Common use of Excluded Events Clause in Contracts

Excluded Events. Lessee shall not be required to make any payment in respect of an Inclusion Event to the extent such Inclusion Event results from one or more of the following events: (a) Lessor's failure to properly exclude income unless Lessor shall have received a written opinion of its independent tax counsel that no Reasonable Basis exists for excluding such income (and for this purpose, such counsel may take into account the failure of Lessee to provide necessary information requested in writing by Lessor to the extent Lessee is required to provide such information); (b) any event which requires Lessee to pay an amount equal to or in excess of, or determined by reference to Termination Value to the extent such amount is actually paid; (c) the application of Code Section 467 or the Treasury Regulations thereunder, other than as a result of (i) an actual payment in an amount greater than due or prior to the due date, of any amount required to be paid by Lessee under the Lease Documents or (ii) the claiming by Lessee during the Base Term of a deduction for Basic Rent for federal, state or local income tax purposes for any period other than the period to which such Basic Rent is allocated pursuant to Section 7.1 of the Facility Lease; (d) the imposition of any alternative minimum tax under the Code Section 55; (e) the breach of any covenant or representation by, or the gross negligence, fraud, or willful misconduct of Lessor; (f) any amendment or modification to the Lease Documents that is not requested or consented to by Lessee or is not required by the Lease Documents unless, in each case, the amendment or modification is made in connection with a Lease Event of Default; (g) any change in Lessor's taxable year or method of accounting or the application of the short taxable year provisions of the Code; (h) the failure of the Facility Lease to be treated as a "true lease" for federal income tax purposes, other than as a result of a Lessee Act; (i) the failure of Lessor to contest a claim in accordance with the contest provisions herein to the extent Lessee's ability to contest a claim is adversely affected in any material respect; (j) the failure of Lessor to be a "United States person" (as defined in Section 7701(a)(30) of the Code); (k) consisting of interest, penalties, or additions to tax imposed on Lessor as a result of a failure of Lessor to file any return properly or timely, unless such failure is caused by Lessee's failure to fulfill its obligations, if any, to provide such information required hereto; (l) the sale of the Leased Facility to Lessee pursuant to an exercise of Lessee's purchase options under the Facility Lease; (m) imposed as a result of Lessor's transfer or other disposition of (i) all or a portion of its interest in the Lease Documents, the Leased Facility or any part thereof, or (ii) any interest in Lessor, other than, in each case, a transfer or disposition pursuant to an exercise of remedies pursuant to Section 17 of the Facility Lease during the continuation of a Lessee Event of Default; and

Excluded Events. Lessee shall not be required to make any payment in respect of an Inclusion Event to the extent such Inclusion Event results from one or more of the following events: (a) Lessor's ’s failure to properly exclude income unless Lessor shall have received a written opinion of its independent tax counsel that no Reasonable Basis exists for excluding such income (and for this purpose, such counsel may take into account the failure of Lessee to provide necessary information requested in writing by Lessor to the extent Lessee is required to provide such information); (b) any event which requires Lessee to pay an amount equal to or in excess of, or determined by reference to Termination Value to the extent such amount is actually paid; (c) the application of Code Section § 467 or the Treasury Regulations thereunder, other than as a result of (i) an actual payment in an amount greater than due or prior to the due date, of any amount required to be paid by Lessee under the Lease Documents or (ii) the claiming by Lessee during the Base Term of a deduction for Basic Rent for federal, state or local income tax purposes for any period other than the period to which such Basic Rent is allocated pursuant to Section 7.1 of the Facility Lease; (d) the imposition of any alternative minimum tax under the Code Section § 55; (e) the breach of any covenant or representation by, or the gross negligence, fraud, or willful misconduct of Lessor; (f) any amendment or modification to the Lease Documents that is not requested or consented to by Lessee or is not required by the Lease Documents unless, in each case, the amendment or modification is made in connection with a Lease Event of Default; (g) any change in Lessor's ’s taxable year or method of accounting or the application of the short taxable year provisions of the Code; (h) the failure of the Facility Lease to be treated as a "“true lease" ” for federal income tax purposes, other than as a result of a Lessee Act; (i) the failure of Lessor to contest a claim in accordance with the contest provisions herein to the extent Lessee's ’s ability to contest a claim is adversely affected in any material respect; (j) the failure of Lessor to be a "“United States person" ” (as defined in Section § 7701(a)(30) of the Code); (k) consisting of interest, penalties, or additions to tax imposed on Lessor as a result of a failure of Lessor to file any return properly or timely, unless such failure is caused by Lessee's ’s failure to fulfill its obligations, if any, to provide such information required hereto; (l) the sale of the Leased Facility to Lessee pursuant to an exercise of Lessee's ’s purchase options under the Facility Lease; (m) imposed as a result of Lessor's ’s transfer or other disposition of (i) all or a portion of its interest in the Lease Documents, the Leased Facility or any part thereof, or (ii) any interest in Lessor, other than, in each case, a transfer or disposition pursuant to an exercise of remedies pursuant to Section 17 of the Facility Lease during the continuation of a Lessee Event of Default; and (n) the application of Code Section 59A, 291, 465, 469, 501, 542, 552, 593, 851, 856, 1272, 1361 or 4975 or the regulations thereunder or the imposition of any Taxes imposed pursuant to ERISA.

Excluded Events. Notwithstanding anything to the contrary in this Agreement, the Facility Lessee shall not be required to make any payment in indemnify the Owner Participant with respect of an Inclusion Event to a Tax Loss provided for herein to the extent that such Inclusion Event Tax Loss results from the occurrence of any one or more of the following events: (a) any voluntary sale, assignment, transfer or other voluntary disposition by the Owner Lessor's failure to properly exclude income unless , the Owner Participant or any Affiliate of the foregoing (each, a "Lessor shall have received a written opinion of its independent tax counsel that no Reasonable Basis exists for excluding such income (and for this purpose, such counsel may take into account the failure of Lessee to provide necessary information requested in writing by Lessor to the extent Lessee is required to provide such informationGroup Member"); (b) any event which requires Lessee to pay an amount equal to or in excess of, or determined by reference to Termination Value to any involuntary sale, transfer or other disposition resulting from the extent such amount is actually paid; (c) the application bankruptcy of Code Section 467 a Lessor Group Member or the Treasury Regulations thereunderforeclosure by a creditor of a Lessor Group Member, other than as a result of (i) an actual payment any interest in an amount greater than due or prior to the due date, of any amount required to be paid by Lessee arising Conemaugh Tax Indemnity Agreement under the Lease Documents or Operative Documents, (ii) the claiming by Lessee during Facility Interest or any interest therein or (iii) any interest in the Base Term of a deduction for Basic Rent for federalOwner Participant, state the Owner Lessor or local income tax purposes for any period other than the period to which such Basic Rent is allocated pursuant to Section 7.1 Affiliate of the Facility Lease; (d) the imposition of any alternative minimum tax under the Code Section 55; (e) the breach of any covenant or representation byforegoing, or the gross negligence, fraud, or willful misconduct of Lessor; (f) any amendment or modification to the Lease Documents that is not requested or consented to by Lessee or is not required by the Lease Documents unless, in each case, the amendment such sale, transfer or modification other disposition is made in connection with a Lease Event of DefaultDefault that shall have occurred and be continuing, or unless, in the case of a sale, transfer or other disposition by the Owner Lessor or any Affiliate thereof, the Owner Lessor or Affiliate is not acting pursuant to the directions or with the express consent of the Owner Participant; (gb) any change in Lessor's taxable year an event that requires the Facility Lessee to pay Termination Value to the extent such payment is made, and to the extent the amount of such payment accurately reflects the timing of tax consequences arising from the event or method of accounting or the application of the short taxable year provisions of the Codeoccurrence giving rise to such payment; (hc) failure by the failure Owner Participant timely or properly to claim any Assumed Deduction or to exclude such income on its tax return, unless, in the written opinion of independent tax counsel (selected by the Owner Participant and reasonably acceptable to the Facility Lease Lessee) setting forth in reasonable detail the facts and analysis upon which such opinion is based and a copy of which is delivered to be treated the Facility Lessee as soon as practicable and prior to the date on which the tax return in which such Assumed Deduction or exclusion is not claimed, there is no Reasonable Basis as a "true lease" for federal income tax purposes, result of a Tax Law Change or change in facts subsequent to the Closing Date (other than as a result of a Lessee ActTax Law Change described in (e) below) to claim such Assumed Deduction or exclusion; (id) the failure of Lessor to contest a claim in accordance with the contest provisions herein to the extent Lessee's ability to contest a claim is adversely affected in any material respect; (j) the failure of Lessor to be a "United States person" (as defined in Section 7701(a)(30) of the Code); (k) consisting of interest, penalties, or additions to tax imposed on Lessor other than as a result of a Facility Lessee Action, failure of Lessor the Owner Participant's basis in the Facility Interest to file any return properly or timely, unless such failure is caused by Lessee's failure to fulfill its obligations, if any, to provide such information required heretoequal the Purchase Price; (le) the sale other than with respect to a modification, substitution, replacement or rebuilding of the Leased Facility to Lessee pursuant to an exercise of Lessee's purchase options under or any portion thereof, any Tax Law Change enacted, adopted, promulgated or decided after the Facility LeaseClosing Date; (mf) imposed the application of Section 59A, 168(d)(3), 168(d)(4)(C), 291 or 467 of the Code, except as a result of Lessor's transfer a Facility Lessee Action; (g) the application of any rules relating to change in taxable year, short taxable years, a change in the location, business, tax or other disposition of (i) all status or a portion of its interest in the Lease Documents, the Leased Facility or any part thereof, or (ii) any interest in Lessor, other than, in each case, a transfer or disposition pursuant to an exercise of remedies pursuant to Section 17 tax year of the Facility Lease during Owner Participant or the continuation Owner Lessor to the extent of a Lessee Event of Default; andresulting increase in Conemaugh Tax Indemnity Agreement

Excluded Events. Lessee The Beneficiary shall not be required entitled to make any payment from the Lessee under Section 5 hereof in respect of an Inclusion Event any Tax Loss or Foreign Tax Credit Loss to the extent such Inclusion Event results from Tax Loss or Foreign Tax Credit Loss occurs as a direct result of one or more of the following events: (a) Lessorany sale, assignment, transfer or other disposition (including any deemed disposition under Section 338 of the Code or any similar provision) by the Beneficiary or the Owner Trustee of the Aircraft, any Engine, any Part or any interest in any thereof (including any deemed disposition under Section 338 of the Code or any similar provision) or the Lease, any other Operative Documents, the Trust Estate or the Beneficiary or the Owner Trustee unless such sale, assignment, transfer or other disposition occurs in connection with the exercise of remedies in connection with an Event of Default under the Lease that has occurred and is continuing, or any involuntary sale, assignment, transfer or disposition (including any deemed disposition under Section 338 of the Code or any similar provision) of any such interest resulting from the bankruptcy or insolvency of, or proceedings for the relief of debtors, or foreclosure proceedings, against the Beneficiary or Lessor unless, in each case, such involuntary sale, assignment, transfer, disposition (including any deemed disposition under Section 338 of the Code or any similar provision) bankruptcy or insolvency or foreclosure results from such Event of Default; (b) the failure of the Beneficiary properly and in a timely manner to claim the MACRS Deductions or the inclusion by the Beneficiary of any Recapture in the Beneficiary's failure to properly exclude gross income unless Lessor as reported on its Federal income tax return (including any amended return) or other tax filing or document, ------- * Confidential or the taking of a position by the Beneficiary on a Federal income tax return (or amended return) that would result in a Foreign Tax Credit Loss or an Income Inclusion Loss, unless, in such case, the Beneficiary shall have received a written opinion of its independent tax counsel selected by the Beneficiary and reasonably satisfactory to Lessee that no Reasonable Basis exists for excluding making such income (and for this purpose, such counsel may take into account the failure of Lessee claim or failing to provide necessary information requested so include in writing by Lessor to the extent Lessee is required to provide such information); (b) any event which requires Lessee to pay an amount equal to or in excess of, or determined by reference to Termination Value to the extent such amount is actually paidgross income; (c) except in the application case of a Tax Loss resulting from the replacement of an Aircraft, Airframe or Engine, any amendment or addition to, or change in, the Code Section 467 or Income Tax Regulations (or any interpretation of either thereof), which is enacted or adopted after the Treasury Regulations thereunderDelivery Date, other than as PROVIDED that a result of (i) an actual payment change in an amount greater than due or prior Federal income tax rates shall be taken into account in determining the indemnity amounts payable to the due date, of any amount required to be paid by Lessee under the Lease Documents or (ii) the claiming by Lessee during the Base Term of a deduction for Basic Rent for federal, state or local income tax purposes for any period other than the period to which such Basic Rent is allocated pursuant to extent specified in Section 7.1 of the Facility Lease5 above; (d) any failure of the imposition of any alternative minimum tax Beneficiary to take in a timely manner all actions in contesting a claim if the Beneficiary was required to take such actions pursuant to Section 7 hereof and such failure has a material adverse impact upon the Lessee's contest rights under the Code Section 557 hereof; (e) the breach of any covenant or representation by, or the gross negligence, fraud, or willful misconduct or gross negligence of Lessorthe Beneficiary, Owner Trustee or any Affiliate of either thereof; (f) the status for Federal income tax purposes of the Beneficiary, the Owner Trustee or any amendment Affiliate of either thereof as a "tax-exempt entity" within the meaning of Section 168(h) of the Code or modification to the Lease Documents as a Person that is not requested or consented to by Lessee or is not required by a "United States person" within the Lease Documents unless, in each case, the amendment or modification is made in connection with a Lease Event meaning of Default; (gSection 7701(a)(30) any change in Lessor's taxable year or method of accounting or the application of the short taxable year provisions of the Code; (hg) the failure of the Facility Beneficiary to have sufficient taxable income or tax liability for Federal income tax purposes to benefit from the Federal income tax benefits described in Section 2(c); (h) any Loss to the extent incurred or imposed in respect of or relating to any period after the later of (i) the expiration or earlier termination of the Lease in accordance with the terms thereof or (ii) delivery of possession of the Aircraft to the Beneficiary (or any designee of the Beneficiary); (i) the failure of the Trust created by the Trust Agreement to be treated as a grantor trust under Section 671 ET SEQ. of the Code; (j) the application of Section 168(d)(3) of the Code or Regulations thereunder; (k) the failure of the Lease to be treated as a "true lease" for federal Federal income tax purposes or the failure of the Beneficiary to be treated as the owner of the Aircraft for Federal income tax purposes, other unless in either case, as a result of a breach of the representations in Section 4(b); (l) the treatment of the Permitted Percentage (or less than the Permitted Percentage) of any item of income, deduction, loss or credit as having been derived from, or allocable to income derived from, sources outside the United States; (m) the Beneficiary having a tax year of less than 12 months; (n) the application of any of Sections 55, 168(b)(2)(C), 168(b)(3)(D), 168(f)(1), 168(g)(7), 465, 467, 469 of the Code or Regulations thereunder; (o) the failure of the Aircraft to be registered with the FAA as a result of the failure of the Beneficiary or Owner Trustee to be a Citizen of the United States; (p) the Beneficiary having a basis in the Aircraft on the Delivery Date of less than the Beneficiary's Cost; (q) an event with respect to which Lessee is required to pay Stipulated Loss Value (or an amount calculated with reference to Stipulated Loss Value); (r) any amendment or modification to any Operative Document without the written consent of Lessee; (s) the exercise of a Purchase Option by the Lessee or the sale of the Aircraft to the Lessee pursuant to the exercise of a Purchase Option; (t) a change in the Beneficiary's tax year; (u) any penalties, additions to tax or interest assessed against Beneficiary as a result of any return not being filed on a timely basis unless such failure is directly a result of a Lessee Act;; or (iv) the failure inclusion in income by the Beneficiary upon or following termination of Lessor Lease of amounts attributable to contest a claim in accordance with the contest provisions herein to the extent Lessee's ability to contest a claim is adversely affected in any material respect; (j) the failure of Lessor to be a "United States person" (as defined in Section 7701(a)(30) of the Code); (k) consisting of interest, penalties, improvements or additions to tax imposed on Lessor as a result of a failure of Lessor to file any return properly or timely, unless such failure is caused by Lessee's failure to fulfill its obligations, if any, to provide such information required hereto; (l) the sale of the Leased Facility to Lessee pursuant to an exercise of Lessee's purchase options under the Facility Lease; (m) imposed as a result of Lessor's transfer or other disposition of (i) all or a portion of its interest in the Lease Documents, the Leased Facility or any part thereof, or (ii) any interest in Lessor, other than, in each case, a transfer or disposition pursuant to an exercise of remedies pursuant to Section 17 of the Facility Lease during the continuation of a Lessee Event of Default; andAircraft.