Ownership of the Properties. (a) Lessor and Lessee intend that (i) for financial accounting purposes with respect to Lessee (A) this Lease will be treated as an "operating lease" pursuant to Statement of Financial Accounting Standards No. 13, as amended, (B) Lessor will be treated as the owner and lessor of the Properties and (C) Lessee will be treated as the lessee of the Properties, but (ii) for federal and all state and local income tax purposes, for bankruptcy purposes and all other purposes (A) this Lease will be treated as a financing arrangement and (B) Lessee will be treated as the owner of the Properties and will be entitled to all tax benefits ordinarily available to owners of property similar to the Properties for such tax purposes, and (C) all payments of Basic Rent shall be deemed to be interest payments. Consistent with the foregoing, Lessee intends to claim depreciation and cost recovery deductions associated with the Properties, and Lessor agrees not to take any inconsistent position on its income tax returns. Neither Lessor, the Agent, any Lender, any Holder nor NMS makes any representation or warranty with respect to the foregoing matters described in this Section 7.1 and will assume no liability for the Lessee's accounting treatment of this transaction. (b) For all purposes other than as set forth in Section 7.1(a)(i), Lessor and Lessee intend this Lease to constitute a finance lease and not a true lease. Lessor and Lessee further intend and agree that, for the purpose of securing Lessee's obligations hereunder (i) this Lease shall be deemed to be a security agreement and financing statement within the meaning of Article 9 of the Uniform Commercial Code respecting each of the Properties to the extent such is personal property and an irrevocable grant and conveyance of each Property to the Lessor as security for the Lessee's obligations hereunder to the extent such is real property; (ii) the acquisition of title (or to the extent applicable, a leasehold interest) in the Properties referenced in Article II shall be deemed to be (A) a grant by Lessee to Lessor of a lien on and security interest in all of Lessee's right, title and interest in and to each Property and all proceeds (including without limitation insurance proceeds) of each Property, whether in the form of cash, investments, securities or other property, and (B) an assignment by Lessee to Lessor of all rents, profits and income produced by each Property; and (iii) notifications to Persons holding such Property, and acknowledgments, receipts or confirmations from financial intermediaries, bankers or agents (as applicable) of Lessee shall be deemed to have been given for the purpose of perfecting such security interest under applicable law. Lessor and Lessee shall promptly take such actions as may be necessary or advisable in either party's opinion (including without limitation the filing of Uniform Commercial Code Financing Statements or Uniform Commercial Code Fixture Filings) to ensure that the lien and security interest in the Properties will be deemed to be a perfected lien and security interest of first priority under applicable law and will be maintained as such throughout the Term.
Appears in 1 contract
Samples: Lease Agreement (Healthsouth Corp)
Ownership of the Properties. (a) Lessor and Lessee intend that (i) for financial accounting purposes with respect to Lessee (A) this Lease will be treated as an "“operating lease" ” pursuant to Statement of Financial Accounting Standards No. 13, as amended, (B) Lessor will be treated as the owner and lessor of the Properties and (C) Lessee will be treated as the lessee of the Properties, but (ii) for federal and all state and local income tax purposes, for bankruptcy purposes and all other purposes (A) this Lease will be treated as a financing arrangement and (B) Lessee will be treated as the owner of the Properties and will be entitled to all tax benefits ordinarily available to owners of property similar to the Properties for such tax purposes, and (C) all payments of Basic Rent shall be deemed to be interest payments. Consistent with the foregoing, Lessee intends to claim depreciation and cost recovery deductions associated with the Properties, and Lessor agrees not to take any inconsistent position on its income tax returns. Neither Lessor, the Agent, any Lender, any Holder Holder, UBS Warburg LLC, Deutsche Bank Securities, Inc., The Chase Manhattan Bank nor NMS Deutsche Bank AG, New York Branch makes any representation or warranty with respect to the foregoing matters described in this Section 7.1 and will assume no liability for the Lessee's ’s accounting treatment of this transaction.
(b) For all purposes other than as set forth in Section 7.1(a)(i7.l(a)(i), Lessor and Lessee intend this Lease to constitute a finance lease and not a true lease. Lessor and Lessee further intend and agree that, for the purpose of securing Lessee's ’s obligations hereunder (i) this Lease shall be deemed to be a security agreement and financing statement within the meaning of Article 9 of the Uniform Commercial Code respecting each of the Properties to the extent such is personal property and an irrevocable grant and conveyance of each Property to the Lessor as security for the Lessee's ’s obligations hereunder to the extent such is real property; (ii) the acquisition of title (or to the extent applicable, a leasehold interest) in the Properties referenced in Article II shall be deemed to be (A) a grant by Lessee to Lessor of a lien on and security interest in all of Lessee's ’s right, title and interest in and to each Property and all proceeds (including without limitation insurance proceeds) of each Property, whether in the form of cash, investments, securities or other property, and (B) an assignment by Lessee to Lessor of all rents, profits and income produced by each Property; and (iii) notifications to Persons holding such Property, and acknowledgments, receipts or confirmations from financial intermediaries, bankers or agents (as applicable) of Lessee shall be deemed to have been given for the purpose of perfecting such security interest under applicable law. Lessor and Lessee shall promptly take such actions as may be necessary or advisable in either party's ’s opinion (including without limitation the filing of Uniform Commercial Code Financing Statements or Uniform Commercial Code Fixture Filings) to ensure that the lien and security interest in the Properties will be deemed to be a perfected lien and security interest of first priority under applicable law and will be maintained as such throughout the Term.
Appears in 1 contract
Samples: Lease Agreement (Healthsouth Corp)
Ownership of the Properties. (a) Lessor and Lessee intend that (i) for financial accounting purposes with respect to Lessee (A) this Lease will be treated as an "operating lease" pursuant to Statement of Financial Accounting Standards No. 13, as amended, (B) Lessor will be treated as the owner and lessor of the Properties each Property and (C) Lessee will be treated as the lessee of the Propertieseach Property, but (ii) for federal and all state and local income tax purposes, for bankruptcy purposes and all other bank regulatory purposes (A) this Lease will be treated as a financing arrangement and (B) Lessee will be treated as the owner of the Properties and will be entitled to all tax benefits ordinarily available to owners of property similar to the Properties for such tax purposes. Notwithstanding the foregoing, and (C) all payments of Basic Rent neither party hereto has made, or shall be deemed to be interest paymentshave made, any representation or warranty as to the availability of any of the foregoing treatments under applicable accounting rules, tax, bankruptcy, regulatory, commercial or real estate law or under any other set of rules. Consistent with Lessee shall claim the foregoing, Lessee intends to claim depreciation and cost recovery deductions associated with the Propertieseach Property, and Lessor agrees shall not, to the extent not to prohibited by Law, take any inconsistent position on its income tax returns. Neither Lessor, the Agent, any Lender, any Holder nor NMS makes any representation or warranty return a position inconsistent with respect to the foregoing matters described in this Section 7.1 and will assume no liability for the Lessee's accounting treatment claim of this transactionsuch deductions.
(b) For all purposes other than as set forth in Section 7.1(a)(i), Lessor and Lessee intend this Lease to constitute a finance lease and not a true lease. In order to secure the obligations of Lessee now existing or hereafter arising under any and all Operative Agreements, Lessee hereby conveys, grants, assigns, transfers, hypothecates, mortgages and sets over to Lessor, for the benefit of all Financing Parties, a first priority security interest (but subject to the security interest in the assets granted by Lessee in favor of the Agent in accordance with the Security Documents) in and lien on all right, title and interest of Lessee (now owned or hereafter acquired) in and to all Properties, to the extent such is personal property and irrevocably grants and conveys a lien, deed of trust and mortgage on all right, title and interest of Lessee (now owned or hereafter acquired) in and to all Properties to the extent such is real property. Lessor and Lessee further intend and agree that, for the purpose of securing Lessee's the obligations hereunder of Lessee and/or the Construction Agent now existing or hereafter arising under the Operative Agreements, (i) this Lease shall be deemed to be a security agreement and financing statement within the meaning of Article 9 of the Uniform Commercial Code respecting each of the Properties and all proceeds (including without limitation insurance proceeds thereof) to the extent such is personal property and an irrevocable grant and conveyance of a lien, deed of trust and mortgage on each Property to of the Lessor as security for the Lessee's obligations hereunder Properties and all proceeds (including without limitation insurance proceeds thereof) to the extent such is real property; (ii) the acquisition of title (or to the extent applicable, a leasehold interestinterest pursuant to a Ground Lease) in the Properties each Property referenced in Article II shall be deemed to be (A) constitutes a grant by Lessee to Lessor of a lien on security interest, lien, deed of trust and security interest mortgage in all of Lessee's right, title and interest in and to each Property and all proceeds (including without limitation insurance proceedsproceeds thereof) of each Propertythe conversion, voluntary or involuntary, of the foregoing into cash, investments, securities or other property, whether in the form of cash, investments, securities or other property, and (B) an assignment by Lessee to Lessor of all rents, profits and income produced by each Property; and (iii) notifications to Persons holding such Propertyproperty, and acknowledgments, receipts or confirmations from financial intermediaries, bankers or agents (as applicable) of Lessee shall be deemed to have been given for the purpose of perfecting such lien, security interest interest, mortgage lien and deed of trust under applicable law. Lessor and Lessee shall promptly take such actions as Lessor may be necessary or advisable in either party's opinion reasonably request (including without limitation the filing of Uniform Commercial Code Financing Statements or Statements, Uniform Commercial Code Fixture FilingsFilings and memoranda (or short forms) of this Lease and the various Lease Supplements) to ensure that the lien, security interest, lien, mortgage lien and security interest deed of trust in each Property and the Properties other items referenced above will be deemed to be a perfected lien, security interest, mortgage lien and security interest deed of trust of first priority under applicable law and will be maintained as such throughout the Term.
Appears in 1 contract
Samples: Lease Agreement (Us Foodservice/Md/)
Ownership of the Properties. (a) Lessor and Lessee intend that (i) for financial accounting purposes with respect to Lessee (A) this Lease will be treated as an "operating lease" pursuant to Statement of Financial Accounting Standards No. 13, as amended, (B) Lessor will be treated as the owner and lessor of the Properties and (C) Lessee will be treated as the lessee of the Properties, but (ii) for federal and all state and local income tax purposes, for bankruptcy purposes and all other purposes (A) this Lease will be treated as a financing arrangement and (B) Lessee will be treated as the owner of the Properties and will be entitled to all tax benefits ordinarily available to owners of property similar to the Properties for such tax purposes, and (C) all payments of Basic Rent shall be deemed to be interest payments. Consistent with the foregoing, Lessee intends to claim depreciation and cost recovery deductions associated with the Properties, and Lessor agrees not to take any inconsistent position on its income tax returns. Neither Lessor, the Agent, any Lender, any Holder Holder, UBS Warburg LLC, Deutsche Bank Securities, Inc., The Chase Manhattan Bank nor NMS Deutsche Bank AG, New York Branch makes any representation or warranty with respect to the foregoing matters described in this Section 7.1 and will assume no liability for the Lessee's accounting treatment of this transaction.
(b) For all purposes other than as set forth in Section 7.1(a)(i), Lessor and Lessee intend this Lease to constitute a finance lease and not a true lease. Lessor and Lessee further intend and agree that, for the purpose of securing Lessee's obligations hereunder (i) this Lease shall be deemed to be a security agreement and financing statement within the meaning of Article 9 of the Uniform Commercial Code respecting each of the Properties to the extent such is personal property and an irrevocable grant and conveyance of each Property to the Lessor as security for the Lessee's obligations hereunder to the extent such is real property; (ii) the acquisition of title (or to the extent applicable, a leasehold interest) in the Properties referenced in Article II shall be deemed to be (A) a grant by Lessee to Lessor of a lien on and security interest in all of Lessee's right, title and interest in and to each Property and all proceeds (including without limitation insurance proceeds) of each Property, whether in the form of cash, investments, securities or other property, and (B) an assignment by Lessee to Lessor of all rents, profits and income produced by each Property; and (iii) notifications to Persons holding such Property, and acknowledgments, receipts or confirmations from financial intermediaries, bankers or agents (as applicable) of Lessee shall be deemed to have been given for the purpose of perfecting such security interest under applicable law. Lessor and Lessee shall promptly take such actions as may be necessary or advisable in either party's opinion (including without limitation the filing of Uniform Commercial Code Financing Statements or Uniform Commercial Code Fixture Filings) to ensure that the lien and security interest in the Properties will be deemed to be a perfected lien and security interest of first priority under applicable law and will be maintained as such throughout the Term.real
Appears in 1 contract
Samples: Lease Agreement (Healthsouth Corp)
Ownership of the Properties. (a) Lessor and Lessee intend that (i) for financial accounting purposes with respect to Lessee (A) this Lease will be treated as an "operating lease" pursuant to Statement of Financial Accounting Standards No. 13, as amended, (B) Lessor will be treated as the owner and lessor of the Properties and (C) Lessee will be treated as the lessee of the Properties, but (ii) for federal and all state and local income tax purposes, for bankruptcy purposes, regulatory purposes, commercial law and real estate purposes and all other purposes (other than for accounting purposes) (A) this Lease will be treated as a financing arrangement and (B) Lessee will be treated as the owner of the Properties and will be entitled to all tax benefits ordinarily available to owners of property similar to the Properties for such tax purposes; provided, however, that for financial accounting purposes, Lessor and (C) all payments of Basic Rent Lessee intend that this Lease will be treated as an operating lease. Notwithstanding the foregoing, neither party hereto has made, or shall be deemed to be interest paymentshave made, any representation or warranty as to the availability of any of the foregoing treatments under applicable accounting rules, tax, bankruptcy, regulatory, commercial or real estate law or under any other set of rules. Consistent with Lessee shall claim the foregoing, Lessee intends to claim depreciation and cost recovery deductions associated with the Propertieseach Property, and Lessor agrees shall not, to the extent not to prohibited by Law, take any inconsistent position on its income tax returns. Neither Lessor, the Agent, any Lender, any Holder nor NMS makes any representation or warranty return a position inconsistent with respect to the foregoing matters described in this Section 7.1 and will assume no liability for the Lessee's accounting treatment claim of this transactionsuch deductions.
(b) For all purposes other than as set forth described in Section 7.1(a)(i)7.1(a) except for financial accounting purposes, Lessor and Lessee intend this Lease to constitute a finance lease and not a true lease. In order to secure the obligations of Lessee now existing or hereafter arising under any and all Operative Agreements, Lessee hereby conveys, grants, assigns, transfers, hypothecates, mortgages and sets over to Lessor, for the benefit of all Financing Parties, a first priority security interest in and lien (but subject to the security interest and lien in the assets granted by Lessee in favor of the Agent in accordance with the Security Documents) on all right, title and interest of Lessee (now owned or hereafter acquired) in and to all Properties to the extent such is personal property and does hereby irrevocably MORTGAGE, GRANT, BARGAIN, SELL, ALIEN, REMISE, RELEASE, CONFIRM AND CONVEY to Lessor, for the benefit of all Financing Parties, a lien and mortgage (but subject to the lien and mortgage in the assets granted by Lessee in favor of the Agent in accordance with the Security Documents) on all right, title and interest of Lessee (now owned or hereafter acquired) in and to all Properties to the extent such is a real property. The security interest, lien and mortgage in the assets granted by Lessee in favor of Lessor are assigned by Lessor to the Agent and/or subject to additional security interests, liens and mortgages granted by Lessor to the Agent. Lessor and Lessee further intend and agree that, for the purpose of securing Lessee's the obligations hereunder of Lessee and/or the Construction Agent now existing or hereafter arising under the Operative Agreements, (i) this Lease shall be deemed to be a security agreement and financing statement within the meaning of Article 9 of the Uniform Commercial Code respecting each of the Properties and all proceeds (including without limitation insurance proceeds thereof) to the extent such is personal property and an irrevocable grant and conveyance of a lien and mortgage on each Property to of the Lessor as security for the Lessee's obligations hereunder Properties and all proceeds (including without limitation insurance proceeds thereof) to the extent such is real property; (ii) the acquisition of title by Lessor (or to the extent applicable, a leasehold interestinterest pursuant to a Ground Lease) in the Properties each Property referenced in Article II shall be deemed to be (A) constitutes a grant by Lessee to Lessor of a security interest, lien on and security interest mortgage in all of Lessee's right, title and interest in and to each Property and all proceeds (including without limitation insurance proceedsproceeds thereof) of each Propertythe conversion, voluntary or involuntary, of the foregoing into cash, investments, securities or other property, whether in the form of cash, investments, securities or other property, and (B) an assignment by Lessee to Lessor of all rents, profits and income produced by each Property; and (iii) notifications to Persons holding such Propertyproperty, and acknowledgments, receipts or confirmations from financial intermediaries, bankers or agents (as applicable) of Lessee shall be deemed to have been given for the purpose of perfecting such lien, security interest and mortgage lien under applicable law. Lessor and Lessee shall promptly take such actions as Lessor may be necessary or advisable in either party's opinion reasonably request (including without limitation the filing of Uniform Commercial Code Financing Statements or Statements, Uniform Commercial Code Fixture FilingsFilings and memoranda (or short forms) of this Lease and the various Lease Supplements) to ensure that the lien, security interest, lien and security interest mortgage lien in each Property and the Properties other items referenced above will be deemed to be a perfected lien and lien, security interest and mortgage lien of first priority under applicable law and will be maintained as such throughout the Term. The security agreements, financing statements, liens, security interests, deeds of trust and mortgages provided in clauses (i), (ii) and (iii) hereof shall be individually defined as the "Security Right", and individual collateral secured by the corresponding Security Right as provided in clauses (i), (ii) and (iii) hereof shall be defined herein as the "Specified Collateral".
(c) In the event that Lessee's interest in the Properties as provided in this Lease is recharacterized by a court of competent jurisdiction, and last resort in the case of an appeal, as a grant of an equitable mortgage by Lessee or as a financing instrument provided in favor of Lessee or otherwise, and not as a leasehold estate in substantial conformity with the terms and conditions contained in this Lease, then Lessee and Lessor agree that this Lease shall constitute a Security Right with respect to the applicable Specified Collateral provided in clauses (i), (ii) and (iii) of Section 7.1(b) and shall be enforceable in accordance with the terms and conditions contained in this Lease to the extent that such terms and conditions may be enforceable pursuant to the determination of such court of competent jurisdiction. Lessor and Lessee further agree that the provisions of this Section 7.1 are for the benefit of, and may be enforceable by Lessor, Lessee and each of the Financing Parties.
Appears in 1 contract
Samples: Lease Agreement (Convergys Corp)
