Common use of Tax Benefit Clause in Contracts

Tax Benefit. If, as the result of any Taxes paid or indemnified against by the Facility Lessee under this Section 9.2, the aggregate Taxes actually paid by the Tax Indemnitee for any taxable year and not subject to indemnification pursuant to this Section 9.2 are less (whether by reason of a deduction, credit, allocation or apportionment of income or otherwise) than the amount of such Taxes that otherwise would have been payable by such Tax Indemnitee (a "Tax Benefit"), then to the extent such Tax Benefit was not taken into account in determining the amount of indemnification payable by the Facility Lessee under paragraph (a) or (c) above and provided no Significant Lease Default or Lease Event of Default shall have occurred and be continuing (in which event the payment provided under this Section 9.2(e) shall be deferred until the Significant Lease Default or Lease Event of Default has been cured), such Tax Indemnitee shall pay to the Facility Lessee the lesser of (A) (y) the amount of such Tax Benefit, plus (z) an amount equal to any United States federal, state or local income tax benefit resulting to the Tax Indemnitee from the payment under clause (y) above and this clause (z) (determined using the same assumptions as set forth in the second sentence under the definition of After-Tax Basis) and (B) the amount of the indemnity paid pursuant to this Section 9.2 giving rise to such Tax Benefit; provided, however, that any excess of (A) over (B) shall be carried forward and reduce the Facility Lessee's obligations to make subsequent payments to such Tax Indemnitee pursuant to this Section 9.

Tax Benefit. If, as the result by reason of any Taxes paid payment made to or indemnified against for the account of an Indemnitee by the Facility Lessee under this Section 9.2, the aggregate Taxes actually paid by the Tax Indemnitee for any taxable year and not subject to indemnification pursuant to this Section 9.2 are less 10 or Section 13 hereof, such Indemnitee subsequently actually realizes a tax deduction or credit (whether by reason of a deduction, credit, allocation or apportionment of income or otherwiseincluding foreign tax credit and any reduction in Taxes) than not previously taken into account in computing the amount of such Taxes that otherwise would have been payable by payment, such Tax Indemnitee (a "Tax Benefit")shall promptly pay to Lessee, but only if there shall then to the extent such Tax Benefit was not taken into account in determining the amount of indemnification payable by the Facility Lessee under paragraph (a) or (c) above and provided be no Significant Lease Default or Lease Event of Default and if Lessee shall have occurred made all payments then due and be continuing (in which event owing to such Indemnitee under the payment provided under this Section 9.2(e) shall be deferred until the Significant Lease Default or Lease Event of Default has been cured)Operative Documents, such Tax Indemnitee shall pay to the Facility Lessee the lesser of (A) (y) the amount of such Tax Benefit, plus (z) an amount equal to any United States federalthe sum of (i) the actual reduction in Taxes, state if any, realized by such Indemnitee which is attributable to such deduction or local income tax benefit resulting to credit and (ii) the Tax Indemnitee from the payment under clause (y) above and this clause (z) (determined using reduction calculated on the same assumptions basis as set forth the gross up in the second sentence under the definition Section 10(e) hereof in Taxes realized by such Indemnitee as a result of After-Tax Basis) and (B) the amount of the indemnity paid any payment made by such Indemnitee pursuant to this Section 9.2 giving rise to such Tax Benefitsentence; provided, however, that any excess of (A) over (B) such Indemnitee shall not be carried forward and reduce the Facility Lessee's obligations obligated to make subsequent payments to such Tax Indemnitee any payment pursuant to this Section 910 or Section 13 hereof to the extent that the amount calculated pursuant to (i) above would exceed (A) the amount of all prior payments by Lessee to such Indemnitee, pursuant to this Section 10 or Section 13 hereof, net of any amount paid in respect of Taxes required to be paid by such Indemnitee in respect of the receipt or accrual of such amounts received by such Indemnitee from Lessee, less (B) the portion of all prior payments computed pursuant to (i) above by such Indemnitee to Lessee hereunder.

Tax Benefit. If, as the result of any Taxes paid or indemnified against by the Facility Lessee NRG under this Section 9.212.2, the aggregate Taxes actually paid by the Tax Indemnitee in connection with such payment for any taxable year and not subject to indemnification pursuant to this Section 9.2 12.2 are less (whether by reason of a deduction, credit, allocation or apportionment of income or otherwise) than the amount of such Taxes that otherwise would have been payable by such Tax Indemnitee (a "“Tax Benefit"”), ; then to the extent such Tax Benefit was not taken into account in determining the amount of indemnification payable by the Facility Lessee NRG under paragraph (a) or (c) above and provided no Significant Lease Default or Lease Event of Default shall have occurred and be continuing (in which event the payment provided under this Section 9.2(e12.2(e) shall be deferred until the Significant Lease Default or Lease Event of Default has been cured), such Tax Indemnitee shall pay to the Facility Lessee NRG the lesser of (A) (y) the amount of such Tax Benefit, plus (z) an amount equal to any United States federal, state or local income tax benefit resulting to the Tax Indemnitee from the payment under clause (y) above and this clause (z) (determined using the same assumptions as set forth in the second sentence under the definition of After-Tax Basis) and (B) the amount of the indemnity paid pursuant to this Section 9.2 12.2 giving rise to such Tax Benefit; provided, however, provided that any excess of the amount described in clause (A) over the amount described in clause (B) shall be carried forward and applied to reduce the Facility Lessee's pro tanto any subsequent obligations of NRG to make subsequent payments payment to such Tax Indemnitee pursuant to this Section 912.2. If it is subsequently determined that the Tax Indemnitee was not entitled to such Tax Benefit, the portion of such Tax Benefit that is required to be repaid or recaptured will be treated as Taxes for which NRG must indemnify the Tax Indemnitee pursuant to this Section 12.2 without regard to paragraph (b) hereof.

Tax Benefit. If, as the result of any Taxes paid or indemnified against by the Facility Lessee Xxxxx City under this Section 9.2SECTION 10.2, the aggregate Taxes actually paid by the Tax Indemnitee in connection with such payment for any taxable year and not subject to indemnification pursuant to this Section 9.2 SECTION 10.2 are less (whether by reason of a deduction, credit, allocation or apportionment of income or otherwise) than the amount of such Taxes that otherwise would have been payable by such Tax Indemnitee (a "Tax BenefitTAX BENEFIT"), ; then to the extent such Tax Benefit was not taken into account in determining the amount of indemnification payable by the Facility Lessee Xxxxx City under paragraph (a) or (c) above and provided no Significant Material Lease Default or Lease Event of Default shall have occurred and be continuing (in which event the payment provided under this Section 9.2(eSECTION 10.2(E) shall be deferred until the Significant Material Lease Default or Lease Event of Default has been cured), such Tax Indemnitee shall pay to the Facility Lessee Xxxxx City the lesser of (A) (y) the amount of such Tax Benefit, plus (z) an amount equal to any United States federal, state or local income tax benefit resulting to the Tax Indemnitee from the payment under clause (y) above and this clause (z) (determined using the same assumptions as set forth in the second sentence under the definition of After-Tax Basis) and (B) the amount of the indemnity paid pursuant to this Section 9.2 SECTION 10.2 giving rise to such Tax Benefit; provided, however, PROVIDED that any excess of the amount described in clause (A) over the amount described in clause (B) shall be carried forward and applied to reduce the Facility Lessee's pro tanto any subsequent obligations of Xxxxx City to make subsequent payments payment to such Tax Indemnitee pursuant to this Section 9SECTION 10.

Tax Benefit. If, as the result by reason of any Taxes paid payment made to or indemnified against for the account of an Indemnitee by the Facility Lessee under this Section 9.2, the aggregate Taxes actually paid by the Tax Indemnitee for any taxable year and not subject to indemnification pursuant to this Section 9.2 are less 10 or Section 13 hereof, such Indemnitee subsequently actually realizes a tax deduction or credit (whether by reason of a deduction, credit, allocation or apportionment of income or otherwiseincluding foreign tax credit and any reduction in Taxes) than not previously taken into account in computing the amount of such Taxes that otherwise would have been payable by payment, such Tax Indemnitee (a "Tax Benefit")shall promptly pay to Lessee, but only if there shall then to the extent such Tax Benefit was not taken into account in determining the amount of indemnification payable by the Facility Lessee under paragraph (a) or (c) above and provided be no Significant Lease Default or Lease Event of Default and if Lessee shall have occurred made all payments then due and be continuing (in which event owing to such Indemnitee under the payment provided under this Section 9.2(e) shall be deferred until the Significant Lease Default or Lease Event of Default has been cured)Operative Documents, such Tax Indemnitee shall pay an amount equal to the Facility Lessee the lesser sum of (A) (y) the amount of actual reduction in Taxes, if any, realized by such Tax Benefit, plus (z) an amount equal Indemnitee which is attributable to any United States federal, state such deduction or local income tax benefit resulting to the Tax Indemnitee from the payment under clause (y) above and this clause (z) (determined using the same assumptions as set forth in the second sentence under the definition of After-Tax Basis) credit and (B) the amount actual reduction in Taxes realized by such Indemnitee as a result of the indemnity paid any payment made by such Indemnitee pursuant to this Section 9.2 giving rise to such Tax Benefitsentence; provided, however, that any excess of (A) over (B) such Indemnitee shall not be carried forward and reduce the Facility Lessee's obligations obligated to make subsequent payments to such Tax Indemnitee any payment pursuant to this Section 910 or Section 13 hereof to the extent that the amount calculated pursuant to (A) above would exceed (x) the amount of all prior payments by Lessee to such Indemnitee, pursuant to this Section 10 or Section 13 hereof, net of any amount paid in respect of Taxes required to be paid by such Indemnitee in respect of the receipt or accrual of such amounts received by such Indemnitee from Lessee, less (y) the portion of all prior payments computed pursuant to (A) above by such Indemnitee to Lessee hereunder.

Tax Benefit. If, as the result of any Taxes paid or indemnified against by the Facility Lessee PPL Montana under this Section 9.211.2, the aggregate Taxes actually paid by the Tax Indemnitee in connection with such payment for any taxable year and not subject to indemnification pursuant to this Section 9.2 are less (whether by reason of a deduction, credit, allocation or apportionment of income or otherwise) than the amount of such Taxes that otherwise would have been payable by such Tax Indemnitee (a "Tax Benefit"), ; then to the extent such Tax Benefit was not taken into account in determining the amount of indemnification payable by the Facility Lessee under paragraph (a) or (c) above and provided no Significant Lease Default or Lease Event of Default shall have occurred and be continuing (in which event the payment provided under this Section 9.2(e11.2(e) shall be deferred until the Significant Lease Default or Lease Event of Default has been cured), such Tax Indemnitee shall pay to the Facility Lessee PPL Montana the lesser of (A) (y) the amount of such Tax Benefit, plus (z) an amount equal to any United States federal, state or local income tax benefit resulting to the realized by such Tax Indemnitee from as a result of the payment under clause (y) above and this clause (z) (such benefit to be determined using the same assumptions as set forth in the second sentence under the definition of After-Tax Basis) and (B) the amount of the indemnity indemnity(ies) paid pursuant to this Section 9.2 11.2 giving rise to such Tax Benefit; provided, however, . If it is subsequently determined that any excess of (A) over (B) shall be carried forward and reduce the Facility Lessee's obligations to make subsequent payments Tax Indemnitee was not entitled to such Tax Benefit, the portion of such Tax Benefit that is required to be repaid or recaptured will be treated as Taxes for which PPL Montana must indemnify the Tax Indemnitee pursuant to this Section 911.2 without regard to paragraph (b) hereof.

Tax Benefit. IfIf either Agent, any Lender or either L/C Issuer determines, in its sole discretion, that its current obligation to pay Taxes (other than estimated Taxes) has been reduced or that it has received a refund it would otherwise not have received (a “Tax Reduction”) as the a result of a Tax credit or other Tax benefit in connection with any deduction, withholding or payment of Tax that gives rise to the payment by a Borrower of Indemnified Taxes paid or indemnified against by the Facility Lessee under this Section 9.2, the aggregate Other Taxes actually paid by the Tax Indemnitee for any taxable year and not subject to indemnification pursuant to this Section 9.2 are less (whether by reason of a deduction, credit, allocation or apportionment of income or otherwise) than the amount of such Taxes that otherwise would have been payable by such Tax Indemnitee (a "Tax Benefit")3.01, then such Agent, Lender or L/C Issuer shall, to the extent such Tax Benefit was not taken into account that it can do so, in determining the amount of indemnification payable by the Facility Lessee under paragraph (a) or (c) above and provided no Significant Lease Default or Lease Event of Default shall have occurred and be continuing (in which event the payment provided under this Section 9.2(e) shall be deferred until the Significant Lease Default or Lease Event of Default has been cured)its sole discretion, such Tax Indemnitee shall pay without prejudice to the Facility Lessee the lesser of (A) (y) the amount its retention of such Tax Benefitcredit or benefit and without any other adverse Tax consequences to it, plus (z) an amount equal to any United States federal, state or local income tax benefit resulting to the Tax Indemnitee from the payment under clause (y) above and this clause (z) (determined using the same assumptions as set forth in the second sentence under the definition of After-Tax Basis) and (B) pay such Borrower the amount of the indemnity paid pursuant Tax Reduction as such Agent, Lender or L/C Issuer shall, in its sole discretion, have determined to this Section 9.2 giving rise be attributable to the relevant credit deduction, withholding or payment of Tax and as will leave such Agent, Lender or L/C Issuer in no better or worse position than it would have been in if there had been no such credit deduction, withholding or payment of Tax; provided that such Borrower, upon the request of such Agent, Lender or L/C Issuer, agrees in writing (in a form acceptable to such Agent, Lender or L/C Issuer in its sole discretion) to repay the amount paid over to such Borrower (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to such Agent, Lender or L/C Issuer in the event such Agent, Lender or L/C Issuer is required to repay such Tax Benefitcredit or other Tax benefit or such Tax credit or other Tax benefit no longer results in a Tax Reduction (on a cumulative basis) of such Agent’s, Lender’s or L/C Issuer’s Taxes; providedprovided further, however, that any excess of (A) over (Bthis Section 3.01(g) shall not apply if a Default has occurred and is continuing or if there has been an Event of Default. This subsection shall not be carried forward and reduce the Facility Lessee's obligations construed to require either Agent, any Lender or any L/C Issuer to make subsequent payments available its Tax returns (or any other information relating to such Tax Indemnitee pursuant its Taxes that it deems confidential) to this Section 9any Borrower or any other Person.

Tax Benefit. If, as the result of any Taxes paid or ----------- indemnified against by the Facility Lessee under this Section 9.24, the aggregate Taxes actually paid payable by the Tax Indemnitee in connection with such payment for any taxable year and not subject to indemnification pursuant to this Section 9.2 period are less (whether by reason of a deduction, credit, allocation or apportionment of income or otherwiseotherwise and computed on the basis of the highest generally applicable Tax rates applicable) than the amount of such Taxes that otherwise would have been payable by such Tax Indemnitee (a "Tax Benefit"), then ----------- to the extent such Tax Benefit was not taken into account in determining the amount of indemnification payable by the Facility Lessee under paragraph (a) or (c) Section 4.1 above and provided no Significant Lease Default or Lease Event of Default shall have occurred and be continuing (in which event the payment provided under this Section 9.2(e) 4.5 shall be deferred until the Significant Lease Default or Lease Event of Default has been cured), such Tax Indemnitee shall pay to the Facility Lessee the lesser of (A) (y) the amount of such Tax Benefit, plus (z) an amount equal to any United States federal, state or local income tax Tax benefit resulting to the actually realized by such Tax Indemnitee from as a result of the payment under clause (y) above and this clause (z) (such benefit to be determined using on the same assumptions as set forth in basis of the second sentence under the definition of After-highest generally applicable Tax Basisrates applicable) and (B) the amount of the indemnity indemnity(ies) paid pursuant to this Section 9.2 4 giving rise to such Tax Benefit; provided, however, . If it is subsequently determined that any excess of (A) over (B) shall be carried forward and reduce the Facility Lessee's obligations to make subsequent payments Tax Indemnitee was not entitled to such Tax Benefit, the portion of such Tax Benefit that is required to be repaid or recaptured will be treated as Taxes for which the Lessee shall indemnify the Tax Indemnitee pursuant to this Section 94 without regard to Section 4.2 (except Section 4.2(iii)).

Tax Benefit. If, as the result of any Taxes paid or indemnified against by the Facility Lessee EME under this Section 9.2SECTION 12.2, the aggregate Taxes actually paid by the Tax Indemnitee in connection with such payment for any taxable year and not subject to indemnification pursuant to this Section 9.2 SECTION 12.2 are less (whether by reason of a deduction, credit, allocation or apportionment of income or otherwise) than the amount of such Taxes that otherwise would have been payable by such Tax Indemnitee (a "Tax BenefitTAX BENEFIT"), ; then to the extent such Tax Benefit was not taken into account in determining the amount of indemnification payable by the Facility Lessee EME under paragraph (a) or (c) above and provided no Significant Lease Default or Lease Event of Default shall have occurred and be continuing (in which event the payment provided under this Section 9.2(eSECTION 12.2(e) shall be deferred until the Significant Lease Default or Lease Event of Default has been cured), such Tax Indemnitee shall pay to the Facility Lessee EME the lesser of (A) (y) the amount of such Tax Benefit, plus (z) an amount equal to any United States federal, state or local income tax benefit resulting to the Tax Indemnitee from the payment under clause (y) above and this clause (z) (determined using the same assumptions as set forth in the second sentence under the definition of After-Tax Basis) and (B) the amount of the indemnity paid pursuant to this Section 9.2 SECTION 12.2 giving rise to such Tax Benefit; provided, however, PROVIDED that any excess of the amount described in clause (A) over the amount described in clause (B) shall be carried forward and applied to reduce the Facility Lessee's pro tanto any subsequent obligations of EME to make subsequent payments payment to such Tax Indemnitee pursuant to this Section 9SECTION 12.

Tax Benefit. If, as the result of any Taxes paid or indemnified against by the Facility Lessee under this Section 9.2, the aggregate Taxes actually paid by the Tax Indemnitee for any taxable year and not subject to indemnification pursuant to this Section 9.2 are less (whether by reason of a deduction, credit, allocation or apportionment of income or otherwise) than the amount of such Taxes that otherwise would have been payable by such Tax Indemnitee (a "“Tax Benefit"”), then to the extent such Tax Benefit was not taken into account in determining the amount of indemnification payable by the Facility Lessee under paragraph (a) or (c) above and provided no Significant Lease Material Default or Lease Event of Default shall have occurred and be continuing (in which event the payment provided under this Section 9.2(e) shall be deferred until the Significant Lease Material Default or Lease Event of Default has been cured), such Tax Indemnitee shall pay to the Facility Lessee the lesser of (Ai) (yA) the amount of such Tax Benefit, plus (zB) an amount equal to any United States federal, state or local income tax benefit resulting to additional Tax Savings realized by the Tax Indemnitee from as a result of the payment under clause (yA) above and this clause (z) (determined using the same assumptions as set forth in the second sentence under the definition of After-Tax BasisB) and (Bii) the amount of the indemnity paid pursuant to this Section 9.2 giving rise to such Tax Benefit; provided, however, that any excess of (Ai) over (Bii) shall be carried forward and reduce the Facility Lessee's ’s obligations to make subsequent payments to such Tax Indemnitee pursuant to this Section 99.2. If it is subsequently determined that the Tax Indemnitee was not entitled to such Tax Benefit, the portion of such Tax Benefit that is required to be repaid or recaptured will be treated as Taxes for which the Lessee must indemnify the Tax Indemnitee pursuant to this Section 9.2 without regard to paragraph (b) hereof (other than clauses (v) and (xii) of paragraph (b)). Notwithstanding anything to the contrary herein, each Tax Indemnitee and the Lessee shall determine the allocation of any Tax benefits, savings, credit, deduction or allocation in its sole good faith discretion and each position to be taken on its Tax return shall be in its sole control and it shall not be required to disclose any Tax return or related documentation to any Person.

Tax Benefit. If, as the result The amount of any indemnity provided in this Agreement shall be reduced (but not below zero) by the amount of any reduction in Taxes paid or indemnified against by the Facility Lessee under this Section 9.2, the aggregate Taxes actually paid by the Tax Indemnitee for any taxable year and not subject to indemnification pursuant to this Section 9.2 are less (whether by reason of a deduction, credit, allocation or apportionment of income or otherwise) than the amount of such Taxes that otherwise would have been payable by any Buyer Indemnified Party or the Company (after the Closing) as a result of the Losses giving rise to such Tax Indemnitee indemnity Claim. If the indemnity amount is paid prior to the Buyer Indemnified Parties or the Company (after the Closing) realizing a "Tax Benefit")reduction in Taxes in connection with the Claims giving rise to such payment, and the Buyer Indemnified Parties or the Company (after the Closing) subsequently realize such reduction in Taxes, then to the extent such Tax Benefit was not taken into account in determining the amount of indemnification payable by the Facility Lessee under paragraph (a) or (c) above and provided no Significant Lease Default or Lease Event of Default shall have occurred and be continuing (in which event the payment provided under this Section 9.2(e) shall be deferred until the Significant Lease Default or Lease Event of Default has been cured), such Tax Indemnitee Buyer Indemnified Parties shall pay to or at the Facility Lessee direction of the lesser Seller Representative (on behalf of (A) (ySellers) the amount of such Tax Benefitreduction in Taxes (but not in excess of the indemnification payment or payments actually received with respect to such Claims). For purposes of the preceding two sentences, plus the Buyer Indemnified Parties or the Company (zafter the Closing) an amount equal shall be deemed to any United States federalhave realized a reduction in Taxes with respect to a taxable year if, state or local income tax benefit resulting and to the Tax Indemnitee extent that, the Buyer Indemnified Parties' or the Company's (after the Closing) cumulative liability for Taxes from the payment under clause Closing Date through the end of such taxable year, calculated by excluding any Tax items attributable to the Losses from all taxable years and excluding any amounts received by the Buyer Indemnified Parties from Sellers for indemnification for such Losses, exceeds the Buyer Indemnified Parties' or the Company's (yafter the Closing) above and this clause (z) (determined using actual cumulative liability for Taxes through the same assumptions as set forth in the second sentence under the definition end of After-such taxable year, calculated by taking into account any Tax Basis) and (B) items attributable to the amount of the indemnity paid pursuant Losses for all taxable years (to this Section 9.2 giving rise to the extent permitted by relevant Tax law and treating such Tax Benefit; provided, however, that items as the last items claimed for any excess of (A) over (B) shall be carried forward and reduce the Facility Lessee's obligations to make subsequent payments to such Tax Indemnitee pursuant to this Section 9taxable year).

Tax Benefit. If, as If the result of amount with respect to which any Taxes paid or indemnified against by the Facility Lessee claim is made under this Section 9.26. gives rise to a realizable Tax benefit to the indemnified party, the aggregate Taxes actually paid indemnity payment shall be reduced by the Tax Indemnitee for any taxable year and not subject to indemnification pursuant to this Section 9.2 are less (whether by reason of a deduction, credit, allocation or apportionment of income or otherwise) than the amount of such Taxes that otherwise would have been payable the Tax benefit realizable by such Tax Indemnitee (a "Tax Benefit"), then to the extent such Tax Benefit was not taken into account in determining party making the claim. The amount of any claim for which indemnification payable by the Facility Lessee under paragraph (a) or (c) above and is provided no Significant Lease Default or Lease Event of Default shall have occurred and also be continuing (in which event the payment provided under this Section 9.2(e) shall be deferred until the Significant Lease Default or Lease Event of Default has been cured), such Tax Indemnitee shall pay to the Facility Lessee the lesser of (A) (y) increased to take account of any net tax cost incurred by the amount of such Tax Benefit, plus (z) an amount equal to any United States federal, state or local income tax benefit resulting to the Tax Indemnitee indemnified party arising from the payment under clause receipt of indemnity payments hereunder (y) above and this clause (z) (determined using the same assumptions as set forth in the second sentence under the definition of After-Tax Basisgrossed up for such increase) and (B) reduced to take account of any net tax benefit realized by the indemnified party arising from the incurrence or payment of any such Loss. In computing the amount of any such tax cost or tax benefit, the indemnified party shall be deemed to recognize all other items of income, gain, loss, deduction or credit before recognizing any item arising from the receipt of any indemnity payment hereunder or the incurrence or payment of any indemnified Loss. Any indemnification payment hereunder shall initially be made without regard to this paragraph and shall be increased or reduced to reflect any such net tax cost (including gross-up) or net tax benefit only after the indemnified party has Actually Realized such cost or benefit. For purposes of this Agreement, an indemnified party shall be deemed to have "Actually Realized" a net tax cost or a net tax benefit to the extent that, and at such time as, the amount of Taxes payable by such indemnified party is increased above or reduced below, as the case may be, the amount of Taxes that such indemnified party would be required to pay but for the receipt of the indemnity payment or the incurrence or payment of such Loss, as the case may be. The amount of any increase or reduction hereunder shall be adjusted to reflect any final determination (which shall include the execution of Form 870-AD or successor form) with respect to the indemnified party's liability for taxes, and payments among the parties to reflect such adjustment shall be made if necessary. In the event subsequent facts result in a reduction of a tax benefit (due, for instance, to a carryback of losses), the amount of such tax benefit shall be repaid to the indemnified party by the indemnifying party. In the event the parties dispute the amount of any tax benefit to which a party claims it is entitled under this Section 6.10., such dispute shall not delay the payment of the underlying indemnification amount, and the amount of such tax benefit that did not reduce the indemnification payment due to a dispute shall, to the extent it is ultimately determined to be due, shall be paid at the time such dispute is resolved. Notwithstanding anything contained herein, the parties agree that any payments made to each other pursuant to this the provisions of Section 9.2 giving rise to such Tax Benefit; provided, however, that any excess of (A) over (B) 6 shall be carried forward reported for Federal and reduce State income tax purposes as an adjustment to the Facility Lessee's obligations to make subsequent payments to such Tax Indemnitee pursuant to this Section 9purchase price.

Tax Benefit. If, as the result of any Taxes paid or indemnified against by the Facility Lessee Xxxxx City under this Section 9.2SECTION 10.2, the aggregate Taxes actually paid by the Tax Indemnitee in connection with such payment for any taxable year and not subject to indemnification pursuant to this Section 9.2 SECTION 10.2 are less (whether by reason of a deduction, credit, allocation or apportionment of income or otherwise) than the amount of such Taxes that otherwise would have been payable by such Tax Indemnitee (a "Tax BenefitTAX BENEFIT"), ; then to the extent such Tax Benefit was not taken into account in determining the amount of indemnification payable by the Facility Lessee Xxxxx City under paragraph (a) or (c) above and provided no Significant Material Lease Default or Lease Event of Default shall have occurred and be continuing (in which event the payment provided under this Section 9.2(eSECTION 10.2(e) shall be deferred until the Significant Material Lease Default or Lease Event of Default has been cured), such Tax Indemnitee shall pay to the Facility Lessee Xxxxx City the lesser of (A) (y) the amount of such Tax Benefit, plus (z) an amount equal to any United States federal, state or local income tax benefit resulting to the Tax Indemnitee from the payment under clause (y) above and this clause (z) (determined using the same assumptions as set forth in the second sentence under the definition of After-Tax Basis) and (B) the amount of the indemnity paid pursuant to this Section 9.2 SECTION 10.2 giving rise to such Tax Benefit; provided, however, PROVIDED that any excess of the amount described in clause (A) over the amount described in clause (B) shall be carried forward and applied to reduce the Facility Lessee's pro tanto any subsequent obligations of Xxxxx City to make subsequent payments payment to such Tax Indemnitee pursuant to this Section 9SECTION 10.2. If it is subsequently determined that the Tax Indemnitee was not entitled to such Tax Benefit, the portion of such Tax Benefit that is required to be repaid or recaptured will be treated as Taxes for which Xxxxx City must indemnify the Tax Indemnitee pursuant to this SECTION 10.2 without regard to paragraph (b) hereof.

Tax Benefit. If, as the result of any Taxes paid or indemnified against by the Facility Lessee Construction Supervisor under this Section 9.2the Indemnity, the aggregate Taxes actually paid by the Tax Indemnitee Indemnified Party for any taxable year and not subject to indemnification pursuant to this Section 9.2 the Indemnity are less (whether by reason of a deduction, credit, allocation or apportionment of income or otherwise) than the amount of such Taxes that otherwise would have been payable by such Tax Indemnitee Indemnified Party (a "Tax Benefit"), then to the extent such Tax Benefit was not taken into account in determining the amount of indemnification payable by the Facility Lessee under paragraph (a) or (c) above and provided no Significant Lease Default or Lease Event of Default shall have occurred and be continuing (in which event the payment provided under this Section 9.2(e) shall be deferred until the Significant Lease Default or Lease Event of Default has been cured)Construction Supervisor, such Tax Indemnitee Indemnified Party shall pay to the Facility Lessee Construction Supervisor the lesser of (A) (y) the amount of such Tax Benefit, plus (z) an amount equal to any United States federal, state or local income tax benefit resulting to the Tax Indemnitee Indemnified Party from the payment under clause (y) above and this clause (z) (determined using the same assumptions as set forth in the second sentence under the definition of After-Tax Basis) and (B) the amount of the indemnity paid pursuant to this Section 9.2 Indemnified Party payment giving rise to such Tax Benefit; provided, however, . If it is subsequently determined that any excess of (A) over (B) shall be carried forward and reduce the Facility Lessee's obligations to make subsequent payments Indemnified Party was not entitled to such Tax Indemnitee Benefit, the portion of such Tax Benefit that is required to be repaid or recaptured will be treated as Taxes for which the Construction Supervisor must indemnify the Indemnified Party pursuant to this Section 9the Indemnity. Notwithstanding anything to the contrary herein, the Indemnified Party shall determine the allocation of any tax benefits, savings, credit, deduction or allocation in its sole discretion to be exercised in good faith and each position to be taken on its tax return shall be in its sole control and it shall not be required to disclose any tax return or related documentation to any Person.

Tax Benefit. If, as the result of any Taxes paid or indemnified against by the Facility Lessee AEE under this Section 9.210.2, the aggregate Taxes actually paid by the Tax Indemnitee for any taxable year and not subject to indemnification pursuant to this Section 9.2 10.2 are less (whether by reason of a deduction, credit, allocation or apportionment of income or otherwise) than the amount of such Taxes that otherwise would have been payable by such Tax Indemnitee (a "Tax Benefit"), then to the extent such Tax Benefit was not taken into account in determining the amount of indemnification payable by the Facility Lessee AEE under paragraph (a) or (c) above and provided no Significant Lease Material Default or Lease Event of Default shall have occurred and be continuing (in which event the payment provided under this Section 9.2(e10.2(e) shall be deferred until the Significant Lease Material Default or Lease Event of Default has been cured), such Tax Indemnitee shall pay to the Facility Lessee AEE the lesser of (A) (yA)(y) the amount of such Tax Benefit, plus (z) an amount equal to any United States federal, state or local income tax benefit resulting to the Tax Indemnitee from the payment under clause (y) above and this clause (z) (determined using the same assumptions as set forth in the second sentence under the definition of After-Tax Basis) and (B) the amount of the indemnity paid pursuant to this Section 9.2 10.2 giving rise to such Tax Benefit; provided, howeverthat, in either case, the Tax Indemnitee may offset any amount due under this Section 10.2(e) against payments or indemnitees then due by AEE pursuant to the Operative Documents. If it is subsequently determined that any excess the Tax Indemnitee was not entitled to such Tax Benefit, the portion of (A) over (B) such Tax Benefit that is repaid or recaptured shall be carried forward and reduce treated as Taxes for which AEE must indemnify the Facility Lessee's obligations to make subsequent payments to such Tax Indemnitee pursuant to this Section 910.2, without regard to Sections 10.2(b).

Tax Benefit. If, as the result of any Taxes paid or indemnified against by the Facility Lessee Guarantor under this Section 9.2SECTION 6.3, the aggregate Taxes actually paid by the Tax Indemnitee in connection with such payment for any taxable tax able year and not subject to indemnification pursuant to this Section 9.2 SECTION 6.3 are less (whether by reason of a deductiondeduc tion, credit, allocation or apportionment of income or otherwise) than the amount of such Taxes that otherwise would have been payable by such Tax Indemnitee (a "Tax BenefitTAX BENEFIT"), ; then to the extent such Tax Benefit was not taken into account in determining the amount of indemnification payable by the Facility Lessee Guarantor under paragraph (a) or (c) above and provided no Significant Lease Default or Lease Event of Default shall have occurred and be continuing (in which event the payment provided under this Section 9.2(eSECTION 6.3(e) shall be deferred until the Significant Lease Default or Lease Event of Default has been cured), such Tax Indemnitee shall pay to the Facility Lessee Guarantor the lesser of (A) (y) the amount of such Tax Benefit, plus (z) an amount equal to any United States federal, state or local income tax benefit resulting to the Tax Indemnitee from the payment under clause (y) above and this clause (z) (determined using the same assumptions as set forth in the second sentence under the definition of After-Tax Basis) and (B) the amount of the indemnity paid pursuant to this Section 9.2 SECTION 6.3 giving rise to such Tax Benefit; provided, however, provided that any excess of the amount described in clause (A) over the amount described in clause (B) shall be carried forward and applied to reduce the Facility Lessee's pro tanto any subsequent obligations of Guarantor to make subsequent payments payment to such Tax Indemnitee pursuant to this Section 9SECTION 6.

Tax Benefit. If, as the result of any Taxes paid or indemnified against by the Facility Lessee SEMA under this Section 9.210.2, the aggregate Taxes ------------ actually paid by the Tax Indemnitee in connection with such payment for any taxable year and not subject to indemnification pursuant to this Section 9.2 10.2 ------------ are less (whether by reason of a deduction, credit, allocation or apportionment of income or otherwise) than the amount of such Taxes that otherwise would have been payable by such Tax Indemnitee (a "Tax Benefit"), ; then to the extent such ----------- Tax Benefit was not taken into account in determining the amount of indemnification payable by the Facility Lessee SEMA under paragraph (a) or (c) above and provided no Significant Lease Default or Lease Event of Default shall have occurred and be continuing (in which event the payment provided under this Section 9.2(e10.2(e) shall --------------- be deferred until the Significant Lease Default or Lease Event of Default has been cured), such Tax Indemnitee shall pay to the Facility Lessee SEMA the lesser of (A) (y) the amount of such Tax Benefit, plus (z) an amount equal to any United States federal, state or local income tax benefit resulting to the Tax Indemnitee from the payment under clause (y) above and this clause (z) (determined using the same assumptions as set forth in the second sentence under the definition of After-Tax Basis) and (B) the amount of the indemnity paid pursuant to this Section 9.2 10.2 giving rise to such Tax Benefit; provided, however, provided that any excess of the ------------- amount described in clause (A) over the amount described in clause (B) shall be carried forward and applied to reduce the Facility Lessee's pro tanto any subsequent obligations of SEMA to make subsequent payments payment to such Tax Indemnitee pursuant to this Section 9.10.2. If it ------------ is subsequently determined that the Tax Indemnitee was not entitled to such Tax Benefit, the portion of such Tax Benefit that is required to be repaid or recaptured will be treated as Taxes for which 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). -------------------- --- ----- ----- -----

Tax Benefit. If, as the result of any Taxes paid or indemnified ----------- against by the Facility Lessee Company under this Section 9.2, the aggregate Taxes actually paid by the Tax Indemnitee in connection with such payment for any taxable year and not subject to indemnification pursuant to this Section 9.2 are less (whether by reason of a deduction, credit, allocation or apportionment of income or otherwise) than the amount of such Taxes that otherwise would have been payable by such Tax Indemnitee (a "Tax Benefit"), ; then to the extent such ----------- Tax Benefit was not taken into account in determining the amount of indemnification payable by the Facility Lessee under paragraph (a) or (cSection 9.2(a) above and provided no Significant Lease Default or Lease Event of Default shall have occurred and be continuing (in which event the payment provided under this Section 9.2(e) shall be deferred until the Significant Lease Default or Lease Event of Default has been cured), such Tax Indemnitee shall pay to the Facility Lessee Company the lesser of (A) (y) the amount of such Tax Benefit, plus (z) an amount equal to any United States federal, state or local income tax benefit resulting to the realized by such Tax Indemnitee from as a result of the payment under clause (y) above and this clause (z) (such benefit to be determined using the same assumptions as set forth in the second sentence under the definition of After-Tax Basis) and (B) the amount of the indemnity indemnity(ies) paid pursuant to this Section 9.2 giving rise to such Tax Benefit; provided, however, . If it is subsequently determined that any excess of (A) over (B) shall be carried forward and reduce the Facility Lessee's obligations to make subsequent payments Tax Indemnitee was not entitled to such Tax Benefit, the portion of such Tax Benefit that is required to be repaid or recaptured will be treated as Taxes for which the Company must indemnify the Tax Indemnitee pursuant to this Section 99.2 without regard to Section 9.2(b) (other than 9.2(b)(iii) ).

Tax Benefit. If, If the payment of the amount for which indemnification is provided under Section 11.2 or Section 11.4 gives rise to a currently realizable Tax Savings (as defined below) to the result of any Taxes paid or indemnified against by the Facility Lessee under this Section 9.2Indemnified Party, the aggregate Taxes actually paid indemnity payment shall be reduced by the Tax Indemnitee for any taxable year and not subject to indemnification pursuant to this Section 9.2 are less (whether by reason of a deduction, credit, allocation or apportionment of income or otherwise) than the amount of such Taxes that otherwise would have been payable by such the Tax Indemnitee (a "Tax Benefit"), then Savings available to the Indemnified Party. To the extent such amount does not give rise to a currently realizable Tax Benefit was not taken into account in determining Savings, if such amount gives rise to a subsequently realized Tax Savings to the amount of indemnification payable by the Facility Lessee under paragraph (a) or (c) above and provided no Significant Lease Default or Lease Event of Default shall have occurred and be continuing (in which event the payment provided under this Section 9.2(e) shall be deferred until the Significant Lease Default or Lease Event of Default has been cured)Indemnified Party, such Tax Indemnitee Indemnified Party shall pay refund to the Facility Lessee the lesser of (A) (y) Indemnifying Party the amount of such Tax BenefitSavings when, plus (z) an amount equal to as and if realized. For the purposes of this Agreement, any United States federal, state or local income tax benefit resulting to the subsequently realized Tax Indemnitee from the payment under clause (y) above and this clause (z) (determined using the same assumptions Savings shall be treated as set forth though it were a reduction in the second sentence under the definition of After-Tax Basis) and (B) the amount of the initial indemnity paid payment, and the Liabilities of the parties shall be re-determined as though both occurred at or prior to the time of the indemnity payment. For purposes of this Section 11.7(b), a “Tax Savings” means an amount by which the Tax liability of the Indemnified Party (or Affiliates of or group of corporations including the Indemnified Party) is reduced (including without limitation, by deduction, reduction of income by virtue of increased tax basis or otherwise, entitlement to refund, credit or otherwise) plus any related interest received from the relevant Tax related Governmental Authority. Where an Indemnified Party has other losses, deductions, credits or items available to it, the Tax Savings from any losses, deductions, credits or items relating to the indemnity payment shall be deemed to be realized first before any other losses, deductions, credits or items are realized. For the purposes of this Section 11.7(b), a Tax Savings is “currently realizable” to the extent that it can be reasonably anticipated that such Tax Savings will be realized in the current taxable period or year or in any Tax Return with respect thereto (including through a carryback to a prior taxable period) or in any taxable period or year prior to the date of the indemnity payment. In the event that there should be a determination disallowing the Tax Savings, the Indemnifying Party shall be liable to refund to the Indemnified Party the amount of any related reduction previously allowed or payments previously made to the Indemnifying Party pursuant to this Section 9.2 giving rise to such Tax Benefit; provided, however, that any excess 11.7(b). The amount of (A) over (B) the refunded reduction or payment shall be carried forward and reduce the Facility Lessee's obligations to make subsequent payments to such Tax Indemnitee pursuant to deemed a payment under Section 11.6(d) of this Section 9Agreement.

Tax Benefit. IfIn the event of a Loss, as the result evaluation thereof shall be net of any Taxes paid or indemnified against tax benefit actually realized by the Facility Lessee under this Section 9.2INDEMNIFIED PARTY (it being understood that any such benefit shall be paid in the first instance by the INDEMNIFYING PARTY and reimbursed by the INDEMNIFIED PARTY upon the realization of the benefit). Notwithstanding the general nature of the foregoing, the aggregate Taxes actually it is understood and agreed that (a) any VAT reassessment shall be paid by the Tax Indemnitee for INDEMNIFYING PARTY only to the extent that the amount resulting from such reassessment shall not be deductible or reimbursable the following month; (b) any taxable year and not subject to indemnification pursuant to this Section 9.2 are less (whether VAT reassessment shall be paid by reason of a deductionthe INDEMNIFYING PARTY and, credit, allocation or apportionment of income or otherwise) than if the amount of such Taxes that reassessment can be collected from a third parties or otherwise would have been payable by such Tax Indemnitee (a "Tax Benefit")reimbursed, then to the extent such Tax Benefit was not taken into account in determining the amount of indemnification payable shall be refunded by the Facility Lessee under paragraph (a) or INDEMNIFIED PARTY (c) above any tax reassessment which represent a mere rescheduling of the amount due (such as reversal of provision or capitalization of overhead or administrative costs) shall not be included in the Loss, provided that said tax reassessment gives rise to an equivalent tax cut for the following fiscal year or years. Any amounts due by the Indemnifying Party to the Indemnified Party shall be paid in the first instance by the former to the latter under this AGREEMENT and provided no Significant Lease Default should such amounts be covered under an insurance policy or Lease Event of Default shall have occurred and be continuing (any other XXXXXX.XXX Xxxxxxxx PIE Carine BARBELIVIEN /s/ ST /s/ FP /s/ CB Xxxxxxx XXXXXXX IN-COM GALILEO /s/ MF /s/ [Illegible] /s/ [Illegible] [LOGO] PICTORIS ACQUISITION AGREEMENT guarantee granted by a third party, the INDEMNIFIED PARTY shall, after having actually received such amounts, reimburse the INDEMNIFYING PARTY. In all cases in which event the INDEMNIFYING PARTY makes a prior payment provided to the INDEMNIFIED PARTY which is to be later reimbursed, the rights of the latter shall enure to the former under the principle of subrogation (paiement subrogatoire). In addition, any and all amounts due by the INDEMNIFYING PARTY to the INDEMNIFIED PARTY under this Section 9.2(e) AGREEMENT shall be deferred until the Significant Lease Default or Lease Event set off against any and all amounts resulting out of Default has been cured), such Tax Indemnitee shall pay to the Facility Lessee the lesser of (A) (y) the amount of such Tax Benefit, plus (z) an amount equal to any United States federal, state or local income tax benefit resulting to the Tax Indemnitee from the payment under clause (y) above and this clause (z) (determined using the same assumptions as set forth decrease in the second sentence under liabilities or any increase in the definition of After-Tax Basis) and (B) the amount assets of the indemnity paid pursuant to this Section 9.2 giving rise to such Tax Benefit; provided, however, that any excess COMPANY as shown in the accounts of (A) over (B) shall be carried forward and reduce the Facility Lessee's obligations to make subsequent payments to such Tax Indemnitee pursuant to this Section 9COMPANY at the time of the CLAIMS NOTICE.

Tax Benefit. If, as the result of any Taxes paid or indemnified against by the Facility Lessee All indemnification payments under this Section 9.2, the aggregate Taxes actually Article VII shall be paid by the indemnifying party net of any “Tax Indemnitee Benefit” attributable to the indemnified party. For purposes of this Agreement, the term “Tax Benefit” means, with respect to a taxable year of a Person and without duplication, the excess, if any, of (i) such Person’s cumulative liability for Taxes through the end of such taxable year, calculated by excluding any Tax items attributable to the payment at issue for all taxable years, over (ii) such Person’s actual cumulative liability for Taxes through the end of such taxable year, calculated by taking into account any Tax items attributable to the payment at issue for all taxable years (to the extent permitted by relevant Tax law and treating such Tax items as the last items claimed for any taxable year and not subject to indemnification pursuant to this Section 9.2 are less (whether by reason of a deduction, credit, allocation or apportionment of income or otherwise) than the amount of such Taxes that otherwise would have been payable by such Tax Indemnitee (a "Tax Benefit"year), then to the extent such Tax Benefit was not taken into account in determining the amount of indemnification payable by the Facility Lessee under paragraph (a) or (c) above and provided no Significant Lease Default or Lease Event of Default shall have occurred and be continuing (in which event the payment provided under this Section 9.2(e) shall be deferred until the Significant Lease Default or Lease Event of Default has been cured), such Tax Indemnitee shall pay to the Facility Lessee the lesser of (A) (y) the amount of such Tax Benefit, plus (z) an amount equal to any United States federal, state or local income tax benefit resulting to the Tax Indemnitee from the payment under clause (y) above and this clause (z) (determined using the same assumptions as set forth in the second sentence under the definition of After-Tax Basis) and (B) the amount of the indemnity paid pursuant to this Section 9.2 giving rise to such Tax Benefit; provided, however, that any excess of (A) over net operating loss carrybacks from future taxable years shall not reduce the Tax Benefit; (B) shall be carried forward and if all or a portion of the Tax Benefit associated with a payment is expected to reduce such Person’s Taxes in one or more taxable years subsequent to the Facility Lessee's obligations to make subsequent payments to such Tax Indemnitee taxable year in which an indemnification payment is due pursuant to this Section 9Agreement, the Tax Benefit for the taxable year in which such indemnification payment is due shall be equal to the portion, if any, of such Tax Benefit that actually reduces such Person’s Taxes as described above for such taxable year (and/or one or more prior taxable years), with the indemnifying party making the indemnification payment without reduction for any future Tax Benefit, on a present-value basis or otherwise; and (C) that to the extent the indemnified party recognizes a Tax Benefit with respect to a payment in any future taxable year(s) with respect to which the indemnified party has received one or more indemnification payments, the indemnified party shall pay the amount of such Tax Benefit to the indemnifying party as such Tax Benefit is actually recognized by the indemnified party (but not in excess of the indemnification payment(s) actually received from the indemnifying party with respect to the payment generating the Tax Benefit).

Tax Benefit. IfIf any Lender or Administrative Agent determines, as the result in its sole discretion exercised in good faith, that it has received a refund of any Taxes paid or indemnified against by the Facility Lessee under this Section 9.2, the aggregate Taxes actually paid by the Tax Indemnitee for any taxable year and not subject as to indemnification which it has received a payment of additional amounts pursuant to this Section 9.2 are less 2.3.3 (whether by reason of any such refund, a deduction, credit, allocation or apportionment of income or otherwise) than the amount of such Taxes that otherwise would have been payable by such Tax Indemnitee (a "“Tax Benefit"”), then to the extent such Tax Benefit was not taken into account in determining the amount of indemnification payable by the Facility Lessee under paragraph (a) or (c) above and provided no Significant Lease Default or Lease Event of Default shall have occurred and be continuing (in which event the payment provided under this Section 9.2(e) shall be deferred until the Significant Lease Default or Lease Event of Default has been cured), such Tax Indemnitee it shall pay to the Facility Lessee the lesser of (A) (y) the amount of such Tax Benefit, plus (z) Borrowers an amount equal to any United States federal, state or local income tax benefit resulting such Tax Benefit (but only to the Tax Indemnitee from extent of payments made under Section 2.3.3 with respect to the payment under clause (y) above and this clause (z) (determined using the same assumptions as set forth in the second sentence under the definition of After-Tax Basis) and (B) the amount of the indemnity paid pursuant to this Section 9.2 Taxes giving rise to such Tax Benefit; provided), however, that net of all out-of-pocket expenses (including Taxes) of such Lender or Administrative Agent and without interest (other than any excess of (A) over (B) shall be carried forward and reduce interest paid by the Facility Lessee's obligations to make subsequent payments relevant taxing authority with respect to such Tax Indemnitee Benefit). The Borrowers, promptly upon the written request of such Lender or Administrative Agent, shall repay to such Lender or Administrative Agent the amount paid over pursuant to this Section 92.3.5 (plus any penalties, interest or other charges imposed by the relevant taxing authority) in the event that such Lender or Administrative Agent is required to repay such Tax Benefit to such taxing authority. Notwithstanding anything to the contrary in this Section 2.3.5, in no event will a Lender or Administrative Agent be required to pay any amount to the Borrowers pursuant to this Section 2.3.5 the payment of which would place such Lender or Administrative Agent in a less favorable net after-Tax position than such Lender or Administrative Agent would have been in if the Tax for which additional amounts were been paid had not been deducted, withheld or otherwise imposed and the payment of additional amounts giving rise to such Tax Benefit had never been paid. This paragraph shall not be construed to require any Lender or Administrative Agent to make available its Tax returns (or any other information relating to its Taxes that it deems confidential) to the Borrowers or any other Person.

Tax Benefit. If, as the result by reason of any Taxes paid payment made to or indemnified against for the account of an Indemnitee by the Facility Lessee under this Section 9.2, the aggregate Taxes actually paid by the Tax Indemnitee for any taxable year and not subject to indemnification pursuant to this Section 9.2 are less 10 or Section 13 hereof, such Indemnitee subsequently actually realizes a tax deduction or credit (whether by reason of a deduction, credit, allocation or apportionment of income or otherwiseincluding foreign tax credit and any reduction in Taxes) than not previously taken into account in computing the amount of such Taxes that otherwise would have been payable by payment, such Tax Indemnitee (a "Tax Benefit")shall promptly pay to Lessee, but only if there shall then to the extent such Tax Benefit was not taken into account in determining the amount of indemnification payable by the Facility Lessee under paragraph (a) or (c) above and provided be no Significant Lease Default or Lease Event of Default and if Lessee shall have occurred made all payments then due and be continuing (in which event owing to such Indemnitee under the payment provided under this Section 9.2(e) shall be deferred until the Significant Lease Default or Lease Event of Default has been cured)Operative Documents, such Tax Indemnitee shall pay an amount equal to the Facility Lessee the lesser sum of (A) (y) the amount of actual reduction in Taxes, if any, realized by such Tax Benefit, plus (z) an amount equal Indemnitee which is attributable to any United States federal, state such deduction or local income tax benefit resulting to the Tax Indemnitee from the payment under clause (y) above and this clause (z) (determined using the same assumptions as set forth in the second sentence under the definition of After-Tax Basis) credit and (B) the amount reduction calculated on the same basis as the Gross-Up in Taxes realized by such Indemnitee as a result of the indemnity paid any payment made by such Indemnitee pursuant to this Section 9.2 giving rise to such Tax Benefitsentence; provided, however, that any excess of (A) over (B) such Indemnitee shall not be carried forward and reduce the Facility Lessee's obligations obligated to make subsequent payments to such Tax Indemnitee any payment pursuant to this Section 910 or Section 13 hereof to the extent that the amount calculated pursuant to (A) above would exceed (x) the amount of all prior payments by Lessee to such Indemnitee, pursuant to this Section 10 or Section 13 hereof, net of any amount paid in respect of Taxes required to be paid by such Indemnitee in respect of the receipt or accrual of such amounts received by such Indemnitee from Lessee, less (y) the portion of all prior payments computed pursuant to (A) above by such Indemnitee to Lessee hereunder.

Tax Benefit. If, as the result of any Taxes paid or indemnified against by the Facility Lessee Xxxxx City under this Section 9.210.2, the aggregate Taxes actually paid by the Tax Indemnitee in connection with such payment for any taxable year and not subject to indemnification pursuant to this Section 9.2 10.2 are less (whether by reason of a deduction, credit, allocation or apportionment of income or otherwise) than the amount of such Taxes that otherwise would have been payable by such Tax Indemnitee (a "Tax Benefit"), ; then to the extent such Tax Benefit was not taken into account in determining the amount of indemnification payable by the Facility Lessee Xxxxx City under paragraph (a) or (c) above and provided no Significant Material Lease Default or Lease Event of Default shall have occurred and be continuing (in which event the payment provided under this Section 9.2(e10.2(e) shall be deferred until the Significant Material Lease Default or Lease Event of Default has been cured), such Tax Indemnitee shall pay to the Facility Lessee Xxxxx City the lesser of (A) (y) the amount of such Tax Benefit, plus (z) an amount equal to any United States federal, state or local income tax benefit resulting to the Tax Indemnitee from the payment under clause (y) above and this clause (z) (determined using the same assumptions as set forth in the second sentence under the definition of After-Tax Basis) and (B) the amount of the indemnity paid pursuant to this Section 9.2 10.2 giving rise to such Tax Benefit; provided, however, provided that any excess of the amount described in clause (A) over the amount described in clause (B) shall be carried forward and applied to reduce the Facility Lessee's pro tanto any subsequent obligations of Xxxxx City to make subsequent payments payment to such Tax Indemnitee pursuant to this Section 910.2. If it is subsequently determined that the Tax Indemnitee was not entitled to such Tax Benefit, the portion of such Tax Benefit that is required to be repaid or recaptured will be treated as Taxes for which Xxxxx City must indemnify the Tax Indemnitee pursuant to this Section 10.2 without regard to paragraph (b) hereof.

Tax Benefit. IfAny payment made by any Indemnifying Party hereunder shall be paid net of any Tax benefit for income Taxes (whether by refund, overpayment, credit, or reduction in Taxes otherwise payable) actually realized (determined on a with and without basis) by an Indemnified Party from the incurrence or payment of any such Losses taking into account (but only to the extent that any indemnity payment made pursuant to Section 6 is not an adjustment to the Purchase Price for Tax purposes as the result of limitations under applicable Law in accordance with Section 6(h) of this Agreement) any income Taxes paid or indemnified against imposed as a result of the accrual and receipt of the related indemnity payment by an Indemnified Party (a “Net Tax Benefit”). In computing the Facility Lessee under this Section 9.2Net Tax Benefit, the aggregate Taxes actually paid by Indemnified Party shall be deemed to recognize all other items of income, gain, loss, deduction or credit before recognizing any items arising from the Tax Indemnitee receipt or accrual of any indemnity payment hereunder or the incurrence or payment of any Losses for any taxable year and not subject to which indemnification pursuant to this Section 9.2 are less (whether by reason of a deduction, credit, allocation or apportionment of income or otherwise) than the amount of such Taxes that otherwise would have been payable by such Tax Indemnitee (a "Tax Benefit"), then to the extent such Tax Benefit was not taken into account in determining the amount of indemnification payable by the Facility Lessee under paragraph (a) or (c) above and provided no Significant Lease Default or Lease Event of Default shall have occurred and be continuing (in which event the payment is provided under this Section 9.2(e) 6. For purposes of this Agreement, the Indemnified Party shall be deferred until the Significant Lease Default or Lease Event of Default has been cured), such deemed to have “actually realized” a Net Tax Indemnitee shall pay Benefit to the Facility Lessee the lesser of (A) (y) extent that, and at such time as, the amount of Taxes paid or owed by such Tax Benefit, plus (z) an amount equal to any United States federal, state or local income tax benefit resulting to the Tax Indemnitee from the payment under clause (y) above and this clause (z) (determined using the same assumptions as set forth in the second sentence under the definition of After-Tax Basis) and (B) Indemnified Party is reduced below the amount of Taxes that such Person would have been required to pay but for the indemnity paid pursuant to payment of such Losses for which indemnification is provided for under this Section 9.2 giving rise to such Tax Benefit; provided, however, that any excess 6 and the accrual and receipt of (A) over (B) shall be carried forward and reduce the Facility Lessee's obligations to make subsequent payments to such Tax Indemnitee pursuant to this Section 9related indemnity payment.

Tax Benefit. If, as the result of any Taxes paid or indemnified against by the Facility Lessee Midwest under this Section 9.214.2, the aggregate Taxes actually paid by the Tax Indemnitee in connection with such payment for any taxable year and not subject to indemnification pursuant to this Section 9.2 14.2 are less (whether by reason of a deduction, credit, allocation or apportionment of income or otherwise) than the amount of such Taxes that otherwise would have been payable by such Tax Indemnitee (a "Tax BenefitTAX BENEFIT"), ; then to the extent such Tax Benefit was not taken into account in determining the amount of indemnification payable by the Facility Lessee Midwest under paragraph (a) or (c) above and provided no Significant Lease Default or Lease Event of Default shall have occurred and be continuing (in which event the payment provided under this Section 9.2(e14.2(e) shall be deferred until the Significant Lease Default or Lease Event of Default has been cured), such Tax Indemnitee shall pay to the Facility Lessee Midwest the lesser of (A) (y) the amount of such Tax Benefit, plus (z) an amount equal to any United States federal, state or local income tax benefit resulting to the Tax Indemnitee from the payment under clause (y) above and this clause (z) (determined using the same assumptions as set forth in the second sentence under the definition of After-Tax Basis) and (B) the amount of the indemnity paid pursuant to this Section 9.2 14.2 giving rise to such Tax Benefit; provided, however, provided that any excess of the amount described in clause (A) over the amount described in clause (B) shall be carried forward and applied to reduce the Facility Lessee's pro tanto any subsequent obligations of Midwest to make subsequent payments payment to such Tax Indemnitee pursuant to this Section 914.2. If it is subsequently determined that the Tax Indemnitee was not entitled to such Tax Benefit, the portion of such Tax Benefit that is required to be repaid or recaptured will be treated as Taxes for which Midwest must indemnify the Tax Indemnitee pursuant to this Section 14.2 without regard to paragraph (b) hereof.

Tax Benefit. If, as the result of any Taxes paid or indemnified against by the Facility Lessee under this Section 9.210.2, the aggregate Taxes actually paid by the Tax Indemnitee in connection with such payment for any taxable year and not subject to indemnification pursuant to this Section 9.2 10.2 are less (whether by reason of a deduction, credit, allocation or apportionment of income or otherwise) than the amount of such Taxes that otherwise would have been payable by such Tax Indemnitee (a "Tax Benefit"), ; then to the extent such Tax Benefit was not taken into account in determining the amount of indemnification payable by the Facility Lessee under paragraph (a) or (c) above and provided no Significant Lease Default or Lease Event of Default shall have occurred and be continuing (in which event the amount of the payment to the Facility Lessee provided under this Section 9.2(e10.2(e) shall be deferred until the Significant Lease Default or Lease Event of Default has been cured), such Tax Indemnitee shall pay to the Facility Lessee the lesser of (A) (y) the amount of such Tax Benefit, plus (z) an amount equal to any United States federal, state or local income tax benefit resulting to the Tax Indemnitee from the payment under clause (y) above and this clause (z) (determined using the same assumptions as set forth in the second sentence under the definition of After-Tax Basis) and (B) the amount of the indemnity paid pursuant to this Section 9.2 10.2 giving rise to such Tax Benefit; provided. If it is subsequently determined that the Tax Indemnitee was not entitled to such Tax Benefit, however, the portion of such Tax Benefit that any excess of (A) over (B) shall is required to be carried forward and reduce repaid or recaptured will be treated as Taxes for which the Facility Lessee's obligations to make subsequent payments to such Lessee must Conemaugh Participation Agreement 65 71 indemnify the Tax Indemnitee pursuant to this Section 910.2 without regard to paragraph (b) hereof.

Tax Benefit. IfIf a Lender or Representative (except to the extent that an Export Credit Agency becomes a Lender) determines, as the result of any Taxes paid or indemnified against by the Facility Lessee under this Section 9.2in its absolute discretion, the aggregate Taxes actually paid by the that it has received, realised, utilised and retained a Tax Indemnitee for any taxable year and not subject to indemnification pursuant to this Section 9.2 are less (whether benefit by reason of any deduction or withholding in respect of which the Borrower has made an increased payment or paid a deductioncompensating sum under this Clause 4.12, creditsuch Lender or Representative shall, allocation provided it has received all amounts which are then due and payable by the Borrower, and each of the Obligors under the Transaction Documents or, to the extent that the Tax benefit exceeds the amounts then due and payable, has set-off such amounts against the Tax benefit, pay to the Borrower (to the extent that the Lender or apportionment of income or otherwise) than Representative can do so without prejudicing the amount of such Taxes that otherwise benefit or repayment and the right of such Lender or Representative to obtain any other benefit, relief or allowance which may be available to it) such amount, if any, as such Lender or Representative in its bona fide opinion shall determine will leave such Lender or Representative in no worse position than such Lender or Representative would have been payable by such Tax Indemnitee in if the deduction or withholding had not been required (a "Tax Benefit"), then to the extent such Tax Benefit was not taken and taking into account in determining the amount of indemnification payable by the Facility Lessee under paragraph any set-off as referred to above) PROVIDED that: (a) each Lender and Representative shall have an absolute discretion as to the time at which and the order and manner in which it realises or utilises any Tax benefit and shall not be obliged to arrange its business or its Tax affairs in any particular way in order to be eligible for any Tax benefit; (b) no Lender or Representative shall be obliged to disclose any information regarding its business, Tax affairs or Tax computations; (c) above and provided no Significant Lease Default if any Lender or Lease Event of Default shall have occurred and be continuing (in which event the Representative has made a payment provided under this Section 9.2(e) shall be deferred until the Significant Lease Default or Lease Event of Default has been cured), such Tax Indemnitee shall pay to the Facility Lessee the lesser of (A) (y) the amount of such Tax Benefit, plus (z) an amount equal to any United States federal, state or local income tax benefit resulting to the Tax Indemnitee from the payment under clause (y) above and this clause (z) (determined using the same assumptions as set forth in the second sentence under the definition of After-Tax Basis) and (B) the amount of the indemnity paid Borrower pursuant to this Section 9.2 giving rise Clause 4.12 on account of any Tax benefit and it subsequently transpires that such Lender or Representative did not receive that Tax benefit, or received a lesser Tax benefit or has lost or been denied such Tax benefit, the Borrower shall pay on written demand to such Lender or Representative such sum as such Lender or Representative may determine as being necessary to restore the after-Tax Benefitposition of the Lender or Representative to that which it would have been had no adjustment under this proviso (c) been necessary; provided, however, that any excess of and (Ad) over (B) the Lender or Representative shall not be carried forward and reduce the Facility Lessee's obligations obliged to make subsequent payments to such Tax Indemnitee pursuant to any payment under this Section 9Clause 4.12 if, by doing so, it would contravene the terms of any applicable law or any notice, direction or requirement of any governmental or regulatory authority (whether or not having the force of law but in respect of which compliance by banks or other financial institutions or other persons in the relevant jurisdiction is generally customary).

Tax Benefit. If, as the result of any Taxes paid or indemnified against by the Facility Lessee Company under this Section 9.212.2, the aggregate Taxes actually paid by the Tax Indemnitee in connection with such payment for any taxable year and not subject to indemnification pursuant to this Section 9.2 are less (whether by reason of a deduction, credit, allocation or apportionment of income or otherwise) than the amount of such Taxes that otherwise would have been payable by such Tax Indemnitee (a "“Tax Benefit"”), then to the extent such Tax Benefit was not taken into account in determining the amount of indemnification payable by the Facility Lessee under paragraph (a) or (cSection 12.2(a) above and provided no Significant Lease Company Default or Lease Company Event of Default shall have occurred and be continuing (in which event the payment provided under this Section 9.2(e12.2(e) shall be deferred until the Significant Lease Company Default or Lease Company Event of Default has been cured), such Tax Indemnitee shall pay to the Facility Lessee Company the lesser of (A) (y) the amount of such Tax Benefit, Benefit plus (z) an amount equal to any United States federal, state or local income tax benefit resulting to the realized by such Tax Indemnitee from as a result of the payment under clause (y) above and this clause (z) (determined using the same assumptions as set forth in the second sentence under the definition of After-Tax Basis) and (B) the amount of the indemnity indemnity(ies) paid pursuant to this Section 9.2 12.2 giving rise to such Tax Benefit; provided, however, that any excess of the amount described in clause (A) over the amount described in clause (B) shall be carried forward and applied to reduce pro tanto any subsequent obligations of the Facility Lessee's obligations Company to make subsequent payments payment to such Tax Indemnitee pursuant to this Section 912.2. If it is subsequently determined that the Tax Indemnitee was not entitled to such Tax Benefit, the portion of such Tax Benefit that is required to be repaid or recaptured will be treated as Taxes for which the Company must indemnify the Tax Indemnitee pursuant to this Section 12.2 without regard to Section 12.2(b) (other than Section 12.2(b)(iii)).

Tax Benefit. If, as the result of any Taxes paid or indemnified against by the Facility Lessee AEE under this Section 9.210.2, the aggregate Taxes actually paid by the Tax Indemnitee for any taxable year and not subject to indemnification pursuant to this Section 9.2 10.2 are less (whether by reason of a deduction, credit, allocation or apportionment of income or otherwise) than the amount of such Taxes that otherwise would have been payable by such Tax Indemnitee (a "Tax Benefit"), then to the extent such Tax Benefit was not taken into account in determining the amount of indemnification payable by the Facility Lessee AEE under paragraph (a) or (c) above and provided no Significant Lease Material Default or Lease Event of Default shall have occurred and be continuing (in 66 73 which event the payment provided under this Section 9.2(e10.2(e) shall be deferred until the Significant Lease Material Default or Lease Event of Default has been cured), such Tax Indemnitee shall pay to the Facility Lessee AEE the lesser of (A) (yA)(y) the amount of such Tax Benefit, plus (z) an amount equal to any United States federal, state or local income tax benefit resulting to the Tax Indemnitee from the payment under clause (y) above and this clause (z) (determined using the same assumptions as set forth in the second sentence under the definition of After-Tax Basis) and (B) the amount of the indemnity paid pursuant to this Section 9.2 10.2 giving rise to such Tax Benefit; provided, howeverthat, in either case, the Tax Indemnitee may offset any amount due under this Section 10.2(e) against payments or indemnitees then due by AEE pursuant to the Operative Documents. If it is subsequently determined that any excess the Tax Indemnitee was not entitled to such Tax Benefit, the portion of (A) over (B) such Tax Benefit that is repaid or recaptured shall be carried forward and reduce treated as Taxes for which AEE must indemnify the Facility Lessee's obligations to make subsequent payments to such Tax Indemnitee pursuant to this Section 910.2, without regard to Sections 10.2(b).

Tax Benefit. If, as the result of any Taxes paid or indemnified against by the Facility Lessee Oglethorpe under this Section 9.211.2, the aggregate Taxes actually paid by the Tax Indemnitee for any taxable year and not subject to indemnification pursuant to this Section 9.2 11.2 are less (whether by reason of a deduction, credit, allocation or apportionment of income or otherwise) than the amount of such Taxes that otherwise would have been payable by such Tax Indemnitee (a "Tax Benefit"), then to the extent such Tax Benefit was not taken into account in determining the amount of indemnification payable by the Facility Lessee Oglethorpe under paragraph (a) or (c) above and provided no Significant Lease Bankruptcy Default, Payment Default or Event of Default under the Facility Lease or a Sublease Bankruptcy Default, Sublease Payment Default or Sublease Event of Default shall have occurred and be continuing (in which event the payment provided under this Section 9.2(e) shall be deferred until the Significant Lease Default or Lease Event of Default has been cured)continuing, such Tax Indemnitee shall pay to the Facility Lessee Oglethorpe the lesser of (A) (y) the amount of such Tax Benefit, plus (z) an amount equal to any United States federal, state or local income tax benefit resulting to the Tax Indemnitee from the payment under clause (y) above and this clause (z) (determined using the same assumptions as set forth in the second sentence under the definition of After-Tax Basis) and (B) the amount of the indemnity paid pursuant to this Section 9.2 11.2 giving rise to such Tax Benefit; provided, however, . If it is subsequently determined that any excess of (A) over (B) shall be carried forward and reduce the Facility Lessee's obligations to make subsequent payments Tax Indemnitee was not entitled to such Tax Benefit, the portion of such Tax Benefit that is repaid or recaptured will be treated as Taxes for which Oglethorpe must indemnify the Tax Indemnitee pursuant to this Section 911.2 without regard to paragraph (b) hereof.

Tax Benefit. If, as If the result of amount with respect to which any Taxes paid or indemnified against by the Facility Lessee claim is made under this Section 9.2ARTICLE 10 (an "Indemnity Claim") gives rise to a currently realizable Tax Benefit (as defined below) to the party making the claim, the aggregate Taxes actually paid indemnity payment shall be reduced by the Tax Indemnitee for any taxable year and not subject to indemnification pursuant to this Section 9.2 are less (whether by reason of a deduction, credit, allocation or apportionment of income or otherwise) than the amount of such Taxes that otherwise would have been payable by such the Tax Indemnitee (a "Tax Benefit"), then Benefit available to the party making the claim. To the extent such Indemnity Claim does not give rise to a currently realizable Tax Benefit, if the amount with respect to which any Indemnity Claim is made gives rise to a subsequently realized Tax Benefit was not taken into account in determining to the amount of indemnification payable by party that made the Facility Lessee under paragraph (a) or (c) above and provided no Significant Lease Default or Lease Event of Default shall have occurred and be continuing (in which event the payment provided under this Section 9.2(e) shall be deferred until the Significant Lease Default or Lease Event of Default has been cured)claim, such Tax Indemnitee party shall pay refund to the Facility Lessee the lesser of (A) (y) indemnifying party the amount of such Tax BenefitBenefit when, plus (z) an amount equal to as and if realized. For the purposes of this Agreement, any United States federal, state or local income tax benefit resulting to the subsequently realized Tax Indemnitee from the payment under clause (y) above and this clause (z) (determined using the same assumptions Benefit shall be treated as set forth though it were a reduction in the second sentence under the definition of After-Tax Basis) and (B) the amount of the initial Indemnity Claim, and the liabilities of the parties shall be re- determined as though both occurred at or prior to the time of the indemnity paid payment. For purposes of this Section 10.4(e), a "Tax Benefit" means an amount by which the tax liability of the indemnified party (or group of corporations including the indemnified party) is reduced (including, without limitation, by deduction, reduction of income, by virtue of increased tax basis or otherwise, entitlement to refund, credit or otherwise) plus any related interest received from the relevant taxing authority. Where a party has other losses, deductions, credits or items available to it, the Tax Benefit from any losses, deductions, credits or items relating to the Indemnity Claim shall be deemed to be realized proportionately with any other losses, deductions, credits or items. For purposes of this Section 10.4(e), a Tax Benefit is "currently realizable" to the extent it can be reasonably anticipated that such Tax Benefit will be realized in the current taxable period or year or in any tax return with respect thereto (including through a carryback to a prior taxable period) or in any taxable period or year prior to the date of the Indemnity Claim. In the event that there should be a determination disallowing the Tax Benefit, the indemnifying party shall be liable to refund to the indemnified party the amount of any related reduction previously allowed or payments previously made to the indemnifying party pursuant to this Section 9.2 giving rise to such Tax Benefit; provided, however, that any excess 10.4(e). The amount of (A) over (B) the refunded reduction or payment shall be carried forward and reduce the Facility Lessee's obligations to make subsequent payments to such Tax Indemnitee pursuant to deemed a payment under this Section 910.4(e) and thus shall be paid subject to any applicable reductions under this Section 10.4(e).

Tax Benefit. If, as the result of any Taxes paid or indemnified against by the Facility Lessee TVA under this Section 9.2, the aggregate Taxes actually paid payable (or deemed payable) by the Tax Indemnitee in connection with such payment for any taxable year and not subject to indemnification pursuant to this Section 9.2 are less (whether by reason of a deduction, credit, allocation or apportionment of income or otherwiseotherwise and computed using the same assumptions as set forth in the second sentence under the definition of After Tax Basis) than the amount of such Taxes that otherwise would have been payable by such Tax Indemnitee (a "“Tax Benefit"”), then to the extent such Tax Benefit was not taken into account in determining the amount of indemnification payable by the Facility Lessee under paragraph (a) or (c) above and provided no Significant Lease Default or Lease Event of Default shall have occurred and be continuing (in which event the payment provided under this Section 9.2(e) shall be deferred until the Significant Lease Default or Lease Event of Default has been cured), such Tax Indemnitee shall pay to the Facility Lessee TVA the lesser of (A) (y) the amount of such Tax Benefit, plus (z) an amount equal to any United States federalFederal, state or local income tax benefit resulting to the realized by such Tax Indemnitee from as a result of the payment under clause (y) above and this clause (z) (such benefit to be determined using the same assumptions as set forth in the second sentence under the definition of After-Tax Basis) and (B) the amount of the indemnity indemnity(ies) paid pursuant to this Section 9.2 giving rise to such Tax Benefit; provided, however, . If it is subsequently determined that any excess of (A) over (B) shall be carried forward and reduce the Facility Lessee's obligations to make subsequent payments Tax Indemnitee was not entitled to such Tax Benefit, the portion of such Tax Benefit that is required to be repaid or recaptured will be treated as Taxes for which TVA shall indemnify the Tax Indemnitee pursuant to this Section 99.2 without regard to paragraph (b) hereof.

Tax Benefit. If, as the result of any Taxes paid or indemnified against by the Facility Lessee SEMA under this Section 9.210.2, the aggregate Taxes actually paid by ------------ the Tax Indemnitee in connection with such payment for any taxable year and not subject to indemnification pursuant to this Section 9.2 10.2 are less (whether by ------------ reason of a deduction, credit, allocation or apportionment of income or otherwise) than the amount of such Taxes that otherwise would have been payable by such Tax Indemnitee (a "Tax Benefit"), ; then to the extent such Tax Benefit ----------- was not taken into account in determining the amount of indemnification payable by the Facility Lessee SEMA under paragraph (a) or (c) above and provided no Significant Lease Default or Lease Event of Default shall have occurred and be continuing (in which event the payment provided under this Section 9.2(e10.2(e) shall be deferred until the --------------- Significant Lease Default or Lease Event of Default has been cured), such Tax Indemnitee shall pay to the Facility Lessee SEMA the lesser of (A) (y) the amount of such Tax Benefit, plus (z) an amount equal to any United States federal, state or local income tax benefit resulting to the Tax Indemnitee from the payment under clause (y) above and this clause (z) (determined using the same assumptions as set forth in the second sentence under the definition of After-Tax Basis) and (B) the amount of the indemnity paid pursuant to this Section 9.2 10.2 giving rise to ------------ such Tax Benefit; provided, however, provided that any excess of the amount described in clause (A) over the amount described in clause (B) shall be carried forward and applied to reduce the Facility Lessee's pro tanto any subsequent obligations of SEMA to make subsequent payments payment to such Tax Indemnitee pursuant to this Section 9.10.2. If it is subsequently determined that ------------ the Tax Indemnitee was not entitled to such Tax Benefit, the portion of such Tax Benefit that is required to be repaid or recaptured will be treated as Taxes for which 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). ----- ----- XXXXXXXXX PARTICIPATION AGREEMENT (L1) --------------------------------------

Tax Benefit. IfIn the event of a Loss, as the result evaluation thereof shall be net of any Taxes paid or indemnified against tax benefit actually realized by the Facility Lessee under this Section 9.2INDEMNIFIED PARTY (it being understood that any such benefit shall be paid in the first instance by the INDEMNIFYING PARTY and reimbursed by the INDEMNIFIED PARTY upon the realization of the benefit). Notwithstanding the general nature of the foregoing, the aggregate Taxes actually it is understood and agreed that (a) any VAT reassessment shall be paid by the Tax Indemnitee for INDEMNIFYING PARTY only to the extent that the amount resulting from such reassessment shall not be deductible or reimbursable the following month; (b) any taxable year and not subject to indemnification pursuant to this Section 9.2 are less (whether VAT reassessment shall be paid by reason of a deductionthe INDEMNIFYING PARTY and, credit, allocation or apportionment of income or otherwise) than if the amount of such Taxes that reassessment can be collected from a third parties or otherwise would have been payable by such Tax Indemnitee (a "Tax Benefit")reimbursed, then to the extent such Tax Benefit was not taken into account in determining the amount of indemnification payable shall be refunded by the Facility Lessee under paragraph (a) or INDEMNIFIED PARTY (c) above any tax reassessment which represent a mere rescheduling of the amount due (such as reversal of provision or capitalization of overhead or administrative costs) shall not be included in the Loss, provided that said tax reassessment gives rise to an equivalent tax cut for the following fiscal year or years. Any amounts due by the Indemnifying Party to the Indemnified Party shall be paid in the first instance by the former to the latter under this AGREEMENT and provided no Significant Lease Default should such amounts be covered under an insurance policy or Lease Event of Default shall have occurred and be continuing (any other guarantee granted by a third party, the INDEMNIFIED PARTY shall, after having actually received such amounts, reimburse the INDEMNIFYING PARTY. In all cases in which event the INDEMNIFYING PARTY makes a prior payment provided to the INDEMNIFIED PARTY which is to be later reimbursed, the rights of the latter shall enure to the former under the principle of subrogation (paiement subrogatoire). In addition, any and all amounts due by the INDEMNIFYING PARTY to the INDEMNIFIED PARTY under this Section 9.2(e) AGREEMENT shall be deferred until the Significant Lease Default or Lease Event set off against any and all amounts resulting out of Default has been cured), such Tax Indemnitee shall pay to the Facility Lessee the lesser of (A) (y) the amount of such Tax Benefit, plus (z) an amount equal to any United States federal, state or local income tax benefit resulting to the Tax Indemnitee from the payment under clause (y) above and this clause (z) (determined using the same assumptions as set forth decrease in the second sentence under liabilities or any increase in the definition of After-Tax Basis) and (B) the amount assets of the indemnity paid pursuant to this Section 9.2 giving rise to such Tax Benefit; provided, however, that any excess COMPANY as shown in the accounts of (A) over (B) shall be carried forward and reduce the Facility Lessee's obligations to make subsequent payments to such Tax Indemnitee pursuant to this Section 9COMPANY at the time of the CLAIMS NOTICE.

Tax Benefit. If, as the result of any Taxes paid or indemnified against by the Facility Lessee Old Dominion under this Section 9.28.2, the aggregate Taxes actually paid by the Tax Indemnitee for any taxable year and not subject to indemnification pursuant to this Section 9.2 8.2 are less (whether by reason of a deduction, credit, allocation or apportionment of income or otherwise) than the amount of such Taxes that otherwise would have been payable by such Tax Indemnitee (a "Tax Benefit"), then to the extent such Tax Benefit was not taken into account in determining the amount of indemnification payable by the Facility Lessee Old Dominion under paragraph (a) or (c) above and provided no Significant Lease Default or Lease Event of Default shall have occurred and be continuing (in which event the payment provided under this Section 9.2(e) shall be deferred until the Significant Lease Default or Lease Event of Default has been cured)continuing, such Tax Indemnitee shall pay to the Facility Lessee Old Dominion the lesser of (A) (y) the amount of such Tax Benefit, plus (z) an amount equal to any United States federal, state or local income tax benefit resulting to the Tax Indemnitee from the payment under clause (y) above and this clause (z) (determined using the same assumptions as set forth in the second sentence under the definition of After-Tax Basis) and (B) the amount of the indemnity paid pursuant to this Section 9.2 8.2 giving rise to such Tax Benefit; provided, however, . If it is subsequently determined that any excess of (A) over (B) shall be carried forward and reduce the Facility Lessee's obligations to make subsequent payments Tax Indemnitee was not entitled to such Tax Benefit, the portion of such Tax Benefit that is repaid or recaptured will be treated as Taxes for which Old Dominion must indemnify the Tax Indemnitee pursuant to this Section 98.2 without regard to paragraph (b) hereof.