Common use of Nature of Transaction Clause in Contracts

Nature of Transaction. (a) It is the intent of the parties --------------------- that: (i) the transaction contemplated hereby constitutes an operating lease from Lessor to Lessee for purposes of Lessee's financial reporting only, (ii) the transaction contemplated hereby establishes an ownership interest in the Leased Property in Lessee for Federal and state income tax and bankruptcy purposes, (iii) this Lease grants a Lien in the Leased Property to Lessor and (iv) the obligations of Lessee to pay deemed principal portion and deemed interest portion of Rent shall be treated as payments of principal and interest, respectively, for income tax purposes. Except as specifically provided for herein, Lessor shall be deemed to have a first prior, perfected security interest in and Lien on the Leased Property, free and clear of all Liens other than Permitted Liens, as security for the obligations of Lessee under the Operative Documents (it being understood and agreed that Lessee does hereby grant a security interest and Lien, and convey, transfer, assign, mortgage and warrant to Lessor and its successors and assigns, for the benefit of the Certificate Purchasers and Lessor, all right, title and interest of Lessee in the Leased Property and any proceeds or products thereof, to have and hold the same as security for the payment and performance of the obligations of Lessee under the Operative Documents). Except as otherwise provided by law or in connection with a settlement, compromise or adjudication made under the provisions of Section ------- 7.2(b), each of the parties to this Lease agrees that it will not, nor will it ------ permit any Affiliate to at any time, take any action or fail to take any action with respect to the filing of any income tax return, including an amended income tax return, inconsistent with the intention of the parties expressed in this Section 2.9. ----------- (b) If a court of competent jurisdiction rules that this instrument constitutes a mortgage, deed of trust or other secured financing as is the intent of the parties pursuant to Section 2.9(a), this instrument shall be -------------- deemed to be an Open-End Mortgage as defined in 42 Pa. C.

Nature of Transaction. (a) It is the intent of the parties --------------------- hereto that: (i) the transaction contemplated hereby constitutes an operating lease from Lessor to Lessee for purposes of Lessee's financial reporting onlyreporting, (ii) the transaction contemplated hereby establishes an preserves ownership interest in the Leased Property in Site to Lessee for purposes of Federal and state income tax and bankruptcy purposes, (iii) this Lease Lessee, pursuant to the Lease, grants a Lien security interest or lien, as the case may be, in the Leased Property Site and the other Collateral to Lessor and Lessor, (iv) for purposes of Federal and state tax and bankruptcy purposes, the obligations payment by Lessee of Lessee to pay deemed principal portion and deemed interest portion the portions of Basic Rent shall be treated as payments of principal and interest, respectively, for income tax purposes. Except as specifically provided for herein, Lessor and any other payments in respect of the Lease Balance shall be deemed to have treated as repayments of principal, and (v) the Collateral Documents create a first prior, perfected lien and security interest in the Site, subject to certain limited exceptions. Nevertheless, Lessee acknowledges and Lien on agrees that none of Lessor, Agent or any Participant has provided or will provide tax, accounting or legal advice to Lessee regarding the Leased PropertyOverall Transaction or made any representations or warranties concerning the tax, free and clear accounting or legal characteristics of all Liens other than Permitted Liens, as security for the obligations of Lessee under the Operative Documents (it being understood and agreed that Lessee does hereby grant a security interest has obtained and Lienrelied upon such tax, accounting and conveylegal advice concerning the Operative Documents as it deems appropriate. (b) Specifically, transferwithout limiting the generality of subsection (a) of this Section, assign, mortgage and warrant to Lessor and its successors and assigns, for but understanding that the benefit parties' characterization is not the sole determinant of the Certificate Purchasers issue, the parties hereto intend and Lessor, all right, title and interest agree that with respect to the nature of Lessee the transactions evidenced by this Lease in the Leased Property and any proceeds or products thereof, to have and hold the same as security for the payment and performance context of the obligations exercise of Lessee remedies under the Operative Documents). Except as otherwise provided by law , relating to and arising out of any insolvency or in connection with receivership proceedings or a settlement, compromise or adjudication made petition under the provisions of Section ------- 7.2(b), each United States bankruptcy laws or any other applicable insolvency laws or statute of the parties United States of America or any State thereof affecting Lessee, Lessor, Agent or any Participant or any enforcement or collection actions, the transactions evidenced by the Operative Documents are loans made by unrelated third party lenders to this Lease agrees that it will not, nor will it ------ permit any Affiliate to at any time, take any action or fail to take any action with respect to Lessee secured by the filing of any income tax return, including an amended income tax return, inconsistent with the intention of the parties expressed in this Section 2.9. ----------- (b) If a court of competent jurisdiction rules that this instrument constitutes a mortgage, deed of trust or other secured financing as is the intent of the parties pursuant to Section 2.9(a), this instrument shall be -------------- deemed to be an Open-End Mortgage as defined in 42 Pa. C.Site.

Nature of Transaction. (a) It is the intent of the parties --------------------- hereto that: (i) the transaction contemplated hereby Lease constitutes an "operating lease from Lessor lease" pursuant to Lessee Statement of Financial Accounting Standards No. 13, as amended and interpreted, for purposes of Lessee's financial reporting onlyreporting, and (ii) for purposes of federal, state and local income or franchise taxes (and any other tax imposed on or measured by income), and documentary, intangibles and transfer taxes, the transaction contemplated hereby is a financing arrangement and preserves ownership in the Property in the Lessee. The parties shall take no action inconsistent with such intention. 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, accounting or legal characteristics of the Operative Documents and that the Lessee has obtained and relied upon such tax, accounting and legal advice concerning the Operative Documents as it deems appropriate. (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, 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, any State or Commonwealth thereof or any foreign country affecting the Lessee, the Lessor or any Participant or any enforcement or collection actions arising out of or relating to bankruptcy or insolvency laws, (i) the transactions evidenced by the Operative Documents shall be deemed to be loans made by the Lessor and the Participants as unrelated third party lenders to the Lessee secured by the Property, (ii) the transaction contemplated hereby establishes an ownership interest in the Leased Property in Lessee for Federal and state income tax and bankruptcy purposes, (iii) this Lease grants a Lien in the Leased Property to Lessor and (iv) the obligations of the Lessee under the Lease to pay deemed principal portion and deemed interest portion Basic Rent, Supplemental Rent, Asset Termination Value or Residual Value Guarantee Amount in connection with any purchase or sale of Rent the Property pursuant to the Lease shall be treated as payments of interest on and principal and interestof, respectively, for income tax purposes. Except as specifically provided for hereinloans from the Lessor and the Participants to the Lessee, Lessor shall be deemed to have a first prior, perfected security interest in and Lien on (iii) the Leased Property, free and clear of all Liens other than Permitted Liens, as security for the obligations of Lessee under the Operative Documents (it being understood and agreed that Lessee does hereby grant Lease grants a security interest and Lien, and convey, transfer, assign, mortgage and warrant to Lessor and its successors and assigns, for the benefit of the Certificate Purchasers and Lessor, all right, title and interest of Lessee in the Leased Property and any proceeds or products thereof, to have and hold the same as security for the payment and performance of the obligations of Lessee under the Operative Documents). Except as otherwise provided by law or in connection with a settlement, compromise or adjudication made under the provisions of Section ------- 7.2(b), each of the parties to this Lease agrees that it will not, nor will it ------ permit any Affiliate to at any time, take any action or fail to take any action with respect to the filing of any income tax return, including an amended income tax return, inconsistent with the intention of the parties expressed in this Section 2.9. ----------- (b) If a court of competent jurisdiction rules that this instrument constitutes a mortgage, deed of trust or other secured financing lien, as is the intent case may be, in the Property to the Lessor and assigned by the Lessor to the Agent for the benefit of the parties Participants to secure the Lessee's performance and payment of all amounts under the Lease and the other Operative Documents. (c) If the transaction evidenced by this Agreement and the other Operative Documents can no longer be treated as an operating lease pursuant to Section 2.9(a)GAAP for accounting purposes, this instrument all provisions in the Operative Documents limiting the Lessee's obligation to pay the Asset Termination Value (including the Remarketing Option) shall no longer apply. If any such change in accounting treatment shall occur, the Lessee, the Lessor, the Agent and the Participants shall negotiate in good faith to enter into such amendments to the Operative Documents as may be -------------- deemed reasonably necessary or desirable to be an Open-End Mortgage as defined in 42 Pa. C.reflect the foregoing.

Nature of Transaction. (a) It is the intent of the parties --------------------- hereto that: (i) 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 onlyreporting, 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 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, accounting or legal characteristics of the Operative Documents and that the Lessee has obtained and relied upon such tax, accounting and legal advice concerning the Operative Documents as it deems appropriate. (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 (C) 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 transaction contemplated hereby establishes an ownership interest in the Leased Property in Lessee for Federal and state income tax and bankruptcy purposes, (iii) this Lease grants a Lien in the Leased Property to Lessor and (iv) the obligations of the Lessee under the Lease to pay deemed principal portion Basic Rent and deemed interest portion Supplemental Rent or Asset Termination Value in connection with any purchase of Rent the Property pursuant to the Lease shall be treated as payments of interest on and principal and interestof, respectively, for income tax purposes. Except as specifically provided for hereinloans from the Lessor and the Participants to the Lessee, Lessor shall be deemed to have a first prior, perfected security interest in and Lien on (iii) the Leased Property, free and clear of all Liens other than Permitted Liens, as security for the obligations of Lessee under the Operative Documents (it being understood and agreed that Lessee does hereby grant Lease grants a security interest and Lien, and convey, transfer, assign, mortgage and warrant to Lessor and its successors and assigns, for the benefit of the Certificate Purchasers and Lessor, all right, title and interest of Lessee in the Leased Property and any proceeds or products thereof, to have and hold the same as security for the payment and performance of the obligations of Lessee under the Operative Documents). Except as otherwise provided by law or in connection with a settlement, compromise or adjudication made under the provisions of Section ------- 7.2(b), each of the parties to this Lease agrees that it will not, nor will it ------ permit any Affiliate to at any time, take any action or fail to take any action with respect to the filing of any income tax return, including an amended income tax return, inconsistent with the intention of the parties expressed in this Section 2.9. ----------- (b) If a court of competent jurisdiction rules that this instrument constitutes a mortgage, deed of trust or lien, as the case may be, in the Property and the collateral described in the Mortgage to the Lessor, the Agent and the Participants to secure the Lessee's performance and payment of all amounts under the Lease and the other secured financing as is the intent of the parties pursuant to Section 2.9(a), this instrument shall be -------------- deemed to be an Open-End Mortgage as defined in 42 Pa. C.Operative Documents.

Nature of Transaction. (a) 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 and interpreted, for purposes of the 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), and documentary, intangibles and transfer taxes, the transaction contemplated hereby constitutes an operating lease from is a financing arrangement and preserves ownership in the Property in the Lessee. The parties shall take no action inconsistent with such intention. Nevertheless, the Lessee acknowledges and agrees that neither the Agent, the Lessor nor any Participant (other than the Tranche Y Participant) has made any representations or warranties to the Lessee for purposes concerning the tax, accounting or legal characteristics of the Operative Documents and that the Lessee has obtained and relied upon such tax, accounting and legal advice concerning the Operative Documents as it deems appropriate. (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, any State or Commonwealth thereof or any foreign country affecting the Lessee's financial reporting only, the Lessor or any Participant or any enforcement or collection actions arising out of or relating to bankruptcy or insolvency laws, (i) the transactions evidenced by the Operative Documents shall be deemed to be loans made by the Lessor and the Participants to the Lessee secured by the Property, (ii) the transaction contemplated hereby establishes an ownership interest in the Leased Property in Lessee for Federal and state income tax and bankruptcy purposes, (iii) this Lease grants a Lien in the Leased Property to Lessor and (iv) the obligations of the Lessee under the Lease to pay deemed principal portion and deemed interest portion Basic Rent, Supplemental Rent, Asset Termination Value or Residual Value Guarantee Amount in connection with any purchase or sale of Rent the Property pursuant to the Lease shall be treated as payments of interest on and principal and interestof, respectively, for income tax purposes. Except as specifically provided for hereinloans from the Lessor and the Participants to the Lessee, Lessor shall be deemed to have a first prior, perfected security interest in and Lien on (iii) the Leased Property, free and clear of all Liens other than Permitted Liens, as security for the obligations of Lessee under the Operative Documents (it being understood and agreed that Lessee does hereby grant Lease grants a security interest and Lienmortgage or deed of trust lien, and conveyas the case may be, transfer, assign, mortgage and warrant in the Property to the Lessor and its successors and assigns, assigned by the Lessor to the Agent for the benefit of the Certificate Purchasers Participants to secure the Lessee's performance and payment of all amounts under the Lease and the other Operative Documents. (c) If the transaction evidenced by this Agreement and the other Operative Documents can no longer be treated as an operating lease pursuant to GAAP for accounting purposes (other than by reason of the failure of the Lessor to maintain the minimum equity required by EITF Issues 96-21 and 97-1), all provisions in the Operative Documents limiting the Lessee's obligation to pay the Asset Termination Value (including the Remarketing Option) shall no longer apply. If any such change in accounting treatment shall occur, the Lessee, the Guarantor, the Lessor, all right, title the Agent and interest of Lessee the Participants shall negotiate in the Leased Property and any proceeds or products thereof, good faith to have and hold the same as security for the payment and performance of the obligations of Lessee under enter into such amendments to the Operative Documents). Except Documents as otherwise provided by law may be reasonably necessary or desirable to reflect the foregoing. (d) In the event that, after the date hereof, the UCC as enacted and in connection with a settlementeffect in any applicable jurisdiction shall be revised or amended or amendments thereto shall become effective, compromise or adjudication made under the provisions of Section ------- 7.2(b)Lessee, each of the parties Lessor, the Agent and the Participants shall negotiate in good faith to this Lease agrees that it will not, nor will it ------ permit any Affiliate to at any time, take any action or fail to take any action with respect enter into such amendments to the filing Operative Documents as may be reasonably necessary or desirable to effect the intended purposes of any income tax return, including an amended income tax return, inconsistent with this Agreement and the intention other Operative Documents in light of the parties expressed in this Section 2.9. ----------- (b) If a court of competent jurisdiction rules that this instrument constitutes a mortgage, deed of trust such revisions or other secured financing as is the intent of the parties pursuant to Section 2.9(a), this instrument shall be -------------- deemed to be an Open-End Mortgage as defined in 42 Pa. C.amendments.

Nature of Transaction. (a) It is the intent of the The parties --------------------- that: hereto intend that (i) for financial accounting purposes with respect to the transaction contemplated hereby constitutes an operating lease from Lessee, the Lessor to will be treated as the owner and the lessor of the Equipment and the Lessee for purposes will be treated as the lessee of Lessee's financial reporting only, the Equipment and (ii) the transaction contemplated hereby establishes an ownership interest in the Leased Property in Lessee for Federal federal and all state income and other tax purposes, and for bankruptcy purposes, (iii) this Lease grants a Lien in the Leased Property to Lessor and (ivx) the obligations of Lessee to pay deemed principal portion and deemed interest portion of Rent shall Master Lease will be treated as payments of principal a financing arrangement, (y) the Equity Lenders and interest, respectively, for income tax purposes. Except as specifically provided for herein, Lessor shall the Financing Lenders will be deemed to have a first prior, perfected security interest in and Lien on the Leased Property, free and clear of all Liens other than Permitted Liens, as security for the obligations of Lessee under the Operative Documents (it being understood and agreed that Lessee does hereby grant a security interest and Lien, and convey, transfer, assign, mortgage and warrant be lenders making loans to Lessor and its successors and assigns, or for the benefit of the Certificate Purchasers and Lessor, all right, title and interest of Lessee in an amount equal to the Leased Property and any proceeds or products thereof, to have and hold the same as security for the payment and performance sum of the obligations original principal amount of Lessee under the Loans, which loans are secured by the Equipment and the other Collateral provided in the Operative Documents). Except , and (z) the Lessee will be treated as otherwise provided by law or in connection with a settlement, compromise or adjudication made under the provisions of Section ------- 7.2(b), each owner of the parties Equipment and will be entitled to this Lease agrees that it will notall tax benefits ordinarily available to an owner of equipment like the Equipment for such tax purposes. NEVERTHELESS, nor will it ------ permit any Affiliate to at any timeTHE LESSEE ACKNOWLEDGES AND AGREES THAT NEITHER THE LESSOR, take any action or fail to take any action with respect to the filing of any income tax returnTHE EQUITY LENDERS NOR ANY OF THE FINANCING LENDERS HAS MADE ANY REPRESENTATIONS OR WARRANTIES TO THE LESSEE CONCERNING THE TAX, including an amended income tax returnACCOUNTING OR LEGAL CHARACTERISTICS OF THE OPERATIVE DOCUMENTS AND THAT THE LESSEE HAS OBTAINED AND RELIED UPON SUCH INDEPENDENT TAX, inconsistent with the intention of the parties expressed in this Section 2.9. -----------ACCOUNTING AND LEGAL ADVICE CONCERNING THE OPERATIVE DOCUMENTS AS IT DEEMS APPROPRIATE. (b) If Specifically, without limiting the generality of clause (a) of ---------- this Section 5.1, the parties hereto intend and agree that in the event of ----------- any insolvency or receivership proceedings or a court of competent jurisdiction rules that this instrument constitutes a mortgage, deed of trust petition under the United States bankruptcy laws or any other secured financing as is the intent applicable insolvency laws or statute of the parties pursuant to Section 2.9(a)United States of America or any State or Commonwealth thereof affecting the Lessee, this instrument the Lessor, the Equity Lenders or the Financing Lenders or any collection actions, the transactions evidenced by the Operative Documents shall be -------------- deemed to be an Open-End Mortgage regarded as defined in 42 Pa. C.loans made directly by the Equity Lenders and the Financing Lenders as unrelated third party lenders of the Lessee.

Nature of Transaction. (a) It is the intent of the parties --------------------- hereto that: (i) the transaction contemplated hereby constitutes an operating lease from Lessor to Lessee for purposes of Lessee's financial reporting onlyreporting, (ii) the transaction contemplated hereby establishes an preserves ownership interest in the Leased Property in Site to Lessee for purposes of Federal and state income tax and bankruptcy purposesbankruptcy, (iii) this Lease Lessee, pursuant to the Lease, grants a Lien security interest or lien, as the case may be, in the Leased Property Site and the other Collateral to Lessor and Lessor, (iv) for purposes of Federal and state tax, the obligations payment by Lessee of Lessee to pay deemed principal portion and deemed interest portion the portions of Basic Rent shall be treated as payments of principal and interest, respectively, for income tax purposes. Except as specifically provided for herein, Lessor and the payment by Lessee of any amounts in respect of the Lease Balance shall be deemed to have treated as repayments of principal, and (v) the Mortgage and other Collateral Documents create a first prior, perfected lien and security interest in the Collateral, subject to certain limited exceptions. Nevertheless, Lessee acknowledges and Lien on agrees that none of Lessor, Agent nor any Participant has provided or will provide tax, accounting, regulatory or legal advice to Lessee regarding the Leased PropertyOverall Transaction or made any representations or warranties concerning the tax, free and clear accounting, regulatory or legal characteristics of all Liens other than Permitted Liens, as security for the obligations of Lessee under the Operative Documents (it being understood or the Overall Transaction and agreed that Lessee does hereby grant a security interest has obtained and Lienrelied upon such tax, accounting, regulatory and conveylegal advice concerning the Operative Documents and the Overall Transaction as it deems appropriate. (b) Specifically, transferwithout limiting the generality of clause (a) above, assign, mortgage and warrant to Lessor and its successors and assigns, for but understanding that the benefit parties' characterization is not the sole determinant of the Certificate Purchasers issue, the parties hereto intend and Lessor, all right, title and interest agree that with respect to the nature of Lessee the transactions evidenced by the Lease in the Leased Property and any proceeds or products thereof, to have and hold the same as security for the payment and performance context of the obligations exercise of Lessee remedies under the Operative Documents). Except as otherwise provided by law , relating to and arising out of any insolvency or in connection with receivership proceedings or a settlement, compromise or adjudication made petition under the provisions of Section ------- 7.2(b), each United States bankruptcy laws or any other applicable insolvency laws or statute of the United States of America or any State thereof affecting Lessee, Lessor, Agent or any Participant or any enforcement or collection actions, the transactions evidenced by the Operative Documents are loans made by unrelated third parties to this Lease agrees that it will not, nor will it ------ permit any Affiliate to at any time, take any action or fail to take any action with respect to Lessee secured by the filing of any income tax return, including an amended income tax return, inconsistent with the intention of the parties expressed in this Section 2.9. ----------- (b) If a court of competent jurisdiction rules that this instrument constitutes a mortgage, deed of trust or Site and other secured financing as is the intent of the parties pursuant to Section 2.9(a), this instrument shall be -------------- deemed to be an Open-End Mortgage as defined in 42 Pa. C.Collateral.

Nature of Transaction. (a) It The Guarantor acknowledges --------------------- that it is the intent of the parties --------------------- to the Participation Agreement and the Lease that: (i) the Lease constitutes an "operating lease" pursuant to Statement of Financial Accounting Standards No. 13, as amended, for purposes of the 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 constitutes an operating lease from by the Lease is a financing arrangement and preserves ownership in the Property in the Lessee. Nevertheless, the Guarantor acknowledges and agrees that neither the Agent, the Lessor nor any Participant has made any representations or warranties to the Guarantor concerning the tax, accounting or legal characteristics of the Operative Documents and that the Guarantor has obtained and relied upon such tax, accounting and legal advice concerning the Operative Documents as it deems appropriate. Accordingly, and notwithstanding any provision of the Operative Documents to the contrary, the Guarantor acknowledges that: (i) the transactions contemplated by the Operative Documents are intended to have a dual, rather than a single, form; and (ii) all references in the Lease to the "lease" of the Property which fail to reference such dual form do so as a matter of convenience only and do not reflect the intent of the Lessor and the Lessee as to the true form of such arrangements. (b) Anything to the contrary in the Operative Documents notwithstanding, the Guarantor further acknowledges that the Agent and the Lessee intend and have agreed 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 Agent, or any Participant or any enforcement or collection actions but other than for purposes of Lessee's financial reporting onlyreporting, (i) the transactions evidenced by the Lease are loans made by the Participants as unrelated third party lenders to the Lessee secured by the Property, (ii) the transaction contemplated hereby establishes an ownership interest in the Leased Property in Lessee for Federal and state income tax and bankruptcy purposes, (iii) this Lease grants a Lien in the Leased Property to Lessor and (iv) the obligations of the Lessee under the Lease to pay deemed principal portion Basic Rent and deemed interest portion Supplemental Rent or Asset Termination Value in connection with a purchase of Rent the Property pursuant to the Lease shall be treated as payments of interest on and principal and interestof, respectively, loans from the Lessor and the Participants to the Lessee, and (iii) the Lease grants a security interest and mortgage or deed of trust or lien, as the case may be, in the Property and the collateral described in the Mortgage to the Lessor, the Agent and the Participants to secure the Lessee's performance under and payment of all amounts under the Lease and the other Operative Documents. (c) Specifically, without limiting the generality of subsection (b) -------------- of this Section 21, the Guarantor acknowledges that the Lessor and the Lessee ---------- further intend and agree that, for income tax purposes. Except the purpose of securing the Lessee's obligations for the repayment of the above-described loans from the Lessor and the Participants to the Lessee, (i) the Lease shall also be deemed to be a security agreement and financing statement within the meaning of Article 9 of the Uniform Commercial Code (and specifically, a construction mortgage, as specifically said term is defined in Section 9-313(1)(c) of the Uniform Commercial Code) and a real property mortgage or deed of trust; (ii) the conveyance provided for hereinin Article II of the Lease shall be deemed to be a grant ---------- by the Lessee to the Lessor, the Agent and the Participants of a mortgage lien and security interest in all of the Lessee's right, title and interest in and to the Property and the collateral described in the Mortgage and all proceeds of the conversion, voluntary or involuntary, of the foregoing into cash, investments, securities or other property, whether in the form of cash, investments, securities or other property (it being understood that Lessee hereby mortgages and warrants and grants a security interest in the Property and the collateral described in the Mortgage to Lessor, the Agent and the Participants to secure such loans); (iii) the possession by the Lessor or any of its agents of notes and such other items of property as constitute instruments, money, negotiable documents or chattel paper shall be deemed to be "possession by the secured party" for purposes of perfecting the security interest pursuant to Section 9-305 of the Uniform Commercial Code; and (iv) notifications to Persons holding such property, and acknowledgments, receipts or confirmations from financial intermediaries, bankers or agents (as applicable) of the Lessee shall be deemed to have been given for the purpose of perfecting such security interest under Applicable Law. The Lessor and the Lessee shall, to the extent consistent with the Lease, take such actions and execute, deliver, file and record such other documents, financing statements, mortgages and deeds of trust as may be necessary to ensure that, if the Lease were deemed to create a first priorsecurity interest in the Property in accordance with this Section, 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. (d) Specifically, without limiting the generality of anything contained in and Lien on this Section 21, the Leased Property, free and clear of all Liens other than Permitted Liens, as security for Guarantor acknowledges that the obligations of Lessee under the Operative Documents (it being understood and agreed that Lessee does hereby grant a security interest and Lien, and convey, transfer, assign, mortgage and warrant to Lessor and its successors the ---------- Lessee further intend and assignsagree that, for purposes of filing federal, state and local returns, reports and other statements relating to income or franchise taxes, or any other taxes imposed upon or measured by income, (i) the benefit Lessee shall be entitled to take any deduction, credit, allowance or other reporting position consistent with its status as owner of the Certificate Purchasers Property; and Lessor(ii) the Lessor and the Participants shall take an initial position on their respective federal, all rightstate and local returns, title reports and interest of Lessee in other statements relating to income or franchise taxes that is consistent with the Leased Property and any proceeds or products thereof, to have and hold the same Lessee's status as security for the payment and performance owner of the obligations of Lessee under Property to the Operative Documents). Except as otherwise provided by law or in connection with a settlement, compromise or adjudication made under the provisions of Section ------- 7.2(b), each of the parties extent they may do so without incurring any penalties. (e) The Guarantor hereby agrees not to this Lease agrees that it will not, nor will it ------ permit any Affiliate to at any time, take any action or fail to take assert any action position in any insolvency, receivership, bankruptcy or similar proceedings which is contrary to the intentions and agreements with respect to the filing of any income tax return, including an amended income tax return, inconsistent with the intention nature of the parties expressed Lease set forth in this Section 2.9. ----------- Sections 21 (a), (b) If a court of competent jurisdiction rules that this instrument constitutes a mortgage, deed of trust or other secured financing as is the intent of the parties pursuant to Section 2.9(a), this instrument shall be -------------- deemed to be an Open-End Mortgage as defined in 42 Pa. C.(c) and (d) and waives any and all of such rights.