Excluded Assets The Acquired Assets shall not include any of Sellers' right, title, or interest in or to any of the following which, in each case, shall remain subject to all valid and perfected liens and interests, including any liens or interests arising under the DIP Credit Agreement or the Stipulation and Agreement for use of Cash Collateral in the Case on file with the Bankruptcy Court (collectively, the "Excluded Assets"):
(a) all rights of Sellers under this Agreement, including the Purchase Price;
(b) any contracts and agreements other than the Assumed Assets;
(c) all rights, demands, claims, actions, and causes of action, including, without limitation such as arise under Chapter 5 of the Bankruptcy Code, that Sellers, Sellers' estate, or any other party in interest may have other than the Claims;
(d) all Rejected Equipment;
(e) all Excluded Records;
(f) any capital stock or other equity interest in any of Sellers' direct or indirect subsidiaries;
(g) any right, property or asset listed on Schedule 2.2(k) hereto;
(h) any contract or lease not assumed by Buyer under Sections 2.1(a), (b), (c), (d) or (g) and 2.6;
(i) all rights under the Sellers' insurance policies with RLI Insurance Company, and the group of insurance companies providing Sellers' automobile and general liability coverage, including, without limitation, assets, contract rights, general intangibles, or any other claims against or relating to such policies, including insurance premium refunds, bond refunds, letter of credit refunds, and any other refunds (the "RLI Excluded Asset");
(j) any remaining balance of the Committee Retainer, as defined in the Cash Collateral Agreement, and any remaining balance of retainers applicable to professionals retained by Sellers;
(k) cash and cash equivalents or similar type investments, uncollected checks, bank accounts, certificates of deposit, Treasury Bills, and other marketable securities; and
(l) all prepaid rentals, and refunds of any security, vendor, utility or other deposits (other than with respect to insurance), real property taxes, personal property taxes and similar assessments and accruals payable in respect of any of Sellers' assets which relate to periods prior to the Closing Date.
Closing The closing of the sale of the Mortgage Loans (the “Closing”) shall be held at the offices of special counsel to the Purchaser at 10:00 a.m., New York City time, on the Closing Date. The Closing shall be subject to each of the following conditions:
(i) All of the representations and warranties of the Mortgage Loan Seller and the Purchaser made pursuant to Section 4 of this Agreement shall be true and correct in all material respects as of the Closing Date (or as of such other specific date expressly contemplated by any such representation or warranty);
(ii) All documents specified in Section 7 of this Agreement (the “Closing Documents”), in such forms as are agreed upon and reasonably acceptable to the Purchaser and, in the case of the Pooling and Servicing Agreement (insofar as such Agreement affects the obligations of the Mortgage Loan Seller hereunder or the rights of the Mortgage Loan Seller as a third party beneficiary thereunder), to the Mortgage Loan Seller, shall be duly executed and delivered by all signatories as required pursuant to the respective terms thereof;
(iii) The Mortgage Loan Seller shall have delivered and released to the Purchaser or its designee, all documents, funds and other assets required to be delivered thereto on or before the Closing Date pursuant to Section 2 of this Agreement;
(iv) The result of any examination of the Mortgage Files for, and any other documents and records relating to, the Mortgage Loans performed by or on behalf of the Purchaser pursuant to Section 3 hereof shall be satisfactory to the Purchaser in its reasonable determination;
(v) All other terms and conditions of this Agreement required to be complied with on or before the Closing Date shall have been complied with in all material respects, and the Mortgage Loan Seller shall have the ability to comply with all terms and conditions and perform all duties and obligations required to be complied with or performed by it after the Closing Date;
(vi) The Mortgage Loan Seller shall have paid all fees and expenses payable by it to the Purchaser or otherwise pursuant to this Agreement;
(vii) The Mortgage Loan Seller shall have received the purchase price for the Mortgage Loans, as contemplated by Section 1 of this Agreement;
(viii) Neither the Underwriting Agreement nor the Certificate Purchase Agreement shall have been terminated in accordance with its terms; and
(ix) The Commission shall not have issued any stop order suspending the effectiveness of the Purchaser’s Registration Statement.
(x) Prior to the delivery of the Preliminary Prospectus to investors, an officer of the Mortgage Loan Seller shall have delivered to the Depositor a sub-certification (the “Mortgage Loan Seller Sub-Certification”) to the certification provided by the Chief Executive Officer of the Depositor to the Securities and Exchange Commission pursuant to Regulation AB. Each of the parties agrees to use their commercially reasonable best efforts to perform their respective obligations hereunder in a manner that will enable the Purchaser to purchase the Mortgage Loans on the Closing Date.
