Intended Characterization; Grant of Security Interest. It is the intention of the parties hereto that each transfer of the Timeshare Loans to be made pursuant to the terms hereof shall constitute a sale by the Depositor to the Issuer and not a loan secured by the Timeshare Loans. In the event, however, that a court of competent jurisdiction were to hold 3 that any such transfer constitutes a loan and not a sale, it is the intention of the parties hereto that the Depositor shall be deemed to have granted to the Issuer as of the date hereof a first priority perfected security interest in all of the Depositor’s right, title and interest in, to and under the Assets and the QSTL Assets (as hereinafter defined) specified in Section 2 hereof and Section 6(f) hereof, respectively, and the proceeds thereof and that with respect to such transfer, this Agreement shall constitute a security agreement under applicable law. In the event of the characterization of any such transfer as a loan, the amount of interest payable or paid with respect to such loan under the terms of this Agreement shall be limited to an amount which shall not exceed the maximum non-usurious rate of interest allowed by the applicable state law or any applicable law of the United States permitting a higher maximum non-usurious rate that preempts such applicable state law, which could lawfully be contracted for, charged or received (the “Highest Lawful Rate”). In the event any payment of interest on any such loan exceeds the Highest Lawful Rate, the parties hereto stipulate that (a) to the extent possible given the term of such loan, such excess amount previously paid or to be paid with respect to such loan be applied to reduce the principal balance of such loan, and the provisions thereof immediately be deemed reformed and the amounts thereafter collectible thereunder reduced, without the necessity of the execution of any new document, so as to comply with the then applicable law, but so as to permit the recovery of the fullest amount otherwise called for thereunder and (b) to the extent that the reduction of the principal balance of, and the amounts collectible under, such loan and the reformation of the provisions thereof described in the immediately preceding clause (a) is not possible given the term of such loan, such excess amount will be deemed to have been paid with respect to such loan as a result of an error and upon discovery of such error or upon notice thereof by any party hereto such amount shall be refunded by the recipient thereof. The ...
Intended Characterization; Grant of Security Interest. (i) The SPV, the Agent, the Managing Agents and the Investors intend that the sale, assignment and transfer of the Affected Assets to the Agent (on behalf of the Investors) hereunder shall be treated as a sale for all purposes, other than accounting and federal and state income tax purposes. If notwithstanding the intent of the parties, the sale, assignment and transfer of the Affected Assets to the Agent (on behalf of the Investors) is not treated as a sale for all purposes, other than accounting and federal and state income tax purposes, the sale, assignment and transfer of the Affected Assets shall be treated as the grant of, and the SPV hereby does grant, a security interest in the Affected Assets to secure the payment and performance of the SPV’s obligations to the Agent (on behalf of the Investors) hereunder and under the other Transaction Documents or as may be determined in connection therewith by applicable Law. The SPV and Agent agree, and each Investor by acquiring an Investment or other interest in the Affected Assets agrees, to treat and report such Investment or other interests in the Affected Assets as indebtedness for U.S. federal and state income tax purposes. The SPV hereby authorizes the Agent to file financing statements naming the SPV as debtor or seller and describing as the collateral covered thereby as “all of the debtor’s personal property or assets” or words to that effect, notwithstanding that such wording may be broader in scope than the collateral described in this Agreement.
Intended Characterization; Grant of Security Interest. (i) The SPV, each Funding Agent, the Administrative Agent and the Investors intend that the sale, assignment and transfer of the Affected Assets to the Funding Agent (on behalf of their related Conduit Investors and/or the Related Alternate Investors as applicable) hereunder shall be treated as a sale for all purposes, other than U.S. federal and state income tax purposes. If notwithstanding the intent of the parties, the sale, assignment and transfer of the Affected Assets to the Funding Agents shall be characterized as a secured loan and not a sale for all purposes (other than U.S. federal and state income tax purposes) or any such sale shall for any reason be ineffective or unenforceable (any of the foregoing being a “Recharacterization”) (as to which the foregoing shall constitute indebtedness of the SPV secured by the Affected Assets), such sale, assignment and transfer of the Affected Assets shall be treated as the grant of, and the SPV hereby does grant, a security interest in the Affected Assets to secure the payment and performance of the SPV’s obligations for the benefit of the Funding Agents (on behalf of the related Conduit Investors and/or the Related Alternate Investors as applicable) hereunder and under the other Transaction Documents or as may be determined in connection therewith by applicable Law. In the case of any Recharacterization, the SPV represents and warrants that each remittance of Collections to the Administrative Agent, any Funding Agent or any Purchaser Group hereunder will have been (i) in payment of a debt incurred in the ordinary course of business or financial affairs of the SPV and (ii) made in the ordinary course of business or financial affairs of the SPV.
Intended Characterization; Grant of Security Interest. (i) The SPV, the Agent, the Class Agents and the Investors intend that the sale, assignment and transfer of the Affected Assets to the Agent (on behalf of the Conduit Investors and/or the Alternate Investors as applicable) hereunder shall be treated as a sale for all purposes, other than federal and state income tax and accounting purposes. If notwithstanding the intent of the parties, the sale, assignment and transfer of the Affected Assets to the Agent (on behalf of the Investors) is not treated as a sale for all purposes, other than federal and state income tax and accounting purposes, the sale, assignment and transfer of the Affected Assets shall be treated as the grant of, and the SPV hereby does grant, a security interest in the Affected Assets to secure the payment and performance of the SPV’s obligations to the Agent (on behalf of the Conduit Investors and/or the Alternate Investors as applicable) hereunder and under the other Transaction Documents or as may be determined in connection therewith by applicable Law.
Intended Characterization; Grant of Security Interest. It is the intention of the parties hereto that the transfer of Timeshare Loans to be made pursuant to the terms hereof shall constitute a sale by the Seller or Bluegreen, as applicable, to the Depositor and 3
Intended Characterization; Grant of Security Interest. It is the intention of the parties hereto that each transfer of Conveyed Timeshare Property to be made pursuant to the terms hereof shall constitute a sale by the Seller to the Buyer and not a loan secured by the Conveyed Timeshare Property. In the event, however, that a court of competent jurisdiction were to hold that any such transfer constitutes a loan and not a sale, it is the intention of the parties hereto that (a) the Seller shall be deemed to have granted to the Buyer as of the date hereof a first priority perfected security interest in all of the Seller’s right, title and interest in, to and under, whether now owned or existing or hereafter acquired or arising, the Conveyed Timeshare Property, and (b) this Agreement shall constitute a security agreement under applicable law. 62
Intended Characterization; Grant of Security Interest. (a) It is the intention of the parties hereto that the conveyance by the Depositor of the Trust Estate to the Issuer shall constitute a purchase and sale of such Trust Estate and not a loan. In the event, however, that a court of competent jurisdiction were to hold that the transaction evidenced hereby constitutes a loan and not a purchase and sale, it is the intention of the parties hereto that this Agreement shall constitute a security agreement under applicable law, and that the Depositor shall be deemed to have granted and hereby, does grant to the Issuer, a first priority perfected security interest in all of the Depositor's right, title and interest in, to and under the Trust Estate to secure a loan in an amount equal to the purchase price of the Loans.
Intended Characterization; Grant of Security Interest. It is the intention of the parties hereto that each transfer of Contributed Student Loans to be made pursuant to the terms hereof shall constitute an absolute transfer with the effect described in Section 3(a) by the Transferor to MRU ABS and not a loan secured by the Contributed Student Loans. In the event, however, that a court of competent jurisdiction were to hold that any such transfer constitutes a loan and not an absolute transfer, it is the intention of the parties hereto that the Transferor shall be deemed to have granted to MRU ABS as of the date hereof a first priority perfected security interest in all of the Transferor’s right, title and interest in, to and under the Contributed Student Loans and that with respect to such transfer, this Agreement shall constitute a security agreement under applicable law.
Intended Characterization; Grant of Security Interest. (a) It is the intention of the Parties hereto that each transfer of Scheduled Receivables to be made pursuant to the terms hereof and any related Purchase Offer shall constitute a sale by the Seller to the Purchaser of such Scheduled Receivables and not a loan secured by the Scheduled Receivables. To protect against the event that, notwithstanding the intention of the parties that the sale and assignment of all right, title and interest of the Seller in and to the Scheduled Receivables pursuant to this Agreement constitute a true sale, a court were to hold that such sale and assignment constitutes a secured financing arrangement rather than a true sale, but without derogating from the foregoing intention of the parties, the Seller hereby grants to the Purchaser as of the date of this Agreement a security interest under Article 9 of the UCC in all of the right, title and interest of the Seller in, to and under the Scheduled Receivables now existing and hereafter created as collateral security for all of the Obligations of the Seller under this Agreement and the other Transaction Documents, and solely for such purpose (i) the Purchaser shall have all of the rights and remedies of a secured party under the UCC, (ii) all of the provisions of this Agreement shall be construed mutatis mutandis to grant such a security interest, (iii) the Scheduled Receivables constitute either "accounts" or "general intangibles" under the UCC and (iv) this Agreement shall constitute a security agreement under the UCC.
Intended Characterization; Grant of Security Interest. (a) It is the intention of the parties hereto that the transfers and assignments contemplated by this Agreement shall constitute a sale of the Mortgage Loans and the other property specified in Section 2.1(a) from the Depositor to the Trustee and such property shall not be property of the Depositor. If the assignment and transfer of the Mortgage Loans and the other property specified in Section 2.1(a) to the Trustee pursuant to this Agreement or the conveyance of the Mortgage Loans or any of such other property to the Trustee is held or deemed not to be a sale or is held or deemed to be a pledge of security for a loan, the Depositor intends that the rights and obligations of the parties shall be established pursuant to the terms of this Agreement and that, in such event, (i) the Depositor shall be deemed to have granted and does hereby grant to the Trustee a first priority security interest in the entire right, title and interest of the Depositor in and to the Mortgage Loans and all other property conveyed to the Trustee pursuant to Section 2.1(a) to secure a loan in an amount equal to the aggregate Certificate Principal Balance of the Class A Certificates, and (ii) this Agreement shall constitute a security agreement under applicable law. Within five (5) days after the Closing Date, the Depositor shall cause to be filed UCC-1 financing statements naming the Trustee as "secured party" and describing the Mortgage Loans and such other assets being sold by the Depositor to the Trustee with the office of the Secretary of State of the state in which the principal place of business of the Depositor is located. It is the intention of the parties hereto that the conveyance by the Depositor of the Trust Fund to the Trustee shall constitute a purchase and sale of such Trust Fund and not a loan.
