Common use of Characterization Clause in Contracts

Characterization. (a) In order to protect the rights and remedies of the Funding Parties following a Termination Event or a Cancellation Event, and for the purposes of commercial law and Federal, state and local income and ad valorem taxes and Title 11 of the United States Code (or any other applicable Federal, state or local insolvency, reorganization, moratorium, fraudulent conveyance or similar law now or hereafter in effect for the relief of debtors), the parties hereto intend that (i) the Lease be treated as the repayment and security provisions of a loan by the Lessor to the Company in the amount of the Facility Cost, (ii) all payments of Basic Rent, Supplemental Rent, the Final Rent Payment, the Termination Value and the Purchase Price be treated as payments of principal, interest and other amounts owing with respect to such loan and (iii) the Company be treated as entitled to all benefits of ownership of the Facility or any part thereof. In addition, the parties acknowledge that after payment in full of the Ownership Interests, the Yield accrued thereon and any other obligations of the Company under the Operative Documents, any remaining proceeds of the Facility shall be distributed to the Company. (b) The Company agrees that neither it nor any of its Affiliates (whether or not consolidated or combined returns are filed for any such Affiliate and the Company for federal, state or local income tax purposes) will at any time take any action, directly or indirectly, or file any return or other document inconsistent with the intended income tax treatment set forth in the preceding clause (a), and the Company agrees that the Company and any such Affiliates will file such returns, maintain such records, take such action and execute such documents (as reasonably requested by the Lessor or the Lease Participants from time to time) as may be appropriate to facilitate the realization of such intended income tax treatment. Each of the Lessor and the Lease Participants agrees that neither it nor any affiliate (whether or not consolidated or combined returns are filed for such affiliate and the Lessor or any Lease Participant, as the case may be, for federal, state or local income tax purposes) will at any time take any action, directly or indirectly, or file any return or other document claiming, or asserting that it is entitled to, the income tax benefits, deductions and/or credits which, pursuant to the intended income tax treatment set forth herein, would otherwise be claimed or claimable by the Company, and that it and any such affiliates will file such returns, maintain such records, take such actions, and execute such documents (as reasonably requested by the Company from time to time) as may be appropriate to facilitate the realization of, and as shall be consistent with, such intended income tax treatment, and if any such filing, maintenance, action or execution requested by the Company or the Guarantor would result in any additional income tax liability payable by it or any affiliate, or could reasonably be expected to result in liability payable by it or any affiliate, unrelated to the intended income tax treatment set forth herein, then the Company will provide an indemnity against such unrelated income tax liability satisfactory to the Lessor or any Lease Participant, as the case may be, in its sole opinion. (c) The Company acknowledges that no Lease Participant, the Administrative Agent, the Lessor or any Affiliate of any of the foregoing thereof is making any representation, nor is it required to make any disclosure, now or in the future, with respect to the parties’ tax or accounting treatment of the Facility or the financing thereof, nor is any Lease Participant, the Lessor, the Administrative Agent, or any Affiliate or any of the foregoing responsible, nor will it be responsible in the future, for tax and accounting advice with respect to the Facility or the financing thereof, and the Company has had or will have the benefit of the advice of its own independent tax and accounting advisors with respect to such matters.

Characterization. The parties hereto agree that it is their express intent that the conveyance contemplated by this Agreement be, and be treated for all purposes as, a sale by the Seller of all the Seller's right, title and interest in and to the Mortgage Loans and the Loan REMIC Interests. The parties hereto further agree that it is not their intention that such conveyance be a pledge of the Mortgage Loans and the Loan REMIC Interests by the Seller to secure a debt or other obligation of the Seller. However, in the event that, notwithstanding the intent of the parties, the Mortgage Loans and the Loan REMIC Interests are held to continue to be property of the Seller, then: (a) In order this Agreement shall be deemed to protect be a security agreement under applicable law; (b) the rights and remedies transfer of the Funding Parties following Mortgage Loans and the Loan REMIC Interests provided for herein shall be deemed to be a Termination Event or grant by the Seller to the Purchaser of a Cancellation Event, and for the purposes of commercial law and Federal, state and local income and ad valorem taxes and Title 11 first priority security interest in all of the United States Code (or any other applicable FederalSeller right, state or local insolvency, reorganization, moratorium, fraudulent conveyance or similar law now or hereafter title and interest in effect for the relief of debtors), the parties hereto intend that (i) the Lease be treated as the repayment and security provisions of a loan by the Lessor to the Company Mortgage Loans and the Loan REMIC Interests and all amounts payable to the holder(s) of those assets in accordance with the amount of the Facility Cost, terms thereof (ii) all other than scheduled payments of Basic Rent, Supplemental Rent, the Final Rent Payment, the Termination Value and the Purchase Price be treated as payments of principal, interest and other amounts owing with respect to such loan principal due on or before the Cut-off Date) and (iii) the Company be treated as entitled to all benefits of ownership of the Facility or any part thereof. In addition, the parties acknowledge that after payment in full of the Ownership Interests, the Yield accrued thereon and any other obligations of the Company under the Operative Documents, any remaining proceeds of the Facility conversion, voluntary or involuntary, of the foregoing into cash, instruments, securities or other property; (c) the assignment by SBMS VII to the Trustee of its interests in the Mortgage Loans and the Loan REMIC Interests as contemplated by Section 16 hereof shall be distributed deemed to be an assignment of any security interest created hereunder; (d) the possession by the Purchaser or any successor thereto of the related Mortgage 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 under applicable law; and (e) notifications to, and acknowledgments, receipts or confirmations from, persons or entities holding such property, shall be deemed notifications to, or acknowledgments, receipts or confirmations from, securities intermediaries, bailees or agents (as applicable) of the Purchaser for the purpose of perfecting such security interest under applicable law. The Seller and the Purchaser shall, to the Company. (b) The Company agrees that neither it nor any of its Affiliates (whether or not consolidated or combined returns are filed for any such Affiliate and the Company for federal, state or local income tax purposes) will at any time take any action, directly or indirectly, or file any return or other document inconsistent extent consistent with the intended income tax treatment set forth in the preceding clause (a), and the Company agrees that the Company and any such Affiliates will file such returns, maintain such recordsthis Agreement, take such action and execute such documents (as reasonably requested by the Lessor or the Lease Participants from time to time) actions as may be necessary to ensure that, if this Agreement were deemed to create a security interest in the Mortgage Loans and the Loan REMIC Interests, such security interest would be deemed to be a perfected security interest of first priority under applicable law and will be maintained as such throughout the term of this Agreement and the Pooling and Servicing Agreement. In connection with the foregoing, the Seller authorizes the Purchaser to execute and file such UCC financing statements as the Purchaser may deem necessary or appropriate to facilitate accomplish the realization of such intended income tax treatment. Each of the Lessor and the Lease Participants agrees that neither it nor any affiliate (whether or not consolidated or combined returns are filed for such affiliate and the Lessor or any Lease Participant, as the case may be, for federal, state or local income tax purposes) will at any time take any action, directly or indirectly, or file any return or other document claiming, or asserting that it is entitled to, the income tax benefits, deductions and/or credits which, pursuant to the intended income tax treatment set forth herein, would otherwise be claimed or claimable by the Company, and that it and any such affiliates will file such returns, maintain such records, take such actions, and execute such documents (as reasonably requested by the Company from time to time) as may be appropriate to facilitate the realization of, and as shall be consistent with, such intended income tax treatment, and if any such filing, maintenance, action or execution requested by the Company or the Guarantor would result in any additional income tax liability payable by it or any affiliate, or could reasonably be expected to result in liability payable by it or any affiliate, unrelated to the intended income tax treatment set forth herein, then the Company will provide an indemnity against such unrelated income tax liability satisfactory to the Lessor or any Lease Participant, as the case may be, in its sole opinionforegoing. (c) The Company acknowledges that no Lease Participant, the Administrative Agent, the Lessor or any Affiliate of any of the foregoing thereof is making any representation, nor is it required to make any disclosure, now or in the future, with respect to the parties’ tax or accounting treatment of the Facility or the financing thereof, nor is any Lease Participant, the Lessor, the Administrative Agent, or any Affiliate or any of the foregoing responsible, nor will it be responsible in the future, for tax and accounting advice with respect to the Facility or the financing thereof, and the Company has had or will have the benefit of the advice of its own independent tax and accounting advisors with respect to such matters.

Characterization. The following expressions of intent, representations, warranties, covenants, agreements, stipulations and waivers are a material inducement to Lessor entering into this Lease: (a) In order to protect the rights Lessor and remedies of the Funding Parties following a Termination Event or a Cancellation Event, and for the purposes of commercial law and Federal, state and local income and ad valorem taxes and Title 11 of the United States Code (or any other applicable Federal, state or local insolvency, reorganization, moratorium, fraudulent conveyance or similar law now or hereafter in effect for the relief of debtors), the parties hereto Lessee intend that (i) this Lease constitutes an unseverable, unitary and single lease of all, but not less than all, of the Properties, and, if at any time this Lease be treated as the repayment and security provisions of a loan by the Lessor covers other real property in addition to the Company in the amount of the Facility CostProperties, neither this Lease, nor Lessee’s obligations or rights hereunder may be allocated or otherwise divided among such properties by Lessee; (ii) all payments this Lease is a “true lease,” is not a financing lease, capital lease, mortgage, equitable mortgage, deed of Basic Renttrust, Supplemental Renttrust agreement, the Final Rent Paymentsecurity agreement or other financing or trust arrangement, the Termination Value and the Purchase Price be treated as payments economic realities of principal, interest and other amounts owing with respect to such loan this Lease are those of a true lease; and (iii) the Company be treated as entitled to all benefits business relationship created by this Lease and any related documents is solely that of ownership a long-term commercial lease between Lessor and Lessee, the Lease has been entered into by both parties in reliance upon the economic and legal bargains contained herein, and none of the Facility agreements contained herein is intended, nor shall the same be deemed or construed, to create a partnership (de facto or de jure) between Lessor and Lessee, to make them joint venturers, to make Lessee an agent, legal representative, partner, subsidiary or employee of Lessor, nor to make Lessor in any part thereof. In additionway responsible for the debts, the parties acknowledge that after payment in full obligations or losses of the Ownership Interests, the Yield accrued thereon and any other obligations of the Company under the Operative Documents, any remaining proceeds of the Facility shall be distributed to the CompanyLessee. (b) The Company agrees that neither it nor any Lessor and Lessee covenant and agree that: (i) each will treat this Lease as an operating lease pursuant to Statement of its Affiliates (whether or not consolidated or combined returns are filed Financial Accounting Standards No. 13, as amended, and as a true lease for any such Affiliate state law reporting purposes and the Company for federal, state or local federal income tax purposes; (ii) each party will not, nor will it permit any Affiliate under its control to, at any time time, take any actionaction or fail to take any action with respect to the preparation or filing of any statement or disclosure to Governmental Authority, directly including without limitation, any income tax return (including an amended income tax return), to the extent that such action or indirectly, or file any return or other document such failure to take action would be inconsistent with the intended income tax treatment set forth intention of the parties expressed in this Section 17.04 except as otherwise required by law; (iii) with respect to the preceding clause Properties, the Lease Term is less than seventy-five percent (a)75%) of the estimated remaining economic life of the Properties; and (iv) the Base Annual Rental is the fair market value for the use of the Properties and was agreed to by Lessor and Lessee on that basis, and the Company agrees that the Company execution and any such Affiliates will file such returns, maintain such records, take such action and execute such documents (as reasonably requested by the Lessor or the Lease Participants from time to time) as may be appropriate to facilitate the realization of such intended income tax treatment. Each of the Lessor and the Lease Participants agrees that neither it nor any affiliate (whether or not consolidated or combined returns are filed for such affiliate and the Lessor or any Lease Participant, as the case may be, for federal, state or local income tax purposes) will at any time take any action, directly or indirectly, or file any return or other document claiming, or asserting that it is entitled to, the income tax benefits, deductions and/or credits which, pursuant to the intended income tax treatment set forth herein, would otherwise be claimed or claimable by the Company, and that it and any such affiliates will file such returns, maintain such records, take such actions, and execute such documents (as reasonably requested by the Company from time to time) as may be appropriate to facilitate the realization delivery of, and as shall be consistent withthe performance by Lessee of its obligations under, such intended income tax treatment, and if any such filing, maintenance, action or execution requested by the Company or the Guarantor would result in any additional income tax liability payable by it this Lease do not constitute a transfer of all or any affiliate, or could reasonably be expected to result in liability payable by it or any affiliate, unrelated to part of the intended income tax treatment set forth herein, then the Company will provide an indemnity against such unrelated income tax liability satisfactory to the Lessor or any Lease Participant, as the case may be, in its sole opinionProperties. (c) The Company acknowledges that no Lessee waives any claim or defense based upon the characterization of this Lease Participant, the Administrative Agent, the Lessor or any Affiliate as anything other than a true lease and as a master lease of any all of the foregoing thereof is making any representationProperties. Lessee stipulates and agrees (i) not to challenge the validity, nor is it required to make any disclosureenforceability or characterization of the lease of the 4839-9503-5138.10 Spirit/Malibu Boats Master Lease Agreement CA and TN File No. 6457/02-5000 29 Properties as a true lease and/or as a single, now or in the futureunitary, with respect unseverable instrument pertaining to the parties’ tax or accounting treatment lease of all, but not less than all, of the Facility Properties; and (ii) not to assert or take or omit to take any action inconsistent with the financing thereof, nor is any Lease Participant, the Lessor, the Administrative Agent, or any Affiliate or any of the foregoing responsible, nor will it be responsible agreements and understandings set forth in the future, for tax and accounting advice with respect to the Facility or the financing thereof, and the Company has had or will have the benefit of the advice of its own independent tax and accounting advisors with respect to such mattersthis Section 17.04.

Characterization. The following expressions of intent, representations, warranties, covenants, agreements, stipulations and waivers are a material inducement to Lessor entering into this Lease: 31 4849-3174-9992.2 STORE/Synalloy A&R Master Lease Agreement 7 Properties in OH, PA, SC, TN and TX File No. 7210/02-475 (a) In order to protect the rights Lessor and remedies of the Funding Parties following a Termination Event or a Cancellation Event, and for the purposes of commercial law and Federal, state and local income and ad valorem taxes and Title 11 of the United States Code (or any other applicable Federal, state or local insolvency, reorganization, moratorium, fraudulent conveyance or similar law now or hereafter in effect for the relief of debtors), the parties hereto Lessee intend that (i) this Lease constitutes an unseverable, unitary and single lease of all, but not less than all, of the Properties, and, if at any time this Lease be treated as the repayment and security provisions of a loan by the Lessor covers other real property in addition to the Company in the amount of the Facility CostProperties, neither this Lease, nor Lessee’s obligations or rights hereunder may be allocated or otherwise divided among such properties by Lessee; (ii) all payments this Lease is a “true lease,” is not a financing lease, capital lease, mortgage, equitable mortgage, deed of Basic Renttrust, Supplemental Renttrust agreement, the Final Rent Paymentsecurity agreement or other financing or trust arrangement, the Termination Value and the Purchase Price be treated as payments economic realities of principal, interest and other amounts owing with respect to such loan this Lease are those of a true lease; and (iii) the Company be treated as entitled to all benefits business relationship created by this Lease and any related documents is solely that of ownership a long-term commercial lease between Lessor and Lessee, the Lease has been entered into by both parties in reliance upon the economic and legal bargains contained herein, and none of the Facility agreements contained herein is intended, nor shall the same be deemed or construed, to create a partnership (de facto or de jure) between Lessor and Lessee, to make them joint venturers, to make Lessee an agent, legal representative, partner, subsidiary or employee of Lessor, nor to make Lessor in any part thereof. In additionway responsible for the debts, the parties acknowledge that after payment in full obligations or losses of the Ownership Interests, the Yield accrued thereon and any other obligations of the Company under the Operative Documents, any remaining proceeds of the Facility shall be distributed to the CompanyLessee. (b) The Company agrees that neither it nor any Lessor and Lessee covenant and agree that: (i) each intends to treat this Lease as an operating lease pursuant to Statement of its Affiliates (whether or not consolidated or combined returns are filed Financial Accounting Standards No. 13, as amended, and as a true lease for any such Affiliate state Law reporting purposes and the Company for federal, state or local federal income tax purposes; (ii) each party will not, nor will it permit any Affiliate to, at any time time, take any actionaction or fail to take any action with respect to the preparation or filing of any statement or disclosure to Governmental Authority, directly including without limitation, any income tax return (including an amended income tax return), to the extent that such action or indirectly, or file any return or other document such failure to take action would be inconsistent with the intended income tax treatment set forth intention of the parties expressed in this Section 18.04; (iii) with respect to the preceding clause Properties, the Lease Term is less than seventy-five percent (a)75%) of the estimated remaining economic life of the Properties; and (iv) the Base Annual Rental is the fair market value for the use of the Properties and was agreed to by Lessor and Lessee on that basis, and the Company agrees that the Company execution and any such Affiliates will file such returns, maintain such records, take such action and execute such documents (as reasonably requested by the Lessor or the Lease Participants from time to time) as may be appropriate to facilitate the realization of such intended income tax treatment. Each of the Lessor and the Lease Participants agrees that neither it nor any affiliate (whether or not consolidated or combined returns are filed for such affiliate and the Lessor or any Lease Participant, as the case may be, for federal, state or local income tax purposes) will at any time take any action, directly or indirectly, or file any return or other document claiming, or asserting that it is entitled to, the income tax benefits, deductions and/or credits which, pursuant to the intended income tax treatment set forth herein, would otherwise be claimed or claimable by the Company, and that it and any such affiliates will file such returns, maintain such records, take such actions, and execute such documents (as reasonably requested by the Company from time to time) as may be appropriate to facilitate the realization delivery of, and as shall be consistent withthe performance by Lessee of its obligations under, such intended income tax treatment, and if any such filing, maintenance, action or execution requested by the Company or the Guarantor would result in any additional income tax liability payable by it this Lease do not constitute a transfer of all or any affiliate, or could reasonably be expected to result in liability payable by it or any affiliate, unrelated to part of the intended income tax treatment set forth herein, then the Company will provide an indemnity against such unrelated income tax liability satisfactory to the Lessor or any Lease Participant, as the case may be, in its sole opinionProperties. (c) The Company acknowledges that no Lessee waives any claim or defense based upon the characterization of this Lease Participant, the Administrative Agent, the Lessor or any Affiliate as anything other than a true lease and as a master lease of any all of the foregoing thereof is making any representationProperties. Lessee stipulates and agrees (i) not to challenge the validity, nor is it required to make any disclosureenforceability or characterization of the lease of the Properties as a true lease and/or as a single, now or in the futureunitary, with respect unseverable instrument pertaining to the parties’ tax or accounting treatment lease of all, but not less than all, of the Facility Properties; and (ii) not to assert or take or omit to take any action inconsistent with the financing thereof, nor is any Lease Participant, the Lessor, the Administrative Agent, or any Affiliate or any of the foregoing responsible, nor will it be responsible agreements and understandings set forth in the future, for tax and accounting advice with respect to the Facility or the financing thereof, and the Company has had or will have the benefit of the advice of its own independent tax and accounting advisors with respect to such mattersthis Section 18.04.

Characterization. (a) In order to protect the rights and remedies of the Funding Parties following a Termination Event or a Cancellation Event, and for the purposes of commercial law and Federal, state and local income and ad valorem taxes and Title 11 of the United States Code (or any other applicable Federal, state or local insolvency, reorganization, moratorium, fraudulent conveyance or similar law now or hereafter in effect for the relief of debtors), the parties hereto intend that (i) the Lease be treated as the repayment and security provisions of a loan by the Lessor to the Company in the amount of the Facility Cost, (ii) all payments of Basic Rent, Supplemental Rent, the Final Rent Payment, the Termination Value and the Purchase Price be treated as payments of principal, interest and other amounts owing with respect to such loan and (iii) the Company be treated as entitled to all benefits of ownership of the Facility or any part thereof. In addition, the parties acknowledge that after payment in full of the Ownership Interests, the Yield accrued thereon and any other obligations of the Company under the Operative Documents, any remaining proceeds of the Facility shall be distributed to the Company. (b) The Company agrees that neither it nor any of its Affiliates (whether or not consolidated or combined returns are filed for any such Affiliate and the Company for federal, state or local income tax purposes) will at any time take any action, directly or indirectly, or file any return or other document inconsistent with the intended income tax treatment set forth in the preceding clause subsection (a), and the Company agrees that the Company and any such Affiliates will file such returns, maintain such records, take such action and execute such documents (as reasonably requested by the Lessor or the Lease Participants from time to time) as may be appropriate to facilitate the realization of such intended income tax treatment. Each of the Lessor and the Lease Participants agrees that neither it nor any affiliate (whether or not consolidated or combined returns are filed for such affiliate and the Lessor or any Lease Participant, as the case may be, for federal, state or local income tax purposes) will at any time take any action, directly or indirectly, or file any return or other document claiming, or asserting that it is entitled to, the income tax benefits, deductions and/or credits which, pursuant to the intended income tax treatment set forth herein, would otherwise be claimed or claimable by the Company, and that it and any such affiliates will file such returns, maintain such records, take such actions, and execute such documents (as reasonably requested by the Company from time to time) as may be appropriate to facilitate the realization of, and as shall be consistent with, such intended income tax treatment, and if any such filing, maintenance, action or execution requested by the Company or the Guarantor would result in any additional income tax liability payable by it or any affiliate, or could reasonably be expected to result in liability payable by it or any affiliate, unrelated to the intended income tax treatment set forth herein, then the Company will provide an indemnity against such unrelated income tax liability satisfactory to the Lessor or any Lease Participant, as the case may be, in its sole opinion. (c) The Company acknowledges that no none of any Lease Participant, the Administrative Agent, the Lessor or any Affiliate of any of the foregoing thereof is making any representation, nor is it required to make any disclosure, now or in the future, with respect to the parties’ tax or accounting treatment of the Facility or the financing thereof, nor is any Lease Participant, the Lessor, the Administrative Agent, or any Affiliate or any of the foregoing responsible, nor will it be responsible in the future, for tax and accounting advice with respect to the Facility or the financing thereof, and the Company has had or will have the benefit of the advice of its own independent tax and accounting advisors with respect to such matters.

Characterization. The following expressions of intent, representations, warranties, covenants, agreements, stipulations and waivers are a material inducement to Landlord entering into this Lease: (a) In order to protect the rights Tenant has made its own independent determination that this Lease qualifies for sale-leaseback accounting in accordance with FASB Accounting Standards Codification (ASC) Subtopic 840-40. (b) Landlord and remedies of the Funding Parties following a Termination Event or a Cancellation Event, and for the purposes of commercial law and Federal, state and local income and ad valorem taxes and Title 11 of the United States Code (or any other applicable Federal, state or local insolvency, reorganization, moratorium, fraudulent conveyance or similar law now or hereafter in effect for the relief of debtors), the parties hereto Tenant intend that (i) this 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, and the economic realities of this Lease be treated as the repayment and security provisions are those of a loan by the Lessor to the Company in the amount of the Facility Cost, true lease and (ii) all payments the business relationship created by this Lease and any related documents is solely that of Basic Rent, Supplemental Renta long term commercial lease between Landlord and Tenant, the Final Rent PaymentLease has been entered into by both parties in reliance upon the economic and legal bargains contained herein, the Termination Value and the Purchase Price be treated as payments of principal, interest and other amounts owing with respect to such loan and (iii) the Company be treated as entitled to all benefits of ownership none of the Facility agreements contained herein is intended, nor shall the same be deemed or any part thereof. In additionconstrued, the parties acknowledge that after payment in full to create a partnership (de facto or de jure) between Landlord and Tenant, to make them joint venturers, to make Tenant an agent, legal representative, partner, subsidiary or employee of the Ownership InterestsLandlord, the Yield accrued thereon and any other obligations of the Company under the Operative Documents, any remaining proceeds of the Facility shall be distributed nor to the Company. (b) The Company agrees that neither it nor any of its Affiliates (whether or not consolidated or combined returns are filed for any such Affiliate and the Company for federal, state or local income tax purposes) will at any time take any action, directly or indirectly, or file any return or other document inconsistent with the intended income tax treatment set forth in the preceding clause (a), and the Company agrees that the Company and any such Affiliates will file such returns, maintain such records, take such action and execute such documents (as reasonably requested by the Lessor or the Lease Participants from time to time) as may be appropriate to facilitate the realization of such intended income tax treatment. Each of the Lessor and the Lease Participants agrees that neither it nor any affiliate (whether or not consolidated or combined returns are filed for such affiliate and the Lessor or any Lease Participant, as the case may be, for federal, state or local income tax purposes) will at any time take any action, directly or indirectly, or file any return or other document claiming, or asserting that it is entitled to, the income tax benefits, deductions and/or credits which, pursuant to the intended income tax treatment set forth herein, would otherwise be claimed or claimable by the Company, and that it and any such affiliates will file such returns, maintain such records, take such actions, and execute such documents (as reasonably requested by the Company from time to time) as may be appropriate to facilitate the realization of, and as shall be consistent with, such intended income tax treatment, and if any such filing, maintenance, action or execution requested by the Company or the Guarantor would result make Landlord in any additional income tax liability payable by it way responsible for the debts, obligations or any affiliate, or could reasonably be expected to result in liability payable by it or any affiliate, unrelated to the intended income tax treatment set forth herein, then the Company will provide an indemnity against such unrelated income tax liability satisfactory to the Lessor or any Lease Participant, as the case may be, in its sole opinionlosses of Tenant. (c) The Company acknowledges that no Landlord and Tenant covenant and agree that: (i) each will treat this Lease Participantas an operating lease pursuant to ASC Subtopic 840-40, the Administrative Agentas amended, the Lessor or and as a true lease for state law reporting purposes and for federal income tax purposes; (ii) each party will not, nor will it permit any Affiliate of to, at any of the foregoing thereof is making time, take any representation, nor is it required action or fail to make take any disclosure, now or in the future, action with respect to the parties’ preparation or filing of any statement or disclosure to Governmental Authority, including without limitation, any income tax return (including an amended income tax return), to the extent that such action or accounting treatment such failure to take action would be inconsistent with the intention of the Facility or the financing thereof, nor is any Lease Participant, the Lessor, the Administrative Agent, or any Affiliate or any of the foregoing responsible, nor will it be responsible parties expressed in the future, for tax and accounting advice this Section 17.28; (iii) with respect to the Facility or Property, the financing thereofLease Term (including any Extension Term) is less than eighty percent (80%) of the estimated remaining economic life of the Property; and (iv) the Fixed Annual Rent is the fair market value for the use of the Property and was agreed to by Landlord and Tenant on that basis, and the Company has had execution and delivery of, and the performance by Tenant of its obligations under, this Lease do not constitute a transfer of all or will have the benefit any part of the advice Property. (d) Tenant waives any claim or defense based upon the characterization of its own independent tax this Lease as anything other than a true lease of all of the Property. Tenant stipulates and accounting advisors agrees (i) not to challenge the validity, enforceability or characterization of the lease of the Property as a true lease and/or as a single, unitary, unseverable instrument pertaining to the lease of all the Property; and (ii) not to assert or take or omit to take any action inconsistent with respect to such mattersthe agreements and understandings set forth in this Section 17.28.

Characterization. (a) In order to protect the rights and remedies of the Funding Parties Lessor, the Agent and the Lenders following a Default, an Event of Default, a Termination Event or a Cancellation Event, and for the purposes of commercial law and Federal, state and local income and ad valorem AD VALOREM taxes and Title 11 of the United States Code (or any other applicable Federal, state or local insolvency, reorganization, moratorium, fraudulent conveyance or similar law now or hereafter in effect for the relief of debtors), the parties hereto intend that (i) the Lease be treated as the repayment and security provisions of a loan by the Lessor to the Company in the amount of the Facility Cost, (ii) all payments of Basic Rent, Supplemental Rent, the Final Rent Payment or the Completion Costs Payment, as applicable, the Termination Value and the Purchase Price be treated as payments of principal, interest and other amounts owing with respect to such loan and (iii) the Company be treated as entitled to all benefits of ownership of the Facility and other Property included under the Lease or any part thereof. In addition, the parties acknowledge that after payment in full of the Ownership InterestsNotes and the Lessor Investment, the interest and Yield accrued thereon and any other obligations of the Company under the Operative Transaction Documents, any remaining proceeds of the Facility and other Property included under the Lease shall be distributed to the Company. (b) The Company agrees that neither it nor any of its Affiliates (whether or not consolidated or combined returns are filed for any such Affiliate and the Company for federal, state or local income tax purposes) will at any time take any action, directly or indirectly, or file any return or other document inconsistent with the intended income tax treatment set forth in the preceding clause (a)sentence, and the Company agrees that the Company and any such Affiliates will file such returns, maintain such records, take such action and execute such documents (as reasonably requested by the Lessor Lessor, the Agent or the Lease Participants Lenders from time to time) as may be appropriate to facilitate the realization of such intended income tax treatment. Each of the Lessor Lessor, the Agent and the Lease Participants Lenders agrees that neither it nor any affiliate (whether or not consolidated or combined returns are filed for such affiliate and the Lessor Lessor, the Agent or any Lease ParticipantLender, as the case may be, for federal, state or local income tax purposes) will at any time take any action, directly or indirectly, or file any return or other document claiming, or asserting that it is entitled to, the income tax benefits, deductions and/or credits which, pursuant to the intended income tax treatment set forth herein, would otherwise be claimed or claimable by the Company, and that it and any such affiliates will file such returns, maintain such records, take such actions, and execute such documents (as reasonably requested by the Company or the Guarantor from time to time) as may be appropriate to facilitate the realization of, and as shall be consistent with, such intended income tax treatment, and if any such filing, maintenance, action or execution requested by the Company or the Guarantor would result in any additional income tax liability payable by it or any affiliate, or could reasonably be expected to result in liability payable by it or any affiliate, unrelated to the intended income tax treatment set forth herein, then the Company will provide an indemnity against such unrelated income tax liability satisfactory to the Lessor Lessor, the Agent or any Lease ParticipantLender, as the case may be, in its sole opinion. (c) The Company acknowledges that no Lease Participantneither any Lender, the Administrative Agent, the Lessor or any Affiliate of any of the foregoing thereof is making any representation, nor is it required to make any disclosure, now or in the future, with respect to the parties’ ' tax or accounting treatment of the Facility or the financing thereof, nor is any Lease ParticipantLender, the LessorAgent, the Administrative Agent, Lessor or any Affiliate or any of the foregoing thereof responsible, nor will it be responsible in the future, for tax and accounting advice with respect to the Facility or the financing thereof, and the Company has had or will have the benefit of the advice of its own independent tax and accounting advisors with respect to such matters.

Characterization. (ai) In order to protect the rights and remedies of the Funding Parties Lessor following a Termination Default, an Event of Default, any other Cancellation Event or a Cancellation Termination Event, and for the purposes of commercial law and Federal, state and local income and ad valorem taxes taxes, Title ▇▇, ▇▇▇▇▇▇▇ ▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Code (▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Act) and Title 11 of the United States Code (or any other applicable Federal, state or local insolvency, reorganization, moratorium, fraudulent conveyance or similar law now or hereafter in effect for the relief of debtors), the parties hereto intend that (i) the this Lease be treated as the repayment and security provisions of a loan by the Lessor to the Company Lessee in the amount of the Facility Cost, (ii) all payments of Interim Rent, Basic Rent, Supplemental Rent, the Final Rent Payment, the Completion Costs Payment, the Termination Value and the Purchase Price be treated as payments of principal, interest and other amounts owing with respect to such loan and (iii) the Company Lessee be treated as entitled to all benefits of ownership of the Facility Facilities or any part thereof. In addition, the parties acknowledge that after payment in full of the Ownership Interests, the Yield accrued thereon Rent and any all other obligations of the Company Lessee to the Lessor under this Lease and the Operative Documents, any remaining proceeds of the Facility Facilities shall be distributed to the CompanyLessee. (bii) The Company Lessee agrees that neither it nor any of its Affiliates (whether or not consolidated or combined returns are filed for any such Affiliate and the Company Lessee for federal, state or local income tax purposes) will at any time take any action, directly or indirectly, or file any return or other document inconsistent with the intended income tax treatment set forth in the preceding clause (a)sentence, and the Company Lessee agrees that the Company Lessee and any such Affiliates will file such returns, maintain such records, take such action and execute such documents (as reasonably requested by the Lessor or the Lease Participants from time to time) as may be appropriate to facilitate the realization of such intended income tax treatment. Each of the The Lessor and the Lease Participants agrees that neither it nor any affiliate (whether or not consolidated or combined returns are filed for such affiliate and the Lessor or any Lease Participant, as the case may be, for federal, state or local income tax purposes) will at any time take any action, directly or indirectly, or file any return or other document claiming, or asserting that it is entitled to, the income tax benefits, deductions and/or credits which, pursuant to the intended income tax treatment set forth herein, would otherwise be claimed or claimable by the CompanyLessee or the Guarantor, and that it and any such affiliates will file such returns, maintain such records, take such actions, and execute such documents (as reasonably requested by the Company Lessee or the Guarantor from time to time) as may be appropriate to facilitate the realization of, and as shall be consistent with, such intended income tax treatment, and if any such filing, maintenance, action or execution requested by the Company Lessee or the Guarantor would result in any additional income tax liability payable by it or any affiliate, or could reasonably be expected to result in liability payable by it or any affiliate, unrelated to the intended income tax treatment set forth herein, then the Company Lessee and the Guarantor will provide an indemnity against such unrelated income tax liability satisfactory to the Lessor or any Lease Participant, as the case may beLessor, in its sole opinion. (c) The Company acknowledges that no Lease Participant, the Administrative Agent, the Lessor or any Affiliate of any of the foregoing thereof is making any representation, nor is it required to make any disclosure, now or in the future, with respect to the parties’ tax or accounting treatment of the Facility or the financing thereof, nor is any Lease Participant, the Lessor, the Administrative Agent, or any Affiliate or any of the foregoing responsible, nor will it be responsible in the future, for tax and accounting advice with respect to the Facility or the financing thereof, and the Company has had or will have the benefit of the advice of its own independent tax and accounting advisors with respect to such matters.

Characterization. The following expressions of intent, representations, warranties, covenants, agreements, stipulations and waivers are a material inducement to Lessor entering into this Lease: (a) In order to protect the rights Lessor and remedies of the Funding Parties following a Termination Event or a Cancellation Event, and for the purposes of commercial law and Federal, state and local income and ad valorem taxes and Title 11 of the United States Code (or any other applicable Federal, state or local insolvency, reorganization, moratorium, fraudulent conveyance or similar law now or hereafter in effect for the relief of debtors), the parties hereto Lessee intend that (i) this Lease constitutes an unseverable, unitary and single lease of all, but not less than all, of the Properties, and, if at any time this Lease be treated as the repayment and security provisions of a loan by the Lessor covers other real property in addition to the Company in the amount of the Facility CostProperties, neither this Lease, nor Lessee’s obligations or rights hereunder may be allocated or otherwise divided among such properties by Lessee; (ii) all payments this Lease is a “true lease,” and is not a financing lease, capital lease, mortgage, equitable mortgage, deed of Basic Renttrust, Supplemental Renttrust agreement, the Final Rent Paymentsecurity agreement or other financing or trust arrangement, the Termination Value and the Purchase Price be treated as payments economic realities of principal, interest and other amounts owing with respect to such loan this Lease are those of a true lease; and (iii) the Company be treated as entitled to all benefits business relationship created by this Lease and any related documents is solely that of ownership a long-term commercial lease between Lessor and Lessee, this Lease has been entered into by both parties in reliance upon the economic and legal bargains contained herein, and none of the Facility agreements contained herein is intended, nor shall the same be deemed or construed, to create a partnership (de facto or de jure) between Lessor and Lessee, to make them joint venturers, to make Lessee an agent, legal representative, partner, subsidiary or employee of Lessor, nor to make Lessor in any part thereof. In additionway responsible for the debts, the parties acknowledge that after payment in full obligations or losses of the Ownership Interests, the Yield accrued thereon and any other obligations of the Company under the Operative Documents, any remaining proceeds of the Facility shall be distributed to the CompanyLessee. (b) The Company agrees that neither it nor any of its Affiliates Except as provided in Section 16.04(c)(ii) below, Lessor and Lessee covenant and agree that: (whether or not consolidated or combined returns are filed i) each intends to treat this Lease as an operating lease pursuant to Accounting Standards Codification No. 842, as amended, and as a true lease for any such Affiliate state Law reporting purposes and the Company for federal, state or local federal income tax purposes; (ii) each party will not, nor will it permit any Affiliate to, at any time time, take any actionaction or fail to take any action with respect to the preparation or filing of any statement or disclosure to Governmental Authority, directly including without limitation, any income tax return (including an amended income tax return), to the extent that such action or indirectly, or file any return or other document such failure to take action would be inconsistent with the intended income tax treatment set forth intention of the parties expressed in this Section 16.04; (iii) with respect to the preceding clause Properties, the initial Lease Term is less than seventy-five percent (a)75%) of the estimated remaining economic life of the Properties; and (iv) the Base Annual Rental is the fair market value for the use of the Properties and was agreed to by L▇▇▇▇▇ and L▇▇▇▇▇ on that basis, and the Company agrees that the Company execution and any such Affiliates will file such returns, maintain such records, take such action and execute such documents (as reasonably requested by the Lessor or the Lease Participants from time to time) as may be appropriate to facilitate the realization of such intended income tax treatment. Each of the Lessor and the Lease Participants agrees that neither it nor any affiliate (whether or not consolidated or combined returns are filed for such affiliate and the Lessor or any Lease Participant, as the case may be, for federal, state or local income tax purposes) will at any time take any action, directly or indirectly, or file any return or other document claiming, or asserting that it is entitled to, the income tax benefits, deductions and/or credits which, pursuant to the intended income tax treatment set forth herein, would otherwise be claimed or claimable by the Company, and that it and any such affiliates will file such returns, maintain such records, take such actions, and execute such documents (as reasonably requested by the Company from time to time) as may be appropriate to facilitate the realization delivery of, and as shall be consistent withthe performance by Lessee of its obligations under, such intended income tax treatment, and if any such filing, maintenance, action or execution requested by the Company or the Guarantor would result in any additional income tax liability payable by it this Lease do not constitute a transfer of all or any affiliate, or could reasonably be expected to result in liability payable by it or any affiliate, unrelated to part of the intended income tax treatment set forth herein, then the Company will provide an indemnity against such unrelated income tax liability satisfactory to the Lessor or any Lease Participant, as the case may be, in its sole opinionProperties. (c) The Company acknowledges that no Lessee waives any claim or defense based upon L▇▇▇▇▇’s characterization of this Lease Participant, the Administrative Agent, the Lessor or any Affiliate as anything other than a true lease and as a master lease of any all of the foregoing thereof is making any representation, nor is it required Properties. Lessee stipulates and agrees (i) not to make any disclosure, now or in the future, with respect to the parties’ tax or accounting treatment challenge L▇▇▇▇▇’s determination of the Facility validity, enforceability or the financing thereof, nor is any characterization of this Lease Participant, the Lessor, the Administrative Agent, or any Affiliate or any of the foregoing responsibleProperties as a true lease and/or as a single, nor will it be responsible in the futureunitary, for tax and accounting advice with respect unseverable instrument pertaining to the Facility or the financing thereofthis Lease of all, and the Company has had or will have the benefit but not less than all, of the advice of its own independent tax Properties; and (ii) not to assert or take or omit to take any action inconsistent with the intentions, agreements and understandings set forth in this Section 16.04, except that Lessee may treat this Lease as a failed sale-leaseback for accounting advisors with respect purposes pursuant to such mattersAccounting Standards Codification No.’s 606 and 842.

Characterization. The following expressions of intent, representations, warranties, covenants, agreements, stipulations and waivers are a material inducement to Landlord entering into this Lease: (a) In order to protect The business relationship created by this Lease and any related documents is solely that of a long-term commercial lease between Landlord and Tenant, the rights Lease has been entered into by both parties in reliance upon the economic and remedies legal bargains contained herein, and none of the Funding Parties following agreements contained herein is intended, nor shall the same be deemed or construed, to create a Termination Event partnership (de facto or a Cancellation Eventde jure) between Landlord and Tenant, and to make them joint venturers, to make Tenant an agent, legal representative, partner, subsidiary or employee of Landlord, nor to make Landlord in any way responsible for the purposes debts, obligations or losses of commercial law and Federal, state and local income and ad valorem taxes and Title 11 of the United States Code (or any other applicable Federal, state or local insolvency, reorganization, moratorium, fraudulent conveyance or similar law now or hereafter in effect for the relief of debtors), the parties hereto intend that (i) the Lease be treated as the repayment and security provisions of a loan by the Lessor to the Company in the amount of the Facility Cost, (ii) all payments of Basic Rent, Supplemental Rent, the Final Rent Payment, the Termination Value and the Purchase Price be treated as payments of principal, interest and other amounts owing with respect to such loan and (iii) the Company be treated as entitled to all benefits of ownership of the Facility or any part thereof. In addition, the parties acknowledge that after payment in full of the Ownership Interests, the Yield accrued thereon and any other obligations of the Company under the Operative Documents, any remaining proceeds of the Facility shall be distributed to the CompanyTenant. (b) The Company agrees that neither it nor any Landlord and Tenant covenant and agree that: (i) except as may otherwise be required as a result of its Affiliates (whether or not consolidated or combined returns are filed changes in US GAAP subsequent to the Effective Date, each will treat this Lease as an operating lease pursuant to Statement of Financial Accounting Standards No. 13, as amended, and as a true lease for any such Affiliate state law reporting purposes and the Company for federal, state or local federal income tax purposes; (ii) each party will not, nor will it permit any Affiliate to, at any time time, take any actionaction or fail to take any action with respect to the preparation or filing of any statement or disclosure to Governmental Authority, directly including without limitation, any income tax return (including an amended income tax return), to the extent that such action or indirectly, or file any return or other document such failure to take action would be inconsistent with the intended income tax treatment set forth intention of the parties expressed in this Section 16.04; (iii) with respect to the preceding clause Properties, the Lease Term (a)including any Extension Term) is less than eighty percent (80%) of the estimated remaining economic life of the Properties; and (iv) the Base Annual Rental is the fair market value for the use of the Properties and was agreed to by Landlord and Tenant on that basis, and the Company agrees that the Company execution and any such Affiliates will file such returns, maintain such records, take such action and execute such documents (as reasonably requested by the Lessor or the Lease Participants from time to time) as may be appropriate to facilitate the realization of such intended income tax treatment. Each of the Lessor and the Lease Participants agrees that neither it nor any affiliate (whether or not consolidated or combined returns are filed for such affiliate and the Lessor or any Lease Participant, as the case may be, for federal, state or local income tax purposes) will at any time take any action, directly or indirectly, or file any return or other document claiming, or asserting that it is entitled to, the income tax benefits, deductions and/or credits which, pursuant to the intended income tax treatment set forth herein, would otherwise be claimed or claimable by the Company, and that it and any such affiliates will file such returns, maintain such records, take such actions, and execute such documents (as reasonably requested by the Company from time to time) as may be appropriate to facilitate the realization delivery of, and as shall be consistent withthe performance by Tenant of its obligations under, such intended income tax treatment, and if any such filing, maintenance, action or execution requested by the Company or the Guarantor would result in any additional income tax liability payable by it this Lease do not constitute a transfer of all or any affiliate, or could reasonably be expected to result in liability payable by it or any affiliate, unrelated to part of the intended income tax treatment set forth herein, then the Company will provide an indemnity against such unrelated income tax liability satisfactory to the Lessor or any Lease Participant, as the case may be, in its sole opinionProperties. (c) The Company acknowledges that no Tenant waives any claim or defense based upon the characterization of this Lease Participant, the Administrative Agent, the Lessor or any Affiliate as anything other than a true lease and as a master lease of any all of the foregoing thereof is making any representationProperties. Tenant stipulates and agrees (i) not to challenge the validity, nor is it required to make any disclosureenforceability or characterization of the lease of the Properties as a true lease and/or as a single, now or in the futureunitary, with respect unseverable instrument pertaining to the parties’ tax or accounting treatment lease of all, but not less than all, of the Facility Properties; and (ii) not to assert or take or omit to take any action inconsistent with the financing thereof, nor is any Lease Participant, the Lessor, the Administrative Agent, or any Affiliate or any of the foregoing responsible, nor will it be responsible agreements and understandings set forth in the future, for tax and accounting advice with respect to the Facility or the financing thereof, and the Company has had or will have the benefit of the advice of its own independent tax and accounting advisors with respect to such mattersthis Section 16.04.

Characterization. (a) In order to protect the rights and remedies of the Funding Parties following a Termination Event or a Cancellation Event, and for the purposes of commercial law and Federal, state and local income and ad valorem taxes and Title 11 of the United States Code (or any other applicable Federal, state or local insolvency, reorganization, moratorium, fraudulent conveyance or similar law now or hereafter in effect for the relief of debtors), the parties hereto intend that (i) the Lease be treated as the repayment and security provisions of a loan by the Lessor to the Company in the amount of the Facility Cost, (ii) all payments of Basic Rent, Supplemental Rent, the Final Rent Payment, the Completion Costs Payment, the Termination Value and the Purchase Price be treated as payments of principal, interest and other amounts owing with respect to such loan and (iii) the Company be treated as entitled to all benefits of ownership of the Facility or any part thereof. In addition, the parties acknowledge that after payment in full of the Ownership Interests, the Yield accrued thereon and any other obligations of the Company under the Operative Documents, any remaining proceeds of the Facility shall be distributed to the Company. (b) The Company agrees that neither it nor any of its Affiliates (whether or not consolidated or combined returns are filed for any such Affiliate and the Company for federal, state or local income tax purposes) will at any time take any action, directly or indirectly, or file any return or other document inconsistent with the intended income tax treatment set forth in the preceding clause (a), and the Company agrees that the Company and any such Affiliates will file such returns, maintain such records, take such action and execute such documents (as reasonably requested by the Lessor or the Lease Participants from time to time) as may be appropriate to facilitate the realization of such intended income tax treatment. Each of the Lessor and the Lease Participants agrees that neither it nor any affiliate (whether or not consolidated or combined returns are filed for such affiliate and the Lessor or any Lease Participant, as the case may be, for federal, state or local income tax purposes) will at any time take any action, directly or indirectly, or file any return or other document claiming, or asserting that it is entitled to, the income tax benefits, deductions and/or credits which, pursuant to the intended income tax treatment set forth herein, would otherwise be claimed or claimable by the Company, and that it and any such affiliates will file such returns, maintain such records, take such actions, and execute such documents (as reasonably requested by the Company from time to time) as may be appropriate to facilitate the realization of, and as shall be consistent with, such intended income tax treatment, and if any such filing, maintenance, action or execution requested by the Company or the Guarantor would result in any additional income tax liability payable by it or any affiliate, or could reasonably be expected to result in liability payable by it or any affiliate, unrelated to the intended income tax treatment set forth herein, then the Company will provide an indemnity against such unrelated income tax liability satisfactory to the Lessor or any Lease Participant, as the case may be, in its sole opinion. (c) The Company acknowledges that no Lease Participant, the Administrative Agent, the Lessor or any Affiliate of any of the foregoing thereof is making any representation, nor is it required to make any disclosure, now or in the future, with respect to the parties’ ' tax or accounting treatment of the Facility or the financing thereof, nor is any Lease Participant, the Lessor, the Administrative Agent, Lessor or any Affiliate or any of the foregoing responsible, nor will it be responsible in the future, for tax and accounting advice with respect to the Facility or the financing thereof, and the Company has had or will have the benefit of the advice of its own independent tax and accounting advisors with respect to such matters.

Characterization. (a) In order to protect It is the rights and remedies intent of the Funding Parties following a Termination Event or a Cancellation Event, and Company that the Lease will be treated as an operating lease for accounting purposes. It is the purposes of commercial law and Federal, state and local income and ad valorem taxes and Title 11 intent of the United States Code (or any other applicable Federal, state or local insolvency, reorganization, moratorium, fraudulent conveyance or similar law now or hereafter in effect Company and each Lessor Party and the Company and each Lessor Party agree that for the relief of debtors)all U.S. tax purposes, the parties hereto intend that (i) the Lease and other Operative Documents shall be treated as the repayment and security provisions of a loan by the each Lessor Party to the Company in and that the amount Company will be treated as the legal and beneficial owner of the Facility CostProperty entitled to cost recovery deductions and all other tax benefits attributable to the ownership of the Property and all payments of Permitted Lease Balance, Termination Value, Residual Value Amount, Fixed Rent and Additional Rent during the Lease Term shall be treated as payments of interest and principal. Further, for purposes of bankruptcy and secured party enforcement purposes, the parties hereto intend that (i) the Lease and the other Operative Documents shall be treated as the repayment and security provisions of a loan to the Company and (ii) all payments of Basic RentPermitted Lease Balance, Supplemental RentTermination Value, Residual Value Amount, Fixed Rent and Additional Rent to the Final Rent Payment, the Termination Value and the Purchase Price extent payable hereunder or under any other Operative Document shall be treated as payments of principal, interest and other amounts owing with respect to such loan and (iii) the Company be treated as entitled to all benefits of ownership of the Facility or any part thereofloan, respectively. In addition, the parties acknowledge event that after payment in full of the Ownership Interests, the Yield accrued thereon and any other obligations of the Company under transactions contemplated by the Operative Documents, any remaining proceeds of the Facility shall be distributed to the Company. (b) The Company agrees that neither it nor any of its Affiliates (whether or Documents are not consolidated or combined returns are filed for any such Affiliate and the Company for federal, state or local income tax purposes) will at any time take any action, directly or indirectly, or file any return or other document inconsistent with the intended income tax treatment set forth in the preceding clause (a), and the Company agrees that the Company and any such Affiliates will file such returns, maintain such records, take such action and execute such documents (as reasonably requested by the Lessor or the Lease Participants from time to time) as may be appropriate to facilitate the realization of such intended income tax treatment. Each of the Lessor and the Lease Participants agrees that neither it nor any affiliate (whether or not consolidated or combined returns are filed for such affiliate and the Lessor or any Lease Participant, as the case may be, for federal, state or local income tax purposes) will at any time take any action, directly or indirectly, or file any return or other document claiming, or asserting that it is entitled to, the income tax benefits, deductions and/or credits which, pursuant to the intended income tax treatment set forth herein, would otherwise be claimed or claimable by the Company, and that it and any such affiliates will file such returns, maintain such records, take such actions, and execute such documents (as reasonably requested by the Company from time to time) as may be appropriate to facilitate the realization of, and as shall be consistent with, such intended income tax treatment, and if any such filing, maintenance, action or execution requested by the Company or the Guarantor would result in any additional income tax liability payable by it or any affiliate, or could reasonably be expected to result in liability payable by it or any affiliate, unrelated to the intended income tax treatment set forth herein, then the Company will provide an indemnity against such unrelated income tax liability satisfactory to the Lessor or any Lease Participant, as the case may be, in its sole opinion. (c) The Company acknowledges that no Lease Participant, the Administrative Agent, the Lessor or any Affiliate of any of the foregoing thereof is making any representation, nor is it required to make any disclosure, now or in the future, with respect to the parties’ tax or accounting treatment of the Facility or the financing thereof, nor is any Lease Participant, the Lessor, the Administrative Agent, or any Affiliate or any of the foregoing responsible, nor will it be responsible in the future, treated for tax and accounting advice purposes in a manner consistent with respect the intent of the parties as described in this Section 5.05(a), then, at the Company's reasonable request and at its sole cost and expense, each of the parties hereto hereby agrees that it shall reasonably cooperate with the Company to amend the Operative Documents to accomplish such intended treatment; provided that no amendments to the Facility Operative Documents shall be entered into in connection with this provision if such amendments would in any way adversely affect any of such Person's rights or interests in the financing thereofProperty or any Operative Document, and or cause any such Person to incur any additional risks or to incur any additional costs or expenses not otherwise satisfactorily indemnified by the Company has had or will have the benefit of the advice of its own independent tax and accounting advisors with respect to such mattersCompany.

Characterization. The following expressions of intent, representations, warranties, covenants, agreements, stipulations and waivers are a material inducement to Landlord entering into this Lease: (a) In order to protect the rights Landlord and remedies of the Funding Parties following a Termination Event or a Cancellation Event, and for the purposes of commercial law and Federal, state and local income and ad valorem taxes and Title 11 of the United States Code (or any other applicable Federal, state or local insolvency, reorganization, moratorium, fraudulent conveyance or similar law now or hereafter in effect for the relief of debtors), the parties hereto Tenant intend that that: (i) this Lease constitutes an un-severable, unitary and single lease of all, but not less than all, of the Properties, and if at any time this Lease be treated as the repayment and security provisions of a loan by the Lessor covers other real property in addition to the Company in the amount of the Facility CostProperties, neither this Lease, nor Tenant’s obligations or rights hereunder may be allocated or otherwise divided among such properties by Tenant; (ii) all payments of Basic Rent, Supplemental Rent, the Final Rent Payment, the Termination Value and the Purchase Price be treated as payments of principal, interest and other amounts owing with respect to such loan and this Lease does not constitute separate leases contained in one document; (iii) the Company be treated as entitled to all benefits of ownership use of the Facility or any expression “unitary lease” to describe this Lease is not merely for convenient reference, but is the conscious choice of the parties to express the intent of the parties in regard to an integral part thereofof this transaction. In additionTo accomplish the creation of a unitary lease, the parties acknowledge intend that after payment the Rental and all other provisions of this Lease have been negotiated and agreed to based on a demise of all the Properties covered by this Lease as a single, composite, inseparable transaction; (iv) this 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, and the economic realities of this Lease are those of a true lease; (v) except as expressly provided in full this Lease, the Rental payable hereunder is payable for the Properties as a single, indivisible, integrated transaction and that but for such integration, the Rental would have been computed on a different basis; and (vi) the business relationship created by this Lease and any related documents is solely that of a long-term commercial lease between Landlord and Tenant, the Lease has been entered into by both parties in reliance upon the economic and legal bargains contained herein, and none of the Ownership Interestsagreements contained herein is intended, nor shall the same be deemed or construed, to create a partnership (de facto or de jure) between Landlord and Tenant, to make them joint venturers, to make Tenant an agent, legal representative, partner, subsidiary or employee of Landlord, nor to make Landlord in any way responsible for the debts, obligations or losses of Tenant. Except as expressly provided in this Lease for specific isolated purposes (and in such cases only to the extent expressly so stated), all provisions of this Lease, including definitions, commencement and expiration dates, rental provisions, use provisions, renewal provisions, breach, default, enforcement and termination provisions and assignment and subletting provisions, shall apply equally and uniformly to all the Premises as one unit and are not severable. A default of any of the terms or conditions of this Lease occurring with respect to any one Property shall be a default under this Lease with respect to all the Properties. Except as expressly provided in this Lease for specific isolated purposes (and in such cases only to the extent expressly so stated), the Yield accrued thereon provisions of this Lease shall at all times be construed, interpreted and any other obligations applied such that the intention of the Company under the Operative Documents, any remaining proceeds of the Facility Landlord and Tenant to create a unitary lease shall be distributed to the Companypreserved and maintained. (b) The Company agrees that neither it nor any of its Affiliates Landlord and Tenant covenant and agree that: (whether or not consolidated or combined returns are filed i) each will treat this Lease as an operating lease pursuant to Accounting Standards Codification (ASC) 842, as amended, and as a true lease for any such Affiliate state law reporting purposes and the Company for federal, state or local federal income tax purposes; (ii) each party will not, nor will it permit any Affiliate to, at any time time, take any actionaction or fail to take any action with respect to the preparation or filing of any statement or disclosure to Governmental Authority, directly including without limitation, any income tax return (including an amended income tax return), to the extent that such action or indirectly, or file any return or other document such failure to take action would be inconsistent with the intended income tax treatment set forth intention of the parties expressed in this Section 18.04; (iii) with respect to the preceding clause Properties, the Lease Term (a)including any Extension Term) is less than eighty percent (80%) of the estimated remaining economic life of the Properties; and (iv) the Base Annual Rental is the fair market value for the use of the Properties and was agreed to by Landlord and Tenant on that basis, and the Company agrees that the Company execution and any such Affiliates will file such returns, maintain such records, take such action and execute such documents (as reasonably requested by the Lessor or the Lease Participants from time to time) as may be appropriate to facilitate the realization of such intended income tax treatment. Each of the Lessor and the Lease Participants agrees that neither it nor any affiliate (whether or not consolidated or combined returns are filed for such affiliate and the Lessor or any Lease Participant, as the case may be, for federal, state or local income tax purposes) will at any time take any action, directly or indirectly, or file any return or other document claiming, or asserting that it is entitled to, the income tax benefits, deductions and/or credits which, pursuant to the intended income tax treatment set forth herein, would otherwise be claimed or claimable by the Company, and that it and any such affiliates will file such returns, maintain such records, take such actions, and execute such documents (as reasonably requested by the Company from time to time) as may be appropriate to facilitate the realization delivery of, and as shall be consistent withthe performance by Tenant of its obligations pursuant to, such intended income tax treatment, and if any such filing, maintenance, action or execution requested by the Company or the Guarantor would result in any additional income tax liability payable by it this Lease do not constitute a transfer of all or any affiliate, or could reasonably be expected to result in liability payable by it or any affiliate, unrelated to part of the intended income tax treatment set forth herein, then the Company will provide an indemnity against such unrelated income tax liability satisfactory to the Lessor or any Lease Participant, as the case may be, in its sole opinionProperties. (c) The Company Tenant waives any claim or defense based upon the characterization of this Lease as anything other than a true lease and as a master lease of all of the Properties. Tenant stipulates and agrees: (i) not to challenge the validity, enforceability or characterization of the lease of the Properties as a true lease and/or as a single, unitary, un-severable instrument pertaining to the lease of all, but not less than all, of the Properties; and (ii) not to assert or take or omit to take any action inconsistent with the agreements and understandings set forth in this Section 18.04. (d) Tenant acknowledges that no fee simple title (both legal and equitable) is in Landlord and that Tenant has only the leasehold right of possession and use of the Properties as provided herein. (e) For the purposes of any assumption, rejection or assignment of this Lease Participant, the Administrative Agent, the Lessor under 11 U.S.C. Section 365 or any Affiliate of any of the foregoing thereof amendment or successor section thereof, this is making any representationone indivisible and non-severable lease dealing with all Properties which must be assumed, nor is it required to make any disclosure, now rejected or in the future, assigned as a whole with respect to the parties’ tax or accounting treatment all (and only all) of the Facility or the financing thereof, nor is any Lease Participant, the Lessor, the Administrative Agent, or any Affiliate or any of the foregoing responsible, nor will it be responsible in the future, for tax and accounting advice with respect to the Facility or the financing thereof, and the Company has had or will have the benefit of the advice of its own independent tax and accounting advisors with respect to such mattersProperties.

Characterization. (a) In order to protect the rights and remedies of the Funding Parties following a Termination Event or a Cancellation EventLessor, the Agent and the Lenders for the purposes of commercial law and Federal, state and local income and ad valorem taxes and Title 11 of the United States Code (or any other applicable Federal, state or local insolvency, reorganization, moratorium, fraudulent conveyance or similar law now or hereafter in effect for the relief of debtorseffect), the parties hereto intend that (i) the Lease be treated as the repayment and security provisions of a loan by the Lessor to the Company in the amount of the Facility Cost, (ii) all payments of Basic Rent, Interim Special Rent, Supplemental Rent, the Final Rent Payment or the Completion Costs Payment, as applicable, the Termination Value and the Purchase Price be treated as payments of principal, interest and other amounts owing with respect to such loan and (iii) the Company be treated as entitled to all benefits of ownership of the Facility or any part thereof. In addition, the parties acknowledge that after payment in full of the Ownership InterestsNotes, the Yield interest and yield accrued thereon and any other obligations of the Company under the Operative Documents, any remaining proceeds of the Facility shall be distributed to the Company. (b) The Company agrees that neither it nor any of its Affiliates (whether or not consolidated or combined returns are filed for any such Affiliate and the Company for federal, state or local income tax purposes) will at any time take any action, directly or indirectly, or file any return or other document inconsistent with the intended income tax treatment set forth in the preceding clause (a)sentence, and the Company agrees that the Company and any such Affiliates will file such returns, maintain such records, take such action and execute such documents (as reasonably requested by the Lessor Lessor, the Agent or the Lease Participants Lenders from time to time) as may be appropriate to facilitate the realization of such intended income tax treatment. Each of the Lessor Lessor, the Agent and the Lease Participants Lenders agrees that neither it nor any affiliate (whether or not consolidated or combined returns are filed for such affiliate and the Lessor Lessor, the Agent or any Lease ParticipantLender, as the case may be, for federal, state or local income tax purposes) will at any time take any action, directly or indirectly, or file any return or other document claiming, or asserting that it is entitled to, the income tax benefits, deductions and/or credits which, pursuant to the intended income tax treatment set forth herein, would otherwise be claimed or claimable by the Company, and that it and any such affiliates will file such returns, maintain such records, take such actions, and execute such documents (as reasonably requested by the Company from time to time) as may be appropriate to facilitate the realization of, and as shall be consistent with, such intended income tax treatment, and if any such filing, maintenance, action or execution requested by the Company or the Guarantor would result in any additional income tax liability payable by it or any affiliate, or could reasonably be expected to result in liability payable by it or any affiliate, unrelated to the intended income tax treatment set forth herein, then the Company will provide an indemnity against such unrelated income tax liability satisfactory to the Lessor Lessor, the Agent or any Lease ParticipantLender, as the case may be, in its sole opinion. (c) The Company acknowledges that no Lease Participantneither any Lender, the Administrative Agent, the Lessor or any Affiliate of any of the foregoing thereof is making any representation, nor is it required to make any disclosure, now or in the future, with respect to the parties’ ' tax or accounting treatment of the Facility or the financing thereof, nor is any Lease ParticipantLender, the LessorAgent, the Administrative Agent, Lessor or any Affiliate or any of the foregoing thereof responsible, nor will it be responsible in the future, for tax and accounting advice with respect to the Facility or the financing thereof, and the Company has had or will have the benefit of the advice of its own independent tax and accounting advisors with respect to such matters.

Characterization. (a) In order to protect the rights and remedies of the Funding Parties following a Termination Event or a Cancellation Event, and for the purposes of commercial law and Federal, state and local income and ad valorem taxes and Title 11 of the United States Code (or any other applicable Federal, state or local insolvency, reorganization, moratorium, fraudulent conveyance or similar law now or hereafter in effect for the relief of debtors), the parties hereto intend that (i) the Lease be treated as the repayment and security provisions of a loan by the Lessor to the Company in the amount of the Facility Cost, (ii) all payments of Basic Rent, Interim Special Rent, Supplemental Rent, the Final Rent Payment, the Completion Costs Payment, the Termination Value and the Purchase Price be treated as payments of principal, interest and other amounts owing with respect to such loan and (iii) the Company be treated as entitled to all benefits of ownership of the Facility or any part thereof. In addition, the parties acknowledge that after payment in full of the Ownership Interests, the Yield accrued thereon and any other obligations of the Company under the Operative Documents, any remaining proceeds of the Facility shall be distributed to the Company. (b) The Company agrees that neither it nor any of its Affiliates (whether or not consolidated or combined returns are filed for any such Affiliate and the Company for federal, state or local income tax purposes) will at any time take any action, directly or indirectly, or file any return or other document inconsistent with the intended income tax treatment set forth in the preceding clause (a)sentence, and the Company agrees that the Company and any such Affiliates will file such returns, maintain such records, take such action and execute such documents (as reasonably requested by the Lessor or the Lease Participants from time to time) as may be appropriate to facilitate the realization of such intended income tax treatment. Each of the Lessor and the Lease Participants agrees that neither it nor any affiliate (whether or not consolidated or combined returns are filed for such affiliate and the Lessor or any Lease Participant, as the case may be, for federal, state or local income tax purposes) will at any time take any action, directly or indirectly, or file any return or other document claiming, or asserting that it is entitled to, the income tax benefits, deductions and/or credits which, pursuant to the intended income tax treatment set forth herein, would otherwise be claimed or claimable by the Company, and that it and any such affiliates will file such returns, maintain such records, take such actions, and execute such documents (as reasonably requested by the Company from time to time) as may be appropriate to facilitate the realization of, and as shall be consistent with, such intended income tax treatment, and if any such filing, maintenance, action or execution requested by the Company or the Guarantor would result in any additional income tax liability payable by it or any affiliate, or could reasonably be expected to result in liability payable by it or any affiliate, unrelated to the intended income tax treatment set forth herein, then the Company will provide an indemnity against such unrelated income tax liability satisfactory to the Lessor or any Lease Participant, as the case may be, in its sole opinion. (c) The Company acknowledges that no neither any Lease Participant, the Administrative Agent, the Lessor or any Affiliate of any of the foregoing thereof is making any representation, nor is it required to make any disclosure, now or in the future, with respect to the parties’ ' tax or accounting treatment of the Facility or the financing thereof, nor is any Lease Participant, the Lessor, the Administrative Agent, Lessor or any Affiliate or any of the foregoing responsible, nor will it be responsible in the future, for tax and accounting advice with respect to the Facility or the financing thereof, and the Company has had or will have the benefit of the advice of its own independent tax and accounting advisors with respect to such matters.

Characterization. The following expressions of intent, representations, warranties, covenants, agreements, stipulations and waivers are a material inducement to Lessor entering into this Lease: (a) In order to protect the rights Lessor and remedies of the Funding Parties following a Termination Event or a Cancellation Event, and for the purposes of commercial law and Federal, state and local income and ad valorem taxes and Title 11 of the United States Code (or any other applicable Federal, state or local insolvency, reorganization, moratorium, fraudulent conveyance or similar law now or hereafter in effect for the relief of debtors), the parties hereto Lessee intend that (i) this Lease constitutes an unseverable, unitary and single lease of all, but not less than all, of the Properties, and, if at any time this Lease be treated as the repayment and security provisions of a loan by the Lessor covers other real property in addition to the Company in the amount of the Facility CostProperties, neither this Lease, nor Lessee’s obligations or rights hereunder may be allocated or otherwise divided among such properties by Lessee; (ii) all payments this Lease is a “true lease,” and is not a financing lease, capital lease, mortgage, equitable mortgage, deed of Basic Renttrust, Supplemental Renttrust agreement, the Final Rent Paymentsecurity agreement or other financing or trust arrangement, the Termination Value and the Purchase Price be treated as payments economic realities of principal, interest and other amounts owing with respect to such loan this Lease are those of a true lease; and (iii) the Company be treated as entitled to all benefits business relationship created by this Lease and any related documents is solely that of ownership a long-term commercial lease between Lessor and Lessee, this Lease has been entered into by both parties in reliance upon the economic and legal bargains contained herein, and none of the Facility agreements contained herein is intended, nor shall the same be deemed or construed, to create a partnership (de facto or de jure) between Lessor and Lessee, to make them joint venturers, to make Lessee an agent, legal representative, partner, subsidiary or employee of Lessor, nor to make Lessor in any part thereof. In additionway responsible for the debts, the parties acknowledge that after payment in full obligations or losses of the Ownership Interests, the Yield accrued thereon and any other obligations of the Company under the Operative Documents, any remaining proceeds of the Facility shall be distributed to the CompanyLessee. (b) The Company agrees that neither it nor any of its Affiliates Except as provided in Section 16.04(c)(ii) below, Lessor and Lessee covenant and agree that: (whether or not consolidated or combined returns are filed i) each intends to treat this Lease as an operating lease pursuant to Accounting Standards Codification No. 842, as amended, and as a true lease for any such Affiliate state Law reporting purposes and the Company for federal, state or local federal income tax purposes; (ii) each party will not, nor will it permit any Affiliate to, at any time time, take any actionaction or fail to take any action with respect to the preparation or filing of any statement or disclosure to Governmental Authority, directly including without limitation, any income tax return (including an amended income tax return), to the extent that such action or indirectly, or file any return or other document such failure to take action would be inconsistent with the intended income tax treatment set forth intention of the parties expressed in this Section 16.04; (iii) with respect to the preceding clause Properties, the initial Lease Term is less than seventy-five percent (a)75%) of the estimated remaining economic life of the Properties; and (iv) the Base Annual Rental is the fair market value for the use of the Properties and was agreed to by ▇▇▇▇▇▇ and ▇▇▇▇▇▇ on that basis, and the Company agrees that the Company execution and any such Affiliates will file such returns, maintain such records, take such action and execute such documents (as reasonably requested by the Lessor or the Lease Participants from time to time) as may be appropriate to facilitate the realization of such intended income tax treatment. Each of the Lessor and the Lease Participants agrees that neither it nor any affiliate (whether or not consolidated or combined returns are filed for such affiliate and the Lessor or any Lease Participant, as the case may be, for federal, state or local income tax purposes) will at any time take any action, directly or indirectly, or file any return or other document claiming, or asserting that it is entitled to, the income tax benefits, deductions and/or credits which, pursuant to the intended income tax treatment set forth herein, would otherwise be claimed or claimable by the Company, and that it and any such affiliates will file such returns, maintain such records, take such actions, and execute such documents (as reasonably requested by the Company from time to time) as may be appropriate to facilitate the realization delivery of, and as shall be consistent withthe performance by Lessee of its obligations under, such intended income tax treatment, and if any such filing, maintenance, action or execution requested by the Company or the Guarantor would result in any additional income tax liability payable by it this Lease do not constitute a transfer of all or any affiliate, or could reasonably be expected to result in liability payable by it or any affiliate, unrelated to part of the intended income tax treatment set forth herein, then the Company will provide an indemnity against such unrelated income tax liability satisfactory to the Lessor or any Lease Participant, as the case may be, in its sole opinionProperties. (c) The Company acknowledges that no Lessee waives any claim or defense based upon ▇▇▇▇▇▇’s characterization of this Lease Participant, the Administrative Agent, the Lessor or any Affiliate as anything other than a true lease and as a master lease of any all of the foregoing thereof is making any representation, nor is it required Properties. Lessee stipulates and agrees (i) not to make any disclosure, now or in the future, with respect to the parties’ tax or accounting treatment challenge ▇▇▇▇▇▇’s determination of the Facility validity, enforceability or the financing thereof, nor is any characterization of this Lease Participant, the Lessor, the Administrative Agent, or any Affiliate or any of the foregoing responsibleProperties as a true lease and/or as a single, nor will it be responsible in the futureunitary, for tax and accounting advice with respect unseverable instrument pertaining to the Facility or the financing thereofthis Lease of all, and the Company has had or will have the benefit but not less than all, of the advice of its own independent tax Properties; and (ii) not to assert or take or omit to take any action inconsistent with the intentions, agreements and understandings set forth in this Section 16.04, except that Lessee may treat this Lease as a failed sale-leaseback for accounting advisors with respect purposes pursuant to such mattersAccounting Standards Codification No.’s 606 and 842.