Ownership of the Property. (a) Lessor and Lessee intend that (i) for financial accounting purposes with respect to Lessee (A) this Lease will be treated as an "operating lease" pursuant to Statement of Financial Accounting Standards No. 13, as amended, (B) Lessor will be the owner and lessor of the Property and (C) Lessee will be the lessee of the Property, but (ii) for federal and all state and local income tax purposes, and for all bankruptcy purposes (including the substantive law upon which bankruptcy proceedings are based), (A) this Lease will be treated as a financing arrangement and (B) Lessee will be treated as the owner of the Property and will be entitled to all tax benefits ordinarily available to owners of property similar to the Property for such tax purposes. Notwithstanding the foregoing, neither party hereto has made, or shall be deemed to have made, any representation or warranty as to the availability of any of the foregoing treatments under applicable accounting rules, tax, bankruptcy, regulatory, commercial or real estate law or under any other set of rules. Lessee shall claim the cost recovery deductions associated with the Property, and Lessor shall not, to the extent not prohibited by Law, take on its tax return a position inconsistent with Lessee's claim of such deductions. (b) In order to secure the obligations of Lessee now existing or hereafter arising under any and all Operative Agreements, pursuant hereto and to the Lease Supplement, Lessee hereby conveys, grants, assigns, transfers, hypothecates, mortgages and sets over to Lessor, for the benefit of the Secured Parties, a security interest (but subject only to the security interest in the assets granted by Lessor in favor of the Agent in accordance with the Security Agreement and the Mortgage Instruments) in and lien on all right, title and interest of Lessee (now owned or hereafter acquired) in and to the Property, to the extent such is personal property and irrevocably grants and conveys a lien, deed of trust or mortgage, as applicable, on all right, title and interest of Lessee (now owned or hereafter acquired) in and to the Property to the extent such is real property. Lessor and Lessee further intend and agree that, for the purpose of securing the obligations of Lessee and/or the Construction Agent now existing or hereafter arising under the Operative Agreements, this Lease as supplemented by the Lease Supplement shall be a security agreement and financing statement within the meaning of Article 9 of the Uniform Commercial Code respecting the Lessee's interest in the Property and all proceeds (including without limitation insurance proceeds thereof) to the extent such is personal property and an irrevocable grant and conveyance of a lien, deed of trust or mortgage, as applicable, on the Lessee's interest in the Property and all proceeds (including without limitation insurance proceeds thereof) to the extent such is real property and constitutes a grant by Lessee to Lessor of a security interest, lien, deed of trust or mortgage, as applicable, in all of Lessee's right, title and interest in and to the Property and all proceeds (including without limitation insurance proceeds thereof) 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, and an assignment of all rents, profits and income produced by the Property. Lessee and Lessor further intend and agree that notifications to Persons holding such proceeds, and acknowledgments, receipts or confirmations from financial intermediaries, bankers or agents (as applicable) of Lessee, when given, shall be deemed to have been given for the purpose of perfecting the foregoing lien, security interest, mortgage lien or deed of trust, as applicable, under applicable law. Lessee shall promptly take such actions as necessary (including without limitation the filing of Uniform Commercial Code Financing Statements, Uniform Commercial Code Fixture Filings and memoranda (or short forms) of this Lease and the Lease Supplement) to ensure that the lien, security interest, mortgage lien or deed of trust, as applicable, in the Property and the other items referenced above will be deemed to be a perfected lien, security interest, mortgage lien or deed of trust, as applicable, of first priority (subject to all liens and security interests granted to the Agent and/or the Primary Financing Parties under the Security Documents (other than this Lease)) under applicable law and will be maintained as such throughout the Term.
Appears in 1 contract
Sources: Lease Agreement (Toys R Us Inc)
Ownership of the Property. (a) Lessor and Lessee intend that (i) ------------------------- for financial accounting purposes with respect to Lessee (A) this Lease will be treated as an "operating lease" pursuant to Statement of Financial Accounting Standards (SFAS) No. 13, as amended, (B) Lessor will be treated as the owner and lessor of the Property and (C) Lessee will be treated as the lessee of the Property, but (ii) for federal and all federal, state and local income tax purposes, and for all bankruptcy remedial purposes (including the substantive law upon which bankruptcy proceedings are based), (A) this Lease will be treated as a financing arrangement arrangement, (B) the Lenders will be treated as senior lenders making loans to Lessee in an amount equal to the Loans, which Loans will be secured by the Property, (C) Lessor will be treated as a subordinated lender making a loan to Lessee in an amount equal to the Investor Contribution, which loan is secured by the Property, and (BD) Lessee will be treated as the owner of the Property and will be entitled to all tax benefits ordinarily available to owners an owner of property similar to like the Property for such tax purposes. Notwithstanding the foregoing, neither party hereto has made, or shall be deemed to have made, any representation or warranty as to the availability of any of the foregoing treatments under applicable accounting rules, tax, bankruptcy, regulatory, commercial or real estate law or under any other set of rules. Lessee shall claim the cost recovery deductions associated with the Property, and Lessor shall not, to the extent not prohibited by Law, take on its tax return a position inconsistent with Lessee's claim of such deductions.
(ba) In order to secure the obligations of Lessee now existing or hereafter arising under any and all Operative Agreements, pursuant hereto and to the Lease Supplement, Lessee hereby conveys, grants, assigns, transfers, hypothecates, mortgages and sets over to Lessor, for the benefit of the Secured Parties, a security interest (but subject only to the security interest in the assets granted by Lessor in favor of the Agent in accordance with the Security Agreement and the Mortgage Instruments) in and lien on all right, title and interest of Lessee (now owned or hereafter acquired) in and to the Property, to the extent such is personal property and irrevocably grants and conveys a lien, deed of trust or mortgage, as applicable, on all right, title and interest of Lessee (now owned or hereafter acquired) in and to the Property to the extent such is real property. Lessor and Lessee further intend and agree that, for the purpose of securing Lessee's obligations for the obligations repayment of Lessee and/or the Construction Agent now existing or hereafter arising under the Operative Agreementsabove-described loans, (i) this Lease as supplemented by the Lease Supplement shall also be deemed to be a security agreement and financing statement within the meaning of Article 9 of the Uniform Commercial Code respecting the Lessee's interest in the Property and all proceeds (including without limitation insurance proceeds thereof) to the extent such is personal a real property and an irrevocable grant and conveyance of a lien, mortgage or deed of trust or mortgagetrust, as applicable, on ; (ii) the Lessee's interest conveyance provided for in the Property and all proceeds (including without limitation insurance proceeds thereof) to the extent such is real property and constitutes Section 2 shall be deemed a grant by Lessee to Lessor of a security interest, lien, deed of trust or mortgage, as applicable, interest in all of and a mortgage lien on the Lessee's right, title and interest in the Properties (including the right to exercise all remedies as are contained in the applicable Mortgage and to Memorandum of Lease upon the Property occurrence of a Lease Event of Default) and all proceeds (including without limitation insurance proceeds thereof) 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, and an assignment for the benefit of the Lessor to secure the Lessee's payment of all rents, profits and income produced amounts owed by the Property. Lessee under this Lease and the other Operative Agreements and Lessor further intend holds title to the Properties so as to create and agree that grant a first lien and prior security interest in each Property (A) pursuant to this Lease for the benefit of the Agent under the Assignment of Lease, to secure to the Agent the obligations of the Lessee under the Lease and (B) pursuant to the Mortgages to secure to the Agent the obligations of the Lessor under the Mortgages and the Notes; (iii) the possession by 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 9-305 of the Uniform Commercial Code; and (iv) notifications to Persons holding such proceedsproperty, and acknowledgmentsacknowledgements, receipts or confirmations from financial intermediaries, bankers or agents (as applicable) of Lessee, when given, Lessee shall be deemed to have been given for the purpose of perfecting the foregoing lien, such security interest, mortgage lien or deed of trust, as applicable, interest under applicable law. Lessor and Lessee shall promptly shall, to the extent consistent with this Lease, take such actions as may be necessary (including without limitation the filing of Uniform Commercial Code Financing Statementsto ensure that, Uniform Commercial Code Fixture Filings and memoranda (or short forms) of if this Lease and the Lease Supplement) were deemed to ensure that the lien, create a security interest, mortgage lien or deed of trust, as applicable, interest in the Property and the other items referenced above will Properties in accordance with this Section, such security interest would be deemed to be a perfected lien, security interest, mortgage lien or deed of trust, as applicable, interest of first priority (subject to all liens and security interests granted to the Agent and/or the Primary Financing Parties under the Security Documents (other than this Lease)) under applicable law and will be maintained as such throughout the Basic Term. Nevertheless, Lessee acknowledges and agrees that none of Lessor, Investors, the Trust Company, Agent, or any Lender has provided or will provide tax, accounting or legal advice to Lessee regarding this Lease, the Operative Agreements or the transactions contemplated hereby and thereby, or made any representations or warranties concerning the tax, accounting or legal characteristics of the Operative Agreements, and that Lessee has obtained and relied upon such tax, accounting and legal advice concerning the Operative Agreements as it deems appropriate.
(b) Lessor and Lessee further intend and agree that in the event 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 Lessee or Lessor, the transactions evidenced by this Lease shall be regarded as loans made by an unrelated third party lender to Lessee.
Appears in 1 contract
Sources: Lease (Sailors Inc)
Ownership of the Property. (a) Lessor and Lessee intend that (i) for financial accounting purposes with respect to Lessee (A) this Lease will be treated as an "“operating lease" ” pursuant to Statement of Financial Accounting Standards No. 13, as amended, (B) Lessor will be treated as the owner and lessor of the Property and (C) Lessee will be treated as the lessee of the Property, but (ii) for federal and all state and local income tax purposes, bankruptcy purposes, regulatory purposes, commercial law and for real estate purposes and all bankruptcy other purposes (including the substantive law upon which bankruptcy proceedings are based), (A) this Lease will be treated as a financing arrangement and (B) Lessee will be treated as the owner of the Property and will be entitled to all tax benefits ordinarily available to owners of property similar to the Property for such tax purposes. Notwithstanding the foregoing, neither party hereto has made, or shall be deemed to have made, any representation or warranty as to the availability of any of the foregoing treatments under applicable accounting rules, tax, bankruptcy, regulatory, commercial or real estate law or under any other set of rules. Lessee shall claim the cost recovery deductions associated with the Property, and Lessor shall not, to the extent not prohibited by Law, take on its tax return a position inconsistent with Lessee's ’s claim of such deductions.
(b) For all purposes described in Section 7.1(a) except for financial accounting purposes, Lessor and Lessee intend this Lease to constitute a finance lease and not a true lease. In order to secure the obligations of Lessee now existing or hereafter arising under any and all Operative Agreements, pursuant hereto and to the Lease SupplementSupplements, Lessee hereby conveys, grants, assigns, transfers, hypothecates, mortgages and sets over to Lessor, for the benefit of the Secured Parties, Lessor a first priority security interest in and lien (but subject only to the security interest and lien in the assets granted by Lessor Lessee in favor of the Agent in accordance with the Security Agreement and the Mortgage InstrumentsDocuments) in and lien on all right, title and interest of Lessee (now owned or hereafter acquired) in and to the Property, to the extent such is personal property and irrevocably grants and conveys a lien, deed of trust or mortgage, as applicable, on all right, title and interest of Lessee (now owned or hereafter acquired) in and to the Property to the extent such is personal property and does hereby irrevocably MORTGAGE, GRANT, BARGAIN, SELL, ALIEN, REMISE, RELEASE, CONFIRM AND CONVEY to Lessor a lien and mortgage (but subject to the lien and mortgage in the assets granted by Lessee in favor of the Agent in accordance with the Security Documents) on all right, title and interest of Lessee (now owned or hereafter acquired) in and to the Property to the extent such is a real property. The security interest, lien and mortgage in the assets granted by Lessee in favor of Lessor are hereby assigned by Lessor to the Agent, for the benefit of all Financing Parties, and/or are subject to additional security interests, liens and mortgages granted by Lessor to the Agent, for the benefit of all Financing Parties. Lessor and Lessee further intend and agree that, for the purpose of securing the obligations of Lessee and/or the Construction Agent now existing or hereafter arising under the Operative Agreements, (i) this Lease as supplemented by the Lease Supplement shall be a security agreement and financing statement within the meaning of Article 9 of the Uniform Commercial Code respecting the Lessee's interest in the Property and all proceeds (including without limitation insurance proceeds thereof) to the extent such is personal property and an irrevocable grant and conveyance of a lien, deed of trust or mortgage, as applicable, lien and mortgage on the Lessee's interest in the Property and all proceeds (including without limitation insurance proceeds thereof) to the extent such is real property and property; (ii) the acquisition of title by Lessor (or to the extent applicable, a leasehold interest pursuant to a Ground Lease) in the Property referenced in Article II constitutes a grant by Lessee to Lessor of a security interest, lien, deed of trust or mortgage, as applicable, lien and mortgage in all of Lessee's ’s right, title and interest in and to the Property and all proceeds (including without limitation insurance proceeds thereof) 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, and an assignment of all rents, profits and income produced by the Property. Lessee ; and Lessor further intend and agree that (iii) notifications to Persons holding such proceedsproperty, and acknowledgments, receipts or confirmations from financial intermediaries, bankers or agents (as applicable) of Lessee, when given, Lessee shall be deemed to have been given for the purpose of perfecting the foregoing such lien, security interest, interest and mortgage lien or deed of trust, as applicable, under applicable law. Lessee shall promptly take such actions as necessary Lessor may reasonably request (including without limitation the filing of Uniform Commercial Code Financing Statements, Uniform Commercial Code Fixture Filings and memoranda (or short forms) of this Lease and the various Lease SupplementSupplements) to ensure that the lien, security interest, lien and mortgage lien or deed of trust, as applicable, in the Property and the other items referenced above will be deemed to be a perfected lien, security interest, interest and mortgage lien or deed of trust, as applicable, of first priority (subject to all liens and security interests granted to the Agent and/or the Primary Financing Parties under the Security Documents (other than this Lease)) under applicable law and will be maintained as such throughout the Term. The security agreements, financing statements, liens, security interests, deeds of trust and mortgages provided in clauses (i), (ii) and (iii) hereof shall be individually defined as the “Security Right”, and individual collateral secured by the corresponding Security Right as provided in clauses (i), (ii) and (iii) hereof shall be defined herein as the “Specified Collateral”.
(c) In the event that Lessee’s interest in the Property as provided in this Lease is recharacterized by a court of competent jurisdiction, and last resort in the case of an appeal, as a fee interest subject to a grant of an equitable mortgage by Lessee or as a financing instrument provided in favor of Lessee or otherwise, and not as a leasehold estate in substantial conformity with the terms and conditions contained in this Lease, then Lessee and Lessor agree that this Lease shall constitute a Security Right with respect to the applicable Specified Collateral provided in clauses (i), (ii) and (iii) of Section 7.1(b) and shall be enforceable in accordance with the terms and conditions contained in this Lease to the extent that such terms and conditions may be enforceable pursuant to the determination of such court of competent jurisdiction. Lessor and Lessee further agree that the provisions of this Section 7.1 are for the benefit of, and may be enforceable by Lessor, Lessee and each of the Financing Parties.
Appears in 1 contract
Sources: Lease Agreement (Convergys Corp)
Ownership of the Property. (a) Lessor The Property is, and Lessee intend that (i) for financial accounting purposes with respect throughout the Term shall continue to Lessee (A) this Lease will be treated as an "operating lease" pursuant be, the property of Landlord. Tenant has only the right to Statement of Financial Accounting Standards No. 13, as amended, (B) Lessor will be the owner exclusive possession and lessor of the Property and (C) Lessee will be the lessee use of the Property, but upon the terms and subject to the conditions set forth in this Lease. At the expiration or termination of this Lease, the following provisions shall apply:
(iia) Tenant or Subtenant shall, for federal no additional consideration, sell, transfer and all state and local income tax purposesconvey to Landlord or Landlord’s designee, and for all bankruptcy purposes (including the substantive law upon which bankruptcy proceedings are based), (A) this Lease will be treated Inventory owned by Tenant as a financing arrangement and (B) Lessee will be treated as the owner of the Property termination date and will be entitled to all tax benefits ordinarily available to owners of property similar to located at the Property for such tax purposes. Notwithstanding the foregoing, neither party hereto has made, or shall be deemed to have made, any representation or warranty as to the availability of any of the foregoing treatments under applicable accounting rules, tax, bankruptcy, regulatory, commercial or real estate law or under any other set of rules. Lessee shall claim the cost recovery deductions associated with the Property, and Lessor shall not, to the extent not prohibited by Law, take on its tax return a position inconsistent with Lessee's claim of such deductionsFacilities.
(b) In Tenant or Subtenant shall, for no additional consideration, sell, transfer and convey to Landlord or Landlord’s designee, Tenant’s Personal Property (the “Transferred Tenant’s Personal Property”) and, relative to any Tenant property that is leased by Tenant, Tenant agrees, at its expense, to use commercially reasonable efforts to acquire title thereto, in order to secure be able to convey title thereto to Landlord as provided in this Section 8.1(b) or, if Tenant is unable to convey title thereto to Landlord, at Landlord’s request, use commercially reasonable efforts to assign the obligations of Lessee now existing lease for such property to Landlord or hereafter arising under any and all Operative AgreementsLandlord’s designee.
(c) Subject to applicable Legal Requirements, pursuant hereto and Tenant or Subtenant shall permit Landlord or Landlord’s designee to the Lease Supplement, Lessee hereby conveys, grants, assigns, transfers, hypothecates, mortgages and sets over to Lessor, for the benefit make copies of the Secured Parties, Records.
(d) Tenant or Subtenant shall execute a security interest (but subject only to the security interest in the assets granted by Lessor ▇▇▇▇ of Sale in favor of the Agent in accordance with the Security Agreement and the Mortgage Instruments) in and lien on all right, title and interest of Lessee (now owned or hereafter acquired) in and to the Property, to the extent such is personal property and irrevocably grants and conveys a lien, deed of trust or mortgage, as applicable, on all right, title and interest of Lessee (now owned or hereafter acquired) in and to the Property to the extent such is real property. Lessor and Lessee further intend and agree that, for the purpose of securing the obligations of Lessee and/or the Construction Agent now existing or hereafter arising under the Operative Agreements, this Lease as supplemented by the Lease Supplement shall be a security agreement and financing statement within the meaning of Article 9 of the Uniform Commercial Code respecting the Lessee's interest in the Property and all proceeds (including without limitation insurance proceeds thereof) to the extent such is personal property and an irrevocable grant and conveyance of a lien, deed of trust or mortgage, as applicable, on the Lessee's interest in the Property and all proceeds (including without limitation insurance proceeds thereof) to the extent such is real property and constitutes a grant by Lessee to Lessor of a security interest, lien, deed of trust or mortgage, as applicable, in all of Lessee's right, title and interest in and to the Property and all proceeds (including without limitation insurance proceeds thereof) of the conversion, voluntary or involuntary, of the foregoing into cash, investments, securities or other property, whether Landlord in the form of cash, investments, securities or other property, and an assignment of all rents, profits and income produced by the Property. Lessee and Lessor further intend and agree that notifications to Persons holding such proceeds, and acknowledgments, receipts or confirmations from financial intermediaries, bankers or agents (as applicable) of Lessee, when given, shall be deemed to have been given for the purpose of perfecting the foregoing lien, security interest, mortgage lien or deed of trust, as applicable, under applicable law. Lessee shall promptly take such actions as necessary (including without limitation the filing of Uniform Commercial Code Financing Statements, Uniform Commercial Code Fixture Filings and memoranda (or short forms) of this Lease and the Lease Supplement) to ensure that the lien, security interest, mortgage lien or deed of trust, as applicable, in the Property and the other items referenced above will be deemed to be a perfected lien, security interest, mortgage lien or deed of trust, as applicable, of first priority (subject to all liens and security interests granted Exhibit C with respect to the Agent and/or assets being conveyed to Landlord or Landlord’s designee pursuant to this Section 8.1.
(e) Except as otherwise specifically set forth in this Section 8.1, Landlord shall not succeed to the Primary Financing Parties under ownership of Tenant’s Excluded Property at the Security Documents (other than this end of the term of the Lease)) under applicable law and will be maintained as such throughout the Term.
Appears in 1 contract
Ownership of the Property. (a) Lessor Landlord and Lessee intend Tenant acknowledge and agree that they have executed and delivered this Master Lease with the understanding that (i) for financial accounting purposes with respect the Property is the property of Landlord; (ii) Tenant has only the right to Lessee (A) this Lease will be treated as an "operating lease" pursuant to Statement of Financial Accounting Standards No. 13, as amended, (B) Lessor will be the owner possession and lessor use of the Property upon the terms and conditions of this Master Lease; (iii) this Master Lease is a “true lease,” is not a financing lease, capital lease, mortgage, equitable mortgage, deed of trust, trust agreement, security agreement or other financing or trust arrangement, or any other agreement or arrangement other than a “true lease,” and the economic realities of this Master Lease are those of a “true lease”; (iv) the business relationship created by this Master Lease and any related documents is, and at all times shall remain, that of landlord and tenant, and shall not create or constitute the relationship of borrower and lender; (v) this Master Lease has been entered into by each party in reliance upon the mutual covenants, conditions and agreements contained herein; and (Cvi) Lessee will be the lessee none of the Propertycovenants, but (ii) for federal conditions or agreements contained herein is intended, nor shall the same be deemed or construed, to create a partnership between Landlord and all state and local income tax purposesTenant, and for all bankruptcy purposes (including the substantive law upon which bankruptcy proceedings are based)to make them joint venturers, (A) this Lease will be treated as a financing arrangement and (B) Lessee will be treated as the owner to make Tenant an agent, legal representative, partner, subsidiary or employee of the Property and will be entitled to all tax benefits ordinarily available to owners of property similar to the Property for such tax purposes. Notwithstanding the foregoing, neither party hereto has madeLandlord, or shall be deemed to have mademake Landlord in any way responsible for the debts, any representation obligations or warranty as to the availability losses of any of the foregoing treatments under applicable accounting rules, tax, bankruptcy, regulatory, commercial or real estate law or under any other set of rules. Lessee shall claim the cost recovery deductions associated with the Property, and Lessor shall not, to the extent not prohibited by Law, take on its tax return a position inconsistent with Lessee's claim of such deductionsTenant.
(b) In order Tenant represents and warrants that Tenant has independently verified that the transaction contemplated by this Master Lease complies with all regulations applicable to secure the obligations Tenant’s business, including without limitation any regulations applicable to the sale of Lessee now existing the Property by Tenant to Landlord pursuant to that certain Agreement for Purchase and Sale of Property (the “Sale Agreement”) and subsequent leaseback of the Property by Tenant as contemplated herein (collectively, the “Sale-Leaseback Regulations”). Tenant has obtained all required regulatory approvals as may be necessary or hereafter arising under appropriate in connection with the transaction contemplated by the Sale Agreement and this Master Lease, and Tenant is entering the transaction contemplated by the Sale Agreement and this Master Lease solely relying on, and after full review of, their own due diligence and not on the basis of any statement made by Landlord or any Indemnified Parties. Neither Landlord nor any Indemnified Parties has made any representation or warranty to Tenant as it relates to the Sale-Leaseback Regulations or the compliance of this transaction with any of the Sale-Leaseback Regulations. To the fullest extent permitted by applicable law, Tenant shall indemnify and hold harmless Landlord and the Indemnified Parties from and against any and all Operative Agreementsclaims, pursuant hereto losses, damages, expenses and other liabilities arising with respect to the Lease Supplement, Lessee hereby conveys, grants, assigns, transfers, hypothecates, mortgages and sets over Sale-Leaseback Regulations (collectively referred to Lessor, for the benefit of the Secured Parties, a security interest (but subject only to the security interest in the assets granted by Lessor in favor of the Agent in accordance with the Security Agreement and the Mortgage Instruments) in and lien on all right, title and interest of Lessee (now owned or hereafter acquired) in and to the Property, to the extent such is personal property and irrevocably grants and conveys a lien, deed of trust or mortgage, as applicable, on all right, title and interest of Lessee (now owned or hereafter acquired) in and to the Property to the extent such is real property. Lessor and Lessee further intend and agree that, for the purpose of securing the obligations of Lessee and/or the Construction Agent now existing or hereafter arising under the Operative Agreements, this Lease as supplemented by the Lease Supplement shall be a security agreement and financing statement within the meaning of Article 9 of the Uniform Commercial Code respecting the Lessee's interest in the Property and all proceeds (including without limitation insurance proceeds thereof) to the extent such is personal property and an irrevocable grant and conveyance of a lien, deed of trust or mortgage, as applicable, on the Lessee's interest in the Property and all proceeds (including without limitation insurance proceeds thereof) to the extent such is real property and constitutes a grant by Lessee to Lessor of a security interest, lien, deed of trust or mortgage, as applicable, in all of Lessee's right, title and interest in and to the Property and all proceeds (including without limitation insurance proceeds thereof) 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, and an assignment of all rents, profits and income produced by the Property. Lessee and Lessor further intend and agree that notifications to Persons holding such proceeds, and acknowledgments, receipts or confirmations from financial intermediaries, bankers or agents (as applicable) of Lessee, when given, shall be deemed to have been given for the purpose of perfecting the foregoing lien, security interest, mortgage lien or deed of trust, as applicable, under applicable law. Lessee shall promptly take such actions as necessary (including without limitation the filing of Uniform Commercial Code Financing Statements, Uniform Commercial Code Fixture Filings and memoranda (or short forms) of this Lease and the Lease Supplement) to ensure that the lien, security interest, mortgage lien or deed of trust, as applicable, in the Property and the other items referenced above will be deemed to be a perfected lien, security interest, mortgage lien or deed of trust, as applicable, of first priority (subject to all liens and security interests granted to the Agent and/or the Primary Financing Parties under the Security Documents (other than this Lease)) under applicable law and will be maintained as such throughout the Term.as
Appears in 1 contract
Ownership of the Property. (a) Lessor and Lessee intend that It is the intent of the parties hereto that: (i) for financial accounting purposes with respect to Lessee (A) this the Lease will be treated as constitutes an "operating lease" pursuant to Statement of Financial Accounting Standards No. 13, as amendedamended and interpreted, (B) Lessor will be the owner and lessor for purposes of the Property Lessee's financial reporting, and (C) Lessee will be the lessee of the Property, but (ii) for federal and all state purposes of federal, state, and local income tax purposes, or franchise taxes (and for all bankruptcy purposes (including any other tax imposed on or measured by income) and documentary, intangibles and transfer taxes, the substantive law upon which bankruptcy proceedings are based), (A) this transaction contemplated hereby and by the Lease will be treated as is a financing arrangement and (B) preserves ownership in the Property in the Lessee. The parties shall take no action inconsistent with such intention. Nevertheless, the Lessee will be treated as acknowledges and agrees that neither the owner Agent, the Lessor nor any Participant has made any representations or warranties to the Lessee concerning the tax, accounting or legal characteristics of the Property Operative Documents and will be entitled to all tax benefits ordinarily available to owners of property similar to that the Property for Lessee has obtained and relied upon such tax purposes. Notwithstanding the foregoing, neither party hereto has made, or shall be deemed to have made, any representation or warranty as to the availability of any of the foregoing treatments under applicable accounting rules, tax, bankruptcy, regulatory, commercial or real estate law or under any other set of rules. Lessee shall claim accounting and legal advice concerning the cost recovery deductions associated with the Property, and Lessor shall not, to the extent not prohibited by Law, take on its tax return a position inconsistent with Lessee's claim of such deductionsOperative Documents as it deems appropriate.
(b) In order Anything to secure the contrary in the Operative Documents notwithstanding, the Lessor and the Lessee intend and agree that with respect to the nature of the transactions evidenced by the 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 or any foreign country affecting the Lessee, the Lessor, or any Participant or any enforcement or collection actions arising out of or relating to bankruptcy or insolvency laws, (i) the transactions evidenced by the Lease shall be deemed to be loans made by the Lessor and the Participants to the Lessee secured by the Property, (ii) the obligations of the Lessee now existing under the Lease to pay Basic Rent, Supplemental Rent, Asset Termination Value or hereafter arising under any Existing Facility and all Operative Agreements, Tenant Improvements Residual Value Guarantee Amount or Expansion Improvements Residual Value Guarantee Amount in connection with a purchase of the Property pursuant hereto and to the Lease Supplementshall be treated as payments of interest on (with respect to Rent), Lessee hereby conveysand principal of (with respect to all other such payments), grantsrespectively, assignsloans from the Lessor and the Participants to the Lessee, transfersand (iii) the Lease grants a security interest and mortgage or deed of trust lien, hypothecatesas the case may be, mortgages in the Property to the Lessor and sets over the Lease has been assigned by the Lessor to Lessor, the Agent for the benefit of the Secured PartiesParticipants to secure the Lessee's performance under and payment of all amounts under the Lease and the other Operative Documents.
(c) Specifically, a security interest without limiting the generality of SUBSECTIONS (but subject only a) AND (b) of this SECTION 5, the parties hereto intend and agree that, for purposes of filing federal, state and local returns, reports and other statements relating to income or franchise taxes, or any other taxes imposed upon or measured by income, (i) the security interest in the assets granted by Lessor in favor Lessee shall be entitled to take any deduction, credit, allowance or other reporting position consistent with its status as owner of the Agent in accordance Property; and (ii) neither the Lessor nor any Participant shall take an initial position on its federal, state and local returns, reports and other statements relating to income or franchise taxes that is inconsistent with the Security Lessee's status as owner of the Property.
(d) If the transactions evidenced by this Agreement and the Mortgage Instrumentsother Operative Documents can no longer be treated as an operating lease pursuant to GAAP for accounting purposes, all provisions in the Operative Documents limiting the Lessee's obligation to pay the Asset Termination Value (including the Remarketing Option) on the Expiration Date shall no longer apply. If any such change in accounting treatment shall occur, the Lessee, the Lessor, the Agent and the Participants shall negotiate in good faith to enter into such amendments to the Operative Documents as may be reasonably necessary or desirable to reflect the foregoing.
(e) In the event that, after the date hereof, the UCC as enacted and in effect in any applicable jurisdiction shall be revised or amended, the Lessee, the Lessor, the Agent and the Participants shall negotiate in good faith to enter into such amendments to the Operative Documents as may be reasonably necessary or desirable to effect the intended purposes of the Lease and the other Operative Documents in light of the effect of such revisions or amendments.
(f) Specifically, without limiting the generality of subsection (b) of this SECTION 5, in order to secure the Lessee's obligation to pay Basic Rent, Supplemental Rent, Asset Termination Value, the Residual Value Guarantee Amount, the Purchase Option Price, and all other obligations owing by the Lessee under the Operative Documents (the "OBLIGATIONS"), the Lessee hereby grants, remises, releases, aliens, conveys, transfers, mortgages, assigns and warrants to the Trustee for the benefit of the Lessor, WITH POWER OF SALE and right of entry and possession, all of the Lessee's right, title and interest in and lien on to the following (collectively, the "COLLATERAL"):
(i) all right, title and interest of the Lessee (now owned or hereafter acquired) in and to the Property, to including, without limitation, the extent such is personal property described on Schedule 1 hereto, or any part thereof and irrevocably grants the reversions, remainders, rents, issues and conveys a lien, deed of trust or mortgage, as applicable, on profits thereof;
(ii) all right, title and interest of the Lessee (now owned or hereafter acquired) in and to all Fixtures and Improvements and all substitutes and replacements of, and all additions and improvements to, the Improvements and the Fixtures, subsequently acquired by the Lessee or constructed, assembled or placed by Lessee on the Land Interest, immediately upon such acquisition, release, construction, assembling or placement, including, without limitation, any and all building materials whether stored at the Property or offsite, and, in each such case, without any further mortgage, deed of trust, conveyance, assignment or other act by the Lessee;
(iii) all right, title and interest of the Lessee in, to and under all books and records relating to or used in connection with the operation of the Property or the Fixtures or any part thereof and the Equipment (other than any records related to the business conducted from the Property);
(iv) all right, title and interest of the Lessee in and to all insurance policies (including title insurance policies) required to be maintained by the Lessee pursuant to this Lease, including the right to collect and receive such proceeds; and all awards and other compensation, including the interest payable thereon and the right to collect and receive the same, made to the owner of the Property for the taking by eminent domain, condemnation or otherwise, of all or any part of the Property or any easement or other right therein, all to the extent the same are assignable by the Lessee;
(v) all right, title and interest of the Lessee in and to (i) all governmental consents, licenses, building permits, certificates of occupancy and other governmental approvals relating to construction, completion, occupancy, use or operation of the Property or any part thereof, PROVIDED that any such consent, license, permit, certificate or approval that by its terms or by operation of law would become void, voidable, terminable or revocable or would result in a breach or default thereunder or under any applicable law if subjected to the lien granted pursuant to this CLAUSE (v) is real property. expressly excepted and excluded from this CLAUSE (v) to the extent necessary to avoid such result, and (ii) all plans and specifications relating to the Property, in each case to the extent assignable;
(vi) all Rent and all other rents, payments, purchase prices, receipts, revenues, issues and profits payable under the Lease or pursuant to any other lease with respect to the Property;
(vii) all proceeds, both cash and noncash, of the foregoing and any items acquired in substitution of, or replacement for, any of the foregoing; and
(viii) all right, title and interest of the Lessee in and to all of the Operative Documents, including, without limitation, this Lease Supplement, the Restated Lease Supplement and the Equipment Schedules, regardless of whether the interest of the Lessee therein is that of lessee, sublessee, sublessor or borrower.
(g) Specifically, without limiting the generality of subsection (b) of this SECTION 5, the Lessor and the Lessee further intend and agree that, for the purpose of securing the Lessee's obligations for the repayment of Lessee and/or the Construction Agent now existing or hereafter arising under loans from the Operative AgreementsLessor and the Participants to the Lessee, this Lease as supplemented by (i) the Lease Supplement shall also be deemed to be a security agreement and financing statement within the meaning of Article 9 of the Uniform Commercial Code respecting (and specifically, a construction mortgage, as said term is defined in Section 9-313(1)(c) of the Lessee's interest in the Property Uniform Commercial Code), a fixture filing and all proceeds (including without limitation insurance proceeds thereof) to the extent such is personal a real property and an irrevocable grant and conveyance of a lien, deed of trust or mortgage, as applicable, on the Lessee's interest in the Property and all proceeds (including without limitation insurance proceeds thereof) to the extent such is real property and constitutes a grant by Lessee to Lessor of a security interest, lien, deed of trust or mortgage, as applicable, in all of Lessee's right, title and interest in and to the Property and all proceeds (including without limitation insurance proceeds thereof) of the conversion, voluntary or involuntary, of Property; (ii) the foregoing into cash, investments, securities or other property, whether in the form of cash, investments, securities or other property, and an assignment of all rents, profits and income produced by the Property. Lessee and Lessor further intend and agree that notifications to Persons holding such proceeds, and acknowledgments, receipts or confirmations from financial intermediaries, bankers or agents (as applicable) of Lessee, when given, shall be deemed to have been given conveyance provided for the purpose of perfecting the foregoing lien, security interest, mortgage lien or deed of trust, as applicable, under applicable law. Lessee shall promptly take such actions as necessary (including without limitation the filing of Uniform Commercial Code Financing Statements, Uniform Commercial Code Fixture Filings and memoranda (or short forms) of this Lease and the Lease Supplement) to ensure that the lien, security interest, mortgage lien or deed of trust, as applicable, in the Property and the other items referenced above will be deemed to be a perfected lien, security interest, mortgage lien or deed of trust, as applicable, of first priority (subject to all liens and security interests granted to the Agent and/or the Primary Financing Parties under the Security Documents (other than this Lease)) under applicable law and will be maintained as such throughout the Term.in
Appears in 1 contract
Ownership of the Property. (a) Lessor and Lessee intend that (i) for financial accounting purposes with respect to Lessee (A) this Lease will be treated as an "“operating lease" ” pursuant to Statement of Financial Accounting Standards No. 13, as amended, (B) Lessor will be the owner and lessor of the Property and (C) Lessee will be the lessee of the Property, but (ii) for federal and all state and local income tax purposes, and for all bankruptcy purposes (including the substantive law upon which bankruptcy proceedings are based), (A) this Lease will be treated as a financing arrangement and (B) Lessee will be treated as the owner of the Property and will be entitled to all tax benefits ordinarily available to owners of property similar to the Property for such tax purposes. Notwithstanding the foregoing, neither party hereto has made, or shall be deemed to have made, any representation or warranty as to the availability of any of the foregoing treatments under applicable accounting rules, tax, bankruptcy, regulatory, commercial or real estate law bankruptcy or under any other set of rules. Lessee shall claim the cost recovery deductions associated with the Property, and Lessor shall not, to the extent not unless prohibited by Law, take on its tax return a position inconsistent with Lessee's ’s claim of such deductions. It is the further intent of Lessor and Lessee that this Lease and the transaction evidenced by the Operative Agreements conform with and satisfy the requirements of, to the extent applicable, FASB Interpretation No. 46, Emerging Issues Task Force, 1997\Issue 97-1 and Emerging Issues Task Force, 1997\Issue 97-10.
(b) In order to secure the obligations of Lessee now existing or hereafter arising under any and all Operative Agreements, pursuant hereto and Obligations (subject to the Lease Supplementprovisos to this sentence), Lessee hereby conveys, grants, assigns, transfers, hypothecates, mortgages and sets over to Lessor, for the benefit of the Secured Parties, a first priority security interest (but subject only to the security interest in the assets granted by Lessor in favor of the Agent in accordance with the Security Agreement and the Mortgage Instruments) in and lien on all right, title and interest of Lessee (now owned or hereafter acquired) in and to the Property, to the extent such is personal property Personal Property Collateral and irrevocably grants and conveys a lien, deed of trust or mortgageunto L▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, as applicabletrustee (“Trustee”), with the POWER OF SALE for the benefit of Lessor (on behalf of the Secured Parties), all rightLessee Real Property Collateral TO HAVE AND TO HOLD the foregoing rights, title interests and properties, and all rights, estates, powers and privileges appurtenant thereto, as to Trustee, and her successors or substitutes in this trust, to her or their successors and assigns, in trust, however, upon the terms, provisions and conditions herein set forth; provided, however, the total principal amount of the Obligations (including without limitation any and all future advances) may increase or decrease from time to time; provided, further, that the aggregate principal of the Obligations (including without limitation any and all future advances) secured hereby (which includes all current and future Obligations) shall not exceed at any one time the amount of THIRTY-TWO MILLION AND NO/100 DOLLARS ($32,000,000.00), plus interest of Lessee (now owned or hereafter acquired) in and yield thereon, and other amounts, payments and premiums due on account thereof, and all other Obligations owing to the Property Secured Parties payable pursuant to or secured by the extent such is real propertyOperative Agreements. Lessor and Lessee further intend and agree that, for the purpose of securing the obligations of Lessee and/or Obligations (subject to the Construction Agent now existing or hereafter arising under the Operative Agreementsprovisos to this sentence), (i) this Lease as supplemented by the Lease Supplement Agreement shall be a security agreement personal property financing statement and fixture financing statement within the meaning of Article 9 of the applicable Uniform Commercial Code respecting the Lessee's interest in the Lessee Personal Property and all proceeds (including without limitation insurance proceeds thereof) to the extent such is personal property Collateral and an irrevocable grant and conveyance of a lien, deed of trust or mortgage, as applicable, on unto the Lessee's interest in the Property and all proceeds (including without limitation insurance proceeds thereof) to the extent such is real property and constitutes a grant by Lessee to Lessor of a security interest, lien, deed of trust or mortgage, as applicable, in all of Lessee's right, title and interest in and to the Property and all proceeds (including without limitation insurance proceeds thereof) Trustee 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, Lessee Real Property Collateral and an assignment of all rents, profits and income produced by the Property. Lessee and Lessor further intend and agree that (ii) notifications given to Persons holding such proceedsany Lessee Personal Property Collateral or Lessee Real Property Collateral, and acknowledgments, receipts or confirmations of such notifications from financial intermediaries, bankers or agents (as applicable) of Lessee, when given, Lessee shall be deemed to have been given for the purpose of perfecting the foregoing liensuch liens, security interest, mortgage lien or deed interests and deeds of trust, as applicable, trust to the extent such notifications are effective under applicable law; provided, however, the total principal amount of the Obligations (including without limitation any and all future advances) may increase or decrease from time to time; provided, further, that the aggregate principal of the Obligations (including without limitation any and all future advances) secured hereby (which includes all current and future Obligations) shall not exceed at any one time the amount of THIRTY-TWO MILLION AND NO/100 DOLLARS ($32,000,000.00), plus interest and yield thereon, and other amounts, payments and premiums due on account thereof, and all other Obligations owing to the Secured Parties payable pursuant to or secured by the Operative Agreements. Lessee shall promptly take such actions as necessary (including without limitation the filing of Uniform Commercial Code Primary Financing Statements, Uniform Commercial Code Fixture Filings and memoranda (or short forms) of this Lease Party Financing Statements and the Lease Supplementvarious other filings reasonably requested by Lessor) to ensure that the lienliens, security interest, mortgage lien or deed interests and deeds of trust, as applicable, trust in the Lessee Personal Property Collateral and the other items referenced above will Lessee Real Property Collateral granted by this Section 7.1(b) shall be deemed to be a perfected lienliens, security interest, mortgage lien interests or deed deeds of trust, as applicable, trust of first priority (subject only to all liens Permitted Liens and security interests granted to the Agent and/or the Primary Financing Parties under the Security Documents (other than this Lease)Lessor Liens) under applicable law and will be maintained as such throughout the Termterm of this Agreement. To the extent this Lease shall act as a deed of trust (rather than a lease), the provisions of the Lease Addendum-Deed of Trust attached hereto shall also apply; provided, in the event of a conflict, the terms of this Lease or the Lease Addendum-Deed of Trust, as the case may be, which provide the most expansive rights to Lessor shall govern.
Appears in 1 contract
Ownership of the Property. (a) Lessor and Lessee intend It is the intent of the parties hereto that (i) for financial accounting purposes with respect to Lessee (A) this the Lease will be treated as constitutes an "operating lease" pursuant to Statement of Financial Accounting Standards No. 13, as amended, (B) Lessor will be the owner and lessor for purposes of the Property bankruptcy and (C) Lessee will be the lessee of the Propertyfederal, but (ii) for federal and all state and local income tax purposeslaw, and for all bankruptcy purposes (including the substantive law upon which bankruptcy proceedings are based), (A) this Lease will transaction contemplated hereby is a financing arrangement. The parties further intend that Lessee shall be treated as a financing arrangement and (B) Lessee will be treated as the owner of the Property for income tax purposes and will shall be entitled to all tax benefits ordinarily available to owners of property similar to the Property deductions for such tax purposesdepreciation thereof. Notwithstanding the foregoing, neither party hereto has made, or shall be deemed to have made, any representation or warranty as to the availability of any of the foregoing treatments under applicable accounting rules, tax, bankruptcy, regulatory, commercial or real estate law or under any other set of rules. Lessee shall claim the cost recovery deductions associated with the Property, and Lessor shall not, to the extent not prohibited by Law, take on its tax return a position no action inconsistent with Lessee's claim of such deductionstreatment.
(b) In order It is the intent of the parties hereto that (i) for all purposes other than financial accounting purposes, the obligations of the Lessee under this Lease to pay Capitalized Interest or Basic Rent and Supplemental Rent or Lease Balance in connection with any purchase of the Property pursuant to this Lease shall be treated as payments of interest on and principal of, respectively, loans from the Lessor to the Lessee, and (ii) this Lease grants to the Lessor a security interest and/or deed of trust/mortgage on the portions of the Property which constitute interests in real property, and a security interest and lien on the portions of the Property which do not constitute interests in real property, in each case to secure the obligations Lessee's performance under and payment of all amounts under this Lease and the other Operative Documents.
(c) Specifically, without limiting the generality of subsection (a) of this Section 30.1, the Lessor and the Lessee now existing intend and agree that in the event of any insolvency or hereafter arising 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 and all Operative Agreementsthe Lessor, pursuant hereto and the transactions evidenced by this Lease are loans made by the Lessor as unrelated third party lender to the Lease Supplement, Lessee secured by the Property (it being understood that the Lessee hereby conveysand pursuant to the terms of the Memorandum of Lease, mortgages, grants, bargains, sells, releases, confirms, conveys, assigns, transfers, hypothecates, mortgages transfers and sets over to the Lessor, for the benefit of the Secured Parties, and grants a security interest in, the Property (but subject only consisting of a fee mortgage with respect to the security interest in the assets granted by Lessor in favor of the Agent in accordance with the Security Agreement and the Mortgage Instruments) in and lien on all right, title and interest of the Lessee (now owned or hereafter acquired) in and to the Propertyfee title to, and reversionary interest in, the Land and Improvements) and a leasehold mortgage on the Lessee's leasehold estate under this Lease, all to secure such loans, effective on the date hereof, to the extent such is personal property and irrevocably grants and conveys a lien, deed of trust or mortgage, as applicable, on all right, title and interest of Lessee (now owned or hereafter acquired) in have and to hold such interests in the Property to unto the extent such is real property. Lessor and its successors and assigns, forever, provided always that these presents are upon the express condition that, if all amounts due under this Lease shall have been paid and satisfied in full, then this instrument and the estate hereby granted shall cease and become void.
(d) Specifically, but without limiting the generality of subsection (b) of this Section 30.1, the Lessor and the Lessee further intend and agree that, with respect to that portion of the Property constituting personal property, for the purpose of securing the Lessee's obligations for the repayment of Lessee and/or the Construction Agent now existing or hereafter arising under above-described loans from the Operative AgreementsLessor to the Lessee, (i) this Lease as supplemented by and the Memorandum of Lease Supplement shall also be deemed to be a security agreement and financing statement within the meaning of Article 9 of the Uniform Commercial Code respecting Code; (ii) the conveyance provided for hereby and by the Memorandum of Lease shall be deemed to be a grant by the Lessee to the Lessor of a lien and security interest in all of the Lessee's interest in the Property present and all proceeds (including without limitation insurance proceeds thereof) to the extent such is personal property and an irrevocable grant and conveyance of a lien, deed of trust or mortgage, as applicable, on the Lessee's interest in the Property and all proceeds (including without limitation insurance proceeds thereof) to the extent such is real property and constitutes a grant by Lessee to Lessor of a security interest, lien, deed of trust or mortgage, as applicable, in all of Lessee's future right, title and interest in and to such portion of the Property Property, including but not limited to the Lessee's leasehold estate therein and all proceeds (including without limitation insurance proceeds thereof) 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 propertyproperty to secure such loans, effective on the date hereof, to have and an assignment of to hold such interests in the Property unto the Lessor and its successors and assigns, forever, provided always that these presents are upon the express condition that, if all rentsamounts due under this Lease shall have been paid and satisfied in full, profits then this instrument and income produced the estate hereby granted shall cease and become void; (iii) the possession by the Property. Lessee Lessor of notes and Lessor further intend 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 9-305 of the Uniform Commercial Code; and agree that (iv) notifications to Persons holding such proceedsproperty, and acknowledgments, receipts or confirmations from financial intermediaries, bankers or agents (as applicable) of Lessee, when given, the Lessee shall be deemed to have been given for the purpose of perfecting the foregoing lien, security interest, mortgage lien or deed of trust, as applicable, under applicable law. Lessee shall promptly take such actions as necessary (including without limitation the filing of Uniform Commercial Code Financing Statements, Uniform Commercial Code Fixture Filings and memoranda (or short forms) of this Lease and the Lease Supplement) to ensure that the lien, security interest, mortgage lien or deed of trust, as applicable, in the Property and the other items referenced above will be deemed to be a perfected lien, security interest, mortgage lien or deed of trust, as applicable, of first priority (subject to all liens and security interests granted to the Agent and/or the Primary Financing Parties under the Security Documents (other than this Lease)) under applicable law and will be maintained as such throughout the Term.security
Appears in 1 contract
Sources: Lease and Security Agreement (Alternative Living Services Inc)
Ownership of the Property. (a) Lessor The Property is, and Lessee intend that (i) for financial accounting purposes with respect throughout the Term shall continue to Lessee (A) this Lease will be treated as an "operating lease" pursuant be, the property of Landlord. Tenant has only the right to Statement of Financial Accounting Standards No. 13, as amended, (B) Lessor will be the owner exclusive possession and lessor of the Property and (C) Lessee will be the lessee use of the Property, but upon the terms and subject to the conditions set forth in this Lease. At the expiration or termination of this Lease, the following provisions shall apply:
(iia) Tenant shall, for federal no additional consideration, sell, transfer and all state and local income tax purposesconvey to Landlord or Landlord’s designee, and for all bankruptcy purposes (including the substantive law upon which bankruptcy proceedings are based), (A) this Lease will be treated Inventory owned by Tenant as a financing arrangement and (B) Lessee will be treated as the owner of the termination date and located at the Facility.
(b) Tenant shall, for no additional consideration, sell, transfer and convey to Landlord or Landlord’s designee, Tenant’s Personal Property and will be entitled to all tax benefits ordinarily available to owners of property similar to located on or about the Property for such tax purposesFacility. Notwithstanding the foregoing, neither party hereto has madein the event that any items of Tenant’s Personal Property have a net book value on Tenant’s records in excess of Five Thousand Dollars ($5,000.00), individually, or Fifteen Thousand Dollars ($15,000.00) in the aggregate with respect to the Tenant’s Personal Property at the Facility, regardless of the net book value of each individual item of such Tenant’s Personal Property, Landlord shall be deemed required to have made, any representation or warranty as to the availability of compensate Tenant for any of such Tenant’s Personal Property which Landlord elects to acquire at the foregoing treatments under applicable accounting rules, tax, bankruptcy, regulatory, commercial then net book value thereof. Any of the Tenant’s Personal Property conveyed to Landlord or real estate law Landlord’s designee pursuant to this Section 8.1(b) shall be referred to as the “Transferred Tenant’s Personal Property.” 05191N:091419:828868:7:NASHVILLE
(c) Tenant shall transfer and convey the Records to Landlord or under any other set of rules. Lessee shall claim the cost recovery deductions associated with the Property, and Lessor shall not, to the extent not prohibited by Law, take on its tax return a position inconsistent with Lessee's claim of such deductionsLandlord’s designee.
(bd) In order to secure the obligations Tenant shall execute a ▇▇▇▇ of Lessee now existing or hereafter arising under any and all Operative Agreements, pursuant hereto and to the Lease Supplement, Lessee hereby conveys, grants, assigns, transfers, hypothecates, mortgages and sets over to Lessor, for the benefit of the Secured Parties, a security interest (but subject only to the security interest in the assets granted by Lessor Sale in favor of the Agent in accordance with the Security Agreement and the Mortgage Instruments) in and lien on all right, title and interest of Lessee (now owned or hereafter acquired) in and to the Property, to the extent such is personal property and irrevocably grants and conveys a lien, deed of trust or mortgage, as applicable, on all right, title and interest of Lessee (now owned or hereafter acquired) in and to the Property to the extent such is real property. Lessor and Lessee further intend and agree that, for the purpose of securing the obligations of Lessee and/or the Construction Agent now existing or hereafter arising under the Operative Agreements, this Lease as supplemented by the Lease Supplement shall be a security agreement and financing statement within the meaning of Article 9 of the Uniform Commercial Code respecting the Lessee's interest in the Property and all proceeds (including without limitation insurance proceeds thereof) to the extent such is personal property and an irrevocable grant and conveyance of a lien, deed of trust or mortgage, as applicable, on the Lessee's interest in the Property and all proceeds (including without limitation insurance proceeds thereof) to the extent such is real property and constitutes a grant by Lessee to Lessor of a security interest, lien, deed of trust or mortgage, as applicable, in all of Lessee's right, title and interest in and to the Property and all proceeds (including without limitation insurance proceeds thereof) of the conversion, voluntary or involuntary, of the foregoing into cash, investments, securities or other property, whether Landlord in the form of cash, investments, securities or other property, and an assignment of all rents, profits and income produced by the Property. Lessee and Lessor further intend and agree that notifications to Persons holding such proceeds, and acknowledgments, receipts or confirmations from financial intermediaries, bankers or agents (as applicable) of Lessee, when given, shall be deemed to have been given for the purpose of perfecting the foregoing lien, security interest, mortgage lien or deed of trust, as applicable, under applicable law. Lessee shall promptly take such actions as necessary (including without limitation the filing of Uniform Commercial Code Financing Statements, Uniform Commercial Code Fixture Filings and memoranda (or short forms) of this Lease and the Lease Supplement) to ensure that the lien, security interest, mortgage lien or deed of trust, as applicable, in the Property and the other items referenced above will be deemed to be a perfected lien, security interest, mortgage lien or deed of trust, as applicable, of first priority (subject to all liens and security interests granted Exhibit C with respect to the Agent and/or assets being conveyed to Landlord or Landlord’s designee pursuant to this Section 8.1.
(e) Except as otherwise specifically set forth in this Section 8.1, Landlord shall not succeed to the Primary Financing Parties under ownership of Tenant’s Excluded Property at the Security Documents (other than this end of the term of the Lease)) under applicable law and will be maintained as such throughout the Term.
Appears in 1 contract
Sources: Master Lease (Emeritus Corp\wa\)
Ownership of the Property. (a) Lessor Landlord and Lessee intend Tenant acknowledge and agree that they have executed and delivered this Master Lease with the understanding that (i) for financial accounting purposes with respect the Property is the property of Landlord; (ii) Tenant has only the right to Lessee (A) this Lease will be treated as an "operating lease" pursuant to Statement of Financial Accounting Standards No. 13, as amended, (B) Lessor will be the owner possession and lessor use of the Property upon the terms and conditions of this Master Lease; (iii) this Master Lease is a “true lease,” is not a financing lease, capital lease, mortgage, equitable mortgage, deed of trust, trust agreement, security agreement or other financing or trust arrangement, or any other agreement or arrangement other than a “true lease,” and the economic realities of this Master Lease are those of a “true lease”; (iv) the business relationship created by this Master Lease and any related documents is, and at all times shall remain, that of landlord and tenant, and shall not create or constitute the relationship of borrower and lender; (v) this Master Lease has been entered into by each party in reliance upon the mutual covenants, conditions and agreements contained herein; and (Cvi) Lessee will be the lessee none of the Propertycovenants, but (ii) for federal conditions or agreements contained herein is intended, nor shall the same be deemed or construed, to create a partnership between Landlord and all state and local income tax purposesTenant, and for all bankruptcy purposes (including the substantive law upon which bankruptcy proceedings are based)to make them joint venturers, (A) this Lease will be treated as a financing arrangement and (B) Lessee will be treated as the owner to make Tenant an agent, legal representative, partner, subsidiary or employee of the Property and will be entitled to all tax benefits ordinarily available to owners of property similar to the Property for such tax purposes. Notwithstanding the foregoing, neither party hereto has madeLandlord, or shall be deemed to have mademake Landlord in any way responsible for the debts, any representation obligations or warranty as to the availability losses of any of the foregoing treatments under applicable accounting rules, tax, bankruptcy, regulatory, commercial or real estate law or under any other set of rules. Lessee shall claim the cost recovery deductions associated with the Property, and Lessor shall not, to the extent not prohibited by Law, take on its tax return a position inconsistent with Lessee's claim of such deductionsTenant.
(b) In order Neither Landlord nor any Indemnified Parties has made any representation or warranty to secure Tenant as it relates to the obligations compliance of Lessee now existing this transaction with any regulations applicable to the sale of the Property by Tenant to Landlord pursuant to that certain Agreement for Purchase and Sale of Property with an Effective Date (as defined therein) of April 16, 2024 (the “Sale Agreement”) and subsequent leaseback of the Property by Tenant as contemplated herein (collectively, the “Sale-Leaseback Regulations”). Tenant has obtained all required regulatory approvals as may be necessary or hereafter arising under appropriate in connection with the transaction contemplated by the Sale Agreement and this Master Lease, and Tenant is entering the transaction contemplated by the Sale Agreement and this Master Lease solely relying on, and after full review of, their own due diligence and not on the basis of any statement made by Landlord or any Indemnified Parties. To the fullest extent permitted by applicable law, Tenant shall indemnify and hold harmless Landlord and the Indemnified Parties from and against any and all Operative Agreementsclaims, pursuant hereto losses, damages, expenses and other liabilities arising with respect to the Lease SupplementSale-Leaseback Regulations (collectively referred to as “Regulatory Claims” and individually as a “Regulatory Claim”), Lessee hereby conveysincluding, grantsas incurred, assignsall attorneys’ fees that Tenant, transfers▇▇▇▇▇▇’s Parent or any Affiliates thereof may incur that arise out of or in connection with the Tenant’s breach of any representation, hypothecateswarranty or other obligation in this Section 6.1(b). Landlord shall promptly notify Tenant of any Regulatory Claim filed against Landlord or any Indemnified Party, mortgages and sets over to LessorTenant shall defend Landlord and the Indemnified Parties, for at the benefit request of Landlord or any one or more of the Secured Indemnified Parties, a security interest (but subject only with counsel reasonably satisfactory to Landlord or the security interest in applicable Indemnified Parties making the assets granted by Lessor in favor of the Agent in accordance with the Security Agreement and the Mortgage Instruments) in and lien on all right, title and interest of Lessee (now owned or hereafter acquired) in and to the Property, to the extent such is personal property and irrevocably grants and conveys a lien, deed of trust or mortgage, as applicable, on all right, title and interest of Lessee (now owned or hereafter acquired) in and to the Property to the extent such is real propertyrequest. Lessor and Lessee further intend and agree that, for the purpose of securing the obligations of Lessee and/or the Construction Agent now existing or hereafter arising under the Operative Agreements, this Lease as supplemented by the Lease Supplement shall be a security agreement and financing statement within the meaning of Article 9 of the Uniform Commercial Code respecting the Lessee's interest in the Property and all proceeds (including without limitation insurance proceeds thereof) to the extent such is personal property and an irrevocable grant and conveyance of a lien, deed of trust or mortgage, as applicable, on the Lessee's interest in the Property and all proceeds (including without limitation insurance proceeds thereof) to the extent such is real property and constitutes a grant by Lessee to Lessor of a security interest, lien, deed of trust or mortgage, as applicable, in all of Lessee's right, title and interest in and to the Property and all proceeds (including without limitation insurance proceeds thereof) 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, and an assignment of all rents, profits and income produced by the Property. Lessee and Lessor further intend and agree that notifications to Persons holding such proceeds, and acknowledgments, receipts or confirmations from financial intermediaries, bankers or agents (as applicable) of Lessee, when given, shall be deemed to have been given for the purpose of perfecting the foregoing lien, security interest, mortgage lien or deed of trust, as applicable, under applicable law. Lessee shall promptly take such actions as necessary (including without limitation the filing of Uniform Commercial Code Financing Statements, Uniform Commercial Code Fixture Filings and memoranda (or short forms) The terms of this Lease and Section 6.1(b) shall survive the Lease Supplement) to ensure that the lien, security interest, mortgage lien expiration or deed earlier termination of trust, as applicable, in the Property and the other items referenced above will be deemed to be a perfected lien, security interest, mortgage lien or deed of trust, as applicable, of first priority (subject to all liens and security interests granted to the Agent and/or the Primary Financing Parties under the Security Documents (other than this Lease)) under applicable law and will be maintained as such throughout the Term.
Appears in 1 contract
Ownership of the Property. (a) Lessor and Lessee intend that (i) for financial accounting purposes with respect to Lessee (A) this Lease will be treated as an "operating lease" pursuant to Statement of Financial Accounting Standards No. 13, as amended, (B) Lessor will be the owner and lessor of the Property and (C) Lessee will be the lessee of the Property, but (ii) for federal and all state and local income tax purposes, bankruptcy purposes, regulatory purposes, commercial law and for real estate purposes and all bankruptcy other purposes (including the substantive law upon which bankruptcy proceedings are based), other than for accounting purposes) (A) this Lease will be treated as a financing arrangement and (B) Lessee will be treated as the owner of the Property and will be entitled to all tax benefits ordinarily available to owners of property similar to the Property for such tax purposes. Notwithstanding the foregoing, neither party hereto has made, or shall be deemed to have made, any representation or warranty as to the availability of any of the foregoing treatments under applicable accounting rules, tax, bankruptcy, regulatory, commercial or real estate law or under any other set of rules. Lessee shall claim the cost recovery deductions associated with the Property, and Lessor shall not, to the extent not prohibited by Law, take on its tax return a position inconsistent with Lessee's claim of such deductions.
(b) For all purposes described in Section 7.1(a), Lessor and Lessee intend this Lease to constitute a finance lease and not a true lease. In order to secure the obligations of Lessee now existing or hereafter arising under any and all Operative Agreements, pursuant hereto and to the Lease Supplement, Lessee hereby conveys, grants, assigns, transfers, hypothecates, mortgages and sets over to Lessor, for the benefit of the Secured all Financing Parties, a first priority security interest (but subject only to the security interest in the assets granted by Lessor Lessee in favor of the Agent in accordance with the Security Agreement and the Mortgage InstrumentsAgreement) in and lien on all right, title and interest of Lessee (now owned or hereafter acquired) in and to the Property, to the extent such is personal property and irrevocably grants and conveys a lien, deed of trust or mortgage, as applicable, on all right, title and interest of Lessee (now owned or hereafter acquired) in and to the Property to the extent such is personal property and irrevocably grants and conveys a lien, deed of trust and mortgage on all right, title and interest of Lessee (now owned or hereafter acquired) in and to the Property to the extent such is a real property. Lessor and Lessee further intend and agree that, for the purpose of securing the obligations of Lessee and/or the Construction Agent now existing or hereafter arising under the Operative Agreements, this Lease as supplemented by the Lease Supplement shall be a security agreement and financing statement within the meaning of Article 9 of the Uniform Commercial Code respecting the Lessee's interest in the Property and all proceeds (including without limitation insurance proceeds thereof) to the extent such is personal property and an irrevocable grant and conveyance of a lien, deed of trust or mortgage, as applicable, on the Lessee's interest in the Property and all proceeds (including without limitation insurance proceeds thereof) to the extent such is real property and constitutes a grant by Lessee to Lessor of a security interest, lien, deed of trust or mortgage, as applicable, in all of Lessee's right, title and interest in and to the Property and all proceeds (including without limitation insurance proceeds thereof) 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, and an assignment of all rents, profits and income produced by the Property. Lessee and Lessor further intend and agree that notifications to Persons holding such proceeds, and acknowledgments, receipts or confirmations from financial intermediaries, bankers or agents (as applicable) of Lessee, when given, shall be deemed to have been given for the purpose of perfecting the foregoing lien, security interest, mortgage lien or deed of trust, as applicable, under applicable law. Lessee shall promptly take such actions as necessary (including without limitation the filing of Uniform Commercial Code Financing Statements, Uniform Commercial Code Fixture Filings and memoranda (or short forms) of this Lease and the Lease Supplement) to ensure that the lien, security interest, mortgage lien or deed of trust, as applicable, in the Property and the other items referenced above will be deemed to be a perfected lien, security interest, mortgage lien or deed of trust, as applicable, of first priority (subject to all liens and security interests granted to the Agent and/or the Primary Financing Parties under the Security Documents (other than this Lease)) under applicable law and will be maintained as such throughout the Term.agree
Appears in 1 contract
Ownership of the Property. (a) The Lessor and the Lessee intend ------------------------- that (i) for financial accounting purposes with respect to the Lessee (A) this the Lease will be treated as an "operating lease" pursuant to Statement of Financial Accounting Standards No. 13, as amended, (B) the Lessor will be treated as the owner and lessor of the Property and (C) the Lessee will be treated as the lessee of the Property, but (ii) for federal and all state and local income tax purposes, and for all bankruptcy purposes (including the substantive law upon which bankruptcy proceedings are based), (A) the transaction contemplated by the Lease and this Lease will be treated as Supplement is a financing arrangement and secured borrowing, (B) the Lessee will be treated as the owner of the Property and will be entitled to all tax benefits ordinarily available to owners of property similar to the Property for such tax purposespurposes and (C) all payments of Basic Rent shall be deemed to be interest payments and (iii) in the context of insolvency or bankruptcy proceedings affecting the Lessee, the transaction contemplated by the Lease and this Lease Supplement is a secured borrowing. Notwithstanding the foregoing, neither party hereto has made, or shall be deemed to have made, any representation or warranty as to the availability of any of the foregoing treatments under applicable accounting rules, tax, bankruptcy, regulatory, commercial rules or real estate law or under any other set of tax rules. The Lessee shall claim the cost recovery deductions associated with the Property, and the Lessor shall not, to the extent not prohibited by Law, take on its tax return a position inconsistent with the Lessee's claim of such deductions.
(b) In order to secure . The parties acknowledge and agree that the characterization of the transaction and the Lessee's obligations of Lessee now existing or hereafter arising as provided in this Section 4 shall not diminish the Lessee's express rights under any the Lease and all the other Operative Agreements, pursuant hereto and to the Lease Supplementincluding, Lessee hereby conveyswithout limitation, grants, assigns, transfers, hypothecates, mortgages and sets over to Lessor, for the benefit of the Secured Parties, a security interest (but subject only to the security interest in the assets granted by Lessor in favor of the Agent in accordance with the Security Agreement and the Mortgage Instruments) in and lien on all right, title and interest of Lessee (now owned or hereafter acquired) in and to the Property, to the extent such is personal property and irrevocably grants and conveys a lien, deed of trust or mortgage, as applicable, on all right, title and interest of Lessee (now owned or hereafter acquired) in and to the Property to the extent such is real property. Lessor and Lessee further intend and agree that, for the purpose of securing the obligations of Lessee and/or the Construction Agent now existing or hereafter arising under the Operative Agreements, this Lease as supplemented by the Lease Supplement shall be a security agreement and financing statement within the meaning of Article 9 of the Uniform Commercial Code respecting the Lessee's interest in the Property and all proceeds (including without limitation insurance proceeds thereof) right to the extent such is personal property and an irrevocable grant and conveyance of a lien, deed of trust or mortgage, as applicable, on the Lessee's interest in the Property and all proceeds (including without limitation insurance proceeds thereof) to the extent such is real property and constitutes a grant by Lessee to Lessor of a security interest, lien, deed of trust or mortgage, as applicable, in all of Lessee's right, title and interest in and to the Property and all proceeds (including without limitation insurance proceeds thereof) 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, and an assignment of all rents, profits and income produced by purchase the Property. Lessee and Lessor further intend and agree that notifications to Persons holding such proceeds, and acknowledgments, receipts or confirmations from financial intermediaries, bankers or agents (as applicable) of Lessee, when given, shall be deemed to have been given for the purpose of perfecting the foregoing lien, security interest, mortgage lien or deed of trust, as applicable, under applicable law. Lessee shall promptly take such actions as necessary (including without limitation the filing of Uniform Commercial Code Financing Statements, Uniform Commercial Code Fixture Filings and memoranda (or short forms) of this Lease and the Lease Supplement) to ensure that the lien, security interest, mortgage lien or deed of trust, as applicable, in the Property and the other items referenced above will be deemed to be a perfected lien, security interest, mortgage lien or deed of trust, as applicable, of first priority (subject to all liens and security interests granted to the Agent and/or the Primary Financing Parties under the Security Documents (other than this Lease)) under applicable law and will be maintained as such throughout the Term.
Appears in 1 contract
Ownership of the Property. (a) Lessor and Lessee intend that (i) that, for financial accounting purposes with respect to Lessee Lessee, (Ai) this Lease will be treated as an "operating lease" pursuant to Statement of Financial Accounting Standards No. 13, as amended, (Bii) Lessor will be treated as the owner and lessor of the Property Property, and (C) Lessee will be the lessee of the Property, but (ii) for federal and all state and local income tax purposes, and for all bankruptcy purposes (including the substantive law upon which bankruptcy proceedings are based), (A) this Lease will be treated as a financing arrangement and (Biii) Lessee will be treated as the owner lessee of the Property and will be entitled to all tax benefits ordinarily available to owners of property similar to the Property for such tax purposes. Notwithstanding the foregoing, neither party hereto has made, or shall be deemed to have made, any representation or warranty as to the availability of any of the foregoing treatments under applicable accounting rules, tax, bankruptcy, regulatory, commercial or real estate law or under any other set of rules. Lessee shall claim the cost recovery deductions associated with the Property, and Lessor shall not, to the extent not prohibited by Law, take on its tax return a position inconsistent with Lessee's claim of such deductions.,
(b) In order to secure the obligations of Lessee now existing or hereafter arising under any and all Operative Agreements, pursuant hereto and to the Lease Supplement, Lessee hereby conveys, grants, assigns, transfers, hypothecates, mortgages and sets over to Lessor, for the benefit of the Secured Parties, a security interest (but subject only to the security interest in the assets granted by Lessor in favor of the Agent in accordance with the Security Agreement and the Mortgage Instruments) in and lien on all right, title and interest of Lessee (now owned or hereafter acquired) in and to the Property, to the extent such is personal property and irrevocably grants and conveys a lien, deed of trust or mortgage, as applicable, on all right, title and interest of Lessee (now owned or hereafter acquired) in and to the Property to the extent such is real property. Lessor and Lessee further intend and agree that, for in the purpose of securing event that the obligations of Lessee and/or the Construction Agent now existing or hereafter arising under transaction contemplated by the Operative Agreements, Agreements shall be deemed a financing (i) this Lease as supplemented by the Lease Supplement shall be constitute a security agreement and financing statement within the meaning of Article 9 of the Uniform Commercial Code respecting the Lessee's interest in the Property and all proceeds (including without limitation insurance proceeds thereof) to the extent such is personal a real property and an irrevocable grant and conveyance of a lien, mortgage or deed of trust or mortgage, as applicable, on under the Lesseeapplicabale State's interest in the Property and all proceeds (including without limitation insurance proceeds thereof) to the extent such is real property and constitutes law; (ii) the conveyance provided for in Article II shall be deemed to be a grant by Lessee to Lessor of a mortgage lien and security interest, lien, deed of trust or mortgage, as applicable, interest in all of Lessee's right, title and interest in and to the Property and all proceeds (including without limitation insurance proceeds thereof) 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; (iii) the possession by Lessor or any of its agents of notes and such other items of property as constitute instruments, and an assignment of all rentsmoney, profits and income produced negotiable documents or chattel paper shall be deemed to be "possession by the Property. Lessee secured party" for purposes of perfecting the security interest pursuant to Section 9-305 of the Uniform Commercial Code; and Lessor further intend and agree that (iv) notifications to Persons holding such proceedsproperty, and acknowledgments, receipts or confirmations from financial intermediaries, bankers or agents (as applicable) of Lessee, when given, Lessee shall be deemed to have been given for the purpose of perfecting the foregoing lien, such security interest, mortgage lien or deed of trust, as applicable, interest under applicable law. Lessor and Lessee shall promptly shall, to the extent consistent with this Lease, take such actions as may be necessary (including without limitation the filing of Uniform Commercial Code Financing Statementsto ensure that, Uniform Commercial Code Fixture Filings and memoranda (or short forms) of if this Lease were deemed to create a security interest in and the Lease Supplement) to ensure that the lien, security interest, mortgage lien or deed of trust, as applicable, in on the Property and the other items referenced above will in accordance with this Section, such security interest would be deemed to be a perfected lien, mortgage and security interest, mortgage lien or deed of trust, as applicable, interest of first priority (subject to all liens and security interests granted to the Agent and/or the Primary Financing Parties under the Security Documents (other than this Lease)) under applicable law and will be maintained as such throughout the Basic Term.
(c) Lessor and Lessee further intend and agree that in the event 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 Lessee the transactions evidenced by this Lease shall be regarded as loans made by an unrelated third party lender to Lessee.
Appears in 1 contract
Sources: Lease (Borders Group Inc)
Ownership of the Property. (a) Lessor and Lessee intend that (i) for financial accounting purposes with respect to Lessee (A) this Lease will be treated as an "“operating lease" ” pursuant to Statement of Financial Accounting Standards No. 13, as amended, (B) Lessor will be the owner and lessor of the Property and (C) Lessee will be the lessee of the Property, but (ii) for federal and all state and local income tax purposes, and for all bankruptcy purposes (including the substantive law upon which bankruptcy proceedings are based), (A) this Lease will be treated as a financing arrangement and (B) Lessee will be treated as the owner of the Property and will be entitled to all tax benefits ordinarily available to owners of property similar to the Property for such tax purposes. Notwithstanding the foregoing, neither party hereto has made, or shall be deemed to have made, any representation or warranty as to the availability of any of the foregoing treatments under applicable accounting rules, tax, bankruptcy, regulatory, commercial or real estate law bankruptcy or under any other set of rules. Lessee shall claim the cost recovery deductions associated with the Property, and Lessor shall not, to the extent not unless prohibited by Law, take on its tax return a position inconsistent with Lessee's ’s claim of such deductions. It is the further intent of Lessor and Lessee that this Lease and the transaction evidenced by the Operative Agreements conform with and satisfy the requirements of, to the extent applicable, FASB Interpretation No. 46, Emerging Issues Task Force, 1997\Issue 97-1 and Emerging Issues Task Force, 1997\Issue 97-10.
(b) In order to secure the obligations of Lessee now existing or hereafter arising under any and all Operative Agreements, pursuant hereto and to the Lease Supplement, Lessee hereby conveys, grants, assigns, transfers, hypothecates, mortgages and sets over to Lessor, for the benefit of the Secured Parties, a first priority security interest (but subject only to the security interest in the assets granted by Lessor in favor of the Agent in accordance with the Security Agreement and the Mortgage Instruments) in and lien on all right, title and interest of Lessee (now owned or hereafter acquired) in and to the Property, Casualty and Condemnation proceeds, proceeds from any insurance required by the Insurance Requirements and the proceeds of each of the foregoing to the extent such is personal property and irrevocably grants and conveys a lien, deed of trust or mortgage, as applicable, on all right, title and interest of Lessee (now owned or hereafter acquired) in and to the Property to the extent such is real property. Lessor and Lessee further intend and agree that, for the purpose of securing the obligations of Lessee and/or the Construction Agent now existing or hereafter arising under the Operative Agreements, this Lease as supplemented by the Lease Supplement Supplement, shall be a security agreement and financing statement within the meaning of Article 9 of the Uniform Commercial Code respecting the Lessee's ’s interest in the Property and all proceeds (including without limitation Casualty and Condemnation proceeds, proceeds from any insurance required by the Insurance Requirements and the proceeds thereofof each of the foregoing) to the extent such is personal property and an irrevocable grant and conveyance of a lien, deed of trust or mortgage, as applicable, on the Lessee's ’s interest in the Property and all proceeds (including without limitation Casualty and Condemnation proceeds, proceeds from any insurance required by the Insurance Requirements and the proceeds thereofof each of the foregoing) to the extent such is real property and constitutes a grant by Lessee to Lessor of a security interest, lien, deed of trust or mortgage, as applicable, in all of Lessee's ’s right, title and interest in and to the Property and all proceeds (including without limitation Casualty and Condemnation proceeds, proceeds from any insurance required by the Insurance Requirements and the proceeds thereofof each of the foregoing) 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, and an assignment of all rents, profits and income produced by the Property. Lessee and Lessor further intend and agree that notifications to Persons holding such proceeds, and acknowledgments, receipts or confirmations from financial intermediaries, bankers or agents (as applicable) of Lessee, when given, shall be deemed to have been given for the purpose of perfecting the foregoing lien, security interest, mortgage lien or deed of trust, as applicable, under applicable law. Lessee shall promptly take such actions as necessary (including without limitation the filing of Uniform Commercial Code Primary Financing Statements, Uniform Commercial Code Fixture Filings Party Financing Statements and memoranda (or short forms) of this Lease and the Lease Supplement) to ensure that the lien, security interest, mortgage lien or deed of trust, as applicable, in the Property and the other items referenced above will be deemed to be a perfected lien, security interest, mortgage lien or deed of trust, as applicable, of first priority (subject only to all liens Permitted Liens and security interests granted to the Agent and/or the Primary Financing Parties under the Security Documents (other than this LeaseLessor Liens)) , under applicable law and will be maintained as such throughout the Term.
Appears in 1 contract