Common use of Limitations on Adjustments Clause in Contracts

Limitations on Adjustments. (a) Any adjustment of the Basic Rent Percentages pursuant to this Section 4 shall be computed by the Owner Participant in a manner so as to satisfy the requirements of (i) Section 3.5 hereof and (ii) Revenue Procedures 75-21 and 75-28 (to the extent then in effect) and Section 467 of the Code and any regulations effective or proposed thereunder and shall not cause this Lease to be a "disqualified leaseback or long-term agreement" within the meaning of Section 467 of the Code and such regulations; provided that, subject to Section 12.4 of the Participation Agreement, the requirements of Section 4.08 of Revenue Procedure 75-28 (to the extent then in effect) shall be applied, in the case of any adjustment pursuant to Section 4.1, on a prospective basis taking into consideration only Basic Rent payable by the Lessee from and including the first Basic Rent Payment Date as of which the adjustment takes effect. (b) In making any adjustment pursuant to this Section 4, each of the Pricing Assumptions and the other assumptions and methods of calculation employed in the calculation of the Basic Rent Percentages, Stipulated Loss Value Percentages, Termination Value Percentages, Early Buy-Out Percentages and Fixed Price Purchase Amount as reflected in Schedule 2 to the Participation Agreement, other than Pricing Assumptions and such other assumptions that have changed or proven to be incorrect (as such pricing assumptions shall have been modified by previous adjustments under this Section 4) shall be used consistently in such adjustment subject to the constraints specifically provided herein. (c) In the case of any adjustment made pursuant to clause (vii) of Section 4.1(a), Basic Rent shall be increased by an amount at least sufficient to repay the principal of, and interest on, such Additional Notes over the term of such Additional Notes.

Limitations on Adjustments. (a) Any adjustment of to the Basic Rent --------------------------- Percentages, Stipulated Loss Value Percentages, Termination Value Percentages and EBO Percentages pursuant to this Section 4 shall be computed by the Owner Participant in a manner so as to satisfy the requirements of (isections 4.02(5) Section 3.5 hereof and 4.07(1) and (ii2) of Revenue Procedures Procedure 75-21 28, 1975-1 C.B. 752, and 75-28 (to the extent then in effectsafe harbor for purposes of Section 467(b)(2) and Section 467 of the Code and any regulations effective the Treasury Regulations thereunder as in effect at the time of such adjustment for rent within a range of 10% above or proposed thereunder and shall not cause this Lease to be a below the average rent (the "disqualified leaseback or long-term agreement" within the meaning of Section 467 90/110 test"); provided, that an adjustment of the Code and such regulations; provided that, subject to Section 12.4 of ----------- -------- Basic Rent Percentages shall be governed by the Participation Agreement, the foregoing requirements of Section 4.08 section 4.07 of Revenue Procedure 75-28 (and the 90/110 test only to the extent then in effect) shall be applied, in the case of any adjustment pursuant to Section 4.1, on a prospective basis taking into consideration only that Basic Rent payable by the Lessee from and including the first Basic Rent Payment Date as of which the adjustment takes effectClosing Date satisfied such requirements unless there has been a change in tax law. (b) In making any adjustment pursuant to this Section 4, each of the Non- tax and Tax Pricing Assumptions set forth in Schedule 2 to the Participation Agreement and the other assumptions and methods of calculation and constraints employed in the calculation of the Basic Rent Percentages, Stipulated Loss Value Percentages, Termination Value Percentages, Early Buy-Out Percentages and Fixed Price Purchase Amount EBO Percentages as reflected in Schedule 2 to the Participation Agreement, other than Pricing Assumptions and such other assumptions that have changed or proven to be incorrect Agreement (as such pricing assumptions shall have been modified by as a result of the event giving rise to the adjustment under Section 4.1 or previous adjustments under this Section 44 or under Section 2.12 of the Participation Agreement) shall be used consistently in such adjustment subject to the constraints specifically provided herein. (c) In the case of making any adjustment made required pursuant to clause (viiSection 4.1, no adjustment shall be made to reflect the application of section 861 or 168(d)(3) of Section 4.1(athe Code. (d) No adjustment shall be made to an EBO Percentage if the adjusted EBO Percentage will be less than the estimated Fair Market Sales Value of the Facility Assets at the applicable EBO Date (taking into account inflation), Basic Rent shall be increased as determined by an amount at least sufficient to repay the principal of, and interest on, such Additional Notes over Appraiser in the term of such Additional NotesFinal Appraisal.

Limitations on Adjustments. (a) Any adjustment made to any -------------------------- of the Basic Rent Percentages Economic Factors pursuant to this Section 4 2.12.1 shall be computed by the Owner Participant made in such a manner so as to satisfy the requirements of (i) comply in all respects with the provisions of Section 3.5 hereof and 3(h) of - the Charter, (ii) Revenue Procedures 75-21 and 75-28 to the extent consistent with the foregoing provisions of -- Section 2.12.1 (including preserving the Owner Participant's Net Economic Return), minimize (to the greatest extent then in effectpossible) the Charterer's Net Present Value Cost and (iii) satisfy Section 467 of the Code and any regulations effective or proposed the Treasury --- Regulations thereunder and shall not cause this Lease the 90/110 test described therein on a prospective basis, taking into account only Base Charter Hire payable on or after the date such adjustments take effect to be a "disqualified leaseback or long-term agreement" within the meaning of extent permitted by Section 467 of the Code and such regulations; provided that, subject to Section 12.4 of the Participation Agreement, the requirements of Section 4.08 of Revenue Procedure 75-28 (to the extent regulations thereto as then in effect) shall be applied, in the case of any adjustment pursuant to Section 4.1, on a prospective basis taking into consideration only Basic Rent payable by the Lessee from and including the first Basic Rent Payment Date as of which the adjustment takes effect. (b) In making any adjustment pursuant to this Section 42.12.1, each of the Non-tax Pricing Assumptions and Tax Pricing Assumptions set forth in Schedule 2 and the other assumptions and methods of calculation employed in the calculation of the Basic Rent PercentagesEconomic Factors, Stipulated Loss Value Percentages, Termination Value Percentages, Early Buy-Out Percentages and Fixed Price Purchase Amount as reflected in Schedule 2 to the Participation Agreement, other than Pricing Assumptions and such other assumptions that have changed or proven to be incorrect (as such pricing assumptions shall have been modified by as a result of the event giving rise to the adjustment under this Section 2.12 or previous adjustments under this Section 42.12) shall be used consistently in such adjustment subject to the constraints specifically provided hereinin this Section 2.12. (c) In Notwithstanding any other provision of this Participation Agreement or any other Operative Document (i) the amount of Base Charter Hire payable on each Base Charter Payment Date, as the same may be adjusted pursuant to Section 2.12, shall be at least equal to the aggregate amount of scheduled principal and accrued interest due and payable on the Secured Notes Outstanding on such Base Charter Payment Date, and (ii) the amount of Stipulated Loss Value and Termination Value as of any date and the amount of the initial installment of the EBO Exercise Price as of any EBO Exercise Date, as each such amount may be adjusted pursuant to Section 2.12, together with the payment of Charter Hire payable under the Charter on such date (excluding, in each case, any portion thereof constituting an Excepted Payment), shall be at least equal to the aggregate amount of principal and accrued interest which would be due and payable on the Secured Notes Outstanding on such date, assuming such date or EBO Exercise Date, as the case may be, was the date such payment was due on the Secured Notes in respect of any payment by the Charterer of Stipulated Loss Value, Termination Value or EBO Exercise Price. (d) Any such adjustments will also result in an adjustment made pursuant of the EBO Exercise Date, if necessary, on the same basis as stated above for the Economic Factors (subject to clause (vii) receipt by the Charterer and the Owner Participant of Section 4.1(a), Basic Rent shall be increased by an amount at least sufficient to repay the principal of, and interest on, such Additional Notes over the term a satisfactory appraisal confirmation of such Additional Noteschange). (e) No such adjustment to the Economic Factors shall result in the Charter not qualifying for Financial Accounting Standards Board Statement No. 13 (FAS 13) operating lease treatment for the Charterer.

Limitations on Adjustments. (aA) Any adjustment of the Basic Scheduled Rent Percentages pursuant to this Section 4 shall be computed by in a manner so as to satisfy the Owner Participant minimum payment requirements of Section 3(f) of this Lease. In addition, any adjustment of Scheduled Rent (due with respect to the Basic Term) pursuant to this Section 4 shall be computed in a manner so as to satisfy the requirements of (iSections 4.02(5), 4.07(1) Section 3.5 hereof and (ii) Revenue Procedures 75-21 and 75-28 (to the extent then in effect2) and Section 467 of the Code and any regulations effective or proposed thereunder and shall not cause this Lease to be a "disqualified leaseback or long-term agreement" within the meaning of Section 467 of the Code and such regulations; provided that, subject to Section 12.4 of the Participation Agreement, the requirements of Section 4.08 of Revenue Procedure 75-28 (to 28, 1975-1 C.B. 752, as in effect on the extent then in effect) Delivery Date; provided that the requirements of such Section 4.08 shall be applied, in the case of any adjustment pursuant to this Section 4.14, on a prospective basis taking into consideration only Scheduled Rent (due with respect to the Basic Rent Term) payable by the Lessee from and including the first Basic Rent Payment Date as of which the adjustment takes effect; provided -------- further that any adjustment of Scheduled Rent (due with respect to the Basic ------- Term) shall be governed by the foregoing requirements of Sections 4.07 and/or 4.08 of Revenue Procedure 75-28 only to the extent that Scheduled Rent (due with respect to the Basic (B) In the case of any adjustment pursuant to clauses (i) through (iii) or (vi) of Section 4(a), any such adjustment of Scheduled Rent (due with respect to the Basic Term) will be structured in such a fashion so as not to create, solely during the periods from and after the Basic Term Commencement Date, any risk that Section 467 of the Code will apply to Owner Participant (determined without regard to any change in law that occurs after the Delivery Date) greater than is created by the original rent structure with respect to the Transponders in effect on the Delivery Date for the Transponders. (bC) In the case of any adjustment pursuant to clauses (iv), (v), (vii) or (viii) of Section 4(a), any such adjustment of Scheduled Rent (due with respect to the Base Term) shall satisfy (on a prospective basis), Section 467 of the Code and the Regulations, as in effect at the time of such adjustment; provided, however, that in the event the Reset Date occurs after the -------- ------- Basic Term Commencement Date, any such adjustment of Scheduled Rent (effected in connection with the reset of the interest rate on the Notes) effective on such Reset Date shall be made in a fashion to satisfy either the standard set forth in clause (B) of this Section 4(b)(1) or the standard set forth in clause (C) of this Section 4(b)(1) (selected by Lessor at such time) for satisfying the constraints of section 467 of the code. (2) [Intentionally Omitted] (3) In making any adjustment pursuant to this Section 4, each no adjustment shall be made to reflect the application of Section 168(d)(3) of the Pricing Assumptions and the other assumptions and methods of calculation employed in the calculation of the Basic Rent Percentages, Stipulated Loss Value Percentages, Termination Value Percentages, Early Buy-Out Percentages and Fixed Price Purchase Amount as reflected in Schedule 2 to the Participation Agreement, other than Pricing Assumptions and such other assumptions that have changed or proven to be incorrect (as such pricing assumptions shall have been modified by previous adjustments under this Section 4) shall be used consistently in such adjustment subject to the constraints specifically provided hereinCode. (c) In the case of any adjustment made pursuant to clause (vii) of Section 4.1(a), Basic Rent shall be increased by an amount at least sufficient to repay the principal of, and interest on, such Additional Notes over the term of such Additional Notes.

Limitations on Adjustments. (aA) Any adjustment of the Basic Scheduled Rent Percentages pursuant to this Section 4 shall be computed by in a manner so as to satisfy the Owner Participant minimum payment requirements of Section 3(f) of this Lease. In addition, any adjustment of Scheduled Rent (due with respect to the Basic Term) pursuant to this Section 4 shall be computed in a manner so as to satisfy the requirements of (iSections 4.02(5), 4.07(1) Section 3.5 hereof and (ii) Revenue Procedures 75-21 and 75-28 (to the extent then in effect2) and Section 467 of the Code and any regulations effective or proposed thereunder and shall not cause this Lease to be a "disqualified leaseback or long-term agreement" within the meaning of Section 467 of the Code and such regulations; provided that, subject to Section 12.4 of the Participation Agreement, the requirements of Section 4.08 of Revenue Procedure 75-28 (to 28, 1975-1 C.B. 752, as in effect on the extent then in effect) Delivery Date; provided that the requirements of such Section 4.08 shall be applied, in the case of any adjustment pursuant to this Section 4.14, on a prospective basis taking into consideration only Scheduled Rent (due with respect to the Basic Rent Term) payable by the Lessee from and including the first Basic Rent Payment Date as of which the adjustment takes effect; provided -------- further that any adjustment of Scheduled Rent (due with respect to the Basic ------- Term) shall be governed by the foregoing requirements of Sections 4.07 and/or 4.08 of Revenue Procedure 75-28 only to the extent that Scheduled Rent (due with respect to the Basic (B) In the case of any adjustment pursuant to clauses (i) through (iii) or (vi) of Section 4(a), any such adjustment of Scheduled Rent (due with respect to the Basic Term) will be structured in such a fashion so as not to create, solely during the periods from and after the Basic Term Commencement Date, any risk that Section 467 of the Code will apply to Owner Participant (determined without regard to any change in law that occurs after the Delivery Date) greater than is created by the original rent structure with respect to the Transponders in effect on the Delivery Date for the Transponders. (bC) In the case of any adjustment pursuant to clauses (iv), (v), (vii) or (viii) of Section 4(a), any such adjustment of Scheduled Rent (due with respect to the Base Term) shall satisfy (on a prospective basis), Section 467 of the Code and the Regulations, as in effect at the time of such adjustment; provided, however, that in the event the Reset Date occurs after the Basic Term -------- ------- Commencement Date, any such adjustment of Scheduled Rent (effected in connection with the reset of the interest rate on the Notes) effective on such Reset Date shall be made in a fashion to satisfy either the standard set forth in clause (B) of this Section 4(b)(1) or the standard set forth in clause (C) of this Section 4(b)(1) (selected by Lessor at such time) for satisfying the constraints of section 467 of the code. (2) [Intentionally Omitted] (3) In making any adjustment pursuant to this Section 4, each no adjustment shall be made to reflect the application of Section 168(d)(3) of the Pricing Assumptions and the other assumptions and methods of calculation employed in the calculation of the Basic Rent Percentages, Stipulated Loss Value Percentages, Termination Value Percentages, Early Buy-Out Percentages and Fixed Price Purchase Amount as reflected in Schedule 2 to the Participation Agreement, other than Pricing Assumptions and such other assumptions that have changed or proven to be incorrect (as such pricing assumptions shall have been modified by previous adjustments under this Section 4) shall be used consistently in such adjustment subject to the constraints specifically provided hereinCode. (c) In the case of any adjustment made pursuant to clause (vii) of Section 4.1(a), Basic Rent shall be increased by an amount at least sufficient to repay the principal of, and interest on, such Additional Notes over the term of such Additional Notes.

Limitations on Adjustments. (a) Any adjustment of the made to -------------------------- Basic Rent Percentages, Stipulated Loss Value Percentages, Termination Value Percentages and EBO Percentages pursuant to this Section 4 2.12.1 shall be computed by made in such a manner as to (i) comply in all respects with the provisions of Section 3.5 of - the Lease, (ii) to the extent consistent with the foregoing provisions of -- Section 2.12.1 (including preserving the Owner Participant in a manner so as Participant's Net Economic Return), minimize (to satisfy the greatest extent possible) the Lessee's Net Present Value Cost and (iii) comply with the requirements of (iSection 4.2(a) Section 3.5 hereof of the Lease --- regarding the requirements of Sections 4.02(5) and 4.07(1) and (ii2) of Revenue Procedures Procedure 75-21 and 7528, 1975-28 (to the extent then in effect) 1 C.B. 752, and Section 467 of the Code and any regulations effective or proposed the Treasury Regulations thereunder and shall not cause this Lease to be a "disqualified leaseback or long-term agreement" within the meaning of Section 467 of the Code and such regulations; provided that90/110 test described therein, subject to Section 12.4 of the Participation Agreement, the requirements of Section 4.08 of Revenue Procedure 75-28 (to the extent then extent, absent any change in effect) shall be appliedsuch requirements, in the case of any adjustment pursuant to Section 4.1, on a prospective basis taking into consideration only that Basic Rent payable by the Lessee from and including the first Basic Rent Payment Date as of which the prior to such adjustment takes effectsatisfied such requirements. (b) In making any adjustment pursuant to this Section 42.12.1, each of the Non-tax and Tax Pricing Assumptions set forth in Schedule 2 and the other assumptions and methods of calculation employed in the calculation of the Basic Rent Percentages, Stipulated Loss Value Percentages, Termination Value Percentages and EBO Percentages, Early Buy-Out Percentages and Fixed Price Purchase Amount as reflected in Schedule 2 to the Participation Agreement, other than Pricing Assumptions and such other assumptions that have changed or proven to be incorrect (as such pricing assumptions shall have been modified by as a result of the event giving rise to the adjustment under this Section 2.12 or previous adjustments under this Section 42.12) shall be used consistently in such adjustment subject to the constraints specifically provided hereinin this Section 2.12. (c) In the case of making any adjustment made required pursuant to clause this Section 2.12, no adjustment shall be made to reflect the application of Section 168(d)(3) or 861 of the Code or the Treasury Regulations thereunder. (viid) No adjustment shall be made to an EBO Percentage unless such adjustment is made in compliance with Section 4.2(d) of Section 4.1(a), Basic Rent shall be increased by an amount at least sufficient to repay the principal of, and interest on, such Additional Notes over the term of such Additional NotesLease.

Limitations on Adjustments. (a) Any adjustment of the Basic Base Rent Percentages pursuant to this Section 4 shall be computed by the Owner Participant in a manner so as to satisfy the requirements of (i) Section 3.5 hereof and (ii) Revenue Procedures 75-21 and 752001-28 and 2001-29 (to the extent then in effect) and Section 467 of the Code and any regulations effective or proposed thereunder and shall not will not, in the opinion of independent tax counsel selected by the Owner Participant and reasonably acceptable to the Lessee, cause this Lease to be a "“disqualified leaseback or long-term agreement" ” within the meaning of Section 467 of the Code and such regulations; and provided that, subject to Section 12.4 that no adjustment of the Participation Agreement, the requirements of Base Rent Percentages pursuant to this Section 4.08 of Revenue Procedure 75-28 (to the extent then in effect) shall be applied, 4 will result in the case Allocated Rent for the Rental Period beginning on the Closing Date and ending 90 days (or the last day of any adjustment pursuant to Section 4.1the third month, on a prospective basis taking into consideration only Basic Rent payable by the Lessee from and including the first Basic Rent Payment Date as of which the adjustment takes effectif earlier) thereafter being other than zero. (b) In making any adjustment pursuant to this Section 4, each of the Pricing Assumptions and the other assumptions and methods of calculation (including tax and appraisal constraints) employed in the calculation of the Basic Base Rent Percentages, Stipulated Loss Base Termination Value Percentages, Termination Value Percentages, Early Buy-Out Percentages and Fixed Price Purchase Amount Amount, Allocated Rent, Section 467 Loan Balance, Lessor Section 467 Interest and Lessee Section 467 Interest each as reflected set forth in Schedule 2 to the Participation Agreementapplicable schedules attached hereto on the Closing Date, other than Pricing Assumptions and such other assumptions that have changed or proven to be incorrect (as such pricing assumptions Pricing Assumptions shall have been modified by previous adjustments under this Section 4) shall be used consistently with the assumptions and methods of calculation originally employed in the calculation of such adjustment percentages and amounts, subject to the constraints specifically provided herein. (c) In the case of any adjustment made pursuant to clause (vii) of Section 4.1(a), Basic Rent shall be increased by an amount at least sufficient to repay the principal of, and interest on, such Additional Notes over the term of such Additional Notes.

Limitations on Adjustments. After giving effect to any -------------------------- adjustment referred to in this Article IV: (a) Any adjustment of the Basic Rent Percentages pursuant to this Section 4 shall at each time thereafter when Stipulated Loss Value may be computed by the Owner Participant in a manner so as to satisfy the requirements of (i) Section 3.5 hereof and (ii) Revenue Procedures 75-21 and 75-28 (to the extent then in effect) and Section 467 of the Code and any regulations effective or proposed thereunder and shall not cause this Lease to be a "disqualified leaseback or long-term agreement" within the meaning of Section 467 of the Code and such regulations; provided that, subject to Section 12.4 of the Participation Agreement, the requirements of Section 4.08 of Revenue Procedure 75-28 (to the extent then in effect) shall be applied, in the case of any adjustment pursuant to Section 4.1, on a prospective basis taking into consideration only Basic Rent payable by the Lessee from and including pursuant to this Lease, the first sum of the following amounts: ( i) Stipulated Loss Value payable under this Lease at such time; (ii) any Basic Rent Payment Date as payable under this Lease at such time; and (iii) any other amounts unconditionally payable by the Lessee under this Lease in connection with such payment of which Stipulated Loss Value on or prior to the adjustment takes effect.date for payment thereof and required to be paid to the Lenders pursuant to the Loan Agreement shall be at least sufficient to pay in full the aggregate unpaid principal amount of the Outstanding Notes plus premium, if any, and accrued interest thereon at such time; (b) In making any adjustment at each time thereafter when Termination Value shall be payable by the Lessee pursuant to this Section 4Lease, each the sum of the Pricing Assumptions following amounts: (i) Termination Value payable under this Lease at such time; (ii) any Basic Rent payable under this Lease at such time; and (iii) any other amounts unconditionally payable by the other assumptions Lessee under this Lease in connection with such payment of Termination Value on or prior to the date for payment thereof and methods of calculation employed required to be paid to the Lenders pursuant to the Loan Agreement shall be at least sufficient to pay in full the calculation aggregate unpaid principal amount of the Basic Rent PercentagesOutstanding Notes plus premium, Stipulated Loss Value Percentagesif any, Termination Value Percentages, Early Buy-Out Percentages and Fixed Price Purchase Amount as reflected in Schedule 2 to the Participation Agreement, other than Pricing Assumptions and accrued interest thereon at such other assumptions that have changed or proven to be incorrect (as such pricing assumptions shall have been modified by previous adjustments under this Section 4) shall be used consistently in such adjustment subject to the constraints specifically provided herein.time; and (c) In the case amount of any adjustment made pursuant to clause (vii) of Section 4.1(a), Basic Rent payable on each Rent Payment Date thereafter shall be increased by an equal to or greater than the aggregate amount at least sufficient to repay of principal and accrued interest which becomes due and payable on the principal of, and interest on, Notes on such Additional Notes over the term of such Additional NotesRent Payment Date.