Common use of Amount of Indemnification Clause in Contracts

Amount of Indemnification. The Facility Sublessee shall pay to the Owner Participant an indemnity with respect to any Loss pursuant to Section 4 of this Agreement in the amount determined in accordance with this Section 5. (a) In the case of any Loss pursuant to Section 4 of this Agreement, the Owner Participant shall give the Facility Sublessee notice of such Loss. Such notice will be accompanied by a written statement (the "Notice") setting forth in reasonable detail (i) the computation of the amount of such Loss and (ii) the computation of such amount or amounts that shall equal, on an After-Tax Basis, the aggregate additional federal, state and local income taxes (including any interest, penalties, fines or other additions thereto) payable or deemed to be payable by the Owner Participant from time to time as a result of such Loss (computed in accordance with Section 5(b) of this Agreement). Any such computation will take into account all deductions, credits or other tax benefits available to the Owner Participant as a result of such Loss and any payment due hereunder (computed in accordance with this Section 5 and Section 8 of this Agreement). The Facility Sublessee shall pay the Owner Participant such amount or amounts in accordance with Section 5(b) of this Agreement. If the Facility Sublessee shall disagree with such computation and so requests in a written notice delivered to the Owner Participant within 30 days following the Facility Sublessee's receipt of the Notice, such amount shall be reviewed and determined, within 15 days of receipt of such request by the Facility Sublessee, by an independent public accounting firm of national recognition selected by the Owner Participant and reasonably acceptable to the Facility Sublessee. The costs of such verification shall be borne by the Facility Sublessee, unless such verification shall result in an adjustment in the Facility Sublessee's favor of 5% or more of the payment as computed by the Owner Participant, in which case such costs shall be borne by the Owner Participant. The Owner Participant agrees to cooperate with such independent accounting firm and to supply it with all information reasonably necessary to permit it to accomplish such review and determination; PROVIDED, HOWEVER, that the Owner Participant shall not be required to supply the independent accounting firm with its U.S. federal tax returns or books. Such information shall be for the confidential use of such independent accounting firm and shall not be disclosed to the Facility Sublessee or any other Person. The Facility Sublessee and the Owner Participant agree that the sole responsibility of the independent public accounting firm shall be to verify the amount of a payment pursuant to this Agreement and that matters of interpretation of this Agreement or any other Operative Document are not within the scope of the independent accounting firm's responsibilities. The Facility Sublessee shall have no right to inspect the tax returns or books and records of the Owner Participant or any Affiliate thereof. (b) If any indemnity is due pursuant to Section 4, the Facility Sublessee may elect, at its option, to make such payment on an After-Tax Basis in accordance with Section 5(a) hereof in any of the following ways: (i) The indemnity payment hereunder shall be a lump sum amount which, on an After-Tax Basis, shall be sufficient to preserve the Owner Participant's Net Economic Return as if such Loss had not occurred. The computation of such lump sum amount shall be made by the Owner Participant utilizing the methodology and assumptions, including the U.S. Tax Assumptions utilized by the Owner Participant in determining Rent and Termination Value, except as such assumptions shall be varied to take into account such Loss and any prior Loss in a manner consistent with the intent of the parties as expressed herein. The computation of such lump sum amount under this Section 5(b)(i) also shall take into account any past, current and anticipated interest, penalties and additions to tax payable by the Owner Participant as a result of such Loss and any federal income tax detriments and benefits reasonably expected to be by the Owner Participant by reason of the circumstances or adjustments giving rise to such Loss. Further, such lump sum amount shall be calculated assuming that at all times (A) the Owner Participant has sufficient federal, state and local taxable income to make full use of the tax benefits that are subject to such Loss (or result from the Loss or the events giving rise thereto) in the current year in which all of such tax benefits were assumed (or, in the case of tax benefits that result from the Loss or the events giving rise thereto, are reasonably anticipated) to be available, (B) the highest combined marginal statutory rate applicable to corporations for federal, state and local income tax purposes is the Pricing Rate (other than for purposes of calculating payments necessary to make the lump sum payment on an After-Tax Basis, which calculation shall be governed by the calculation of After-Tax Basis as provided in the Operative Documents and other than for purposes of calculating a lump sum amount in the case of a Foreign Tax Credit Loss or a Loss described in Section 4(b) above, in which case such calculation shall be made using the highest marginal U.S. federal rate applicable to corporations generally for the relevant period or periods and, in the case of a Loss described in Section 4(b), the highest state and local income tax rates applicable to corporations generally for the relevant period or periods, taking into account the deductibility of state and local taxes for U.S. federal income tax purposes), and (C) the Owner Participant shall be deemed to have state and local income tax consequences that mirror the Owner Participant's U.S. federal income tax consequences, (ii) So long as no Payment Default, Bankruptcy Default or Event of Default under the Facility Lease, or a Sublease Payment Default, Sublease Bankruptcy Default or Sublease Event of Default has occurred and is continuing, and provided that the long term unsecured obligations of the Facility Sublessee are rated at least A- by Standard & Poor's and Baa1 by Moody's or better, the Facility Sublessee may elect to pay to the Owner Participant as an indemnity from time to time on an After-Tax Basis such amount or amounts as shall be equal to the aggregate additional federal, state and local income taxes payable or deemed payable by the Owner Participant as a result of such Loss and any interest, penalties or additions to tax actually imposed as a result of such Loss. Such computation shall be made assuming that at all times (A) the Owner Participant has sufficient federal, state and local taxable income to make full use of the tax benefits that are subject to such Loss (or result from the Loss or the events giving rise thereto) in the current year in which all of such tax benefits were assumed (or, in the case of tax benefits that result from the Loss or the events giving rise thereto, are reasonably anticipated) to be available, (B) the highest combined marginal statutory rate applicable to corporations for federal, state and local income tax purposes is the Pricing Rate (other than for purposes of calculating payments necessary to make such payment on an After-Tax Basis, which calculation shall be governed by the calculation of After-Tax Basis as provided in the Operative documents and other than for purposes of calculating an amount or amounts in the case of a Foreign Tax Credit Loss or a Loss described in Section 4(b) above, in which case such calculation shall be made using the highest marginal U.S. federal rate applicable to corporations generally for the relevant period or periods and, in the case of a Loss described in Section 4(b), the highest state and local income tax rates applicable to corporations generally for the relevant period or periods taking into account the deductibility of state and local taxes for U.S. federal income tax purposes), and (C) the Owner Participant shall be deemed to have state and local income tax consequences that mirror the Owner Participant's U.S. federal income tax consequences. Upon the occurrence of a Payment Default, Bankruptcy Default or Event of Default under the Facility Lease, or a Sublease Payment Default, Sublease Bankruptcy Default or Sublease Event of Default or of a termination of the Facility Lease or Facility Sublease prior to the expiration of the Facility Lease Term or Facility Sublease Term, as the case may be, or if the long term unsecured obligations of the Facility Sublessee are no longer rated at least A- by Standard & Poor's and Baa1 by Moody's, there shall thereupon be immediately due and payable by the Facility Sublessee to the Owner Participant a lump sum amount equal to the amount that, after taking into account all amounts theretofore paid with respect to such Loss pursuant to this clause (ii), preserves, on an After-Tax Basis, the Owner Participant's Net Economic Return; PROVIDED, HOWEVER, that if the schedules of Termination Value have been adjusted to include the lump sum amount contemplated by this sentence and if the Facility Sublessee is required to pay, and shall have paid in full, Termination Value for the Undivided Interest in the Facility, any portion or Component thereof or an amount determined by reference thereto, then no lump sum amount shall be due or payable pursuant to this sentence to the extent such amount already has been collected through the collection of such amount, it being the intent of the parties that the Owner Participant only be paid once for such Loss. (c) Any amount payable by the Facility Sublessee to the Owner Participant shall be paid within 30 days after the date of the Notice to the Facility Sublessee pursuant to Section 5(a) of this Agreement; PROVIDED that, except in the case of a lump sum payment, no payment will be required prior to the date the additional taxes indemnified hereunder are payable or deemed to be payable in accordance with the U.S. Tax Assumptions by the Owner Participant.

Amount of Indemnification. The Facility Sublessee shall pay to After the Owner Participant an indemnity with respect to giving of any Loss Claim Notice pursuant to Section 4 of this Agreement in hereto, the amount determined in accordance with this Section 5. (a) In the case of any Loss pursuant Indemnification to Section 4 of this Agreement, the Owner Participant shall give the Facility Sublessee notice of such Loss. Such notice which NEWCO 1 will be accompanied entitled under this section will be determined (i) by a written statement (the "Notice") setting forth in reasonable detail (i) the computation of the amount of such Loss agreement between NEWCO 1 and GEAC, (ii) by a final judgement or decree of any court of competent jurisdiction; or (iii) by any other means to which NEWCO 1 and GEAC agree. The judgement or decree of a court will be deemed final when the computation time for appeal, if any, has expired and no appeal has been taken or when all appeals taken have been finally determined. THIRD PARTY CLAIMS: NEWCO 1 will have the right to conduct and control, through counsel of such amount or amounts that shall equal, on an After-Tax Basisits choosing, the aggregate additional federaldefence, state compromise or settlement of any third party claim, action or suit as to which indemnification is sought hereunder, and local income taxes in any such case, GEAC will co-operate in connection therewith and will furnish such records, information and testimony and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by NEWCO 1 in connection therewith; provided, that GEAC may participate, through counsel chosen by it and at its own expense, in the defence of any such claim, action or suit as to which NEWCO 1 has so elected to conduct and control the defence thereof; and provided further that NEWCO 1 will not, without the written consent of GEAC (including which written consent will not be unreasonably withheld), pay, compromise or settle any interestsuch claim, penaltiesaction or suit, fines or other additions thereto) payable or deemed to except that no such consent will be payable by the Owner Participant from time to time as a result of such Loss (computed in accordance with Section 5(b) of this Agreement). Any such computation will take into account all deductionsrequired if, credits or other tax benefits available to the Owner Participant as a result of such Loss and any payment due hereunder (computed in accordance with this Section 5 and Section 8 of this Agreement). The Facility Sublessee shall pay the Owner Participant such amount or amounts in accordance with Section 5(b) of this Agreement. If the Facility Sublessee shall disagree with such computation and so requests in following a written notice delivered request from NEWCO 1, GEAC fails to the Owner Participant within 30 days following the Facility Sublessee's receipt of the Notice, such amount shall be reviewed and determinedrespond, within 15 days of receipt four (4) weeks after the making of such request by (or such shorter period if NEWCO 1 has a deadline of less than four weeks), which request includes the Facility Sublessee, by an independent public accounting firm of national recognition selected by the Owner Participant and reasonably acceptable to the Facility Sublessee. The costs of such verification shall be borne by the Facility Sublessee, unless such verification shall result in an adjustment in the Facility Sublessee's favor of 5% or more of the payment as computed by the Owner Participant, in which case such costs shall be borne by the Owner Participant. The Owner Participant agrees to cooperate with such independent accounting firm and to supply it with all information reasonably necessary to permit it to accomplish such review and determination; PROVIDED, HOWEVER, that the Owner Participant shall not be required to supply the independent accounting firm with its U.S. federal tax returns or books. Such information shall be for the confidential use of such independent accounting firm and shall not be disclosed to the Facility Sublessee or any other Person. The Facility Sublessee and the Owner Participant agree that the sole responsibility of the independent public accounting firm shall be to verify the amount of a payment pursuant specific reference to this Agreement and that matters of interpretation of this Agreement or any other Operative Document are not within consequence. Notwithstanding the scope of foregoing, NEWCO 1 will have the independent accounting firm's responsibilities. The Facility Sublessee shall have no right to inspect the tax returns or books and records of the Owner Participant or any Affiliate thereof. (b) If any indemnity is due pursuant to Section 4, the Facility Sublessee may elect, at its option, to make such payment on an After-Tax Basis in accordance with Section 5(a) hereof in any of the following ways: (i) The indemnity payment hereunder shall be a lump sum amount which, on an After-Tax Basis, shall be sufficient to preserve the Owner Participant's Net Economic Return as if such Loss had not occurred. The computation of such lump sum amount shall be made by the Owner Participant utilizing the methodology and assumptions, including the U.S. Tax Assumptions utilized by the Owner Participant in determining Rent and Termination Value, except as such assumptions shall be varied to take into account such Loss and any prior Loss in a manner consistent with the intent of the parties as expressed herein. The computation of such lump sum amount under this Section 5(b)(i) also shall take into account any past, current and anticipated interest, penalties and additions to tax payable by the Owner Participant as a result of such Loss and any federal income tax detriments and benefits reasonably expected to be by the Owner Participant by reason of the circumstances or adjustments giving rise to such Loss. Further, such lump sum amount shall be calculated assuming that at all times (A) the Owner Participant has sufficient federal, state and local taxable income to make full use of the tax benefits that are subject to such Loss (or result from the Loss or the events giving rise thereto) in the current year in which all of such tax benefits were assumed (or, in the case of tax benefits that result from the Loss or the events giving rise thereto, are reasonably anticipated) to be available, (B) the highest combined marginal statutory rate applicable to corporations for federal, state and local income tax purposes is the Pricing Rate (other than for purposes of calculating payments necessary to make the lump sum payment on an After-Tax Basis, which calculation shall be governed by the calculation of After-Tax Basis as provided in the Operative Documents and other than for purposes of calculating a lump sum amount in the case of a Foreign Tax Credit Loss or a Loss described in Section 4(b) above, in which case such calculation shall be made using the highest marginal U.S. federal rate applicable to corporations generally for the relevant period or periods and, in the case of a Loss described in Section 4(b), the highest state and local income tax rates applicable to corporations generally for the relevant period or periods, taking into account the deductibility of state and local taxes for U.S. federal income tax purposes), and (C) the Owner Participant shall be deemed to have state and local income tax consequences that mirror the Owner Participant's U.S. federal income tax consequences, (ii) So long as no Payment Default, Bankruptcy Default or Event of Default under the Facility Lease, or a Sublease Payment Default, Sublease Bankruptcy Default or Sublease Event of Default has occurred and is continuing, and provided that the long term unsecured obligations of the Facility Sublessee are rated at least A- by Standard & Poor's and Baa1 by Moody's or better, the Facility Sublessee may elect to pay to the Owner Participant as an indemnity from time to time on an After-Tax Basis such amount or amounts as shall be equal to the aggregate additional federal, state and local income taxes payable or deemed payable by the Owner Participant as a result of such Loss and any interest, penalties or additions to tax actually imposed as a result of such Loss. Such computation shall be made assuming that at all times (A) the Owner Participant has sufficient federal, state and local taxable income to make full use of the tax benefits that are subject to such Loss (or result from the Loss or the events giving rise thereto) in the current year in which all of such tax benefits were assumed (or, in the case of tax benefits that result from the Loss or the events giving rise thereto, are reasonably anticipated) to be available, (B) the highest combined marginal statutory rate applicable to corporations for federal, state and local income tax purposes is the Pricing Rate (other than for purposes of calculating payments necessary to make such payment on an After-Tax Basis, which calculation shall be governed by the calculation of After-Tax Basis as provided in the Operative documents and other than for purposes of calculating an amount or amounts in the case of a Foreign Tax Credit Loss or a Loss described in Section 4(b) above, in which case such calculation shall be made using the highest marginal U.S. federal rate applicable to corporations generally for the relevant period or periods and, in the case of a Loss described in Section 4(b), the highest state and local income tax rates applicable to corporations generally for the relevant period or periods taking into account the deductibility of state and local taxes for U.S. federal income tax purposes), and (C) the Owner Participant shall be deemed to have state and local income tax consequences that mirror the Owner Participant's U.S. federal income tax consequences. Upon the occurrence of a Payment Default, Bankruptcy Default or Event of Default under the Facility Lease, or a Sublease Payment Default, Sublease Bankruptcy Default or Sublease Event of Default or of a termination of the Facility Lease or Facility Sublease prior to the expiration of the Facility Lease Term or Facility Sublease Term, as the case may be, or if the long term unsecured obligations of the Facility Sublessee are no longer rated at least A- by Standard & Poor's and Baa1 by Moody's, there shall thereupon be immediately due and payable by the Facility Sublessee to the Owner Participant a lump sum amount equal to the amount that, after taking into account all amounts theretofore paid with respect to such Loss pursuant to this clause (ii), preserves, on an After-Tax Basis, the Owner Participant's Net Economic Return; PROVIDED, HOWEVER, that if the schedules of Termination Value have been adjusted to include the lump sum amount contemplated by this sentence and if the Facility Sublessee is required to pay, and shall have paid settle or compromise any such claim, action or suit without such consent, provided that in full, Termination Value for the Undivided Interest in the Facility, such event NEWCO 1 will waive any portion or Component thereof or an amount determined by reference thereto, then no lump sum amount shall be due or payable pursuant right to this sentence to the extent indemnity therefor hereunder unless such amount already has been collected through the collection of such amount, it being the intent of the parties that the Owner Participant only be paid once for such Lossconsent is unreasonably withheld. (c) Any amount payable by the Facility Sublessee to the Owner Participant shall be paid within 30 days after the date of the Notice to the Facility Sublessee pursuant to Section 5(a) of this Agreement; PROVIDED that, except in the case of a lump sum payment, no payment will be required prior to the date the additional taxes indemnified hereunder are payable or deemed to be payable in accordance with the U.S. Tax Assumptions by the Owner Participant.