Intended Characterization. It is intended that the conveyance, transfer, assignment and setting over of the Mortgages by the Depositor to the Trustee pursuant to this Agreement be a true, absolute and unconditional sale of the related Mortgages by the Depositor to the Trustee, and not a pledge of the Mortgages to secure a debt or other obligation of the Depositor, and that the Holders of the related PCs shall be the beneficial owners of such Mortgages. Notwithstanding this express intention, however, if the Mortgages are determined by a court of competent jurisdiction or other competent authority to be the property of the Depositor, then it is intended that: (a) this Agreement be deemed to be a security agreement within the meaning of Articles 8 and 9 of the Uniform Commercial Code; (b) the conveyances provided for in Section 1.01 shall be deemed to be (1) a grant by the Depositor to the Trustee on behalf of the related Holders of a security interest in all of the Depositor’s right (including the power to convey title thereto), title and interest, whether now owned or hereafter acquired, in and to the related Mortgages, any and all general intangibles consisting of, arising from or relating to any of the foregoing, and all proceeds of the conversion, voluntary or involuntary, of the foregoing into cash, instruments, securities or other property, including without limitation all amounts from time to time held or invested in the Custodial Account and allocable to such Mortgages, whether in the form of cash, instruments, securities or other property and (2) an assignment by the Depositor to the Trustee on behalf of the related Holders of any security interest in any and all of the Depositor’s right (including the power to convey title thereto), title and interest, whether now owned or hereafter acquired, in and to the property described in the foregoing clause (1); and (c) notifications to Persons holding such property, and acknowledgments, receipts or confirmations from Persons holding such property, shall be deemed notifications to, or acknowledgments, receipts or confirmations from, financial intermediaries, bailees or agents (as applicable) of the Trustee on behalf of the related Holders, for the purpose of perfecting such security interest under applicable law.
Intended Characterization. It is intended that the conveyance, transfer, assignment and setting over of the Mortgages by the Depositor to the Trustee pursuant to this Agreement be a true, absolute and unconditional sale of the related Mortgages by the Depositor to the Trustee, and not a pledge of the Mortgages to secure a debt or other obligation of the Depositor, and that the Holders of the related PCs shall be the beneficial owners of such Mortgages. Notwithstanding this express intention, however, if the Mortgages are determined by a court of competent jurisdiction or other competent authority to be the property of the Depositor, then it is intended that: (a) this Agreement be deemed to be a security agreement within the meaning of Articles 8 and 9 of the Uniform Commercial Code; (b) the conveyances provided for in Section
Intended Characterization. The Originator, Funding and the Purchaser agree that any conveyance hereunder or under the Asset Purchase Agreement is intended to be a sale and conveyance of ownership of the Receivables and related Assets, rather than the mere granting of a security interest to secure a borrowing. If, notwithstanding such expressed interest, any such transfer is deemed to be of a mere security interest to secure indebtedness, the Originator shall be deemed to have granted (and hereby grants to) each of Funding and the Custodian, as agent for Funding, a perfected first priority security interest in such Receivables and related Assets and this Agreement shall constitute a security agreement under applicable law, securing the repayment of the purchase price paid hereunder and the obligations and/or interests provided for in this Agreement and in the order and priorities, and subject to the other terms and conditions of, the Asset Purchase Agreement, together with such other obligations or interests as may arise hereunder and thereunder in favor of the parties hereto and thereto. If such transfer is deemed to be the mere granting of a security interest to secure a borrowing, Funding may, to secure Funding's own obtainment of funds under the Asset Purchase Agreement (to the extent that the conveyance of the Receivables and related Assets thereunder is deemed to be a mere granting of a security interest to secure a borrowing) repledge and reassign (i) all or a portion of the Receivables and related Assets pledged to Funding and not released from the security interest of this Agreement at the time of such pledge and assignment, and (ii) all proceeds thereof. Such repledge and reassignment may be made by Funding with or without a repledge and reassignment by Funding of its rights under this Agreement, and without further notice to or acknowledgment from the Originator. The Originator waives, to the extent permitted by applicable law, all claims, causes of action and remedies, whether legal or equitable (including any right of setoff), against Funding or any assignee of Funding relating to such action by Funding in connection with the transactions contemplated by the Asset Purchase Agreement. [remainder of page intentionally blank]
Intended Characterization. It is intended that the conveyance, transfer, assignment and setting over of the Assets by the Depositor to the Trustee pursuant to this Agreement and the conveyance by the Depositor of the related I-REMIC Interests to Holders, be a true, absolute and unconditional conveyance of the related Assets by the Depositor to the Trustee, and not a pledge of the Assets to secure a debt or other obligation of the Depositor, and that the Holders of the related I- REMIC Interests shall be the beneficial owners of such Assets.
Intended Characterization. (a) Except for the obligation of NFC to repurchase Designated Receivables in the event of a Repurchase Event, the sale of Receivables hereunder is made without recourse to Originator; provided, however, that NFC shall be liable to NFRRC for all representations, warranties, covenants and indemnities made by NFC pursuant to the terms of this Agreement or any other Transaction Documents to which NFC is a party.
Intended Characterization. The parties hereto agree that it is their mutual intent that, for all purposes, the Advances made hereunder will constitute indebtedness of the Borrower. Further, each party hereto hereby covenants to every other party hereto to treat the Advances made hereunder as indebtedness for all purposes, including in all tax filings, reports and returns and otherwise, and further covenants that neither it nor any of its Affiliates will take, or participate in the taking of or permit to be taken, any action that is inconsistent with the treatment of the Advances hereunder as indebtedness. All successors and assigns of the parties hereto shall be bound by the provisions hereof.
Intended Characterization. It is intended that the conveyance, transfer, assignment and setting over of the Assets by the Depositor to the Trustee pursuant to this Agreement and the conveyance by the Depositor of the related Pass-Through Certificates to Holders, be a true, absolute and unconditional sale of the related Assets by the Depositor to the Trustee, and not a pledge of the Assets to secure a debt or other obligation of the Depositor, and that the Holders of the related Pass-Through Certificates shall be the beneficial owners of such Assets. Notwithstanding this express intention, however, if the Assets are determined by a court of competent jurisdiction or other competent authority to be the property of the Depositor, then it is intended that: (a) this Agreement be deemed to be a security agreement within the meaning of Articles 8 and 9 of the Uniform Commercial Code; (b) the conveyances provided for in Section
Intended Characterization. The Parties, being aware that the Trustee and Noteholders have relied on the provisions of this Section 4 in extending financing, acknowledge and agree that:
Intended Characterization. Each of the Seller and the Purchaser covenants and agrees that
Intended Characterization. It is the intention of the Assignor and Assignee that the conveyance and contribution of all right, title and interest in and to the Assets to the Assignee as provided in this Agreement shall constitute an absolute transfer and contribution conveying good title, free and clear of any Lien (other than the Liens granted pursuant to the Security Agreement and the Account Control Agreement) and that the Assets shall not be part of the Assignor’s bankruptcy estate in the event of a bankruptcy or insolvency proceeding with respect to the Assignor. Furthermore, it is not intended that such conveyance be deemed a pledge of the Collateral Debt Securities and the other Assets to the Assignee to secure a debt or other obligation of the Assignor. If, however, notwithstanding the intention of the parties, the conveyance provided for in this Agreement is determined to be a transfer for security, then this Agreement shall also be deemed to be, and hereby is, a “security agreement” within the meaning of Article 9 of the UCC and the Assignor hereby grants to the Assignee a duly perfected, first priority “security interest” within the meaning of Article 9 of the UCC in all right, title and interest in and to the Assets, now existing and hereafter created. The Assignee shall have, in addition to the rights and remedies which it may have under this Agreement, all other rights and remedies provided to a secured creditor under the UCC and other applicable law, which rights and remedies shall be cumulative.
