Conveyance of Initial Receivables. In consideration of the Issuer’s delivery of the Securities to, or upon the order of, the Seller and the receipt by the Seller of the funds drawn under such Notes on the date hereof, the Seller does hereby enter into this Agreement and agree to fulfill all of its obligations hereunder and to sell, transfer, assign, set over and otherwise convey to the Issuer, without recourse (except as provided in Section 2.06), pursuant to an assignment in the form attached hereto as Exhibit B (the “Initial PSA Assignment”), all right, title and interest of the Seller in, to and under: (a) the Retail Notes identified on the Schedule of Retail Notes to the Initial PSA Assignment delivered to the Issuer and the Related Security with respect to those Retail Notes; and (b) the rights, but not the obligations, of the Seller under the Purchase Agreement and the Initial PA Assignment pursuant to Section 2.01 of the Purchase Agreement with respect to the Initial Receivables. It is the intention of the Seller that the transfer and assignment contemplated by this Section 2.01 shall constitute a sale of the Initial Receivables from the Seller to the Issuer and the beneficial interest in and title to the assets conveyed pursuant to this Section 2.01 shall not be part of the Seller’s estate in the event of the filing of a bankruptcy petition by or against the Seller under any bankruptcy law. Within two Business Days after the Closing Date, the Seller shall cause to be deposited into the Collection Account all collections (from whatever source) on or with respect to the assets conveyed pursuant to this Section 2.01 received by the Seller pursuant to Section 5.07 of the Purchase Agreement. The Seller intends to treat such transfer and assignment as a sale for accounting and tax purposes. Notwithstanding the foregoing, in the event a court of competent jurisdiction determines that such transfer and assignment did not constitute such a sale or that such beneficial interest is a part of the Seller’s estate, then (i) the Seller shall be deemed to have granted to the Issuer a first priority perfected security interest in all of the Seller’s right title and interest in, to and under the assets conveyed pursuant to this Section 2.01, and the Seller hereby grants such security interest and (ii) the assets conveyed pursuant to this Section 2.01 shall be deemed to include all rights, powers and options (but none of the obligations, if any) of the Seller under any agreement or instrument included in the assets conveyed pursuant to this Section 2.01, including the immediate and continuing right to claim for, collect, receive and give receipt for principal and interest payments in respect of the Initial Receivables included in the assets conveyed pursuant to this Section 2.01 and all other monies payable under the Initial Receivables conveyed pursuant to this Section 2.01, to give and receive notices and other communications, to make waivers or other agreements, to exercise all rights, powers and options, to bring Proceedings in the name of the Seller or otherwise and generally to do and receive anything that the Seller is or may be entitled to do or receive under or with respect to the assets conveyed pursuant to this Section 2.01. For purposes of such grant, this Agreement shall constitute a security agreement under the UCC.
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Conveyance of Initial Receivables. In consideration of the Issuer’s delivery of the Securities to, or upon the order of, the Seller and the receipt by the Seller of the funds drawn under such the Notes on the date hereof, the Seller does hereby enter into this Agreement and agree to fulfill all of its obligations hereunder and to sellhereby sells, transfertransfers, assignassigns, set sets over and otherwise convey conveys to the Issuer, as of the date hereof, without recourse (except as provided in Section 2.06), pursuant to an assignment in the form attached hereto as Exhibit B (the “Initial PSA Assignment”), all right, title and interest of the Seller in, to and under:
(a) the Retail Notes identified on the Schedule of Retail Notes to the Initial PSA Assignment delivered to the Issuer and the Related Security with respect to those Retail Notes; and
(b) the rights, but not the obligations, of acquired by the Seller under the Purchase Agreement and the Initial PA Assignment pursuant to Section 2.01 of the Purchase Agreement with respect to the Initial Receivables. It is the intention of the Seller and the Issuer that the transfer and assignment contemplated by this Section 2.01 shall constitute a sale of the Initial Receivables from and Related Security by the Seller to the Issuer and the beneficial interest in and title to the assets conveyed pursuant to this Section 2.01 shall not be part of the Seller’s estate in the event of the filing of a bankruptcy petition by or against the Seller under any bankruptcy law. Within two Business Days after the Closing Date, the Seller shall cause to be deposited into the Collection Account all collections (from whatever source) on or with respect to the assets conveyed pursuant to this Section 2.01 received by the Seller pursuant to Section 5.07 of the Purchase Agreement. The Seller intends to treat such transfer and assignment as a sale for tax and other purposes and as a secured financing for accounting and tax purposes. Notwithstanding the foregoing, in the event a court of competent jurisdiction determines that such transfer and assignment did not constitute such a sale or that such sale shall for any reason be ineffective or unenforceable or that such beneficial interest is a part of the Seller’s estateestate (any of the foregoing, a “Recharacterization”), then (i) the Seller shall be deemed to have granted to the Issuer a first priority perfected security interest in all of the Seller’s right title and interest in, to and under the assets conveyed pursuant to this Section 2.01, and the Seller hereby grants such security interest interest, and (ii) the assets conveyed pursuant to this Section 2.01 shall be deemed to include all rights, powers and options (but none of the obligations, if any) of the Seller under any agreement or instrument included in the assets conveyed pursuant to this Section 2.01, including the immediate and continuing right to claim for, collect, receive and give receipt for principal and interest payments in respect of the Initial Receivables included in the assets conveyed pursuant to this Section 2.01 and all other monies payable under the Initial Receivables conveyed pursuant to this Section 2.01, to give and receive notices and other communications, to make waivers or other agreements, to exercise all rights, powers and options, to bring Proceedings in the name of the Seller or otherwise and generally to do and receive anything that the Seller is or may be entitled to do or receive under or with respect to the assets conveyed pursuant to this Section 2.01. For purposes of such grant, this Agreement shall constitute a security agreement under the UCC. In the case of any Recharacterization, each of the Seller and the Issuer represents and warrants as to itself that each remittance of Collections by the Seller to the Issuer hereunder or in connection herewith will have been (i) in payment of a debt incurred by the Seller in the ordinary course of business or financial affairs of the Seller and the Issuer and (ii) made in the ordinary course of business or financial affairs of the Seller and the Issuer. In addition, on the Closing Date, the Seller shall cause the Reserve Account Initial Deposit to be deposited into the Reserve Account. Within two Business Days after the Closing Date, the Seller shall cause to be deposited into the Collection Account all collections (from whatever source) on or with respect to the assets conveyed pursuant to this Section 2.01 received by the Seller pursuant to Section 5.07 of the Purchase Agreement.
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