Common use of Refund Clause in Contracts

Refund. If in the ordinary course of administering its Tax affairs any Tax Indemnitee determines or discovers the existence of a refund, or that such Tax Indemnitee is entitled to a credit against other liability, which such refund or credit is in whole or in part directly attributable to any Taxes paid, reimbursed, or advanced by Borrower pursuant to Section 10(c), such Tax Indemnitee shall pay to Borrower within 30 days of such receipt an amount equal to the lesser of (a) the amount of such refund or credit that is directly attributable to Taxes paid, reimbursed or advanced by Borrower plus any net tax benefit (taking into account any Taxes incurred by such Tax Indemnitee by reason of the receipt of such refund or realization of such credit) actually realized by such Tax Indemnitee as a result of any payment by such Tax Indemnitee made pursuant to this sentence (including this clause (a)), and (b) such tax payment, reimbursement, or advance by Borrower to such Tax Indemnitee theretofore made pursuant to this Section 10(c) (and the excess, if any, of the amount described in clause (a) over the amount described in clause (b) shall be carried forward and applied to reduce pro tanto any subsequent obligation of Borrower to make payments to such Tax Indemnitee pursuant to this Section 10(c)). If, in addition to such refund or credit, such Tax Indemnitee receives (or is credited with) an amount representing interest on the amount of such refund or credit, such Tax Indemnitee shall pay to Borrower within thirty (30) days after receiving or realizing such credit that proportion of such interest fairly attributable to Taxes paid, reimbursed, or advanced by Borrower before the receipt of such refund or realization of such credit. If a Tax Indemnitee pays Borrower any amount under this Section 10(c)(vi) and if and to the extent that it is subsequently determined pursuant to a contest conducted in accordance with Section 10(c)(v) that such Tax Indemnitee was not entitled to the refund for which such Tax Indemnitee made such payment to Borrower, such determination shall be treated as the imposition of a Tax for which Borrower is obligated to indemnify such Tax Indemnitee pursuant to the provisions of Section 10(c)(ii), without regard to the provisions of Section 10(c)(iii) (other than Section 10(c)(iii)(5), (8) or (10)). Notwithstanding anything to the contrary herein, if Borrower provides a Tax Indemnitee with a written notice setting forth facts and circumstances which create a reasonable possibility of a refund of (or a credit against other liability with respect to) an indemnified Tax, such Tax Indemnitee shall make a determination as to whether it has received such a refund (or is entitled to such a credit). If a Tax Indemnitee determines that it has received such a refund (or is entitled to such a credit) it shall pay such refund (or the amount of such credit) to Borrower in accordance with the terms of this Section 10(c)(vi). For the avoidance of doubt, in no event shall any Tax Indemnitee be required to make available any of its Tax Documents (or any other information related to its Taxes it deems confidential), to Borrower or any other Person (except as provided in Section 10(c)(iv)(2) of this Agreement).

Refund. If in the ordinary course of administering its Tax affairs any a Tax Indemnitee determines or discovers the existence of obtains a refund, or that such Tax Indemnitee is entitled to a credit against other liability, which such refund or credit is in whole of ------ all or in part directly attributable to of any Taxes paid, reimbursed, reimbursed or advanced by Borrower the Lessee pursuant to this Section 10(c)4, such the Tax Indemnitee promptly shall pay to Borrower within 30 days of such receipt an amount equal to the lesser of Lessee (ax) the amount of such refund or credit that is directly attributable plus (y) an amount equal to Taxes paid, reimbursed or advanced by Borrower plus any net tax Tax benefit (taking into account any Taxes incurred by such Tax Indemnitee by reason of the receipt of such refund or realization of such credit) actually realized by such Tax Indemnitee as a result of any the payments to the Lessee under clause (x) above and this clause (y) (such amounts to be determined on the basis of the highest generally applicable Tax rates applicable), provided that (A) if at the time such payment by is due to the Lessee a Lease Event of Default shall have occurred and be continuing, such Tax Indemnitee made amount shall not be payable until such Lease Event of Default has been cured and (B) the aggregate amount payable to the Lessee pursuant to this sentence (including this clause (a)), and (bshall not exceed the aggregate amount of the indemnity(ies) such tax payment, reimbursement, or advance by Borrower paid pursuant to Section 4.3. If it is subsequently determined that the Tax Indemnitee was not entitled to such Tax Indemnitee theretofore made pursuant refund or credit, the portion of such refund or credit that is required to this Section 10(c) (and be repaid or recaptured will be treated as Taxes for which the excess, if any, of Lessee shall indemnify the amount described in clause (a) over the amount described in clause (b) shall be carried forward and applied to reduce pro tanto any subsequent obligation of Borrower to make payments to such Tax Indemnitee pursuant to this Section 10(c4 without regard to Section 4.2 (except Section 4.2(iii)). If, in addition connection with a refund or credit of all or part of any Taxes paid, reimbursed or advanced by the Lessee pursuant to this Section 4, a Tax Indemnitee receives an amount representing interest on such refund or credit, such the Tax Indemnitee receives promptly shall pay to the Lessee (or is credited with1) an amount representing interest on the amount of such refund or credit, such Tax Indemnitee interest that shall pay to Borrower within thirty (30) days after receiving or realizing such credit that proportion of such interest be fairly attributable to such Taxes paid, reimbursed, reimbursed or advanced by Borrower before the Lessee prior to the receipt of such refund or realization credit net of any Taxes incurred on such credit. If a interest and (2) any Tax Indemnitee pays Borrower any amount under this Section 10(c)(vi) and if and to the extent that it is subsequently determined pursuant to a contest conducted in accordance with Section 10(c)(v) that savings realized by such Tax Indemnitee was not entitled to as a result of the refund for which such payments made by the Tax Indemnitee made such payment to Borrower, such determination shall be treated as the imposition of a Tax for which Borrower is obligated to indemnify such Tax Indemnitee pursuant to the provisions of Section 10(c)(ii), without regard to the provisions of Section 10(c)(iiiunder (1) and (2) (other than Section 10(c)(iii)(5), (8) or (10)). Notwithstanding anything such benefit to be determined on the contrary herein, if Borrower provides a basis of the highest generally applicable Tax Indemnitee with a written notice setting forth facts and circumstances which create a reasonable possibility of a refund of (or a credit against other liability with respect to) an indemnified Tax, such Tax Indemnitee shall make a determination as to whether it has received such a refund (or is entitled to such a credit). If a Tax Indemnitee determines that it has received such a refund (or is entitled to such a credit) it shall pay such refund (or the amount of such credit) to Borrower in accordance with the terms of this Section 10(c)(vi). For the avoidance of doubt, in no event shall any Tax Indemnitee be required to make available any of its Tax Documents (or any other information related to its Taxes it deems confidential), to Borrower or any other Person (except as provided in Section 10(c)(iv)(2) of this Agreementrates applicable).

Refund. If the Administrative Agent or a Lender determines, in the ordinary course its discretion (acting in good faith), that it (or any member of administering its Tax affairs group) has received a refund of any Tax Indemnitee determines or discovers the existence Taxes (including by virtue of a refund, or that such Tax Indemnitee is entitled to a credit against other liability, which such refund or credit is in whole or in part directly attributable to any Taxes paid, reimbursed, or advanced by Borrower pursuant to Section 10(c), such Tax Indemnitee shall pay to Borrower within 30 days offset of such receipt an amount equal to the lesser of (a) the amount Taxes, other than a credit or offset resulting from a payment of such refund Taxes by the Borrower) as to which it has been indemnified by the Borrower or credit that is directly attributable with respect to Taxes paid, reimbursed or advanced by which the Borrower plus any net tax benefit (taking into account any Taxes incurred by such Tax Indemnitee by reason of the receipt of such refund or realization of such credit) actually realized by such Tax Indemnitee as a result of any payment by such Tax Indemnitee made pursuant to this sentence (including this clause (a)), and (b) such tax payment, reimbursement, or advance by Borrower to such Tax Indemnitee theretofore made has paid additional amounts pursuant to this Section 10(c) (and the excess2.17, if any, of the amount described in clause (a) it shall pay over the amount described in clause (b) shall be carried forward and applied to reduce pro tanto any subsequent obligation of Borrower to make payments to such Tax Indemnitee pursuant to this Section 10(c)). If, in addition to such refund to the Borrower (but only to the extent of indemnity payments made, or credit, such Tax Indemnitee receives (or is credited with) an amount representing interest on the amount of such refund or credit, such Tax Indemnitee shall pay to Borrower within thirty (30) days after receiving or realizing such credit that proportion of such interest fairly attributable to Taxes additional amounts paid, reimbursed, or advanced by the Borrower before the receipt of such refund or realization of such credit. If a Tax Indemnitee pays Borrower any amount under this Section 10(c)(vi) and if and 2.17 with respect to the extent that it is subsequently determined pursuant Taxes giving rise to a contest conducted in accordance with Section 10(c)(v) that such Tax Indemnitee was not entitled to the refund for which such Tax Indemnitee made such payment to Borrower, such determination shall be treated as the imposition of a Tax for which Borrower is obligated to indemnify such Tax Indemnitee pursuant to the provisions of Section 10(c)(iirefund), net of all out-of-pocket expenses of the Administrative Agent or such Lender and without regard to the provisions of Section 10(c)(iii) interest (other than Section 10(c)(iii)(5any interest paid by the relevant Governmental Authority with respect to such refund); provided that the Borrower, upon the request of the Administrative Agent or such Lender, agrees to repay the amount paid over to the Borrower (8) plus any penalties, interest or (10))other charges imposed by the relevant Governmental Authority) to the Administrative Agent or such Lender in the event the Administrative Agent or such Lender is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary herein, if Borrower provides a Tax Indemnitee with a written notice setting forth facts and circumstances which create a reasonable possibility of a refund of in this paragraph (or a credit against other liability with respect to) an indemnified Tax, such Tax Indemnitee shall make a determination as to whether it has received such a refund (or is entitled to such a credith). If a Tax Indemnitee determines that it has received such a refund (or is entitled to such a credit) it shall pay such refund (or the amount of such credit) to Borrower in accordance with the terms of this Section 10(c)(vi). For the avoidance of doubt, in no event shall any Tax Indemnitee will the Administrative Agent or Lender be required to pay any amount to the Borrower pursuant to this paragraph (h) the payment of which would place the Administrative Agent or Lender in a less favorable net after-Tax position than the Administrative Agent or Lender would have been if the Tax subject to indemnification and giving rise to such refund had not been deducted, withheld, or otherwise imposed and the indemnification payments or additional amounts with respect to such Tax had never been paid. This Section shall not be construed to require the Administrative Agent or any Lender to make available any of its Tax Documents tax returns (or any other information related relating to its Taxes which it deems confidential), ) to the Borrower or any other Person (except as provided in Section 10(c)(iv)(2) Person. For purposes of this Agreement)Section 2.17, the term “Lender” includes any Issuing Bank and the term “applicable law” includes FATCA.

Refund. If in the ordinary course of administering its Tax affairs any a Tax Indemnitee determines or discovers the existence of obtains a refund, or that such Tax Indemnitee is entitled to a credit against other liability, which such refund or credit is in whole of all or in part directly attributable to of any Taxes paid, reimbursed, reimbursed or advanced by Borrower the Lessee pursuant to this Section 10(c)9.2, such the Tax Indemnitee promptly shall pay to Borrower within 30 days of such receipt an amount equal to the lesser of Lessee (ai) the amount of such refund or credit that is directly attributable to Taxes paid, reimbursed (net of any Tax payable by the Tax Indemnitee as a result of the receipt or advanced by Borrower accrual of such refund or credit) plus (ii) any net tax benefit (taking into account any Taxes incurred additional Tax Savings realized by such Tax Indemnitee by reason of such payment to the receipt Lessee; provided that (A) if at the time such payment is due to the Lessee a Material Default or Lease Event of Default shall have occurred and be continuing, such refund amount shall not be payable until such Material Default or realization Lease Event of such creditDefault has been cured, and (B) actually realized by such Tax Indemnitee as a result of any payment by such Tax Indemnitee made the amount payable to the Lessee pursuant to this sentence shall not exceed the amount of the indemnity payment in respect of such refunded or credited Taxes that was made by the Lessee. Any excess of (including this clause (a)), i) and (bii) such tax payment, reimbursement, or advance by Borrower to such Tax Indemnitee theretofore made pursuant to over (B) in this Section 10(c) (and the excess, if any, of the amount described in clause (a) over the amount described in clause (b9.2(f) shall be carried forward and applied to reduce pro tanto any subsequent obligation of Borrower the Lessee’s obligations to make subsequent payments to such Tax Indemnitee pursuant to this Section 10(c))9.2. If, in addition If it is subsequently determined that the Tax Indemnitee was not entitled to such refund or credit, the portion of such refund or credit that is required to be repaid or recaptured will be treated as Taxes for which the Lessee must indemnify the Tax Indemnitee pursuant to this Section 9.2 without regard to paragraph (b) hereof. If, in connection with a refund or credit of all or part of any Taxes paid, reimbursed or advanced by the Lessee pursuant to this Section 9.2, a Tax Indemnitee receives (or is credited with) an amount representing interest on the amount of such refund or credit, such the Tax Indemnitee promptly shall pay to Borrower within thirty the Lessee (301) days after receiving or realizing such credit that proportion the amount of such interest that shall be fairly attributable to such Taxes paid, reimbursed, reimbursed or advanced by Borrower before the Lessee prior to the receipt of such refund or realization credit (net of Taxes payable in respect of the receipt or accrual of such credit. If a interest) and (2) any Tax Savings resulting from payments made by the Tax Indemnitee pays Borrower any amount under this Section 10(c)(vi(1) and if and to the extent that it is subsequently determined pursuant to a contest conducted in accordance with Section 10(c)(v) that such Tax Indemnitee was not entitled to the refund for which such Tax Indemnitee made such payment to Borrower, such determination shall be treated as the imposition of a Tax for which Borrower is obligated to indemnify such Tax Indemnitee pursuant to the provisions of Section 10(c)(ii), without regard to the provisions of Section 10(c)(iii) (other than Section 10(c)(iii)(5), (8) or (10)). Notwithstanding anything to the contrary herein, if Borrower provides a Tax Indemnitee with a written notice setting forth facts and circumstances which create a reasonable possibility of a refund of (or a credit against other liability with respect to) an indemnified Tax, such Tax Indemnitee shall make a determination as to whether it has received such a refund (or is entitled to such a credit). If a Tax Indemnitee determines that it has received such a refund (or is entitled to such a credit) it shall pay such refund (or the amount of such credit) to Borrower in accordance with the terms of this Section 10(c)(vi). For the avoidance of doubt, in no event shall any Tax Indemnitee be required to make available any of its Tax Documents (or any other information related to its Taxes it deems confidential), to Borrower or any other Person (except as provided in Section 10(c)(iv)(2) of this Agreement2).

Refund. If in the ordinary course of administering its Tax affairs any a Tax Indemnitee determines or discovers the existence of obtains a refund, or that such Tax Indemnitee is entitled to a credit against other liability, which such refund or credit is in whole of all or in part directly attributable to of any Taxes paid, reimbursed, reimbursed or advanced by Borrower Old Dominion pursuant to this Section 10(c)8.2, such the Tax Indemnitee promptly shall pay to Borrower within 30 days of such receipt an amount equal to the lesser of (a) Old Dominion the amount of such refund or credit that is directly attributable to Taxes paid, reimbursed plus or advanced by Borrower plus minus any net tax benefit (taking into account any Taxes incurred by such Tax Indemnitee by reason of the receipt of such refund or realization of such credit) actually detriment realized by such Tax Indemnitee as a result of any payment by such Tax Indemnitee made pursuant to this sentence (including this clause taking into account any Taxes incurred by such Tax Indemnitee by reason of the receipt or accrual of such refund or credit as well as any Tax benefits or credits by reason of such payment to Old Dominion (adetermined using the same assumptions as set forth in the second sentence under the definition of After-Tax Basis)), PROVIDED that (A) if at the time such payment is due to Old Dominion a Payment Default or an Event of Default under the Equipment Operating Lease or the Foundation Operating Lease shall have occurred and be continuing, such amount shall not be payable until such Payment Default or Event of Default under the Equipment Operating Lease or the Foundation Operating Lease has been cured, and (bB) the amount payable to Old Dominion pursuant to this sentence (net of any amount in respect of any tax benefit realized by reason of the payment hereunder) shall not exceed the amount of the indemnity payment in respect of such tax paymentrefunded or credited Taxes that was made by Old Dominion (net of any amount that was necessary to make such payment on an After-Tax Basis). If, reimbursementin connection with a refund or credit of all or part of any Taxes paid, reimbursed or advance advanced by Borrower to such Tax Indemnitee theretofore made Old Dominion pursuant to this Section 10(c) (and 8.2, a Tax Indemnitee receives an amount representing interest on such refund or credit, the excess, if any, of Tax Indemnitee promptly shall pay to Old Dominion the amount described in clause (a) over the amount described in clause (b) of such interest that shall be carried forward and applied to reduce pro tanto any subsequent obligation of Borrower to make payments fairly attributable to such Taxes paid, reimbursed or advanced by Old Dominion prior to the receipt of such refund or credit net of Taxes payable in respect of such receipt. If it is subsequently determined that the Tax Indemnitee was not entitled to such refund or credit, the portion of such refund or credit that is repaid or recaptured will be treated as Taxes for which Old Dominion must indemnify the Tax Indemnitee pursuant to this Section 10(c)). If, in addition to such refund or credit, such Tax Indemnitee receives (or is credited with) an amount representing interest on the amount of such refund or credit, such Tax Indemnitee shall pay to Borrower within thirty (30) days after receiving or realizing such credit that proportion of such interest fairly attributable to Taxes paid, reimbursed, or advanced by Borrower before the receipt of such refund or realization of such credit. If a Tax Indemnitee pays Borrower any amount under this Section 10(c)(vi) and if and to the extent that it is subsequently determined pursuant to a contest conducted in accordance with Section 10(c)(v) that such Tax Indemnitee was not entitled to the refund for which such Tax Indemnitee made such payment to Borrower, such determination shall be treated as the imposition of a Tax for which Borrower is obligated to indemnify such Tax Indemnitee pursuant to the provisions of Section 10(c)(ii), 8.2 without regard to the provisions of Section 10(c)(iiiparagraph (b) (other than Section 10(c)(iii)(5), (8) or (10)). Notwithstanding anything to the contrary herein, if Borrower provides a Tax Indemnitee with a written notice setting forth facts and circumstances which create a reasonable possibility of a refund of (or a credit against other liability with respect to) an indemnified Tax, such Tax Indemnitee shall make a determination as to whether it has received such a refund (or is entitled to such a credit). If a Tax Indemnitee determines that it has received such a refund (or is entitled to such a credit) it shall pay such refund (or the amount of such credit) to Borrower in accordance with the terms of this Section 10(c)(vi). For the avoidance of doubt, in no event shall any Tax Indemnitee be required to make available any of its Tax Documents (or any other information related to its Taxes it deems confidential), to Borrower or any other Person (except as provided in Section 10(c)(iv)(2) of this Agreement)hereof.

Refund. If in the ordinary course of administering its Tax affairs any Tax Indemnitee determines a Lender, an Issuing Bank or discovers the existence of a refund, or Agent shall become aware that such Tax Indemnitee it is entitled to claim a credit against other liability, refund from a Governmental Authority specifically in respect of Indemnified Taxes or Other Taxes as to which such refund or credit is in whole or in part directly attributable to any Taxes paid, reimbursedit has been indemnified by a Borrower, or advanced by with respect to which a Borrower pursuant to Section 10(c)has paid additional amounts, such Tax Indemnitee shall pay to Borrower within 30 days of such receipt an amount equal to the lesser of (a) the amount of such refund or credit that is directly attributable to Taxes paid, reimbursed or advanced by Borrower plus any net tax benefit (taking into account any Taxes incurred by such Tax Indemnitee by reason of the receipt of such refund or realization of such credit) actually realized by such Tax Indemnitee as a result of any payment by such Tax Indemnitee made pursuant to this sentence (including this clause (a)), and (b) such tax payment, reimbursement, or advance by Borrower to such Tax Indemnitee theretofore made pursuant to this Section 10(c) (and the excess2.16, if any, it shall promptly notify Borrower of the amount described in clause (a) over the amount described in clause (b) shall be carried forward availability of such refund claim and applied to reduce pro tanto any subsequent obligation shall, within 30 days after receipt of Borrower to a request by Borrower, make payments a claim to such Tax Indemnitee Governmental Authority for such refund at Borrower's expense. If a Lender, an Issuing Bank or any Agent receives a refund (including pursuant to a claim for refund made pursuant to the preceding sentence) specifically in respect of any Indemnified Taxes or Other Taxes as to which it has been indemnified by Borrower or with respect to which Borrower had paid additional amounts pursuant to this Section 10(c)). If2.16, in addition to it shall within 30 days from the date of such receipt pay over such refund or credit, such Tax Indemnitee receives (or is credited with) an amount representing interest on the amount of such refund or credit, such Tax Indemnitee shall pay to Borrower within thirty (30) days after receiving but only to the extent of indemnity payments made, or realizing such credit that proportion of such interest fairly attributable to Taxes additional amounts paid, reimbursed, or advanced by Borrower before the receipt of such refund or realization of such credit. If a Tax Indemnitee pays Borrower any amount under this Section 10(c)(vi) and if and 2.16 with respect to the extent that it is subsequently determined pursuant Indemnified Taxes or Other Taxes giving rise to a contest conducted in accordance with Section 10(c)(v) that such Tax Indemnitee was not entitled to the refund for which such Tax Indemnitee made such payment to Borrower, such determination shall be treated as the imposition of a Tax for which Borrower is obligated to indemnify such Tax Indemnitee pursuant to the provisions of Section 10(c)(iirefund), net of all out-of-pocket expenses of such Lender, Issuing Bank or Agent and without regard to the provisions of Section 10(c)(iii) interest (other than Section 10(c)(iii)(5), (8) or (10)). Notwithstanding anything to interest paid by the contrary herein, if Borrower provides a Tax Indemnitee with a written notice setting forth facts and circumstances which create a reasonable possibility of a refund of (or a credit against other liability relevant Governmental Authority with respect to) an indemnified Tax, such Tax Indemnitee shall make a determination as to whether it has received such a refund (or is entitled to such a creditrefund). If a Tax Indemnitee determines ; provided, however, that it has received Borrower, upon the request of such a refund Lender, Issuing Bank or Agent, agrees to repay the amount paid over to Borrower (plus penalties, interest or is entitled other charges) to such a credit) it shall pay Lender, Issuing Bank or Agent in the event such Lender, Issuing Bank or Agent is required to repay such refund (or the amount of to such credit) to Borrower in accordance with the terms of this Section 10(c)(vi). For the avoidance of doubt, in no event shall any Tax Indemnitee be required to make available any of its Tax Documents (or any other information related to its Taxes it deems confidential), to Borrower or any other Person (except as provided in Section 10(c)(iv)(2) of this Agreement)Governmental Authority.

Refund. If in the ordinary course of administering its Tax affairs any a Tax Indemnitee determines obtains a refund or discovers the existence of credit or would have received such refund or credit but for a refund, counterclaim or that such Tax Indemnitee is entitled to a credit other claim not indemnified by SEMA hereunder against other liability, which such refund or credit is in whole has been applied (an "offset refund or in credit") of all or part directly attributable to of any Taxes paid, reimbursed, reimbursed or advanced by Borrower SEMA pursuant to this Section 10(c)10.2, such the Tax Indemnitee ------------ shall pay to Borrower SEMA within 30 15 days of such receipt receipt, or in the case of an amount equal to offset refund or credit, within 15 days of the lesser of applicable event (ax) the amount of such refund or credit that is directly attributable (net of any Tax payable by the Tax Indemnitee as a result of the receipt or accrual of such refund or credit or interest thereon) plus (y) an amount equal to Taxes paid, reimbursed or advanced by Borrower plus any net tax benefit (taking into account any Taxes incurred Tax Benefit actually realized by such Tax Indemnitee by reason of such payment to SEMA (determined using the receipt same assumptions as set forth in the second sentence under the definition of After-Tax Basis), provided that (A) if at the time such refund payment is due to SEMA a Significant Lease Default or realization Lease Event of Default shall have occurred and be continuing, such creditamount shall not be payable until such Significant Lease Default or Lease Event of Default has been cured, and (B) actually realized by such Tax Indemnitee as a result of any payment by such Tax Indemnitee made the amount payable to SEMA pursuant to this sentence (including this clause (a)), and (b) shall not exceed the amount of the indemnity payment in respect of such tax payment, reimbursement, refunded or advance credited Taxes that was made by Borrower to such Tax Indemnitee theretofore made pursuant to this Section 10(c) SEMA (and the excess, if any, of the amount described in clause (a) over the amount described in clause (b) such excess shall be carried forward and applied to reduce pro tanto any subsequent obligation obligations of Borrower SEMA to make payments to such Tax Indemnitee pursuant to this Section 10(c)10.2). If, in addition If ------------ it is subsequently determined that the Tax Indemnitee was not entitled to such refund or credit, the portion of such refund or credit that is required to be repaid or recaptured will be treated as Taxes for which SEMA must indemnify the Tax Indemnitee pursuant to this Section 10.2 without regard to Section 10.2(b) ------------ --------------- other than Section 10.2(b)(iii), (v), (vii), (xii) and (xvi). If, in connection -------------------- --- ----- ----- ----- with a refund or credit of all or part of any Taxes paid, reimbursed or advanced by SEMA pursuant to this Section 10.2, a Tax Indemnitee receives (or is credited with) an amount ------------ representing interest on the amount of such refund or credit, such the Tax Indemnitee shall pay to Borrower SEMA within thirty 15 days (301) days after receiving or realizing such credit that proportion the amount of such interest that shall be fairly attributable to such Taxes paid, reimbursed, reimbursed or advanced by Borrower before SEMA prior to the receipt of such refund or realization credit (net of Taxes payable in respect of the receipt or accrual of such credit. If a Tax Indemnitee pays Borrower any amount under this Section 10(c)(viinterest) and if and to (2) any Tax savings resulting from payments made by the extent that it is subsequently determined pursuant to a contest conducted in accordance with Section 10(c)(v) that such Tax Indemnitee was not entitled to the refund for which such Tax Indemnitee made such payment to Borrower, such determination shall be treated as the imposition of a Tax for which Borrower is obligated to indemnify such Tax Indemnitee pursuant to this sentence (determined using the provisions assumptions set forth in the second sentence of Section 10(c)(ii), without regard to the provisions definition of Section 10(c)(iii) (other than Section 10(c)(iii)(5), (8) or (10)). Notwithstanding anything to the contrary herein, if Borrower provides a After-Tax Indemnitee with a written notice setting forth facts and circumstances which create a reasonable possibility of a refund of (or a credit against other liability with respect to) an indemnified Tax, such Tax Indemnitee shall make a determination as to whether it has received such a refund (or is entitled to such a credit). If a Tax Indemnitee determines that it has received such a refund (or is entitled to such a credit) it shall pay such refund (or the amount of such credit) to Borrower in accordance with the terms of this Section 10(c)(vi). For the avoidance of doubt, in no event shall any Tax Indemnitee be required to make available any of its Tax Documents (or any other information related to its Taxes it deems confidential), to Borrower or any other Person (except as provided in Section 10(c)(iv)(2) of this AgreementBasis).

Refund. If in the ordinary course an Indemnified Party shall receive a refund of administering its Tax affairs (or ------ receive a credit against, or any other current reduction in, any Tax Indemnitee determines not indemnified by Deepwater under this Section 10.4, in respect of) all or discovers the existence part of any Taxes which Deepwater shall have paid on behalf of such Indemnified Party or for which Deepwater shall have reimbursed, advanced funds to or indemnified such Indemnified Party (or would have received such a refund, credit or that such Tax Indemnitee is entitled to reduction but for a credit against counterclaim or other liability, which such refund or credit is in whole or in part directly attributable to any Taxes paid, reimbursed, or advanced claim not indemnified by Borrower pursuant to Section 10(cDeepwater hereunder (a "deemed refund")), such Tax Indemnitee shall pay to Borrower within 30 days of such receipt (or, in the case of a deemed refund, within 30 days of the final determination of such deemed refund), such Indemnified Party shall pay or repay to Deepwater an amount equal to the lesser of (a) the amount of such refund or credit that is directly attributable to Taxes paiddeemed refund, reimbursed or advanced by Borrower plus any net tax benefit (taking into account any Taxes incurred by such Tax Indemnitee Indemnified Party by reason of the receipt of such refund refund, credit or realization of such creditreduction or deemed refund) actually realized by such Tax Indemnitee Indemnified Party as a result of any payment by such Tax Indemnitee Indemnified Party made pursuant to this sentence; provided, however, that such Indemnified Party shall not be obligated -------- ------- to make any payment pursuant to this sentence to the extent that the amount of such payment would exceed (including this clause (a)), and (bx) such tax payment, reimbursement, or advance the amount of all prior payments made by Borrower Deepwater to such Tax Indemnitee theretofore made Indemnified Party pursuant to this Section 10(c10.4 less (y) (and the excess, if any, of the amount described in clause (a) over the amount described in clause (b) shall be carried forward and applied of all prior payments by such Indemnified Party to reduce pro tanto any subsequent obligation of Borrower to make payments to such Tax Indemnitee Deepwater pursuant to this Section 10(c10.4(g)); provided, further, however, that such Indemnified Party shall -------- ------- ------- not be obligated to make any payment to Deepwater pursuant to this sentence while an Event of Default is continuing, but shall be required to make such payment at such time as the Event of Default is cured or at the time Deepwater shall have fulfilled all its obligations arising upon such Event of Default. If, in addition to such refund refund, credit or creditreduction or deemed refund, as the case may be, such Tax Indemnitee receives Indemnified Party shall receive (or is credited withwould have received but for a counterclaim or other claim not indemnified by Deepwater hereunder) an amount representing interest on the amount of such refund refund, credit or creditreduction, or deemed refund, as the case may be, such Tax Indemnitee Indemnified Party shall pay to Borrower Deepwater within thirty (30) 30 days after receiving or realizing of such credit receipt or, in the case of a deemed refund, within 30 days of the final determination of such deemed refund, that proportion of such interest that shall be fairly attributable to Taxes paid, reimbursed, reimbursed or advanced by Borrower before Deepwater prior to the receipt of such refund or realization of such credit. If a Tax Indemnitee pays Borrower any amount under this Section 10(c)(vi) and if and to the extent that it is subsequently determined pursuant to a contest conducted in accordance with Section 10(c)(v) that such Tax Indemnitee was not entitled to the refund for which such Tax Indemnitee made such payment to Borrower, such determination shall be treated as the imposition of a Tax for which Borrower is obligated to indemnify such Tax Indemnitee pursuant to the provisions of Section 10(c)(ii), without regard to the provisions of Section 10(c)(iii) (other than Section 10(c)(iii)(5), (8) or (10)). Notwithstanding anything to the contrary herein, if Borrower provides a Tax Indemnitee with a written notice setting forth facts and circumstances which create a reasonable possibility of a refund of (or a credit against other liability with respect to) an indemnified Tax, such Tax Indemnitee shall make a determination as to whether it has received such a refund (or is entitled to such a credit). If a Tax Indemnitee determines that it has received such a refund (or is entitled to such a credit) it shall pay such refund (or the amount of such credit) to Borrower in accordance with the terms of this Section 10(c)(vi). For the avoidance of doubt, in no event shall any Tax Indemnitee be required to make available any of its Tax Documents (or any other information related to its Taxes it deems confidential), to Borrower or any other Person (except as provided in Section 10(c)(iv)(2) of this Agreement)deemed refund.

Refund. If in the ordinary course of administering its Tax affairs any a Tax Indemnitee determines or discovers the existence of obtains a refund, or that such Tax Indemnitee is entitled to a credit against other liability, which such refund or credit is in whole of all or in part directly attributable to of any Taxes paid, reimbursed, reimbursed or advanced by Borrower Old Dominion pursuant to this Section 10(c)8.2, such the Tax Indemnitee promptly shall pay to Borrower within 30 days of such receipt an amount equal to the lesser of (a) Old Dominion the amount of such refund or credit that is directly attributable to Taxes paid, reimbursed plus or advanced by Borrower plus minus any net tax benefit (taking into account or detriment realized by such Tax Indemnitee as a result of any Taxes incurred by such Tax Indemnitee by reason of the receipt or accrual of such refund or realization credit as well as any Tax benefits or credits by reason of such creditpayment to Old Dominion (determined using the same assumptions as set forth in the second sentence under the definition of After-Tax Basis), PROVIDED that (A) actually realized by if at the time such Tax Indemnitee as payment is due to Old Dominion and a result Bankruptcy Default, Payment Default or an Event of any payment by Default under the Operating Equipment Agreement or the Operating Foundation Agreement shall have occurred and be continuing, such Tax Indemnitee made amount shall not be payable until such Bankruptcy Default, Payment Default or Event of Default under the Operating Equipment Agreement or the Operating Foundation Agreement has been cured, and (B) the amount payable to Old Dominion pursuant to this sentence (including this clause net of any amount in respect of any tax benefit realized by reason of the payment hereunder) shall not exceed the amount of the indemnity payment in respect of such refunded or credited Taxes that was made by Old Dominion (anet of any amount that was necessary to make such payment on an After-Tax Basis)), and (b) such tax payment, reimbursement, or advance by Borrower . If it is subsequently determined that the Tax Indemnitee was not entitled to such Tax Indemnitee theretofore made pursuant to this Section 10(c) (and refund or credit, the excess, if any, portion of such refund or credit that is repaid or recaptured will be treated as Taxes for which Old Dominion must indemnify the amount described in clause (a) over the amount described in clause (b) shall be carried forward and applied to reduce pro tanto any subsequent obligation of Borrower to make payments to such Tax Indemnitee pursuant to this Section 10(c))8.2 without regard to paragraph (b) hereof. If, in addition connection with a refund or credit of all or part of any Taxes paid, reimbursed or advanced by Old Dominion pursuant to this Section 8.2, a Tax Indemnitee receives an amount representing interest on such refund or credit, such the Tax Indemnitee receives (or is credited with) an amount representing interest on promptly shall pay to Old Dominion the amount of such refund or credit, such Tax Indemnitee interest that shall pay to Borrower within thirty (30) days after receiving or realizing such credit that proportion of such interest be fairly attributable to such Taxes paid, reimbursed, reimbursed or advanced by Borrower before Old Dominion prior to the receipt of such refund or realization credit net of Taxes payable in respect of such credit. If a Tax Indemnitee pays Borrower any amount under this Section 10(c)(vi) and if and to the extent that it is subsequently determined pursuant to a contest conducted in accordance with Section 10(c)(v) that such Tax Indemnitee was not entitled to the refund for which such Tax Indemnitee made such payment to Borrower, such determination shall be treated as the imposition of a Tax for which Borrower is obligated to indemnify such Tax Indemnitee pursuant to the provisions of Section 10(c)(ii), without regard to the provisions of Section 10(c)(iii) (other than Section 10(c)(iii)(5), (8) or (10)). Notwithstanding anything to the contrary herein, if Borrower provides a Tax Indemnitee with a written notice setting forth facts and circumstances which create a reasonable possibility of a refund of (or a credit against other liability with respect to) an indemnified Tax, such Tax Indemnitee shall make a determination as to whether it has received such a refund (or is entitled to such a credit). If a Tax Indemnitee determines that it has received such a refund (or is entitled to such a credit) it shall pay such refund (or the amount of such credit) to Borrower in accordance with the terms of this Section 10(c)(vi). For the avoidance of doubt, in no event shall any Tax Indemnitee be required to make available any of its Tax Documents (or any other information related to its Taxes it deems confidential), to Borrower or any other Person (except as provided in Section 10(c)(iv)(2) of this Agreement)receipt.

Refund. If in the ordinary course of administering its Tax affairs any a Tax Indemnitee determines or discovers the existence of obtains a refund, or that such Tax Indemnitee is entitled to a credit against other liability, which such refund or credit is in whole of all or in part directly attributable to of any Taxes paid, reimbursed, indemnified against or advanced by Borrower the Facility Lessee pursuant to this Section 10(c)10.2, such the Tax Indemnitee promptly shall pay to Borrower within 30 days of such receipt an amount equal to the lesser of Facility Lessee (ax) the amount of such refund or credit plus (y) an amount equal to any United States federal, state or local income tax benefit realized by such Tax Indemnitee from the payments to the Facility Lessee under clause (x) above and this clause (y) (determined using the same assumptions as set forth in the second sentence under the definition of After-Tax Basis), provided that (A) if at the time such payment is due to the Facility Lessee a Significant Lease Default or Lease Event of Default shall have occurred and be continuing, such amount shall not be payable until any Significant Lease Default or Lease Event of Default has been cured, and (B) in such event, the amount payable to the Facility Lessee pursuant to this sentence shall not exceed the amount of the indemnity payment in respect of such refunded or credited Taxes that was made by the Facility Lessee. If it is subsequently determined that the Tax Indemnitee was not entitled to such refund or credit, the portion of such refund or credit that is directly attributable required to be repaid or recaptured will be treated as Taxes for which the Facility Lessee must indemnify the Tax Indemnitee pursuant to this Section 10.2 without regard to paragraph (b) hereof. If, in connection with a refund or credit of all or part of any Taxes paid, reimbursed or advanced by Borrower plus any net tax benefit (taking into account any Taxes incurred by such the Facility Lessee pursuant to this Section 10.2, a Tax Indemnitee receives an amount representing interest on such refund or credit, the Tax Indemnitee promptly shall pay to the Facility Lessee (1) the amount of such interest that shall be fairly attributable to such Taxes paid, reimbursed or advanced by reason of the Facility Lessee prior to the receipt of such refund or realization credit (net of Taxes paid or accrued in respect of the receipt or accrual of such creditinterest) actually realized and (2) any Tax savings resulting from payments made by such the Tax Indemnitee as a result of any payment by such Tax Indemnitee made pursuant to this sentence under (including this clause (a)), 1) and (b) such tax payment, reimbursement, or advance by Borrower to such Tax Indemnitee theretofore made pursuant to this Section 10(c2) (and determined using the excess, if any, same assumptions as set forth in the second sentence under the definition of the amount described in clause (a) over the amount described in clause (b) shall be carried forward and applied to reduce pro tanto any subsequent obligation of Borrower to make payments to such After-Tax Indemnitee pursuant to this Section 10(c)). If, in addition to such refund or credit, such Tax Indemnitee receives (or is credited with) an amount representing interest on the amount of such refund or credit, such Tax Indemnitee shall pay to Borrower within thirty (30) days after receiving or realizing such credit that proportion of such interest fairly attributable to Taxes paid, reimbursed, or advanced by Borrower before the receipt of such refund or realization of such credit. If a Tax Indemnitee pays Borrower any amount under this Section 10(c)(vi) and if and to the extent that it is subsequently determined pursuant to a contest conducted in accordance with Section 10(c)(v) that such Tax Indemnitee was not entitled to the refund for which such Tax Indemnitee made such payment to Borrower, such determination shall be treated as the imposition of a Tax for which Borrower is obligated to indemnify such Tax Indemnitee pursuant to the provisions of Section 10(c)(ii), without regard to the provisions of Section 10(c)(iii) (other than Section 10(c)(iii)(5), (8) or (10)). Notwithstanding anything to the contrary herein, if Borrower provides a Tax Indemnitee with a written notice setting forth facts and circumstances which create a reasonable possibility of a refund of (or a credit against other liability with respect to) an indemnified Tax, such Tax Indemnitee shall make a determination as to whether it has received such a refund (or is entitled to such a credit). If a Tax Indemnitee determines that it has received such a refund (or is entitled to such a credit) it shall pay such refund (or the amount of such credit) to Borrower in accordance with the terms of this Section 10(c)(vi). For the avoidance of doubt, in no event shall any Tax Indemnitee be required to make available any of its Tax Documents (or any other information related to its Taxes it deems confidential), to Borrower or any other Person (except as provided in Section 10(c)(iv)(2) of this AgreementBasis).

Refund. If in the ordinary course an Indemnified Party shall receive a refund of administering its Tax affairs (or receive a credit against, or any other current reduction in, any Tax Indemnitee determines not indemnified by Deepwater under this Section 10.4, in respect of) all or discovers the existence part of any Taxes which Deepwater shall have paid on behalf of such Indemnified Party or for which Deepwater shall have reimbursed, advanced funds to or indemnified such Indemnified Party (or would have received such a refund, credit or that such Tax Indemnitee is entitled to reduction but for a credit against counterclaim or other liability, which such refund or credit is in whole or in part directly attributable to any Taxes paid, reimbursed, or advanced claim not indemnified by Borrower pursuant to Section 10(cDeepwater hereunder (a "deemed refund")), such Tax Indemnitee shall pay to Borrower within 30 days of such receipt (or, in the case of a deemed refund, within 30 days of the final determination of such deemed refund), such Indemnified Party shall pay or repay to Deepwater an amount equal to the lesser of (a) the amount of such refund or credit that is directly attributable to Taxes paiddeemed refund, reimbursed or advanced by Borrower plus any net tax benefit (taking into account any Taxes incurred by such Tax Indemnitee Indemnified Party by reason of the receipt of such refund refund, credit or realization of such creditreduction or deemed refund) actually realized by such Tax Indemnitee Indemnified Party as a result of any payment by such Tax Indemnitee Indemnified Party made pursuant to this sentence; provided, however, that such Indemnified Party shall not be obligated to make any payment pursuant to this sentence to the extent that the amount of such payment would exceed (including this clause (a)), and (bx) such tax payment, reimbursement, or advance the amount of all prior payments made by Borrower Deepwater to such Tax Indemnitee theretofore made Indemnified Party pursuant to this Section 10(c10.4 less (y) (and the excess, if any, of the amount described in clause (a) over the amount described in clause (b) shall be carried forward and applied of all prior payments by such Indemnified Party to reduce pro tanto any subsequent obligation of Borrower to make payments to such Tax Indemnitee Deepwater pursuant to this Section 10(c10.4(g)); provided, further, however, that such Indemnified Party shall not be obligated to make any payment to Deepwater pursuant to this sentence while an Event of Default is continuing, but shall be required to make such payment at such time as the Event of Default is cured or at the time Deepwater shall have fulfilled all its obligations arising upon such Event of Default. If, in addition to such refund refund, credit or creditreduction or deemed refund, as the case may be, such Tax Indemnitee receives Indemnified Party shall receive (or is credited withwould have received but for a counterclaim or other claim not indemnified by Deepwater hereunder) an amount representing interest on the amount of such refund refund, credit or creditreduction, or deemed refund, as the case may be, such Tax Indemnitee Indemnified Party shall pay to Borrower Deepwater within thirty (30) 30 days after receiving or realizing of such credit receipt or, in the case of a deemed refund, within 30 days of the final determination of such deemed refund, that proportion of such interest that shall be fairly attributable to Taxes paid, reimbursed, reimbursed or advanced by Borrower before Deepwater prior to the receipt of such refund or realization of such credit. If a Tax Indemnitee pays Borrower any amount under this Section 10(c)(vi) and if and to the extent that it is subsequently determined pursuant to a contest conducted in accordance with Section 10(c)(v) that such Tax Indemnitee was not entitled to the refund for which such Tax Indemnitee made such payment to Borrower, such determination shall be treated as the imposition of a Tax for which Borrower is obligated to indemnify such Tax Indemnitee pursuant to the provisions of Section 10(c)(ii), without regard to the provisions of Section 10(c)(iii) (other than Section 10(c)(iii)(5), (8) or (10)). Notwithstanding anything to the contrary herein, if Borrower provides a Tax Indemnitee with a written notice setting forth facts and circumstances which create a reasonable possibility of a refund of (or a credit against other liability with respect to) an indemnified Tax, such Tax Indemnitee shall make a determination as to whether it has received such a refund (or is entitled to such a credit). If a Tax Indemnitee determines that it has received such a refund (or is entitled to such a credit) it shall pay such refund (or the amount of such credit) to Borrower in accordance with the terms of this Section 10(c)(vi). For the avoidance of doubt, in no event shall any Tax Indemnitee be required to make available any of its Tax Documents (or any other information related to its Taxes it deems confidential), to Borrower or any other Person (except as provided in Section 10(c)(iv)(2) of this Agreement)deemed refund.

Refund. If in the ordinary course of administering its Tax affairs any a Tax Indemnitee determines or discovers the existence of obtains a refund, or that such Tax Indemnitee is entitled to a credit against other liability, which such refund or credit is in whole of all or in part directly attributable to of any Taxes paid, reimbursed, reimbursed or advanced by Borrower Oglethorpe pursuant to this Section 10(c)11.2, such the Tax Indemnitee promptly shall pay to Borrower within 30 days of such receipt an amount equal to the lesser of (a) Oglethorpe the amount of such refund or credit that is directly attributable to Taxes paid, reimbursed plus or advanced by Borrower plus minus any net tax Tax benefit (taking into account or detriment realized by such Tax Indemnitee as a result of any Taxes incurred by such Tax Indemnitee by reason of the receipt or accrual of such refund or realization credit as well as any Tax benefits or credits by reason of such creditpayment to Oglethorpe (determined using the same assumptions as set forth in the second sentence under the definition of After-Tax Basis), provided that (A) actually realized by if at the time such Tax Indemnitee as payment is due to Oglethorpe a result Bankruptcy Default, Payment Default or Event of any payment by Default under the Facility Lease or a Sublease Bankruptcy Default, Sublease Payment Default or Sublease Event of Default shall have occurred and be continuing, such Tax Indemnitee made amount shall not be payable until such Bankruptcy Default, Payment Default or Event of Default under the Facility Lease or Sublease Bankruptcy Default, Sublease Payment Default, or Sublease Event of Default has been cured, and (B) the amount payable to Oglethorpe pursuant to this sentence (including this clause net of any amount in respect of any tax benefit realized by reason of the payment hereunder) shall not exceed the amount of the indemnity payment in respect of such refunded or credited Taxes that was made by Oglethorpe (anet of any amount that was necessary to make such payment on an After-Tax Basis)), and (b) such tax payment, reimbursement, or advance by Borrower . If it is subsequently determined that the Tax Indemnitee was not entitled to such Tax Indemnitee theretofore made pursuant to this Section 10(c) (and refund or credit, the excess, if any, portion of such refund or credit that is repaid or recaptured will be treated as Taxes for which Oglethorpe must indemnify the amount described in clause (a) over the amount described in clause (b) shall be carried forward and applied to reduce pro tanto any subsequent obligation of Borrower to make payments to such Tax Indemnitee pursuant to this Section 10(c))11.2 without regard to paragraph (b) hereof. If, in addition connection with a refund or credit of all or part of any Taxes paid, reimbursed or advanced by Oglethorpe pursuant to this Section 11.2, a Tax Indemnitee receives an amount representing interest on such refund or credit, such the Tax Indemnitee receives (or is credited with) an amount representing interest on promptly shall pay to Oglethorpe the amount of such refund or credit, such Tax Indemnitee interest that shall pay to Borrower within thirty (30) days after receiving or realizing such credit that proportion of such interest be fairly attributable to such Taxes paid, reimbursed, reimbursed or advanced by Borrower before Oglethorpe prior to the receipt of such refund or realization credit net of Taxes payable in respect of such credit. If a Tax Indemnitee pays Borrower any amount under this Section 10(c)(vi) and if and to the extent that it is subsequently determined pursuant to a contest conducted in accordance with Section 10(c)(v) that such Tax Indemnitee was not entitled to the refund for which such Tax Indemnitee made such payment to Borrower, such determination shall be treated as the imposition of a Tax for which Borrower is obligated to indemnify such Tax Indemnitee pursuant to the provisions of Section 10(c)(ii), without regard to the provisions of Section 10(c)(iii) (other than Section 10(c)(iii)(5), (8) or (10)). Notwithstanding anything to the contrary herein, if Borrower provides a Tax Indemnitee with a written notice setting forth facts and circumstances which create a reasonable possibility of a refund of (or a credit against other liability with respect to) an indemnified Tax, such Tax Indemnitee shall make a determination as to whether it has received such a refund (or is entitled to such a credit). If a Tax Indemnitee determines that it has received such a refund (or is entitled to such a credit) it shall pay such refund (or the amount of such credit) to Borrower in accordance with the terms of this Section 10(c)(vi). For the avoidance of doubt, in no event shall any Tax Indemnitee be required to make available any of its Tax Documents (or any other information related to its Taxes it deems confidential), to Borrower or any other Person (except as provided in Section 10(c)(iv)(2) of this Agreement)receipt.

Refund. If in the ordinary course an Indemnified Party shall receive a refund of administering its Tax affairs (or ------ receive a credit against, or any other current reduction in, any Tax Indemnitee determines not indemnified by Deepwater under this Section 10.4, in respect of) all or discovers the existence part of ------------ any Taxes which Deepwater shall have paid on behalf of such Indemnified Party or for which Deepwater shall have reimbursed, advanced funds to or indemnified such Indemnified Party (or would have received such a refund, credit or that such Tax Indemnitee is entitled to reduction but for a credit against counterclaim or other liability, which such refund or credit is in whole or in part directly attributable to any Taxes paid, reimbursed, or advanced claim not indemnified by Borrower pursuant to Section 10(cDeepwater hereunder (a "deemed refund")), such Tax Indemnitee shall pay to Borrower within 30 days of such receipt (or, in the case of a deemed -------------- refund, within 30 days of the final determination of such deemed refund), such Indemnified Party shall pay or repay to Deepwater an amount equal to the lesser of (a) the amount of such refund or credit that is directly attributable to Taxes paiddeemed refund, reimbursed or advanced by Borrower plus any net tax benefit (taking into account any Taxes incurred by such Tax Indemnitee Indemnified Party by reason of the receipt of such refund refund, credit or realization of such creditreduction or deemed refund) actually realized by such Tax Indemnitee Indemnified Party as a result of any payment by such Tax Indemnitee Indemnified Party made pursuant to this sentence; provided, however, that such Indemnified Party shall not be obligated -------- ------- to make any payment pursuant to this sentence to the extent that the amount of such payment would exceed (including this clause (a)), and (bx) such tax payment, reimbursement, or advance the amount of all prior payments made by Borrower Deepwater to such Tax Indemnitee theretofore made Indemnified Party pursuant to this Section 10(c10.4 less (y) (and the excess, if any, of the amount described in clause (a) over the amount described in clause (b) shall be carried forward and applied of ------------ all prior payments by such Indemnified Party to reduce pro tanto any subsequent obligation of Borrower to make payments to such Tax Indemnitee Deepwater pursuant to this Section 10(c10.4(g)); provided, further, however, that such Indemnified Party shall ---------------- -------- ------- ------- not be obligated to make any payment to Deepwater pursuant to this sentence while a Charter Event of Default is continuing, but shall be required to make such payment at such time as the Charter Event of Default is cured or at the time Deepwater shall have fulfilled all its obligations arising upon such Charter Event of Default. If, in addition to such refund refund, credit or creditreduction or deemed refund, as the case may be, such Tax Indemnitee receives Indemnified Party shall receive (or is credited withwould have received but for a counterclaim or other claim not indemnified by Deepwater hereunder) an amount representing interest on the amount of such refund refund, credit or creditreduction, or deemed refund, as the case may be, such Tax Indemnitee Indemnified Party shall pay to Borrower Deepwater within thirty (30) 30 days after receiving or realizing of such credit receipt or, in the case of a deemed refund, within 30 days of the final determination of such deemed refund, that proportion of such interest that shall be fairly attributable to Taxes paid, reimbursed, reimbursed or advanced by Borrower before Deepwater prior to the receipt of such refund or realization of such credit. If a Tax Indemnitee pays Borrower any amount under this Section 10(c)(vi) and if and to the extent that it is subsequently determined pursuant to a contest conducted in accordance with Section 10(c)(v) that such Tax Indemnitee was not entitled to the refund for which such Tax Indemnitee made such payment to Borrower, such determination shall be treated as the imposition of a Tax for which Borrower is obligated to indemnify such Tax Indemnitee pursuant to the provisions of Section 10(c)(ii), without regard to the provisions of Section 10(c)(iii) (other than Section 10(c)(iii)(5), (8) or (10)). Notwithstanding anything to the contrary herein, if Borrower provides a Tax Indemnitee with a written notice setting forth facts and circumstances which create a reasonable possibility of a refund of (or a credit against other liability with respect to) an indemnified Tax, such Tax Indemnitee shall make a determination as to whether it has received such a refund (or is entitled to such a credit). If a Tax Indemnitee determines that it has received such a refund (or is entitled to such a credit) it shall pay such refund (or the amount of such credit) to Borrower in accordance with the terms of this Section 10(c)(vi). For the avoidance of doubt, in no event shall any Tax Indemnitee be required to make available any of its Tax Documents (or any other information related to its Taxes it deems confidential), to Borrower or any other Person (except as provided in Section 10(c)(iv)(2) of this Agreement)deemed refund.

Refund. If in the ordinary course of administering its Tax affairs any a Tax Indemnitee determines or discovers the existence of obtains a refund, or that such Tax Indemnitee is entitled to a credit against other liability, which such refund or credit is in whole of all or in part directly attributable to of any Taxes paid, reimbursed, reimbursed or advanced by Borrower TVA pursuant to this Section 10(c)9.2, such the Tax Indemnitee promptly shall pay to Borrower within 30 days of such receipt an amount equal to the lesser of TVA (ax) the amount of such refund or credit that is directly attributable plus (y) an amount equal to Taxes paidany United States Federal, reimbursed state or advanced by Borrower plus any net local income tax benefit (taking into account any Taxes incurred by such Tax Indemnitee by reason of the receipt of such refund or realization of such credit) actually realized by such Tax Indemnitee as a result of any the payments to TVA under clause (x) above and this clause (y) (such amounts to be determined using the same assumptions as set forth in the second sentence under the definition of After-Tax Basis), provided that (A) if at the time such payment by is due to TVA a Lease Event of Default shall have occurred and be continuing, such Tax Indemnitee made amount shall not be payable until such Lease Event of Default has been cured and (B) the amount payable to TVA pursuant to this sentence (including this clause (a)), and (bshall not exceed the amount of the indemnity(ies) paid pursuant to Section 9.2 in respect of such tax payment, reimbursement, refunded or advance by Borrower credited Taxes. If it is subsequently determined that the Tax Indemnitee was not entitled to such Tax Indemnitee theretofore made pursuant refund or credit, the portion of such refund or credit that is required to this Section 10(c) (and be repaid or recaptured will be treated as Taxes for which TVA shall indemnify the excess, if any, of the amount described in clause (a) over the amount described in clause (b) shall be carried forward and applied to reduce pro tanto any subsequent obligation of Borrower to make payments to such Tax Indemnitee pursuant to this Section 10(c))9.2 without regard to paragraph (b) hereof. If, in addition connection with a refund or credit of all or part of any Taxes paid, reimbursed or advanced by TVA pursuant to this Section 9.2, a Tax Indemnitee receives an amount representing interest on such refund or credit, such the Tax Indemnitee receives promptly shall pay to TVA (or is credited with1) an amount representing interest on the amount of such refund or credit, such Tax Indemnitee interest that shall pay to Borrower within thirty (30) days after receiving or realizing such credit that proportion of such interest be fairly attributable to such Taxes paid, reimbursed, reimbursed or advanced by Borrower before TVA prior to the receipt of such refund or realization of such credit. If a credit and (2) any Tax Indemnitee pays Borrower any amount under this Section 10(c)(vi) and if and to the extent that it is subsequently determined pursuant to a contest conducted in accordance with Section 10(c)(v) that savings realized by such Tax Indemnitee was not entitled to as a result of the refund for which payments made by the Tax Indemnitee under (1) and (2) (such Tax Indemnitee made such payment savings to Borrower, such determination shall be treated determined using the same assumptions as set forth in the imposition second sentence under the definition of a After-Tax for which Borrower is obligated to indemnify such Tax Indemnitee pursuant to the provisions of Section 10(c)(ii), without regard to the provisions of Section 10(c)(iii) (other than Section 10(c)(iii)(5), (8) or (10)). Notwithstanding anything to the contrary herein, if Borrower provides a Tax Indemnitee with a written notice setting forth facts and circumstances which create a reasonable possibility of a refund of (or a credit against other liability with respect to) an indemnified Tax, such Tax Indemnitee shall make a determination as to whether it has received such a refund (or is entitled to such a credit). If a Tax Indemnitee determines that it has received such a refund (or is entitled to such a credit) it shall pay such refund (or the amount of such credit) to Borrower in accordance with the terms of this Section 10(c)(vi). For the avoidance of doubt, in no event shall any Tax Indemnitee be required to make available any of its Tax Documents (or any other information related to its Taxes it deems confidential), to Borrower or any other Person (except as provided in Section 10(c)(iv)(2) of this AgreementBasis).

Refund. If in the ordinary course of administering its Tax affairs any a Tax Indemnitee determines obtains a refund or discovers the existence of credit or would have received such refund or credit but for a refund, counterclaim or that such Tax Indemnitee is entitled to a credit other claim not indemnified by Midwest hereunder against other liability, which such refund or credit is in whole has not been applied (an "offset refund or in credit") of all or part directly attributable to of any Taxes paid, reimbursed, reimbursed or advanced by Borrower Midwest pursuant to this Section 10(c)14.2, such the Tax Indemnitee shall pay to Borrower Midwest within 30 15 days of such receipt receipt, or in the case of an amount equal to offset refund or credit, within 15 days of the lesser resolution of such contest (ax) the amount of such refund or credit that is directly attributable (net of any Tax payable by the Tax Indemnitee as a result of the receipt or accrual of such refund or credit) plus (y) an amount equal to Taxes paid, reimbursed or advanced by Borrower plus any net tax benefit (taking into account any Taxes incurred Tax Benefit realized by such Tax Indemnitee by reason of such payment to Midwest (determined using the receipt same assumptions as set forth in the second sentence under the definition of After-Tax Basis), PROVIDED that (A) if at the time such refund or realization payment is due to Midwest a Lease Event of Default shall have occurred and be continuing, such creditamount shall not be payable until such Lease Event of Default has been cured, and (B) actually realized by such Tax Indemnitee as a result of any payment by such Tax Indemnitee made the amount payable to Midwest pursuant to this sentence (including this clause (a)), and (b) shall not exceed the amount of the indemnity payment in respect of such tax payment, reimbursement, refunded or advance credited Taxes that was made by Borrower to such Tax Indemnitee theretofore made pursuant to this Section 10(c) Midwest (and the excess, if any, of the amount described in clause (a) over the amount described in clause (b) such excess shall be carried forward and applied to reduce pro tanto any subsequent obligation obligations of Borrower Midwest to make payments to such Tax Indemnitee pursuant to this Section 10(c)14.2). If, in addition If it is subsequently determined that the Tax Indemnitee was not entitled to such refund or credit, the portion of such refund or credit that is required to be repaid or recaptured will be treated as Taxes for which Midwest must indemnify the Tax Indemnitee pursuant to this Section 14.2 without regard to paragraph (b) hereof. If, in connection with a refund or credit of all or part of any Taxes paid, reimbursed or advanced by Midwest pursuant to this Section 14.2, a Tax Indemnitee receives (or is credited with) an amount representing interest on the amount of such refund or credit, such the Tax Indemnitee shall pay to Borrower Midwest within thirty 15 days (301) days after receiving or realizing such credit that proportion the amount of such interest that shall be fairly attributable to such Taxes paid, reimbursed, reimbursed or advanced by Borrower before Midwest prior to the receipt of such refund or realization credit (net of Taxes payable in respect of the receipt or accrual of such credit. If a interest) and (2) any Tax savings resulting from payments made by the Tax Indemnitee pays Borrower any amount under this Section 10(c)(vi) and if and to the extent that it is subsequently determined pursuant to a contest conducted in accordance with Section 10(c)(v) that such Tax Indemnitee was not entitled to the refund for which such Tax Indemnitee made such payment to Borrower, such determination shall be treated as the imposition of a Tax for which Borrower is obligated to indemnify such Tax Indemnitee pursuant to the provisions of Section 10(c)(ii), without regard to the provisions of Section 10(c)(iii) (other than Section 10(c)(iii)(5), (8) or (10)). Notwithstanding anything to the contrary herein, if Borrower provides a Tax Indemnitee with a written notice setting forth facts and circumstances which create a reasonable possibility of a refund of (or a credit against other liability with respect to) an indemnified Tax, such Tax Indemnitee shall make a determination as to whether it has received such a refund (or is entitled to such a credit). If a Tax Indemnitee determines that it has received such a refund (or is entitled to such a credit) it shall pay such refund (or the amount of such credit) to Borrower in accordance with the terms of this Section 10(c)(vi). For the avoidance of doubt, in no event shall any Tax Indemnitee be required to make available any of its Tax Documents (or any other information related to its Taxes it deems confidential), to Borrower or any other Person (except as provided in Section 10(c)(iv)(2) of this Agreement)14.2.

Refund. If Upon termination of this Contract, after occupancy of the Living Accommodation as provided in the ordinary course of administering its Tax affairs any Tax Indemnitee determines this Section B, we and our parent company, BSL/BN Commons JV Company LLC, jointly and severally, agree to pay you or discovers the existence your estate a refund of a refundportion of the Entrance Fee in an amount and at the time(s) set forth below:‌ If the Contract is terminated for any reason (whether by you, by us or upon your death in accordance with Section VI.B.3) at any time after you assume occupancy of The Living Accommodation, we shall refund a portion of your Entrance Fee equal to (x) the Total Entrance Fee less one percent (1%) of the Total Entrance Fee for each month of occupancy, if termination of this Contract occurs within the first ten months following your occupancy of The Living Accommodation and (y) thereafter, an amount that equals 90% of the Primary Entrance Fee plus the positive difference, if any, between (i) the Total Entrance Fee less one percent (1%) of the Total Entrance Fee for each month of occupancy and (ii) ninety percent (90%) of the Primary Entrance Fee, in each case less any deductions permitted by this Contract that have not been separately paid (the “Entrance Fee Refund”). Any Entrance Fee Refund shall be paid within 60 days after fulfillment of the following conditions: (a) you have vacated and you or your Legal Representative or family have removed all possessions from The Living Accommodation and paid all outstanding fees and charges; and (b) a new resident has signed a Residency Contract for The Living Accommodation, has paid the entrance fee therefor and has commenced occupancy of The Living Accommodation (a “Qualified Resale”). If there has not been a Qualified Resale of your Living Accommodation within a reasonable period of time, in our sole discretion, then we will so notify you or your Legal Representative. You or your Legal Representative may then either (i) direct us to continue marketing The Living Accommodation, in which case you shall receive the Entrance Fee Refund only at such time as there is a Qualified Resale of The Living Accommodation, or (ii) agree to accept in lieu of the Entrance Fee Refund specified above an amount that such Tax Indemnitee is entitled to a credit against other liabilityequals the Entrance Fee less one percent (1%) of the Entrance Fee for each month of occupancy by you (the “Alternative Refund Amount”), which such refund or credit is in whole or in part directly attributable to any Taxes paid, reimbursed, or advanced by Borrower pursuant to Section 10(c), such Tax Indemnitee amount shall pay to Borrower be paid within 30 days of such receipt an amount equal to election. If you or your Legal Representative request that we continue marketing the lesser of (a) the amount of such refund or credit that is directly attributable to Taxes paid, reimbursed or advanced by Borrower plus any net tax benefit (taking into account any Taxes incurred by such Tax Indemnitee by reason of the receipt of such refund or realization of such credit) actually realized by such Tax Indemnitee as a result of any payment by such Tax Indemnitee made pursuant to this sentence (including this Living Accommodation under clause (a))i) above, and (b) such tax payment, reimbursement, or advance by Borrower to such Tax Indemnitee theretofore made pursuant to this Section 10(c) (and the excess, if any, of the amount described in clause (a) over the amount described in clause (b) shall be carried forward and applied to reduce pro tanto any subsequent obligation of Borrower to make payments to such Tax Indemnitee pursuant to this Section 10(c)). If, in addition to such refund or credit, such Tax Indemnitee receives you (or is credited with) an amount representing interest on the amount of such refund or credit, such Tax Indemnitee shall pay to Borrower within thirty (30) days after receiving or realizing such credit that proportion of such interest fairly attributable to Taxes paid, reimbursed, or advanced by Borrower before the receipt of such refund or realization of such credit. If a Tax Indemnitee pays Borrower any amount under this Section 10(c)(viyour Legal Representative) and if we shall review progress on an annual basis thereafter (or more frequently, as mutually agreed) and to you or your Legal Representative may elect the extent that it is subsequently determined pursuant to a contest conducted in accordance with Section 10(c)(v) that Alternative Refund Amount at any such Tax Indemnitee was not entitled to the refund for which such Tax Indemnitee made such payment to Borrower, such determination shall be treated as the imposition of a Tax for which Borrower is obligated to indemnify such Tax Indemnitee pursuant to the provisions of Section 10(c)(ii), without regard to the provisions of Section 10(c)(iii) (other than Section 10(c)(iii)(5), (8) or (10))review. Notwithstanding anything in this Section VI.C. to the contrary hereincontrary, if Borrower provides a Tax Indemnitee with a written notice setting forth facts and circumstances which create a reasonable possibility of a refund of (or a credit against other liability with respect to) an indemnified Tax, such Tax Indemnitee shall make a determination as to whether it has received such a refund (or is entitled to such a credit). If a Tax Indemnitee determines that it has received such a refund (or is entitled to such a credit) it shall pay such refund (either the Entrance Fee Refund or the amount Alternative Refund Amount, as applicable, shall in all events be paid to you or your estate or assignee by no later than the tenth anniversary of such credit) to Borrower in accordance with the terms date of this Section 10(c)(vi). For termination of the avoidance of doubt, in no event shall any Tax Indemnitee be required to make available any of its Tax Documents (or any other information related to its Taxes it deems confidential), to Borrower or any other Person (except as provided in Section 10(c)(iv)(2) of this Agreement)Contract.

Refund. If Upon termination of this Agreement as provided in the ordinary course of administering its Tax affairs any Tax Indemnitee determines this Section B, RESIDENT (or discovers the existence of a refund, or that such Tax Indemnitee is RESIDENT'S estate) shall be entitled to a credit against other liabilityrefund of a portion of the Entrance Fee (the "Entrance Fee Refund") in an amount and at the time(s) set forth below: a. If termination of this Agreement as provided in this Section B occurs within the first nine (9) months following RESIDENT’S occupancy of the Living Accommodation, which such RESIDENT shall be entitled to a refund or credit is in whole or in part directly attributable of the Entrance Fee, LESS any deductions permitted by this Agreement and LESS an amount equal to any Taxes paid, reimbursed, or advanced one percent (1%) of the Entrance Fee multiplied by Borrower pursuant to Section 10(c), such Tax Indemnitee the number of months of occupancy. Any Entrance Fee Refund payable under this paragraph shall pay to Borrower be paid within 30 one hundred eighty (180) days of such receipt the effective date of termination or, if later, the date upon which RESIDENT has vacated the Living Accommodation and removed RESIDENT'S personal property therefrom. b. If termination of this Agreement as provided in this Section B occurs after the ninth (9th) month following RESIDENT’S occupancy of the Living Accommodation, RESIDENT shall be entitled to a refund of ninety percent (90%) of the Entrance Fee LESS any deductions permitted by this Agreement. Any Entrance Fee Refund payable under this paragraph shall be paid in two installments: (1) the first installment shall be in an amount equal to the lesser of Entrance Fee less one percent (a1%) the amount of such refund or credit that is directly attributable to Taxes paid, reimbursed or advanced by Borrower plus any net tax benefit (taking into account any Taxes incurred by such Tax Indemnitee by reason of the receipt Entrance Fee per month of such refund or realization actual occupancy of such creditthe Living Accommodation and shall be paid within one hundred eighty (180) actually realized by such Tax Indemnitee as a result days of any payment by such Tax Indemnitee made pursuant to this sentence (including this clause (a))the effective date of termination or, if later, the date upon which RESIDENT has vacated RESIDENT'S Living Accommodation and removed RESIDENT'S personal property therefrom, and (b2) such tax payment, reimbursement, or advance by Borrower to such Tax Indemnitee theretofore made pursuant to this Section 10(c) (and the excesssecond installment shall be the balance of the Entrance Fee Refund due hereunder, if any, of the amount described in clause (a) over the amount described in clause (b) and shall be carried forward and applied to reduce pro tanto any subsequent obligation of Borrower to make payments to such Tax Indemnitee pursuant to this Section 10(c)). If, in addition to such refund or credit, such Tax Indemnitee receives (or is credited with) an amount representing interest on the amount of such refund or credit, such Tax Indemnitee shall pay to Borrower paid within thirty (30) days after following occupancy of the Living Accommodation by a new RESIDENT. Upon receiving or realizing such credit that proportion of such interest fairly attributable to Taxes paid, reimbursed, or advanced by Borrower before the receipt of such refund or realization of such credit. If a Tax Indemnitee pays Borrower any amount under this Section 10(c)(vi) and if and to the extent that it is subsequently determined pursuant to a contest conducted in accordance with Section 10(c)(v) that such Tax Indemnitee was not entitled to the refund for which such Tax Indemnitee made such payment to Borrower, such determination shall be treated as the imposition of a Tax for which Borrower is obligated to indemnify such Tax Indemnitee pursuant to the provisions of Section 10(c)(ii), without regard to the provisions of Section 10(c)(iii) (other than Section 10(c)(iii)(5), (8) or (10)). Notwithstanding anything to the contrary herein, if Borrower provides a Tax Indemnitee with a written notice setting forth facts and circumstances which create a reasonable possibility of a refund of (or a credit against other liability with respect to) an indemnified Tax, such Tax Indemnitee shall make a determination as to whether it has received such a refund (or is entitled to such a credit). If a Tax Indemnitee determines that it has received such a refund (or is entitled to such a credit) it shall pay such refund (or the amount of such credit) to Borrower in accordance with the terms termination of this Section 10(c)(vi). For the avoidance of doubtAgreement or upon determining that this Agreement will terminate for any reason, in no event whichever first occurs, NEWBURY COURT will use reasonable efforts to find a new RESIDENT to occupy RESIDENT’S Living Accommodation as quickly as possible, provided, however, NEWBURY COURT shall any Tax Indemnitee not be required to make available any of its Tax Documents (or any prevented from first filling other information related to its Taxes it deems confidential), to Borrower or any other Person (except as provided in Section 10(c)(iv)(2) of this Agreement)unoccupied Living Accommodations.

Refund. If in the ordinary course of administering its Tax affairs any Tax Indemnitee determines or discovers the existence of obtains a refund, or that such Tax Indemnitee is entitled to a credit against other liability, which such refund or credit is in whole of all or in part directly attributable to of any Taxes paid, reimbursed, reimbursed or advanced by Borrower the Sublessee pursuant to this Section 10(c), such 21.1 or a payment from a Head Lease Tax Indemnitee under Section 9.2(f) of the Participation Agreement with respect to a refund or credit of any Taxes indemnified by the Sublessee, the Tax Indemnitee promptly shall pay to Borrower within 30 days of such receipt an amount equal to the lesser of Sublessee (ax) the amount of such refund or credit (net of any Tax payable by the Tax Indemnitee or a Head Lease Tax Indemnitee as a result of the receipt or accrual of such refund or credit if the payment of such refund or credit by the Tax Indemnitee to the Sublessee or a Head Lease Tax Indemnitee to the Sublessor is not deductible against such Tax) plus (y) an amount equal to any United States federal, state or local income tax benefit realized by (i) such Tax Indemnitee as a result of the payments under clause (x) above and this clause (y) or (ii) the Head Lease Tax Indemnitee as a result of, and to the extent reflected in the calculation thereof, the payment by the Head Lease Tax Indemnitee under Section 9.2(f) of the Participation Agreement; provided that (A) if at the time such payment is directly attributable due to the Sublessee a Sublease Event of Default shall have occurred and be continuing, such amount shall not be payable until such Sublease Event of Default has been cured, and (B) the amount payable to the Sublessee pursuant to this sentence shall not exceed the amount of the indemnity(ies) paid pursuant to Section 21.1 in respect of such refunded or credited Taxes. If it is subsequently determined that the Tax Indemnitee or a Head Lease Tax Indemnitee was not entitled to such refund or credit, the portion of such refund or credit that was repaid to the Sublessee will be treated as Taxes for which the Sublessee must indemnify the Tax Indemnitee pursuant to this Section 21.1 without regard to Section 21.1(b) (other than Section 21.1(b)(iii)). If, in connection with a refund or credit of all or party of any Taxes paid, reimbursed or advanced by Borrower plus any net tax benefit (taking into account any Taxes incurred by such the Sublessee pursuant to this Section 21.1, the Tax Indemnitee receives an amount representing interest on such refund or credit, the Tax Indemnitee promptly shall pay to the Sublessee (1) the amount of such interest that shall be fairly attributable to such Taxes paid, reimbursed or advanced by reason of the Sublessee prior to the receipt of such refund or realization credit (net of Taxes payable in respect of the receipt or accrual of such creditinterest if the payment of such interest by the Head Lease Tax Indemnitee to the Tax Indemnitee or the Tax Indemnitee to the Sublessee is not deductible against such Tax) actually and (2) any Tax savings realized by such the Head Lease Tax Indemnitee or Tax Indemnitee as a result of any payment the payments made by such the Head Lease Tax Indemnitee made pursuant to this sentence or Tax Indemnitee as described under (including this clause (a)), 1) and (b) such tax payment, reimbursement, or advance by Borrower to such Tax Indemnitee theretofore made pursuant to this Section 10(c) (and the excess, if any, of the amount described in clause (a) over the amount described in clause (b) shall be carried forward and applied to reduce pro tanto any subsequent obligation of Borrower to make payments to such Tax Indemnitee pursuant to this Section 10(c)). If, in addition to such refund or credit, such Tax Indemnitee receives (or is credited with) an amount representing interest on the amount of such refund or credit, such Tax Indemnitee shall pay to Borrower within thirty (30) days after receiving or realizing such credit that proportion of such interest fairly attributable to Taxes paid, reimbursed, or advanced by Borrower before the receipt of such refund or realization of such credit. If a Tax Indemnitee pays Borrower any amount under this Section 10(c)(vi) and if and to the extent that it is subsequently determined pursuant to a contest conducted in accordance with Section 10(c)(v) that such Tax Indemnitee was not entitled to the refund for which such Tax Indemnitee made such payment to Borrower, such determination shall be treated as the imposition of a Tax for which Borrower is obligated to indemnify such Tax Indemnitee pursuant to the provisions of Section 10(c)(ii), without regard to the provisions of Section 10(c)(iii) (other than Section 10(c)(iii)(5), (8) or (10)). Notwithstanding anything to the contrary herein, if Borrower provides a Tax Indemnitee with a written notice setting forth facts and circumstances which create a reasonable possibility of a refund of (or a credit against other liability with respect to) an indemnified Tax, such Tax Indemnitee shall make a determination as to whether it has received such a refund (or is entitled to such a credit). If a Tax Indemnitee determines that it has received such a refund (or is entitled to such a credit) it shall pay such refund (or the amount of such credit) to Borrower in accordance with the terms of this Section 10(c)(vi). For the avoidance of doubt, in no event shall any Tax Indemnitee be required to make available any of its Tax Documents (or any other information related to its Taxes it deems confidential), to Borrower or any other Person (except as provided in Section 10(c)(iv)(2) of this Agreement2).

Refund. If in the ordinary course of administering its Tax affairs any Tax Indemnitee determines a Lender, an Issuing Bank or discovers the existence of a refund, or Agent shall become aware that such Tax Indemnitee it is entitled to claim a credit against other liability, refund from a Governmental Authority specifically in respect of Indemnified Taxes or Other Taxes as to which such refund or credit is in whole or in part directly attributable to any Taxes paid, reimbursedit has been indemnified by a Borrower, or advanced by with respect to which a Borrower pursuant to Section 10(c)has paid additional amounts, such Tax Indemnitee shall pay to Borrower within 30 days of such receipt an amount equal to the lesser of (a) the amount of such refund or credit that is directly attributable to Taxes paid, reimbursed or advanced by Borrower plus any net tax benefit (taking into account any Taxes incurred by such Tax Indemnitee by reason of the receipt of such refund or realization of such credit) actually realized by such Tax Indemnitee as a result of any payment by such Tax Indemnitee made pursuant to this sentence (including this clause (a)), and (b) such tax payment, reimbursement, or advance by Borrower to such Tax Indemnitee theretofore made pursuant to this Section 10(c) (and the excess2.16, if any, it shall promptly notify Borrower of the amount described in clause (a) over the amount described in clause (b) shall be carried forward availability of such refund claim and applied to reduce pro tanto any subsequent obligation shall, within 30 days after receipt of Borrower to a request by Borrower, make payments a claim to such Tax Indemnitee Governmental Authority for such refund at Borrower’s expense. If a Lender, an Issuing Bank or any Agent receives a refund (including pursuant to a claim for refund made pursuant to the preceding sentence) specifically in respect of any Indemnified Taxes or Other Taxes as to which it has been indemnified by Borrower or with respect to which Borrower had paid additional amounts pursuant to this Section 10(c)). If2.16, in addition to it shall within 30 days from the date of such receipt pay over such refund or credit, such Tax Indemnitee receives (or is credited with) an amount representing interest on the amount of such refund or credit, such Tax Indemnitee shall pay to Borrower within thirty (30) days after receiving but only to the extent of indemnity payments made, or realizing such credit that proportion of such interest fairly attributable to Taxes additional amounts paid, reimbursed, or advanced by Borrower before the receipt of such refund or realization of such credit. If a Tax Indemnitee pays Borrower any amount under this Section 10(c)(vi) and if and 2.16 with respect to the extent that it is subsequently determined pursuant Indemnified Taxes or Other Taxes giving rise to a contest conducted in accordance with Section 10(c)(v) that such Tax Indemnitee was not entitled to the refund for which such Tax Indemnitee made such payment to Borrower, such determination shall be treated as the imposition of a Tax for which Borrower is obligated to indemnify such Tax Indemnitee pursuant to the provisions of Section 10(c)(iirefund), net of all out–of–pocket expenses of such Lender, Issuing Bank or Agent and without regard to the provisions of Section 10(c)(iii) interest (other than Section 10(c)(iii)(5), (8) or (10)). Notwithstanding anything to interest paid by the contrary herein, if Borrower provides a Tax Indemnitee with a written notice setting forth facts and circumstances which create a reasonable possibility of a refund of (or a credit against other liability relevant Governmental Authority with respect to) an indemnified Tax, such Tax Indemnitee shall make a determination as to whether it has received such a refund (or is entitled to such a creditrefund). If a Tax Indemnitee determines ; provided, however, that it has received Borrower, upon the request of such a refund Lender, Issuing Bank or Agent, agrees to repay the amount paid over to Borrower (plus penalties, interest or is entitled other charges) to such a credit) it shall pay Lender, Issuing Bank or Agent in the event such Lender, Issuing Bank or Agent is required to repay such refund (or the amount of to such credit) to Borrower in accordance with the terms of this Section 10(c)(vi). For the avoidance of doubt, in no event shall any Tax Indemnitee be required to make available any of its Tax Documents (or any other information related to its Taxes it deems confidential), to Borrower or any other Person (except as provided in Section 10(c)(iv)(2) of this Agreement)Governmental Authority.

Refund. If in the ordinary course of administering its Tax affairs any a Tax Indemnitee determines or discovers the existence of obtains a refund, or that such Tax Indemnitee is entitled to a credit against other liability, which such refund or credit is in whole of all or in ------ part directly attributable to of any Taxes paid, reimbursed, reimbursed or advanced by Borrower the Company pursuant to this Section 10(c)9.2, such the Tax Indemnitee promptly shall pay to Borrower within 30 days of such receipt an amount equal to the lesser of Company (ax) the amount of such refund or credit that is directly attributable to Taxes paid, reimbursed or advanced (net of any Tax payable by Borrower plus any net tax benefit (taking into account any Taxes incurred by such the Tax Indemnitee by reason as a result of the receipt or accrual of such refund or realization credit if the payment of such creditrefund or credit by the Tax Indemnitee to the Company is not deductible against such Tax) actually plus (y) an amount equal to any United States federal, state or local income tax benefit realized by such Tax Indemnitee as a result of any the payments to the Company under clause (x) above and this clause (y) (such benefit to be determined using the same assumptions as set forth in the second sentence under the definition of After-Tax Basis), provided that (A) if at the time such payment by is due to the Company a Significant Lease Default or Lease Event of Default shall have occurred and be continuing, such Tax Indemnitee made amount shall not be payable until such Significant Lease Default or Lease Event of Default has been cured, and (B) the amount payable to the Company pursuant to this sentence (including this clause (a)), and (bshall not exceed the amount of the indemnity(ies) paid pursuant to Section 9.2 in respect of such tax payment, reimbursement, refunded or advance by Borrower credited Taxes. If it is subsequently determined that the Tax Indemnitee was not entitled to such Tax Indemnitee theretofore made pursuant refund or credit, the portion of such refund or credit that is required to this Section 10(c) (and be repaid or recaptured will be treated as Taxes for which the excess, if any, of Company must indemnify the amount described in clause (a) over the amount described in clause (b) shall be carried forward and applied to reduce pro tanto any subsequent obligation of Borrower to make payments to such Tax Indemnitee pursuant to this Section 10(c)9.2 without regard to Section 9.2(b) (other than Section 9.2(b)(iii) ). If, in addition connection with a refund or credit of all or part of any Taxes paid, reimbursed or advanced by the Company pursuant to this Section 9.2, a Tax Indemnitee receives an amount representing interest on such refund or credit, such the Tax Indemnitee receives promptly shall pay to the Company (or is credited with1) an amount representing interest on the amount of such refund or credit, such Tax Indemnitee interest that shall pay to Borrower within thirty (30) days after receiving or realizing such credit that proportion of such interest be fairly attributable to such Taxes paid, reimbursed, reimbursed or advanced by Borrower before the Company prior to the receipt of such refund or realization credit (net of Taxes payable in respect of the receipt or accrual of such credit. If a interest if the payment of such interest by the Tax Indemnitee pays Borrower any amount under this Section 10(c)(vito the Company is not deductible against such Tax) and if and to the extent that it is subsequently determined pursuant to a contest conducted in accordance with Section 10(c)(v(2) that any Tax savings realized by such Tax Indemnitee was not entitled to as a result of the refund for which payments made by the Tax Indemnitee under (1) and (2) (such Tax Indemnitee made such payment savings to Borrower, such determination shall be treated determined using the same assumptions as set forth in the imposition second sentence under the definition of a After-Tax for which Borrower is obligated to indemnify such Tax Indemnitee pursuant to the provisions of Section 10(c)(ii), without regard to the provisions of Section 10(c)(iii) (other than Section 10(c)(iii)(5), (8) or (10)). Notwithstanding anything to the contrary herein, if Borrower provides a Tax Indemnitee with a written notice setting forth facts and circumstances which create a reasonable possibility of a refund of (or a credit against other liability with respect to) an indemnified Tax, such Tax Indemnitee shall make a determination as to whether it has received such a refund (or is entitled to such a credit). If a Tax Indemnitee determines that it has received such a refund (or is entitled to such a credit) it shall pay such refund (or the amount of such credit) to Borrower in accordance with the terms of this Section 10(c)(vi). For the avoidance of doubt, in no event shall any Tax Indemnitee be required to make available any of its Tax Documents (or any other information related to its Taxes it deems confidential), to Borrower or any other Person (except as provided in Section 10(c)(iv)(2) of this AgreementBasis).

Refund. If Upon termination of this Agreement as provided in the ordinary course of administering its Tax affairs any Tax Indemnitee determines this Section B, RESIDENT (or discovers the existence of a refund, or that such Tax Indemnitee is RESIDENT'S estate) shall be entitled to a credit against other liabilityrefund of a portion of the Entrance Fee (the "Entrance Fee Refund") in an amount and at the time(s) set forth below: If termination of this Agreement as provided in this Section B occurs within the first nine (9) months following RESIDENT’S occupancy of the Living Accommodation, which such RESIDENT shall be entitled to a refund or credit is in whole or in part directly attributable of the Entrance Fee, LESS any deductions permitted by this Agreement and LESS an amount equal to any Taxes paid, reimbursed, or advanced one percent (1%) of the Entrance Fee multiplied by Borrower pursuant to Section 10(c), such Tax Indemnitee the number of months of occupancy. Any Entrance Fee Refund payable under this paragraph shall pay to Borrower be paid within 30 one hundred eighty (180) days of such receipt the effective date of termination or, if later, the date upon which RESIDENT has vacated the Living Accommodation and removed RESIDENT'S personal property therefrom. If termination of this Agreement as provided in this Section B occurs after the ninth (9th) month following RESIDENT’S occupancy of the Living Accommodation, RESIDENT shall be entitled to a refund of ninety percent (90%) of the Entrance Fee LESS any deductions permitted by this Agreement. Any Entrance Fee Refund payable under this paragraph shall be paid in two installments: (1) the first installment shall be in an amount equal to the lesser of Entrance Fee less one percent (a1%) the amount of such refund or credit that is directly attributable to Taxes paid, reimbursed or advanced by Borrower plus any net tax benefit (taking into account any Taxes incurred by such Tax Indemnitee by reason of the receipt Entrance Fee per month of such refund or realization actual occupancy of such creditthe Living Accommodation and shall be paid within one hundred eighty (180) actually realized by such Tax Indemnitee as a result days of any payment by such Tax Indemnitee made pursuant to this sentence (including this clause (a))the effective date of termination or, if later, the date upon which RESIDENT has vacated RESIDENT'S Living Accommodation and removed RESIDENT'S personal property therefrom, and (b2) such tax payment, reimbursement, or advance by Borrower to such Tax Indemnitee theretofore made pursuant to this Section 10(c) (and the excesssecond installment shall be the balance of the Entrance Fee Refund due hereunder, if any, of the amount described in clause (a) over the amount described in clause (b) and shall be carried forward and applied to reduce pro tanto any subsequent obligation of Borrower to make payments to such Tax Indemnitee pursuant to this Section 10(c)). If, in addition to such refund or credit, such Tax Indemnitee receives (or is credited with) an amount representing interest on the amount of such refund or credit, such Tax Indemnitee shall pay to Borrower paid within thirty (30) days after following occupancy of the Living Accommodation by a new RESIDENT. Upon receiving or realizing such credit that proportion of such interest fairly attributable to Taxes paid, reimbursed, or advanced by Borrower before the receipt of such refund or realization of such credit. If a Tax Indemnitee pays Borrower any amount under this Section 10(c)(vi) and if and to the extent that it is subsequently determined pursuant to a contest conducted in accordance with Section 10(c)(v) that such Tax Indemnitee was not entitled to the refund for which such Tax Indemnitee made such payment to Borrower, such determination shall be treated as the imposition of a Tax for which Borrower is obligated to indemnify such Tax Indemnitee pursuant to the provisions of Section 10(c)(ii), without regard to the provisions of Section 10(c)(iii) (other than Section 10(c)(iii)(5), (8) or (10)). Notwithstanding anything to the contrary herein, if Borrower provides a Tax Indemnitee with a written notice setting forth facts and circumstances which create a reasonable possibility of a refund of (or a credit against other liability with respect to) an indemnified Tax, such Tax Indemnitee shall make a determination as to whether it has received such a refund (or is entitled to such a credit). If a Tax Indemnitee determines that it has received such a refund (or is entitled to such a credit) it shall pay such refund (or the amount of such credit) to Borrower in accordance with the terms termination of this Section 10(c)(vi). For the avoidance of doubtAgreement or upon determining that this Agreement will terminate for any reason, in no event whichever first occurs, NEWBURY COURT will use reasonable efforts to find a new RESIDENT to occupy RESIDENT’S Living Accommodation as quickly as possible, provided, however, NEWBURY COURT shall any Tax Indemnitee not be required to make available any of its Tax Documents (or any prevented from first filling other information related to its Taxes it deems confidential), to Borrower or any other Person (except as provided in Section 10(c)(iv)(2) of this Agreement)unoccupied Living Accommodations.

Refund. If in the ordinary course of administering its Tax affairs any Tax Indemnitee determines or discovers the existence of a refund, or that such Tax Indemnitee is entitled to a credit against other liability, which such refund or credit is in whole or in part directly attributable to any Taxes paid, reimbursed, or advanced by Borrower pursuant to Section 10(c), such Tax Indemnitee shall pay to Borrower within 30 days of such receipt an amount equal to the lesser of (a) the amount of such refund or credit that is directly attributable to Taxes paid, reimbursed or advanced by Borrower plus any net tax benefit (taking into account any Taxes incurred by such Tax Indemnitee by reason of the receipt of such refund or realization of such credit) actually realized by such Tax Indemnitee as a result of any payment by such Tax Indemnitee made pursuant to this sentence (including this clause (a)), and (b) such tax payment, reimbursement, or advance by Borrower to such Tax Indemnitee theretofore made pursuant to this Section 10(c) (and the excess, if any, of the amount described in clause (a) over the amount described in clause (b) shall be carried forward and applied to reduce pro tanto any subsequent obligation of Borrower to make payments to such Tax Indemnitee pursuant to this Section 10(c)). If, in addition to such refund or credit, such Tax Indemnitee receives (or is credited with) an amount representing interest on the amount of such refund or credit, such Tax Indemnitee shall pay to Borrower within thirty (30) days after receiving or realizing such credit that proportion of such interest fairly attributable to Taxes paid, reimbursed, or advanced by Borrower before the receipt of such refund or realization of such credit. If a Tax Indemnitee pays Borrower any amount under this Section 10(c)(vi) and if and to the extent that it is subsequently determined pursuant to a contest conducted in accordance with Section 10(c)(v) that such Tax Indemnitee was not entitled to the refund for which such Tax Indemnitee made such payment to Borrower, such determination shall be treated as the imposition of a Tax for which Borrower is obligated to indemnify such Tax Indemnitee pursuant to the provisions of Section 10(c)(ii), without regard to the provisions of Section 10(c)(iii) (other than Section 10(c)(iii)(5), (8) or (10)). Notwithstanding anything to the contrary herein, if Borrower provides a Tax Indemnitee with a written notice setting forth facts and circumstances which create a reasonable possibility of a refund of (or a credit against other liability with respect to) an indemnified Tax, such Tax Indemnitee shall make a determination as to whether it has received such a refund (or is entitled to such a credit). If a Tax Indemnitee determines that it has received such a refund (or is entitled to such a credit) it shall pay such refund (or the amount of such credit) to Borrower in accordance with the terms of this Section 10(c)(vi). For the avoidance of doubt, in no event shall any Tax Indemnitee be required to make available any of its Tax Documents (or any other information related to its Taxes it deems confidential), to Borrower or any other Person (except as provided in Section 10(c)(iv)(2) of this Agreement).Section

Refund. If in the ordinary course of administering its Tax affairs any a Tax Indemnitee determines or discovers the existence of obtains a refund, or that such Tax Indemnitee is entitled to a credit against other liability, which such refund or credit is in whole of all or in part directly attributable to of any Taxes paid, reimbursed, reimbursed or advanced by Borrower AEE pursuant to this Section 10(c)10.2, such the Tax Indemnitee promptly shall pay to Borrower within 30 days of such receipt an amount equal to the lesser of AEE (ax) the amount of such refund or credit plus (y) an amount equal to any federal, state or local income tax benefit realized by such Tax Indemnitee by reason of such payment to AEE (determined using the same assumptions as set forth in the second sentence under the definition of After-Tax Basis); provided, however, that (A) if at the time such payment is due to AEE a Lease Material Default or Lease Event of Default shall have occurred and be then continuing, such amount shall not be payable until such Lease Material Default or Lease Event of Default has been cured and (B) the amount payable to AEE pursuant to this sentence shall not exceed the amount of the indemnity payment in respect of such refunded or credited Taxes that was made by AEE; provided, further, that the Tax Indemnitee may offset any amount due under this Section 10.2(f) against payments or indemnitees then due by AEE pursuant to the Operative Documents. If it is subsequently determined that the Tax Indemnitee was not entitled to such refund or credit, the portion of such refund or credit that is directly attributable repaid or recaptured shall be treated as Taxes for which AEE must indemnify the Tax Indemnitee pursuant to this Section 10.2, without regard to Sections 10.2 (b). If, in connection with a refund or credit of all or part of any Taxes paid, reimbursed or advanced by Borrower plus any net tax benefit (taking into account any Taxes incurred by such AEE pursuant to this Section 10.2, a Tax Indemnitee receives or is credited with an amount representing interest on such refund or credit, the Tax Indemnitee promptly shall pay to AEE the amount of such interest that shall be fairly attributable to such Taxes paid, reimbursed or advanced by reason of AEE prior to the receipt of such refund or realization of such credit) actually realized by such Tax Indemnitee as a result of credit (less any payment by such Tax Indemnitee made pursuant Taxes paid or accrued with respect to this sentence (including this clause (a)), and (b) such tax payment, reimbursement, or advance by Borrower to such Tax Indemnitee theretofore made pursuant to this Section 10(c) (and the excess, if any, of the amount described in clause (a) over the amount described in clause (b) shall be carried forward and applied to reduce pro tanto any subsequent obligation of Borrower to make payments to such Tax Indemnitee pursuant to this Section 10(c)). If, in addition to such refund or credit, such Tax Indemnitee receives (or is credited with) an amount representing interest on the amount of such refund or credit, such Tax Indemnitee shall pay to Borrower within thirty (30) days after receiving or realizing such credit that proportion of such interest fairly attributable to Taxes paid, reimbursed, or advanced by Borrower before the receipt of such refund or realization of such credit. If a Tax Indemnitee pays Borrower any amount under this Section 10(c)(vi) and if and to the extent that it is subsequently determined pursuant to a contest conducted in accordance with Section 10(c)(v) that such Tax Indemnitee was not entitled to the refund for which such Tax Indemnitee made such payment to Borrower, such determination shall be treated as the imposition of a Tax for which Borrower is obligated to indemnify such Tax Indemnitee pursuant to the provisions of Section 10(c)(ii), without regard to the provisions of Section 10(c)(iii) (other than Section 10(c)(iii)(5), (8) or (10)). Notwithstanding anything to the contrary herein, if Borrower provides a Tax Indemnitee with a written notice setting forth facts and circumstances which create a reasonable possibility of a refund of (or a credit against other liability with respect to) an indemnified Tax, such Tax Indemnitee shall make a determination as to whether it has received such a refund (or is entitled to such a credit). If a Tax Indemnitee determines that it has received such a refund (or is entitled to such a credit) it shall pay such refund (or the amount of such credit) to Borrower in accordance with the terms of this Section 10(c)(vi). For the avoidance of doubt, in no event shall any Tax Indemnitee be required to make available any of its Tax Documents (or any other information related to its Taxes it deems confidential), to Borrower or any other Person (except as provided in Section 10(c)(iv)(2) of this Agreementamounts).