Common use of Computation of Adjustments Clause in Contracts

Computation of Adjustments. Upon the occurrence of an event requiring an adjustment to the Basic Rent, the EBO Price, Casualty Values or Termination Values pursuant to this Article IX, the Owner Participant shall make the necessary computations and, within ninety (90) days after the Owner Participant's knowledge of such event, furnish to the Lessee a certificate complying with the requirements of Section 9.4 hereof. In making any such computations, the Owner Participant (a) shall utilize the same methods and assumptions (including tax constraints) originally used to calculate the payments of Basic Rent, the EBO Price, Casualty Values and Termination Values (other than those assumptions changed as a result of the event described in Section 9.1 necessitating such computations; it being agreed that such computation shall reflect solely any changes of assumptions or facts resulting directly from any such event necessitating such recalcu- lation); and (b) shall minimize to the maximum extent possible, but subject at all times to the preservation of Net Economic Return, the present value (discounted semi-annually at an interest rate per annum equal to the Debt Rate) of the payments of Basic Rent. All Basic Rent adjustments shall be consistent with Rev. Procs. 75-21 and 75-28 and Section 467 of the Code as in effect at the time of the adjustment, including any final, proposed or temporary regulation or other administrative announcement issued thereunder. In no event shall any such adjustment, in the judgment of the Owner Participant, result in the Lease being treated as a "disqualified leaseback" or "long term agreement" within the meaning of Section 467 of the Code and any regulation (including any proposed regulation) or other interpretation regarding Section 467 of the Code, or otherwise cause any adverse tax consequences to the Owner Participant. If the Lessee shall disagree with any such determinations, such determinations and the supporting data described below shall be reviewed and determined by an independent accounting firm jointly chosen by the Lessee and the Owner Participant, or, in the absence of agreement as to such firm, by a third independent accounting firm jointly chosen by two independent accounting firms, one chosen by the Owner Participant and one chosen by the Lessee. In connection with any such review, the Owner Participant shall make available to such accounting firm or firms on a confidential basis its pricing runs and its related assumptions, but under no circumstances shall such pricing runs or assumptions be made available to the Lessee; provided, however, that in connection with any such review the Owner Participant shall not be required to disclose its tax returns or other proprietary information. The adjustments as determined by such accounting firm will replace the adjustments provided by Owner Participant unless the Lessee and the Owner Participant otherwise agree. The costs of such verification shall be borne by the Lessee, except that such costs shall be borne by the Owner Participant if such verification results in a reduction of the amount of the present value (discounted semi- annually at an interest rate per annum equal to the Debt Rate) of the Basic Rent payments during the Base Term of the affected Items of Equipment from the amounts proposed by the Owner Participant of more than the lesser of (a) 10 basis points or (b) 5% of the Owner Participant's proposed adjustments, in which case such costs shall be borne by the Owner Participants. Notwithstanding any provision herein to the contrary, the sole responsibility of the accounting firm shall be to verify the calculations hereunder, and matters of interpretation of this Agreement or any other Operative Document shall not be within the scope of its duties.

Computation of Adjustments. Upon the occurrence of an event requiring an adjustment to Basic Rent payable pursuant to clause (ii) of Section 3(a), and the Basic Rentschedules of Casualty Values, the EBO Price, Special Casualty Values or and Termination Values attached hereto, pursuant to paragraph (d) or (e) of this Article IXSection 3, the Owner Participant shall make the necessary computations andand furnish to the Lessee, within ninety the Loan Participant, the Lessor and the Indenture Trustee the revised amounts and percentages, which amounts and percentages shall be implemented upon delivery thereof and effective as of the date of occurrence of the event requiring such adjustment (90taking into account any payment of Basic Rent already made) days after and shall remain effective until changed in consequence of any verification procedure set forth below. Such revised amounts and percentages shall be subject to verification (at the Lessee's request) by the Owner Participant's knowledge of nationally recognized independent public accountants, in which case such event, furnish accountants shall either (i) confirm to the Lessee in writing that such revised amounts were computed on a certificate complying basis consistent with the requirements of Section 9.4 hereof. In making any such computationsoriginal 6091.20.2898.47:1 - 5 - calculations, or (ii) compute and provide to the Lessee, the Owner Participant (a) shall utilize the same methods and assumptions (including tax constraints) originally used to calculate the payments of Basic RentLessor, the EBO Price, Casualty Values and Termination Values (other than those assumptions changed as a result of the event described in Section 9.1 necessitating such computations; it being agreed that such computation shall reflect solely any changes of assumptions or facts resulting directly from any such event necessitating such recalcu- lation); and (b) shall minimize to the maximum extent possible, but subject at all times to the preservation of Net Economic Return, the present value (discounted semi-annually at an interest rate per annum equal to the Debt Rate) of the payments of Basic Rent. All Basic Rent adjustments shall be consistent with Rev. Procs. 75-21 and 75-28 and Section 467 of the Code as in effect at the time of the adjustment, including any final, proposed or temporary regulation or other administrative announcement issued thereunder. In no event shall any such adjustment, in the judgment of the Owner Participant, result in the Lease being treated Loan Participant and the Indenture Trustee revised amounts and percentages which are on such a basis. The revised amounts and percentages, as a "disqualified leaseback" so confirmed or "long term agreement" within computed if applicable, shall be conclusive and binding upon the meaning of Section 467 of Lessee, the Code and any regulation (including any proposed regulation) or other interpretation regarding Section 467 of the CodeLessor, or otherwise cause any adverse tax consequences to the Owner Participant, the Loan Participant and the Indenture Trustee. If The cost of any such verification shall be borne by the Lessee unless such accountants shall disagree with any require an adjustment to the revised amounts and percentages originally provided by the Owner Participant which greater than 10% of the adjustment so provided, in which case such determinations, such determinations cost shall be divided and paid by the Lessee and the supporting data described below shall Owner Participant in equal amounts. Each adjustment pursuant to paragraph (d) or (e) of this Section 3 may, but need not, be reviewed evidenced by the execution and determined by an independent accounting firm jointly chosen by delivery of a supplement to this Facility Lease in form and substance satisfactory to the Lessee and the Owner Participant, orbut shall be effective as provided herein without regard to the date on which such implement to this Facility Lease is so executed and delivered. Any adjustment referred to in this Section 3 shall satisfy the provisions of Revenue Procedure 75-21, Revenue Procedure 75-28 and any other applicable statute, regulation, revenue procedure, revenue ruling or technical information release relating to the subject matter of Revenue Procedure 75-21 or Revenue Procedure 75-28, but, in the absence case of agreement as to such firmany upward adjustment, by a third independent accounting firm jointly chosen by two independent accounting firms, one chosen by the Owner Participant and one chosen by the Lessee. In connection with any such review, the Owner Participant shall make available to such accounting firm or firms on a confidential basis its pricing runs and its related assumptions, but under no circumstances shall such pricing runs or assumptions be made available to the Lessee; provided, however, that in connection with any such review the Owner Participant shall not be required to disclose its tax returns or other proprietary information. The adjustments as determined by such accounting firm will replace the adjustments provided by Owner Participant unless the Lessee and the Owner Participant otherwise agree. The costs of such verification shall be borne by the Lessee, except that such costs shall be borne by the Owner Participant if such verification results in a reduction of the amount of the present value (discounted semi- annually at an interest rate per annum equal to the Debt Rate) of the Basic Rent payments during the Base Term of the affected Items of Equipment from the amounts proposed by the Owner Participant of more no less than the lesser of (a) 10 basis points or (b) 5% of the Owner Participant's proposed adjustments, in which case such costs shall be borne by the Owner Participants. Notwithstanding any provision herein adjustment otherwise required pursuant to the contrary, the sole responsibility of the accounting firm shall be to verify the calculations hereunder, and matters of interpretation of this Agreement or any other Operative Document shall not be within the scope of its dutiesSection 3.

Computation of Adjustments. Upon the occurrence of an event requiring an adjustment to the Basic Rent, the EBO Price, Casualty Values or Termination Values pursuant to this Article IXX, the Owner Participant shall make the necessary computations and, within ninety (90) days after the of any Owner Participant's knowledge of such event, furnish to the Co-Lessee a certificate complying with the requirements of Section 9.4 10.5 hereof. In making any such computations, the Owner Participant (a) shall utilize the same methods and assumptions (including tax constraints) originally used to calculate the payments of Basic Rent, the EBO Price, Casualty Values and Termination Values (other than those assumptions changed as a result of the event described in Section 9.1 10.1 necessitating such computations; it being agreed that such computation shall reflect solely any changes of assumptions or facts resulting directly from any such event necessitating such recalcu- lationrecalculation); and (b) shall minimize to the maximum extent possible, but subject at all times to the preservation of Net Economic Return, the present value (discounted semi-annually at an interest rate per annum equal to the Debt Rate) of the payments of Basic Rent. All Basic Rent adjustments shall be consistent with Rev. Procs. 75-21 and 75-28 and Section 467 of the Code as in effect at the time of the adjustment, including any final, proposed or temporary regulation or other administrative announcement issued thereunder. In no event shall any such adjustment, in the judgment of the Owner Participant, result in the this Lease being treated as a "disqualified leaseback" or "long term agreement" within the meaning of Section 467 of the Code and any regulation (including any proposed regulation) or other interpretation regarding Section 467 of the Code, or otherwise cause any adverse tax consequences to the Owner Participant. If the Co-Lessee shall disagree with any such determinations, such determinations and the supporting data described below shall be reviewed and determined by an independent accounting firm jointly chosen by the Lessee Owner Participant and the Owner Participant, Co-Lessee or, in the absence of agreement as to such firm, by a third independent accounting firm jointly chosen by two independent accounting firms, one chosen by the Owner Participant and one chosen by the Co-Lessee. In connection with any such review, the Owner Participant shall make available to such accounting firm or firms on a confidential basis its pricing runs and its i related assumptions, but under no circumstances shall such pricing runs or assumptions be made available to the Co-Lessee; provided, however, that in connection with any such review the Owner Participant shall not be required to disclose its tax returns or other proprietary information. The adjustments as determined by such accounting firm will replace the adjustments provided by Owner Participant unless the Lessee and the Owner Participant otherwise agree. The costs of such verification shall be borne by the Co-Lessee, except that such costs shall be borne by the Owner Participant if such verification results in a reduction of more than 10 basis points in the amount of the th present value (discounted semi- semi-annually at an interest rate per annum equal to the Debt Rate) of the Basic Rent payments during the Base Term of the affected Items of Equipment from the amounts proposed by the Owner Participant of more than the lesser of (a) 10 basis points or (b) 5% of the Owner Participant's proposed adjustments, in which case such costs shall be borne by the Owner Participants. Notwithstanding any provision herein to the contrary, the sole responsibility of the accounting firm shall be to verify the calculations hereunder, and matters of interpretation of this Agreement or any other Operative Document shall not be within the scope of its duties.

Computation of Adjustments. Upon the occurrence of an event requiring an adjustment to the Basic Rent, the EBO Price, Casualty Values or Termination Values pursuant to this Article IX, the Owner Participant shall make the necessary computations and, within ninety (90) days after the Owner Participant's knowledge of such event, furnish to the Lessee a certificate complying with the requirements of Section 9.4 hereof. In making any such computations, the Owner Participant (a) shall utilize the same methods and assumptions (including tax constraints) originally used to calculate the payments of Basic Rent, the EBO Price, Casualty Values and Termination Values (other than those assumptions changed as a result of the event described in Section 9.1 necessitating such computations; it being agreed that such computation shall reflect solely any changes of assumptions or facts resulting directly from any such event necessitating such recalcu- lation); and (b) shall minimize to the maximum extent possible, but subject at all times to the preservation of Net Economic Return, the present value (discounted semi-annually at an interest rate per annum equal to the Debt Rate) of the payments of Basic Rent. All Basic Rent adjustments shall be consistent with Rev. Procs. 75-21 and 75-28 and Section 467 of the Code as in effect at the time of the adjustment, including any final, proposed or temporary regulation or other administrative announcement issued thereunder. In no event shall any such adjustment, in the judgment of the Owner Participant, result in the Lease being treated as a "disqualified leaseback" or "long term agreement" within the meaning of Section 467 of the Code and any regulation (including any proposed regulation) or other interpretation regarding Section 467 of the Code, or otherwise cause any adverse tax consequences to the Owner Participant. If the Lessee shall disagree with any such determinations, such determinations and the supporting data described below shall be reviewed and determined by an independent accounting firm jointly chosen by the Lessee and the Owner Participant, or, in the absence of agreement as to such firm, by a third independent accounting firm jointly chosen by two independent accounting firms, one chosen by the Owner Participant and one chosen by the Lessee. In connection with any such review, the Owner Participant shall make available to such accounting firm or firms on a confidential basis its pricing runs and its related assumptions, but under no circumstances shall such pricing runs or assumptions be made available to the Lessee; provided, however, that in connection with any such review the Owner Participant shall not be required to disclose its tax returns or other proprietary information. The adjustments as determined by such accounting firm will replace the adjustments provided by Owner Participant unless the Lessee and the Owner Participant otherwise agree. The costs of such verification shall be borne by the Lessee, except that such costs shall be borne by the Owner Participant if such verification results in a reduction of the amount of the present value (discounted semi- annually at an interest rate per annum equal to the Debt Rate) of the Basic Rent payments during the Base Term of the affected Items of Equipment from the amounts proposed by the Owner Participant of more than the lesser of (a) 10 basis points or (b) 5% of the Owner Participant's proposed adjustments, in which case such costs shall be borne by the Owner ParticipantsParticipant. Notwithstanding any provision herein to the contrary, the sole responsibility of the accounting firm shall be to verify the calculations hereunder, and matters of interpretation of this Agreement or any other Operative Document shall not be within the scope of its duties.