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 § 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 § 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 § 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 (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. 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 § 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 § 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 § 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 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; andAction; (ng) the application of Code Section 59Aany rules relating to change in taxable year, 291short taxable years, 465a change in the location, 469business, 501, 542, 552, 593, 851, 856, 1272, 1361 tax or 4975 other status or tax year of the Owner Participant or the regulations thereunder or Owner Lessor to the imposition extent of any Taxes imposed pursuant to ERISA.a resulting increase in Conemaugh Tax Indemnity Agreement

Excluded Events. Lessee The Owner Participant 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 to the extent such Inclusion Event results from Tax Loss is a result of one or more of the following events: (a) (i) any voluntary sale, assignment, transfer or other disposition by the Owner Participant or the Lessor (at the direction of the Owner Participant) of, the Aircraft, any Engine or any Parts, or of any interest in the transaction, the Trust, the Trust Estate, the Rent or any Operative Agreement; or (ii) any involuntary sale, assignment, transfer or disposition of the Aircraft, any Engine or any Parts or any such interest resulting from the bankruptcy or insolvency of, or proceedings for the relief of debtors, or foreclosure proceedings, against the Owner Participant or the Lessor’s , unless, in each case, such voluntary or involuntary sale, assignment, transfer or disposition occurs in connection with the exercise of remedies in connection with a Lease Event of Default that has occurred and is continuing or in connection with any substitution or replacement of the Aircraft, any Engine or any Parts by a Lessee Person; (b) any event whereby the Lessee is required to pay Termination Value, or an amount determined by reference thereto, to the extent that such amount has been paid and such Value properly reflects the timing of the tax consequences to the Owner Participant of such payment and/or the event giving rise to Lessee's obligation to make such payment; (c) without the written concurrence of the Lessee, the failure of the Owner Participant to properly exclude claim or make appropriate elections with respect to any of the Assumed Tax Benefits, the inclusion by the Owner Participant of any Recapture or Inclusion in the Owner Participant's gross income unless Lessor as reported on its federal income tax return (including any amended return) or other tax filing or document, or the taking of a position by the Owner Participant on a Federal income tax return (or amended return) that would result in a Foreign Tax Credit Loss, unless, in any such case, the Owner Participant shall have received a written opinion of its independent tax counsel selected by the Owner Participant and reasonably acceptable to the Lessee that no Reasonable Basis exists for excluding making such income claim or election, failing to so include in gross income, or failing to take such position with respect to a Foreign Tax Credit Loss (and for this purpose, purpose such counsel may take into account the Lessee's failure of Lessee to provide necessary accurate and timely information requested in writing by Lessor pursuant to the extent Lessee is required Lessee's obligations under Section 3 of this Agreement 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 furnish information to the extent such amount is actually paid; (c) the application of Code § 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 LeaseOwner Participant); (d) except in the imposition case of a Tax Loss resulting from a substitution or replacement of the Aircraft or an Inclusion any alternative minimum tax under amendment or addition to, or change in the Code § 55or other federal statutes relating to taxation or regulations promulgated thereunder, which is enacted, adopted or promulgated after the Delivery Date; PROVIDED that a change in federal income tax rates shall be taken into account in determining Gross-ups; (e) the breach failure of any covenant or representation bythe trust created by the Trust Agreement to qualify as a grantor trust under Section 671 ET SEQ. of the Code, or as a nominee, agent or partnership for federal income tax purposes, but only to the gross negligence, fraud, or willful misconduct extent of Lessora resulting increase in the Lessee's indemnity obligations hereunder; (f) a determination that the Lease is not a "true lease," or that the Owner Participant is not the purchaser, owner or lessor of the Aircraft, for federal income tax purposes, unless, in either case, as a result of a Lessee Act; (g) any failure of the Owner Participant to contest a claim in accordance with the contest provisions in Section 7 hereof, to the extent Lessee's ability to contest is materially adversely affected; (h) the willful misconduct or gross negligence by the Owner Participant; (i) any amendment or modification to the Lease Documents that is any Operative Agreement not requested by, or consented to by with the written consent of, Lessee or is not required by the Lease Documents unless, in each case, the amendment or modification is made unless in connection with a Lease an Event of Default; (gj) any change in Lessor’s taxable year or method of accounting or the application of the short taxable year provisions Section 168(f), Section 168(g)(7), Section 183, Section 465, Section 469 of the CodeCode or regulations thereunder but, in each case, only to the extent of a resulting increase in the Lessee's indemnity obligations hereunder; (hk) the failure inability of the Facility Lease Owner Participant to be treated as a “true lease” for federal income include in its original tax purposesbasis in the Aircraft all or any portion of an amount equal to the Lessor's Cost, other than as a result of a Lessee Act; (il) the application of any minimum tax, including the alternative minimum tax imposed under Section 55 ET SEQ. of the Code but only to the extent of a resulting increase in the Lessee's indemnity obligations hereunder; (m) application of the mid-quarter convention described in Section 168(d)(4)(C) of the Code but only to the extent of a resulting increase in the Lessee's indemnity obligations hereunder; (n) application of Section 467(b)(2) of the Code or the relevant Treasury Regulations promulgated thereunder (other than as a result of any adjustment of Basic Rent in connection with an Event of Default); (o) the treatment of less than the Permitted Percentage of any item of income, gain, loss, deduction or credit with respect to the Aircraft or the transactions contemplated by the Operative Agreements as from sources outside the United States; or (p) the failure of Lessor the Owner Participant to contest a claim in accordance with have sufficient taxable income or tax liability to benefit from the contest provisions herein to the extent Lessee’s ability to contest a claim is adversely affected in any material respectAssumed Tax Benefits; (jq) the failure status of Lessor to be the Owner Participant as a “"tax exempt entity" within the meaning of Section 168(h) of the Code or as a Person that is not a "United States person” (as defined in § " within the meaning of section 7701(a)(30) of the Code); (kr) consisting of interest, penalties, or additions to tax imposed on Lessor as a result of change in the Owner Participant's taxable year from 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 heretocalendar year; (ls) the sale existence or exercise in accordance with the Lease by the Lessee of an option to renew the Lease set forth in Section 13(a) of the Leased Facility Lease or to Lessee pursuant purchase the Aircraft set forth in Section 13(b) of the Lease or to an exercise terminate the Lease set forth in Section 14 of Lessee’s purchase options under the Facility Lease; (mt) imposed any event occurring after the expiration or earlier termination of the Lease and, if required, the return of the Aircraft to Lessor or placement in storage of the Aircraft in accordance with the terms of the Lease; or (u) the inclusion of any amount in income of the Lessor or the Owner Participant with respect to any period upon or after termination of the Lease as a result consequence of Lessor’s transfer any substitution, improvement 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 modification 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 Airframe or 4975 or the regulations thereunder or the imposition of any Taxes imposed pursuant to ERISAEngine.