Precautionary Security Interest. Company and Bank agree that this Agreement contemplates the extension of credit by Bank to Cardholders and that Company’s submission of Charge Transaction Data to Bank shall constitute assignment by Company of any and all right, title and interest in such Charge Transaction Data and the Cardholder Indebtedness reflected therein. However, as a precaution in the unlikely event that any person asserts that Article 9 of the UCC applies or may apply to the transactions contemplated hereby, and to secure Company’s payment of and performance of all obligations of Company to Bank, Company hereby grants to Bank a first priority present and continuing security interest in and to all Accounts, all Cardholder Indebtedness, all Account Documentation and all Charge Transaction Data, in each case whether now existing or hereafter created or acquired, together with the proceeds thereof. In addition, Company agrees to take any reasonable action requested by Bank, at Bank’s expense, to establish the first lien and perfected status of such security interest, and appoints Bank as Company’s attorney-in-fact to take any such action on Company behalf; provided that Bank shall be responsible for preparing any such documentation.
Precautionary Security Interest. Without prejudice to the provisions of Section 9.1 and the expressed intent of the parties, in the event that, for any reason, any transaction hereunder concerning a Mortgage Loan is construed by any Regulatory Authority as a borrowing or financing, rather than a true sale and absolute conveyance of the Mortgage Loan, Seller and MBF intend and agree that MBF shall have a perfected first priority security interest in such Mortgage Loan purchased hereunder and in all Mortgage-backed Securities and Participation Certificates created on the basis of such Mortgage Loan. In such case, Seller shall be deemed to have hereby granted to MBF (and possession of any promissory notes, instruments, documents, securities and certificates by Seller or any Successor Servicer as servicer shall constitute possession on behalf of MBF for this purpose) a security interest in and lien upon the Mortgage Loan, the Mortgage Note, any applicable Takeout Commitment (to the extent assignable by Seller), any related Mortgage-backed Security or Participation Certificate, all servicing rights and other rights and privileges appurtenant thereto, the Custodial Account, and all proceeds of any and all of the foregoing. In such an event, Seller agrees that such security interest shall be of first priority and shall be free and clear of adverse claims, liens and interests. In such event, this Agreement shall constitute a security agreement, and MBF shall have all of the rights of a secured party under applicable law. Without prejudice to the provisions of Section 9.1 and the expressed intent of the parties, and merely as a precaution in the event that any transaction hereunder may be so construed, Seller authorizes MBF to file a financing statement for the above-described collateral. At MBF’s request, Seller and MBF will enter into a precautionary control agreement with the depository Eligible Bank with respect to the Custodial Account. Seller will also deliver possession of Mortgage Securities to MBF, will register all Mortgage Securities in MBF’s name by book entries, and will take such other actions to perfect its precautionary security interest as MBF requests.
Precautionary Security Interest. Kohl’s and Bank agree that this Agreement contemplates the extension of credit by Bank to Cardholders. However, as a precaution in the unlikely event that any person asserts that Article 9 of the UCC applies or may apply to the transactions contemplated hereby, and to secure Kohl’s payment of and performance of all obligations of Kohl’s to Bank, Kohl’s hereby grants to Bank a first priority present and continuing security interest in and to the following, whether now existing or hereafter created or acquired, together with the proceeds thereof: all Accounts, all indebtedness charged to Accounts, and all Charge Transaction Data. In addition, Kohl’s agrees to take any reasonable action requested by Bank, at Bank’s expense, to establish the first lien and perfected status of such security interest, and appoints Bank as Kohl’s attorney-in-fact to take any such action on Kohl’s behalf; provided that Bank shall be responsible for preparing any such documentation.
Precautionary Security Interest. The NMG Companies and Bank agree that this Agreement contemplates the extension of credit by Bank to Cardholders and that the NMG Companies’ submission of NMG Charge Transaction Data to Bank shall constitute assignment by the NMG Companies of any and all right, title and interest in such NMG Charge Transaction Data and the Cardholder Indebtedness reflected therein. However, as a precaution in the unlikely event that any person asserts that Article 9 of the UCC applies or may apply to the transactions contemplated hereby, and to secure the NMG Companies’ payment of and performance of all obligations of the NMG Companies to Bank, the NMG Companies hereby grant to Bank a first priority present and continuing security interest in and to the following, whether now existing or hereafter created or acquired: (i) all Accounts, Cardholder Indebtedness, Account Documentation and NMG Charge Transaction Data, (ii) all deposits, credit balances and reserves on the Bank’s books relating to the Program, and (iii) all proceeds of the Cardholder Indebtedness. In addition, the NMG Companies agree to take any reasonable action requested by Bank, at Bank’s expense, to establish the first lien and perfected status of such security interest. Upon the termination or expiration of this Agreement, Bank shall execute such releases and file such notices as the NMG Companies may request to evidence the termination of the security interest provided for in this Section 19.1.
Precautionary Security Interest. Without prejudice to the provisions of Section 9.1 and the expressed intent of the parties, in the event that, for any reason, any transaction hereunder concerning a Mortgage Loan is construed by any Regulatory Authority as a borrowing or financing, rather than a true sale and absolute conveyance of the Mortgage Loan, Seller and MBF intend and agree that MBF shall have a perfected first priority security interest in such Mortgage Loan purchased hereunder. In such case, Seller shall be deemed to have hereby granted to MBF (and possession of any promissory notes, instruments or documents by Seller or any Successor Servicer as servicer shall constitute possession on behalf of MBF for this purpose) a security interest in and lien upon the Mortgage Loan, the Mortgage Note, any applicable Takeout Commitment, all servicing rights and other rights and privileges appurtenant thereto, the Custodial Account, and all proceeds of any and all of the foregoing. Seller shall also be deemed to have granted to MBF a security interest in and lien upon all Hedging Arrangements applicable to such Mortgage Loan, all accounts in which those Hedging Arrangements are held, all rights to payments arising under such Hedging Arrangements, and all proceeds of any of the foregoing, except that this security interest shall apply only to rights and benefits, including rights to payments, related to that Mortgage Loan. In such an event, Seller agrees that such security interest shall be of first priority and shall be free and clear of adverse claims, liens and interests. In such event, this Agreement shall constitute a security agreement, and MBF shall have all of the rights of a secured party under applicable law. Without prejudice to the provisions of Section 9.1 and the expressed intent of the parties, and merely as a precaution in the event that any transaction hereunder may be so construed, Seller authorizes MBF to file a financing statement for the above-described collateral and, at MBF’s request, Seller and MBF will enter into a precautionary control agreement with the depository Eligible Bank with respect to the Custodial Account and any account in which a Hedging Arrangement is held.
32.4 Section 13.7 of the Flex Agreement is modified by re-designating current subsection ”(e)” as subsection ”(f)” and adding a new subsection ”(e)” as follows:
Precautionary Security Interest. The Company and the Bank agree that this Agreement contemplates the extension of credit by the Bank to Cardholders and that the Company’s submission of Charge Transaction Data to the Bank shall constitute assignment by the Company of any and all right, title and interest in such Charge Transaction Data and the Cardholder Indebtedness reflected therein. However, as a precaution in the event that any Person asserts that Article 9 of the UCC applies or may apply to the transactions contemplated hereby, the Company hereby grants to the Bank a first priority present and continuing security interest in and to the Acquired Assets (as defined in the Purchase Agreement), whether now existing or hereafter created or acquired. In addition, the Company agrees to take any reasonable action requested by the Bank, at the Bank’s expense, to establish the first lien and perfected status of such security interest. Upon the termination or expiration of this Agreement, the Bank shall execute such releases and file such notices as the Company may request to evidence the termination of the security interest provided for in this Section 19.1.
Precautionary Security Interest. It is the intention of the Seller that the transfer and assignment set forth in Section 2.1 above shall constitute a sale of the Acquired Assets conveyed thereby from the Seller to the Buyer, and the beneficial interest in and title to the Acquired Assets conveyed pursuant to Section 2.1 shall not constitute property or interests in property of, under applicable bankruptcy law, the Seller after the Closing Date. If, under applicable bankruptcy law or non-bankruptcy law the Transaction is avoided, voided, unwound, rescinded, reversed, or it is otherwise vitiated by a court of competent jurisdiction in any applicable bankruptcy or non-bankruptcy proceeding, then it is the intention of the Seller that this Agreement constitute a security agreement (as defined in the Uniform Commercial Code ("UCC") as in effect in the State of Arizona) under the UCC, and the Seller hereby grants to the
Precautionary Security Interest. The Company and the Bank agree that this Agreement contemplates the extension of credit by the Bank to Cardholders and that the Company’s submission of Charge Transaction Data to the Bank shall constitute assignment by the Company of any and all right, title and interest in such Charge Transaction Data and the Cardholder Indebtedness reflected therein. However, as a precaution in the event that any Person asserts that Article 9 of the UCC applies or may apply to the transactions contemplated hereby, the Company hereby grants to the Bank a first priority present and continuing security interest in Active.15844721.1 and to the following, whether now existing or hereafter created or acquired: (i) all Accounts, Cardholder Indebtedness, Account Documentation and Charge Transaction Data, (ii) all proceeds of the Cardholder Indebtedness and (iii) the reserve account and any proceeds in the reserve account created in accordance with Section 11.4(g). In addition, the Company agrees to take any reasonable action requested by the Bank, at the Bank’s expense, to establish the first lien and perfected status of such security interest. Upon the termination or expiration of this Agreement, the Bank shall execute such releases and file such notices as the Company may request to evidence the termination of the security interest provided for in this Section 19.1.
Precautionary Security Interest. Company and Bank agree that this Agreement contemplates the extension of credit by Bank to Cardholders and that Company’s submission of Charge Transaction Data to Bank shall [*] Indicates confidential portions omitted pursuant to a request for confidential treatment filed separately with the Commission. 66 constitute assignment by Company of any and all right, title and interest in such Charge Transaction Data and the Cardholder Indebtedness reflected therein. However, as a precaution in the unlikely event that any person asserts that Article 9 of the UCC applies or may apply to the transactions contemplated hereby, and to secure Company’s payment of and performance of all obligations of Company to Bank, Company hereby grants to Bank a first priority present and continuing security interest in and to all Accounts, all Cardholder Indebtedness, all Account Documentation and all Charge Transaction Data, in each case whether now existing or hereafter created or acquired, together with the proceeds thereof. In addition, Company agrees to take any reasonable action requested by Bank, at Bank’s expense, to establish the first lien and perfected status of such security interest, and appoints Bank as Company’s attorney-in-fact to take any such action on Company behalf; provided that Bank shall be responsible for preparing any such documentation.
Precautionary Security Interest. Pier 1 and Bank agree that this Agreement contemplates the extension of credit by Bank to Cardholders and that Pier 1’s submission of Pier 1 Charge Transaction Data to Bank shall constitute assignment by Pier 1 of any and all right, title and interest in such Pier 1 Charge Transaction Data and the Cardholder Indebtedness reflected therein. Nothing herein is intended to provide for the direct extension of credit to Pier 1 by Bank. However, as a precaution in the unlikely event that any person asserts that Article 9 of the UCC applies or may apply to the transactions contemplated hereby, and to secure Pier 1’s payment of and performance of all obligations of Pier 1 to Bank, Pier 1 hereby grants to Bank a first priority present and continuing security interest in and to the following, whether now existing or hereafter created or acquired: (i) all Accounts, Cardholder Indebtedness, Account Documentation and Pier 1 Charge Transaction Data, and (ii) all proceeds of the
