Common use of Intention of the Parties; Recharacterization Clause in Contracts

Intention of the Parties; Recharacterization. It is the express intent of each Originator and the Company that each conveyance by such Originator to the Company pursuant to this Agreement of any Receivables and Related Rights, including, without limitation, all Sold Receivables, if any, constituting “accounts,” “chattel paper,” “payment intangibles,” “instruments” or “general intangibles” (each as defined in the UCC), be construed as a valid and perfected sale or contribution, as the case may be, and absolute assignment (without recourse except as provided herein) of such Receivables and Related Rights by such Originator to the Company (rather than the grant of a security interest to secure a debt or other obligation of such Originator) and that the right, title and interest in and to such Receivables and Related Rights conveyed to the Company be prior to the rights of and enforceable against all other Persons at any time, including, without limitation, lien creditors, secured lenders, purchasers and any Person claiming through such Originator. The parties acknowledge that an outright sale of receivables and interests in receivables is governed by Article 9 of the UCC (“Article 9”), notwithstanding that such a sale is not intended for security. The parties also acknowledge that, as a drafting convention under Article 9, terms used under Article 9 for secured transactions also apply to outright sales of receivables, including “debtor,” which applies to a seller of receivables, “secured party,” which applies to a buyer of receivables, and “security interest,” which applies to the buyer’s outright ownership interest. Thus, such terms, and other terms used in Article 9, will apply to this Agreement, and may be used in this Agreement or in connection with this Agreement and such use does not affect the nature of the outright sale or contribution hereunder of the Receivables by the Originators to the Company. Thus, under the Article 9 drafting convention, the outright sale or contribution of the Sold Receivables may be described as a transaction by which the Originators have granted to the Company a security interest in, among other things, the Sold Receivables. However, if, contrary to the mutual intent of the parties, any conveyance hereunder of Receivables and Related Rights is not construed to be both a valid and perfected sale and absolute assignment of such Receivables and Related Rights, and a conveyance of such Receivables and Related Rights that is prior to the rights of and enforceable against all other Persons at any time, including, without limitation, lien creditors, secured lenders, purchasers and any Person claiming through any Originator, then, it is the intent of such Originator and the Company that (i) this Agreement also shall be deemed to be, and hereby is, a security agreement within the meaning of the UCC; and (ii) such Originator shall be deemed to have granted to the Company as of the date of this Agreement, and such Originator hereby grants to the Company, a security interest in, to and under, all of such Originator’s right, title and interest in and to each Receivable other than Excluded Receivables generated by such Originator and all Related Rights with respect thereto, whether now existing or hereafter created by such Originator.

Intention of the Parties; Recharacterization. It is the express intent of each Originator and the Company Buyer that each conveyance by such Originator to of the Company pursuant to this Agreement of any Receivables and Related Rights, including, without limitation, all Sold Receivables, if any, constituting “accounts,” “chattel paper,” “payment intangibles,” “instruments” or “general intangibles” (each as defined in the UCC), be construed as a valid and perfected sale or contribution, as the case may be, and absolute assignment (without recourse except as provided herein) of such Receivables and Related Rights by such Originator to the Company (rather than Buyer under this Purchase Facility be absolute and irrevocable and provide Purchaser with the grant full benefits of a security interest to secure a debt or other obligation ownership of such Originator) Receivables and that the rightRelated Rights, and each Originator hereby relinquishes all title and interest in and to control over such Receivables and Related Rights conveyed to the Company be prior to the rights of and enforceable against all other Persons at any time, including, without limitation, lien creditors, secured lenders, purchasers and any Person claiming through upon each such Originator. The parties acknowledge that an outright sale of receivables and interests in receivables is governed by Article 9 of the UCC (“Article 9”), notwithstanding that such a sale is not intended for security. The parties also acknowledge that, as a drafting convention under Article 9, terms used under Article 9 for secured transactions also apply to outright sales of receivables, including “debtor,” which applies to a seller of receivables, “secured party,” which applies to a buyer of receivables, and “security interest,” which applies to the buyer’s outright ownership interest. Thus, such terms, and other terms used in Article 9, will apply to this Agreement, and may be used in this Agreement or in connection with this Agreement and such use does not affect the nature of the outright sale or contribution hereunder of the Receivables by the Originators to the Company. Thus, under the Article 9 drafting convention, the outright sale or contribution of the Sold Receivables may be described as a transaction by which the Originators have granted to the Company a security interest in, among other things, the Sold Receivablesconveyance. However, if, contrary to the mutual intent of the parties, any conveyance hereunder of Receivables, including without limitation any Receivables constituting general intangibles as defined in the UCC, and all Related Rights is not construed to be both a valid and perfected sale and absolute assignment of such Receivables and Related Rights, and a conveyance of such Receivables and Related Rights that is prior to the rights of and enforceable against all other Persons at any time, including, including without limitation, limitation lien creditors, secured lenders, purchasers and any Person claiming through any such Originator, then, it is the intent of such Originator and the Company Buyer that (i) this Agreement also shall be deemed to be, and hereby is, a security agreement within the meaning of the UCC; and (ii) such . Each Originator shall be deemed to have granted to the Company Buyer as of the date of this Agreement, and such Originator hereby grants to the Company, Buyer a security interest in, to and under, under all of such Originator’s right, title and interest in and to all Receivables, the Related Rights and all proceeds thereof, in each Receivable other than Excluded case, now existing and hereafter arising, which security interest shall secure the payment of an amount equal to the aggregate Purchase Price of the Receivables generated conveyed by such Originator to the Buyer hereunder and all Related Rights with respect thereto, whether now existing or hereafter created by any other payment obligation of such Originator to the Buyer hereunder (such Originator’s “Originator Obligations”). In furtherance of the foregoing, each Originator and the Buyer hereby authorize the filing of one or more financing statements with an indication or description of the property conveyed hereunder (which may describe such property in substantially the form attached hereto as Exhibit C and identifying the Buyer as assignor and the Administrative Agent as the assignee), and such amendments thereto and continuations and assignments thereof, in each jurisdiction the Buyer or the Administrative Agent deems necessary and appropriate to perfect their respective ownership and security interests in the property conveyed hereunder and the proceeds thereof.

Intention of the Parties; Recharacterization. It is the express intent of each Originator and the Company Buyer that each conveyance by such Originator to of the Company pursuant to this Agreement of any Receivables and Related Rights, including, without limitation, all Sold Receivables, if any, constituting “accounts,” “chattel paper,” “payment intangibles,” “instruments” or “general intangibles” (each as defined in the UCC), be construed as a valid and perfected sale or contribution, as the case may be, and absolute assignment (without recourse except as provided herein) of such Receivables and Related Rights by such Originator to the Company (rather than Buyer under this Purchase Facility be absolute and irrevocable and provide Purchaser with the grant full benefits of a security interest to secure a debt or other obligation ownership of such Originator) Receivables and that the rightRelated Rights, and each Originator hereby relinquishes all title and interest in and to control over such Receivables and Related Rights conveyed to the Company be prior to the rights of and enforceable against all other Persons at any time, including, without limitation, lien creditors, secured lenders, purchasers and any Person claiming through upon each such Originator. The parties acknowledge that an outright sale of receivables and interests in receivables is governed by Article 9 of the UCC (“Article 9”), notwithstanding that such a sale is not intended for security. The parties also acknowledge that, as a drafting convention under Article 9, terms used under Article 9 for secured transactions also apply to outright sales of receivables, including “debtor,” which applies to a seller of receivables, “secured party,” which applies to a buyer of receivables, and “security interest,” which applies to the buyer’s outright ownership interest. Thus, such terms, and other terms used in Article 9, will apply to this Agreement, and may be used in this Agreement or in connection with this Agreement and such use does not affect the nature of the outright sale or contribution hereunder of the Receivables by the Originators to the Company. Thus, under the Article 9 drafting convention, the outright sale or contribution of the Sold Receivables may be described as a transaction by which the Originators have granted to the Company a security interest in, among other things, the Sold Receivablesconveyance. However, if, contrary to the mutual intent of the parties, any conveyance hereunder of Receivables, including without limitation any Receivables constituting general intangibles as defined in the UCC, and all Related Rights is not construed to be both a valid and perfected sale and absolute assignment of such Receivables and Related Rights, and a conveyance of such Receivables and Related Rights that is prior to the rights of and enforceable against all other Persons at any time, including, including without limitation, limitation lien creditors, secured lenders, purchasers and any Person claiming through any such Originator, then, it is the intent of such Originator and the Company Buyer that (i) this Agreement also shall be deemed to be, and hereby is, a security agreement within the meaning of the UCC; and (ii) such . Each Originator shall be deemed to have granted to the Company Buyer as of the date of this Agreement, and such Originator (A) hereby affirms any grant of security interest made by such Originator pursuant to the Prior Agreement and (B) hereby grants to the Company, Buyer a security interest in, to and under, under all of such Originator’s right, title and interest in and to each Receivable other than Excluded all Receivables generated and the Related Rights now existing and hereafter arising, which security interest shall secure the payment of an amount equal to the aggregate Purchase Price of the Receivables conveyed by such Originator to the Buyer hereunder and all Related Rights with respect thereto, whether now existing or hereafter created by any other payment obligation of such Originator to the Buyer hereunder (such Originator’s “Originator Obligations”). In furtherance of the foregoing, each Originator hereby authorizes the filing of one or more financing statements with an indication or description of the property conveyed hereunder (which may describe such property in substantially the form attached hereto as Exhibit C), and such amendments thereto and continuations and assignments thereof, in each jurisdiction the Buyer or the Administrator deems necessary and appropriate to perfect their respective ownership and security interests in the property conveyed hereunder and the proceeds thereof.

Intention of the Parties; Recharacterization. It is the express intent of each Originator Seller and the Company Buyer that each conveyance sale by such Originator a Participating Seller to the Company Buyer pursuant to this Agreement of any Eligible Receivables and the Related Rights, including, without limitation, all Sold Receivables, if any, constituting “accounts,” “chattel paper,” “payment intangibles,” “instruments” or “general intangibles” (each as defined in the UCC), be construed as a valid and perfected outright sale or contribution, as the case may be, and absolute assignment (without recourse except as provided herein) of such Eligible Receivables and the Related Rights by such Originator Participating Seller to the Company Buyer (rather than the grant of a security interest to secure a debt or other obligation of such Originator) and Participating Seller), that the right, title and interest in and to such Eligible Receivables and the Related Rights conveyed to the Company Buyer be prior to the rights of and enforceable against all other Persons at any time, including, without limitation, lien creditors, secured lenders, purchasers and any Person claiming through such OriginatorParticipating Seller, and that, immediately after giving effect to each sale, the Participating Sellers will have no further interest (legal or equitable) in any Sold Receivable and Related Rights. With respect to each purchase and sale of Sold Receivables, the Participating Sellers shall record it as a sale, and the Buyer shall record it as a purchase, on their respective books and records, and the Participating Sellers shall reflect it as a sale, and the Buyer shall reflect it as a purchase, in their respective financial statements and Tax returns. The parties intend that the Purchase Price for each Sold Receivable shall constitute reasonable equivalent value in consideration therefor and no sale hereunder may be voidable under the Bankruptcy Code. The parties acknowledge that an outright sale of receivables and interests in receivables is governed in part by certain provisions of Article 9 of the UCC (“Article 9”), notwithstanding that such a sale is not intended for security. The parties also acknowledge that, as a drafting convention under Article 9, terms used under Article 9 for secured transactions also apply to outright sales of receivables, including “debtor,” which applies to a seller of receivables, “secured party,” which applies to a buyer of receivables, and “security interest,” which applies to the buyer’s outright ownership interest. Thus, such Such terms, and other terms used in Article 9, will apply to this Agreement, and may be used in this Agreement or in connection with this Agreement and such use does not affect the nature of the outright sale or contribution hereunder of the Eligible Receivables and the Related Rights by the Originators Participating Sellers to the CompanyBuyer. Thus, under Under the Article 9 drafting convention, the outright sale or contribution of the Sold Receivables may be described as a transaction by which the Originators Participating Sellers have granted to the Company Buyer a security interest in, among other things, the Sold Receivables. However, if, contrary to the mutual intent of the parties, any conveyance sale hereunder of Eligible Receivables and the Related Rights is not construed by a court or other governmental authority of competent jurisdiction to be both a valid and perfected outright sale and absolute assignment of such Eligible Receivables and Related Rights, and a conveyance of such Receivables and the Related Rights that is prior to the rights of and enforceable against all other Persons at any time, including, without limitation, lien creditors, secured lenders, purchasers and any Person claiming through any OriginatorParticipating Seller, then, in such situation, it is the intent of such Originator Participating Seller and the Company Buyer that (i) this Agreement also shall be deemed to be, and hereby is, a security agreement within the meaning of the UCC; UCC and (ii) such Originator Participating Seller shall be deemed to have granted to the Company Buyer as of the date of this Agreementapplicable Closing Date, and such Originator Participating Seller hereby grants to the CompanyBuyer as of the applicable Closing Date, a security interest in, to and under, all of such OriginatorParticipating Seller’s right, title and interest in and to each Eligible Receivable other than Excluded Receivables generated by such Originator Participating Seller and sold to the Buyer as of the applicable Closing Date and all the Related Rights with respect thereto, whether now existing or hereafter created by such OriginatorParticipating Seller.

Intention of the Parties; Recharacterization. It is the express intent of each Originator and the Company Buyer that each conveyance by such Originator to of the Company pursuant to this Agreement of any Receivables and Related Rights, including, without limitation, all Sold Receivables, if any, constituting “accounts,” “chattel paper,” “payment intangibles,” “instruments” or “general intangibles” (each as defined in the UCC), be construed as a valid and perfected sale or contribution, as the case may be, and absolute assignment (without recourse except as provided herein) of such Receivables and Related Rights by such Originator to the Company (rather than Buyer under this Purchase Facility be absolute and irrevocable and provide Purchaser with the grant full benefits of a security interest to secure a debt or other obligation ownership of such Originator) Receivables and that the rightRelated Rights, and each Originator hereby relinquishes all title and interest in and to control over such Receivables and Related Rights conveyed to the Company be prior to the rights of and enforceable against all other Persons at any time, including, without limitation, lien creditors, secured lenders, purchasers and any Person claiming through upon each such Originator. The parties acknowledge that an outright sale of receivables and interests in receivables is governed by Article 9 of the UCC (“Article 9”), notwithstanding that such a sale is not intended for security. The parties also acknowledge that, as a drafting convention under Article 9, terms used under Article 9 for secured transactions also apply to outright sales of receivables, including “debtor,” which applies to a seller of receivables, “secured party,” which applies to a buyer of receivables, and “security interest,” which applies to the buyer’s outright ownership interest. Thus, such terms, and other terms used in Article 9, will apply to this Agreement, and may be used in this Agreement or in connection with this Agreement and such use does not affect the nature of the outright sale or contribution hereunder of the Receivables by the Originators to the Company. Thus, under the Article 9 drafting convention, the outright sale or contribution of the Sold Receivables may be described as a transaction by which the Originators have granted to the Company a security interest in, among other things, the Sold Receivablesconveyance. However, if, contrary to the mutual intent of the parties, any conveyance hereunder of Receivables, including without limitation any Receivables constituting general intangibles as defined in the UCC, and all Related Rights is not construed to be both a valid and perfected sale and absolute assignment of such Receivables and Related Rights, and a conveyance of such Receivables and Related Rights that is prior to the rights of and enforceable against all other Persons at any time, including, including without limitation, limitation lien creditors, secured lenders, purchasers and any Person claiming through any such Originator, then, it is the intent of such Originator and the Company Buyer that (i) this Agreement also shall be deemed to be, and hereby is, a security agreement within the meaning of the UCC; UCC and (ii) such Originator shall be deemed to have granted to the Company Buyer as of the date of this Agreement, and such Originator hereby grants to the Company, Buyer a security interest in, to and under, under all of such Originator’s right, title and interest in and to each Receivable other than Excluded the Receivables generated and the Related Rights now existing and hereafter arising that are transferred or purported to be transferred hereunder, which security interest shall secure the payment of an amount equal to the aggregate Purchase Price of the Receivables conveyed by such Originator to the Buyer hereunder and all Related Rights with respect thereto, whether now existing or hereafter created by any other payment obligation of such Originator to the Buyer hereunder (such Originator's "Originator Obligations"). In furtherance of the foregoing, each Originator hereby authorizes the filing of one or more financing statements with an indication or description of the property conveyed hereunder (which may describe such property in substantially the form attached hereto as Exhibit D), and such amendments thereto and continuations and assignments thereof, in each jurisdiction the Buyer or the Administrator deems necessary and appropriate to perfect their respective ownership and security interests in the property conveyed hereunder and the proceeds thereof.