Common use of Nature of Transaction Clause in Contracts

Nature of Transaction. It is the intent of the parties that: (a) the transaction contemplated hereby constitutes an operating lease from Lessor to Lessee for purposes of Lessee's financial reporting and record title to the Acquired Property shall at all times during the Lease Term remain in Lessor, (b) the transaction contemplated hereby preserves ownership in the Acquired Property to Lessee for all other purposes including Federal, state and local income tax, regulatory, bankruptcy and UCC and state commercial law purposes, (c) this Lease grants a Lien in the Acquired Property and the other Lessee Collateral to Lessor, and (d) this Lease shall be treated as the repayment and security provisions of a loan from Lessor to Lessee in the amount of the Purchase Price, and (e) all payments hereunder to Lessor shall be treated as payments of principal, interest and all other amounts with respect to such loan. Except as specifically provided for herein, Lessor shall retain title to the Units, free and clear of all Liens other than Permitted Liens, as security for the obligations of Lessee under the Operative Documents. Lessee shall not have any right, title or interest in the Acquired Property except as expressly set forth in this Lease. Each of the parties to this Lease agrees that it will not, nor will any Person controlled by it, or under common control with it, directly or indirectly, at any time take any action or fail to take any action with respect to the filing of any income tax return, including an amended income tax return, inconsistent with the intention of the parties expressed in this Section 2.4. It is the intent of the parties hereto that the Units shall be and remain personal property and not a fixture notwithstanding the manner in which any Unit shall be attached or affixed to realty. The parties further agree that the Units shall constitute personal property for all purposes of the laws of each State where any Unit may be located. Lessee shall take no action with respect to the Units which would be inconsistent with such intent.

Nature of Transaction. It is the intent of the parties that: (a) that the transaction contemplated hereby constitutes an operating lease from Lessor to Lessee for purposes of Lessee's financial reporting only. The parties agree that for all other purposes, including, without limitation, Federal and record title to state and local income tax, bankruptcy, insolvency, conservatorship, receivership, commercial law and UCC purposes (including the Acquired Property shall at all times during the substantive law upon which such bankruptcy, insolvency, conservatorship and receivership proceedings are based) (a) this Lease Term remain in Lessorwill be treated as a financing transaction, (b) the transaction contemplated hereby preserves ownership in the Acquired Property to Lessee for all other purposes including Federal, state and local income tax, regulatory, bankruptcy and UCC and state commercial law purposesItems of Equipment in Lessee, (c) this Lease grants a Lien in the Acquired Property Items of Equipment and the other Lessee Collateral to Lessor, and (d) this Lease shall be treated as the repayment obligations of Lessee to pay deemed principal portion and security provisions deemed interest portion of a loan from Lessor to Lessee in the amount of the Purchase Price, and (e) all payments hereunder to Lessor Rent shall be treated as payments of principalprincipal and interest, interest respectively, and all (e) Lessee will be treated as the owner of the Items of Equipment and Lessor shall be treated as having advanced funds to Lessee in the form of a loan secured by a Lien on the Items of Equipment and the other amounts with respect to such loanLessee Collateral. Except as specifically provided for herein, Lessor shall retain title be deemed to have a first priority, perfected LSI Logic Corporation Lease A security interest in and Lien on the UnitsItems of Equipment and the other Lessee Collateral, free and clear of all Liens other than Permitted Liens, as security for the obligations of Lessee under the Operative Documents. Lessee shall not have any rightExcept as otherwise provided by law or in connection with a settlement, title compromise or interest in adjudication made under the Acquired Property except as expressly set forth in this Lease. Each provisions of Section 11.2(c), each of the parties to this Lease agrees that it will not, nor will it permit any Person controlled by it, or under common control with it, directly or indirectly, Affiliate to at any time time, take any action or fail to take any action with respect to the filing of any income tax return, including an amended income tax return, inconsistent with the intention of the parties expressed in this Section 2.4. It is the intent of the parties hereto that the Units shall be and remain personal property and not a fixture notwithstanding the manner in which any Unit shall be attached or affixed to realty. The parties further agree that the Units shall constitute personal property for all purposes of the laws of each State where any Unit may be located. Lessee shall take no action with respect to the Units which would be inconsistent with such intent.

Nature of Transaction. It is the intent of the parties that: (a) that the transaction contemplated hereby constitutes an operating lease from Lessor to Lessee for purposes of Lessee's financial reporting only. The parties agree that for all other purposes, including, without limitation, Federal and record title to state and local income tax, bankruptcy, insolvency, conservatorship, receivership, commercial law and UCC purposes (including the Acquired Property shall at all times during the substantive law upon which such bankruptcy, insolvency, conservatorship and receivership proceedings are based) (a) this Lease Term remain in Lessorwill be treated as a financing transaction, (b) the transaction contemplated hereby preserves ownership in the Acquired Property to Lessee for all other purposes including Federal, state and local income tax, regulatory, bankruptcy and UCC and state commercial law purposesItems of Equipment in Lessee, (c) this Lease grants a Lien in the Acquired Property Items of Equipment and the other Lessee Collateral to Lessor, and (d) this Lease shall be treated as the repayment obligations of Lessee to pay deemed principal portion and security provisions deemed interest portion of a loan from Lessor to Lessee in the amount of the Purchase Price, and (e) all payments hereunder to Lessor Rent shall be treated as payments of principalprincipal and interest, interest respectively, and all (e) Lessee will be treated as the owner of the Items of Equipment and Lessor shall be treated as having advanced funds to Lessee in the form of a loan secured by a Lien on the Items of Equipment and the other amounts with respect to such loanLessee Collateral. Except as specifically provided for herein, Lessor shall retain title be deemed to have a first priority, perfected LSI Logic Corporation Lease B security interest in and Lien on the UnitsItems of Equipment and the other Lessee Collateral, free and clear of all Liens other than Permitted Liens, as security for the obligations of Lessee under the Operative Documents. Lessee shall not have any rightExcept as otherwise provided by law or in connection with a settlement, title compromise or interest in adjudication made under the Acquired Property except as expressly set forth in this Lease. Each provisions of Section 11.2(c), each of the parties to this Lease agrees that it will not, nor will it permit any Person controlled by it, or under common control with it, directly or indirectly, Affiliate to at any time time, take any action or fail to take any action with respect to the filing of any income tax return, including an amended income tax return, inconsistent with the intention of the parties expressed in this Section 2.4. It is the intent of the parties hereto that the Units shall be and remain personal property and not a fixture notwithstanding the manner in which any Unit shall be attached or affixed to realty. The parties further agree that the Units shall constitute personal property for all purposes of the laws of each State where any Unit may be located. Lessee shall take no action with respect to the Units which would be inconsistent with such intent.

Nature of Transaction. It is (a) The parties hereto intend that, with respect to the Property and the Master Lease, (i) for financial accounting purposes with respect to the Lessee, (x) the Master Lease will be treated as an "operating lease" pursuant to Statement of Financial Accounting Standards (SFAS) No. 13, as amended, (y) the Lessor will be treated as the owner and the lessor of the Property to which it holds title subject to the Master Lease and the Lessee will be treated as the lessee of the Property, (ii) for federal and all state and local income tax purposes and bankruptcy purposes, (A) the Master Lease will be treated as a financing arrangement, (B) the Note Purchaser with respect to the Notes, the Tranche B Banks with respect to the Tranche B Loans, the Liquidity Banks with respect to the Liquidity Loans, and the New Partners with respect to the Equity Investment will be deemed to be lenders making loans to the Lessee in an aggregate amount equal to the Outstanding Lease Balance, which loans are secured, inter alia, by the Property subject to the Master Lease, and (C) the Lessee under the Master Lease will be treated as the owner of the Property and will be entitled to all tax benefits ordinarily available to an owner of property like such Property for such tax purposes, and (iii) all risks relating to environmental matters shall be borne by the Lessee in accordance with the provisions of this Participation Agreement and the Environmental Indemnity Agreement. (b) The parties hereto intend that, for federal, state, local and foreign tax and regulatory purposes, the Notes, the Tranche B Loan, any Liquidity Loans and the Equity Investment will be Indebtedness of the Lessee secured, inter alia, by the Property and the rights to payment of Rent under the Master Lease, and agree to treat the Notes, the Tranche B Loan, any Liquidity Loans and the Equity Investment accordingly for all such purposes. (c) Notwithstanding anything else to the contrary set forth herein, each Transaction Party acknowledges and agrees that none of the other Transaction Parties has made any representations or warranties concerning the tax, accounting or (except as otherwise expressly contained in this Participation Agreement or other Operative Documents) legal characteristics of the Operative Documents and that each Transaction Party, respectively, has obtained and relied upon such tax, accounting and legal advice concerning the Operative Documents as it deems appropriate. (d) Specifically, without limiting the generality of the foregoing, the parties hereto intend and agree that in the event of any insolvency or receivership proceedings or a petition under the United States bankruptcy laws or any other applicable insolvency laws or statutes of the United States of America or any state or commonwealth thereof affecting the Lessee or any other Transaction Party or any collection actions, the transactions evidenced by the Operative Documents are loans made to the Lessee by the New Partners through the Lessor (using their own funds as well as funds provided by the Note Purchaser, the Tranche B Banks and/or the Liquidity Banks as unrelated third party lenders). (e) In furtherance of the intent of the parties that: (a) the transaction contemplated hereby constitutes an operating lease from Lessor to Lessee for purposes of Lessee's financial reporting and record title to the Acquired Property shall at all times during the Lease Term remain in Lessor, (b) the transaction contemplated hereby preserves ownership in the Acquired Property to Lessee for all other purposes including Federal, state and local income tax, regulatory, bankruptcy and UCC and state commercial law purposes, (c) this Lease grants a Lien in the Acquired Property and the other Lessee Collateral to Lessor, and (d) this Lease shall be treated as the repayment and security provisions of a loan from Lessor to Lessee in the amount of the Purchase Price, and (e) all payments hereunder to Lessor shall be treated as payments of principal, interest and all other amounts with respect to such loan. Except as specifically provided for herein, Lessor shall retain title to the Units, free and clear of all Liens other than Permitted Liens, as security for the obligations of Lessee under the Operative Documents. Lessee shall not have any right, title or interest in the Acquired Property except as expressly set forth in this Lease. Each Section 5.1, the Lessee hereby absolutely, unconditionally and irrevocably (i) agrees to pay in full when due (after giving effect to any applicable grace period), whether at stated maturity, by required prepayment, declaration, acceleration, demand or otherwise, all amounts owing to the Lessor Parties (including all such amounts which would become due but for the operation of the parties to this Lease agrees that it will not, nor will any Person controlled by it, or automatic stay under common control with it, directly or indirectly, at any time take any action or fail to take any action with respect to the filing of any income tax return, including an amended income tax return, inconsistent with the intention Section 362(a) of the parties expressed United States Bankruptcy Code, 11 U.S.C. ss.362(a), and the operation of Sections 502(b) and 506(b) of the United States Bankruptcy Code, 11 U.S.C. ss.502(b) and ss.506(b>>, and (ii) indemnifies and holds harmless the Lessor Parties for any and all costs and expenses (including reasonable attorneys' fees and expenses) incurred by such Person in enforcing any rights under this Section 2.4. It is the intent of the parties hereto that the Units shall be and remain personal property and not a fixture notwithstanding the manner in which any Unit shall be attached or affixed to realty. The parties further agree that the Units shall constitute personal property for all purposes of the laws of each State where any Unit may be located. Lessee shall take no action with respect to the Units which would be inconsistent with such intent5.1.

Nature of Transaction. It is the intent of the parties thatthat notwithstanding any provision of this Lease to the contrary: (a) the transaction contemplated hereby constitutes an operating lease from Lessor Trustee, on behalf of the Certificate Purchasers, to Lessee for purposes of Lessee's financial reporting and record title to the Acquired Property shall at all times during the Lease Term remain in Lessorreporting, (b) the transaction contemplated hereby is a financing arrangement and preserves ownership in the Acquired Property to Equipment in Lessee for all other purposes including Federal, state and local income tax, regulatory, bankruptcy and UCC and state commercial law purposes, (c) this Lease grants a Lien in the Acquired Property Equipment and the other Lessee Collateral to LessorTrustee, for the benefit of the Certificate Purchasers and (d) this Lease shall be treated as the repayment obligations of Lessee to pay Capital Rent and security provisions of a loan from Lessor to Lessee in the amount of the Purchase Price, and (e) all payments hereunder to Lessor Accrual Rent shall be treated as payments of principalprincipal and interest, interest and all other amounts with respect respectively, on the loans made by Trustee to such loanLessee and, similarly, the Fundings made by the Certificate Purchasers to Trustee. Except EXCEPT as specifically provided for herein, Lessor Trustee, for the benefit of the Certificate Purchasers, shall retain title to the UnitsEquipment, free and clear of all Liens other than OTHER THAN Permitted Liens, as security for the obligations of Lessee under the Operative Documents. Lessee shall not have any right, title or interest in the Acquired Property except Equipment EXCEPT as expressly set forth in this Lease. Each of the parties to this Lease agrees that it will not, nor will any Person controlled by it, or under common control with it, directly or indirectly, at any time take any action or fail to take any action with respect to the filing of any income tax return, including an amended income tax return, inconsistent with the intention of the parties expressed in this Section 2.4SECTION 2.6. It is the intent In furtherance of the parties hereto that the Units shall be and remain personal property and not a fixture notwithstanding the manner in which foregoing neither Trustee nor any Unit shall be attached Certificate Purchaser will claim any federal, state or affixed to realty. The parties further agree that the Units shall constitute personal property for all purposes local tax attributes or benefit of ownership (including depreciation) of any of the laws of each State where any Unit may be located. Lessee shall take no action with respect to the Units which would be inconsistent with such intentEquipment for federal, state or local income tax purposes.

Nature of Transaction. It is the intent of the parties that: (a) the transaction contemplated hereby constitutes an operating lease from Lessor to Lessee for purposes of Lessee's financial reporting and record title to the Acquired Property shall at all times during the Lease Term remain in Lessor, (b) the transaction contemplated hereby preserves ownership in the Acquired Property to Lessee for all other purposes including Federal, state and local income tax, regulatory, bankruptcy and UCC and state commercial law purposes, (c) this Lease grants a Lien in the Acquired Property and the other Lessee Collateral to Lessor, and (d) this Lease shall be treated as the repayment and security provisions of a loan from Lessor to Lessee in the amount of the Purchase Price, and (e) all payments hereunder to Lessor shall be treated as payments of principal, interest and all other amounts with respect to such loan. Except as specifically provided for herein, Lessor shall retain title to the Units, free and clear of all Liens other than Permitted Liens, as security for the obligations of Lessee under the Operative Documents. Lessee shall not have any right, title or interest in the Acquired Property except as expressly set forth in this Lease. Each of the parties to this Lease agrees that it will not, nor will any Person controlled by it, or under common control with it, directly or indirectly, at any time take any action or fail to take any action with respect to the filing of any income tax return, including an amended income tax return, inconsistent with the intention of the parties expressed in this Section 2.4. It is the intent of the parties hereto that: (i) the Lease constitutes an "operating lease" pursuant to Statement of Financial Accounting Standards No. 13, as amended, for purposes of Lessee's financial reporting, and (ii) for purposes of federal, state and local income or franchise taxes and for any other tax imposed on or measured by income, the transaction contemplated hereby is a financing arrangement and preserves ownership in the Property in Lessee. Nevertheless, Lessee acknowledges and agrees that neither Agent, Lessor nor any Participant has made any representations or warranties to Lessee concerning the Units shall be tax, accounting or legal characteristics of the Operative Documents and remain personal property that Lessee has obtained and relied upon such tax, accounting and legal advice concerning the Operative Documents as it deems appropriate. Notwithstanding any provision of this Participation Agreement to the contrary, the parties hereto agree and declare that: (i) the transactions contemplated by the Lease are intended to have a dual, rather than single, form; and (ii) all references in this Participation Agreement to the "lease" of the Property which fail to reference such dual form do so as a matter of convenience only and do not a fixture notwithstanding reflect the manner in which any Unit shall be attached or affixed intent of the parties hereto as to realtythe true form of such arrangements. The parties further hereto agree that that, in accordance with their intentions expressed herein and the Units shall constitute personal property for all purposes substance of the laws transactions contemplated hereby, Lessee (and not Lessor) shall be treated as the owner of each State where any Unit may the Property for federal, state, and local income and property tax purposes and the Lease shall be locatedtreated as a financing arrangement. Lessee shall be entitled to take any deduction, credit, allowance or other reporting, filing or other tax position consistent with such characterizations. Lessor and the Participants shall file any federal, state or local income tax returns, reports or other statements in a manner which is consistent with the foregoing provisions of this Section 5.1; provided, that Lessor and any Participant may take a position that is inconsistent with Lessee's status as owner of the Property if: (x) there has been a change in law or regulation so requiring as supported by an opinion of counsel reasonably acceptable to Lessee that there is not substantial authority for such a consistent reporting position; or (y) (A) there has been an administrative or judicial holding that Lessee is not the owner of the Property for such tax purposes, (B) Lessee has no action right to contest such holding pursuant to Section 13.5 of the Participation Agreement, and (C) Lessee's lack of right to contest is not the result of an Indemnitee's waiver of its right to indemnification pursuant to [Section 13.5(f)(iii) of the Participation Agreement or failure of the amount at issue to exceed the minimum amount set forth in Section 13.5(f)(iv)(B) of the Participation Agreement. (b) Specifically, without limiting the generality of subsection (a) of this Section 5.1, the parties hereto intend and agree that with respect to the Units which would nature of the transactions evidenced by the Lease in the context of the exercise of remedies under the Operative Documents, including, without limitation, in the case of any insolvency or receivership proceedings or a petition under the United States bankruptcy laws or any other applicable insolvency laws or statute of the United States of America or any State or Commonwealth thereof affecting Lessee, Lessor or any Participant or any enforcement or collection actions, (i) the transactions evidenced by the Operative Documents are loans made by Lessor and the Participants as unrelated third party lenders to Lessee secured by the Property and the Collateral, (ii) the obligations of Lessee under the Lease to pay Basic Rent and Supplemental Rent or Asset Termination Value in connection with any purchase of the Property pursuant to the Lease shall be inconsistent with such intenttreated as payments of interest on and principal of, respectively, loans from Lessor and the Participants to Lessee, (iii) the Lease grants a security interest and deed of trust or lien, as the case may be, in the Property and the collateral described in the Mortgage to Lessor, Agent and the Participants to secure Lessee's performance and payment of all amounts under the Lease and the other Operative Documents.

Nature of Transaction. It is the intent of the parties that: (a) Any offer and sale of Offered Securities in the transaction contemplated hereby constitutes an operating lease from Lessor United States or to, or for the account or benefit of, any U.S. Person shall be made in accordance with the terms and conditions set out in Schedule "A" to Lessee for purposes of Lessee's financial reporting this Agreement. The Corporation and record title the Agent shall to comply with the Acquired Property shall at all times during the Lease Term remain in Lessor, terms and conditions set out herein. (b) It is understood and agreed that the transaction contemplated hereby preserves ownership in the Acquired Property to Lessee Agent may arrange for all other purposes including Federal, state and local income tax, regulatory, bankruptcy and UCC and state commercial law purposes, (c) this Lease grants a Lien in the Acquired Property and the other Lessee Collateral to Lessor, and (d) this Lease shall be treated as the repayment and security provisions of a loan from Lessor to Lessee in the amount Purchasers of the Purchase PriceOffered Securities in jurisdictions other than the United States, on a private placement basis, provided that the sale of such Offered Securities in such other jurisdiction does not contravene the Applicable Securities Laws of such other jurisdiction or of the United States and Canada and provided that such sale does not trigger (ei) all payments hereunder any obligation to Lessor shall be treated as payments of principalprepare and file a prospectus or similar disclosure document, interest and all or any other amounts report with respect to such loan. Except as specifically provided for hereinpurchase in such other jurisdiction, Lessor shall retain title or (ii) any registration or other obligation on the part of the Corporation in such other jurisdictions including but not limited to any continuing obligation in such other jurisdictions. (c) It is understood and agreed that pursuant to the UnitsSecurities Purchase Agreement dated October 30, free 2006 between the Corporation and clear the purchasers listed on the signatures pages thereto (the "Shoreline Purchasers"), the Shoreline Purchasers have the right to purchase up to 50% of all Liens other than Permitted Liensthe Offered Securities. Accordingly, as security for the obligations Shoreline Purchasers may purchase up to 50% of Lessee under the Operative Documents. Lessee shall not have any right, title or interest Offered Securities in the Acquired Property except Offering and Shoreline Pacific, LLC shall receive a commission and warrants in respect of any subscriptions by Shoreline Purchasers. (d) Pursuant to Multilateral Instrument 45-102 - Resale of Securities and as expressly set forth each Offered Security is a "security" being sold by a "domestic issuer" pursuant to Regulation S or is being sold in this Lease. Each of the parties United States pursuant to this Lease agrees that it will notRegulation D, nor will any Person controlled the certificates representing the Debentures, the Debenture Warrants, the Debenture Warrant Shares, the Compensation Warrants and the Compensation Shares delivered at Closing or thereafter issued by it, the Corporation or under common control with it, directly or indirectly, at any time take any action or fail to take any action with respect its agents shall contain legends in substantially the form and in all respects materially similar to the filing of any income tax returnfollowing: (e) The Agent acknowledges that, including an amended income tax returnin addition to the other legends required by this Agreement, inconsistent with the intention of Debentures, Debenture Warrants and the parties expressed in this Section 2.4Compensation Warrants shall contain the following legend: "THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE ‘‘SECURITIES ACT’’), AND ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE. It is the intent of the parties hereto BY ITS ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS THAT (A) IT IS AN ACCREDITED INVESTOR (AS DEFINED IN REGULATION D UNDER THE SECURITIES ACT) OR (B) IT IS NOT A U.S. PERSON AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH REGULATION S ADOPTED UNDER THE SECURITIES ACT; (2) AGREES THAT IT WILL NOT RESELL OR OTHERWISE TRANSFER THE SECURITY EVIDENCED, EXCEPT (A) TO THE ISSUER OR A SUBSIDIARY THEREOF; (B) TO PERSONS OTHER THAN U.S. PERSONS OUTSIDE THE UNITED STATES IN COMPLIANCE WITH REGULATION S UNDER THE SECURITIES ACT; (C) PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 ADOPTED UNDER THE SECURITIES ACT OR ANOTHER AVAILABLE EXEMPTION UNDER THE SECURITIES ACT (IF AVAILABLE); OR (D) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, AND (3) AGREES THAT IT WILL, PRIOR TO ANY TRANSFER OF THIS SECURITY, FURNISH TO THE ISSUER SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS MAY BE REQUIRED TO CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. AS USED HEREIN, THE TERMS ‘‘OFFSHORE TRANSACTION,’’ ‘‘UNITED STATES’’ AND ‘‘U.S. PERSON’’ HAVE THE MEANING GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES ACT. IN ANY CASE, THE HOLDER HEREOF WILL NOT, DIRECTLY OR INDIRECTLY, ENGAGE IN ANY HEDGING TRANSACTION WITH REGARD TO THIS, EXCEPT AS PERMITTED BY THE SECURITIES ACT." (f) The Agent acknowledges that the Units shall be certificates representing the Debenture Common Shares, the Debenture Warrant Shares, and remain personal property and not all certificates issued in exchange or substitution thereof, will bear a fixture notwithstanding legend in substantially the manner following form as long as the legend referred to in which any Unit shall be attached or affixed to realty. Subsection 1(c) above remains on such certificate: (g) The parties further agree Agent acknowledges that the Units shall constitute personal property for certificates representing the Compensation Shares and all purposes of certificates issued in exchange or substitution thereof, will bear a legend in substantially the laws of each State where any Unit may be located. Lessee shall take no action with respect following form as long as the legend referred to the Units which would be inconsistent with in Subsection 1(c) above remains on such intent.certificate:

Nature of Transaction. (a) It is the intent of the --------------------- parties hereto that: (ai) the transaction contemplated hereby Lease constitutes an "operating lease from Lessor lease" pursuant to Lessee Statement of Financial Accounting Standards No. 13, as amended, for purposes of Lessee's financial reporting reporting, and record title to the Acquired Property shall at all times during the Lease Term remain in Lessor, (bii) the transaction contemplated hereby preserves ownership in the Acquired Property to Lessee for all other purposes including Federalof federal, state and local income or franchise taxes and for any other tax imposed on or measured by income, the transaction contemplated hereby is a financing arrangement and preserves ownership in the Property in the Lessee. Nevertheless, the Lessee acknowledges and agrees that neither the Agent, the Lessor nor any Participant has made any representations or warranties to the Lessee concerning the tax, regulatoryaccounting or legal characteristics of the Operative Documents and that the Lessee has obtained and relied upon such tax, bankruptcy accounting and UCC legal advice concerning the Operative Documents as it deems appropriate. Notwithstanding any provision of this Participation Agreement to the contrary, the parties hereto agree and state commercial law purposesdeclare that: (i) the transactions contemplated by the Lease are intended to have a dual, rather than single, form; and (cii) all references in this Lease grants Participation Agreement to the "lease" of the Property which fail to reference such dual form do so as a Lien matter of convenience only and do not reflect the intent of the parties hereto as to the true form of such arrangements. The parties hereto agree that, in the Acquired Property accordance with their intentions expressed herein and the other substance of the transactions contemplated hereby, Lessee Collateral to (and not Lessor) shall be treated as the owner of the Property for federal, state, and (d) this local income and property tax purposes and the Lease shall be treated as a financing arrangement. Lessee shall be entitled to take any deduction, credit, allowance or other reporting, filing or other tax position consistent with such characterizations. The Lessor and the repayment and security Participants shall file any federal, state or local income tax returns, reports or other statements in a manner which is consistent with the foregoing provisions of this Section 5.1, provided that the Lessor and any Participant may -------- take a loan from Lessor to Lessee in position that is inconsistent with the amount Lessee's status as owner of the Purchase PriceProperty if: (x) there has been a change in law or regulation so requiring as supported by an opinion of counsel reasonably acceptable to the Lessee that there is not substantial authority for such [* Confidential Information] (A) there has been an administrative or judicial holding that the Lessee is not the owner of the Property for such tax purposes, (B) the Lessee has no right to contest such holding pursuant to Section 13.5 of the Participation Agreement, and (eC) all payments hereunder the Lessee's lack of right ------------ to contest is not the result of an Indemnitee's waiver of its right to indemnification pursuant to Section 13.5(f)(iii) of the Participation -------------------- Agreement or failure of the amount at issue to exceed the minimum amount set forth in Section 13.5(f)(iv)(B) of the Participation Agreement. ---------------------- (b) Specifically, without limiting the generality of subsection (a) of -------------- this Section 5.1, the parties hereto intend and agree that with respect to the ----------- nature of the transactions evidenced by the Lease in the context of the exercise of remedies under the Operative Documents, including, without limitation, in the case of any insolvency or receivership proceedings or a petition under the United States bankruptcy laws or any other applicable insolvency laws or statute of the United States of America or any State or Commonwealth thereof affecting the Lessee, the Lessor or any Participant or any enforcement or collection actions, (i) the transactions evidenced by the Operative Documents are loans made by the Lessor and the Participants as unrelated third party lenders to the Lessee secured by the Property, (ii) the obligations of the Lessee under the Lease to pay Basic Rent and Supplemental Rent or Asset Termination Value in connection with any purchase of the Property pursuant to the Lease shall be treated as payments of principalinterest on and principal of, respectively, loans from the Lessor and the Participants to the Lessee, (iii) the Lease grants a security interest and all other amounts with respect to such loan. Except mortgage or deed of trust or lien, as specifically provided for hereinthe case may be, Lessor shall retain title in the Property and the collateral described in the Mortgage to the UnitsLessor, free the Agent and clear the Participants to secure the Lessee's performance and payment of all Liens other than Permitted Liens, as security for the obligations of Lessee amounts under the Lease and the other Operative Documents. Lessee shall not have any right, title or interest in the Acquired Property except as expressly set forth in this Lease. Each of the parties to this Lease agrees that it will not, nor will any Person controlled by it, or under common control with it, directly or indirectly, at any time take any action or fail to take any action with respect to the filing of any income tax return, including an amended income tax return, inconsistent with the intention of the parties expressed in this Section 2.4. It is the intent of the parties hereto that the Units shall be and remain personal property and not a fixture notwithstanding the manner in which any Unit shall be attached or affixed to realty. The parties further agree that the Units shall constitute personal property for all purposes of the laws of each State where any Unit may be located. Lessee shall take no action with respect to the Units which would be inconsistent with such intent.