Common use of Certain Exclusions Clause in Contracts

Certain Exclusions. For purposes of determining whether and the extent to which the Total Payments will be subject to the Excise Tax, (i) no portion of the Total Payments the receipt or enjoyment of which Executive shall have waived at such time and in such manner as not to constitute a “payment” within the meaning of Section 280G(b) of the Code shall be taken into account; (ii) no portion of the Total Payments shall be taken into account which, in the written opinion of a qualified accounting firm or other advisor appointed or engaged by the Company with Executive’s prior written consent prior to any change in ownership or control (within the meaning of Treasury Regulations Section 1.280G-1, Q&As 27 - 29) (the “Independent Advisors”), does not constitute a “parachute payment” within the meaning of Section 280G(b)(2) of the Code (including by reason of Section 280G(b)(4)(A) of the Code) and, in calculating the Excise Tax, no portion of such Total Payments shall be taken into account which, in the written opinion of Independent Advisors, constitutes reasonable compensation for services actually rendered, within the meaning of Section 280G(b)(4)(B) of the Code, in excess of the “base amount” (as defined in Section 280G(b)(3) of the Code) allocable to such reasonable compensation; and (iii) the value of any non-cash benefit or any deferred payment or benefit included in the Total Payments shall be determined by the Independent Advisors in accordance with the principles of Sections 280G of the Code. In the event that the Independent Advisors are serving as accountants, auditors or counsel for the individual, entity or group effecting the change in ownership or control (within the meaning of Treasury Regulations Section 1.280G-1, Q&As 27 - 29), the Company shall appoint another qualified accounting firm or other advisor to make the determinations hereunder (which firms shall then be referred to as the “Independent Advisors” hereunder). All determinations hereunder shall be made by the Independent Advisors, who shall provide detailed supporting calculations both to the Company and Executive at such time as it is requested by the Company or Executive. The determination of the Independent Advisors shall be final and binding upon the Company and Executive. The Company shall be responsible for all charges for the Independent Advisors. The Company and Executive shall promptly deliver to each other copies of any written communications, and summaries of any verbal communications, with any taxing authority regarding the Excise Tax covered by this Section 6.

Certain Exclusions. For purposes of determining whether and the extent to which the Total Payments will be subject to the Excise Tax, (i) no portion of the Total Payments the receipt or enjoyment of which Executive the Employee shall have waived at such time and in such manner as not to constitute a “payment” within the meaning of Section 280G(b) of the Code shall be taken into account; (ii) no portion of the Total Payments shall be taken into account which, in the written opinion of a qualified an independent, nationally recognized accounting firm or other advisor and/or tax counsel appointed or engaged by the Company with Executivethe Employee’s prior written consent prior to any change in ownership or control (within the meaning of Treasury Regulations Section 1.280G-1, Q&As 27 - 29) (the “Independent Advisors”), does not constitute a “parachute payment” within the meaning of Section 280G(b)(2) of the Code (including by reason of Section 280G(b)(4)(A) of the Code) and, in calculating the Excise Tax, no portion of such Total Payments shall be taken into account which, in the written opinion of Independent Advisors, constitutes reasonable compensation for services actually rendered, within the meaning of Section 280G(b)(4)(B) of the Code, in excess of the “base amount” (as defined in Section 280G(b)(3) of the Code) allocable to such reasonable compensation; and (iii) the value of any non-cash benefit or any deferred payment or benefit included in the Total Payments shall be determined by the Independent Advisors in accordance with the principles of Sections 280G of the Code. In the event that the Independent Advisors are serving as accountants, auditors or counsel for the individual, entity or group effecting the change in ownership or control (within the meaning of Treasury Regulations Section 1.280G-1, Q&As 27 - 29), the Company shall appoint another qualified nationally recognized accounting firm or other advisor and/or tax counsel to make the determinations hereunder (which firms shall then be referred to as the “Independent Advisors” hereunder). All determinations hereunder shall be made by the Independent Advisors, who shall provide detailed supporting calculations both to the Company and Executive the Employee at such time as it is requested by the Company or Executivethe Employee. The determination of the Independent Advisors shall be final and binding upon the Company and Executivethe Employee. The Company shall be responsible for all charges for the Independent Advisors. The Company and Executive the Employee shall promptly deliver to each other copies of any written communications, and summaries of any verbal communications, with any taxing authority regarding the Excise Tax covered by this Section 66(F).

Certain Exclusions. For purposes of determining whether and the extent to which the Total Payments will be subject to the Excise Tax, (i) no portion of the Total Payments the receipt or enjoyment of which Executive the Employee shall have waived at such time and in such manner as not to constitute a “payment” within the meaning of Section 280G(b) of the Code shall be taken into account; (ii) no portion of the Total Payments shall be taken into account which, in the written opinion of a qualified an independent, nationally recognized accounting firm or other advisor and/or tax counsel appointed or engaged by the Company with Executivethe Employee’s prior written consent prior to any change in ownership or control (within the meaning of Treasury Regulations Section 1.280G-1, Q&As 27 - 29) (the “Independent Advisors”), does not constitute a “parachute payment” within the meaning of Section 280G(b)(2) of the Code (including by reason of Section 280G(b)(4)(A) of the Code) and, in calculating the Excise Tax, no portion of such Total Payments shall be taken into account which, in the written opinion of Independent Advisors, constitutes reasonable compensation for services actually rendered, within the meaning of Section 280G(b)(4)(B) of the Code, in excess of the “base amount” (as defined in Section 280G(b)(3) of the Code) allocable to such reasonable compensation; and (iii) the value of any non-cash benefit or any deferred payment or benefit included in the Total Payments shall be determined by the Independent Advisors in accordance with the principles of Sections 280G of the Code. In the event that the Independent Advisors are serving as accountants, auditors or counsel for the individual, entity or group effecting the change in ownership or control (within the meaning of Treasury Regulations Section 1.280G-1, Q&As 27 - 29), the Company shall appoint another qualified nationally recognized accounting firm or other advisor and/or tax counsel to make the determinations hereunder (which firms shall then be referred to as the “Independent Advisors” hereunder). All determinations hereunder shall be made by the Independent Advisors, who shall provide detailed supporting calculations both to the Company and Executive the Employee at such time as it is requested by the Company or Executivethe Employee. The determination of the Independent Advisors shall be final and binding upon the Company and Executivethe Employee. The Company shall be responsible for all charges for the Independent Advisors. The Company and Executive the Employee shall promptly deliver to each other copies of any written communications, and summaries of any verbal communications, with any taxing authority regarding the Excise Tax covered by this Section 66(G).

Certain Exclusions. For purposes of determining whether Except as otherwise expressly provided in, or otherwise inconsistent with, this Sublease, or to the extent not applicable to the Premises, the terms, provisions, covenants, stipulations, conditions, rights, obligations, remedies and agreements contained in the Prime Lease are incorporated in this Sublease by reference, and are made a part hereof as if herein set forth at length, Sublandlord being substituted for the “Landlord” under the Prime Lease, Subtenant being substituted for the “Tenant” under the Prime Lease, and the extent Premises being substituted for the “Premises” under the Prime Lease. Notwithstanding the foregoing, in the event of any conflict or inconsistency between the provisions of the Prime Lease and this Sublease, the terms and provisions of this Sublease shall govern and control. In addition: (a) Subtenant shall have no extension rights, development rights or rights of first offer, first refusal or other preferential right to which purchase or lease the Total Payments will Property or any part thereof (including, without limitation, under Section 16.31 of the Prime Lease); (b) Subtenant shall have no set-off or abatement rights other than as expressly set forth in this Sublease. (c) Subtenant shall not have any measurement rights set forth in the Prime Lease. (d) Article 4 of the Prime Lease (Construction) shall not be subject applicable. (e) Section 6.4 (Effect of Multiple Rent Commencement Dates) of the Prime Lease shall not be applicable. Section 9.1.1 (Certain Alterations Which Do Not Require Landlord’s Approval) of the Prime Lease shall not be applicable. (g) Section 12.2 (Exceptions for Mergers and Affiliate Transactions) and Section 12.3 (Exception for Certain Subleases) of the Prime Lease shall not be applicable. (h) Sublandlord shall not be required to provide the Excise Tax, insurance described in Section 13.6 (Landlord’s Insurance) of the Prime Lease. (i) no portion of the Total Payments the receipt or enjoyment of which Executive shall have waived at such time and in such manner as not to constitute a “payment” within the meaning of Section 280G(b15.6 (Self-Help) of the Code Prime Lease shall not be taken into account; applicable. (iij) no portion of the Total Payments shall be taken into account which, in the written opinion of a qualified accounting firm or other advisor appointed or engaged by the Company with Executive’s prior written consent prior to any change in ownership or control Section 16.8 (within the meaning of Treasury Regulations Section 1.280G-1, Q&As 27 - 29) (the “Independent Advisors”), does not constitute a “parachute payment” within the meaning of Section 280G(b)(2Recording) of the Code Prime Lease shall not be applicable. (including by reason of k) Section 280G(b)(4)(A16.15 (Landlord’s Financing; Tenant’s Shadow Rating) of the Code) and, in calculating the Excise Tax, no portion of such Total Payments Prime Lease shall be taken into account which, in inapplicable. (l) Section 16.16 (Status Reports and Financial Statements) is inapplicable and the written opinion applicable provisions of Independent Advisors, constitutes reasonable compensation for services actually rendered, within the meaning of this Sublease shall govern. (m) Section 280G(b)(4)(B16.18 (Holding Over) of the Code, in excess Prime Lease is inapplicable and the provisions of the “base amount” Section 19 of this Sublease shall govern. (as defined in n) Section 280G(b)(316.21 (Late Payment) of the CodePrime Lease is inapplicable and the provisions of Section 7 of this Sublease shall govern. (o) allocable to such reasonable compensation; Section 16.26 (Letters of Credit) of the Prime Lease is inapplicable and the provisions of Section 38 of this Sublease shall govern. (iiip) Section 16.30 (Letters of Credit) of the value Prime Lease is inapplicable and the provisions of any non-cash benefit or any deferred payment or benefit included this Sublease shall govern. (q) Section 16.32 (Arbitration) of the Prime Lease. (r) The provisions in the Total Payments shall be determined by the Independent Advisors in accordance with the principles of Sections 280G of the Code. In the event that the Independent Advisors are serving as accountants, auditors or counsel for the individual, entity or group effecting the change in ownership or control (within the meaning of Treasury Regulations Section 1.280G-1, Q&As 27 - 29)First Amendment, the Company shall appoint another qualified accounting firm or other advisor to make Second Amendment, July 2006 Letter Agreement, the determinations hereunder (which firms shall then be referred to as Acknowledgment of Merger, the “Independent Advisors” hereunder). All determinations hereunder shall be made by third Amendment, the Independent Advisors, who shall provide detailed supporting calculations both to the Company and Executive at such time as it is requested by the Company or Executive. The determination of the Independent Advisors shall be final and binding upon the Company and Executive. The Company shall be responsible for all charges for the Independent Advisors. The Company and Executive shall promptly deliver to each other copies of any written communicationsFourth Amendment, and summaries of any verbal communications, with any taxing authority regarding the Excise Tax covered by this Section 6June 2014 Letter Agreement shall all be inapplicable.

Certain Exclusions. For purposes of determining whether and the extent to which the Total Payments will be subject to the Excise Tax, (i) no portion of the Total Payments the receipt or enjoyment of which Executive the Employee shall have waived at such time and in such manner as not to constitute a “payment” within the meaning of Section 280G(b) of the Code shall be taken into account; (ii) no portion of the Total Payments shall be taken into account which, in the written opinion of a qualified an independent, nationally recognized accounting firm or other advisor and/or tax counsel appointed or engaged by the Company with Executivethe Employee’s prior written consent prior to any change in ownership or control (within the meaning of Treasury Regulations Section 1.280G-1, Q&As 27 - – 29) (the “Independent Advisors”), does not constitute a “parachute payment” within the meaning of Section 280G(b)(2) of the Code (including by reason of Section 280G(b)(4)(A) of the Code) and, in calculating the Excise Tax, no portion of such Total Payments shall be taken into account which, in the written opinion of Independent Advisors, constitutes reasonable compensation for services actually rendered, within the meaning of Section 280G(b)(4)(B) of the Code, in excess of the “base amount” (as defined in Section 280G(b)(3) of the Code) allocable to such reasonable compensation; and (iii) the value of any non-cash benefit or any deferred payment or benefit included in the Total Payments shall be determined by the Independent Advisors in accordance with the principles of Sections 280G of the Code. In the event that the Independent Advisors are serving as accountants, auditors or counsel for the individual, entity or group effecting the change in ownership or control (within the meaning of Treasury Regulations Section 1.280G-1, Q&As 27 - – 29), the Company shall appoint another qualified nationally recognized accounting firm or other advisor and/or tax counsel to make the determinations hereunder (which firms shall then be referred to as the “Independent Advisors” hereunder). All determinations hereunder shall be made by the Independent Advisors, who shall provide detailed supporting calculations both to the Company and Executive the Employee at such time as it is requested by the Company or Executivethe Employee. The determination of the Independent Advisors shall be final and binding upon the Company and Executivethe Employee. The Company shall be responsible for all charges for the Independent Advisors. The Company and Executive the Employee shall promptly deliver to each other copies of any written communications, and summaries of any verbal communications, with any taxing authority regarding the Excise Tax covered by this Section 66(G).

Certain Exclusions. For purposes Notwithstanding the foregoing provisions of determining whether and the extent to which the Total Payments will be subject to the Excise Tax, ------------------ this Section 9.05: (i) no portion any Wholly Owned Subsidiary of the Total Payments Company may be merged or consolidated with or into: (x) the receipt Company if the Company shall be the continuing or enjoyment of which Executive shall have waived at such time and in such manner as not to constitute a “payment” within the meaning of Section 280G(bsurviving corporation or (y) any other Wholly Owned Subsidiary of the Code shall be taken into account; Company; (ii) no portion any Wholly Owned Subsidiary of the Total Payments shall be taken into account whichCompany may sell, in the written opinion lease, transfer or otherwise dispose of a qualified accounting firm any or other advisor appointed all of its Property (upon voluntary liquidation or engaged by otherwise) to the Company with Executive’s prior written consent prior to any change in ownership or control (within the meaning of Treasury Regulations Section 1.280G-1, Q&As 27 - 29) (the “Independent Advisors”), does not constitute a “parachute payment” within the meaning of Section 280G(b)(2) another Wholly Owned Subsidiary of the Code (including by reason of Section 280G(b)(4)(A) of the Code) and, in calculating the Excise Tax, no portion of such Total Payments shall be taken into account which, in the written opinion of Independent Advisors, constitutes reasonable compensation for services actually rendered, within the meaning of Section 280G(b)(4)(B) of the Code, in excess of the “base amount” (as defined in Section 280G(b)(3) of the Code) allocable to such reasonable compensationCompany; and Credit Agreement ---------------- (iii) to the value of any non-cash benefit or any deferred payment or benefit included in extent the Total Payments shall be determined respective transaction is not permitted by the Independent Advisors exceptions set forth in accordance with the principles of Sections 280G of the Code. In the event that the Independent Advisors are serving as accountants, auditors or counsel for the individual, entity or group effecting the change in ownership or control (within the meaning of Treasury Regulations Section 1.280G-1, Q&As 27 - 29)9.05(b) hereof, the Company or a Wholly Owned Subsidiary of the Company may acquire any business or Property from, or capital stock of, or be a party to any acquisition of, any Person, so long as: (A) the aggregate Purchase Price of all such acquisitions after the date hereof shall appoint another qualified accounting firm or other advisor not exceed $100,000,000; (B) after giving effect to make such acquisition the determinations hereunder (which firms shall then be referred to as the “Independent Advisors” hereunder). All determinations hereunder Company shall be made by in compliance with Section 9.10 hereof (the Independent Advisorsdetermination of such compliance to be calculated on a pro forma basis, who shall provide detailed supporting calculations both as at the end of and for the fiscal quarter most recently ended prior to the date of such acquisition for which financial statements of the Company and Executive its Subsidiaries are available, under the assumption that such acquisition shall have occurred, and any Indebtedness in connection therewith shall have been incurred, at the beginning of the applicable period, and under the assumption that interest for such time as it is requested by period had been equal to the actual weighted average interest rate in effect for the Loans hereunder on the date of such acquisition), and the Company or Executive. The determination shall have delivered to the Administrative Agent a certificate of the Independent Advisors Chief Financial Officer showing such calculations in reasonable detail to demonstrate such compliance; and (C) immediately prior to such acquisition and after giving effect thereto, no Default shall have occurred and be final and binding upon the Company and Executive. The Company shall be responsible for all charges for the Independent Advisors. The Company and Executive shall promptly deliver to each other copies of any written communications, and summaries of any verbal communications, with any taxing authority regarding the Excise Tax covered by this Section 6continuing.