Nature of Transaction. It is the intention of the parties that: (a) the Overall Transaction constitutes an operating lease from Lessor to Lessee for purposes of Lessee’s financial reporting, including, without limitation, under Financial Accounting Standards Board Statement No. 13; (b) for purposes of all federal, state and local income, franchise, transfer and other taxes, and bankruptcy, insolvency, conservatorships and receiverships (including the substantive law upon which bankruptcy, conservatorship, insolvency and receivership proceedings are based) real estate law, commercial law and UCC: (i) the Overall Transaction constitutes a financing by the Participants to Lessee and preserves beneficial ownership in the Subject Property in Lessee, Lessee will be entitled to all tax benefits with respect to the Subject Property ordinarily available to owners of property similar to the Subject Property for tax purposes and the obligations of Lessee to pay Basic Rent shall be treated as payments of principal, if any, and interest to the Participants, and the payment by Lessee of any amounts in respect of the Lease Balance shall be treated as payments of principal to the Participants; (ii) this Lease grants a security interest or a Lien, as the case may be, in the Lessee’s interest in the Leased Property and the other Lessee Collateral in favor of Lessor, and for the benefit of the Participants, to secure Lessee’s payment and performance of its Obligations; and (iii) the Security Instruments create Liens on and security interests in the Subject Property and the other Lessee Collateral and Lessor Collateral in favor of the Collateral Agent for the benefit of all of the Participants to secure Lessee’s and Lessor’s payment and performance of their obligations under the Operative Documents. Each of the parties hereto agrees that it will not, nor will it permit any Affiliate to at any time, take any action or fail to take any action with respect to the preparation, filing or audit of any income tax return, including an amended income tax return, to the extent that such action or such failure to take action would be inconsistent with the intention of the parties expressed in this Section 24.1. Nevertheless, Lessee acknowledges and agrees that none of the Lessor, the Collateral Agent, Arranger or any Lender has made any representations or warranties concerning the tax, accounting or legal characteristics of the Operative Documents or any aspect of the Overall Transaction and that Lessee has obtained and relied upon such tax, accounting and legal advice concerning the Operative Documents and the Overall Transaction as it deems appropriate. (c) Specifically, but without limiting the generality of subsection (a) of this Section 24.1, the Lessor and the Lessee intend and agree that for the purpose of securing the Lessee’s obligations for the repayment of the Obligations, (i) the Lease shall also be deemed to be a security agreement and financing statement within the meaning of Article 9 of the Uniform Commercial Code; (ii) the conveyance provided for hereby shall be deemed to be a grant by the Lessee to the Lessor, for the benefit of the Participants, of a Lien on and security interest in all of the Lessee’s present and future right, title and interest in and to the Leased Property and the Lessee Collateral, including but not limited to the Lessee’s leasehold estate therein and all proceeds of the conversion, voluntary or involuntary, of the foregoing into cash, investments, securities or other property, whether in the form of cash, investments, securities or other property to secure such loans, effective on the date hereof, to have and to hold such interests in the Leased Property and the Lessee Collateral unto the Lessor, for the benefit of the Participants; (iii) the possession by the Lessor of notes and such other items of property as constitute instruments, money, negotiable documents or chattel paper shall be deemed to be “possession by the secured party” for purposes of perfecting the security interest pursuant to Section 9-313 of the UCC; and (iv) notifications to Persons holding such property, and acknowledgments, receipts or confirmations from financial intermediaries, bankers or agents (as applicable) of the Lessee shall be deemed to have been given for the purpose of perfecting such security interest under Applicable Laws. The Lessor and the Lessee shall, to the extent consistent with the Lease, take such actions and execute, deliver, file and record such other documents, financing statements, mortgages and deeds of trust as may be necessary to ensure that, if the Lease were deemed to create a security interest in the Leased Property and the Lessee Collateral in accordance with this Section 24.1(c), such security interest would be deemed to be a perfected security interest in the Leased Property and the Lessee Collateral with priority over all Liens, other than Permitted Liens, under Applicable Laws and will be maintained as such throughout the Term. Lessee hereby authorizes Lessor to file any and all financing statements covering the Leased Property, the Lessee Collateral or any part thereof that Lessor may require.
Appears in 1 contract
Sources: Lease, Deed of Trust and Security Agreement (Silicon Laboratories Inc)
Nature of Transaction. It is Lessee and Lessor intend that the intention of transactions evidenced by this Lease and the parties that:
(a) Operative Documents constitute operating leases pursuant to FASB 13 for accounting purposes. To the Overall Transaction constitutes an operating extent that this Lease and the Operative Documents reflect the lease from Lessor to Lessee form alone, they do so for purposes of Lessee’s financial reporting, including, without limitation, under Financial Accounting Standards Board Statement Noconvenience only. 13;
(b) for For purposes of all federal, state and local income, franchise, transfer franchise and other taxestaxes imposed upon or measured by income, Lessee and bankruptcy, insolvency, conservatorships Owner Participant intend that this Lease and receiverships (including the substantive law upon which bankruptcy, conservatorship, insolvency and receivership proceedings are based) real estate law, commercial law and UCC:
(i) the Overall Transaction constitutes a financing transaction contemplated by the Participants to Lessee and preserves beneficial ownership in the Subject Property in Lessee, Lessee will be entitled to all tax benefits with respect to the Subject Property ordinarily available to owners of property similar to the Subject Property for tax purposes and the obligations of Lessee to pay Basic Rent Operative Documents shall be treated as payments a loan to Lessee secured by the Equipment, with Lessee as owner of principal, if anythe Equipment, and interest that all payments to the ParticipantsLessor hereunder of Basic Rent, and the payment by Lessee Termination Value, Net Proceeds of Sale or any amounts in respect of the Lease Balance deficiency pursuant to Section 17.3 shall be treated as payments of principal and interest, as appropriate. Guarantor and the Owner Participant may only take deductions, credits, allowances and other reporting positions on their respective returns, reports and statements which are consistent with such treatment, unless required to do otherwise by an appropriate taxing authority or pursuant to a clear change in Applicable Law (an "Inconsistent Position"); provided, however, that if (i) an appropriate Governmental Authority or a clear change in Applicable Law requires the Participants;
Owner Participant or Guarantor to take an Inconsistent Position, such party shall promptly notify the other party and (ii) this Lease grants Owner Participant is required to take an Inconsistent Position (or does so pursuant to a security interest notice from the Guarantor) other than due to a change in Applicable Law, Owner Participant shall pay to the Guarantor, or a LienGuarantor shall pay to Owner Participant, as the case may be, such amount or from time to time such amounts, as calculated by Owner Participant in its sole good faith discretion, as will put Owner Participant in the Lessee’s interest same position on an After-Tax Basis as if all of its taxes referred to in the Leased Property and the other Lessee Collateral in favor of Lessor, and for the benefit of the Participants, to secure Lessee’s payment and performance of its Obligations; and
(iii) the Security Instruments create Liens on and security interests in the Subject Property and the other Lessee Collateral and Lessor Collateral in favor of the Collateral Agent for the benefit of all of the Participants to secure Lessee’s and Lessor’s payment and performance of their obligations under the Operative Documents. Each of the parties hereto agrees that it will not, nor will it permit any Affiliate to at any time, take any action or fail to take any action with respect to the preparation, filing or audit of any income tax return, including an amended income tax return, to the extent that such action or such failure to take action would be inconsistent with the intention of the parties expressed in this Section 24.1. Nevertheless, Lessee acknowledges and agrees that none of the Lessor, the Collateral Agent, Arranger or any Lender has made any representations or warranties concerning the tax, accounting or legal characteristics of the Operative Documents or any aspect of the Overall Transaction and that Lessee has obtained and relied upon such tax, accounting and legal advice concerning the Operative Documents and the Overall Transaction as it deems appropriate.
(c) Specifically, but without limiting the generality of subsection (a) first sentence of this Section 24.1, the Lessor and the Lessee intend and agree that for the purpose of securing the Lessee’s obligations for the repayment of the Obligations, (i) the Lease shall also be deemed to be a security agreement and financing statement within the meaning of Article 9 of the Uniform Commercial Code; (ii) the conveyance provided for hereby shall be deemed to be a grant by the Lessee to the Lessor, for the benefit of the Participants, of a Lien on and security interest in all of the Lessee’s present and future right, title and interest in and to the Leased Property and the Lessee Collateral, including but not limited to the Lessee’s leasehold estate therein and all proceeds of the conversion, voluntary or involuntary, of the foregoing into cash, investments, securities or other property, whether in the form of cash, investments, securities or other property to secure such loans, effective on the date hereof, to have and to hold such interests in the Leased Property and the Lessee Collateral unto the Lessor, for the benefit of the Participants; (iii) the possession by the Lessor of notes and such other items of property as constitute instruments, money, negotiable documents or chattel paper shall be deemed to be “possession by the secured party” for purposes of perfecting the security interest pursuant to Section 9-313 of the UCC; and (iv) notifications to Persons holding such property, and acknowledgments, receipts or confirmations from financial intermediaries, bankers or agents (as applicable) of the Lessee shall be deemed to have been given for the purpose of perfecting such security interest under Applicable Laws. The Lessor and the Lessee shall, to the extent consistent with the Lease, take such actions and execute, deliver, file and record such other documents, financing statements, mortgages and deeds of trust as may be necessary to ensure that, if the Lease 18.17 were deemed to create a security interest in the Leased Property and the Lessee Collateral calculated in accordance with this Section 24.1(c), such security interest would be deemed to be a perfected security interest in the Leased Property and the Lessee Collateral with priority over all Liens, other than Permitted Liens, under Applicable Laws and will be maintained as such throughout the Termtreatment set forth therein. Lessee hereby authorizes Lessor to file any and all financing statements covering the Leased Property, the Lessee Collateral or any part thereof that Lessor may require[Remainder of page intentionally left blank; signature pages follow.]
Appears in 1 contract
Nature of Transaction. (a) It is the intention intent of the parties that:
(a) the Overall Transaction constitutes an operating lease from Lessor to Lessee hereto that for purposes of Lessee’s financial reportingstate, includingreal estate, without limitationcommercial law, under Financial Accounting Standards Board Statement No. 13;
(b) for purposes of all bankruptcy and federal, state and local income, franchise, transfer and other taxesincome tax purposes, and bankruptcynot for financial accounting purposes, insolvency, conservatorships the transaction contemplated hereby is a financing arrangement and receiverships preserves ownership in the Property in the Lessee.
(including b) It is the substantive law upon which bankruptcy, conservatorship, insolvency intent of the parties hereto and receivership proceedings are based) real estate law, commercial law and UCC:
the parties hereby agree that (i) the Overall Transaction constitutes a financing by the Participants to Lessee and preserves beneficial ownership in the Subject Property in Lessee, Lessee will be entitled to all tax benefits with respect to the Subject Property ordinarily available to owners of property similar to the Subject Property for tax purposes and the obligations of the Lessee under this Master Lease to pay Basic Rent and Supplemental Rent or Lease Balance in connection with any purchase of the Property pursuant to this Master Lease shall be treated as payments of principalinterest on and principal of, if anyrespectively, loans from the Lessor and the Lenders to the Lessee, and interest to the Participants, and the payment by Lessee of any amounts in respect of the Lease Balance shall be treated as payments of principal to the Participants;
(ii) this Master Lease grants and the Lease Supplement grant a security interest and mortgage or a Liendeed of trust or lien, as the case may be, in on the Property to the Lessor to secure the Lessee’s interest in the Leased Property 's performance under and payment of all amounts under this Master Lease and the other Lessee Collateral in favor of LessorOperative Documents, and including all amounts advanced by the Participants for the benefit payment of Property Improvement Costs (corresponding to the value of the Participants, to secure Lessee’s payment and performance of its Obligations; and
(iii) Property as indicated on the Security Instruments create Liens on and security interests in the Subject Property and the other Lessee Collateral and Lessor Collateral in favor Appraisal of the Collateral Agent for Master Lease Property delivered on the benefit of Acquisition Date) under the Participation Agreement and all of the Participants to secure Lessee’s and Lessor’s payment and performance of their obligations other amounts payable under the Operative Documents. Each of the parties hereto agrees that it will not, nor will it permit any Affiliate to at any time, take any action or fail to take any action with respect to the preparation, filing or audit of any income tax return, including an amended income tax return, to the extent that such action or such failure to take action would be inconsistent with the intention of the parties expressed Documents in this Section 24.1. Nevertheless, Lessee acknowledges and agrees that none of the Lessor, the Collateral Agent, Arranger or any Lender has made any representations or warranties concerning the tax, accounting or legal characteristics of the Operative Documents or any aspect of the Overall Transaction and that Lessee has obtained and relied upon such tax, accounting and legal advice concerning the Operative Documents and the Overall Transaction as it deems appropriateconnection therewith.
(c) Specifically, but without limiting the generality of subsection clause (a) of this Section 24.1), the Lessor and the Lessee intend and agree that with respect to the nature of the transactions evidenced by this Master Lease in the context of the exercise of remedies under the Operative Documents, including, without limitation, in the case of any insolvency or receivership proceedings or a petition under the United States bankruptcy laws or any other applicable insolvency laws or statute of the United States of America or any State or Commonwealth thereof affecting the Lessee, the Lessor or any Lender or any enforcement or collection actions, the transactions evidenced by this Master Lease are loans to the Lessee made by the Lessor and the Lenders (through the Lessor), in each case as unrelated third party lenders to the Lessee, secured by the Lessee Interest. Accordingly, and notwithstanding anything contained herein or in any other Operative Document to the contrary, the Lessee hereby mortgages and warrants and grants a security interest in the Lessee Interest to the Lessor to secure all Loans and Equity Amounts advanced by the Participants for the construction of Improvements on the Land (corresponding to the value of the Improvements as indicated on the Appraisal of the Improvements delivered on the Documentation Date), in the maximum principal amount of Sixty-Five Million Dollars ($65,000,000), maturing on the Maturity Date for the Property, as such maturity date may be extended in accordance with the provisions of this Master Lease or the other Operative Documents, together with interest thereon, and all other amounts payable under the Operative Documents in connection therewith, effective on the date hereof.
(d) Specifically, but without limiting the generality of clause (a), the Lessor and the Lessee further intend and agree that, for the purpose of securing the Lessee’s 's obligations for the repayment of the Obligationsabove-described loans from the Lessor and the Lenders to the Lessee, (i) this Master Lease and the Lease shall also be deemed to be a Supplement(s) are security agreement agreements and financing statement statements within the meaning of Article 9 of the Uniform Commercial CodeCode and real property mortgages or deeds of trust; (ii) the conveyance provided for hereby shall be deemed to be in this Article XXV and in the Lease Supplement(s) is a grant by the Lessee to the Lessor, for the benefit of the Participants, Lessor of a Lien on and security interest in all of the Lessee’s present and future 's right, title and interest in and to the Leased Property and the Lessee Collateral, including but not limited to the Lessee’s leasehold estate therein Interest and all proceeds of the conversion, voluntary or involuntary, of the foregoing into cash, investments, securities or other property, whether property (it being understood that the Lessee hereby mortgages and warrants and grants a security interest in the form of cash, investments, securities or other property Lessee Interest to the Lessor to secure such loans, effective on all Loans and Equity Amounts advanced by the date hereof, to have and to hold such interests in the Leased Property and the Lessee Collateral unto the Lessor, Participants for the benefit construction of the ParticipantsImprovements (not to exceed the amount set forth in Section 25.1(c)), together with interest thereon, and all other amounts payable under the Operative Documents in connection therewith); (iii) the possession by the Lessor or any of its agents of notes and such other items of property as constitute instruments, money, negotiable documents or chattel paper shall be deemed to be “"possession by the secured party” " for purposes of perfecting the security interest pursuant to Section 9-313 305 of the UCCUniform Commercial Code; and (iv) to the extent required by the applicable Uniform Commercial Code, notifications to Persons holding such property, and acknowledgments, receipts or confirmations from financial intermediaries, bankers or agents (as applicable) of the Lessee shall be deemed to have been given for the purpose of perfecting such security interest under Applicable LawsLaw. The Lessor and the Lessee shall, to the extent consistent with this Master Lease and the Leaseother Operative Documents, take such actions and execute, deliver, file and record such other documents, financing statements, mortgages and deeds of trust as may be necessary to ensure that, if this Master Lease and the Lease Supplement(s) were Master Lease deemed to create a security interest interests in the Leased Property and the Lessee Collateral Improvements in accordance with this Section 24.1(c)Section, such security interest interests would be deemed to be a perfected security interest in the Leased Property and the Lessee Collateral with interests of first priority over all Liens, other than Permitted Liens, under Applicable Laws Law and will be maintained as such throughout the Term. Lessee hereby authorizes Lessor to file any and all financing statements covering the Leased Property, the Lessee Collateral or any part thereof that Lessor may require.
Appears in 1 contract
Sources: Master Lease and Open End Mortgages (Electronics for Imaging Inc)
Nature of Transaction. It is the intention intent of the parties hereto that:
: (a) for financial accounting purposes the Overall Transaction Lease constitutes an "operating lease from Lessor lease" pursuant to Lessee for purposes Statement of Lessee’s financial reporting, including, without limitation, under Financial Accounting Standards Board Statement No. 13;
, as amended; (b) for purposes of all commercial, real estate, bankruptcy and federal, state and local incomeincome tax law, franchise, transfer the transactions contemplated by the Lease are financing arrangements and other taxesshall be treated as the repayment and security provisions of a loan by the Lessor to the Lessee, and bankruptcythat all payments of Basic Rent during the Lease Term shall be treated as payments of interest and all payments of Lease Balance (except to the extent constituting accrued Contribution Return) shall be treated as payments of principal, insolvencyas the case may be, conservatorships and receiverships in respect of such loan; (including c) if a bankruptcy court or other court of competent jurisdiction shall at any time determine that the substantive law upon which bankruptcy, conservatorship, insolvency and receivership proceedings are based) real estate law, commercial law and UCC:
(i) the Overall Transaction constitutes a financing transactions represented by the Participants to Lessee Lease and preserves beneficial ownership the other Operative Documents do not constitute true leasing transactions, then in any such event, the Subject Property in Lease shall be treated as a deed of trust and security agreement, mortgage and security agreement or other similar instrument granting a lien and security interest, with a power of sale from the Lessee, Lessee will be entitled as mortgagor, to all tax benefits with respect to Lessor for the Subject Property ordinarily available to owners benefit of property similar to the Subject Property for tax purposes Issuer and the obligations Credit Bank, as the case may be, as mortgagee, encumbering the related Property, to secure the Lessee's performance under and payment of all amounts at any time due or payable under the Lease and the other Operative Documents, and the payment by the Lessee to pay of Basic Rent shall be treated as payments of principal, if any, and interest to the Participants, and the payment by the Lessee of any amounts in respect of the Lease Balance (except to the extent constituting accrued Contribution Return) shall be treated as payments repayments of principal (all such payments being obligatory and to the Participants;
fullest extent permitted by law, shall have priority over any and all mechanics' liens and other liens and encumbrances arising after each Memorandum of Lease is recorded; PROVIDED, HOWEVER, that the maximum amount of unpaid indebtedness secured by the Lease, exclusive of interest and the Contribution Return, which may be outstanding at any time shall be $29,250,515), and (iid) this each Mortgage and the Assignment of Lease grants and Rents shall and hereby do create a lien and security interest or a Lien, as the case may be, in the Lessee’s interest in the Leased Property Collateral (as defined in each Mortgage) and the other Lessee Collateral Lease, subject to the Excluded Rights and to exceptions, if any, set forth in favor of Lessor, and for each such Mortgage. Notwithstanding the benefit of the Participants, to secure Lessee’s payment and performance of its Obligations; and
(iii) the Security Instruments create Liens on and security interests in the Subject Property foregoing and the other Lessee Collateral provisions of SECTION 4.4 and Lessor Collateral in favor of the Collateral Agent for the benefit of all of the Participants to secure Lessee’s and Lessor’s payment and performance of their obligations under the Operative Documents. Each of the parties SECTION 7.4 hereof, each party hereto agrees that it will not, nor will it permit any Affiliate to at any time, take any action or fail to take any action with respect to the preparation, filing or audit of any income tax return, including an amended income tax return, to the extent that such action or such failure to take action would be inconsistent with the intention of the parties expressed in this Section 24.1. Nevertheless, Lessee acknowledges and agrees that none of the Lessee, the Issuer, the Lessor, the Collateral Placement Agent, Arranger or the Credit Bank nor any Lender other Person has made any representations or warranties to such party concerning the tax, financial, accounting or legal characteristics or treatment of the Operative Documents or any aspect of the Overall Transaction and that Lessee each party has obtained and relied solely upon such the advice of its own tax, accounting and legal advice advisors concerning the Operative Documents and the Overall Transaction as it deems appropriate.
(c) Specificallyaccounting, but without limiting the generality of subsection (a) of this Section 24.1tax, the Lessor financial and the Lessee intend and agree that for the purpose of securing the Lessee’s obligations for the repayment legal consequences of the Obligations, (i) the Lease shall also be deemed to be a security agreement and financing statement within the meaning of Article 9 of the Uniform Commercial Code; (ii) the conveyance provided for hereby shall be deemed to be a grant by the Lessee to the Lessor, for the benefit of the Participants, of a Lien on and security interest in all of the Lessee’s present and future right, title and interest in and to the Leased Property and the Lessee Collateral, including but not limited to the Lessee’s leasehold estate therein and all proceeds of the conversion, voluntary or involuntary, of the foregoing into cash, investments, securities or other property, whether in the form of cash, investments, securities or other property to secure such loans, effective on the date hereof, to have and to hold such interests in the Leased Property and the Lessee Collateral unto the Lessor, for the benefit of the Participants; (iii) the possession by the Lessor of notes and such other items of property as constitute instruments, money, negotiable documents or chattel paper shall be deemed to be “possession by the secured party” for purposes of perfecting the security interest pursuant to Section 9-313 of the UCC; and (iv) notifications to Persons holding such property, and acknowledgments, receipts or confirmations from financial intermediaries, bankers or agents (as applicable) of the Lessee shall be deemed to have been given for the purpose of perfecting such security interest under Applicable Laws. The Lessor and the Lessee shall, to the extent consistent with the Lease, take such actions and execute, deliver, file and record such other documents, financing statements, mortgages and deeds of trust as may be necessary to ensure that, if the Lease were deemed to create a security interest in the Leased Property and the Lessee Collateral in accordance with this Section 24.1(c), such security interest would be deemed to be a perfected security interest in the Leased Property and the Lessee Collateral with priority over all Liens, other than Permitted Liens, under Applicable Laws and will be maintained as such throughout the Term. Lessee hereby authorizes Lessor to file any and all financing statements covering the Leased Property, the Lessee Collateral or any part thereof that Lessor may requiretransactions contemplated therein.
Appears in 1 contract
Nature of Transaction. It is the intention intent of the parties hereto that:
: (a) the Overall Transaction for financial accounting purposes this Lease constitutes an "operating lease from Lessor lease" pursuant to Lessee for purposes Statement of Lessee’s financial reporting, including, without limitation, under Financial Accounting Standards Board Statement No. 13;
, as amended; (b) for purposes of all commercial, real estate, bankruptcy and federal, state and local incomeincome tax law, franchise, transfer the transaction contemplated by this Lease is a financing arrangement and other taxesshall be treated as the repayment and security provisions of a loan by the Lessor to the Lessee, and bankruptcythat all payments of Basic Rent during the Lease Term shall be treated as payments of interest and principal, insolvencyas the case may be, conservatorships in respect of such loan; (c) if a bankruptcy court or other court of competent jurisdiction shall at any time determine that the transactions represented by this Lease and receiverships (including the substantive law upon which bankruptcyother Operative Documents do not constitute a true leasing transaction, conservatorshipthen in any such event, insolvency this Lease shall be treated as a deed of trust and receivership proceedings are based) real estate lawsecurity agreement, commercial law a mortgage and UCC:
(i) security agreement or other similar instrument granting a lien and security interest, with a power of sale from the Overall Transaction constitutes a financing Lessee, as mortgagor or grantor, to the Lessor as mortgagee or grantee, encumbering the Leased Property, to secure the Lessee's performance under and payment of all amounts at any time due or payable under this Lease and the other Operative Documents, and the payment by the Participants to Lessee and preserves beneficial ownership in the Subject Property in Lessee, Lessee will be entitled to all tax benefits with respect to the Subject Property ordinarily available to owners of property similar to the Subject Property for tax purposes and the obligations of Lessee to pay Basic Rent shall be treated as payments of principal, if any, and interest to the Participants, and the payment by the Lessee of any amounts in respect of the Lease Balance shall be treated as payments repayments of principal (all such payments being obligatory and to the Participants;
(ii) this fullest extent permitted by law, shall have priority over any and all mechanics' liens and other liens and encumbrances arising after each Memorandum of Lease grants a security is recorded; PROVIDED, HOWEVER, that the maximum amount of unpaid indebtedness secured hereby, exclusive of interest or a Lien, as the case may be, in the Lessee’s interest in the Leased Property and the other Lessee Collateral in favor of LessorDistributions, which may be outstanding at any time shall be $29,250,515 and for the benefit of the Participants, to secure Lessee’s payment and performance of its Obligations; and
(iiid) the Security Instruments create Liens on and security interests in the Subject Property Mortgages and the other Lessee Collateral Assignment of Lease and Lessor Collateral in favor of the Collateral Agent for the benefit of all of the Participants to secure Lessee’s Rents shall and Lessor’s payment and performance of their obligations under the Operative Documents. Each of the parties hereto agrees that it will not, nor will it permit any Affiliate to at any time, take any action or fail to take any action with respect to the preparation, filing or audit of any income tax return, including an amended income tax return, to the extent that such action or such failure to take action would be inconsistent with the intention of the parties expressed in this Section 24.1. Nevertheless, Lessee acknowledges and agrees that none of the Lessor, the Collateral Agent, Arranger or any Lender has made any representations or warranties concerning the tax, accounting or legal characteristics of the Operative Documents or any aspect of the Overall Transaction and that Lessee has obtained and relied upon such tax, accounting and legal advice concerning the Operative Documents and the Overall Transaction as it deems appropriate.
(c) Specifically, but without limiting the generality of subsection (a) of this Section 24.1, the Lessor and the Lessee intend and agree that for the purpose of securing the Lessee’s obligations for the repayment of the Obligations, (i) the Lease shall also be deemed to be hereby do create a security agreement and financing statement within the meaning of Article 9 of the Uniform Commercial Code; (ii) the conveyance provided for hereby shall be deemed to be a grant by the Lessee to the Lessor, for the benefit of the Participants, of a Lien on lien and security interest in all of the Lessee’s present Collateral (as defined in each Mortgage) and future rightthis Lease, title and interest in subject to the Excluded Rights and to the Leased Property and the Lessee Collateral, including but not limited to the Lessee’s leasehold estate therein and all proceeds of the conversion, voluntary or involuntary, of the foregoing into cash, investments, securities or other property, whether in the form of cash, investments, securities or other property to secure such loans, effective on the date hereof, to have and to hold such interests in the Leased Property and the Lessee Collateral unto the Lessor, for the benefit of the Participants; (iii) the possession by the Lessor of notes and such other items of property as constitute instruments, money, negotiable documents or chattel paper shall be deemed to be “possession by the secured party” for purposes of perfecting the security interest pursuant to Section 9-313 of the UCC; and (iv) notifications to Persons holding such property, and acknowledgments, receipts or confirmations from financial intermediaries, bankers or agents (as applicable) of the Lessee shall be deemed to have been given for the purpose of perfecting such security interest under Applicable Laws. The Lessor and the Lessee shall, to the extent consistent with the Lease, take such actions and execute, deliver, file and record such other documents, financing statements, mortgages and deeds of trust as may be necessary to ensure thatexceptions, if the Lease were deemed to create a security interest any, set forth in the Leased Property and the Lessee Collateral in accordance with this Section 24.1(c), each such security interest would be deemed to be a perfected security interest in the Leased Property and the Lessee Collateral with priority over all Liens, other than Permitted Liens, under Applicable Laws and will be maintained as such throughout the Term. Lessee hereby authorizes Lessor to file any and all financing statements covering the Leased Property, the Lessee Collateral or any part thereof that Lessor may requireMortgage.
Appears in 1 contract
Nature of Transaction. It is the intention of the parties that:
(a) the Overall Transaction constitutes an operating lease from Lessor to Lessee for purposes of Lessee’s financial reporting, including, without limitation, under Financial Accounting Standards Board Statement No. 13;
(b) for purposes of all federal, state and local income, franchise, transfer and other taxes, and bankruptcy, insolvency, conservatorships and receiverships (including the substantive law upon which bankruptcy, conservatorship, insolvency and receivership proceedings are based) real estate law, commercial law and UCC:
(i) the Overall Transaction constitutes a financing by the Participants to Lessee and preserves beneficial ownership in the Subject Property in Lessee, Lessee will be entitled to all tax benefits with respect to the Subject Property ordinarily available to owners of property similar to the Subject Property for tax purposes and the obligations of Lessee to pay Basic Rent shall be treated as payments of principal, if any, and interest to the Participants, and the payment by Lessee of any amounts in respect of the Lease Balance shall be treated as payments of principal to the Participants;
(ii) this the Lease grants a security interest or a Lien, as the case may be, in the Lessee’s interest in the Leased Property and the other Lessee Collateral in favor of Lessor, and for the benefit of the Participants, to secure Lessee’s payment and performance of its Obligations; and
(iii) the Security Instruments create Liens on and security interests in the Subject Property and the other Lessee Lessor Collateral and Lessor Lessee Collateral in favor of the Collateral Agent for the benefit of all of the Participants to secure Lessee’s and Lessor’s payment and performance of their obligations under the Operative Documents. Each of the parties hereto agrees that it will not, nor will it permit any Affiliate to at any time, take any action or fail to take any action with respect to the preparation, filing or audit of any income tax return, including an amended income tax return, to the extent that such action or such failure to take action would be inconsistent with the intention of the parties expressed in this Section 24.14.1. Nevertheless, Lessee acknowledges and agrees that none of the Lessor, the Collateral Agent, Arranger or any Lender has made any representations or warranties concerning the tax, accounting or legal characteristics of the Operative Documents or any aspect of the Overall Transaction and that Lessee has obtained and relied upon such tax, accounting and legal advice concerning the Operative Documents and the Overall Transaction as it deems appropriate.
(c) Specifically, but without limiting the generality of subsection (a) of this Section 24.14.1, the Lessor and the Lessee intend and agree that for the purpose of securing the Lessee’s obligations for the repayment of the Obligations, (i) the Lease and this Memorandum shall also be deemed to be a security agreement and financing statement within the meaning of Article 9 of the Uniform Commercial Code; (ii) the conveyance provided for hereby is and shall be deemed to be a grant by the Lessee to the Lessor, for the benefit of the Participants, of a Lien on and security interest in all of the Lessee’s present and future right, title and interest in and to the Leased Property and the Lessee Collateral, including but not limited to the Lessee’s leasehold estate therein and all proceeds of the conversion, voluntary or involuntary, of the foregoing into cash, investments, securities or other property, whether in the form of cash, investments, securities or other property to secure such loans, effective on the date hereof, to have and to hold such interests in the Leased Property and the Lessee Collateral unto the Lessor, for the benefit of the Participants; (iii) the possession by the Lessor of notes and such other items of property as constitute instruments, money, negotiable documents or chattel paper shall be deemed to be “possession by the secured party” for purposes of perfecting the security interest pursuant to Section 9-313 of the UCC; and (iv) notifications to Persons holding such property, and acknowledgments, receipts or confirmations from financial intermediaries, bankers or agents (as applicable) of the Lessee shall be deemed to have been given for the purpose of perfecting such security interest under Applicable Laws. The Lessor and the Lessee shall, to the extent consistent with the LeaseLease and this Memorandum, take such actions and execute, deliver, file and record such other documents, financing statements, mortgages and deeds of trust as may be necessary to ensure that, if the Lease were deemed to create a security interest in the Leased Property and the Lessee Collateral in accordance with this Section 24.1(c4.1(c), such security interest would be deemed to be a perfected security interest in the Leased Property and the Lessee Collateral with priority over all Liens, other than Permitted Liens, under Applicable Laws and will be maintained as such throughout the Term. Lessee hereby authorizes Lessor to file any and all financing statements covering the Leased Property, the Lessee Collateral or any part thereof that Lessor may require.
Appears in 1 contract
Sources: Lease, Deed of Trust and Security Agreement (Silicon Laboratories Inc)
Nature of Transaction. It is the intention of the parties thatthat notwithstanding any provision of this Agreement to the contrary:
(a) the Overall Transaction constitutes an operating lease from Lessor Certificate Trustee to the Lessee for purposes of Lessee’s 's financial reporting, including, without limitation, under Financial Accounting Standards Board Statement No. 13;
(b) for purposes of all federalfederal and state income tax, state and local incomeproperty tax, franchise, transfer and other taxes, and bankruptcy, insolvency, conservatorships and receiverships (bankruptcy including the substantive law upon which bankruptcy, conservatorship, insolvency and receivership bankruptcy proceedings are based) real estate law, commercial law and UCCUniform Commercial Code purposes:
(i) the Overall Transaction constitutes a financing by the Participants to Lessee the Lessee, and beneficial ownership in the Aircraft shall be deemed to be held by, and the Overall Transaction preserves beneficial ownership in the Subject Property in LesseeAircraft in, the Lessee will be entitled to all tax benefits with respect to the Subject Property ordinarily available to owners of property similar to the Subject Property for tax purposes and the obligations of Lessee to pay the Interest and Yield portions of Basic Rent shall be treated as payments of principal, if any, and interest to the Participants, and the payment by Lessee of any amounts in respect of the Lease Balance shall be treated as payments of principal to the Participants;
(ii) this the Certificate Trustee's holding of any title in the Aircraft shall be as security for Lessee's obligations under the Operative Documents, and the Lease grants a security interest or a Lienlien, as the case may be, in the Lessee’s interest in the Leased Property Aircraft and the other Lessee Lease Collateral in favor of Lessorthe Certificate Trustee, and for the benefit of the Participants, to secure Lessee’s payment and performance of its Obligations; and
(iii) the Security Instruments create Liens on Agreement creates liens and security interests in the Subject Property and the other Lessee Collateral and Lessor Collateral in favor of the Collateral Agent defined therein for the benefit of all of the Participants to secure Lessee’s and Lessor’s payment and performance of their obligations under the Operative Documents. Each of the parties hereto agrees that it will not, nor will it permit any Affiliate to at any time, take any action or fail to take any action with respect to the preparation, filing or audit of any income tax return, including an amended income tax return, to the extent that such action or such failure to take action would be inconsistent with the intention of the parties expressed in this Section 24.1Participants. Nevertheless, the Lessee and each Financing Party acknowledges and agrees that none of the Lessor, the Collateral Agent, Arranger or any Lender such entities has made any representations or warranties concerning the tax, accounting or legal characteristics of the Operative Documents or any aspect of the Overall Transaction and that Lessee each such entity has obtained and relied upon such tax, accounting and legal advice concerning the Operative Documents and the Overall Transaction as it such party deems appropriate.
(c) Specifically, but without limiting the generality of subsection (a) of this Section 24.1, the Lessor and the Lessee intend and agree that for the purpose of securing the Lessee’s obligations for the repayment of the Obligations, (i) the Lease shall also be deemed to be a security agreement and financing statement within the meaning of Article 9 of the Uniform Commercial Code; (ii) the conveyance provided for hereby shall be deemed to be a grant by the Lessee to the Lessor, for the benefit of the Participants, of a Lien on and security interest in all of the Lessee’s present and future right, title and interest in and to the Leased Property and the Lessee Collateral, including but not limited to the Lessee’s leasehold estate therein and all proceeds of the conversion, voluntary or involuntary, of the foregoing into cash, investments, securities or other property, whether in the form of cash, investments, securities or other property to secure such loans, effective on the date hereof, to have and to hold such interests in the Leased Property and the Lessee Collateral unto the Lessor, for the benefit of the Participants; (iii) the possession by the Lessor of notes and such other items of property as constitute instruments, money, negotiable documents or chattel paper shall be deemed to be “possession by the secured party” for purposes of perfecting the security interest pursuant to Section 9-313 of the UCC; and (iv) notifications to Persons holding such property, and acknowledgments, receipts or confirmations from financial intermediaries, bankers or agents (as applicable) of the Lessee shall be deemed to have been given for the purpose of perfecting such security interest under Applicable Laws. The Lessor and the Lessee shall, to the extent consistent with the Lease, take such actions and execute, deliver, file and record such other documents, financing statements, mortgages and deeds of trust as may be necessary to ensure that, if the Lease were deemed to create a security interest in the Leased Property and the Lessee Collateral in accordance with this Section 24.1(c), such security interest would be deemed to be a perfected security interest in the Leased Property and the Lessee Collateral with priority over all Liens, other than Permitted Liens, under Applicable Laws and will be maintained as such throughout the Term. Lessee hereby authorizes Lessor to file any and all financing statements covering the Leased Property, the Lessee Collateral or any part thereof that Lessor may require.
Appears in 1 contract
Nature of Transaction. (a) It is the intention intent of the parties that:
: (ai) the Overall Transaction Lease constitutes an operating lease from Lessor to the Lessee for purposes of the Lessee’s 's financial reporting, including, without limitation, under Financial Accounting Standards Board Statement No. 13;
(bii) for purposes of all federal, state and local income, franchise, transfer the Lease and other taxestransactions contemplated will result in the Lessee being recognized as the owner of the Property for Federal and state income tax and bankruptcy purposes, (iii) the Lease Supplement grants to Lessor a Lien on the Lessee's interest in the Property (exclusive of Lessee's fee interest in the Land) covered thereby, and bankruptcy, insolvency, conservatorships and receiverships (including the substantive law upon which bankruptcy, conservatorship, insolvency and receivership proceedings are basediv) real estate law, commercial law and UCC:
(i) the Overall Transaction constitutes a financing by the Participants to Lessee and preserves beneficial ownership in the Subject Property in Lessee, Lessee will be entitled to all tax benefits with respect to the Subject Property ordinarily available to owners of property similar to the Subject Property for tax purposes and the obligations of the Lessee to pay Basic Rent shall be treated as payments of principal, if any, and interest to the Participants, and the payment by Lessee of any amounts in respect part of the Lease Balance shall be treated as payments of principal interest and principal, respectively, for Federal and state income tax and bankruptcy purposes. The Lessor shall be deemed to the Participants;
(ii) this Lease grants have a valid and binding security interest or in and Lien on the Lessee's interest in the Property, free and clear of all Liens other than Permitted Property Liens, as security for the obligations of the Lessee under the Operative Documents (it being understood and agreed that the Lessee does hereby grant a Lien, as the case may beand convey, in the Lessee’s interest in the Leased Property transfer, assign, mortgage and the other Lessee Collateral in favor of Lessorwarrant to ▇▇▇▇▇▇ ▇▇▇ ▇ts successors, transferees and assigns, for the benefit of the ParticipantsLessor and its successors, transferees and assigns, the Property and any proceeds or products thereof, to secure Lessee’s have and hold the same as collateral security for the payment and performance of its Obligations; and
(iii) the Security Instruments create Liens on and security interests in the Subject Property and the other Lessee Collateral and Lessor Collateral in favor obligations of the Collateral Agent for the benefit of all of the Participants to secure Lessee’s and Lessor’s payment and performance of their obligations Lessee under the Operative Documents. Each ), each of the parties hereto agrees that it will not, nor will it permit any Affiliate to at any time, take any action or fail to take any action with respect to the preparation, preparation or filing or audit of any income tax return, including an amended income tax return, to the extent that such action or such failure to take action would be inconsistent with the intention of the parties expressed in this Section 24.1. Nevertheless, Lessee acknowledges and agrees that none of the Lessor, the Collateral Agent, Arranger or any Lender has made any representations or warranties concerning the tax, accounting or legal characteristics of the Operative Documents or any aspect of the Overall Transaction and that Lessee has obtained and relied upon such tax, accounting and legal advice concerning the Operative Documents and the Overall Transaction as it deems appropriate25.1.
(cb) Specifically, but without limiting the generality of subsection clause (a) of this Section 24.125.1, the Lessor and the Lessee parties hereto intend and agree that for in the purpose event of securing any insolvency or receivership proceedings or a petition under the Lessee’s obligations for the repayment United States bankruptcy laws or any other applicable insolvency laws or statute of the ObligationsUnited States of America or any State or Commonwealth thereof affecting Lessee, (i) Lessor or any collection actions, the Lease shall also be deemed to be a security agreement and financing statement within transactions evidenced by the meaning of Article 9 of the Uniform Commercial Code; (ii) the conveyance provided for hereby Operative Documents shall be deemed to be a grant regarded as loans made by the Lessee to the Lessor, for the benefit of the Participants, of a Lien on and security interest in all of the Lessee’s present and future right, title and interest in and to the Leased Property and the Lessee Collateral, including but not limited Lessor to the Lessee’s leasehold estate therein and all proceeds of the conversion, voluntary or involuntary, of the foregoing into cash, investments, securities or other property, whether in the form of cash, investments, securities or other property to secure such loans, effective on the date hereof, to have and to hold such interests in the Leased Property and the Lessee Collateral unto the Lessor, for the benefit of the Participants; (iii) the possession by the Lessor of notes and such other items of property as constitute instruments, money, negotiable documents or chattel paper shall be deemed to be “possession by the secured party” for purposes of perfecting the security interest pursuant to Section 9-313 of the UCC; and (iv) notifications to Persons holding such property, and acknowledgments, receipts or confirmations from financial intermediaries, bankers or agents (as applicable) of the Lessee shall be deemed to have been given for the purpose of perfecting such security interest under Applicable Laws. The Lessor and the Lessee shall, to the extent consistent with the Lease, take such actions and execute, deliver, file and record such other documents, financing statements, mortgages and deeds of trust as may be necessary to ensure that, if the Lease were deemed to create a security interest in the Leased Property and the Lessee Collateral in accordance with this Section 24.1(c), such security interest would be deemed to be a perfected security interest in the Leased Property and the Lessee Collateral with priority over all Liens, other than Permitted Liens, under Applicable Laws and will be maintained as such throughout the Term. Lessee hereby authorizes Lessor to file any and all financing statements covering the Leased Property, the Lessee Collateral or any part thereof that Lessor may require.
Appears in 1 contract
Nature of Transaction. It is the intention of the parties that:
(a) the Overall Transaction constitutes an operating lease from Lessor to Lessee for purposes of Lessee’s financial reporting, including, without limitation, under Financial Accounting Standards Board Statement No. 13;
(b) for purposes of all federal, state and local income, franchise, transfer and other taxes, and bankruptcy, insolvency, conservatorships and receiverships (including the substantive law upon which bankruptcy, conservatorship, insolvency and receivership proceedings are based) real estate law, commercial law and UCC:
The parties hereto intend that (i) for financial accounting purposes with respect to the Overall Transaction constitutes Lessee, the Lessor will be treated as the owner and the lessor of the Equipment and the Lessee will be treated as the lessee of the Equipment and (ii) for federal and all state and other tax purposes, and for bankruptcy purposes, (x) the Master Lease will be treated as a financing arrangement, (y) the Equity Lenders and the Financing Lenders will be deemed to be lenders making loans to or for the benefit of the Lessee in an amount equal to the sum of the original principal amount of the Loans, which loans are secured by the Participants to Lessee Equipment and preserves beneficial ownership the other Collateral provided in the Subject Property in LesseeOperative Documents, and (z) the Lessee will be treated as the owner of the Equipment and will be entitled to all tax benefits with respect to the Subject Property ordinarily available to owners an owner of property similar to equipment like the Subject Property Equipment for such tax purposes and the obligations of Lessee to pay Basic Rent shall be treated as payments of principalpurposes. NEVERTHELESS, if anyTHE LESSEE ACKNOWLEDGES AND AGREES THAT NEITHER THE LESSOR, and interest to the ParticipantsTHE EQUITY LENDERS NOR ANY OF THE FINANCING LENDERS HAS MADE ANY REPRESENTATIONS OR WARRANTIES TO THE LESSEE CONCERNING THE TAX, and the payment by Lessee of any amounts in respect of the Lease Balance shall be treated as payments of principal to the Participants;
(ii) this Lease grants a security interest or a LienACCOUNTING OR LEGAL CHARACTERISTICS OF THE OPERATIVE DOCUMENTS AND THAT THE LESSEE HAS OBTAINED AND RELIED UPON SUCH INDEPENDENT TAX, as the case may be, in the Lessee’s interest in the Leased Property and the other Lessee Collateral in favor of Lessor, and for the benefit of the Participants, to secure Lessee’s payment and performance of its Obligations; and
(iii) the Security Instruments create Liens on and security interests in the Subject Property and the other Lessee Collateral and Lessor Collateral in favor of the Collateral Agent for the benefit of all of the Participants to secure Lessee’s and Lessor’s payment and performance of their obligations under the Operative Documents. Each of the parties hereto agrees that it will not, nor will it permit any Affiliate to at any time, take any action or fail to take any action with respect to the preparation, filing or audit of any income tax return, including an amended income tax return, to the extent that such action or such failure to take action would be inconsistent with the intention of the parties expressed in this Section 24.1. Nevertheless, Lessee acknowledges and agrees that none of the Lessor, the Collateral Agent, Arranger or any Lender has made any representations or warranties concerning the tax, accounting or legal characteristics of the Operative Documents or any aspect of the Overall Transaction and that Lessee has obtained and relied upon such tax, accounting and legal advice concerning the Operative Documents and the Overall Transaction as it deems appropriateACCOUNTING AND LEGAL ADVICE CONCERNING THE OPERATIVE DOCUMENTS AS IT DEEMS APPROPRIATE.
(cb) Specifically, but without limiting the generality of subsection clause (a) of ---------- this Section 24.15.1, the Lessor and the Lessee parties hereto intend and agree that for in the purpose event of securing ----------- any insolvency or receivership proceedings or a petition under the United States bankruptcy laws or any other applicable insolvency laws or statute of the United States of America or any State or Commonwealth thereof affecting the Lessee’s obligations for the repayment of the Obligations, (i) the Lease shall also be deemed to be a security agreement and financing statement within the meaning of Article 9 of the Uniform Commercial Code; (ii) the conveyance provided for hereby shall be deemed to be a grant by the Lessee to the Lessor, for the benefit of Equity Lenders or the ParticipantsFinancing Lenders or any collection actions, of a Lien on the transactions evidenced by the Operative Documents shall be regarded as loans made directly by the Equity Lenders and security interest in all the Financing Lenders as unrelated third party lenders of the Lessee’s present and future right, title and interest in and to the Leased Property and the Lessee Collateral, including but not limited to the Lessee’s leasehold estate therein and all proceeds of the conversion, voluntary or involuntary, of the foregoing into cash, investments, securities or other property, whether in the form of cash, investments, securities or other property to secure such loans, effective on the date hereof, to have and to hold such interests in the Leased Property and the Lessee Collateral unto the Lessor, for the benefit of the Participants; (iii) the possession by the Lessor of notes and such other items of property as constitute instruments, money, negotiable documents or chattel paper shall be deemed to be “possession by the secured party” for purposes of perfecting the security interest pursuant to Section 9-313 of the UCC; and (iv) notifications to Persons holding such property, and acknowledgments, receipts or confirmations from financial intermediaries, bankers or agents (as applicable) of the Lessee shall be deemed to have been given for the purpose of perfecting such security interest under Applicable Laws. The Lessor and the Lessee shall, to the extent consistent with the Lease, take such actions and execute, deliver, file and record such other documents, financing statements, mortgages and deeds of trust as may be necessary to ensure that, if the Lease were deemed to create a security interest in the Leased Property and the Lessee Collateral in accordance with this Section 24.1(c), such security interest would be deemed to be a perfected security interest in the Leased Property and the Lessee Collateral with priority over all Liens, other than Permitted Liens, under Applicable Laws and will be maintained as such throughout the Term. Lessee hereby authorizes Lessor to file any and all financing statements covering the Leased Property, the Lessee Collateral or any part thereof that Lessor may require.
Appears in 1 contract
Nature of Transaction. It is the intention of the parties that:
(a) the Overall Transaction (including, without limitation, the transactions and activities during the Interim Term referred to or contemplated by the Construction Agency Agreement), constitutes an operating lease from Lessor to Lessee for purposes of Lessee’s 's and Guarantor's financial reporting, including, without limitation, under Financial Accounting Standards Board Statement No. 13;
(b) for purposes of federal and all federal, state and local income, franchise, income and transfer taxes and other taxes, and for purposes of bankruptcy, insolvency, conservatorships conservatorship and receiverships receivership law (including the substantive law upon which bankruptcy, conservatorship, conservatorship and insolvency and receivership proceedings are based) and real estate law, commercial law and UCCUniform Commercial Code purposes:
(i) the Overall Transaction constitutes (including, without limitation, the transactions and activities during the Interim Term referred to or contemplated by the Construction Agency Agreement), constitute a financing by the Participants to Lessee and preserves beneficial ownership in the Subject Leased Property in Lessee, Lessee will be entitled to all tax benefits with respect to the Subject Property ordinarily available to owners of property similar to the Subject Leased Property for tax purposes (including, without limitation, depreciation) and the obligations of Lessee to pay Basic Rent shall be treated as payments of principal, if any, and interest to the Participants, and the payment by Lessee ▇▇▇▇▇▇ of any amounts in respect of the Lease Balance shall be treated as payments of principal to the Participants;
(ii) in order to secure the obligations of Lessee now existing or hereafter arising under any of the Operative Documents, this Lease grants creates, and Lessee hereby grants, conveys, assigns, mortgages and transfers a security interest or a Lienlien, as the case may be, in the Lessee’s interest in the Leased Property and the other Lessee Collateral in favor Teletech Collateral, and ▇▇▇▇▇▇ does hereby irrevocably GRANT, BARGAIN, SELL, ALIEN, REMISE, RELEASE, CONFIRM AND CONVEY to Deed of LessorTrust Trustee, and for the benefit of ▇▇▇▇▇▇ and the Participants, a Lien, deed of trust and mortgage on all right, title and interest of ▇▇▇▇▇▇ in and to secure Lessee’s payment the Leased Property and performance of its Obligationsthe Land; and
(iii) the Security Instruments create Deed of Trust creates Liens on and security interests in the Subject Mortgaged Property and the other Lessee Collateral and Lessor Collateral in favor of the Collateral Administrative Agent for the benefit of all of the Participants to secure Lessee’s and Lessor’s ▇▇▇▇▇▇'s payment and performance of their obligations under the Operative Documents. Each of the parties hereto agrees that it will not, nor will it permit any Affiliate to at any time, take any action or fail to take any action with respect to the preparation, filing or audit of any income tax return, including an amended income tax return, to the extent that such action or such failure to take action would be inconsistent with the intention of the parties expressed in this Section 24.1Obligations. Nevertheless, Lessee ▇▇▇▇▇▇ acknowledges and agrees that none of the Lessor, the Collateral Administrative Agent, Arranger or any Lender Participant has made any representations or warranties concerning the tax, accounting or legal characteristics of the Operative Documents or any aspect of the Overall Transaction and that Lessee has obtained and relied upon such tax, accounting and legal advice concerning the Operative Documents and the Overall Transaction as it deems appropriate; provided, however, none of the Lessor, any Agent, Arranger or any Participant shall treat the Overall Transaction for federal or state tax purposes other than as a financing preserving beneficial ownership in the Leased Property in the Lessee in the manner described in this SECTION 24.1(b).
(c) Specifically, but without limiting the generality of subsection SUBSECTION (ab) of this Section SECTION 24.1, the Lessor and the Lessee further intend and agree that, with respect to that portion of the Leased Property constituting personal property, for the purpose of securing the Lessee’s 's obligations for the repayment of the Obligationsabove-described loans from Lessor and the Participants to Lessee, (i) the this Lease shall also be deemed to be a security agreement and financing statement within the meaning of Article 9 of the Uniform Commercial Code; (ii) the conveyance provided for hereby shall be deemed to be a grant by the Lessee to the Lessor, for the benefit of the Participants, of a Lien on mortgage, lien and security interest in all of the Lessee’s ▇▇▇▇▇▇'s present and future right, title and interest in and to such portion of the Leased Property and the Lessee CollateralProperty, including but not limited to the Lessee’s ▇▇▇▇▇▇'s leasehold estate therein and all proceeds of the conversion, voluntary or involuntary, of the foregoing into cash, investments, securities or other property, whether in the form of cash, investments, securities or other property to secure such loans, effective on the date hereof, to have and to hold such interests in the Leased Property and the Lessee Collateral unto the Lessor, for the benefit of the Participants; (iii) the possession by the Lessor of notes and such other items of property as constitute instruments, money, negotiable documents or chattel paper shall be deemed to be “"possession by the secured party” " for purposes of perfecting the security interest pursuant to Section 4-9-313 305 of the UCCUniform Commercial Code; and (iv) notifications to Persons holding such property, and acknowledgments, receipts or confirmations from financial intermediaries, bankers or agents (as applicable) of the Lessee shall be deemed to have been given for the purpose of perfecting such security interest under Applicable Laws. The Lessor and the Lessee shall, to the extent consistent with the this Lease, take such actions and execute, deliver, file and record such other documents, financing statements, mortgages and deeds of trust as may be necessary to ensure that, if the this Lease were deemed to create a security interest in the Leased Property and the Lessee Collateral in accordance with this Section 24.1(c)Section, such security interest would be deemed to be a perfected security interest in the Leased Property and the Lessee Collateral with priority over all Liens, Liens other than Permitted Liens, under Applicable Laws and will be maintained as such throughout the Term. Lessee hereby authorizes Lessor to file any and all financing statements covering the Leased Property, the Lessee Collateral or any part thereof that Lessor may require.
Appears in 1 contract
Nature of Transaction. It is the intention of the parties that:
(a) the Overall Transaction constitutes constitute an operating lease from Lessor to Lessee Lessees for purposes of Lessee’s Lessees' financial reporting, including, without limitation, including under Financial Accounting Standards Board Statement No. 13;
(b) for purposes of federal and all federal, state and local income, franchise, transfer and other taxes, taxes and for purposes of bankruptcy, insolvency, conservatorships conservatorship and receiverships receivership law (including the substantive law upon which bankruptcy, conservatorship, conservatorship and insolvency and receivership proceedings are based) real estate law, commercial law and UCC:):
(i) the Overall Transaction constitutes a financing by the Participants to Lessee Lessees and preserves beneficial ownership in the Subject Property Equipment in LesseeLessees, Lessee Lessees will be entitled to all tax benefits with respect to the Subject Property ordinarily available to owners of property similar to the Subject Property Equipment for tax purposes and the obligations of Lessee Lessees to pay the Interest and Yield components of Basic Rent shall be treated as payments of principal, if any, interest to the Participants and interest the obligation of Lessees to pay the principal component of Basic Rent shall be treated as payment of principal to the Participants, and the payment by Lessee Lessees of any amounts in respect of the Lease Balance shall be treated as payments of principal to the Participants;
(ii) in order to secure the obligations of Lessees now existing or hereafter arising under any of the Operative Documents, this Lease grants creates, and each Lessee hereby grants, conveys, assigns, mortgages and transfers a first priority (subject to Permitted Liens) security interest or a Lienlien, as the case may be, in the Lessee’s interest in the Leased Property Equipment and the other Lessee Collateral in favor of Lessor, and for the benefit of the Participants, and each Lessee does hereby irrevocably GRANT, BARGAIN, SELL, ALIEN, REMISE, RELEASE, CONFIRM AND CONVEY to secure Lessee’s payment Lessor, and performance for the benefit of its Obligationsthe Participants, a Lien on all right, title and interest of such Lessee in and to the Equipment; and
(iii) the Security Instruments Documents create Liens on and security interests in the Subject Property and the other Lessee Collateral and Lessor Collateral in favor of the Collateral Agent for the benefit of all of the Participants to secure Lessee’s and Lessor’s Lessees' payment and performance of their obligations under the Operative Documents. Each of the parties hereto agrees that it will not, nor will it permit any Affiliate to at any time, take any action or fail to take any action with respect to the preparation, filing or audit of any income tax return, including an amended income tax return, to the extent that such action or such failure to take action would be inconsistent with the intention of the parties expressed in this Section 24.1Obligations. Nevertheless, each Lessee acknowledges and agrees that none of the LessorTrustee, the Collateral Agent, Arranger or any Lender Participant has made any representations or warranties concerning the tax, accounting or legal characteristics of the Operative Documents or any aspect of the Overall Transaction and that such Lessee has obtained and relied upon such tax, accounting and legal advice concerning the Operative Documents and the Overall Transaction as it deems appropriate.
(c) Specifically, but without limiting the generality of subsection subsections (a) and (b) of this Section 24.1, the Lessor and the Lessee Lessees further intend and agree that that, for the purpose of securing Lessees' obligations under the Lessee’s obligations for the repayment of the ObligationsOperative Documents, (i) the this Lease shall also be deemed to be a security agreement and financing statement within the meaning of Article 9 of the Uniform Commercial CodeUCC; (ii) the conveyance provided for hereby shall be deemed to be a grant by the Lessee Lessees to the Lessor, for the benefit of the Participants, of a Lien on lien and security interest in all of the Lessee’s Lessees' present and future right, title and interest in and to the Leased Property and the Lessee CollateralEquipment, including but not limited to the Lessee’s Lessees' leasehold estate therein and all proceeds of the conversion, voluntary or involuntary, of the foregoing into cash, investments, securities or other property, whether in the form of cash, investments, securities or other property to secure such loansobligations under the Operative Documents, effective on the date hereof, to have and to hold such interests in the Leased Property and the Lessee Collateral Equipment unto the Lessor, for the benefit of the Participants; (iii) the possession by the Lessor of notes and such other items of property as constitute instruments, money, negotiable documents or chattel paper shall be deemed to be “"possession by the secured party” " for purposes of perfecting the security interest pursuant to Section 9-313 of the UCC; and (iv) notifications to Persons holding such property, and acknowledgments, receipts or confirmations from financial intermediaries, bankers or agents (as applicable) of the Lessee Lessees shall be deemed to have been given for the purpose of perfecting such security interest under Applicable Laws. The Lessor and the Lessee Lessees shall, to the extent consistent with the this Lease, take such actions and execute, deliver, file and record such other documents, financing statements, mortgages statements and deeds of trust other security agreements as may be necessary to ensure that, if the this Lease were deemed to create a security interest in the Leased Property and the Lessee Collateral Equipment in accordance with this Section 24.1(c)Section, such security interest would be deemed to be a perfected security interest in the Leased Property and the Lessee Collateral with priority over all Liens, Liens other than Permitted Liens, under Applicable Laws and will be maintained as such throughout the Lease Term. Lessee hereby authorizes Lessor to file any and all financing statements covering the Leased Property, the Lessee Collateral or any part thereof that Lessor may require.
Appears in 1 contract
Sources: Master Lease (Mandalay Resort Group)
Nature of Transaction. It is the intention of the parties that:
(a) the Overall Transaction constitutes an operating lease from Lessor to Lessee for purposes of the Lessee’s financial reporting, including, reporting under GAAP provisions relating to leases including without limitation, under Financial limitation the Accounting Standards Board Statement No. 13;Codification (“ASC”) 840 (including ASC 840-20 and 840-40) and, upon applicability, ASC 842; and
(b) for purposes of all United States federal, state and local income tax, property tax, transfer tax, sales tax, franchise tax, general corporation tax and other similar taxes that may be imposed upon net or gross income, franchise, transfer and other taxes, and bankruptcy, insolvency, conservatorships and receiverships bankruptcy (including the substantive law upon which bankruptcy, conservatorship, insolvency and receivership bankruptcy proceedings are based) and real estate law, and commercial law and UCCpurposes:
(i) the Overall Transaction constitutes (x) a financing by the Participants Lessor to Lessee and preserves beneficial ownership in the Subject Property in Lessee, Lessee will be entitled to all tax benefits with respect to the Subject Property ordinarily available to owners of property similar to the Subject Property for tax purposes and the obligations of the Lessee to pay Basic Rent shall be treated as payments of principal, if any, and interest to the Participants, Lessor and the payment by the Lessee of any amounts in respect of the Lease Balance shall be treated as payments of principal to the ParticipantsLessor, and (y) a sale of receivables and other rights under the Operative Documents as set forth in the Rent Assignment Agreements from the Lessor to the Rent Assignees;
(ii) this The Lessee will not be entitled to, and shall not avail itself of, any of the rights or benefits accorded to a lessee under Applicable Laws and Regulations except as expressly permitted under the Lease grants a security interest or a Lien, as the case may be, in the Lessee’s interest in the Leased Property and the Lessor will be deemed and will have the rights of a lender making secured loans to the Lessee secured by, among other things the Lessee Collateral in favor Collateral, a portion of Lessor, and which rights will be deemed sold by the Lessor to the Rent Assignees upon payment for the benefit of the Participants, to secure Lessee’s payment and performance of its Obligationstheir respective Rent Assigned Interests; and
(iii) The Lessee is and will be the Security Instruments create Liens on and security interests in owner of the Subject Property Site and the other Lessee Collateral Facility and Lessor Collateral in favor lessor of the Collateral Agent for the benefit of all of the Participants to secure Lessee’s and Lessor’s payment and performance of their obligations Site under the Operative DocumentsGround Lease. Each of the parties hereto agrees that it will not, nor will it permit any Affiliate to at any time, take any action or fail to take any action with respect to the preparation, filing or audit of any income tax return, including an amended income tax return, to the extent that such action or such failure to take action would be inconsistent with the intention of the parties expressed in this Section 24.1. Nevertheless, The Lessee acknowledges and agrees that none of the LessorAgents, the Collateral Agent, Arranger or any Lender of the Participants has made made, in any capacity, any representations or warranties concerning the tax, accounting or legal consequences or characteristics of the Operative Documents or any aspect of the Overall Transaction and that the Lessee has obtained and relied upon such tax, accounting and legal advice concerning the Operative Documents and the Overall Transaction as it deems appropriate.
(c) Specifically, but without limiting provided, that the generality of subsection (a) of this Section 24.1, Lessee may rely on the Lessor representations and warranties contained in the Operative Documents and the legal opinions issued to it in connection therewith and to which it is an addressee. Each Participant acknowledges and agrees that the Lessee intend and agree that for has not made any representations or warranties concerning the purpose of securing the Lessee’s obligations for the repayment tax, accounting or legal consequences or characteristics of the Obligations, (i) the Lease shall also be deemed to be a security agreement and financing statement within the meaning of Article 9 Operative Documents or any aspect of the Uniform Commercial Code; (ii) Overall Transaction and that such Person has obtained and relied upon such tax, accounting and legal advice concerning the conveyance provided for hereby shall be deemed to be a grant by the Lessee to the Lessor, for the benefit of the Participants, of a Lien on and security interest in all of the Lessee’s present and future right, title and interest in and to the Leased Property Operative Documents and the Lessee CollateralOverall Transaction as it deems appropriate, including but not limited to provided, that each Participant may rely on the Lessee’s leasehold estate therein representations and all proceeds of the conversion, voluntary or involuntary, of the foregoing into cash, investments, securities or other property, whether warranties contained in the form of cash, investments, securities or other property to secure such loans, effective on the date hereof, to have and to hold such interests in the Leased Property Operative Documents and the Lessee Collateral unto the Lessor, for the benefit of the Participants; (iii) the possession by the Lessor of notes and such other items of property as constitute instruments, money, negotiable documents or chattel paper shall be deemed to be “possession by the secured party” for purposes of perfecting the security interest pursuant to Section 9-313 of the UCC; and (iv) notifications to Persons holding such property, and acknowledgments, receipts or confirmations from financial intermediaries, bankers or agents (as applicable) of the Lessee shall be deemed to have been given for the purpose of perfecting such security interest under Applicable Laws. The Lessor and the Lessee shall, to the extent consistent with the Lease, take such actions and execute, deliver, file and record such other documents, financing statements, mortgages and deeds of trust as may be necessary to ensure that, if the Lease were deemed to create a security interest legal opinions issued in the Leased Property and the Lessee Collateral in accordance with this Section 24.1(c), such security interest would be deemed to be a perfected security interest in the Leased Property and the Lessee Collateral with priority over all Liens, other than Permitted Liens, under Applicable Laws and will be maintained as such throughout the Term. Lessee hereby authorizes Lessor to file any and all financing statements covering the Leased Property, the Lessee Collateral or any part thereof that Lessor may requireconnection therewith.
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Nature of Transaction. It is The parties hereto intend that (i) for financial accounting purposes with respect to the intention Lessee, (A) the Lessor will be treated as the owner and lessor of the parties that:
Facility and the Lessee will be treated as the lessee of the Facility under the Lease, and (aB) the Overall Transaction constitutes Investors will be deemed to have an operating lease from Lessor to Lessee for purposes of Lessee’s financial reportingequity investment in the Lessor, including, without limitation, under Financial Accounting Standards Board Statement No. 13;
and (bii) for purposes of all federal, federal and all state and local income, franchise, transfer income tax purposes and other taxes, bankruptcy and bankruptcy, insolvency, conservatorships and receiverships (including the substantive law upon which bankruptcy, conservatorship, insolvency and receivership proceedings are based) real estate law, commercial law and UCC:
purposes, (iA) the Overall Transaction constitutes Lease will be treated as a financing arrangement, (B) the Lessor, the Investors and the Lenders will be deemed lenders making loans to the Lessee in an amount equal to the sum of the Investor Amounts and the outstanding principal amount of the Loans, which deemed loans are secured by the Participants to Facility, (C) the Lessee will be treated as the owner of the Facility for tax purposes and preserves beneficial ownership in the Subject Property in Lessee, Lessee will be entitled to all tax benefits with respect to the Subject Property ordinarily available to owners an owner of property similar to such as the Subject Property Facility for such tax purposes and (D) the obligations of the Lessee to pay Basic the Base Rent shall be treated as payments of principal, if any, and interest to the Participants, and the payment by Lessee of any amounts in respect part of the Lease Balance shall be treated as payments of principal interest and principal, respectively, for federal and state income tax and bankruptcy and commercial law purposes. Nevertheless, each party acknowledges and agrees that no other party has made any representations or warranties to any other party concerning the Participants;
(ii) this Lease grants tax, accounting or legal characteristics of the Operative Documents and that each party has obtained and relied upon such tax, accounting and legal advice concerning the Operative Documents as it deems appropriate. The Lessor shall have a valid and binding security interest or a Lienin and Lien on the Facility, free and clear of all Liens other than Permitted Liens, as the case may be, in the Lessee’s interest in the Leased Property and the other Lessee Collateral in favor of Lessor, and security for the benefit obligations of the Participants, to secure Lessee’s payment and performance of its Obligations; and
(iii) the Security Instruments create Liens on and security interests in the Subject Property and the other Lessee Collateral and Lessor Collateral in favor of the Collateral Agent for the benefit of all of the Participants to secure Lessee’s and Lessor’s payment and performance of their obligations under the Operative Documents. Each Except as otherwise provided by law or in connection with a settlement, compromise or adjudication made under the provisions of Section 9.2(b), each of the parties hereto to this Participation Agreement agrees that it will not, nor will it permit any Affiliate to at any time, directly or indirectly take any action or fail to take any action with respect to the preparation, preparation or filing or audit of any income tax or other tax return, including an amended income tax or other tax return, to the extent that such action or such failure to take action would be inconsistent with the intention of the parties expressed in this Section 24.1. Nevertheless, Lessee acknowledges and agrees that none of the Lessor, the Collateral Agent, Arranger or any Lender has made any representations or warranties concerning the tax, accounting or legal characteristics of the Operative Documents or any aspect of the Overall Transaction and that Lessee has obtained and relied upon such tax, accounting and legal advice concerning the Operative Documents and the Overall Transaction as it deems appropriate3.1.
(c) Specifically, but without limiting the generality of subsection (a) of this Section 24.1, the Lessor and the Lessee intend and agree that for the purpose of securing the Lessee’s obligations for the repayment of the Obligations, (i) the Lease shall also be deemed to be a security agreement and financing statement within the meaning of Article 9 of the Uniform Commercial Code; (ii) the conveyance provided for hereby shall be deemed to be a grant by the Lessee to the Lessor, for the benefit of the Participants, of a Lien on and security interest in all of the Lessee’s present and future right, title and interest in and to the Leased Property and the Lessee Collateral, including but not limited to the Lessee’s leasehold estate therein and all proceeds of the conversion, voluntary or involuntary, of the foregoing into cash, investments, securities or other property, whether in the form of cash, investments, securities or other property to secure such loans, effective on the date hereof, to have and to hold such interests in the Leased Property and the Lessee Collateral unto the Lessor, for the benefit of the Participants; (iii) the possession by the Lessor of notes and such other items of property as constitute instruments, money, negotiable documents or chattel paper shall be deemed to be “possession by the secured party” for purposes of perfecting the security interest pursuant to Section 9-313 of the UCC; and (iv) notifications to Persons holding such property, and acknowledgments, receipts or confirmations from financial intermediaries, bankers or agents (as applicable) of the Lessee shall be deemed to have been given for the purpose of perfecting such security interest under Applicable Laws. The Lessor and the Lessee shall, to the extent consistent with the Lease, take such actions and execute, deliver, file and record such other documents, financing statements, mortgages and deeds of trust as may be necessary to ensure that, if the Lease were deemed to create a security interest in the Leased Property and the Lessee Collateral in accordance with this Section 24.1(c), such security interest would be deemed to be a perfected security interest in the Leased Property and the Lessee Collateral with priority over all Liens, other than Permitted Liens, under Applicable Laws and will be maintained as such throughout the Term. Lessee hereby authorizes Lessor to file any and all financing statements covering the Leased Property, the Lessee Collateral or any part thereof that Lessor may require.
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Sources: Participation Agreement, Lease Agreement and Construction Agency Agreement (Ross Stores Inc)