Common use of ADJUSTMENT OF BASIC LEASE RENT AND TERMINATION VALUE Clause in Contracts

ADJUSTMENT OF BASIC LEASE RENT AND TERMINATION VALUE. (a) The Facility Lessee and the Owner Lessor agree that Basic Lease Rent, Allocated Rent, Proportional Rent, Lessor Section 467 Loan Balance, Lessee Section 467 Loan Balance, Lessor Section 467 Interest, Lessee Section 467 Interest and Termination Values may be adjusted, either upwards or downwards, at the request of the Facility Lessee or the Owner Participant in the following situations: (i) after the Closing Date to reflect the change in interest rate on any New Lessor Notes issued in connection with a refinancing pursuant to Section 12.2 of the Participation Agreement and pursuant to SECTION 2.6 of the Lease Indenture, (ii) in connection with the financing of improvements through Additional Lessor Notes pursuant to Section 12.1(a)(iii) of the Participation Agreement and (iii) to reflect the payments made pursuant to Section 10.3(d) hereof. (b) Any adjustments pursuant to this SECTION 3.4 shall be calculated, (A) first, so as to maintain the Owner Participant's Net Economic Return, the minimum and average Rent Service Coverage Ratios set forth in the Closing Projections through the end of the Basic Lease Term, and the "operating lease" treatment for the Facility Lessee and, (B) second, at the option of the Facility Lessee (x) to minimize the average annual Basic Lease Rent over the Basic Lease Term for GAAP accounting purposes of the Facility Lessee and/or (y) to minimize, to the extent possible, the net present value of the Basic Lease Rent (PROVIDED THAT, with respect to GAAP earnings, the Owner Participant shall not be obligated by any such adjustment to record a book loss or reduce book earnings in the year of adjustment). Adjustments shall be computed by the Owner Participant, using the same method of computation, Tax Assumptions and Pricing Assumptions originally used (other than those that have changed as a result of the event giving rise to the adjustment) in the calculation of Basic Lease Rent, Allocated Rent, Proportional Rent, Lessor Section 467 Loan Balance, Lessee Section 467 Loan Balance, Lessor 467 Interest, Lessee 467 Interest and Termination Values set forth in SCHEDULES 1-1, 1-2, 1-3 and SCHEDULE 2 hereto, respectively, but shall be subject to the verification procedure described in SECTION 3.4(D) and shall be in compliance with Section 467 of the Code and Rev. Proc. 2001-28, 2001-19 IRB 1156 and Rev. Proc. 2001-29, 2001-19 IRB 1160 except to the extent the original transaction did not comply therewith. (c) Anything herein or in any other Operative Document to the contrary notwithstanding, Basic Lease Rent (excluding Component A of Basic Lease Rent) payable on any Rent Payment Date, whether or not adjusted in accordance with this SECTION 3.4, shall, in the aggregate, be in an amount at least sufficient to pay in full principal and interest payable on the Lessor Notes on such Rent Payment Date. Anything herein or in any other Operative Document to the contrary notwithstanding, Termination Values (excluding Component A of Termination Value) payable on any date under this Facility Lease, whether or not adjusted in accordance with this SECTION 3.4, shall in the aggregate, together with all other Rent due and owing on such date, exclusive of any portion thereof that is Component A of Basic Lease Rent or an Excepted Payment, be in an amount at least sufficient to pay in full the principal of, premium, if any, and accrued interest on the Lessor Notes payable on such date. (d) Any adjustment pursuant to this SECTION 3.4 computed by the Owner Participant pursuant to SECTION 3.4(B) shall be subject to the verification procedure described in this SECTION 3.4(D). Once computed, the results of such computation shall promptly be delivered by the Owner Participant to the Facility Lessee. Within 30 days after the receipt of the results of any such adjustment, the Facility Lessee may request that a nationally recognized firm of accountants or lease advisors selected by the Owner Participant and reasonably acceptable to the Facility Lessee (the "VERIFIER") verify, on a confidential basis, after consultation with the Owner Participant and the Facility Lessee, the accuracy of such adjustment in accordance with this SECTION 3.4. The Owner Participant and the Facility Lessee hereby agree, subject to the execution by the Verifier of an appropriate confidentiality agreement, to provide the Verifier with all necessary information and materials (other than the Owner Participant's, the OP Guarantor's or any of their respective Affiliates' income tax returns or accounting records) as shall be necessary in connection with such verification. Both the Owner Participant and the Facility Lessee shall have the right to communicate with the Verifier and to submit supporting information and data to the Verifier. If the Verifier confirms that such adjustment is in accordance with this SECTION 3.4, and the adjustment to Basic Lease Rent, Allocated Rent, Proportional Rent, Lessor Section 467 Loan Balance, Lessee Section 467 Loan Balance, Lessor 467 Interest, Lessee 467 Interest and Termination Value calculated by the Verifier are the same as those calculated by the Owner Participant, it shall so certify to the Facility Lessee, the Owner Lessor and the Owner Participant and such certification shall be final, binding and conclusive on the Facility Lessee, the Owner Lessor and the Owner Participant. If the Verifier concludes that such adjustment is not in accordance with this SECTION 3.4, and the adjustments to Basic Lease Rent, Allocated Rent, Proportional Rent, Lessor Section 467 Loan Balance, Lessee Section 467 Loan Balance, Lessor 467 Interest, Lessee 467 Interest and Termination Value calculated by the Verifier are different from those calculated by the Owner Participant, it shall so certify to the Facility Lessee, the Owner Lessor and the Owner Participant, and the Verifier's calculation shall be final, binding and conclusive on the Facility Lessee, the Owner Lessor and the Owner Participant. If the Facility Lessee does not request a verification of any adjustment within the 30 day period specified above in this SECTION 3.4(D), the computation provided by the Owner Participant shall be final, binding and conclusive on the Facility Lessee, the Owner Lessor and the Owner Participant. The final determination of any adjustment hereunder shall be set forth in an amendment to this Facility Lease, executed and delivered by the Owner Lessor and the Facility Lessee and consented to by the Owner Participant; PROVIDED, however, that any omission to execute and deliver such amendment shall not affect the validity and effectiveness of any such adjustment. The reasonable costs of the Verifier in verifying an adjustment pursuant to this SECTION 3.4 shall be paid by the Facility Lessee; PROVIDED, HOWEVER, that in the event that such Verifier determines that the present value of the remaining Basic Lease Rent to be made under this Facility Lease as calculated by the Owner Participant is greater than the present value of the remaining Basic Lease Rent as certified by the Verifier, in each case, discounted annually at the Discount Rate, by more than ten basis points, then such reasonable costs of the Verifier shall be paid by the Owner Participant. Notwithstanding anything herein to the contrary, the sole responsibility of the Verifier shall be to verify the calculations hereunder and the scope of the Verifier's responsibilities shall not include matters of interpretation of this Facility Lease or any other Operative Document.

ADJUSTMENT OF BASIC LEASE RENT AND TERMINATION VALUE. (a) The Facility Lessee and the Owner Lessor agree that Basic Lease Rent, Allocated Termination Values, the Equity Portion of Basic Lease Rent, Proportional Rent, Lessor Section the Equity Portion of Termination Value and allocations of Basic Lease Rent and 467 Loan Balance, Lessee Section 467 Loan Balance, Lessor Section 467 Interest, Lessee Section 467 Interest and Termination Values Fixed Rent may be adjusted, either upwards or downwards, at the request of the Facility Lessee Lessee, the Owner Lessor or the Owner Participant in the following situations: (i) after the Closing Date to reflect (A) the change in principal amount, amortization and interest rate on any New Lessor Notes issued pursuant to Section 2.13 of the Lease Indenture in connection with a refinancing or refunding of the Lessor Notes pursuant to Section 12.2 14.2 of the Participation Agreement Agreement, (B) the principal amount, amortization and interest rate on any Additional Lessor Notes issued pursuant to SECTION 2.6 Section 2.13 of the Lease Indenture, (ii) Indenture in connection with the financing of improvements through Additional Lessor Notes Improvements to the Facility pursuant to Section 12.1(a)(iii) of the Participation Agreement 8 herein and (iiiC) to reflect a change in the payments made pursuant to Section 10.3(d) hereof. (b) interest rate on the Initial Lessor Notes during or after the calendar year 2001, under the circumstances set forth in the second paragraph of each Initial Lessor Note. Any adjustments pursuant to this SECTION Section 3.4 shall be calculated, (A) first, FIRST so as not to maintain negatively impact the Owner Participant's Net Economic Return, the minimum and average Rent Service Coverage Ratios set forth in the Closing Projections Expected Return through the end of the Basic Lease Term, and Term (except that with respect to GAAP earnings the "operating lease" treatment for Owner Participant shall also not have to record a book loss or reduce earnings by more than ten percent in the Facility Lessee year of adjustment) and, (B) second, SECOND at the option of the Facility Lessee (x) to minimize minimize, to the extent possible, the average annual Basic Lease Rent over the Basic Lease Term for GAAP accounting purposes of the Facility Lessee Lessee, and/or (y) to minimize, to the extent possible, the net present value to the Facility Lessee of the Basic Lease Rent (PROVIDED THATRent; PROVIDED, with respect that no adjustment pursuant to GAAP earnings, this Section 3.4 shall result in a book loss to the Owner Participant shall not be obligated by any such adjustment to record a book loss or reduce book earnings in the year of adjustment)such adjustment is made. Adjustments shall be computed by the Owner Participant, or, if prior to the Closing Date, the Equity Investor, using the same method of computation, Tax Assumptions assumptions and Pricing Assumptions pricing constraints originally used (other than those that have changed as a the result of the event giving rise to the adjustment) in the calculation of Basic Lease Rent, Allocated Rent, Proportional Rent, Lessor Section 467 Loan Balance, Lessee Section 467 Loan Balance, Lessor 467 Interest, Lessee 467 Interest Rent and Termination Values set forth in SCHEDULES Schedule 1-1, 1-2, 1-3 1 and SCHEDULE Schedule 2 hereto, respectively, but hereto and shall be subject to the verification procedure described in SECTION 3.4(DSection 3.4(c). Adjustments to Basic Lease Rent contemplated by this Section 3.4 shall result in corresponding adjustments to Termination Values. All Basic Lease Rent adjustments shall comply (in case of the adjustment in connection with the event set forth in Section 3.4(a)(C) and above, such compliance shall be in compliance with Section respect to all of the Basic Lease Term from the Closing Date, as a single lease term, taking into account the Basic Rent allocations for the period of the Basic Lease Term prior to the date of adjustment) with Revenue Procedures 75-21 and 75-28 and 467 of the Code and Rev. Proc. 2001any proposed, temporary, or final regulations thereunder, in each case as modified and in effect on the date of such adjustment and shall be calculated in such a manner so that, if the Facility Lease were determined to be a "disqualified leaseback or long-28term agreement" within the meaning of Section 467 of the Code, 2001the result would be an increase in the Owner Participant's Expected Return (when contrasted with the Owner Participant's Ex pected Return computed on the assumption that the Facility Lease is not a "disqualified leaseback or long-19 IRB 1156 and Rev. Proc. 2001-29, 2001-19 IRB 1160 except to the extent the original transaction did not comply therewithterm agreement"). (cb) Anything herein or in any other Operative Document to the contrary notwithstanding, each installment of Basic Lease Rent (excluding Component A any Equity Portion of Basic Lease RentRent included in such installment) payable on any Rent Payment Datehereunder, whether or not adjusted in accordance with this SECTION Section 3.4, shall, in the aggregate, shall be in an amount at least sufficient to pay in full principal and interest payable on the Lessor Notes on such each Rent Payment Date. Anything herein or in any other Operative Document to the contrary notwithstanding, Termination Values (excluding Component A the Equity Portion of Termination Value) payable on any date under this Facility Lease, whether or not adjusted in accordance with this SECTION Section 3.4, shall in the aggregateshall, together with all other Rent due and owing on such date, exclusive of any portion thereof that is Component A of Basic Lease Rent or an Excepted PaymentPay ment, be in an amount at least sufficient to pay in full the principal of, premium, if any, and accrued interest on the Lessor Notes payable on such date. (dc) Any adjustment pursuant to this SECTION Section 3.4 shall initially be computed by the Owner Participant pursuant or, if prior to SECTION 3.4(B) shall be the Closing Date, by the Equity Investor, subject to the verification procedure described in this SECTION 3.4(DSection 3.4(c). Once computed, the results of such computation shall promptly be delivered by the Owner Participant or, if prior to the Closing Date, the Equity Investor to the Facility Lessee. Within 30 20 days after the receipt of the results of any such adjustment, the Facility Lessee may request that Xxxxxx & Xxxxxxx, Inc. or a nationally recognized firm of accountants or lease advisors selected by the Owner Participant Participant, or if prior to the Closing Date, the Equity Investor, and reasonably acceptable satisfactory to the Facility Lessee (the "VERIFIER") verify, on a confidential basis, after consultation with the Owner Participant or the Equity Investor, as the case may be, and the Facility Lessee, the accuracy of such adjustment in accordance with this SECTION Section 3.4. The Owner Participant and or the Facility Lessee Equity Investor, as the case may be, hereby agreeagrees, subject to the execution by the Verifier of an appropriate confidentiality agreement, to provide the Verifier with all necessary information and materials (other than the Owner Participant's, the OP Guarantor's or any of their respective Affiliates' income tax returns or and accounting records) as shall be necessary in connection with such verification. Both Each of the Owner Participant or the Equity Investor, as the case may be, and the Facility Lessee shall have the right to communicate with the Verifier and to submit supporting information and data to the Verifierdata. If the Verifier confirms that such adjustment is in accordance with this SECTION Section 3.4, and the adjustment to Basic Lease Rent, Allocated Rent, Proportional Rent, Lessor Section 467 Loan Balance, Lessee Section 467 Loan Balance, Lessor 467 Interest, Lessee 467 Interest and Termination Value calculated by the Verifier are the same as those calculated by the Owner Participant, it shall so certify to the Facility Lessee, the Owner Lessor and the Owner Participant or the Equity Investor, as the case may be, and such certification shall be final, binding and conclusive on the Facility Lessee, the Owner Lessor Participant or the Equity Investor, as the case may be, and the Owner ParticipantLessor. If the Verifier concludes that such adjustment is not in accordance accor dance with this SECTION Section 3.4, and the adjustments to Basic Lease Rent, Allocated Rent, Proportional Rent, Lessor Section 467 Loan Balance, Lessee Section 467 Loan Balance, Lessor 467 Interest, Lessee 467 Interest Rent and Termination Termina tion Value calculated by the Verifier are different from those calculated by the Owner ParticipantParticipant or the Equity Investor, as the case may be, then it shall so certify to the Facility Lessee, the Owner Lessor and the Owner ParticipantParticipant or the Equity Investor, as the case may be, and the Verifier's calculation shall be final, binding and conclusive on the Facility Lessee, the Owner Lessor and the Owner Participant. If Participant or the Facility Lessee does not request a verification of any adjustment within Equity Investor, as the 30 day period specified above in this SECTION 3.4(D), the computation provided by the Owner Participant shall be final, binding and conclusive on the Facility Lessee, the Owner Lessor and the Owner Participantcase may be. The final determination of any adjustment hereunder shall be set forth in an amendment to this Facility Lease, executed and delivered by the Owner Lessor and the Facility Lessee and consented to by the Owner Participant; PROVIDEDParticipant or the Equity Investor, however, that any omission to execute and deliver such amendment shall not affect as the validity and effectiveness of any such adjustmentcase may be. The reasonable costs of the Verifier in verifying an adjustment pursuant to this SECTION Section 3.4 shall be paid by the Facility Lessee; PROVIDED, HOWEVER, that in the event that such Verifier determines deter mines that the present value of the remaining Basic Lease Rent to be made under this Facility Lease as calculated by the Owner Participant or the Equity Investor, as the case may be, is greater than the present value of the remaining correct Basic Lease Rent as certified by the Verifier, in each case, discounted annually at the Discount Rate, by more than ten basis points, then such reasonable costs of the Verifier shall be paid by the Owner ParticipantParticipant or the Equity Investor, as the case may be. Notwithstanding anything herein to the contrary, the sole responsibility of the Verifier shall be to verify the calculations hereunder and the scope of the Verifier's responsibilities shall not include matters of interpretation of this Facility Lease or any other Operative DocumentDocument shall not be within the scope of the Verifier's responsibilities.

ADJUSTMENT OF BASIC LEASE RENT AND TERMINATION VALUE. (a) The Facility Lessee and the Owner Lessor agree that Basic Lease Rent, Allocated Rent, Proportional Rent, Lessor Section 467 Loan Balance, Lessee Section 467 Loan Balance, Lessor Section 467 Interest, Lessee Section 467 Interest and Termination Values may be adjusted, either upwards or downwards, at the request of the Facility Lessee or the Owner Participant in the following situations: (i) after the Closing Date to reflect the change in interest rate on any New Lessor Notes issued in connection with a refinancing pursuant to Section 12.2 of the Participation Agreement and pursuant to SECTION 2.6 of the Lease Indenture, (ii) in connection with the financing of improvements through Additional Lessor Notes pursuant to Section 12.1(a)(iii) of the Participation Agreement and (iii) to reflect the payments made pursuant to Section 10.3(d) hereof. (b) Any adjustments pursuant to this SECTION 3.4 shall be calculated, (A) first, so as to maintain the Owner Participant's Net Economic Return, the minimum and average Rent Service Coverage Ratios set forth in the Closing Projections through the end of the Basic Lease Term, and the "operating lease" treatment for the Facility Lessee and, (B) second, at the option of the Facility Lessee (x) to minimize the average annual Basic Lease Rent over the Basic Lease Term for GAAP accounting purposes of the Facility Lessee and/or (y) to minimize, to the extent possible, the net present value of the Basic Lease Rent (PROVIDED THAT, with respect to GAAP earnings, the Owner Participant shall not be obligated by any such adjustment to record a book loss or reduce book earnings in the year of adjustment). Adjustments shall be computed by the Owner Participant, using the same method of computation, Tax Assumptions and Pricing Assumptions originally used (other than those that have changed as a result of the event giving rise to the adjustment) in the calculation of Basic Lease Rent, Allocated Rent, Proportional Rent, Lessor 467 Interest, Lessee 467 Interest, Lessor Section 467 Loan Balance, Lessee Section 467 Loan Balance, Lessor 467 Interest, Lessee 467 Interest and Termination Values set forth in SCHEDULES 1-1, 1-2, 1-3 and SCHEDULE 2 hereto, respectively, but shall be subject to the verification procedure described in SECTION 3.4(D) and shall be in compliance with Section 467 of the Code and Rev. Proc. 2001-28, 2001-19 IRB 1156 and Rev. Proc. 2001-29, 2001-19 IRB 1160 except to the extent the original transaction did not comply therewith. (c) Anything herein or in any other Operative Document to the contrary notwithstanding, Basic Lease Rent (excluding Component A of Basic Lease Rent) payable on any Rent Payment Date, whether or not adjusted in accordance with this SECTION 3.4, shall, in the aggregate, be in an amount at least sufficient to pay in full principal and interest payable on the Lessor Notes on such Rent Payment Date. Anything herein or in any other Operative Document to the contrary notwithstanding, Termination Values (excluding Component A of Termination Value) payable on any date under this Facility Lease, whether or not adjusted in accordance with this SECTION 3.4, shall in the aggregate, together with all other Rent due and owing on such date, exclusive of any portion thereof that is Component A of Basic Lease Rent or an Excepted Payment, be in an amount at least sufficient to pay in full the principal of, premium, if any, and accrued interest on the Lessor Notes payable on such date. (d) Any adjustment pursuant to this SECTION 3.4 computed by the Owner Participant pursuant to SECTION 3.4(B) shall be subject to the verification procedure described in this SECTION 3.4(D). Once computed, the results of such computation shall promptly be delivered by the Owner Participant to the Facility Lessee. Within 30 days after the receipt of the results of any such adjustment, the Facility Lessee may request that a nationally recognized firm of accountants or lease advisors selected by the Owner Participant and reasonably acceptable to the Facility Lessee (the "VERIFIER") verify, on a confidential basis, after consultation with the Owner Participant and the Facility Lessee, the accuracy of such adjustment in accordance with this SECTION 3.4. The Owner Participant and the Facility Lessee hereby agree, subject to the execution by the Verifier of an appropriate confidentiality agreement, to provide the Verifier with all necessary information and materials (other than the Owner Participant's, the OP Guarantor's or any of their respective Affiliates' income tax returns or accounting records) as shall be necessary in connection with such verification. Both the Owner Participant and the Facility Lessee shall have the right to communicate with the Verifier and to submit supporting information and data to the Verifier. If the Verifier confirms that such adjustment is in accordance with this SECTION 3.4, and the adjustment to Basic Lease Rent, Allocated Rent, Proportional Rent, Lessor Section 467 Loan Balance, Lessee Section 467 Loan Balance, Lessor 467 Interest, Lessee 467 Interest and Termination Value calculated by the Verifier are the same as those calculated by the Owner Participant, it shall so certify to the Facility Lessee, the Owner Lessor and the Owner Participant and such certification shall be final, binding and conclusive on the Facility Lessee, the Owner Lessor and the Owner Participant. If the Verifier concludes that such adjustment is not in accordance with this SECTION 3.4, and the adjustments to Basic Lease Rent, Allocated Rent, Proportional Rent, Lessor Section 467 Loan Balance, Lessee Section 467 Loan Balance, Lessor 467 Interest, Lessee 467 Interest and Termination Value calculated by the Verifier are different from those calculated by the Owner Participant, it shall so certify to the Facility Lessee, the Owner Lessor and the Owner Participant, and the Verifier's calculation shall be final, binding and conclusive on the Facility Lessee, the Owner Lessor and the Owner Participant. If the Facility Lessee does not request a verification of any adjustment within the 30 day period specified above in this SECTION 3.4(D), the computation provided by the Owner Participant shall be final, binding and conclusive on the Facility Lessee, the Owner Lessor and the Owner Participant. The final determination of any adjustment hereunder shall be set forth in an amendment to this Facility Lease, executed and delivered by the Owner Lessor and the Facility Lessee and consented to by the Owner Participant; PROVIDED, however, that any omission to execute and deliver such amendment shall not affect the validity and effectiveness of any such adjustment. The reasonable costs of the Verifier in verifying an adjustment pursuant to this SECTION 3.4 shall be paid by the Facility Lessee; PROVIDED, HOWEVER, that in the event that such Verifier determines that the present value of the remaining Basic Lease Rent to be made under this Facility Lease as calculated by the Owner Participant is greater than the present value of the remaining Basic Lease Rent as certified by the Verifier, in each case, discounted annually at the Discount Rate, by more than ten basis points, then such reasonable costs of the Verifier shall be paid by the Owner Participant. Notwithstanding anything herein to the contrary, the sole responsibility of the Verifier shall be to verify the calculations hereunder and the scope of the Verifier's responsibilities shall not include matters of interpretation of this Facility Lease or any other Operative Document.

ADJUSTMENT OF BASIC LEASE RENT AND TERMINATION VALUE. (a) The Facility Lessee and the Owner Lessor agree that Basic Lease Rent, Allocated Rent, Proportional Rent, Lessor Section 467 Loan Balance, Lessee Section 467 Loan Balance, Lessor Section 467 Interest, Lessee Section 467 Interest and Termination Values may be adjusted, either upwards or downwards, at the request of the Facility Lessee or the Owner Participant in the following situations: (i) after the Closing Date to reflect the change in interest rate on any New Lessor Notes issued in connection with a refinancing pursuant to Section 12.2 of the Participation Agreement and pursuant to SECTION Section 2.6 of the Lease Indenture, (ii) in connection with the financing of improvements through Additional Lessor Notes pursuant to Section 12.1(a)(iii) of the Participation Agreement and (iii) to reflect the payments made pursuant to Section 10.3(d) hereof. (b) Any adjustments pursuant to this SECTION Section 3.4 shall be calculated, (A) first, so as to maintain the Owner Participant's Net Economic Return, the minimum and average Rent Service Coverage Ratios set forth in the Closing Projections through the end of the Basic Lease Term, and the "operating lease" treatment for the Facility Lessee and, (B) second, at the option of the Facility Lessee (x) to minimize the average annual Basic Lease Rent over the Basic Lease Term for GAAP accounting purposes of the Facility Lessee and/or (y) to minimize, to the extent possible, the net present value of the Basic Lease Rent (PROVIDED THATprovided that, with respect to GAAP earnings, the Owner Participant shall not be obligated by any such adjustment to record a book loss or reduce book earnings in the year of adjustment). Adjustments shall be computed by the Owner Participant, using the same method of computation, Tax Assumptions and Pricing Assumptions originally used (other than those that have changed as a result of the event giving rise to the adjustment) in the calculation of Basic Lease Rent, Allocated Rent, Proportional Rent, Lessor 467 Interest, Lessee 467 Interest, Lessor Section 467 Loan Balance, Lessee Section 467 Loan Balance, Lessor 467 Interest, Lessee 467 Interest Balance and Termination Values set forth in SCHEDULES Schedules 1-1, 1-2, 1-3 and SCHEDULE Schedule 2 hereto, respectively, but shall be subject to the verification procedure described in SECTION 3.4(DSection 3.4(d) and shall be in compliance with Section 467 of the Code and Rev. Proc. 2001-28, 2001-19 IRB 1156 and Rev. Proc. 2001-29, 2001-19 IRB 1160 except to the extent the original transaction did not comply therewith. (c) Anything herein or in any other Operative Document to the contrary notwithstanding, Basic Lease Rent (excluding Component A of Basic Lease Rent) payable on any Rent Payment Date, whether or not adjusted in accordance with this SECTION Section 3.4, shall, in the aggregate, be in an amount at least sufficient to pay in full principal and interest payable on the Lessor Notes on such Rent Payment Date. Anything herein or in any other Operative Document to the contrary notwithstanding, Termination Values (excluding Component A of Termination Value) payable on any date under this Facility Lease, whether or not adjusted in accordance with this SECTION Section 3.4, shall in the aggregate, together with all other Rent due and owing on such date, exclusive of any portion thereof that is Component A of Basic Lease Rent or an Excepted Payment, be in an amount at least sufficient to pay in full the principal of, premium, if any, and accrued interest on the Lessor Notes payable on such date. (d) Any adjustment pursuant to this SECTION Section 3.4 computed by the Owner Participant pursuant to SECTION 3.4(BSection 3.4(b) shall be subject to the verification procedure described in this SECTION 3.4(DSection 3.4(d). Once computed, the results of such computation shall promptly be delivered by the Owner Participant to the Facility Lessee. Within 30 days after the receipt of the results of any such adjustment, the Facility Lessee may request that a nationally recognized firm of accountants or lease advisors selected by the Owner Participant and reasonably acceptable to the Facility Lessee (the "VERIFIERVerifier") verify, on a confidential basis, after consultation with the Owner Participant and the Facility Lessee, the accuracy of such adjustment in accordance with this SECTION Section 3.4. The Owner Participant and the Facility Lessee hereby agree, subject to the execution by the Verifier of an appropriate confidentiality agreement, to provide the Verifier with all necessary information and materials (other than the Owner Participant's, the OP Guarantor's or any of their respective Affiliates' income tax returns or accounting records) as shall be necessary in connection with such verification. Both the Owner Participant and the Facility Lessee shall have the right to communicate with the Verifier and to submit supporting information and data to the Verifier. If the Verifier confirms that such adjustment is in accordance with this SECTION Section 3.4, and the adjustment to Basic Lease Rent, Allocated Rent, Proportional Rent, Lessor Section 467 Loan Balance, Lessee Section 467 Loan Balance, Lessor 467 Interest, Lessee 467 Interest and Termination Value calculated by the Verifier are the same as those calculated by the Owner Participant, it shall so certify to the Facility Lessee, the Owner Lessor and the Owner Participant and such certification shall be final, binding and conclusive on the Facility Lessee, the Owner Lessor and the Owner Participant. If the Verifier concludes that such adjustment is not in accordance with this SECTION Section 3.4, and the adjustments to Basic Lease Rent, Allocated Rent, Proportional Rent, Lessor Section 467 Loan Balance, Lessee Section 467 Loan Balance, Lessor 467 Interest, Lessee 467 Interest and Termination Value calculated by the Verifier are different from those calculated by the Owner Participant, it shall so certify to the Facility Lessee, the Owner Lessor and the Owner Participant, and the Verifier's calculation shall be final, binding and conclusive on the Facility Lessee, the Owner Lessor and the Owner Participant. If the Facility Lessee does not request a verification of any adjustment within the 30 day period specified above in this SECTION 3.4(DSection 3.4(d), the computation provided by the Owner Participant shall be final, binding and conclusive on the Facility Lessee, the Owner Lessor and the Owner Participant. The final determination of any adjustment hereunder shall be set forth in an amendment to this Facility Lease, executed and delivered by the Owner Lessor and the Facility Lessee and consented to by the Owner Participant; PROVIDEDprovided, however, that any omission to execute and deliver such amendment shall not affect the validity and effectiveness of any such adjustment. The reasonable costs of the Verifier in verifying an adjustment pursuant to this SECTION Section 3.4 shall be paid by the Facility Lessee; PROVIDEDprovided, HOWEVERhowever, that in the event that such Verifier determines that the present value of the remaining Basic Lease Rent to be made under this Facility Lease as calculated by the Owner Participant is greater than the present value of the remaining Basic Lease Rent as certified by the Verifier, in each case, discounted annually at the Discount Rate, by more than ten basis points, then such reasonable costs of the Verifier shall be paid by the Owner Participant. Notwithstanding anything herein to the contrary, the sole responsibility of the Verifier shall be to verify the calculations hereunder and the scope of the Verifier's responsibilities shall not include matters of interpretation of this Facility Lease or any other Operative Document.

ADJUSTMENT OF BASIC LEASE RENT AND TERMINATION VALUE. (a) The Facility Lessee and the Owner Lessor agree that Basic Lease Rent, Allocated Termination Values, the Equity Portion of Basic Lease Rent, Proportional Rent, Lessor Section the Equity Portion of Termination Value and allocations of Basic Lease Rent and 467 Loan Balance, Lessee Section 467 Loan Balance, Lessor Section 467 Interest, Lessee Section 467 Interest and Termination Values Fixed Rent may be adjusted, either upwards or downwards, at the request of the Facility Lessee Lessee, the Owner Lessor or the Owner Participant in the following situations: (i) after the Closing Date to reflect (A) the change in principal amount, amortization and interest rate on any New Lessor Notes issued pursuant to Section 2.13 of the Lease Indenture in connection with a refinancing or refunding of the Lessor Notes pursuant to Section 12.2 14.2 of the Participation Agreement Agreement, (B) the principal amount, amortization and interest rate on any Additional Lessor Notes issued pursuant to SECTION 2.6 Section 2.13 of the Lease Indenture, (ii) Indenture in connection with the financing of improvements through Additional Lessor Notes Improvements to the Facility pursuant to Section 12.1(a)(iii) of the Participation Agreement 8 herein and (iiiC) to reflect a change in the payments made pursuant to Section 10.3(d) hereof. (b) interest rate on the Initial Lessor Notes during or after the calendar year 2001, under the circumstances set forth in the second paragraph of each Initial Lessor Note. Any adjustments pursuant to this SECTION Section 3.4 shall be calculated, (A) first, FIRST so as not to maintain negatively impact the Owner Participant's Net Economic Return, the minimum and average Rent Service Coverage Ratios set forth in the Closing Projections Expected Return through the end of the Basic Lease Term, and Term (except that with respect to GAAP earnings the "operating lease" treatment for Owner Participant shall also not have to record a book loss or reduce earnings by more than ten percent in the Facility Lessee year of adjustment) and, (B) second, SECOND at the option of the Facility Lessee (x) to minimize minimize, to the extent possible, the average annual Basic Lease Rent over the Basic Lease Term for GAAP accounting purposes of the Facility Lessee Lessee, and/or (y) to minimize, to the extent possible, the net present value to the Facility Lessee of the Basic Lease Rent (PROVIDED THATRent; PROVIDED, with respect that no adjustment pursuant to GAAP earnings, this Section 3.4 shall result in a book loss to the Owner Participant shall not be obligated by any such adjustment to record a book loss or reduce book earnings in the year of adjustment)such adjustment is made. Adjustments shall be computed by the Owner Participant, or, if prior to the Closing Date, the Equity Investor, using the same method of computation, Tax Assumptions assumptions and Pricing Assumptions pricing constraints originally used (other than those that have changed as a the result of the event giving rise to the adjustment) in the calculation of Basic Lease Rent, Allocated Rent, Proportional Rent, Lessor Section 467 Loan Balance, Lessee Section 467 Loan Balance, Lessor 467 Interest, Lessee 467 Interest Rent and Termination Values set forth in SCHEDULES Schedule 1-1, 1-2, 1-3 1 and SCHEDULE Schedule 2 hereto, respectively, but hereto and shall be subject to the verification procedure described in SECTION 3.4(DSection 3.4(c). Adjustments to Basic Lease Rent contemplated by this Section 3.4 shall result in corresponding adjustments to Termination Values. All Basic Lease Rent adjustments shall comply (in case of the adjustment in connection with the event set forth in Section 3.4(a)(C) and above, such compliance shall be in compliance with Section respect to all of the Basic Lease Term from the Closing Date, as a single lease term, taking into account the Basic Rent allocations for the period of the Basic Lease Term prior to the date of adjustment) with Revenue Procedures 75-21 and 75-28 and 467 of the Code and Rev. Proc. 2001any proposed, temporary, or final regulations thereunder, in each case as modified and in effect on the date of such adjustment and shall be calculated in such a manner so that, if the Facility Lease were determined to be a "disqualified leaseback or long-28term agreement" within the meaning of Section 467 of the Code, 2001the result would be an increase in the Owner Participant's Expected Return (when contrasted with the Owner Participant's Expected Return computed on the assumption that the Facility Lease is not a "disqualified leaseback or long-19 IRB 1156 and Rev. Proc. 2001-29, 2001-19 IRB 1160 except to the extent the original transaction did not comply therewithterm agreement"). (cb) Anything herein or in any other Operative Document to the contrary notwithstanding, each installment of Basic Lease Rent (excluding Component A any Equity Portion of Basic Lease RentRent included in such installment) payable on any Rent Payment Datehereunder, whether or not adjusted in accordance with this SECTION Section 3.4, shall, in the aggregate, shall be in an amount at least sufficient to pay in full principal and interest payable on the Lessor Notes on such each Rent Payment Date. Anything herein or in any other Operative Document to the contrary notwithstanding, Termination Values (excluding Component A the Equity Portion of Termination Value) payable on any date under this Facility Lease, whether or not adjusted in accordance with this SECTION Section 3.4, shall in the aggregateshall, together with all other Rent due and owing on such date, exclusive of any portion thereof that is Component A of Basic Lease Rent or an Excepted Payment, be in an amount at least sufficient to pay in full the principal of, premium, if any, and accrued interest on the Lessor Notes payable on such date. (dc) Any adjustment pursuant to this SECTION Section 3.4 shall initially be computed by the Owner Participant pursuant or, if prior to SECTION 3.4(B) shall be the Closing Date, by the Equity Investor, subject to the verification procedure described in this SECTION 3.4(DSection 3.4(c). Once computed, the results of such computation shall promptly be delivered by the Owner Participant or, if prior to the Closing Date, the Equity Investor to the Facility Lessee. Within 30 20 days after the receipt of the results of any such adjustment, the Facility Lessee may request that Xxxxxx & Xxxxxxx, Inc. or a nationally recognized firm of accountants or lease advisors selected by the Owner Participant Participant, or if prior to the Closing Date, the Equity Investor, and reasonably acceptable satisfactory to the Facility Lessee (the "VERIFIER") verify, on a confidential basis, after consultation with the Owner Participant or the Equity Investor, as the case may be, and the Facility Lessee, the accuracy of such adjustment in accordance with this SECTION Section 3.4. The Owner Participant and or the Facility Lessee Equity Investor, as the case may be, hereby agreeagrees, subject to the execution by the Verifier of an appropriate confidentiality agreement, to provide the Verifier with all necessary information and materials (other than the Owner Participant's, the OP Guarantor's or any of their respective Affiliates' income tax returns or and accounting records) as shall be necessary in connection with such verification. Both Each of the Owner Participant or the Equity Investor, as the case may be, and the Facility Lessee shall have the right to communicate with the Verifier and to submit supporting information and data to the Verifierdata. If the Verifier confirms that such adjustment is in accordance with this SECTION Section 3.4, and the adjustment to Basic Lease Rent, Allocated Rent, Proportional Rent, Lessor Section 467 Loan Balance, Lessee Section 467 Loan Balance, Lessor 467 Interest, Lessee 467 Interest and Termination Value calculated by the Verifier are the same as those calculated by the Owner Participant, it shall so certify to the Facility Lessee, the Owner Lessor and the Owner Participant or the Equity Investor, as the case may be, and such certification shall be final, binding and conclusive on the Facility Lessee, the Owner Lessor Participant or the Equity Investor, as the case may be, and the Owner ParticipantLessor. If the Verifier concludes that such adjustment is not in accordance with this SECTION Section 3.4, and the adjustments to Basic Lease Rent, Allocated Rent, Proportional Rent, Lessor Section 467 Loan Balance, Lessee Section 467 Loan Balance, Lessor 467 Interest, Lessee 467 Interest Rent and Termination Value calculated by the Verifier are different from those calculated by the Owner ParticipantParticipant or the Equity Investor, as the case may be, then it shall so certify to the Facility Lessee, the Owner Lessor and the Owner ParticipantParticipant or the Equity Investor, as the case may be, and the Verifier's calculation shall be final, binding and conclusive on the Facility Lessee, the Owner Lessor and the Owner Participant. If Participant or the Facility Lessee does not request a verification of any adjustment within Equity Investor, as the 30 day period specified above in this SECTION 3.4(D), the computation provided by the Owner Participant shall be final, binding and conclusive on the Facility Lessee, the Owner Lessor and the Owner Participantcase may be. The final determination of any adjustment hereunder shall be set forth in an amendment to this Facility Lease, executed and delivered by the Owner Lessor and the Facility Lessee and consented to by the Owner Participant; PROVIDEDParticipant or the Equity Investor, however, that any omission to execute and deliver such amendment shall not affect as the validity and effectiveness of any such adjustmentcase may be. The reasonable costs of the Verifier in verifying an adjustment pursuant to this SECTION Section 3.4 shall be paid by the Facility Lessee; PROVIDED, HOWEVER, that in the event that such Verifier determines that the present value of the remaining Basic Lease Rent to be made under this Facility Lease as calculated by the Owner Participant or the Equity Investor, as the case may be, is greater than the present value of the remaining correct Basic Lease Rent as certified by the Verifier, in each case, discounted annually at the Discount Rate, by more than ten basis points, then such reasonable costs of the Verifier shall be paid by the Owner ParticipantParticipant or the Equity Investor, as the case may be. Notwithstanding anything herein to the contrary, the sole responsibility of the Verifier shall be to verify the calculations hereunder and the scope of the Verifier's responsibilities shall not include matters of interpretation of this Facility Lease or any other Operative DocumentDocument shall not be within the scope of the Verifier's responsibilities.