Common use of Intended Characterization Clause in Contracts

Intended Characterization. The Sellers and the Trust Depositor agree that any conveyance hereunder or under the Sale and Servicing Agreement is intended to be a sale and absolute conveyance of ownership of the 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, each Seller shall be deemed to have granted (and hereby grants to) the Trust Depositor and the Custodian, as agent for the Trust Depositor, a perfected first priority security interest in such 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 Sale and Servicing 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, Trust Depositor may, to secure Trust Depositor's own obtainment of funds under the Sale and Servicing Agreement (to the extent that the conveyance of the 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 Assets pledged to Trust Depositor 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 Trust Depositor with or without a repledge and reassignment by Trust Depositor of its rights under this Agreement, and without further notice to or acknowledgment from any Seller. Each Seller 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 Trust Depositor or any assignee of Trust Depositor relating to such action by Trust Depositor in connection with the transactions contemplated by the Sale and Servicing Agreement.

Intended Characterization. The Sellers and the Trust Depositor agree that any conveyance hereunder or under the Sale and Servicing Agreement is intended to be a sale and absolute conveyance of ownership of the AssetsParties, 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, each Seller shall be deemed to have granted (and hereby grants to) the Trust Depositor and the Custodian, as agent for the Trust Depositor, a perfected first priority security interest in such 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 Sale and Servicing 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, Trust Depositor may, to secure Trust Depositor's own obtainment of funds under the Sale and Servicing Agreement (to the extent being aware that the conveyance Trustee and Noteholders have relied on the provisions of the Assets thereunder is deemed to be a mere granting of a security interest to secure a borrowing) repledge this Section 4 in extending financing, acknowledge and reassign agree that: (i) all or a portion of the Assets pledged Ownership Interests purported to Trust Depositor be contributed hereunder shall, effective upon the Effective Date 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 Trust Depositor with or without a repledge and reassignment by Trust Depositor of its rights under this Agreement, and without further notice immediately prior to or acknowledgment from any Seller. Each Seller 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 Trust Depositor or any assignee of Trust Depositor relating to such action by Trust Depositor in connection with the transactions contemplated by the Sale Indenture, be deemed to no longer be the property, assets or rights of Parent; (ii) Parent, its creditors or, in any insolvency proceeding with respect to Parent or Parent’s property, a bankruptcy trustee, receiver, debtor, debtor in possession or similar person, shall have no rights, legal or equitable, whatsoever to reacquire, reclaim, recover, repudiate, disaffirm, redeem or recharacterize as property of Parent, all or any portion of the Ownership Interests purported to be transferred, in whole or in part, by Parent hereunder; (iii) in the event of a bankruptcy, receivership or other insolvency proceeding with respect to Parent or Parent’s property, the Ownership Interests purported to be subject to the Contribution hereunder shall not be deemed to be part of Parent’s property, assets, rights or estate; (iv) the Contribution of the Ownership Interests hereunder is intended by the Parties to be a true contribution and Servicing Agreementabsolute conveyance of such Ownership Interests from Parent to Issuer and not a financing transaction, and the Parties will treat the Contribution as such for all purposes, including, without limitation, accounting and bankruptcy purposes. Parent shall take all actions necessary to vest and maintain vested in Issuer, a valid and properly perfected title to, and sole record and beneficial ownership of, the Ownership Interests, free and clear of any Lien or other adverse claim created by or through Parent. Neither Party hereto shall take any action inconsistent with the characterization of the Contribution as a true contribution and absolute conveyance of the Ownership Interests by Parent to Issuer, as a separate legal entity, and not a financing transaction or transfer between divisions of a single legal entity. Parent shall not claim any ownership interest in all or any of the Ownership Interests on or after the Effective Date. Parent shall defend the rights of Issuer and its assignees in and to the Ownership Interests against any attempted rescission or cancellation of the Contribution thereof or the assertion of any Lien on or other adverse claim to the Ownership Interests by any predecessor to Parent or any creditor of or transferee from Parent or any predecessor to Parent, and neither the Parent nor the Issuer shall seek to rescind or cancel, in whole or in part, the Contribution of the Ownership Interests hereunder.

Intended Characterization. The Sellers (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 Trust Depositor agree terms of this Agreement or any other Transaction Documents to which NFC is a party. (b) It is the intention of the parties hereto that any conveyance the purchase of the Designated Receivables made hereunder or under shall constitute a sale, which sale is absolute and irrevocable and provides NFRRC with the Sale and Servicing Agreement is intended to be a sale and absolute conveyance full benefits of ownership of the Assets, rather than the mere granting of a security interest to secure a borrowingDesignated Receivables. If, notwithstanding the foregoing, the conveyance by NFC to NFRRC of the Designated Receivables hereunder shall be characterized as a secured loan and not a sale, or such expressed interestsale shall for any reason be ineffective or unenforceable, any such transfer is deemed to be of a mere security interest to secure indebtedness, each Seller then this Agreement shall be deemed to have granted (and hereby grants to) the Trust Depositor and the Custodian, as agent for the Trust Depositor, a perfected first priority security interest in such Assets and this Agreement shall constitute a security agreement under the UCC and other applicable law, securing the repayment . For this purpose and without being in derogation of the purchase price paid parties' intention that the sale of Designated Receivables hereunder shall constitute a true sale thereof, NFC hereby grants to NFRRC a duly perfected security interest in all of NFC's right, title and interest in, to and under the obligations and/or interests provided for in this Agreement Designated Receivables and in the order Related Security with respect thereto, all other rights and priorities, and subject payments relating to the other terms Designated Receivables and conditions of, all proceeds of the Sale foregoing to secure the prompt and Servicing Agreement, complete payment of a loan deemed to have been made in an amount equal to the Purchase Price of the Designated Receivables together with such all other obligations or interests as may arise hereunder of NFC hereunder. In such event, NFRRC and thereunder its assigns shall have, 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, Trust Depositor may, to secure Trust Depositor's own obtainment of funds under the Sale and Servicing Agreement (addition to the extent that the conveyance of the Assets thereunder is deemed to be a mere granting of a security interest to secure a borrowing) repledge rights and reassign (i) all or a portion of the Assets pledged to Trust Depositor 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 remedies which they may be made by Trust Depositor with or without a repledge and reassignment by Trust Depositor of its rights have under this Agreement, all other rights and without further notice remedies provided to or acknowledgment from any Seller. Each Seller waivesa secured creditor under the UCC and other applicable law and in equity, to the extent permitted by applicable law, all claims, causes of action which rights and remedies, whether legal or equitable (including any right of setoff), against Trust Depositor or any assignee of Trust Depositor relating to such action by Trust Depositor in connection with the transactions contemplated by the Sale and Servicing Agreementremedies shall be cumulative.

Intended Characterization. The Sellers Originator, Funding and the Trust Depositor Purchaser agree that any conveyance hereunder or under the Sale and Servicing Asset Purchase Agreement is intended to be a sale and absolute 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, each Seller the Originator shall be deemed to have granted (and hereby grants to) the Trust Depositor each of Funding and the Custodian, as agent for the Trust DepositorFunding, 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 Sale and Servicing 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, Trust Depositor Funding may, to secure Trust DepositorFunding's own obtainment of funds under the Sale and Servicing 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 Trust Depositor 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 Trust Depositor Funding with or without a repledge and reassignment by Trust Depositor Funding of its rights under this Agreement, and without further notice to or acknowledgment from any Sellerthe Originator. Each Seller 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 Trust Depositor Funding or any assignee of Trust Depositor Funding relating to such action by Trust Depositor Funding in connection with the transactions contemplated by the Sale and Servicing Asset Purchase Agreement.

Intended Characterization. The Sellers and the Trust Depositor agree that any conveyance hereunder or under the Sale and Servicing Agreement is intended to be a sale and absolute conveyance of ownership of the 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, each Seller shall be deemed to have granted (and hereby grants to) the Trust Depositor and the Custodian, as agent for the Trust Depositor, a perfected first priority security interest in such 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 Sale and Servicing 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, Trust Depositor may, to secure Trust Depositor's own obtainment of funds under the Sale and Servicing Agreement (to the extent that the conveyance of the 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 Assets pledged to Trust Depositor 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 Trust Depositor with or without a repledge and reassignment by Trust Depositor of its rights under this Agreement, and without further notice to or acknowledgment from any Seller. Each Seller 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 Trust Depositor or any assignee of Trust Depositor relating to such action by Trust Depositor in connection with the transactions contemplated by the Sale and Servicing Agreement.

Intended Characterization. The Sellers (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 Trust Depositor agree terms of this Agreement or any other Transaction Documents to which NFC is a party. (b) It is the intention of the parties hereto that any conveyance the purchase of the Designated Receivables made hereunder or under shall constitute a sale, which sale is absolute and irrevocable and provides NFRRC with the Sale and Servicing Agreement is intended to be a sale and absolute conveyance full benefits of ownership of the Assets, rather than the mere granting of a security interest to secure a borrowingDesignated Receivables. If, notwithstanding the foregoing, the conveyance by NFC to NFRRC of the Designated Receivables hereunder shall be characterized as a secured loan and not a sale, or such expressed interestsale shall for any reason be ineffective or unenforceable, any such transfer is deemed to be of a mere security interest to secure indebtedness, each Seller then this Agreement shall be deemed to have granted (and hereby grants to) the Trust Depositor and the Custodian, as agent for the Trust Depositor, a perfected first priority security interest in such Assets and this Agreement shall constitute a security agreement under the UCC and other applicable law, securing the repayment . For this purpose and without being in derogation of the purchase price paid parties’ intention that the sale of Designated Receivables hereunder shall constitute a true sale thereof, NFC hereby grants to NFRRC a duly perfected security interest in all of NFC’s right, title and interest in, to and under the obligations and/or interests provided for in this Agreement Designated Receivables and in the order Related Security with respect thereto, all other rights and priorities, and subject payments relating to the other terms Designated Receivables and conditions of, all proceeds of the Sale foregoing to secure the prompt and Servicing Agreement, complete payment of a loan deemed to have been made in an amount equal to the Purchase Price of the Designated Receivables together with such all other obligations or interests as may arise hereunder of NFC hereunder. In such event, NFRRC and thereunder its assigns shall have, 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, Trust Depositor may, to secure Trust Depositor's own obtainment of funds under the Sale and Servicing Agreement (addition to the extent that the conveyance of the Assets thereunder is deemed to be a mere granting of a security interest to secure a borrowing) repledge rights and reassign (i) all or a portion of the Assets pledged to Trust Depositor 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 remedies which they may be made by Trust Depositor with or without a repledge and reassignment by Trust Depositor of its rights have under this Agreement, all other rights and without further notice remedies provided to or acknowledgment from any Seller. Each Seller waivesa secured creditor under the UCC and other applicable law and in equity, to the extent permitted by applicable law, all claims, causes of action which rights and remedies, whether legal or equitable (including any right of setoff), against Trust Depositor or any assignee of Trust Depositor relating to such action by Trust Depositor in connection with the transactions contemplated by the Sale and Servicing Agreementremedies shall be cumulative.

Intended Characterization. The Sellers Originator, Funding and the Trust Depositor Purchaser agree that any conveyance hereunder or under the Sale and Servicing Asset Purchase Agreement is intended to be a sale and absolute 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, each Seller the Originator shall be deemed to have granted (and hereby grants to) the Trust Depositor each of Funding and the Custodian, as agent for the Trust DepositorFunding, 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 Sale and Servicing 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, Trust Depositor Funding may, to secure Trust DepositorFunding's own obtainment of funds under the Sale and Servicing 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 Trust Depositor 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 Trust Depositor Funding with or without a repledge and reassignment by Trust Depositor Funding of its rights under this Agreement, and without further notice to or acknowledgment from any Sellerthe Originator. Each Seller 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 Trust Depositor Funding or any assignee of Trust Depositor Funding relating to such action by Trust Depositor Funding in connection with the transactions contemplated by the Sale and Servicing Asset Purchase Agreement.. [remainder of page intentionally blank]

Intended Characterization. The Sellers (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 Trust Depositor agree terms of this Agreement or any other Transaction Documents to which NFC is a party. (b) It is the intention of the parties hereto that any conveyance the purchase of the Designated Receivables made hereunder or under shall constitute a sale, which sale is absolute and irrevocable and provides NFRRC with the Sale and Servicing Agreement is intended to be a sale and absolute conveyance full benefits of ownership of the Assets, rather than the mere granting of a security interest to secure a borrowingDesignated Receivables. If, notwithstanding the foregoing, the conveyance by NFC to NFRRC of the Designated Receivables hereunder shall be characterized as a secured loan and not a sale, or such expressed interestsale shall for any reason be ineffective or unenforceable, any such transfer is deemed to be of a mere security interest to secure indebtedness, each Seller then this Agreement shall be deemed to have granted (and hereby grants to) the Trust Depositor and the Custodian, as agent for the Trust Depositor, a perfected first priority security interest in such Assets and this Agreement shall constitute a security agreement under the UCC and other applicable law, securing the repayment . For this purpose and without being in derogation of the purchase price paid parties' intention that the sale of Designated Receivables hereunder shall constitute a true sale thereof, NFC hereby grants to NFRRC a duly perfected security interest in all of NFC's right, title and interest in, to and under the obligations and/or interests provided for in this Agreement Designated Receivables and in the order Related Security with respect thereto, all other rights and priorities, and subject payments relating to the other terms Designated Receivables and conditions of, all proceeds of the Sale foregoing to secure the prompt and Servicing Agreement, complete payment of a loan deemed to have been made in an amount equal to the Purchase Price of the Designated Receivables together with such all other obligations or interests as may arise hereunder of NFC hereunder. In such event, NFRRC and thereunder its assigns shall have, 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, Trust Depositor may, to secure Trust Depositor's own obtainment of funds under the Sale and Servicing Agreement (addition to the extent that the conveyance of the Assets thereunder is deemed to be a mere granting of a security interest to secure a borrowing) repledge rights and reassign (i) all or a portion of the Assets pledged to Trust Depositor 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 remedies which they may be made by Trust Depositor with or without a repledge and reassignment by Trust Depositor of its rights have under this Agreement, all other rights and without further notice remedies provided to or acknowledgment from any Seller. Each Seller waivesa secured creditor under the UCC and other applicable law and in equity, to the extent permitted by applicable law, all claims, causes of action which rights and remedies, whether legal or equitable (including any right of setoff), against Trust Depositor or any assignee of Trust Depositor relating to such action by Trust Depositor in connection with the transactions contemplated by the Sale and Servicing Agreementremedies shall be cumulative.

Intended Characterization. The Sellers and the Trust Depositor agree that any conveyance hereunder or under the Sale and Servicing Agreement is intended to be a sale and absolute conveyance of ownership of the 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, each Seller shall be deemed to have granted (and hereby grants to) the Trust Depositor and the Custodian, as agent for the Trust Depositor, a perfected first priority security interest in such 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 Sale and Servicing 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, the Trust Depositor may, to secure Trust Depositor's own obtainment of funds under the Sale and Servicing Agreement (to the extent that the conveyance of the 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 Assets pledged to Trust Depositor 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 Trust Depositor with or without a repledge and reassignment by Trust Depositor of its rights under this Agreement, and without further notice to or acknowledgment from any Seller. Each Seller 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 Trust Depositor or any assignee of Trust Depositor relating to such action by Trust Depositor in connection with the transactions contemplated by the Sale and Servicing Agreement.