Title to Purchased Assets Seller owns and has good title to the Purchased Assets, free and clear of Encumbrances.
Seller’s Closing Obligations On the Closing Date, Seller, at its sole cost and expense, will deliver to Purchaser the following items:
(a) A special warranty deed (the “Deed”), duly executed and acknowledged by Seller, conveying to Purchaser the Real Property and the Improvements, subject only to the Permitted Exceptions;
(b) A xxxx of sale in the form attached hereto as Exhibit C (the “Xxxx of Sale”), duly executed by Seller, assigning and conveying to Purchaser, without representation or warranty, title to the Personal Property;
(c) A counterpart original of an assignment and assumption of Seller’s interest, as lessor, in the Leases and Security Deposits in the form attached hereto as Exhibit B (the “Assignment of Leases”), duly executed by Seller, conveying and assigning to Purchaser all of Seller’s right, title and interest, as lessor, in the Leases and Security Deposits;
(d) A counterpart original of an assignment and assumption of Seller’s interest in the Service Contracts (other than any Service Contracts as to which Purchaser has notified Seller prior to the expiration of the Evaluation Period that Purchaser elects not to assume at Closing) and the Licenses and Permits in the form attached hereto as Exhibit A (the “Assignment”), duly executed by Seller, conveying and assigning to Purchaser all of Seller’s right, title, and interest, if any, in such Service Contracts and the Licenses and Permits;
(e) The Tenant Notice Letters, duly executed by Seller, with respect to the Tenants;
(f) Evidence reasonably satisfactory to Purchaser and the Title Company that the person executing the documents delivered by Seller pursuant to this Section 10.3 on behalf of Seller has full right, power, and authority to do so;
(g) A certificate in the form attached hereto as Exhibit I (“Certificate as to Foreign Status”) certifying that Seller is not a “foreign person” as defined in Section 1445 of the Internal Revenue Code of 1986, as amended;
(h) All original Leases, to the extent in Seller’s possession, the original Major Tenant Estoppels and any other estoppels as described in Section 7.2, SNDAs as described in Section 7.3 and all original Licenses and Permits and Service Contracts in Seller’s possession bearing on the Property;
(i) A certificate, dated as of the Closing Date, stating that the representations and warranties of Seller contained in Section 8.1 are true and correct in all material respects as of the Closing Date (with appropriate modifications to reflect any changes therein that are not prohibited by this Agreement, including but not limited to updates to the Lease Schedule, Schedule of Service Contracts and Arrearage Schedule as set forth in Section 9.1(b));
(j) An Affidavit of Title in form and substance reasonably satisfactory to the Title Company; and
(k) A counterpart original of an operating agreement in the form of Exhibit L attached to this Agreement, duly executed by Seller or an affiliate of Seller (the “Operating Agreement”).
After-Acquired Collateral (a) Unless otherwise directed by an Act of Required Debtholders pursuant to the Guarantee and Collateral Agreement, with respect to any property acquired after the date of this Indenture by the Company or any Grantor (other than any property described in clauses (b)-(d) of this Section 4.15) as to which the Collateral Agent, for the benefit of the Secured Parties, does not have a perfected Lien, the Company and each applicable Grantor shall promptly:
(1) execute and deliver to the Collateral Agent such amendments to the Guarantee and Collateral Agreement or such other documents as the Collateral Agent deems necessary or advisable to grant to the Collateral Agent, for the benefit of the Secured Parties, a security interest in such property; and
(2) take all actions necessary or advisable to grant to the Collateral Agent, for the benefit of the Secured Parties, a perfected first priority security interest in such property, including the filing of Uniform Commercial Code financing statements in such jurisdictions as may be required by the Guarantee and Collateral Agreement or by law or as may be reasonably requested by the Collateral Agent.
(b) With respect to any fee interest in any real property having a value (together with improvements thereof) of at least $5,000,000 acquired after the date of this Indenture by the Company or any Guarantor (other than any such real property subject to a Permitted Lien which precludes the granting of a Mortgage thereon), within 60 days after the creation or acquisition thereof, unless otherwise directed by an Act of Required Debtholders, the Company and each applicable Guarantor shall:
(1) execute and deliver a first priority Mortgage or where appropriate under the circumstances, an amendment to an existing Mortgage, in each case in favor of the Collateral Agent, for the benefit of the Secured Parties, covering such real property,
(2) if requested by the Collateral Agent, provide the Secured Parties with (A) either (i) title insurance covering such real property in an amount at least equal to the purchase price of such real property (or such other amount as shall be reasonably specified by the Collateral Agent) in form and substance reasonably satisfactory to the Collateral Agent, as well as a current ALTA survey thereof, together with a surveyor’s certificate (only with respect to any power plant or any other real property for which an ALTA survey was obtained when such property was acquired) or (ii) where an amendment to an existing Mortgage has been delivered pursuant to clause (1) instead of a Mortgage, an endorsement to the existing title policy adding such property as an insured parcel, and (B) any consents or estoppels reasonably deemed necessary or advisable by the Collateral Agent in connection with such Mortgage or Mortgage amendment (to the extent obtainable using commercially reasonable efforts), each of the foregoing in form and substance reasonably satisfactory to the Collateral Agent; and
(3) if requested by the Collateral Agent, deliver to the Collateral Agent legal opinions relating to the matters described in clauses (1) and (2) above, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Collateral Agent.
(c) With respect to any new Subsidiary (other than an Excluded Subsidiary) created or acquired after the date of this Indenture by the Company or any Guarantor (which, for the purposes of this paragraph (c), shall include any existing Subsidiary that ceases to be an Excluded Subsidiary), unless otherwise directed by an Act of Required Debtholders, within 60 days of the creation or acquisition thereof the Company and each applicable Guarantor shall:
(1) execute and deliver to the Collateral Agent such amendments to the Guarantee and Collateral Agreement as the Collateral Agent deems necessary or advisable to grant to the Collateral Agent, for the benefit of the Secured Parties, a perfected first priority security interest in the Capital Stock of such new Subsidiary that is owned by the Company or any Guarantor,
(2) deliver to the Collateral Agent the certificates representing such Capital Stock, together with undated stock powers, in blank, executed and delivered by a duly authorized officer of the Company or the relevant Guarantor,
(3) cause such new Subsidiary (A) to become a party to the Guarantee and Collateral Agreement, (B) to take such actions necessary or advisable to grant to the Collateral Agent for the benefit of the Secured Parties a perfected first priority security interest in the Collateral described in the Guarantee and Collateral Agreement with respect to such new Subsidiary, including the filing of Uniform Commercial Code financing statements in such jurisdictions as may be required by the Guarantee and Collateral Agreement or by law or as may be requested by the Collateral Agent and (C) to deliver to the Collateral Agent a customary closing certificate of such Subsidiary, in form and substance reasonably satisfactory to the Collateral Agent, with appropriate insertions and attachments, and
(4) if requested by the Collateral Agent, deliver to the Collateral Agent legal opinions relating to the matters described above, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Collateral Agent.
(d) With respect to any new Foreign Subsidiary (or Domestic Subsidiary of the type described in clause (d) of the definition of Excluded Subsidiary) created or acquired after the date of this Indenture by the Company or any Guarantor, unless otherwise directed by an Act or Required Debtholders, the Company and each applicable Guarantor shall promptly:
(1) execute and deliver to the Collateral Agent such amendments to the Guarantee and Collateral Agreement as the Collateral Agent deems necessary or advisable to grant to the Collateral Agent, for the benefit of the Secured Parties, a perfected first priority security interest in the Capital Stock of such new Subsidiary that is owned by the Company or such Guarantor (provided that in no event shall more than 65% of the total outstanding voting Capital Stock of any such new Subsidiary be required to be so pledged),
(2) if commercially reasonable, deliver to the Collateral Agent the certificates representing such Capital Stock, together with undated stock powers, in blank, executed and delivered by a duly authorized officer of the Company or the relevant Guarantor, and take such other action as may be necessary or, in the opinion of the Collateral Agent, desirable to perfect the Collateral Agent’s security interest therein, and
(3) if requested by the Collateral Agent, deliver to the Collateral Agent legal opinions relating to the matters described above, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Collateral Agent.
Purchased Assets On the terms and subject to the conditions of this Agreement, at the Closing, Seller shall, and shall cause its Subsidiaries to, sell, assign, transfer, convey and deliver to Purchaser (or a Subsidiary or Subsidiaries of Purchaser identified to Seller in writing at least three (3) business days before the Closing), and Purchaser shall (or shall cause its applicable Subsidiaries to) purchase and acquire from Seller and its Subsidiaries all of Seller’s and/or its Subsidiaries’ right, title and interest as of the Closing in the following (collectively, the “Purchased Assets”), free and clear of all Liens, other than Permitted Liens:
(a) (i) each Business License Contract and (ii) each Contract with customers (including support and services Contracts), partners, distributors or resellers of the Business (other than, for the avoidance of doubt, (x) Contracts solely between Seller and its Subsidiaries or solely between Subsidiaries of Seller and (y) leases of real property) (collectively, (i) and (ii), together with the Contracts designated as Purchased Assets pursuant to Section 2.4(l), such Contracts or portions (to the extent related to the Business) of Contracts, the “Business Contracts”); provided that and for the avoidance of doubt, Business Contracts shall not include any Contract in respect of hosting services provided to the Business;
(b) the Transferred Leases;
(c) the Transferred Intellectual Property Rights, including (other than with respect to Retained Claims) the right to seek and obtain damages for the past, present or future infringement, misappropriation or other violation of any Transferred Intellectual Property Rights, and the goodwill of the Business appurtenant to such Transferred Intellectual Property Rights;
(d) the Transferred Technology, including (other than with respect to Retained Claims) the right to seek and obtain damages for the past, present or future infringement, misappropriation or other violation of any Transferred Technology and the goodwill of the Business appurtenant to such Transferred Technology; provided that Seller shall be permitted to keep copies of any Transferred Technology to the extent it constitutes Shared Transferred Technology subject to the terms and conditions of the Intellectual Property License Agreement;
(e) any and all Permits primarily related to the Business (collectively, the “Transferred Permits”);
(f) any and all claims, causes of action, defenses and rights of offset or counterclaims (in any manner arising or existing, whether xxxxxx or inchoate, known or unknown, contingent or non-contingent) at any time to the extent arising out of or related to the Business, the Purchased Assets or the Assumed Liabilities and the right to retain all proceeds and monies therefrom, other than any Retained Claims;
(g) any and all rights under Contracts between Seller or one of its Subsidiaries and any Transferred Business Employee to the extent they restrict the Transferred Business Employee from competing with, or soliciting employees, customers, clients, vendors, and other Persons engaged in a business relationship with, the Business;
(h) true and complete copies of the Business Books and Records; provided that Seller shall be permitted to keep copies of such Business Books and Records to the extent relating to the Retained Business or the Retained Liabilities, or otherwise to the extent reasonably necessary, and only for so long as required, for Seller’s financial reporting purposes;
(i) any and all raw materials, works-in-process, finished goods, supplies and other inventories, including two-factor authentication tokens, to the extent related to, used in or held for use in the Business;
(j) all rights under letters of credit, performance bonds, negotiable instruments and other credit support instruments to the extent third parties provide credit support for any Business Contract or any other Purchased Assets pursuant to the foregoing (collectively, the “Transferred Financial Instruments”);
(k) any and all prepaid assets and deposits to the extent made or paid in respect of any Purchased Assets described in Section 2.4(i) or any tangible assets (including Tangible Personal Property and Information Technology) that become Purchased Assets pursuant to Section 2.4(l) (the “Transferred Prepaid Assets”);
(l) all other assets, Contracts or rights of any kind (including Tangible Personal Property and Information Technology, but excluding owned or leased real property, permits, Intellectual Property Rights (other than any Contracts) and Minority Investments), wherever located, whether personal, or mixed, tangible or intangible, that are owned by Seller or any of its Subsidiaries or to which Seller or any of its Subsidiaries is a party or has a license or other right with respect thereto, and in each case, that are primarily related to or primarily used or held for use in the Business and are not listed on Section 2.5(o) of the Seller Disclosure Letter, and that have been designated as a “Purchased Asset” by Purchaser in writing in its sole discretion prior to the Asset Selection Cut-Off Time; and
(m) any and all assets set forth on Section 2.4(m) of the Seller Disclosure Letter.
Seller Obligations Seller shall (A) arrange and pay independently for any and all necessary costs under any Generator Interconnection Agreement with the Participating Transmission Owner; (B) cause the Interconnection Customer’s Interconnection Facilities, including metering facilities, to be maintained; and (C) comply with the procedures set forth in the GIP and applicable agreements or procedures provided under the GIP in order to obtain the applicable Electric System Upgrades and (D) obtain Electric System Upgrades, as needed, in order to ensure the safe and reliable delivery of Energy from the Project up to and including quantities that can be produced utilizing all of the Contract Capacity of the Project.
Title to REO Property; REO Account (a) If title to any Mortgaged Property is acquired (directly or through a single member limited liability company established for that purpose) and thus becomes REO Property, the deed or certificate of sale shall be issued in the name of the Trust where permitted by applicable law or regulation and consistent with customary servicing procedures, and otherwise, in the name of the Trustee or its nominee on behalf of the Certificateholders and, if applicable, on behalf of the related Companion Holders, in the case of a Serviced Companion Loan. REO Property with respect to a Non-Serviced Mortgage Loan is excluded for all purposes of this Section 3.14. The Special Servicer, on behalf of the Trust and, if applicable, the related Serviced Companion Noteholder, shall sell any REO Property prior to the close of the third calendar year following the year in which the Trust acquires ownership of such REO Property, within the meaning of Treasury Regulations Section 1.856-6(b)(1), for purposes of Section 860G(a)(8) of the Code, unless the Special Servicer either (i) applies for a qualifying extension of time no later than sixty (60) days prior to the close of the third calendar year in which it acquired ownership (or the period provided in the then-applicable REMIC Provisions) and such extension is granted or is not denied (an “REO Extension”) by the Internal Revenue Service to sell such REO Property or (ii) obtains for the Trustee and the Certificate Administrator an Opinion of Counsel, addressed to the Trustee and the Certificate Administrator, to the effect that the holding by the Trust of such REO Property subsequent to the close of the third calendar year following the year in which acquisition occurred will not cause an Adverse REMIC Event. If the Special Servicer is granted or not denied the REO Extension contemplated by clause (i) of the immediately preceding sentence or obtains the Opinion of Counsel contemplated by clause (ii) of the immediately preceding sentence, the Special Servicer shall sell such REO Property within such longer period as is permitted by such REO Extension or such Opinion of Counsel, as the case may be. Any expense incurred by the Special Servicer in connection with its being granted the REO Extension contemplated by clause (i) of the second preceding sentence or its obtaining the Opinion of Counsel contemplated by clause (ii) of the second preceding sentence, shall be an expense of the Trust payable out of the Collection Account pursuant to Section 3.05(a).
(b) The Special Servicer shall segregate and hold all funds collected and received in connection with any REO Property separate and apart from its own funds and general assets. If an REO Acquisition shall occur, the Special Servicer shall establish and maintain one or more REO Accounts, held on behalf of the Trustee for the benefit of the Certificateholders and, if applicable, on behalf of any related Companion Holder(s), as applicable, as their interest shall appear, and the Trustee (as holder of the Lower-Tier Regular Interests), for the retention of revenues and other proceeds derived from each REO Property. The REO Account shall be an Eligible Account. The Special Servicer shall deposit, or cause to be deposited, in the REO Account, prior to each Determination Date, all REO Revenues, Insurance and Condemnation Proceeds and Liquidation Proceeds received in respect of an REO Property. Funds in the REO Account may be invested in Permitted Investments in accordance with Section 3.06. The Special Servicer shall give notice to the Trustee, the Certificate Administrator, and the Master Servicer of the location of the REO Account when first established and of the new location of the REO Account prior to any change thereof.
(c) The Special Servicer shall withdraw from the REO Account funds necessary for the proper operation, management, insuring, leasing, maintenance and disposition of any REO Property, but only to the extent of amounts on deposit in the REO Account relating to such REO Property. On the later of the date that is (x) on or prior to each Determination Date or (y) two (2) Business Days after such amounts are received and properly identified and determined to be available (or, with respect to a Serviced Companion Loan, on the Business Day preceding each Serviced Whole Loan Remittance Date), the Special Servicer shall withdraw from the REO Account and remit to the Master Servicer, which shall deposit into the Collection Account (or the Companion Distribution Account, as applicable), the aggregate of all amounts received in respect of each REO Property during the most recently ended Collection Period, net of (i) any withdrawals made out of such amounts pursuant to the preceding sentence and (ii) Net Investment Earnings on amounts on deposit in the REO Account; provided, however, that the Special Servicer may retain in such REO Account, in accordance with the Servicing Standard, such portion of such balance as may be necessary to maintain a reasonable reserve for repairs, replacements, leasing, management and tenant improvements and other related expenses for the related REO Property. In addition, on or prior to the day the Special Servicer remits fund as provided in this Section 3.14, the Special Servicer shall provide the Master Servicer with a written accounting of amounts remitted to the Master Servicer for deposit in the Collection Account on such date. The Master Servicer shall apply all such amounts as instructed by the Special Servicer on the Determination Date (or with respect to a Serviced Companion Loan, on each Serviced Whole Loan Remittance Date) for the related Distribution Date.
(d) The Special Servicer shall keep and maintain separate records, on a property-by-property basis, for the purpose of accounting for all deposits to, and withdrawals from, the REO Account pursuant to Section 3.14(b) or Section 3.14(c).
Purchaser Obligations EXPIRATION. Upon expiration of this Participating Addendum, Purchaser shall accept and take delivery of all outstanding and not yet fulfilled Purchase Orders and pay Contractor the price as set out in the Master Agreement. Notwithstanding any provision to the contrary, in no event shall a Purchaser’s Purchase Order pursuant to this Participating Addendum that is executed prior to expiration of this Participating Addendum allow for Contractor to provide Goods and/or Services more than twelve (12) months beyond the expiration date of the Master Agreement.
Cross-Collateralized Mortgage Loans Notwithstanding anything herein to the contrary, it is hereby acknowledged that certain groups of Mortgage Loans are, in the case of each such particular group of Mortgage Loans (each, a "Cross-Collateralized Group"), by their terms, cross-defaulted and cross-collateralized, if identified as such on the Mortgage Loan Schedule. For purposes of reference, the Mortgaged Property that relates or corresponds to any of the Mortgage Loans referred to in this Section 17 shall be the property identified in the Mortgage Loan Schedule as corresponding thereto. The provisions of this Agreement, including, without limitation, each of the representations and warranties set forth in Exhibit C hereto and each of the capitalized terms used herein but defined in the Pooling and Servicing Agreement, shall be interpreted in a manner consistent with this Section 17. In addition, if there exists with respect to any Cross-Collateralized Group only one original of any document referred to in the definition of "Mortgage File" in the Pooling and Servicing Agreement and covering all the Mortgage Loans in such Cross-Collateralized Group, the inclusion of the original of such document in the Mortgage File for any of the Mortgage Loans constituting such Cross-Collateralized Group shall be deemed an inclusion of such original in the Mortgage File for each such Mortgage Loan.
Purchaser’s Closing Obligations On the Closing Date, Purchaser, at its sole cost and expense, will deliver to Seller the following items:
(a) The Purchase Price, after all adjustments are made as herein provided, by Federal Reserve wire transfer of immediately available funds, in accordance with the timing and other requirements of Section 3.2;
(b) A counterpart original of each Assignment of Leases, duly executed by Purchaser;
(c) A counterpart original of each Assignment, duly executed by Purchaser;
(d) Evidence reasonably satisfactory to Seller that the person executing the Assignment of Leases, the Assignment, and the Tenant Notice Letters on behalf of Purchaser has full right, power and authority to do so;
(e) Form of written notice executed by Purchaser and to be addressed and delivered to the Tenants by Purchaser in accordance with Section 10.6 herein, (i) acknowledging the sale of the Property to Purchaser, (ii) acknowledging that Purchaser has received and that Purchaser is responsible for the Security Deposit (specifying the exact amount of the Security Deposit) and (iii) indicating that rent should thereafter be paid to Purchaser and giving instructions therefor (the “Tenant Notice Letters”);
(f) A counterpart original of the Closing Statement, duly executed by Purchaser;
(g) A certificate, dated as of the Closing Date, stating that the representations and warranties of Purchaser contained in Section 8.2 are true and correct in all material respects as of the Closing Date;
(h) A counterpart original of the Operating Agreement (as defined in Section 10.3(k) below), duly executed by Purchaser; and
(i) Such other documents as, may be reasonably necessary or appropriate to effect the consummation of the transaction which is the subject of this Agreement.
Excluded Assets Notwithstanding anything to the contrary in this Agreement, the Purchased Assets shall not include the following assets (collectively, the “Excluded Assets”):
(a) all cash, cash equivalents (including marketable securities and short-term investments), bank accounts and their balances (including related books and records), lockboxes and deposits of, and any rights or interests in, the cash management system of Seller, including uncleared checks and drafts received or deposited for the account of Seller;
(b) all rights under any Contracts, including those listed on Schedule 2.02(b), but excluding the Assumed Contracts;
(c) all Company Plans and attributable assets of, or relating to, such plans, including all records, Contracts and arrangements associated with such Company Plans;
(d) any Intellectual Property of Seller not Related to the Business;
(e) Seller’s Organizational Documents and minute and equity ownership books and records having to do with the company organization or existence of Seller and its company seal;
(f) all rights, claims, credits, causes of action or rights of set-off that Seller may have arising under this Agreement or as a result of the consummation of the transactions contemplated hereby;
(g) any refunds of Taxes for any Pre-Closing Tax Period or for which Seller is liable pursuant to Section 6.12;
(h) the Tax Returns and Tax records and reports of Seller other than those that are Purchased Assets;
(i) all insurance policies of Seller, including claims thereunder and any claims or benefits in, to or under any express or implied warranties from suppliers of goods or services relating to Inventory sold by Seller prior to Closing;
(j) all of Seller’s intercompany account balances with its Affiliates, including those related to the Products;
(k) all assets, properties, and interests rights primarily used in or held for use in connection with the operation of Seller’s wound care and urology business;
(l) the rights that accrue or will accrue to Seller under this Agreement and the other Transaction Documents; and
(m) the other assets of Seller that are identified on Schedule 2.02(m).
