Purchase and Sale Agreement The Participating Investors and the selling Key Holder agree that the terms and conditions of any Proposed Key Holder Transfer in accordance with this Section 2.2 will be memorialized in, and governed by, a written purchase and sale agreement with the Prospective Transferee (the “Purchase and Sale Agreement”) with customary terms and provisions for such a transaction, and the Participating Investors and the selling Key Holder further covenant and agree to enter into such Purchase and Sale Agreement as a condition precedent to any sale or other transfer in accordance with this Section 2.2.
Purchase and Sale of the Units At the Closing, upon the terms and subject to the conditions set forth in this Agreement, the Seller shall sell, assign, transfer, deliver and convey to the Buyer, free and clear of any Liens, and the Buyer shall purchase, accept and acquire from the Seller, the Units.
Purchase and Sale of the Shares Upon the terms and subject to the conditions of this Agreement, at the Closing, the Seller shall sell to the Purchaser, and the Purchaser shall purchase from the Seller, the Shares.
Purchase and Sale of Property Seller hereby agrees to sell, and Buyer hereby agrees to acquire, upon the terms and conditions herein stated, that certain portfolio of Properties listed on Schedule 1 attached hereto and more particularly described in Exhibits A-1 to A-16 attached hereto (individually and collectively, the “Real Property”), together with:
(a) All buildings, improvements and other structures presently located on the Real Property (the “Improvements”), provided, however, that “Improvements” shall not include any fixtures or other improvements owned by “Tenants” (as hereinafter defined);
(b) All personal property (excluding cash and software) owned by Seller, if any, located in or on, and used exclusively in connection with the operation of, the Real Property or the Improvements (the “Personal Property”);
(c) Any and all of Seller’s right, title and interest in and to the leases, licenses and occupancy agreements covering all or any portion of the Real Property or Improvements (the “Leases”), including any guaranties thereof and any security deposits thereunder in Seller’s possession at “Closing” (as hereinafter defined); and
(d) Any and all of Seller’s right, title and interest in and to any of the following existing at the Closing (the “Intangibles”): (i) subject to Paragraph 3(a)(v), all assignable contracts and agreements and utility contracts (the “Operating Agreements”) relating to the leasing, operation, maintenance or repair of the Real Property, Improvements or Personal Property; (ii) all assignable warranties and guaranties issued to Seller in connection with the Improvements or the Personal Property; (iii) all assignable permits, licenses, approvals and authorizations issued by any governmental authority in connection with the Real Property;
(iv) all assignable drawings, plans, building permits, surveys and certificates of occupancy relating to the Real Property or the Personal Property, if any; and (v) all assignable trademarks, trade names and websites relating to the Real Property, if any. The Real Property, Improvements, Personal Property, Leases and Intangibles are collectively referred to hereinafter for a specific property as a “Property” and collectively as the “Properties”.
Purchase and Sale of Receivables Effective as of the Closing Date and immediately prior to the transactions pursuant to the Indenture, the Sale and Servicing Agreement and the Trust Agreement, Seller does hereby sell, transfer, assign, set over and otherwise convey to Purchaser, without recourse (subject to the obligations herein) (the "Seller Assets"):
(i) all right, title and interest of Seller in and to the Receivables, and all moneys received thereon [on or] after the Cutoff Date;
(ii) all right, title and interest of Seller in the security interests in the Financed Vehicles granted by Obligors pursuant to the Receivables and any other interest of Seller in the Financed Vehicles and any other property that shall secure the Receivables;
(iii) the interest of Seller in any proceeds with respect to the Receivables from claims on any Insurance Policies covering Financed Vehicles or the Obligors or from claims under any lender's single interest insurance policy naming the Seller as an insured;
(iv) rebates of premiums relating to Insurance Policies and rebates of other items such as extended warranties financed under the Receivables, in each case, to the extent the Servicer would, in accordance with its customary practices, apply such amounts to the Principal Balance of the related Receivable;
(v) the interest of Seller in any proceeds from (i) any Receivable repurchased by a Dealer, pursuant to a Dealer Agreement, as a result of a breach of representation or warranty in the related Dealer Agreement, (ii) a default by an Obligor resulting in the repossession of the Financed Vehicle under the applicable Motor Vehicle Loan or (iii) any Dealer Recourse or other rights relating to the Receivables under Dealer Agreements;
(vi) all right, title and interest of Seller in any instrument or document relating to the Receivables; and
(vii) the proceeds of any and all of the foregoing. The sale, transfer, assignment, setting over and conveyance made hereunder shall not constitute and is not intended to result in an assumption by Purchaser of any obligation of Seller to the Obligors, the Dealers or any other Person in connection with the Receivables and the other assets and properties conveyed hereunder or any agreement, document or instrument related thereto.
Purchase and Sale of Units The Purchaser hereby subscribes for and purchases from the Company, and the Company hereby issues and sells to the Purchaser, 25,000 units (the “Initial Units”) at a purchase price of approximately $.003478 per Initial Unit for an aggregate purchase price of $86.95. Each Initial Unit consists of one share of Common Stock and one warrant (an “Initial Warrant”) to purchase one additional share of Common Stock for $6.00 in accordance with the terms of the Warrant Agreement to be entered into by and between the Company and Continental Stock Transfer & Trust Company, as warrant agent, which shall be substantially in the form attached hereto as Exhibit A (the “Warrant Agreement”). The Initial Units, together with the underlying Common Stock and the Initial Warrants, are referred to herein as the “Securities.”
Purchase and Sale of Common Shares (a) Subject to the terms and conditions of this Agreement and in reliance upon the representations and warranties set forth in Schedule B to this Agreement, the Purchaser hereby agrees to purchase from the Company and the Company hereby agrees to sell to the Purchaser, on the Closing Date, 104,500,000 Common Shares (the “Purchased Shares”) at a price of $48.60 per Purchased Share for an aggregate purchase price of $5,078,700,000 (the “Share Purchase Price”).
(b) The Purchaser shall purchase the Purchased Shares and pay the Share Purchase Price on the Closing Date, by wire transfer of immediately available funds to an account designated in writing by the Company. The Purchased Shares shall be issued to the Purchaser on Closing by way of: (i) (A) a book entry only position or other electronic deposit on the records of the Company’s transfer agent containing notations of the legends contemplated by this Agreement, together with delivery of an ownership statement to the Purchaser; and (B) the deposit of a certificate evidencing the Purchased Shares to The Canadian Depository for Securities Limited as depository, bearing a restricted CUSIP designation referencing the legends contemplated by this Agreement, for credit to the participant and brokerage account of the Purchaser, as directed by the Purchaser; or (ii) physical delivery of a certificate representing the Purchased Shares registered in the name of the Purchaser or in such other name as the Purchaser shall notify the Company in writing not less than one Business Day prior to the Closing.
Purchase and Sale of Shares (a) Upon the basis of the representations and warranties and subject to the terms and conditions herein set forth, the Company agrees to issue and sell to the Underwriter, and the Underwriter agrees to purchase from the Company, at a purchase price of $[ ] per share (the “Per Share Price”), the number of Firm Shares to be sold by the Company as set forth in the first paragraph of this Agreement. In addition, upon the basis of the representations and warranties and subject to the terms and conditions herein set forth, the Selling Shareholders agree to sell to the Underwriter, and the Underwriter agrees to purchase from the Selling Shareholders, at the Per Share Price, the number of Common Shares set forth opposite the name of such Selling Shareholder in Schedule I hereto. The Company and each Selling Shareholder agree that the sale of the Firm Shares shall be made to the Underwriter severally and not jointly.
(b) The Company hereby grants to the Underwriter the right to purchase at its election in whole or in part up to 120,000 Additional Shares, at the Per Share Price, for the sole purpose of covering over-allotments in the sale of the Firm Shares. The option granted hereunder may be exercised at any time (but not more than once) within thirty (30) days after the date of this Agreement, upon notice by the Underwriter to the Company which sets forth the aggregate number of Additional Shares as to which the Underwriter is exercising the option, as well as the date, time and place on which such Additional Shares are to be delivered. Such time of delivery may be the day of, but may not be earlier than, the Closing Date (as defined below) and herein is called the “Additional Closing Date.” The Additional Closing Date shall be determined by the Underwriter, but if at any time other than the Closing Date, shall not be earlier than two nor later than ten full business days after delivery of such notice to exercise. In the event the Underwriter elects to purchase all or a portion of the Additional Shares, the Company agrees to furnish or cause to be furnished to the Underwriter the certificates, letters and opinions, and to satisfy all conditions, set forth in Section 6 hereof at the Additional Closing Date.
(c) In making this Agreement, the Underwriter is contracting, except as provided in Section 3(b) hereof, to purchase only the Firm Shares. The Underwriter shall not be under any obligation to purchase any Additional Shares prior to an exercise of the option with respect to such Shares granted pursuant to Section 3(b) hereof. The Company is advised by you that you intend (i) to make a public offering of the Firm Shares as soon after the effective date of the Registration Statement as in your reasonable judgment is advisable and (ii) initially to offer the Firm Shares upon the terms set forth in the Prospectus. You may from time to time increase or decrease the public offering price after the initial public offering to such extent as you may determine. In addition to the underwriting discount set forth in the Prospectus, the Company and the Selling Shareholders shall pay, in the respective amounts of the Firm Shares to be sold by them, to the Underwriter a financial advisory fee equal to 1.5% of the aggregate public offering price of all Firm Shares purchased (the “Financial Advisory Fee”). If you choose to exercise your right to purchase any or all of the Additional Shares, the Company shall pay to the Underwriter a financial advisory fee equal to 1.5% of the aggregate public offering price of all Additional Shares purchased.
Purchase and Sale of Shares Closing 2.01. Purchase and Sale of the Shares........................................................................... 10 2.02.
Purchase and Sale of Acquired Assets On the terms and subject to the conditions set forth in this Agreement, at the Closing, Seller shall sell, assign, convey and transfer to Buyer, and Buyer shall purchase, assume and acquire from Seller, free and clear of Liens other than Permitted Liens, all of Seller’s right, title and interest in and to the following properties, rights and assets owned by Seller constituting, or used in and necessary for the operation of, the Business (collectively, the “Acquired Assets”):
(a) The real property, Improvements thereon, easements, licenses and other rights in real property described in Schedule 2.1(a), but subject to the Permitted Liens (the “Real Property”);
(b) The leasehold interests and rights thereunder relating to real property with respect to which Seller is lessee set forth in Schedule 2.1(b), but subject to the Permitted Liens (the “Leased Real Property”), and all leases set forth in Schedule 2.1(b) with respect to the Leased Real Property (the “Assigned Leases”);
(c) The machinery, equipment, tools, furniture, vehicles, Inventories and other tangible and intangible personal property owned by Seller and located at or in transit to the Facilities (if related primarily to any of the Acquired Assets) (including without limitation the items of personal property described on Schedule 2.1(c)), or, in the case of intangible personal property (other than Intellectual Property), otherwise used primarily in the operation of any of the Facilities or the other Acquired Assets, including any Prepayments and all applicable warranties of manufacturers or vendors to the extent that such warranties are transferable, in each case as in existence on the Effective Date, but excluding such items disposed of by Seller in the ordinary course of business during the Interim Period and including such additional items as may be acquired by Seller for use in connection with the Acquired Assets in the ordinary course of business during the Interim Period, in each case in accordance with Section 5.5;
(d) All Permits (including all pending applications for Permits or renewals thereof) relating to the ownership and operation of the Facilities or the Acquired Assets that, as of the Closing Date, are transferable by Seller to Buyer by assignment or otherwise under applicable Law and that are identified as “Transferable Permits” on Schedule 3.5(b) or Schedule 3.11(a) (the “Transferable Permits”);
(e) Excluding the Assigned Leases addressed in Section 2.1(b), but including personal property leases (whether Seller is lessor or lessee thereunder), real property leases with respect to which Seller is lessor thereunder and railroad crossing licenses and side-track agreements for the benefit of Seller, (i) those Contracts that are material to the ownership or operation of the Acquired Assets and that are set forth in Schedule 2.1(e) (the “Material Contracts”) and (ii) all other Contracts that relate primarily to the ownership or operation of any of the Acquired Assets or otherwise in connection with the Business, a copy of each Seller will provide to Buyer during the Interim Period and each of which will be subject to Buyer’s agreement to assume in accordance with Section 5.6(a) (the “Other Assigned Contracts” and, together with the Material Contracts, the “Assigned Contracts”); provided that subject to and to the extent it does not interfere with Buyer’s rights under any Assigned Contract, including Buyer’s right to exculpation and indemnification, Seller shall retain the rights and interests under any Assigned Contract to the extent such rights and interests provide for indemnity and exculpation rights for pre-Closing occurrences for which Seller remains liable under this Agreement; and provided further, that Seller shall, during the Interim Period, amend such Schedule to set forth any amendments to any Material Contract, or any additional Contracts entered into during the Interim Period that are material to the ownership or operation of the Acquired Assets, subject to the applicable covenants in Section 5.5;
(f) All Transferred Books and Records, subject to the right of Seller to retain copies for its use to the extent and subject to the conditions set forth herein;
(g) All Intellectual Property that is owned by Seller and primarily used in connection with the operation of the Facilities, as set forth in Schedule 2.1(g) (the “Assigned Intellectual Property”);
(h) Subject to Section 2.2(f), the rights of Seller to the use of the names of the Facilities set forth in Schedule 1;
(i) Those Environmental Attributes set forth in Schedule 2.1(i), excluding such Environmental Attributes or portions thereof disposed of by Seller in the ordinary course of business during the Interim Period and including such additional Environmental Attributes as may be acquired by Seller for use in the operation of the Facilities in the ordinary course of business during the Interim Period, in each case in accordance with Section 5.5; and
(j) All rights of Seller in and to any claims, causes of action, rights of recovery, rights of set-off, rights of refund and similar rights against a Third Party relating to any Assumed Liability, but excluding any such rights of Seller in, to or under any insurance policies of Seller or any insurance proceeds therefrom; provided however, if any such insurance proceeds relate to equipment or other tangible property to be transferred to Buyer and such equipment or tangible property is not repaired or otherwise restored to its condition as of the Effective Date on or prior to Closing, Seller will transfer such proceeds to Buyer at the Closing.
