Common use of Characterization of this Lease Clause in Contracts

Characterization of this Lease. (1) Both LRC and BNPPLC intend that (a) for the purposes of determining the proper accounting for this Lease by LRC, BNPPLC will be treated as the owner and landlord of the Property and LRC will be treated as the tenant of the Property, and (b) for income tax purposes and real estate, commercial law (including bankruptcy) and regulatory purposes, (i) this Lease and the other Operative Documents will be treated as a financing arrangement, (ii) BNPPLC will be deemed a lender making loans to LRC in the principal amount equal to the Lease Balance, which loans are secured by the Property, and (iii) LRC will be treated as the owner of the Property and will be entitled to all tax benefits available to the owner of the Property. Consistent with such intent, by the provisions set forth in the attached Exhibit B, LRC is granting to BNPPLC a lien upon and mortgaging and warranting title to the Land and the Improvements and all rights, titles and interests of LRC in and to other Property, WITH POWER OF SALE, to secure all obligations (monetary or otherwise) of LRC arising under or in connection with any of the Operative Documents. Without limiting the generality of the foregoing, LRC and BNPPLC desire that their intent as set forth in this subparagraph be given effect both in the context of any bankruptcy, insolvency or receivership proceedings concerning LRC or BNPPLC and in other contexts. Accordingly, LRC and BNPPLC expect that in the event of any bankruptcy, insolvency or receivership proceedings affecting LRC or BNPPLC or any enforcement or collection actions arising out of such proceedings, the transactions evidenced by this Lease and the other Operative Documents will be characterized and treated as loans made to LRC by BNPPLC, secured by the Property. (2) Notwithstanding the foregoing, LRC acknowledges and agrees that none of BNPPLC or the other Interested Parties has made, or will be deemed to have made, in the Operative Documents or otherwise, any representations or warranties concerning how this Lease and the other Operative Documents will be characterized or treated under applicable accounting rules, income tax, regulatory, commercial or real estate law, bankruptcy, insolvency or receivership law or any other rules or requirements concerning the tax, accounting or legal characteristics of the Operative Documents. LRC further acknowledges and agrees that it is sophisticated and knowledgeable regarding all such matters and that it has, as it deemed appropriate, obtained from and relied upon its own professional accountants, counsel and other advisors for such tax, accounting and legal advice concerning the Operative Documents. (3) In any event, LRC will be required by subparagraph 5(C) below to indemnify and hold harmless BNPPLC and other Interested Parties from and against all additional taxes that may arise or become due because of any refusal of taxing authorities to recognize and give effect to the intention of the parties as set forth in subparagraph 4(C)(1) (“Unexpected Recharacterization Taxes”), including any additional income or capital gain tax that may become due because of payments to BNPPLC of the purchase price upon any sale under the Purchase Agreement resulting from any insistence of such taxing authorities that BNPPLC be treated as the “true owner” of the Property for tax purposes (a “Forced Recharacterization”); provided, however, LRC will not be required to pay or reimburse Unexpected Recharacterization Taxes to the extent that they are, in any given tax year, eliminated or offset by actual savings to BNPPLC because of additional depreciation deductions or other tax benefits available to BNPPLC in the same year only by reason of the Forced Recharacterization.

Characterization of this Lease. (1) Both LRC NAI and BNPPLC intend that (aA) for the purposes of determining the proper accounting for this Lease by LRCNAI, BNPPLC will be treated as the owner and landlord of the Property and LRC NAI will be treated as the tenant of the Property, and (bB) for income tax purposes and real estate, commercial law (including bankruptcyreal estate and bankruptcy law) and regulatory purposes, (i1) this Lease and the other Operative Documents will be treated as a financing arrangement, (ii2) BNPPLC will be deemed a lender making loans to LRC NAI in the principal amount equal to the Lease Balance, which loans are secured by the Property, and (iii3) LRC NAI will be treated as the owner of the Property and will be entitled to all tax benefits available to the owner of the Property. Consistent with such intent, by the provisions set forth in the attached Exhibit B, LRC NAI is granting to BNPPLC a lien upon and mortgaging and warranting title to the Land and the Improvements and all rights, titles and interests of LRC NAI in and to other Property, WITH POWER OF SALE, to secure all obligations (monetary or otherwise) of LRC NAI arising under or in connection with any of the Operative Documents. Without limiting the generality of the foregoing, LRC NAI and BNPPLC desire that their intent as set forth in this subparagraph be given effect both in the context of any bankruptcy, insolvency or receivership proceedings concerning LRC NAI or BNPPLC and in other contexts. Accordingly, LRC NAI and BNPPLC expect that in the event of any bankruptcy, insolvency or receivership proceedings affecting LRC NAI or BNPPLC or any enforcement or collection actions arising out of such proceedings, the transactions evidenced by this Lease and the other Operative Documents will be characterized and treated as loans made to LRC NAI by BNPPLC, as an unrelated third party lender to NAI, secured by the Property. (2) Notwithstanding the foregoing, LRC NAI acknowledges and agrees that none of BNPPLC or the other Interested Parties has made, or will be deemed to have made, in the Operative Documents or otherwise, any representations or warranties concerning how this Lease and the other Operative Documents will be characterized or treated under applicable accounting rules, income tax, regulatory, commercial or real estate law, bankruptcy, insolvency or receivership law or any other rules or requirements concerning the tax, accounting or legal characteristics of the Operative Documents. LRC NAI further acknowledges and agrees that it is sophisticated and knowledgeable regarding all such matters and that it has, as it deemed appropriate, obtained from and relied upon its own professional accountants, counsel and other advisors for such tax, accounting and legal advice concerning the Operative Documents. (3) In any event, LRC NAI will be required by subparagraph 5(C) below to indemnify and hold harmless BNPPLC and other Interested Parties from and against all additional taxes that may arise or become due because of any refusal of taxing authorities to recognize and give effect to the intention of the parties as set forth in subparagraph 4(C)(1) (“Unexpected Recharacterization Taxes”), including any additional income or capital gain tax that may become due because of payments to BNPPLC of the purchase price upon any sale under the Purchase Agreement resulting from any insistence of such taxing authorities that BNPPLC be treated as the “true owner” of the Property for tax purposes (a “Forced Recharacterization”); provided, however, LRC NAI will not be required to pay or reimburse Unexpected Recharacterization Taxes to the extent that they are, in any given tax year, eliminated or offset by actual savings to BNPPLC because of additional depreciation deductions or other tax benefits available to BNPPLC in the same year only by reason of the Forced Recharacterization (“Unexpected Tax Savings”). To the extent Unexpected Recharacterization Taxes are eliminated or offset by Unexpected Tax Savings in a given tax year, including the tax year in which any sale under the Purchase Agreement occurs (the “Year of Sale”), such Unexpected Recharacterization Taxes will constitute Excluded Taxes as provided in clause (D) of the definition thereof in the Common Definitions and Provisions Agreement. Also, for purposes of this provision, it is understood that any depreciation deductions first available to BNPPLC in tax years prior to the Year of Sale and resulting from a Forced Recharacterization (“Prior Year Depreciation Deductions”) will be considered “available to BNPPLC” in the Year of Sale (and thus will eliminate or offset any Unexpected Recharacterization Taxes resulting from the recapture of such Prior Year Depreciation Deductions upon a sale under the Purchase Agreement) to the extent that (A) such Prior Year Depreciation Deductions are not otherwise used to generate Unexpected Tax Savings or Unexpected Net Tax Benefits (as defined below), and (B) the tax laws and regulations applicable in the Year of Sale effectively permit BNPPLC to carry over the Prior Year Depreciation Deductions to the Year of Sale by allowing BNPPLC to carry over net operating losses from the years in which the Prior Year Depreciation Deductions were first available to BNPPLC to the Year of Sale. (4) After any Forced Recharacterization, BNPPLC will make a reasonable effort to determine whether Unexpected Tax Savings exceed Unexpected Recharacterization Taxes in any given tax year (any such excess being hereinafter called an “Unexpected Net Tax Benefit”); and if BNPPLC does determine that an Unexpected Net Tax Benefit has been realized and the amount thereof, BNPPLC will notify NAI of the same and either credit the amount thereof against payments otherwise then due or to become due from NAI under this Lease or the other Operative Documents or pay the amount of such Unexpected Net Tax Benefit to NAI. It is understood, however, that the tax position of BNPPLC (and the consolidated tax group of which it is a part) may, in any given tax year, be such that no Unexpected Net Tax Benefit exists or can be determined with a reasonable effort on the part of BNPPLC. Therefore, BNPPLC makes no representation that NAI will receive any credits or payments pursuant to this provision after any Forced Recharacterization. Also, the determination by BNPPLC of the amount of any Unexpected Net Tax Benefit will be conclusive absent clear and manifest error, as will any determination by BNPPLC that the amount of any Unexpected Net Tax Benefit in a given tax year cannot be calculated with a reasonable effort. If NAI is dissatisfied with any such determination by BNPPLC prior to the Designated Sale Date, NAI will be entitled to accelerate the Designated Sale Date (as provided in clause (2) of the definition thereof), after which NAI may purchase or cause an Applicable Purchaser to purchase the Property on the accelerated Designated Sale Date pursuant to the Purchase Agreement.

Characterization of this Lease. (1) Both LRC NAI and BNPPLC intend that (aA) for the purposes of determining the proper accounting for this Lease by LRCNAI, BNPPLC will be treated as the owner and landlord of the Property and LRC NAI will be treated as the tenant of the Property, and (bB) for income tax purposes and real estate, commercial law (including bankruptcy) and regulatory purposes, (i1) this Lease and the other Operative Documents will be treated as a financing arrangement, (ii2) BNPPLC will be deemed a lender making loans to LRC NAI in the principal amount equal to the Lease Balance, which loans are secured by the Property, and (iii3) LRC NAI will be treated as the owner of the Property and will be entitled to all tax benefits available to the owner of the Property. Consistent with such intent, by the provisions set forth in the attached Exhibit B, LRC NAI is granting to BNPPLC a lien upon and mortgaging and warranting title to the leasehold estate in the Land created by the Ground Lease and the Improvements and all rights, titles and interests of LRC NAI in and to other Property, WITH POWER OF SALE, to secure all obligations (monetary or otherwise) of LRC NAI arising under or in connection with any of the Operative Documents. Without limiting the generality of the foregoing, LRC NAI and BNPPLC desire that their intent as set forth in this subparagraph be given effect both in the context of any bankruptcy, insolvency or receivership proceedings concerning LRC NAI or BNPPLC and in other contexts. Accordingly, LRC NAI and BNPPLC expect that in the event of any bankruptcy, insolvency or receivership proceedings affecting LRC NAI or BNPPLC or any enforcement or collection actions arising out of such proceedings, the transactions evidenced by this Lease and the other Operative Documents will be characterized and treated as loans made to LRC NAI by BNPPLC, as an unrelated third party lender to NAI, secured by the Property. (2) Notwithstanding the foregoing, LRC NAI acknowledges and agrees that none of BNPPLC or the other Interested Parties has made, or will be deemed to have made, in the Operative Documents or otherwise, any representations or warranties concerning how this Lease and the other Operative Documents will be characterized or treated under applicable accounting rules, income tax, regulatory, commercial or real estate law, bankruptcy, insolvency or receivership law or any other rules or requirements concerning the tax, accounting or legal characteristics of the Operative Documents. LRC NAI further acknowledges and agrees that it is sophisticated and knowledgeable regarding all such matters and that it has, as it deemed appropriate, obtained from and relied upon its own professional accountants, counsel and other advisors for such tax, accounting and legal advice concerning the Operative Documents. (3) In any event, LRC NAI will be required by subparagraph 5(C) below to indemnify and hold harmless BNPPLC and other Interested Parties from and against all actual additional taxes that may arise or become due because of any refusal of taxing authorities to recognize and give effect to the intention of the parties as set forth in subparagraph 4(C)(1) (“Unexpected Recharacterization Taxes”), including any actual, additional income or capital gain tax that may become due because of payments to BNPPLC of the purchase price upon any sale under the Purchase Agreement resulting from any insistence of such taxing authorities that BNPPLC be treated as the “true owner” of the Property for tax purposes (a “Forced Recharacterization”); provided, however, LRC NAI will not be required to pay or reimburse Unexpected Recharacterization Taxes to the extent that they are, in any given tax year, eliminated or offset by actual savings to BNPPLC because of additional depreciation deductions or other tax benefits available to BNPPLC in the same year only by reason of the Forced Recharacterization (“Unexpected Tax Savings”). To the extent Unexpected Recharacterization Taxes are eliminated or offset by Unexpected Tax Savings in a given tax year, including the tax year in which any sale under the Purchase Agreement occurs (the “Year of Sale”), such Unexpected Recharacterization Taxes will constitute Excluded Taxes as provided in clause (D) of the definition thereof in the Common Definitions and Provisions Agreement. Also, for purposes of this provision, it is understood that any depreciation deductions first available to BNPPLC in tax years prior to the Year of Sale and resulting from a Forced Recharacterization (“Prior Year Depreciation Deductions”) will be considered “available to BNPPLC” in the Year of Sale (and thus will eliminate or offset any Unexpected Recharacterization Taxes resulting from the recapture of such Prior Year Depreciation Deductions upon a sale under the Purchase Agreement) to the extent that (A) such Prior Year Depreciation Deductions are not otherwise used to generate Unexpected Tax Savings or Unexpected Net Tax Benefits (as defined below), and (B) the tax laws and regulations applicable in the Year of Sale effectively permit BNPPLC to carry over the Prior Year Depreciation Deductions to the Year of Sale by allowing BNPPLC to carry over net operating losses from the years in which the Prior Year Depreciation Deductions were first available to BNPPLC to the Year of Sale. (4) After any Forced Recharacterization, BNPPLC will make a reasonable effort to determine whether Unexpected Tax Savings exceed Unexpected Recharacterization Taxes in any given tax year (any such excess being hereinafter called an “Unexpected Net Tax Benefit”); and if BNPPLC does determine that an Unexpected Net Tax Benefit has been realized and the amount thereof, BNPPLC will notify NAI of the same and either credit the amount thereof against payments otherwise then due or to become due from NAI under this Lease or the other Operative Documents or pay the amount of such Unexpected Net Tax Benefit to NAI. It is understood, however, that the tax position of BNPPLC (and the consolidated tax group of which it is a part) may, in any given tax year, be such that no Unexpected Net Tax Benefit exists or can be determined with a reasonable effort on the part of BNPPLC. Therefore, BNPPLC makes no representation that NAI will receive any credits or payments pursuant to this provision after any Forced Recharacterization. Also, the determination by BNPPLC of the amount of any Unexpected Net Tax Benefit will be conclusive absent clear and manifest error, as will any determination by BNPPLC that the amount of any Unexpected Net Tax Benefit in a given tax year cannot be calculated with a reasonable effort. If NAI is dissatisfied with any such determination by BNPPLC prior to the Designated Sale Date, NAI will be entitled to accelerate the Designated Sale Date (as provided in clause (2) of the definition thereof), after which NAI may purchase or cause an Applicable Purchaser to purchase the Property on the accelerated Designated Sale Date pursuant to the Purchase Agreement.

Characterization of this Lease. (1) Both LRC ChoicePoint and BNPPLC intend that (aA) for the purposes of determining the proper accounting for this Lease by LRCChoicePoint, BNPPLC will be treated as the owner and landlord of the Property and LRC ChoicePoint will be treated as the tenant of the Property, and (bB) for income tax purposes and real estate, commercial law (including bankruptcy) and regulatory purposes, (i1) this Lease and the other Operative Documents will be treated as a financing arrangement, (ii2) BNPPLC will be deemed a lender making loans to LRC ChoicePoint in the principal amount equal to the Lease Balance, which loans are secured by the Property, and (iii3) LRC ChoicePoint will be treated as the owner of the Property and will be entitled to all tax benefits available to the owner of the Property. Consistent with such intent, by the provisions set forth in the attached Exhibit B, LRC ChoicePoint is granting to BNPPLC a lien upon and mortgaging and warranting title to the Land and the Improvements and all rights, titles and interests of LRC ChoicePoint in and to other Property, WITH POWER OF SALE, to secure all obligations (monetary or otherwise) of LRC ChoicePoint arising under or in connection with any of the Operative Documents. Without limiting the generality of the foregoing, LRC ChoicePoint and BNPPLC desire that their intent as set forth in this subparagraph be given effect both in the context of any bankruptcy, insolvency or receivership proceedings concerning LRC ChoicePoint or BNPPLC and in other contexts. Accordingly, LRC ChoicePoint and BNPPLC expect that in the event of any bankruptcy, insolvency or receivership proceedings affecting LRC ChoicePoint or BNPPLC or any enforcement or collection actions arising out of such proceedings, the transactions evidenced by this Lease and the other Operative Documents will be characterized and treated as loans made to LRC ChoicePoint by BNPPLC, as an unrelated third party lender to ChoicePoint, secured by the Property. (2) Notwithstanding the foregoing, LRC ChoicePoint acknowledges and agrees that none of BNPPLC or the other Interested Parties has made, or will be deemed to have made, in the Operative Documents or otherwise, any representations or warranties concerning how this Lease and the other Operative Documents will be characterized or treated under applicable accounting rules, income tax, regulatory, commercial or real estate law, bankruptcy, insolvency or receivership law or any other rules or requirements concerning the tax, accounting or legal characteristics of the Operative Documents. LRC ChoicePoint further acknowledges and agrees that it is sophisticated and knowledgeable regarding all such matters and that it has, as it deemed appropriate, obtained from and relied upon its own professional accountants, counsel and other advisors for such tax, accounting and legal advice concerning the Operative Documents. (3) In any event, LRC ChoicePoint will be required by subparagraph 5(C) below to indemnify and hold harmless BNPPLC and other Interested Parties from and against all actual additional taxes that may arise or become due because of any refusal of taxing authorities to recognize and give effect to the intention of the parties as set forth in subparagraph 4(C)(1) (“Unexpected Recharacterization Taxes”), including any actual, additional income or capital gain tax that may become due because of payments to BNPPLC of the purchase price upon any sale under the Purchase Agreement resulting from any insistence of such taxing authorities that BNPPLC be treated as the “true owner” of the Property for tax purposes (a “Forced Recharacterization”); provided, however, LRC ChoicePoint will not be required to pay or reimburse Unexpected Recharacterization Taxes to the extent that they are, in any given tax year, eliminated or offset by actual savings to BNPPLC because of additional depreciation deductions or other tax benefits available to BNPPLC in the same year only by reason of the Forced Recharacterization. To the extent Unexpected Recharacterization Taxes are eliminated or offset by Unexpected Tax Savings in a given tax year, including the tax year in which any sale under the Purchase Agreement occurs, such Unexpected Recharacterization Taxes will constitute Excluded Taxes as provided in clause (B) of the definition thereof in the Common Definitions and Provisions Agreement. 5 PAYMENT OF EXECUTORY COSTS AND LOSSES RELATED TO THE PROPERTY.

Characterization of this Lease. (1) Both LRC ChoicePoint and BNPPLC intend that (aA) for the purposes of determining the proper accounting for this Lease by LRCChoicePoint, BNPPLC will be treated as the owner and landlord of the Property and LRC ChoicePoint will be treated as the tenant of the Property, and (bB) for income tax purposes and real estate, commercial law (including bankruptcy) and regulatory purposes, (i1) this Lease and the other Operative Documents will be treated as a financing arrangement, (ii2) BNPPLC will be deemed a lender making loans to LRC ChoicePoint in the principal amount equal to the Lease Balance, which loans are secured by the Property, and (iii3) LRC ChoicePoint will be treated as the owner of the Property and will be entitled to all tax benefits available to the owner of the Property. Consistent with such intent, by the provisions set forth in the attached Exhibit B, LRC ChoicePoint is granting to BNPPLC a lien upon and mortgaging and warranting title to the leasehold estate in the Land and Improvements created by the Improvements Development Authority Lease and all rights, titles and interests of LRC ChoicePoint in and to other Property, WITH POWER OF SALE, to secure all obligations (monetary or otherwise) of LRC ChoicePoint arising under or in connection with any of the Operative Documents. Without limiting the generality of the foregoing, LRC ChoicePoint and BNPPLC desire that their intent as set forth in this subparagraph be given effect both in the context of any bankruptcy, insolvency or receivership proceedings concerning LRC ChoicePoint or BNPPLC and in other contexts. Accordingly, LRC ChoicePoint and BNPPLC expect that in the event of any bankruptcy, insolvency or receivership proceedings affecting LRC ChoicePoint or BNPPLC or any enforcement or collection actions arising out of such proceedings, the transactions evidenced by this Lease and the other Operative Documents will be characterized and treated as loans made to LRC ChoicePoint by BNPPLC, as an unrelated third party lender to ChoicePoint, secured by the Property. (2) Notwithstanding the foregoing, LRC ChoicePoint acknowledges and agrees that none of BNPPLC or the other Interested Parties has made, or will be deemed to have made, in the Operative Documents or otherwise, any representations or warranties concerning how this Lease and the other Operative Documents will be characterized or treated under applicable accounting rules, income tax, regulatory, commercial or real estate law, bankruptcy, insolvency or receivership law or any other rules or requirements concerning the tax, accounting or legal characteristics of the Operative Documents. LRC ChoicePoint further acknowledges and agrees that it is sophisticated and knowledgeable regarding all such matters and that it has, as it deemed appropriate, obtained from and relied upon its own professional accountants, counsel and other advisors for such tax, accounting and legal advice concerning the Operative Documents. (3) In any event, LRC ChoicePoint will be required by subparagraph 5(C) below to indemnify and hold harmless BNPPLC and other Interested Parties from and against all actual additional taxes that may arise or become due because of any refusal of taxing authorities to recognize and give effect to the intention of the parties as set forth in subparagraph 4(C)(1) (“Unexpected Recharacterization Taxes”), including any actual, additional income or capital gain tax that may become due because of payments to BNPPLC of the purchase price upon any sale under the Purchase Agreement resulting from any insistence of such taxing authorities that BNPPLC be treated as the “true owner” of the Property for tax purposes (a “Forced Recharacterization”); provided, however, LRC ChoicePoint will not be required to pay or reimburse Unexpected Recharacterization Taxes to the extent that they are, in any given tax year, eliminated or offset by actual savings to BNPPLC because of additional depreciation deductions or other tax benefits available to BNPPLC in the same year only by reason of the Forced Recharacterization. To the extent Unexpected Recharacterization Taxes are eliminated or offset by Unexpected Tax Savings in a given tax year, including the tax year in which any sale under the Purchase Agreement occurs, such Unexpected Recharacterization Taxes will constitute Excluded Taxes as provided in clause (B) of the definition thereof in the Common Definitions and Provisions Agreement.