Common use of LESSEE’S TAX REPRESENTATIONS Clause in Contracts

LESSEE’S TAX REPRESENTATIONS. EME represents and warrants to the Owner Participant that: (i) During the Basic Lease Term, no portion of the Facility is, or will become, tax-exempt use property within the meaning of Section 168(h)(1) of the Code, tax-exempt bond financed property within the meaning of Section 168(g)(5) of the Code or “public utility property” within the meaning of Section 168(i)(10) of the Code; (ii) All written, factual information provided by Midwest or EME to the Appraiser in connection with the Closing Date Appraisal, and identified in an appendix thereto (a copy of which appendix being attached as Exhibit I to this Tax Indemnity Agreement) as information upon which the Appraiser relied, was, to the best of such party’s knowledge, accurate at the time given and on the Closing Date; (iii) On the Closing Date, no Improvements will be required in order to render the Facility complete for its intended use by Midwest, other than ancillary items of removable equipment of a kind customarily selected and furnished by lessees of property substantially similar to the Facility; (iv) Neither Midwest nor any sublessee or other user or Person in possession of the Facility or any portion thereof, nor any affiliate of any of the foregoing, but excluding in all events the Owner Lessor and the Owner Participant, (each a “Lessee Person”) has taken, or will take, any position in any filing by it for federal, state or local income tax purposes that is inconsistent with the Tax Assumptions (unless consistent with a contrary Final Determination binding on the Owner Participant or Midwest with respect to such position); (v) No Lessee Person shall take any position with respect to the timing of rental income and deductions with respect to the Facility Lease that is inconsistent with the Tax Assumptions; and (vi) Except as expressly provided in the Operative Documents, neither Midwest nor any Affiliate thereof has or will acquire any interest in or otherwise directly or indirectly guarantee the Lessor Loan; in addition, as of the Closing Date, neither Midwest nor any Affiliate thereof owns any interest, directly or indirectly, in the Lender and the Lender owns no interest, directly or indirectly, in Midwest nor any Affiliate of either thereof. The inaccuracy of any Lessee Tax Representation shall not give rise to a Lease Event of Default.

LESSEE’S TAX REPRESENTATIONS. EME represents (a) All factual information supplied by Lessee, its affiliates or agents to Lessor and warrants relied upon by Lessor and any appraiser reporting to Lessor with respect to the Owner Participant that:Units was, in all material respects, complete and accurate at the time given (provided that with respect to any projections given to any appraiser, such information was, in all material respects, to the best of Lessee's knowledge and information, complete and accurate), and Lessee shall notify Lessor and any such appraiser of any material change in the accuracy or completeness of such information before the Delivery Date. (b) On the Delivery Date, the Units being delivered will not require additions or modifications to make them suitable for their intended use. (c) As a result of the Assignment, Lessor will be treated as the owner for all federal, state and local income tax purposes, of each Unit. (d) For all purposes, Lessee (i) intends the Lease to be and will treat the Lease as a "true lease" for federal income tax purposes, (ii) will take no position inconsistent with ownership of the Units by Lessor, and (iii) will not claim any depreciation deductions with respect to the Units. (e) The Units are eligible for straight line depreciation by Lessor under Section 167(f) of the Code over a period of ten years. (f) In any taxable year of Lessor, no deductions or losses arising from the lease financing transaction will arise from sources without the United States under either Section 862 or Section 863 of the Code and the Treasury Regulations promulgated thereunder. (g) Each Unit will be placed in service by Lessor on the Delivery Date. (h) Due to various factors and considerations that Lessee will evaluate in determining whether to exercise the options provided in Sections H and I, there is no certainty, as of the date hereof, that either option will be exercised by Lessee or a member of the Lessee Group (as defined below). (i) During the Basic Lease Term, no portion No part of the Facility is, cost of the Units has been or will becomebe furnished by Lessee, tax-exempt use property a shareholder of Lessee or any party related to Lessee, within the meaning of Section 168(h)(1) 318 of the CodeInternal Revenue Code of 1986, tax-exempt bond financed property within as amended (collectively, the meaning of Section 168(g)(5"LESSEE GROUP"). (j) No member of the Code Lessee Group has or “public utility property” within the meaning of Section 168(i)(10) will loan to Lessor any of the Code; (ii) All written, factual information provided by Midwest funds necessary to acquire the Units or EME to the Appraiser guarantee any indebtedness created in connection with the Closing Date Appraisal, and identified in an appendix thereto acquisition of the Units by Lessor. (a copy k) No member of which appendix being attached as Exhibit I to this Tax Indemnity Agreement) as information upon which the Appraiser relied, was, Lessee Group will make any improvements to the best of such party’s knowledgeUnits, accurate at the time given and on the Closing Date;except in conformance with Rev. Proc. 79-48. (iiil) On the Closing Date, no Improvements will be required in order to render the Facility complete for its intended use by Midwest, other Other than ancillary items of removable equipment of a kind customarily selected and furnished by lessees of property substantially similar to the Facility; (iv) Neither Midwest nor any sublessee or other user or Person in possession of the Facility or any portion thereof, nor any affiliate of any of the foregoing, but excluding in all events the Owner Lessor and the Owner Participant, (each a “Lessee Person”) has taken, or will take, any position in any filing by it for federal, state or local income tax purposes that is inconsistent with the Tax Assumptions (unless consistent with a contrary Final Determination binding on the Owner Participant or Midwest with respect to such position); (v) No Lessee Person shall take any position with respect to the timing of rental income and deductions with respect to the Facility Lease that is inconsistent with the Tax Assumptions; and (vi) Except as expressly provided in the Operative DocumentsSections H and I, neither Midwest nor Lessee has no option to purchase any Affiliate thereof has or will acquire any interest in or otherwise directly or indirectly guarantee the Lessor Loan; in addition, as of the Closing Date, neither Midwest nor any Affiliate thereof owns any interest, directly or indirectly, in the Lender and the Lender owns no interest, directly or indirectly, in Midwest nor any Affiliate of either thereof. The inaccuracy of any Lessee Tax Representation shall not give rise to a Lease Event of DefaultUnit from Lessor.