or therein (other than salesany such connection arising solely from the Agent, use, property, ad valorem, rental, stamp, transfer, excise, license and value added taxes, and other than franchise tax imposed by the State of Illinois upon the Owner Participant, the Owner Lessor or their respective Affiliates under the Business Corporation Act of 1983, as amended, or any successor legislation thereto); (ii) Taxes attributable to any period after expiration or other termination of the Facility Lease and, where required by the Facility Lease, return of the Facility to the Owner Lessor or its designee in accordance with the Facility Lease (or, in the case of the Lease Indenture Trustee, after the repayment of the Lessor Notes); (iii) Taxes imposed on a Tax Indemnitee attributable to the gross negligence or willful misconduct of such Tax Indemnitee or any Related Party of such Tax Indemnitee; (iv) Taxes in the nature of capital gain, accumulated earnings, personal holding company, excess profits, succession or estate, minimum, alternative minimum, preference, franchise, conduct of business and other similar taxes (other than franchise tax imposed by the State of Illinois upon the Owner Participant, the Owner Lessor or their respective Affiliates under the Business Corporation Act of 1983, as amended, or any successor legislation thereto); (v) Taxes imposed on a Tax Indemnitee that arise out of, or are caused by, any act or omission of such Tax Indemnitee (or any Related Party thereof) that is expressly prohibited by any Operative Document or by a breach by such Tax Indemnitee (or any Related Party thereof) of any of its representations, warranties or covenants under any Operative Document; (vi) Taxes arising out of, or caused by, any voluntary assignment, sale, transfer or other voluntary disposition, or any involuntary transfer or disposition resulting from a bankruptcy or similar proceeding for relief of debtors in which such Tax Indemnitee is a debtor, by (or a foreclosure by a creditor of) (A) the Owner Participant of any of its Beneficial Interest, (B) the Owner Lessor of all or any of its interest in the Facility Lender or the Facility SiteL/C Issuer having executed, or (C) the Lease Indenture Trustee of any interest in the Lessor Notes or the Indenture Estate unless (i) such transfer or disposition occurs during the continuance of delivered, enforced, become a Lease Event of Defaultparty to, or (ii) such transfer or disposition is required performed its obligations under, or occurs received payments under, and/or engaged in any other transaction pursuant to, the Operative Documents and the price paid is other than Fair Market Sales Value; any Loan Document), (vii) Taxes arising in connection with Owner Participant’s Liens or Owner Lessor’s Liens; (viii) Taxes imposed on any assignee or successor-in-interest to a Tax Indemnitee to the extent any such Taxes exceed the Taxes that would have been imposed had no assignment or transfer taken place determined under the law as in effect on the date of transfer; provided that this exclusion shall not apply to the computation of the gross-up amounts necessary to make a payment on an After-Tax Basis, nor to a transferee, assignee or successor in interest that acquires the interest of a Tax Indemnitee pursuant to a transfer or disposition in connection with the exercise of remedies during the continuance of a Lease Event of Default; (ix) Taxes that are included as a part of Transaction Costs; (x) Taxes imposed on, based on, or measured by any compensation that any Owner Trustee or the Lease Indenture Trustee receives for its services; (xib) any U.S. federal income taxes, including with respect to the Owner Participant, Taxes for which NRG is obligated to indemnify the Owner Participant under the Tax Indemnity Agreement (or which are expressly excluded from indemnification thereunder); (xii) other than with respect to the Certificateholders, the Lease Indenture Trustee and the Pass Through Trustee or any Related Party in respect of any thereof (a “Lender Indemnitee”), Taxes resulting from the Owner Lessor not being treated as a grantor trust or a nonentity for federal, state or local income tax purposes; (xiii) Taxes attributable to the failure of any Tax Indemnitee to comply with certification, information, documentation, reporting or other similar requirements concerning the nationality, residence, identity, connection with the jurisdiction imposing such Taxes or other similar matters; provided that the foregoing exclusion shall only apply if such Tax Indemnitee is eligible and obligated to comply with such requirement and shall have been given timely written notice of such requirement branch profits taxes imposed by NRG; (xiv) Taxes imposed on a Tax Indemnitee where the Tax Indemnitee’s breach of its contest obligations under Section 12.2(g) effectively precludes NRG’s ability to contest the Taxes; (xv) Taxes imposed on any Tax Indemnitee resulting from an amendment, modification, supplement or waiver to any Operative Document which was not requested by Midwest or NRG and as to which Midwest or NRG is not a party and the Tax Indemnitee (or, in the case of the Owner Participant, the Facility Lessor if acting at the express direction of the Owner Participant) is a party unless such amendment, modification, supplement or waiver (A) was required by applicable law or the Operative Documents, (B) may be necessary or appropriate to, and is in conformity with, any amendment, modification, supplement or waiver to any Operative Document agreed to by Midwest or NRG in writing, or (C) is made while a Lease Event of Default shall have occurred and be continuing; (xvi) Taxes imposed under Section 4975 of the Code, Section 406 of ERISA or any comparable laws of any governmental authority to the extent resulting from action by such Tax Indemnitee other than, in the case of the Owner Participant, the taking of any action at the request or direction of NRG; (xvii) Taxes imposed to the extent such Taxes result from the Tax Indemnitee (and in the case of the Owner Lessor, only if acting at the written direction of the Owner Participant) being organized under the laws of a jurisdiction other than the United States or any State similar tax imposed as a result of a connection between the Agent, such Lender or the L/C Issuer and the jurisdiction of the Governmental Authority imposing such tax or any political subdivision or taxing authority thereof or therein (other thanthan any such connection arising solely from the Agent, such Lender or the L/C Issuer having executed, delivered, enforced, become a party to, performed its obligations under, received payments under, and/or engaged in any other transaction pursuant to, any Loan Document), (c) any backup withholding tax that is required by the Code to be withheld from amounts payable to a Lender that has failed to comply with clause (A) of §4.4(e)(ii), and (d) in the case of a Foreign Lender Indemnitee(other than an assignee pursuant to a request by the Borrower under §31), any United States withholding tax that (i) is required to be imposed on amounts payable to such Taxes which did not exist under law Foreign Lender pursuant to the Laws in effect on force at the date time such Foreign Lender Indemnitee became becomes a party hereto (or designates a new Lending Office) or (ii) is attributable to this transactionsuch Foreign Lender’s failure or inability (other than as a result of a Change in Law) to comply with clause (B) of §4.4(e)(ii); (xviii) Any Taxes imposed on a Tax Indemnitee , except to the extent that such taxes would not have been imposed but for the activities of such Tax Indemnitee unrelated to the transactions contemplated hereby; Foreign Lender (xix) Taxes imposed on a Tax Indemnitee in the nature of interest, penalties, fines and additions to tax (i) payable as a result of such Tax Indemnitee’s failure to file, in a procedurally proper manner and on a timely basis, any tax reports, returns or statements as to which NRG has timely notified such Tax Indemnitee in writing of the requirement to file, unless such failure is otherwise caused by the failure of NRG to fulfill its obligationsassignor, if any) was entitled, at the time of designation of a new Lending Office (or assignment), to receive additional amounts from the Borrower with respect to such return (including provision of information sufficient withholding tax pursuant to enable such Tax Indemnitee to file such report, return or statement), §4.4(a)(ii) or (ii) to the extent not attributable to or resulting from Taxes for which an indemnity is provided hereunder; and (xx) Taxes for as long as such Taxes are being contested pursuant to the contest provisions contained in Section 12.2(gc).

Excluded Taxes. The indemnity provided for in paragraph (a) above shall not extend to any For the purposes of the following Taxes (the this Section 2.10, “Excluded Taxes” means, with respect to any Lender Party, the Administrative Agent and any other Person entitled to receive a payment to be made by or on account of any obligation of the Borrower hereunder or under the Notes (each of which is called herein a “Tax Indemnitee”): ), (i) any Taxes which are imposed on, based on or with respect to, or measured by gross or by, the net income or receipts or capital or net worth (other than sales, use, property, ad valorem, rental, stamp, transfer, excise, license of such Tax Indemnitee and value added taxes, and other than franchise tax which are imposed by the State United States of Illinois upon America, or by any government or other taxation authority in the Owner Participant, the Owner Lessor or their respective Affiliates jurisdiction under the Business Corporation Act laws of 1983which such Tax Indemnitee is organized or in which its principal office is located or, as amendedin the case of any Lender Party, or in which any successor legislation thereto); (ii) Taxes attributable to any period after expiration or other termination of the Facility Lease and, where required by the Facility Lease, return of the Facility to the Owner Lessor or its designee in accordance with the Facility Lease (Applicable Lending Offices is located or, in the case of the Lease Indenture TrusteeAdministrative Agent, after the repayment of the Lessor Notes); (iii) Taxes imposed on a Tax Indemnitee attributable to the gross negligence or willful misconduct of such Tax Indemnitee or any Related Party of such Tax Indemnitee; (iv) Taxes in the nature of capital gain, accumulated earnings, personal holding company, excess profits, succession or estate, minimum, alternative minimum, preference, franchise, conduct of business and other similar taxes (other than franchise tax imposed by the State of Illinois upon the Owner Participant, the Owner Lessor or their respective Affiliates under the Business Corporation Act of 1983, as amended, or any successor legislation thereto); (v) Taxes imposed on a Tax Indemnitee that arise out of, or are caused by, any act or omission of such Tax Indemnitee (or any Related Party thereof) that is expressly prohibited by any Operative Document or by a breach by such Tax Indemnitee (or any Related Party thereof) of any of its representations, warranties or covenants under any Operative Document; (vi) Taxes arising out of, or caused by, any voluntary assignment, sale, transfer or other voluntary disposition, or any involuntary transfer or disposition resulting from a bankruptcy or similar proceeding for relief of debtors in which such Tax Indemnitee is a debtorit has an office location at which it performs its duties as Administrative Agent, by (or a foreclosure by a creditor of) (A) the Owner Participant of any of its Beneficial Interest, (B) the Owner Lessor of all or any of its interest in the Facility or the Facility Site, or (C) the Lease Indenture Trustee of any interest in the Lessor Notes or the Indenture Estate unless (i) such transfer or disposition occurs during the continuance of a Lease Event of Default, or (ii) such transfer or disposition is required under, or occurs pursuant to, the Operative Documents and the price paid is other than Fair Market Sales Value; (vii) Taxes arising in connection with Owner Participant’s Liens or Owner Lessor’s Liens; (viii) Taxes imposed on any assignee or successor-in-interest to a Tax Indemnitee to the extent any such Taxes exceed the Taxes that would have been imposed had no assignment or transfer taken place determined under the law as in effect on the date of transfer; provided that this exclusion shall not apply to the computation of the gross-up amounts necessary to make a payment on an After-Tax Basis, nor to a transferee, assignee or successor in interest that acquires the interest of a Tax Indemnitee pursuant to a transfer or disposition in connection with the exercise of remedies during the continuance of a Lease Event of Default; (ix) Taxes that are included as a part of Transaction Costs; (x) Taxes imposed on, based on, or measured by any compensation that any Owner Trustee or the Lease Indenture Trustee receives for its services; (xi) any U.S. federal income taxes, including with respect to the Owner Participant, Taxes for which NRG is obligated to indemnify the Owner Participant under the Tax Indemnity Agreement (or which are expressly excluded from indemnification thereunder); (xii) other than with respect to the Certificateholders, the Lease Indenture Trustee and the Pass Through Trustee or any Related Party in respect of any thereof (a “Lender Indemnitee”), Taxes resulting from the Owner Lessor not being treated as a grantor trust or a nonentity for federal, state or local income tax purposes; (xiii) Taxes attributable to the failure of any Tax Indemnitee to comply with certification, information, documentation, reporting or other similar requirements concerning the nationality, residence, identity, connection with the jurisdiction imposing such Taxes or other similar matters; provided that the foregoing exclusion shall only apply if such Tax Indemnitee is eligible and obligated to comply with such requirement and shall have been given timely written notice of such requirement by NRG; (xiv) Taxes imposed on a Tax Indemnitee where the Tax Indemnitee’s breach of its contest obligations under Section 12.2(g) effectively precludes NRG’s ability to contest the Taxes; (xv) Taxes imposed on any Tax Indemnitee resulting from an amendment, modification, supplement or waiver to any Operative Document which was not requested by Midwest or NRG and as to which Midwest or NRG is not a party and the Tax Indemnitee (or, in the case of the Owner Participant, the Facility Lessor if acting at the express direction of the Owner Participant) any Lender Party or Administrative Agent that is a party unless such amendment, modification, supplement or waiver (A) was required by applicable law or the Operative Documents, (B) may be necessary or appropriate to, and is in conformity with, any amendment, modification, supplement or waiver to any Operative Document agreed to by Midwest or NRG in writing, or (C) is made while a Lease Event of Default shall have occurred and be continuing; (xvi) Taxes imposed under Section 4975 of the Code, Section 406 of ERISA or any comparable laws of any governmental authority to the extent resulting from action by such Tax Indemnitee other than, in the case of the Owner Participant, the taking of any action at the request or direction of NRG; (xvii) Taxes imposed to the extent such Taxes result from the Tax Indemnitee (and in the case of the Owner Lessor, only if acting at the written direction of the Owner Participant) being organized under the laws of a jurisdiction other than outside the United States of America, any withholding tax that (A) is in effect and applies to amounts payable by the Borrower under this Agreement, the Notes or any State thereof other Loan Document to or for the benefit of such Lender Party at the time such Lender Party becomes a party to this Agreement (other thanor designates a new Applicable Lending Office) except, in the case of a any Lender Indemnitee, such Taxes which did not exist under law in effect on the date such Lender Indemnitee became Party that becomes a party to this transaction); (xviii) Any Taxes imposed on Agreement or designates a Tax Indemnitee new Applicable Lending Office after the Original Closing Date, to the extent that such taxes would not have been imposed but for Lender Party is entitled at the activities of such Tax Indemnitee unrelated time it designates a new Applicable Lending Office, or to the transactions contemplated hereby; (xix) Taxes imposed on extent that such Lender Party’s assignor was entitled at the time such Lender Party becomes a Tax Indemnitee in party to this Agreement, as the nature of interestcase may be, penalties, fines and additions to tax (i) payable as a result of such Tax Indemnitee’s failure to file, in a procedurally proper manner and on a timely basis, any tax reports, returns or statements as to which NRG has timely notified such Tax Indemnitee in writing of receive additional amounts from the requirement to file, unless such failure is otherwise caused by the failure of NRG to fulfill its obligations, if any, Borrower with respect to such return (including provision of information sufficient any withholding tax pursuant to enable such Tax Indemnitee to file such report, return or statementSection 2.10(a), or (iiB) is attributable to such Lender Party’s failure to comply with Section 2.10(f) or such Administrative Agent’s failure to comply with Section 2.10(f) or 9.07(d), other than by reason of not being eligible for any exception from, or reduced rate of, withholding upon completion of the Internal Revenue Service Form at the time required, (iii) any Tax that is imposed in connection with any sale, assignment, transfer or other disposition by any Tax Indemnitee of all or any part of its interest in this Agreement, the Notes or any other Loan Documents other than during the continuance of an Event of Default, and (iv) any Tax imposed by any government or other taxation authority in any jurisdiction to the extent not such Tax is attributable to or resulting a connection between such jurisdiction and such Tax Indemnitee other than a connection arising from Taxes for which an indemnity is provided hereunder; and (xx) Taxes for as long as such Taxes are being contested pursuant to the contest provisions contained in Section 12.2(g)transactions contemplated by this Agreement and the other Loan Documents.

Excluded Taxes. The indemnity provided for in paragraph (a) above shall not extend to any of the following Taxes (the “"Excluded Taxes”"): (i) Taxes (other than any sales, use, value added, property or transfer Taxes or Taxes in the nature thereof) imposed by any government or taxing authority which are imposed on, based on or measured by gross or (I) net income (including any minimum taxes or receipts taxes on items of tax preference), or (II) gross income, net or gross receipts, net or gross rent, capital or net worth (other than sales, use, property, ad valorem, rental, stamp, transfer, excise, license and value added taxes, and other than franchise tax imposed by the State of Illinois upon the Owner Participant, the Owner Lessor or their respective Affiliates under the Business Corporation Act of 1983, as amended, or any successor legislation thereto)worth; (ii) Taxes attributable to any period after expiration or other termination of the Facility Lease and, where required by the Facility Lease, return of the Facility to the Owner Lessor or its designee in accordance with the Facility Lease (or, in the case of the Lease Indenture Trustee, after the repayment of the Lessor Notes); (iii) Taxes imposed on a Tax Indemnitee attributable to the gross negligence or willful misconduct of such Tax Indemnitee or any Related Party of such Tax Indemnitee; (iv) Taxes in the nature of capital Capital gain, accumulated earnings, withholding, personal holding company, excess profits, succession or estate, minimum, alternative minimum, preference, franchise, conduct of business and business, other similar taxes Taxes and Taxes in the nature thereof (other than franchise tax any sales, use, value added, property or transfer Taxes or Taxes in the nature thereof ) imposed by the State of Illinois upon the Owner Participant, the Owner Lessor any government or their respective Affiliates under the Business Corporation Act of 1983, as amended, or any successor legislation thereto)taxing authority; (viii) Taxes attributable to any period after the expiration or earlier termination of the Equipment Operating Lease and the Foundation Operating Lease and return of the Equipment Interest and the Foundation Interest to the Owner Trustee not attributable to an Event of Default; (iv) Taxes imposed on with respect to a Tax Indemnitee that arise out of, or are caused by, any act transferee or omission assignee of any such Tax Indemnitee (or any Related Party thereof) that is expressly prohibited by any Operative Document or by a result from the breach by such Tax Indemnitee (or such transferee or assignee, as the case may be, or any Related Party thereof) Affiliate thereof of any of its representations, warranties or covenants under in any of the Operative DocumentDocuments or the gross negligence, willful misconduct or fraud of such Tax Indemnitee or such transferee or assignee, as the case may be, or any Affiliate; (viv) Taxes imposed on the Owner Participant, the Owner Trustee or the Trust Estate arising out of, or caused by, any voluntary assignment, sale, transfer or other voluntary disposition, or any involuntary transfer or disposition resulting from a bankruptcy or similar proceeding for relief of debtors in which such Tax Indemnitee is a debtor, (i) by (or a foreclosure by a creditor of) (A) the Owner Participant of its Beneficial Interest or a portion thereof or any interest in any Operative Document, (ii) by the Owner Trustee of the Lessor's Unit 1 Interest or any portion or Component thereof or interest therein, any Operative Document, or any interest in or arising under any of its Beneficial Interest, (B) the Owner Lessor of all or any of its interest in the Facility or the Facility Site, foregoing or (Ciii) the Lease Indenture Trustee of any interest in the Lessor Notes or the Indenture Estate unless (i) such transfer or disposition occurs during the continuance of a Lease Event of DefaultOwner Participant, or (ii) such transfer or disposition is required under, or occurs pursuant to, the Operative Documents and the price paid is other than Fair Market Sales Value; a disposition (viix) Taxes arising in connection with Owner Participant’s Liens or Owner Lessor’s Liens; (viii) Taxes imposed on any assignee or successor-in-interest to a Tax Indemnitee to the extent any such Taxes exceed the Taxes that would have been imposed had no assignment or transfer taken place determined under the law as in effect on the date of transfer; provided that this exclusion shall not apply to the computation of the gross-up amounts necessary to make a payment on an After-Tax Basis, nor to a transferee, assignee or successor in interest that acquires the interest of a Tax Indemnitee pursuant to a transfer or disposition in connection with the exercise of remedies during the continuance of a Lease upon an Event of DefaultDefault under the Equipment Operating Lease or the Foundation Operating Lease or (y) pursuant to the terms of the Operative Documents (other than a disposition of any Severable Modification purchased by Owner Trustee pursuant to Section 8.3 of the Equipment Operating Lease or Section 8.3 of the Foundation Operating Lease or a disposition to a Person other than Old Dominion unless pursuant to Section 14 of the Equipment Operating Lease and Section 14 of the Foundation Operating Lease); (vi) Taxes, imposed on the Owner Participant, the Owner Trustee or the Trust Estate arising in connection with, or as a result of, Lessor's Liens or Owner Participant's Liens; (vii) Taxes, imposed on the Owner Participant, the Owner Trustee or the Trust Estate arising in connection with a Regulatory Event of Loss caused by the action, inaction or status (unless caused by a change of law) of the Owner Trustee, the Owner Participant or an Affiliate thereof; (viii) Otherwise indemnifiable Taxes imposed against a transferee or assignee of any Tax Indemnitee to the extent of the excess of such otherwise indemnifiable Taxes over the amount of such Taxes that would have been imposed on such Tax Indemnitee; (ix) Taxes that are included as a part of in the Equipment Interest Cost, the Foundation Interest Cost or the Transaction Costs; (x) Taxes imposed on, based on, or measured by any compensation that any on the Owner Trustee with respect to any fees or other compensation received by the Lease Indenture Owner Trustee receives for in its servicescapacity as such; (xi) any U.S. federal income taxes, including with respect to the Owner Participant, Taxes that would not have been imposed but for which NRG is obligated to indemnify the Owner Participant under the Tax Indemnity Agreement (or which are expressly excluded from indemnification thereunder); (xii) other than with respect to the Certificateholders, the Lease Indenture Trustee and the Pass Through Trustee or any Related Party in respect of any thereof (a “Lender Indemnitee”), Taxes resulting from the Owner Lessor not being treated as a grantor trust or a nonentity for federal, state or local income tax purposes; (xiii) Taxes attributable to the failure of any a Tax Indemnitee to comply with certification, information, documentation, reporting or other similar requirements concerning the nationality, residence, identity, connection with the jurisdiction imposing such Taxes or other similar matters; provided PROVIDED that the foregoing exclusion shall only apply if (i) such Tax Indemnitee is eligible and obligated to comply with such requirement and shall have been given timely written notice of such requirement by NRGOld Dominion, and (ii) such Tax Indemnitee shall have determined that compliance with such requirement will not have, or create any material risk of having, any adverse consequence to such Tax Indemnitee or any Affiliate thereof that is not indemnified against by Old Dominion to the reasonable satisfaction of the Tax Indemnitee; (xii) Taxes that would not have been imposed but for the failure of the Tax Indemnitee to comply with the contest provisions of paragraph (g) below, to the extent Old Dominion is actually prejudiced in defending any such claim as a result of such failure; (xiii) Taxes imposed by any government or taxing authority, other than any government or taxing authority of or in the United States, which are not imposed as a result of (A) the location, use, operation or Clover Unit 1 or any portion or Component thereof in the relevant jurisdiction, (B) the organization or presence of Old Dominion or any Lessee Person in the relevant jurisdiction, (C) the making or receipt of any payment by Old Dominion or any Lessee Person in the relevant jurisdiction or (D) the Pollution Control Assets Lease; (xiv) Taxes imposed on a any Tax Indemnitee that would not have been imposed but for an amendment to any Operative Document authorized, executed or otherwise consented to by such Tax Indemnitee that was not consented to by Old Dominion where such consent was required by the Tax Indemnitee’s breach of its contest obligations under Section 12.2(g) effectively precludes NRG’s ability to contest the TaxesOperative Documents; (xv) Taxes imposed on any Tax Indemnitee resulting from an amendment, modification, supplement or waiver to any Operative Document which was not requested by Midwest or NRG and as to which Midwest or NRG is not a party and the Tax Indemnitee (or, in the case nature of an intangibles tax imposed by any United States federal, state or local government or taxing authority upon or with respect to the interest of the Owner Participant, Participant in the Facility Lessor if acting at trust created under the express direction of the Owner Participant) is a party unless such amendment, modification, supplement or waiver (A) was required by applicable law Trust Agreement or the Operative Documents, (B) may be necessary or appropriate to, and is in conformity with, any amendment, modification, supplement or waiver to any Operative Document agreed to by Midwest or NRG in writing, or (C) is made while a Lease Event of Default shall have occurred and be continuingTrust Estate; (xvi) Taxes imposed under Section 4975 of the Code, Section 406 of ERISA or any comparable laws of any governmental authority to the extent resulting from action by such Tax Indemnitee other than, in the case of on the Owner Participant, Participant that would not have been imposed but for the taking of any action at trust created under the request Trust Agreement or direction of NRG; (xvii) Taxes imposed to the extent such Taxes result from the Tax Indemnitee (and in the case of the Owner Lessor, only if acting at the written direction of the Owner ParticipantParticipant being (A) being organized under the laws of a jurisdiction other than the United States or any State thereof state thereof, (other thanB) treated as a person that is not a United States person under section 7701 of the Code, or (C) in the case of the trust created under the Trust Agreement, taxed as other than a grantor trust; (xvii) Taxes based on or measured by the value of the interest of a Lender Indemnitee, such in any Loan Certificate (other than Taxes which did not exist under law in effect on imposed by the date such Lender Indemnitee became a party to this transactionCommonwealth of Virginia);; and (xviii) Any Taxes imposed on a Tax Indemnitee that are expressly by their terms in substitution of any of the foregoing Excluded Taxes. The Owner Participant and Owner Trustee will use their respective reasonable efforts to the extent that minimize Taxes indemnifiable by Old Dominion under this Section 8.2, including by complying with reasonable requests by Old Dominion to do or to refrain from doing any act if such taxes would not have been imposed but for the activities of such Tax Indemnitee unrelated to the transactions contemplated hereby; (xix) Taxes imposed on a Tax Indemnitee compliance is, in the nature of interest, penalties, fines and additions to tax (i) payable as a result of such Tax Indemnitee’s failure to file, in a procedurally proper manner and on a timely basis, any tax reports, returns or statements as to which NRG has timely notified such Tax Indemnitee in writing good faith opinion of the requirement to fileOwner Participant, unless such failure is of a purely ministerial nature or otherwise caused by has no unindemnified adverse impact on the failure Owner Participant or Owner Trustee or any Affiliate of NRG to fulfill its obligations, if any, with respect to such return (including provision either thereof or on the business or operations of information sufficient to enable such Tax Indemnitee to file such report, return or statement), or (ii) to any of the extent not attributable to or resulting from Taxes for which an indemnity is provided hereunder; and (xx) Taxes for as long as such Taxes are being contested pursuant to the contest provisions contained in Section 12.2(g)foregoing.

Excluded Taxes. The indemnity provided for in paragraph (a) above shall not extend to any of the following Taxes (the “"Excluded Taxes”"): (i) Taxes imposed by the United States federal government, or Taxes imposed on, based on or measured by gross or net income or receipts or capital or net worth (in each case, other than Taxes that are or are in the nature of sales, use, property, ad valorem, rental, stamp, transfer, excise, license license, and value added taxes, and other than franchise tax imposed taxes or Taxes collected by withholding against payments under the State of Illinois upon the Owner ParticipantExisting Debt, the Owner Lease Indenture or the Lessor Notes or their respective Affiliates under the Business Corporation Act of 1983, as amendedTaxes arising out of, or any successor legislation theretoin connection with or related to the matters described); (ii) Taxes attributable to any period after expiration or other termination of the Facility Lease and, where required by the Facility Lease, return of the Facility to the Owner Lessor or its designee in accordance with the Facility Lease (or, in the case of the Lease Indenture TrusteeTrustee and the Security Agent, after the repayment of the Lessor Notes) and not as a result of any act, event or omission occurring prior to or simultaneous with such expiration, termination or surrender (or in the case of the Noteholders, the Lease Indenture Trustee, the Security Agent, the Lease Indenture Company or any Related Party in respect of any thereof (each, a "Lender Indemnitee"), such repayment), provided that this exclusion shall not apply so long as a Lease Event of Default shall have occurred and be continuing; (iii) Taxes imposed on a Tax Indemnitee attributable to the gross negligence or willful misconduct of such Tax Indemnitee or any Related Party of such Tax Indemnitee; (iv) Taxes in the nature of capital gain, accumulated earnings, personal holding company, excess profits, succession or estate, minimum, alternative minimum, preference, franchise, conduct of business and other similar taxes (in each case, other than franchise tax imposed Taxes that are or are in the nature of sales, use, property, ad valorem, rental, stamp, transfer, excise, license, and value added taxes or Taxes collected by the State of Illinois upon the Owner Participant, the Owner Lessor or their respective Affiliates withholding against payments under the Business Corporation Act of 1983, as amended, Lease Indenture or any successor legislation theretothe Lessor Notes); (v) Taxes imposed on a Tax Indemnitee that arise out of, or are caused by, any act or omission of such Tax Indemnitee (or any Related Party thereof) that is expressly prohibited by any Operative Document or by a breach by such Tax Indemnitee (or any Related Party thereof) of any of its representations, warranties or covenants under any Operative Document, except to the extent attributable to any acts or omissions of the Facility Lessee or any sublessee, transferee or assignee of the Facility Lessee; (vi) Taxes arising out of, or caused by, any voluntary assignment, sale, transfer or other voluntary disposition, or any involuntary transfer or disposition resulting from a bankruptcy or similar proceeding for relief of debtors in which such Tax Indemnitee is a debtor, by (or a foreclosure by a creditor of) (A) the Owner Participant of any of its Beneficial Lessor Membership Interest, (B) the Owner Lessor of all or any of its interest in the Facility or the Facility Site, or (C) the Lease Indenture Trustee Security Agent of any interest in the Lessor Notes or the Indenture Estate unless (i) such transfer or disposition occurs during the continuance of a Lease Event of Default, or (ii) such transfer or disposition is required under, or occurs pursuant to, the Operative Documents and the price paid is other than Fair Market Sales Value; (vii) in the case of a Tax Indemnitee that is the Owner Participant or a Related Party thereto, Taxes arising in connection with Owner Participant’s Participant Liens or in the case of a Tax Indemnitee that is the Owner Lessor’s Lessor or a Related Party thereto, Taxes arising in connection with Owner Lessor Liens; (viii) Taxes imposed on any assignee or successor-in-interest to a Tax Indemnitee to the extent any such Taxes exceed the Taxes that would have been imposed had no assignment or transfer taken place determined under the law as in effect on the date of transfer; provided that this exclusion shall not apply to the computation of the gross-up amounts necessary to make a payment on an After-Tax Basis, nor to a transferee, assignee or successor in interest that acquires the interest of a Tax Indemnitee pursuant to a an assignment, transfer or disposition in connection with the exercise of remedies during the continuance of a Material Lease Default or Lease Event of Default; (ix) Taxes that are properly included as a part of Transaction CostsExpenses; (x) Taxes imposed on, based on, or measured by any compensation that any Owner Trustee Manager, the Security Agent or the Lease Indenture Trustee receives for its services; (xi) any U.S. federal income taxes, including with respect to the Owner Participant, Taxes U.S. federal income taxes for which NRG Xxxxx City is obligated to indemnify the Owner Participant under the Tax Indemnity Agreement (or which are expressly excluded from indemnification thereunder); (xii) other than with respect to the Certificateholders, the Lease Indenture Trustee and the Pass Through Trustee or any Related Party in respect of any thereof (a “Lender Indemnitee”), Taxes resulting from the Owner Lessor not being treated as a grantor trust trust, a nonentity or a nonentity pass-through or disregarded entity for federal, state or local income tax purposes; (xiii) Taxes attributable to the failure of any Tax Indemnitee to comply with certification, information, documentation, reporting or other similar requirements concerning the nationality, residence, identity, connection with the jurisdiction imposing such Taxes or other similar matters; provided that the foregoing exclusion shall only apply if such Tax Indemnitee is eligible and obligated under applicable law or the Operative Documents to comply with such requirement and shall have been given timely written notice of such requirement by NRGor on behalf of Xxxxx City; (xiv) Taxes imposed on a Tax Indemnitee where the Tax Indemnitee’s 's breach of its contest obligations under Section 12.2(g10.2(g) effectively precludes NRG’s Xxxxx City's ability to contest the Taxes; (xv) Taxes imposed on any Tax Indemnitee resulting from an amendment, modification, supplement or waiver to any Operative Document which was not requested by Midwest or NRG Xxxxx City and as to which Midwest or NRG Xxxxx City is not a party and the Tax Indemnitee (or, in the case of the Owner Participant, the Facility Owner Lessor if acting at the express direction of the Owner Participant) is a party unless such amendment, modification, supplement or waiver (A) was required by applicable law or the Operative Documents, (B) may be necessary or appropriate to, and is in conformity with, any amendment, modification, supplement or waiver to any Operative Document agreed to or requested by Midwest or NRG Xxxxx City in writing, or (C) is made while a Lease Event of Default shall have occurred and be continuing; (xvi) Taxes imposed under Section 4975 of the Code, Section 406 of ERISA or any comparable laws of any governmental authority to the extent resulting from action by any breach of any of the representations or warranties of such Tax Indemnitee other than, set forth in the case of the Owner Participant, the taking of any action at the request or direction of NRGSection 3.4(g) hereof; (xvii) Taxes imposed to the extent such Taxes result from the Tax Indemnitee (and in the case of the Owner Lessor, only if acting at the written direction of the Owner Participant) being organized under the laws of a jurisdiction other than the United States or any State thereof (other than, in the case of a Lender Indemnitee, such Taxes which did not exist under law in effect on the date such Lender Indemnitee became a party to this transaction); (xviii) Any Taxes (other than Taxes that are or are in the nature of sales, use, property, ad valorem, rental, stamp, transfer, excise, license and value added taxes or Taxes collected by withholding against payments under the Lease Indenture or the Lessor Notes) imposed on a Tax Indemnitee to the extent that such taxes would not have been imposed but for the activities of such Tax Indemnitee unrelated to the transactions contemplated hereby; (xix) Taxes imposed on a Tax Indemnitee in the nature of interest, penalties, fines and additions to tax (i) payable as a result of such Tax Indemnitee’s 's failure to file, in a procedurally proper manner and on a timely basis, any tax reports, returns or statements as to which NRG Xxxxx City has timely notified such Tax Indemnitee in writing of the requirement to file, unless such failure is otherwise caused by the failure of NRG Xxxxx City to fulfill its obligations, if any, with respect to such return (including provision of information sufficient to enable such Tax Indemnitee to file such report, return or statement), or (ii) to the extent not attributable to or resulting from Taxes for which an indemnity is provided hereunder; and (xx) Taxes for as long as such Taxes are being contested pursuant to the contest provisions contained in Section 12.2(g10.2(g) (subject to the Tax Indemnitee's right to obtain a Tax Advance pursuant to Section 10.2(g)(iii)(5)).

Excluded Taxes. The indemnity provided for in paragraph (a) above shall not extend to any of the following Taxes (the “Excluded Taxes”"EXCLUDED TAXES"): (i) Taxes imposed on, based on or measured by gross or net income or receipts or capital or net worth (other than sales, use, property, ad valorem, rental, stamp, transfer, excise, license and value added taxes, and other than franchise tax imposed by the State of Illinois upon the Owner Participant, the Owner Lessor or their respective Affiliates under the Business Corporation Act of 1983, as amended, or any successor legislation thereto); (ii) Taxes attributable to any period after expiration or other termination of the Facility Lease and, where required by the Facility Lease, return of the Facility to the Owner Lessor or its designee in accordance with the Facility Lease (or, (a) in the case of the Lease Indenture TrusteeHolder Representative, after the repayment of the Lessor Notes, or (b) in case of the Funding LLC and the Funding LLC Note Holders, after the sale or other disposition of the Lessor Notes by the Funding LLC); (iii) Taxes imposed on a Tax Indemnitee attributable to the gross negligence or willful misconduct of such Tax Indemnitee or any Related Party of such Tax Indemnitee; (iv) Taxes in the nature of capital gain, accumulated earnings, personal holding company, excess profits, succession or estate, minimum, alternative minimum, preference, franchise, conduct of business and other similar taxes (other than franchise tax imposed by the State of Illinois upon the Owner Participant, the Owner Lessor or their respective Affiliates under the Business Corporation Act of 1983, as amended, or any successor legislation thereto); (v) Taxes imposed on a Tax Indemnitee that arise out of, or are caused by, any act or omission of such Tax Indemnitee (or any Related Party thereof) that is expressly prohibited by any Operative Document or by a breach by such Tax Indemnitee (or any Related Party thereof) of any of its representations, warranties or covenants under any Operative Document; (vi) Taxes arising out of, or caused by, any voluntary assignment, sale, transfer or other voluntary disposition, or any involuntary transfer or disposition resulting from a bankruptcy or similar proceeding for relief of debtors in which such Tax Indemnitee is a debtor, by (or a foreclosure by a creditor of) (A) the Owner Participant of any of its Beneficial Interest, (B) the Owner Lessor of all or any of its interest in the Facility or the Facility Site, or (C) the Lease Indenture Trustee Funding LLC of any interest in the Lessor Notes or the Indenture Estate Collateral, unless (i) such transfer or disposition occurs during the continuance of a Lease Event of Default, or (ii) such transfer or disposition is required under, or occurs pursuant to, the Operative Documents and the price paid is other than Fair Market Sales Value; (vii) Taxes arising in connection with Owner Participant’s 's Liens or Owner Lessor’s 's Liens; (viii) Taxes imposed on any assignee or successor-in-interest to a Tax Indemnitee to the extent any such Taxes exceed the Taxes that would have been imposed had no assignment or transfer taken place determined under the law as in effect on the date of transfer; provided PROVIDED that this exclusion shall not apply to the computation of the gross-up amounts necessary to make a payment on an After-Tax Basis, nor to a transferee, assignee or successor in interest that acquires the interest of a Tax Indemnitee pursuant to a transfer or disposition in connection with the exercise of remedies during the continuance of a Lease Event of Default; (ix) Taxes that are included as a part of Transaction Costs; (x) Taxes imposed on, based on, or measured by any compensation that any Owner Trustee Trustee, the Holder Representative or the Lease Indenture Trustee Funding LLC receives for its services; (xi) any U.S. federal income taxes, including with respect to the Owner Participant, Taxes for which NRG Midwest is obligated to indemnify the Owner Participant under the Tax Indemnity Agreement (or which are expressly excluded from indemnification thereunder); (xii) other than with respect to the Certificateholdersany Funding LLC Note Holder, the Lease Indenture Trustee and the Pass Through Trustee Funding LLC, Lessor Noteholders or Holder Representative or any Related Party in respect of any thereof (a “Lender Indemnitee”"LENDER INDEMNITEE"), Taxes resulting from the Owner Lessor not being treated as a grantor trust or a nonentity for federal, state or local income tax purposes; (xiii) Taxes attributable to the failure of any Tax Indemnitee to comply with certification, information, documentation, reporting or other similar requirements concerning the nationality, residence, identity, connection with the jurisdiction imposing such Taxes or other similar matters; provided PROVIDED that the foregoing exclusion shall only apply if such Tax Indemnitee is eligible and obligated to comply with such requirement and shall have been given timely written notice of such requirement by NRGMidwest; (xiv) Taxes imposed on a Tax Indemnitee where the Tax Indemnitee’s 's breach of its contest obligations under Section 12.2(g14.2(g) effectively precludes NRG’s Midwest's ability to contest the Taxes; (xv) Taxes imposed on any Tax Indemnitee resulting from an amendment, modification, supplement or waiver to any Operative Document which was not requested by Midwest or NRG and as to which Midwest or NRG is not a party and the Tax Indemnitee (or, in the case of the Owner Participant, the Facility Lessor if acting at the express direction of the Owner Participant) is a party unless such amendment, modification, supplement or waiver (A) was required by applicable law or the Operative Documents, (B) may be necessary or appropriate to, and is in conformity with, any amendment, modification, supplement or waiver to any Operative Document agreed to by Midwest or NRG in writing, or (C) is made while a Lease Event of Default shall have occurred and be continuing; (xvi) Taxes imposed under Section 4975 of the Code, Section 406 of ERISA or any comparable laws of any governmental authority to the extent resulting from action by such Tax Indemnitee other than, in the case of the Owner Participant, the taking of any action at the request or direction of NRGMidwest; (xvii) Taxes imposed to the extent such Taxes result from the Tax Indemnitee (and in the case of the Owner Lessor, only if acting at the written direction of the Owner Participant) being organized under the laws of a jurisdiction other than the United States or any State thereof (other than, in the case of a Lender Indemnitee, such Taxes which did not exist under law in effect on the date such Lender Indemnitee became a party to this transaction); (xviii) Any Taxes imposed on a Tax Indemnitee to the extent that such taxes would not have been imposed but for the activities of such Tax Indemnitee unrelated to the transactions contemplated hereby; (xix) Taxes imposed on a Tax Indemnitee in the nature of interest, penalties, fines and additions to tax (i) payable as a result of such Tax Indemnitee’s 's failure to file, in a procedurally proper manner and on a timely basis, any tax reports, returns or statements as to which NRG Midwest has timely notified such Tax Indemnitee in writing of the requirement to file, unless such failure is otherwise caused by the failure of NRG Midwest to fulfill its obligations, if any, with respect to such return (including provision of information sufficient to enable such Tax Indemnitee to file such report, return or statement), or (ii) to the extent not attributable to or resulting from Taxes for which an indemnity is provided hereunder; and (xx) Taxes for as long as such Taxes are being contested pursuant to the contest provisions contained in Section 12.2(g14.2(g).

Excluded Taxes. The indemnity provided for in paragraph (a) above shall not extend to any of the following Taxes (the “Excluded Taxes”"EXCLUDED TAXES"): (i) Taxes imposed on, based on or measured by gross or net income or receipts or capital or net worth of the Indemnitee (other than sales, use, property, ad valorem, rental, stamp, transfer, excise, license and value added taxes, and other than income or franchise tax imposed by the State of Illinois in which the Leased Equipment or any part or component thereof is located upon the Owner Participant, the Owner Lessor an Indemnitee or their respective its Affiliates under the Business Corporation Act law of 1983, as amended, or any successor legislation thereto)the State in which the Leased Equipment is located; (ii) Taxes attributable to any period after expiration or other termination of the Facility Lease and, where required by the Facility Lease, return of the Facility ; PROVIDED that this clause (ii) shall not apply with respect to any payments arising prior to the Owner Lessor expiration or its designee in accordance with the Facility Lease (or, in the case other termination of the Lease Indenture Trustee, but which are paid after the repayment of the Lessor Notes)such period; (iii) Taxes imposed on a Tax an Indemnitee attributable to the gross negligence or willful misconduct of such Tax Indemnitee or any Related Party of such Tax Indemnitee; (iv) Taxes in the nature of capital gain, accumulated earnings, personal holding company, excess profits, succession or estate, minimum, alternative minimum, preference, franchise, conduct of business and other similar taxes (other than franchise tax imposed by the State of Illinois in which the Leased Equipment or any part or component thereof is located upon the Owner Participant, the Owner Lessor an Indemnitee or their respective its Affiliates under the Business Corporation Act law of 1983, as amended, or any successor legislation thereto)the State in which the Leased Equipment is located; (v) Taxes imposed on a Tax an Indemnitee that arise out of, or are caused by, any act or omission of such Tax Indemnitee (or any Related Party thereof) that is expressly prohibited by any Operative Basic Document or by a breach by such Tax Indemnitee (or any Related Party thereof) of any of its representations, warranties or covenants under any Operative Basic Document; (vi) Taxes arising out of, or caused by, any voluntary assignment, sale, transfer or other voluntary disposition, or any involuntary transfer or disposition resulting from a bankruptcy or similar proceeding for relief of debtors in which such Tax Indemnitee is a debtor, by (or a foreclosure by a creditor of) (A) the Owner Participant of any of its Beneficial InterestLessor, (B) the Owner Lessor of all or any of its interest in the Facility or the Facility Site, or (C) the Lease Indenture Trustee of any interest in the Lessor Notes or the Indenture Estate unless (i) such transfer or disposition occurs during the continuance of a Lease Event of Default, or (ii) such transfer or disposition is required under, or occurs pursuant to, the Operative Documents and the price paid is other than Fair Market Sales Value; (vii) Taxes arising in connection with Owner Participant’s Liens or Owner Lessor’s Liens; (viii) Taxes imposed on any assignee or successor-in-interest to a Tax an Indemnitee to the extent any such Taxes exceed the Taxes that would have been imposed had no assignment or transfer taken place determined under the law as in effect on the date of transfer; provided PROVIDED that this exclusion shall not apply to the computation of the gross-up amounts necessary to make a payment on an After-Tax Basis, nor to a transferee, assignee or successor in interest that acquires the interest of a Tax an Indemnitee pursuant to a transfer or disposition in connection with the exercise of remedies during the continuance of a Lease Event of Default; (ixviii) Taxes that are included as a part of Transaction Costs; (xix) Taxes imposed on, based on, or measured by any compensation that any Owner Trustee or the Lease Indenture Trustee receives for its services; (xix) any U.S. federal income taxes, including with respect to Taxes imposed on the Owner Participant, Taxes for which NRG is obligated to indemnify the Lessor or Owner Participant under the Tax Indemnity Agreement (or which are expressly excluded from indemnification thereunder); (xii) other than with respect to the Certificateholders, the Lease Indenture Trustee and the Pass Through Trustee or any Related Party in respect of any thereof (a “Lender Indemnitee”), Taxes resulting from the Owner Lessor not being treated as a grantor trust or a nonentity for federal, state or local income tax purposes; (xiiixi) Taxes attributable to the failure of any Tax the Indemnitee to comply with certification, information, documentation, reporting or other similar requirements concerning the nationality, residence, identity, connection with the jurisdiction imposing such Taxes or other similar matters; provided PROVIDED that the foregoing exclusion shall only apply if such Tax Indemnitee is eligible and obligated to comply with such requirement and shall have been given timely written notice of such requirement by NRGGuarantor, however, such written notice shall not be required with respect to the certification, information, documentation and reporting requirements of SECTION 4.7(c) and SECTION 6.6; (xivxii) Taxes imposed on a Tax an Indemnitee where to the Tax extent that the Indemnitee’s 's breach of its contest obligations under Section 12.2(g) SECTION 6.4 effectively precludes NRG’s Lessee's ability to contest the Taxes; (xvxiii) Taxes imposed on any Tax Indemnitee resulting from an amendment, modification, supplement or waiver to any Operative Basic Document which was not requested by Midwest Lessee or NRG and as Guarantor or to which Midwest Lessee or NRG Guarantor is not a party and the Tax Indemnitee (or, in the case of the Owner ParticipantContributor, the Facility Lessor Lessor, if acting at the express direction of the Owner ParticipantContributor) is a party unless such amendment, modification, supplement or waiver (A) was required by applicable law or the Operative Documents, (B) may be necessary or appropriate to, and is in conformity with, any amendment, modification, supplement or waiver to any Operative Document agreed to by Midwest or NRG in writing, or (C) is made while a Lease Event of Default shall have occurred and be continuingparty; (xvixiv) Taxes imposed under Section 4975 of the Code, Section 406 of ERISA or any comparable laws of any governmental authority to the extent resulting from action by such Tax Indemnitee other than, in the case of the Owner Participant, the taking of any action at the request or direction of NRGIndemnitee; (xviixv) Taxes imposed to the extent such Taxes result from the Tax Indemnitee (and in the case of the Owner Lessor, only if acting at the written direction of the Owner ParticipantContributor) being organized under the laws of a jurisdiction other than the United States or any State thereof (other than, in the case of a Lender Indemnitee, such Taxes which did not exist under law in effect on the date such Lender Indemnitee became a party to this transaction)thereof; (xviiixvi) Any Taxes imposed on a Tax an Indemnitee to the extent that such taxes would not have been imposed but for the activities of such Tax Indemnitee unrelated to the transactions contemplated hereby; (xixxvii) Taxes imposed on a Tax an Indemnitee in the nature of interest, penalties, fines and additions to tax (i) payable as a result of such Tax Indemnitee’s 's failure to file, in a procedurally proper manner and on a timely basis, any tax reports, returns or statements as to which NRG Lessee has timely notified such Tax Indemnitee in writing of the requirement to file, unless such failure is otherwise caused by the failure of NRG Lessee to fulfill its obligations, if any, with respect to such return (including provision of information sufficient to enable such Tax Indemnitee to file such report, return or statement), or (ii) to the extent not attributable to or resulting from Taxes for which an indemnity indem nity is provided hereunder; and (xxxviii) Taxes for as long as such Taxes are being contested pursuant to the contest provisions contained in Section 12.2(gSECTION 6.3(g).

Excluded Taxes. The indemnity provided for in paragraph (a) above shall not extend to any of the following Taxes (the “"Excluded Taxes”): (i) "): Taxes imposed by the United States federal government or any state or local government, any political subdivision of any of the foregoing, imposed on, based on or measured by gross or net income or receipts or income, receipts, capital gain, capital or net worth worth, or conduct of business (other than than, in each case, Taxes that are or are in the nature of sales, use, property, ad valorem, rental, stamplicense, transfer, excise, license and value added (to the extent value added taxes are not imposed in clear and direct substitution for income taxes) or property taxes) ("Income Taxes"), including any such Taxes collected by way of withholding, minimum or alternative minimum taxes, and franchise taxes; provided that this exclusion (i) shall not affect any express requirement that payments be made on an "after-tax" basis; Taxes imposed on a Tax Indemnitee other than franchise tax imposed by the State of Illinois upon the Owner Participant, the Owner Lessor or their respective Affiliates under the Business Corporation Act of 1983, as amended, or any successor legislation thereto); (ii) Taxes a Certificateholder Indemnitee that are attributable to any period act, event or omission by such Tax Indemnitee that occurs after expiration or other termination of the Facility Lease and, where required by the Facility Lease, return and surrender of the Facility Undivided Interest to the Owner Lessor or its designee successors (or in the case of a Certificateholder Indemnitee, Taxes imposed for any period after the repayment of the Lease Debt) in accordance with the Facility Lease Lease, (as opposed to any act, event or omission occurring prior to or simultaneous with such expiration, termination or surrender (or, in the case of the a Certificateholder Indemnitee, such repayment)), provided that this exclusion shall not apply so long as a Lease Indenture Trustee, after the repayment Event of the Lessor Notes); (iii) Default shall have occurred and be continuing; Taxes imposed on a Tax Indemnitee that are attributable to the gross negligence or willful misconduct of such Tax Indemnitee, unless such negligence or misconduct is imputed to such Tax Indemnitee solely as a result of its participation in the transactions contemplated by the Operative Documents and the FILOT Lease (giving effect to its assignment to the Owner Lessor pursuant to the Assignment Agreement) and not as a result of any action or any Related Party of inaction by such Tax Indemnitee; (iv) Taxes in the nature of capital gain, accumulated earnings, personal holding company, excess profits, succession or estate, minimum, alternative minimum, preference, franchise, conduct of business and other similar taxes (other than franchise tax imposed by the State of Illinois upon the Owner Participant, the Owner Lessor or their respective Affiliates under the Business Corporation Act of 1983, as amended, or any successor legislation thereto); (v) ; Taxes imposed on a Tax Indemnitee that arise out of, or are caused by, any act or omission of such Tax Indemnitee (or any Related Party thereof) that is expressly prohibited by any Operative Document or by arising from a breach by such Tax Indemnitee (or any Related Party thereof) of any of its representations, warranties or covenants under any Operative Document except to the extent attributable to any breach by the Facility Lessee or any other Calpine Party of any covenant, representation or warranty contained in any Operative Document; ; Taxes (viA) Taxes arising out of, or caused by, that are attributable to any voluntary direct or indirect assignment, sale, transfer or other voluntary disposition, disposition or any an involuntary direct or indirect transfer or disposition resulting from arising out of or caused by a bankruptcy or similar proceeding for relief of debtors in which such Tax Indemnitee is a debtor, by (debtor or a foreclosure by a creditor ofof (1) (A) in the case of the Owner Lessor or the Owner Participant, the Owner Participant of any all or part of its Beneficial Member Interest or Undivided Interest, (B2) in the case of the Owner Lessor or the Owner Participant, the Owner Lessor of all or any part of its interest in the Facility or the Facility SiteSite (other than to a successor Lessor Manager), or (C3) in the Lease case of the Indenture Trustee, the Indenture Trustee of any interest in the Lessor Notes Lease Debt or the Indenture Estate Estate, or (4) in the case of the Owner Lessor or the Owner Participant any direct or indirect interest in the Owner Lessor or the Owner Participant, including by reason of an election made pursuant to Section 338 of the Code, in each case to the extent imposed by reason of any transfer described in this clause (v)(A), or (B) to the extent that, under law in effect on the date of the transfer such Taxes exceed the amount of Taxes that would be indemnified hereunder had there been no such assignment, sale, transfer or other voluntary disposition, unless (i) such transfer or disposition occurs during the continuance of a Lease Event of Default, Default or (ii) such transfer or disposition is required under, or occurs otherwise pursuant to, to the Facility Lessee's exercise of its rights under the Operative Documents and the price paid is other than Fair Market Sales Value; (vii) Taxes arising in connection with Owner Participant’s Liens or Owner Lessor’s Liens; (viii) Taxes imposed on any assignee or successor-in-interest to a Tax Indemnitee to the extent any such Taxes exceed the Taxes that would have been imposed had no assignment or transfer taken place determined under the law as in effect on the date of transferDocuments; provided that this exclusion shall not apply with respect to any initial syndication of interests in the computation of the gross-up amounts necessary Owner Participant accomplished prior to make a payment December 29, 2001; Taxes imposed on an After-Tax Basis, nor to a transferee, assignee or successor in interest that acquires the interest of a Tax Indemnitee pursuant that would not have been imposed but for the creation or existence of any Owner Lessor's Lien or Owner Participant's Lien attributable to a transfer or disposition in connection with the exercise of remedies during the continuance of a Lease Event of Default; (ix) such Tax Indemnitee; Taxes that are included as a part of Transaction Costs; (x) the cost of the Facility; Taxes imposed on, on the Lessor Manager or the Indenture Trustee that are based on, on or measured by any the fees or other compensation that any Owner Trustee received by the Lessor Manager or the Lease Indenture Trustee receives for its services; (xi) any U.S. federal income taxes, including with acting in their respective capacities. With respect to the Owner Participant, Taxes for which NRG the Facility Lessee is obligated to indemnify the Owner Participant under the Tax Indemnity Agreement (or which are expressly excluded from indemnification thereunder); ; Taxes that are imposed on a Tax Indemnitee (xii) other than with respect to the Certificateholders, the Lease Indenture Trustee and the Pass Through Trustee or any Related Party in respect of any thereof (a “Lender Certificateholder Indemnitee”), Taxes ) resulting from the Owner Lessor not being treated as a grantor trust or a nonentity other conduit entity for federal, state or local income tax purposes; (xiii) , but only to the extent such Taxes exceed Taxes indemnified hereunder that otherwise would have been imposed and are otherwise indemnifiable; Taxes imposed on a Tax Indemnitee that are attributable to the failure of any such Tax Indemnitee to comply with certification, information, documentation, reporting or other similar requirements concerning the nationality, residence, identity, identity or connection with the jurisdiction imposing such Taxes or other similar mattersTaxes; provided that the foregoing exclusion shall only apply if such compliance is required by statute or regulation of the jurisdiction imposing such Taxes as a precondition to relief or exemption from or reduction in such Taxes, such Tax Indemnitee is eligible and obligated to comply with such requirement and requirement, the Facility Lessee shall have been given such Tax Indemnitee timely written notice of such requirement by NRG; (xiv) Taxes imposed on a and the Tax Indemnitee where the Tax Indemnitee’s breach shall have determined in good faith that compliance with any such requirement shall not result in any identified non-immaterial adverse effect to its interests or to those of its contest obligations Affiliates; Taxes consisting of interest, penalties, additions to tax or fines resulting from a failure of such Tax Indemnitee to properly and timely file returns as required by a taxing authority unless such failure is attributable to the Facility Lessee not providing information that it is expressly required to provide under Section 12.2(g) effectively precludes NRG’s ability to contest the Taxes; (xv) Operative Documents; Taxes imposed on any Tax Indemnitee resulting from an amendment, modification, supplement to or waiver to of any provision of, any Operative Document which amendment, modification, supplement or waiver was not requested by Midwest or NRG consented to by the Facility Lessee, and as to which Midwest or NRG the Facility Lessee is not a party and the Tax Indemnitee (or, in the case of the Owner Participant, the Facility Owner Lessor if acting at the express direction of the Owner ParticipantParticipant or any Related Party) is a party unless party, provided that this exclusion shall not apply if such amendment, modification, supplement or waiver (A) was required by applicable law or the Operative Documents, (B) may be necessary or appropriate to, and is in conformity with, any amendment, modification, supplement or waiver amendment to any Operative Document agreed to requested by Midwest or NRG the Facility Lessee in writing, or (C) is made while was expressly consented to by a Lease Event of Default shall have occurred and be continuing; (xvi) Calpine Party in writing; Taxes imposed under as a result of, or in connection with, any "prohibited transaction," within the meaning of Section 4975 of the Code, Section 406 of ERISA or any comparable laws of any governmental authority to the extent Governmental Entity, engaged in by any Tax Indemnitee (which for this purpose shall include any ERISA Affiliate thereof) resulting from action the breach by such Tax Indemnitee other than, of any of its representations or warranties contained in the case Section 3.4(g) or Section 8.2 of the Owner Participant, the taking of any action at the request or direction of NRG; (xvii) Participation Agreement; Taxes imposed to the extent such Taxes result from the Tax Indemnitee (and in the case of the Owner Lessor, only if acting at the written direction of the Owner Participant) being organized under the laws of a jurisdiction other than the United States or any State thereof (other than, in the case of a Lender Indemnitee, such Taxes which did would not exist under law in effect on the date such Lender Indemnitee became a party to this transaction); (xviii) Any Taxes have been imposed on a Tax Indemnitee to the extent if such Tax Indemnitee were a United States Person; and Taxes imposed that such taxes would not have been imposed on a Tax Indemnitee but for the activities in the taxing jurisdiction of such Tax Indemnitee or any Affiliate thereof unrelated to the transactions contemplated hereby; (xix) by the Operative Documents other than Taxes imposed on a Tax Indemnitee that are or are in the 60 nature of interestsales, penaltiesuse, fines and additions to tax rental or license taxes or value added taxes (i) payable as a result of such Tax Indemnitee’s failure to file, in a procedurally proper manner and on a timely basis, any tax reports, returns or statements as to which NRG has timely notified such Tax Indemnitee in writing of the requirement to file, unless such failure is otherwise caused by the failure of NRG to fulfill its obligations, if any, with respect to such return (including provision of information sufficient to enable such Tax Indemnitee to file such report, return or statement), or (ii) except to the extent not attributable to value added taxes are imposed in clear and direct substitution for income taxes) or resulting from Taxes for which an indemnity is provided hereunder; and (xx) Taxes for as long as such Taxes are being contested pursuant to the contest provisions contained in Section 12.2(g)property taxes.

Excluded Taxes. The indemnity provided for in paragraph (aSection 21.1(a) above shall not extend to any Tax that is attributable to or arises as a result of any of the following Taxes (the “Excluded Taxes”): (i) Taxes imposed on, based on or measured by gross or net (A) U.S. federal income or receipts or capital or net worth taxes (other than sales, use, property, ad valorem, rental, stamp, transfer, excise, license and value added taxes, and other than franchise tax imposed by the State of Illinois upon the Owner Participant, the Owner Lessor or their respective Affiliates under the Business Corporation Act of 1983, as amended, or any successor legislation thereto); (ii) Taxes attributable to any period after expiration or other termination of the Facility Lease and, where required by the Facility Lease, return of the Facility to the Owner Lessor or its designee in accordance with the Facility Lease (or, in the case of the Lease Indenture Trustee, after the repayment of the Lessor Notes); (iii) Taxes imposed on a Tax Indemnitee attributable to the gross negligence or willful misconduct of such Tax Indemnitee or any Related Party of such Tax Indemnitee; (iv) including Taxes in the nature of capital gain, accumulated earnings, personal holding company, excess profits, succession or estate, minimum, alternative minimum, preference, franchise, conduct of business minimum and other similar taxes taxes), (B) Taxes imposed under Article 9-A of the New York State Tax Law or Title 11, Chapters 5 (Unincorporated Business Tax) or 6, Subchapter 2 (General Corporation Tax) of the Administrative Code of the City of New York (“New York Taxes”) or any Taxes imposed in lieu thereof to the extent such Taxes imposed in lieu thereof are not in excess of the New York Taxes assumed to be owed by the Owner Participant on an annual basis with respect to the transactions contemplated by the Operative Documents and set forth on Schedule 9.2(b)(i) to the Participation Agreement, and (C) Taxes other than franchise tax (x) U.S. federal income taxes and (y) Taxes imposed by the State of Illinois upon New York or any governmental or taxing authority thereof or therein, provided that this clause (C) shall not apply to any Taxes that would not have been imposed but for (w) the Owner Participantlocation of the Facility or any portion thereof (including any Component) in the jurisdiction imposing such Taxes, (x) the execution and delivery of the Operative Documents or the Facility Sublease in such jurisdiction, (y) the identity, organization, incorporation or presence in such jurisdiction of the Sublessee and/or (z) the making of any payment under the Operative Documents or under the Facility Sublease by or on behalf of the Sublessee from within such jurisdiction; (ii) (A) Taxes attributable to any period after expiration or other termination of the Facility Lease or the Facility Sublease and surrender of the Facility to the Sublessor, the Owner Lessor or their respective Affiliates under the Business Corporation Act successors of 1983either and, as amendedto Taxes in respect of the payment of Sublease Rent, after the payment of all Sublease Rent, (B) Taxes attributable to any period ending prior to the Sublease Closing Date, and (C) with respect to any Straddle Period, Taxes allocated to the portion of the Straddle Period deemed to end on or before the Sublease Closing Date on the basis of an interim closing of the books, except that Taxes (such as real property Taxes) imposed on a periodic basis shall be allocated on a daily basis; (iii) Taxes imposed on the Tax Indemnitee attributable to the fraud, gross negligence or willful misconduct of the Tax Indemnitee or any successor legislation theretoAffiliate thereof (other than fraud, gross negligence or willful misconduct imputed to the Tax Indemnitee or any Affiliate thereof by reason of its participation in the transactions contemplated by the Operative Documents or the Facility Sublease); (iv) Taxes in the nature of succession, inheritance, estate and other similar taxes; (v) Taxes imposed on a the Tax Indemnitee that arise out of, or are caused by, attributable to (A) any act or omission of such Tax Indemnitee (or any Related Party thereofthereto) that is expressly prohibited (or, in the case of a failure to act, required to be performed) by the Operative Documents, any document or instrument in connection with the Facility and related to any Operative Document to which the Tax Indemnitee is a party or by the Facility Sublease or (B) a breach by such the Tax Indemnitee (or any Related Party thereofthereto) or the inaccuracy of any of its representations, warranties or covenants under any Operative DocumentDocument or under the Facility Sublease, unless attributable to the breach by the Sublessee of any of its obligations or representations under any Operative Document or under the Facility Sublease; (vi) Taxes arising out of, or caused by, any voluntary assignment, sale, transfer or other voluntary disposition, or any involuntary transfer or disposition resulting from a bankruptcy or similar proceeding for relief of debtors in which such Tax Indemnitee is a debtor, by (or a foreclosure by a creditor of) (A) the Owner Participant of any of its Beneficial Interest, (B) the Owner Lessor of all or any of its interest in the Facility or the Facility Site, or (C) the Lease Indenture Trustee of any interest in the Lessor Notes or the Indenture Estate unless (i) such transfer or disposition occurs during the continuance of a Lease Event of Default, or (ii) such transfer or disposition is required under, or occurs pursuant to, the Operative Documents and the price paid is other than Fair Market Sales Value; (vii) Taxes arising in connection with Owner Participant’s Liens or Owner Lessor’s Liens; (viii) Taxes imposed on any assignee or successor-in-interest to a the Tax Indemnitee (including any transfer by merger, consolidation, liquidation, reorganization or otherwise by operation of law) to the extent any such Taxes exceed the Taxes that would have been imposed had no assignment or transfer taken place determined under the law as in effect on the date of the transfer; provided that this exclusion shall not apply to the computation for purposes of the determining gross-up amounts necessary and payments required to make a payment be made on an After-Tax Basis, nor to a transferee, assignee or successor in interest that acquires the interest of a Tax Indemnitee pursuant to a transfer or disposition in connection with the exercise of remedies during the continuance of a Lease Event of Default; (ix) Taxes that are included as a part of Transaction Costs; (xvii) Taxes imposed on, based on, or measured by any compensation that any Owner Trustee or on the Lease Indenture Trustee receives for its services; (xi) any U.S. federal income taxes, including with respect Tax Indemnitee attributable to the Owner Participant, Taxes for which NRG is obligated to indemnify the Owner Participant under the Tax Indemnity Agreement (or which are expressly excluded from indemnification thereunder); (xii) other than with respect to the Certificateholders, the Lease Indenture Trustee and the Pass Through Trustee Indemnitee’s or any Related Party in respect of any thereof (a “Lender to such Tax Indemnitee”), Taxes resulting from the Owner Lessor not ’s being treated as other than a grantor trust or a nonentity for federal, state or local income tax purposes;United States Person. (xiiiviii) Taxes attributable to the failure of any the Tax Indemnitee or any Related Party thereto to comply on a timely basis with certification, information, documentation, reporting or other similar requirements concerning the nationality, residence, identity, connection with the jurisdiction imposing such Taxes or other similar mattersrequirements; provided that the foregoing this exclusion shall only apply if such Tax Indemnitee or Related Party is eligible and obligated to comply with such requirement and shall have been given timely written notice of such requirement by NRGthe Sublessee; (xivix) Taxes imposed on a the Tax Indemnitee where to the extent that such Tax Indemnitee’s breach of its contest obligations under Section 12.2(g21.1(g) effectively precludes NRGthe Sublessee’s ability to contest the Taxes; (xvx) Taxes imposed on any the Tax Indemnitee resulting from an amendment, modification, supplement or waiver to any Operative Document which was not requested by Midwest or NRG and as to which Midwest or NRG is not a party and the Tax Indemnitee (or, in the case of the Owner Participant, the Facility Lessor if acting at the express direction of the Owner Participant) is a party Sublessee unless such amendment, modification, supplement or waiver (A) was required by applicable law Applicable Law or the Operative Documents, (B) may be is necessary or appropriate to, and is in conformity with, to conform with any amendment, modification, supplement or waiver to any Operative Document agreed to requested by Midwest or NRG the Sublessee in writing, or (C) is made while a Lease Sublease Event of Default shall have occurred and be continuing; (xvixi) Taxes imposed under relating to Section 4975 of the Code, Section 406 Title I of ERISA or any comparable laws of any governmental authority Similar Law to the extent resulting from action attributable to a breach by such the Tax Indemnitee other than, of its representations and/or covenants in the case Section 3.4(g) or 7.8 of the Owner ParticipantParticipation Agreement, Section 6.8 or 7.2 of the taking OP Guaranty, Section 4.3 of the Certificate Purchase Agreement or the Certificates (including in respect of any action at the request or direction of NRGbeneficial interest therein), as applicable; (xviixii) Taxes imposed or collected under Section 1441 through 1446 of the Code; (xiii) Penalties, additions to the extent such Taxes result from tax or interest imposed on the Tax Indemnitee attributable to the Tax Indemnitee’s or a Related Party’s failure (and in A) to comply with the case requirements imposed on it under Section 6011, 6111, or 6112 of the Owner Lessor, only if acting at Code or the written direction of Treasury Regulations promulgated thereunder or (B) to timely file returns as required by a taxing authority unless such failure to timely file returns is attributable to the Owner Participant) being organized Sublessee’s not providing information that it is expressly required to provide under the laws Facility Sublease or otherwise breaching any of a jurisdiction other than its obligations under the United States or any State thereof (other than, in the case of a Lender Indemnitee, such Taxes which did not exist under law in effect on the date such Lender Indemnitee became a party to this transaction)Facility Sublease; (xviii) Any Taxes imposed on a Tax Indemnitee to the extent that such taxes would not have been imposed but for the activities of such Tax Indemnitee unrelated to the transactions contemplated hereby; (xixxiv) Taxes imposed on the Sublessor or any Related Party thereto as a result of the Sublessor’s being treated as other than a disregarded entity or pass through entity for tax purposes; (xv) Taxes imposed on the Tax Indemnitee with respect to the employees of the Tax Indemnitee in the nature of interest, penalties, fines and additions to tax a payroll tax; (ixvi) payable Taxes imposed on the Tax Indemnitee as a result of such Tax Indemnitee’s failure to filethe transfer, in a procedurally proper manner and on a timely basis, any tax reports, returns delivery or statements as to which NRG has timely notified such Tax Indemnitee in writing recordation of the requirement to fileOperative Documents or the Facility Sublease occurring on the Sublease Closing Date; (xvii) New York State and New York City sales Taxes, unless such failure is otherwise caused by the failure payment of NRG to fulfill its obligations, if any, with respect to such return (including provision of information sufficient to enable such Tax Indemnitee to file such report, return or statement), or (ii) which has been contractually allocated to the extent not attributable Sublessor pursuant to or resulting from Taxes for which an indemnity is provided hereunderSection 23.12 hereof; and (xxxviii) Taxes arising out of, or caused by, any voluntary assignment, sale, transfer or other disposition (direct or indirect) or any involuntary assignment, sale, transfer or other disposition (direct or indirect) resulting from a bankruptcy or similar proceeding for as long as relief of debtors in which the Tax Indemnitee or a Related Party thereto is a debtor or a foreclosure by a creditor of such Taxes are Tax Indemnitee or Related Party by the Sublessor of all or any of its interest in the Facility, the Facility Site, or any Component or portion thereof or interest therein. provided, however, that no Tax that is being contested in good faith in an appropriate proceeding shall be payable (except as may be required to be paid pursuant to the contest provisions contained in Section 12.2(g)21.1(c) below) while such proceeding is pending or subject to any appeal pending a final judgment.

Excluded Taxes. The indemnity provided for in paragraph (a) above shall not extend to any of the following Taxes (the “"Excluded Taxes”): (i) "): Taxes imposed by the United States federal government or any state or local government, any political subdivision of any of the foregoing, imposed on, based on or measured by gross or net income or receipts or income, receipts, capital gain, capital or net worth worth, or conduct of business (other than than, in each case, Taxes that are or are in the nature of sales, use, property, ad valorem, rental, stamplicense, transfer, excise, license and value added (to the extent value added taxes are not imposed in clear and direct substitution for income taxes) or property taxes) ("Income Taxes"), including any such Taxes collected by way of withholding, minimum or alternative minimum taxes, and franchise taxes; provided that this exclusion (i) shall not affect any express requirement that payments be made on an "after-tax" basis; Taxes imposed on a Tax Indemnitee other than franchise tax imposed by the State of Illinois upon the Owner Participant, the Owner Lessor or their respective Affiliates under the Business Corporation Act of 1983, as amended, or any successor legislation thereto); (ii) Taxes a Certificateholder Indemnitee that are attributable to any period act, event or omission by such Tax Indemnitee that occurs after expiration or other termination of the Facility Lease and, where required by the Facility Lease, return and surrender of the Facility Undivided Interest to the Owner Lessor or its designee successors (or in the case of a Certificateholder Indemnitee, Taxes imposed for any period after the repayment of the Lease Debt) in accordance with the Facility Lease Lease, (as opposed to any act, event or omission occurring prior to or simultaneous with such expiration, termination or surrender (or, in the case of the a Certificateholder Indemnitee, such repayment)), provided that this exclusion shall not apply so long as a Lease Indenture Trustee, after the repayment Event of the Lessor Notes); (iii) Default shall have occurred and be continuing; Taxes imposed on a Tax Indemnitee that are attributable to the gross negligence or willful misconduct of such Tax Indemnitee, unless such negligence or misconduct is imputed to such Tax Indemnitee solely as a result of its participation in the transactions contemplated by the Operative Documents and the FILOT Lease (giving effect to its assignment to the Owner Lessor pursuant to the Assignment Agreement) and not as a result of any action or any Related Party of inaction by such Tax Indemnitee; (iv) Taxes in the nature of capital gain, accumulated earnings, personal holding company, excess profits, succession or estate, minimum, alternative minimum, preference, franchise, conduct of business and other similar taxes (other than franchise tax imposed by the State of Illinois upon the Owner Participant, the Owner Lessor or their respective Affiliates under the Business Corporation Act of 1983, as amended, or any successor legislation thereto); (v) ; Taxes imposed on a Tax Indemnitee that arise out of, or are caused by, any act or omission of such Tax Indemnitee (or any Related Party thereof) that is expressly prohibited by any Operative Document or by arising from a breach by such Tax Indemnitee (or any Related Party thereof) of any of its representations, warranties or covenants under any Operative Document except to the extent attributable to any breach by the Facility Lessee or any other Calpine Party of any covenant, representation or warranty contained in any Operative Document; (vi; Taxes(A) Taxes arising out of, or caused by, that are attributable to any voluntary direct or indirect assignment, sale, transfer or other voluntary disposition, disposition or any an involuntary direct or indirect transfer or disposition resulting from arising out of or caused by a bankruptcy or similar proceeding for relief of debtors in which such Tax Indemnitee is a debtor, by (debtor or a foreclosure by a creditor ofof (1) (A) in the case of the Owner Lessor or the Owner Participant, the Owner Participant of any all or part of its Beneficial Member Interest or Undivided Interest, (B2) in the case of the Owner Lessor or the Owner Participant, the Owner Lessor of all or any part of its interest in the Facility or the Facility SiteSite (other than to a successor Lessor Manager), or (C3) in the Lease case of the Indenture Trustee, the Indenture Trustee of any interest in the Lessor Notes Lease Debt or the Indenture Estate Estate, or (4) in the case of the Owner Lessor or the Owner Participant any direct or indirect interest in the Owner Lessor or the Owner Participant, including by reason of an election made pursuant to Section 338 of the Code, in each case to the extent imposed by reason of any transfer described in this clause (v)(A), or (B) to the extent that, under law in effect on the date of the transfer such Taxes exceed the amount of Taxes that would be indemnified hereunder had there been no such assignment, sale, transfer or other voluntary disposition, unless (i) such transfer or disposition occurs during the continuance of a Lease Event of Default, Default or (ii) such transfer or disposition is required under, or occurs otherwise pursuant to, to the Facility Lessee's exercise of its rights under the Operative Documents and the price paid is other than Fair Market Sales Value; (vii) Taxes arising in connection with Owner Participant’s Liens or Owner Lessor’s Liens; (viii) Taxes imposed on any assignee or successor-in-interest to a Tax Indemnitee to the extent any such Taxes exceed the Taxes that would have been imposed had no assignment or transfer taken place determined under the law as in effect on the date of transferDocuments; provided that this exclusion shall not apply with respect to any initial syndication of interests in the computation of the gross-up amounts necessary Owner Participant accomplished prior to make a payment December 29, 2001; Taxes imposed on an After-Tax Basis, nor to a transferee, assignee or successor in interest that acquires the interest of a Tax Indemnitee pursuant that would not have been imposed but for the creation or existence of any Owner Lessor's Lien or Owner Participant's Lien attributable to a transfer or disposition in connection with the exercise of remedies during the continuance of a Lease Event of Default; (ix) such Tax Indemnitee; Taxes that are included as a part of Transaction Costs; (x) the cost of the Facility; Taxes imposed on, on the Lessor Manager or the Indenture Trustee that are based on, on or measured by any the fees or other compensation that any Owner Trustee received by the Lessor Manager or the Lease Indenture Trustee receives for its services; (xi) any U.S. federal income taxes, including with acting in their respective capacities. With respect to the Owner Participant, Taxes for which NRG the Facility Lessee is obligated to indemnify the Owner Participant under the Tax Indemnity Agreement (or which are expressly excluded from indemnification thereunder); ; Taxes that are imposed on a Tax Indemnitee (xii) other than with respect to the Certificateholders, the Lease Indenture Trustee and the Pass Through Trustee or any Related Party in respect of any thereof (a “Lender Certificateholder Indemnitee”), Taxes ) resulting from the Owner Lessor not being treated as a grantor trust or a nonentity other conduit entity for federal, state or local income tax purposes; (xiii) , but only to the extent such Taxes exceed Taxes indemnified hereunder that otherwise would have been imposed and are otherwise indemnifiable; Taxes imposed on a Tax Indemnitee that are attributable to the failure of any such Tax Indemnitee to comply with certification, information, documentation, reporting or other similar requirements concerning the nationality, residence, identity, identity or connection with the jurisdiction imposing such Taxes or other similar mattersTaxes; provided that the foregoing exclusion shall only apply if such compliance is required by statute or regulation of the jurisdiction imposing such Taxes as a precondition to relief or exemption from or reduction in such Taxes, such Tax Indemnitee is eligible and obligated to comply with such requirement and requirement, the Facility Lessee shall have been given such Tax Indemnitee timely written notice of such requirement by NRG; (xiv) Taxes imposed on a and the Tax Indemnitee where the Tax Indemnitee’s breach shall have determined in good faith that compliance with any such requirement shall not result in any identified non-immaterial adverse effect to its interests or to those of its contest obligations Affiliates; Taxes consisting of interest, penalties, additions to tax or fines resulting from a failure of such Tax Indemnitee to properly and timely file returns as required by a taxing authority unless such failure is attributable to the Facility Lessee not providing information that it is expressly required to provide under Section 12.2(g) effectively precludes NRG’s ability to contest the Taxes; (xv) Operative Documents; Taxes imposed on any Tax Indemnitee resulting from an amendment, modification, supplement to or waiver to of any provision of, any Operative Document which amendment, modification, supplement or waiver was not requested by Midwest or NRG consented to by the Facility Lessee, and as to which Midwest or NRG the Facility Lessee is not a party and the Tax Indemnitee (or, in the case of the Owner Participant, the Facility Owner Lessor if acting at the express direction of the Owner ParticipantParticipant or any Related Party) is a party unless party, provided that this exclusion shall not apply if such amendment, modification, supplement or waiver (A) was required by applicable law or the Operative Documents, (B) may be necessary or appropriate to, and is in conformity with, any amendment, modification, supplement or waiver amendment to any Operative Document agreed to requested by Midwest or NRG the Facility Lessee in writing, or (C) is made while was expressly consented to by a Lease Event of Default shall have occurred and be continuing; (xvi) Calpine Party in writing; Taxes imposed under as a result of, or in connection with, any "prohibited transaction," within the meaning of Section 4975 of the Code, Section 406 of ERISA or any comparable laws of any governmental authority to the extent Governmental Entity, engaged in by any Tax Indemnitee (which for this purpose shall include any ERISA Affiliate thereof) resulting from action the breach by such Tax Indemnitee other than, of any of its representations or warranties contained in the case Section 3.4(g) or Section 8.2 of the Owner Participant, the taking of any action at the request or direction of NRG; (xvii) Participation Agreement; Taxes imposed to the extent such Taxes result from the Tax Indemnitee (and in the case of the Owner Lessor, only if acting at the written direction of the Owner Participant) being organized under the laws of a jurisdiction other than the United States or any State thereof (other than, in the case of a Lender Indemnitee, such Taxes which did would not exist under law in effect on the date such Lender Indemnitee became a party to this transaction); (xviii) Any Taxes have been imposed on a Tax Indemnitee to the extent if such Tax Indemnitee were a United States Person; and Taxes imposed that such taxes would not have been imposed on a Tax Indemnitee but for the activities in the taxing jurisdiction of such Tax Indemnitee or any Affiliate thereof unrelated to the transactions contemplated hereby; (xix) by the Operative Documents other than Taxes imposed on a Tax Indemnitee that are or are in the nature of interestsales, penaltiesuse, fines and additions to tax rental or license taxes or value added taxes (i) payable as a result of such Tax Indemnitee’s failure to file, in a procedurally proper manner and on a timely basis, any tax reports, returns or statements as to which NRG has timely notified such Tax Indemnitee in writing of the requirement to file, unless such failure is otherwise caused by the failure of NRG to fulfill its obligations, if any, with respect to such return (including provision of information sufficient to enable such Tax Indemnitee to file such report, return or statement), or (ii) except to the extent not attributable to value added taxes are imposed in clear and direct substitution for income taxes) or resulting from Taxes for which an indemnity is provided hereunder; and (xx) Taxes for as long as such Taxes are being contested pursuant to the contest provisions contained in Section 12.2(g)property taxes.

Excluded Taxes. The indemnity provided for in paragraph (aLessee shall have no obligation under Section 21.1(a) above shall not extend to any of the following Taxes (the “Excluded Taxes”):indemnify an Indemnitee for: (i) Taxes any Tax imposed on, based on or measured by gross or the total net income or receipts or capital or net worth of such Indemnitee except to the extent that such Tax would not have been payable in the absence of (other than salesA) the registration, use, property, ad valorem, rental, stamp, transfer, excise, license and value added taxes, and presence or other than franchise tax imposed by the State connection of Illinois upon the Owner Participant, the Owner Lessor any Item of Equipment in or their respective Affiliates under the Business Corporation Act of 1983, as amendedwith, or any successor legislation thereto)act or omission of Lessee or any Affiliate, agent, representative or contractor of Lessee or any Person using or having possession, custody or control of any Item of Equipment in, the jurisdiction imposing such Tax, (B) the inaccuracy or breach of any of the representations, warranties, covenants or agreements of Lessee in the Operative Documents, or (C) an Event of Default; (ii) Taxes attributable any Tax imposed on or with respect to any period after expiration sale or other termination transfer by such Indemnitee of the Facility Lease and, where required by the Facility Lease, return of the Facility to the Owner Lessor or its designee in accordance with the Facility Lease (or, such Indemnitee’s interest in the case Aircraft pursuant to Section 25.2, provided that the exclusion in this clause (ii) shall not apply to any sale or transfer that occurs (A) in connection with or as a result of the Lease Indenture Trusteea Default, after the repayment an Event of the Lessor Notes)Default, an Event of Loss, or any maintenance, repair, overhaul, pooling, interchange, exchange, removal, replacement, substitution, modification, improvement, or alteration of any Item of Equipment, or (B) at Lessee’s request, or (C) pursuant to a requirement in any Operative Document or any applicable Law; (iii) Taxes imposed on a any Tax Indemnitee attributable to the extent that such Indemnitee’s liability for such Tax is caused directly by, and would not have been incurred but for, the gross negligence or willful misconduct of such Tax Indemnitee or any Related Party of such Tax Indemnitee;; or (iv) Taxes in the nature case of capital gaina transferee of Lessor’s interest in the Aircraft pursuant to Section 25.2, accumulated earnings, personal holding company, excess profits, succession or estate, minimum, alternative minimum, preference, franchise, conduct of business and other similar taxes (other than franchise tax imposed by the State of Illinois upon the Owner Participant, the Owner Lessor or their respective Affiliates under the Business Corporation Act of 1983, as amended, or any successor legislation thereto); (v) Taxes imposed on a Tax Indemnitee that arise out of, the transferee or are caused by, any act or omission of such Tax Indemnitee (or any Related Party thereof) that is expressly prohibited by any Operative Document or by a breach by such Tax Indemnitee (or any Related Party thereof) of any of its representations, warranties or covenants under any Operative Document; (vi) Taxes arising out of, or caused by, any voluntary assignment, sale, transfer or other voluntary disposition, or any involuntary transfer or disposition resulting from a bankruptcy or similar proceeding for relief of debtors in which such Tax Indemnitee is a debtor, by (or a foreclosure by a creditor of) (A) on payments to the Owner Participant of any of its Beneficial Interest, (B) the Owner Lessor of all or any of its interest in the Facility or the Facility Site, or (C) the Lease Indenture Trustee of any interest in the Lessor Notes or the Indenture Estate unless (i) such transfer or disposition occurs during the continuance of a Lease Event of Default, or (ii) such transfer or disposition is required under, or occurs pursuant to, the Operative Documents and the price paid is other than Fair Market Sales Value; (vii) Taxes arising in connection with Owner Participant’s Liens or Owner Lessor’s Liens; (viii) Taxes imposed on any assignee or successor-in-interest to a Tax Indemnitee transferee to the extent any such Taxes exceed the Taxes that would have been imposed had no assignment or transfer taken place determined that, under the law as applicable Law in effect on the date of transfer; the transfer to such transferee, the amount of such Taxes exceeds the amount of Taxes that would have *** Material has been omitted pursuant to a request for confidential treatment and filed separately with the SEC been imposed on the transferor to such transferee or on payments to such transferor and indemnified against hereunder if such transfer had not occurred, provided that the exclusion in this exclusion clause (iv) shall not apply to the computation of the gross-up amounts necessary to make a payment on an After-Tax Basis, nor to a transferee, assignee or successor in interest transferee Lessor that acquires its interest in the interest of a Tax Indemnitee Aircraft pursuant to a transfer or disposition in connection with the exercise of remedies during the continuance of a Lease an Event of Default; (ix) Taxes that are included as a part of Transaction Costs; (x) Taxes imposed on, based on, or measured by any compensation that any Owner Trustee or the Lease Indenture Trustee receives for its services; (xi) any U.S. federal income taxes, including with respect to the Owner Participant, Taxes for which NRG is obligated to indemnify the Owner Participant under the Tax Indemnity Agreement (or which are expressly excluded from indemnification thereunder); (xii) other than with respect to the Certificateholders, the Lease Indenture Trustee and the Pass Through Trustee or any Related Party in respect of any thereof (a “Lender Indemnitee”), Taxes resulting from the Owner Lessor not being treated as a grantor trust or a nonentity for federal, state or local income tax purposes; (xiii) Taxes attributable to the failure of any Tax Indemnitee to comply with certification, information, documentation, reporting or other similar requirements concerning the nationality, residence, identity, connection with the jurisdiction imposing such Taxes or other similar matters; provided that the foregoing exclusion shall only apply if such Tax Indemnitee is eligible and obligated to comply with such requirement and shall have been given timely written notice of such requirement by NRG; (xiv) Taxes imposed on a Tax Indemnitee where the Tax Indemnitee’s breach of its contest obligations under Section 12.2(g) effectively precludes NRG’s ability to contest the Taxes; (xv) Taxes imposed on any Tax Indemnitee resulting from an amendment, modification, supplement or waiver to any Operative Document which was not requested by Midwest or NRG and as to which Midwest or NRG is not a party and the Tax Indemnitee (or, in the case of the Owner Participant, the Facility Lessor if acting at the express direction of the Owner Participant) is a party unless such amendment, modification, supplement or waiver (A) was required by applicable law or the Operative Documents, (B) may be necessary or appropriate to, and is in conformity with, any amendment, modification, supplement or waiver to any Operative Document agreed to by Midwest or NRG in writing, or (C) is made while a Lease Event of Default shall have occurred and be continuing; (xvi) Taxes imposed under Section 4975 of the Code, Section 406 of ERISA or any comparable laws of any governmental authority to the extent resulting from action by such Tax Indemnitee other than, in the case of the Owner Participant, the taking of any action at the request or direction of NRG; (xvii) Taxes imposed to the extent such Taxes result from the Tax Indemnitee (and in the case of the Owner Lessor, only if acting at the written direction of the Owner Participant) being organized under the laws of a jurisdiction other than the United States or any State thereof (other than, in the case of a Lender Indemnitee, such Taxes which did not exist under law in effect on the date such Lender Indemnitee became a party to this transaction); (xviii) Any Taxes imposed on a Tax Indemnitee to the extent that such taxes would not have been imposed but for the activities of such Tax Indemnitee unrelated to the transactions contemplated hereby; (xix) Taxes imposed on a Tax Indemnitee in the nature of interest, penalties, fines and additions to tax (i) payable as a result of such Tax Indemnitee’s failure to file, in a procedurally proper manner and on a timely basis, any tax reports, returns or statements as to which NRG has timely notified such Tax Indemnitee in writing of the requirement to file, unless such failure is otherwise caused by the failure of NRG to fulfill its obligations, if any, with respect to such return (including provision of information sufficient to enable such Tax Indemnitee to file such report, return or statement), or (ii) to the extent not attributable to or resulting from Taxes for which an indemnity is provided hereunder; and (xx) Taxes for as long as such Taxes are being contested pursuant to the contest provisions contained in Section 12.2(g).

Excluded Taxes. The indemnity provided for in paragraph (a) above shall not extend to any of the following Taxes (the “Excluded Taxes”"EXCLUDED TAXES"): (i) Taxes imposed by the United States federal government, or Taxes imposed on, based on or measured by gross or net income or receipts or capital or net worth (in each case, other than Taxes that are or are in the nature of sales, use, 60 property, ad valorem, rental, stamp, transfer, excise, license license, and value added taxes, and other than franchise tax imposed taxes or Taxes collected by the State of Illinois upon the Owner Participant, the Owner Lessor or their respective Affiliates withholding against payments under the Business Corporation Act of 1983, as amendedLease Indenture or the Lessor Notes or Taxes arising out of, or any successor legislation theretoin connection with or related to the matters described); (ii) Taxes attributable to any period after expiration or other termination of the Facility Lease and, where required by the Facility Lease, return of the Facility to the Owner Lessor or its designee in accordance with the Facility Lease (or, in the case of the Lease Indenture Trustee, after the repayment of the Lessor Notes) and not as a result of any act, event or omission occurring prior to or simultaneous with such expiration, termination or surrender (or in the case of the Noteholders, the Lease Indenture Trustee, the Lease Indenture Company or any Related Party in respect of any thereof (each, a "Lender Indemnitee"), such repayment), provided that this exclusion shall not apply so long as a Lease Event of Default shall have occurred and be continuing; (iii) Taxes imposed on a Tax Indemnitee attributable to the gross negligence or willful misconduct of such Tax Indemnitee or any Related Party of such Tax Indemnitee; (iv) Taxes in the nature of capital gain, accumulated earnings, personal holding company, excess profits, succession or estate, minimum, alternative minimum, preference, franchise, conduct of business and other similar taxes (in each case, other than franchise tax imposed Taxes that are or are in the nature of sales, use, property, ad valorem, rental, stamp, transfer, excise, license, and value added taxes or Taxes collected by the State of Illinois upon the Owner Participant, the Owner Lessor or their respective Affiliates withholding against payments under the Business Corporation Act of 1983, as amended, Lease Indenture or any successor legislation theretothe Lessor Notes); (v) Taxes imposed on a Tax Indemnitee that arise out of, or are caused by, any act or omission of such Tax Indemnitee (or any Related Party thereof) that is expressly prohibited by any Operative Document or by a breach by such Tax Indemnitee (or any Related Party thereof) of any of its representations, warranties or covenants under any Operative Document, except to the extent attributable to any acts or omissions of the Facility Lessee or any sublessee, transferee or assignee of the Facility Lessee; (vi) Taxes arising out of, or caused by, any voluntary assignment, sale, transfer or other voluntary disposition, or any involuntary transfer or disposition resulting from a bankruptcy or similar proceeding for relief of debtors in which such Tax Indemnitee is a debtor, by (or a foreclosure by a creditor of) (A) the Owner Participant of any of its Beneficial Lessor Membership Interest, (B) the Owner Lessor of all or any of its interest in the Facility or the Facility Site, or (C) the Lease Indenture Trustee Security Agent of any interest in the Lessor Notes or the Indenture Estate unless (i) such transfer or disposition occurs during the continuance of a Lease Event of Default, or (ii) such transfer or disposition is required under, or occurs pursuant to, the Operative Documents and the price paid is other than Fair Market Sales Value; (vii) in the case of a Tax Indemnitee that is the Owner Participant or a Related Party thereto, Taxes arising in connection with Owner Participant’s Participant Liens or in the case of a Tax Indemnitee that is the Owner Lessor’s Lessor or a Related Party thereto, Taxes arising in connection with Owner Lessor Liens; (viii) Taxes imposed on any assignee or successor-in-interest to a Tax Indemnitee to the extent any such Taxes exceed the Taxes that would have been imposed had no assignment or transfer taken place determined under the law as in effect on the date of transfer; provided that this exclusion shall not apply to the computation of the gross-up amounts necessary to make a payment on an After-Tax Basis, nor to a transferee, assignee or successor in interest that acquires the interest of a Tax Indemnitee pursuant to a an assignment, transfer or disposition in connection with the exercise of remedies during the continuance of a Material Lease Default or Lease Event of Default; (ix) Taxes that are properly included as a part of Transaction CostsExpenses; (x) Taxes imposed on, based on, or measured by any compensation that any Owner Trustee Manager, the Security Agent or the Lease Indenture Trustee receives for its services; (xi) [any U.S. federal income taxes, including including] with respect to the Owner Participant, Taxes U.S. federal income taxes for which NRG Xxxxx City is obligated to indemnify the Owner Participant under the Tax Indemnity Agreement (or which are expressly excluded from indemnification thereunder); (xii) other than with respect to the Certificateholders, the Lease Indenture Trustee and the Pass Through Trustee or any Related Party in respect of any thereof (a “Lender Indemnitee”), Taxes resulting from the Owner Lessor not being treated as a grantor trust trust, a nonentity or a nonentity pass-through or disregarded entity for federal, state or local income tax purposes; (xiii) Taxes attributable to the failure of any Tax Indemnitee to comply with certification, information, documentation, reporting or other similar requirements concerning the nationality, residence, identity, connection with the jurisdiction imposing such Taxes or other similar matters; provided that the foregoing exclusion shall only apply if such Tax Indemnitee is eligible and obligated under applicable law or the Operative Documents to comply with such requirement and shall have been given timely written notice of such requirement by NRGor on behalf of Xxxxx City; (xiv) Taxes imposed on a Tax Indemnitee where the Tax Indemnitee’s 's breach of its contest obligations under Section 12.2(gSECTION 10.2(g) effectively precludes NRG’s Xxxxx City's ability to contest the Taxes; (xv) Taxes imposed on any Tax Indemnitee resulting from an amendment, modification, supplement or waiver to any Operative Document which was not requested by Midwest or NRG Xxxxx City and as to which Midwest or NRG Xxxxx City is not a party and the Tax Indemnitee (or, in the case of the Owner Participant, the Facility Owner Lessor if acting at the express direction of the Owner Participant) is a party unless such amendment, modification, supplement or waiver (A) was required by 62 applicable law or the Operative Documents, (B) may be necessary or appropriate to, and is in conformity with, any amendment, modification, supplement or waiver to any Operative Document agreed to or requested by Midwest or NRG Xxxxx City in writing, or (C) is made while a Lease Event of Default shall have occurred and be continuing; (xvi) Taxes imposed under Section 4975 of the Code, Section 406 of ERISA or any comparable laws of any governmental authority to the extent resulting from action by any breach of any of the representations or warranties of such Tax Indemnitee other than, set forth in the case of the Owner Participant, the taking of any action at the request or direction of NRGSECTION 3.4(g) hereof; (xvii) Taxes imposed to the extent such Taxes result from the Tax Indemnitee (and in the case of the Owner Lessor, only if acting at the written direction of the Owner Participant) being organized under the laws of a jurisdiction other than the United States or any State thereof (other than, in the case of a Lender Indemnitee, such Taxes which did not exist under law in effect on the date such Lender Indemnitee became a party to this transaction); (xviii) Any Taxes (other than Taxes that are or are in the nature of sales, use, property, ad valorem, rental, stamp, transfer, excise, license and value added taxes or Taxes collected by withholding against payments under the Lease Indenture or the Lessor Notes) imposed on a Tax Indemnitee to the extent that such taxes would not have been imposed but for the activities of such Tax Indemnitee unrelated to the transactions contemplated hereby; (xix) Taxes imposed on a Tax Indemnitee in the nature of interest, penalties, fines and additions to tax (i) payable as a result of such Tax Indemnitee’s 's failure to file, in a procedurally proper manner and on a timely basis, any tax reports, returns or statements as to which NRG Xxxxx City has timely notified such Tax Indemnitee in writing of the requirement to file, unless such failure is otherwise caused by the failure of NRG Xxxxx City to fulfill its obligations, if any, with respect to such return (including provision of information sufficient to enable such Tax Indemnitee to file such report, return or statement), or (ii) to the extent not attributable to or resulting from Taxes for which an indemnity is provided hereunder; and (xx) Taxes for as long as such Taxes are being contested pursuant to the contest provisions contained in Section 12.2(gSECTION 10.2(g) (subject to the Tax Indemnitee's right to obtain a Tax Advance pursuant to SECTION 10.2(g)(iii)(5)).

Excluded Taxes. The indemnity provided for in paragraph (a) above shall not extend to any of the following Taxes (the “"Excluded Taxes”): (i) "): Taxes imposed by the United States federal government or any state or local government, any political subdivision of any of the foregoing, imposed on, based on or measured by gross or net income or receipts or income, receipts, capital gain, capital or net worth worth, or conduct of business (other than than, in each case, Taxes that are or are in the nature of sales, use, property, ad valorem, rental, stamplicense, transfer, excise, license and value added (to the extent value added taxes are not imposed in clear and direct substitution for income taxes) or property taxes) ("Income Taxes"), including any such Taxes collected by way of withholding, minimum or alternative minimum taxes, and franchise taxes; provided that this exclusion (i) shall not affect any express requirement that payments be made on an "after-tax" basis; Taxes imposed on a Tax Indemnitee other than franchise tax imposed by the State of Illinois upon the Owner Participant, the Owner Lessor or their respective Affiliates under the Business Corporation Act of 1983, as amended, or any successor legislation thereto); (ii) Taxes a Certificateholder Indemnitee that are attributable to any period act, event or omission by such Tax Indemnitee that occurs after expiration or other termination of the Facility Lease and, where required by the Facility Lease, return and surrender of the Facility Undivided Interest to the Owner Lessor or its designee successors (or in the case of a Certificateholder Indemnitee, Taxes imposed for any period after the repayment of the Lease Debt) in accordance with the Facility Lease Lease, (as opposed to any act, event or omission occurring prior to or simultaneous with such expiration, termination or surrender (or, in the case of the a Certificateholder Indemnitee, such repayment)), provided that this exclusion shall not apply so long as a Lease Indenture Trustee, after the repayment Event of the Lessor Notes); (iii) Default shall have occurred and be continuing; Taxes imposed on a Tax Indemnitee that are attributable to the gross negligence or willful misconduct of such Tax Indemnitee, unless such negligence or misconduct is imputed to such Tax Indemnitee solely as a result of its participation in the transactions contemplated by the Operative Documents and the FILOT Lease (giving effect to its assignment to the Owner Lessor pursuant to the Assignment Agreement) and not as a result of any action or any Related Party of inaction by such Tax Indemnitee; (iv) Taxes in the nature of capital gain, accumulated earnings, personal holding company, excess profits, succession or estate, minimum, alternative minimum, preference, franchise, conduct of business and other similar taxes (other than franchise tax imposed by the State of Illinois upon the Owner Participant, the Owner Lessor or their respective Affiliates under the Business Corporation Act of 1983, as amended, or any successor legislation thereto); (v) ; Taxes imposed on a Tax Indemnitee that arise out of, or are caused by, any act or omission of such Tax Indemnitee (or any Related Party thereof) that is expressly prohibited by any Operative Document or by arising from a breach by such Tax Indemnitee (or any Related Party thereof) of any of its representations, warranties or covenants under any Operative Document except to the extent attributable to any breach by the Facility Lessee or any other Calpine Party of any covenant, representation or warranty contained in any Operative Document; ; Taxes (viA) Taxes arising out of, or caused by, that are attributable to any voluntary direct or indirect assignment, sale, transfer or other voluntary disposition, disposition or any an involuntary direct or indirect transfer or disposition resulting from arising out of or caused by a bankruptcy or similar proceeding for relief of debtors in which such Tax Indemnitee is a debtor, by (debtor or a foreclosure by a creditor ofof (1) (A) in the case of the Owner Lessor or the Owner Participant, the Owner Participant of any all or part of its Beneficial Member Interest or Undivided Interest, (B2) in the case of the Owner Lessor or the Owner Participant, the Owner Lessor of all or any part of its interest in the Facility or the Facility SiteSite (other than to a successor Lessor Manager), or (C3) in the Lease case of the Indenture Trustee, the Indenture Trustee of any interest in the Lessor Notes Lease Debt or the Indenture Estate Estate, or (4) in the case of the Owner Lessor or the Owner Participant any direct or indirect interest in the Owner Lessor or the Owner Participant, including by reason of an election made pursuant to Section 338 of the Code, in each case to the extent imposed by reason of any transfer described in this clause (v)(A), or (B) to the extent that, under law in effect on the date of the transfer such Taxes exceed the amount of Taxes that would be indemnified hereunder had there been no such assignment, sale, transfer or other voluntary disposition, unless (i) such transfer or disposition occurs during the continuance of a Lease Event of Default, Default or (ii) such transfer or disposition is required under, or occurs otherwise pursuant to, to the Facility Lessee's exercise of its rights under the Operative Documents and the price paid is other than Fair Market Sales Value; (vii) Taxes arising in connection with Owner Participant’s Liens or Owner Lessor’s Liens; (viii) Taxes imposed on any assignee or successor-in-interest to a Tax Indemnitee to the extent any such Taxes exceed the Taxes that would have been imposed had no assignment or transfer taken place determined under the law as in effect on the date of transferDocuments; provided that this exclusion shall not apply with respect to any initial syndication of interests in the computation of the gross-up amounts necessary Owner Participant accomplished prior to make a payment December 29, 2001; Taxes imposed on an After-Tax Basis, nor to a transferee, assignee or successor in interest that acquires the interest of a Tax Indemnitee pursuant that would not have been imposed but for the creation or existence of any Owner Lessor's Lien or Owner Participant's Lien attributable to a transfer or disposition in connection with the exercise of remedies during the continuance of a Lease Event of Default; (ix) such Tax Indemnitee; Taxes that are included as a part of Transaction Costs; (x) the cost of the Facility; Taxes imposed on, on the Lessor Manager or the Indenture Trustee that are based on, on or measured by any the fees or other compensation that any Owner Trustee received by the Lessor Manager or the Lease Indenture Trustee receives for its services; (xi) any U.S. federal income taxes, including with acting in their respective capacities. With respect to the Owner Participant, Taxes for which NRG the Facility Lessee is obligated to indemnify the Owner Participant under the Tax Indemnity Agreement (or which are expressly excluded from indemnification thereunder); ; Taxes that are imposed on a Tax Indemnitee (xii) other than with respect to the Certificateholders, the Lease Indenture Trustee and the Pass Through Trustee or any Related Party in respect of any thereof (a “Lender Certificateholder Indemnitee”), Taxes ) resulting from the Owner Lessor not being treated as a grantor trust or a nonentity other conduit entity for federal, state or local income tax purposes; (xiii) , but only to the extent such Taxes exceed Taxes indemnified hereunder that otherwise would have been imposed and are otherwise indemnifiable; Taxes imposed on a Tax Indemnitee that are attributable to the failure of any such Tax Indemnitee to comply with certification, information, documentation, reporting or other similar requirements concerning the nationality, residence, identity, identity or connection with the jurisdiction imposing such Taxes or other similar mattersTaxes; provided that the foregoing exclusion shall only apply if such compliance is required by statute or regulation of the jurisdiction imposing such Taxes as a precondition to relief or exemption from or reduction in such Taxes, such Tax Indemnitee is eligible and obligated to comply with such requirement and requirement, the Facility Lessee shall have been given such Tax Indemnitee timely written notice of such requirement by NRG; (xiv) Taxes imposed on a and the Tax Indemnitee where the Tax Indemnitee’s breach shall have determined in good faith that compliance with any such requirement shall not result in any identified non-immaterial adverse effect to its interests or to those of its contest obligations Affiliates; Taxes consisting of interest, penalties, additions to tax or fines resulting from a failure of such Tax Indemnitee to properly and timely file returns as required by a taxing authority unless such failure is attributable to the Facility Lessee not providing information that it is expressly required to provide under Section 12.2(g) effectively precludes NRG’s ability to contest the Taxes; (xv) Operative Documents; Taxes imposed on any Tax Indemnitee resulting from an amendment, modification, supplement to or waiver to of any provision of, any Operative Document which amendment, modification, supplement or waiver was not requested by Midwest or NRG consented to by the Facility Lessee, and as to which Midwest or NRG the Facility Lessee is not a party and the Tax Indemnitee (or, in the case of the Owner Participant, the Facility Owner Lessor if acting at the express direction of the Owner ParticipantParticipant or any Related Party) is a party unless party, provided that this exclusion shall not apply if such amendment, modification, supplement or waiver (A) was required by applicable law or the Operative Documents, (B) may be necessary or appropriate to, and is in conformity with, any amendment, modification, supplement or waiver amendment to any Operative Document agreed to requested by Midwest or NRG the Facility Lessee in writing, or (C) is made while was expressly consented to by a Lease Event of Default shall have occurred and be continuing; (xvi) Calpine Party in writing; Taxes imposed under as a result of, or in connection with, any "prohibited transaction," within the meaning of Section 4975 of the Code, Section 406 of ERISA or any comparable laws of any governmental authority to the extent Governmental Entity, engaged in by any Tax Indemnitee (which for this purpose shall include any ERISA Affiliate thereof) resulting from action the breach by such Tax Indemnitee other than, of any of its representations or warranties contained in the case Section 3.4(g) or Section 8.2 of the Owner Participant, the taking of any action at the request or direction of NRG; (xvii) Participation Agreement; Taxes imposed to the extent such Taxes result from the Tax Indemnitee (and in the case of the Owner Lessor, only if acting at the written direction of the Owner Participant) being organized under the laws of a jurisdiction other than the United States or any State thereof (other than, in the case of a Lender Indemnitee, such Taxes which did would not exist under law in effect on the date such Lender Indemnitee became a party to this transaction); (xviii) Any Taxes have been imposed on a Tax Indemnitee to the extent if such Tax Indemnitee were a United States Person; and Taxes imposed that such taxes would not have been imposed on a Tax Indemnitee but for the activities in the taxing jurisdiction of such Tax Indemnitee or any Affiliate thereof unrelated to the transactions contemplated hereby; (xix) by the Operative Documents other than Taxes imposed on a Tax Indemnitee that are or are in the nature of interestsales, penaltiesuse, fines and additions to tax rental or license taxes or value added taxes (i) payable as a result of such Tax Indemnitee’s failure to file, in a procedurally proper manner and on a timely basis, any tax reports, returns or statements as to which NRG has timely notified such Tax Indemnitee in writing of the requirement to file, unless such failure is otherwise caused by the failure of NRG to fulfill its obligations, if any, with respect to such return (including provision of information sufficient to enable such Tax Indemnitee to file such report, return or statement), or (ii) except to the extent not attributable to value added taxes are imposed in clear and direct substitution for income taxes) or resulting from Taxes for which an indemnity is provided hereunder; and (xx) Taxes for as long as such Taxes are being contested pursuant to the contest provisions contained in Section 12.2(g)property taxes.

Excluded Taxes. The indemnity provided for in paragraph (a) above shall not extend to any Taxes (including any Taxes collected by withholding) to the extent attributable to, arising as a result of, or that would not have occurred but for any of the following Taxes (the “"Excluded Taxes”):"): -------------- (i) Taxes imposed on, based on or measured by gross or net income or receipts or capital or net worth (other than Taxes that are or are in the nature of sales, use, property, ad valorem, rental, stampvalue added, transfer, excise, ad valorem or license and value added taxes, and other than franchise tax imposed taxes or Taxes collected by the State of Illinois upon the Owner Participant, the Owner Lessor or their respective Affiliates withholding against payments under the Business Corporation Act of 1983, as amended, Lease Indenture or any successor legislation theretothe Lessor Notes); (ii) Taxes attributable to any period after expiration or other termination of the Facility Lease and, where required by the Facility Lease, return of the Facility to the Owner Lessor or its designee designee, in each case, in accordance with the Facility Lease (or, in the case of the Lease Indenture Trustee, after the repayment of the Lessor Notes); (iii) Taxes imposed on a Tax Indemnitee attributable to the fraud, gross negligence or willful misconduct of such Tax Indemnitee or any Related Party of such Tax Indemnitee; (iv) Taxes in the nature of capital gain, accumulated earnings, personal holding company, excess profits, succession or estate, minimum, alternative minimum, preference, franchise, conduct of business and other similar taxes (other than franchise tax imposed by the State of Illinois upon the Owner Participant, the Owner Lessor or their respective Affiliates under the Business Corporation Act of 1983, as amended, or any successor legislation thereto); (v) Taxes imposed on a Tax Indemnitee that arise out of, are or are caused byin the nature of sales, any act use, property, rental, value added, ad valorem or omission of such Tax Indemnitee (or any Related Party thereof) that is expressly prohibited by any Operative Document or by a breach by such Tax Indemnitee (or any Related Party thereof) of any of its representations, warranties or covenants under any Operative Documentlicense taxes); (vi) Taxes arising out of, or caused by, any voluntary assignment, sale, transfer or other voluntary disposition, or any involuntary transfer or disposition resulting from a bankruptcy or similar proceeding for relief of debtors in which such Tax Indemnitee is a debtor, by (or a foreclosure by a creditor of) ) (A) the Owner Participant of any of its Beneficial Lessor Membership Interest, (B) the Owner Lessor of all or any of its interest in the Facility or the Facility Site, or (C) the Lease Indenture Trustee of any interest in the Lessor Notes or the Indenture Estate unless (i) unless, in each case, such assignment, sale, transfer or disposition occurs during the continuance of a Lease Event of Default, or (ii) such transfer or disposition is required under, or occurs pursuant to, the Operative Documents and the price paid is other than Fair Market Sales Value; (vii) Taxes arising in connection with Owner Participant’s Liens or Owner Lessor’s Liens; (viii) Taxes imposed on any assignee or successor-in-interest to a Tax Indemnitee to the extent any such Taxes exceed the Taxes that would have been imposed had no assignment or transfer taken place determined under the law as in effect on the date of transfer; provided that this exclusion shall not apply to the computation of the gross-up amounts necessary to make a payment on an After-Tax Basis, nor to a transferee, assignee or successor in interest that acquires the interest of a Tax Indemnitee pursuant to a transfer or disposition in connection with the exercise of remedies during the continuance of a Lease Event of Default; (ixvii) in the case of a Tax Indemnitee that is the Owner Participant or a Related Party thereto, Taxes arising in connection with Owner Participant's Liens or in the case of a Tax Indemnitee that is the Owner Lessor or a Related Party thereto, Taxes arising in connection with Owner Lessor Liens; (viii) Taxes that are actually included as a part of Transaction CostsExpenses or the Purchase Price; (xix) Taxes imposed on, based on, or measured by any compensation that any the Owner Manager, Lease Indenture Trustee or the Lease Indenture Pass Through Trustee receives for its services; (xix) any U.S. federal income taxes (including, without limitation, withholding taxes, including with respect to the Owner Participant, Taxes for which NRG is obligated to indemnify the Owner Participant under the Tax Indemnity Agreement (or which are expressly excluded from indemnification thereunder); (xiixi) other than with respect to the CertificateholdersNoteholders, the Lease Indenture Trustee and the Pass Through Trustee Trustees or any Related Party in respect of any thereof (a “Lender Indemnitee”)thereof, Taxes resulting from the Owner Lessor not being treated as (1) a grantor trust U.S. Person (as defined in Section 7701(a)(30) of the Code) or (2) a nonentity disregarded entity or pass through entity for federal, state or local income tax purposes; (xiiixii) other than with respect to the Owner Lessor, the Owner Participant, the Equity Investor or any of their Affiliates, Taxes attributable to the failure of any Tax Indemnitee to comply on a timely basis with certification, information, documentation, reporting or other similar requirements concerning the taxation, nationality, residence, identity, connection with the jurisdiction imposing such Taxes or other similar matters; provided that the foregoing exclusion shall only apply if such Tax Indemnitee is eligible and obligated to comply with such requirement and shall have been given timely written notice of such requirement by NRGSEMA; provided that, other than in respect -------- of the filing or furnishing of IRS Forms W-8 ECI, X-0 XXX, X-0 or 1042S or any successor thereto, the foregoing exclusion shall not apply if the Tax Indemnitee shall have determined in good faith that compliance with any such requirement will result in any unindemnified material adverse effect to its interests or to those of its Related Parties (in instances where such certification, information, documentation, reporting or similar requirement is not otherwise required to be made by the Tax Indemnitee under the Operative Documents or Requirement of Law); (xivxiii) Taxes imposed on a Tax Indemnitee where the attributable to such Tax Indemnitee’s 's breach of its contest obligations under Section 12.2(g10.2(g) effectively precludes NRG’s ability (but only --------------- to contest the Taxesextent attributable to such breach); (xvxiv) Taxes imposed on any Tax Indemnitee resulting from an amendment, modification, supplement or waiver (an "Amendment") to any Operative Document which was not requested by Midwest or NRG and as to which Midwest or NRG is not a party and the Tax Indemnitee (or, in the case of the Owner Participant, the Facility Lessor if acting at the express direction of the Owner Participant) is a party SEMA unless such amendment, modification, supplement or waiver Amendment (A) was required by applicable law or the Operative Documents, (B) may be is necessary or appropriate to, and is in conformity with, to conform with any amendment, modification, supplement or waiver Amendment to any Operative Document agreed to requested by Midwest or NRG SEMA in writing; provided that such conforming Amendment was entered into -------- contemporaneously with the Amendment requested by SEMA and SEMA consented to such conforming Amendment, or (C) is made while as a result of a Lease Event of Default that shall have occurred and be continuing; (xvixv) Taxes imposed under Section 4975 of the Code, Section 406 subtitle B of Title I of ERISA or any comparable laws of any governmental authority to which result from the extent resulting from action by incorrectness or absence of any representations or warranties of such Tax Indemnitee other than, set forth in the case of the Owner Participant, the taking of any action at the request Section 3.4(g) or direction of NRG;referred to in Section 9.2; -------------- ----------- (xviixvi) Taxes imposed to the extent such Taxes result from the Tax Indemnitee (and in the case of the Owner Lessor, only if acting at the written direction of the Owner Participant) being organized under the laws of a jurisdiction other than the United States or any State thereof thereof; (other than, in xvii) Taxes imposed under Sections 1441 through 1446 of the case of a Lender Indemnitee, such Taxes which did not exist under law in effect on the date such Lender Indemnitee became a party to this transaction)Code; (xviii) Any Taxes in the nature of a value-added tax that is imposed on a Tax Indemnitee to the extent that such taxes would not have been imposed but for the activities in lieu of such Tax Indemnitee unrelated to the transactions contemplated herebyan income tax; (xix) Taxes imposed on a Tax Indemnitee in the nature of interest, penalties, fines and additions to tax (i) payable as a result of such Tax Indemnitee’s 's failure to file, in a procedurally proper manner and on a timely basis, any tax reports, returns or statements as to which NRG SEMA has timely notified such Tax Indemnitee in writing of the requirement to file, unless such failure is otherwise caused by the failure of NRG to fulfill its obligationsand, if anyrequired hereunder, with respect to has prepared such return (including provision of information sufficient to enable such Tax Indemnitee to file such report, return or statement)filing, or (ii) to the extent not attributable to or resulting from Taxes for which an indemnity is provided hereunder; and (xx) Taxes for as long as such Taxes are being contested pursuant to the contest provisions contained in Section 12.2(g10.2(g) (subject to the Tax --------------- Indemnitee's right to obtain a Tax Advance pursuant to Section 10.2(g)(iii)(5).. -----------------------