Purchased Assets Upon the terms set forth in this Agreement and subject to the conditions hereof and the provisions of Section 1.6, at the Closing, Seller will sell, transfer, assign, convey and deliver to Buyer, and Buyer will purchase and accept from Seller, all right, title and interest of Seller in, to and under the following properties (collectively, the “Purchased Assets”):
(a) subject to Section 1.5, the Land, together with all structures, buildings, improvements, machinery, fixtures, and equipment affixed or attached to the Land and all easements and rights appurtenant thereto, including: (i) all easements, privileges and rights belonging or in any way appurtenant to the Land; and (ii) any and all air rights, subsurface rights, development rights, and water rights appurtenant to the Land (all of the foregoing being collectively referred to herein as the “Owned Real Property”), but expressly excluding the Removed Real Property;
(b) all tangible personal property owned by Seller and used in connection with the Owned Real Property as of the date of this Agreement, including, specifically, without limitation, all equipment, furniture, tools and supplies (including all construction materials, work-in-process, finished goods, goods in transit, manufactured and purchased supplies and other materials) and any other personal property as is owned by the Seller, whether located on the Owned Real Property or with suppliers or others as of the date of this Agreement (collectively, the “Personal Property”);
(c) the Home Sale Contracts as of the Closing Date (the “Assigned Home Sale Contracts”);
(d) all xxxxxxx money deposits and other forms of security (whether or not held in escrow) held or controlled by or for Seller pursuant to the Assigned Home Sale Contracts (“Home Sale Contract Deposits”);
(e) all customer and vendor lists, and business and financial records, books, and documents (including any books and records or documents relating to Taxes imposed on the Purchased Assets), to the extent any of the foregoing are related to or used with respect to the Owned Real Property, Personal Property or the Assigned Contracts, including all of Seller’s rights to architectural and engineering plans, subject to applicable fees for the reuse, signing and sealing of such plans, water and sewer, electrical and building plans, and all other plans and specifications, drawings and other similar documents, in each case relating to the Owned Real Property;
(f) all rights, obligations, and duties of Seller arising out of Contracts relating to the construction of Housing Units in the Ordinary Course or otherwise listed on Section 1.1(f) of the Disclosure Schedule (other than those related to Housing Units that have been sold prior to the Closing) (collectively, the “Other Contracts” and, together with the Assigned Home Sale Contracts, the “Assigned Contracts”);
(g) all Permits in the name of Seller and related to the Owned Real Property (the “Assigned Permits”); and
(h) all of Seller’s rights as declarant or similar capacity under CC&Rs with respect to Associations.
Transferred Assets (i) From the Closing Date to the Effective Date, OLS sold and/or contributed, assigned, transferred, and conveyed to the Depositor, and the Depositor acquired from OLS, without recourse except as provided under the Original Receivables Sale Agreement, all of OLS’s right, title and interest, whether now owned or hereafter acquired, in, to and under each Receivable (1) in existence on the Closing Date and in existence on any Business Day after the Closing Date and prior to the Effective Date that is listed as a “Designated Servicing Agreement” on the Designated Servicing Agreement Schedule as of the date such Receivable is created (the “Initial Receivables”), and (2) all monies due or to become due and all amounts received or receivable with respect thereto and all proceeds (including “proceeds” as defined in the Uniform Commercial Code in effect in all applicable jurisdictions (the “UCC”)), together with all rights of OLS to enforce such Initial Receivables (collectively, the “Original Transferred Assets”).
(ii) Commencing on the Effective Date, and until the opening of business on the MSR Transfer Date for each Designated Servicing Agreement, pursuant to the Purchase Agreement, OLS will sell to HLSS, for a cash purchase price equal to 100% of the Receivable Balances thereof, (1) each Receivable, in existence on any Business Day on or after the Effective Date and until the opening of business on the related MSR Transfer Date, that arises under any Servicing Agreement that is listed as a “Designated Servicing Agreement” on the Designated Servicing Agreement Schedule as of the date such Receivable is created (“OLS Additional Receivables”) for which the MSR Transfer Date has not yet occurred, and (2) all monies due or to become due and all amounts received or receivable with respect thereto and all proceeds (including “proceeds” as defined in the UCC), together with all rights of HLSS to enforce such OLS Additional Receivables (collectively, the “OLS Transferred Assets”).
(iii) Commencing on the Effective Date, and until the close of business on the Receivables Sale Termination Date, subject to the provisions of this Agreement, HLSS, as receivables seller, hereby sells and/or contributes, assigns, transfers, and conveys to the Depositor, and the Depositor acquires from HLSS, without recourse except as provided herein, all of HLSS’s right, title and interest, whether now owned or hereafter acquired, in, to and under (1) each Receivable in existence on any Business Day on or after the Effective Date and prior to the Receivables Sale Termination Date (including the OLS Additional Receivables) that arises under any Servicing Agreement that is listed as a “Designated Servicing Agreement” on the Designated Servicing Agreement Schedule as of the date such Receivable is created (“Additional Receivables”), and (2) all monies due or to become due and all amounts received or receivable with respect thereto and all proceeds (including “proceeds” as defined in the UCC) (including the OLS Transferred Assets), together with all rights of HLSS to enforce such Additional Receivables (collectively, the “Transferred Assets”). Until the Receivables Sale Termination Date, HLSS shall, automatically and without any further action on its part, sell and/or contribute, assign, transfer and convey to the Depositor, on each Business Day, each Additional Receivable not previously transferred to the Depositor and the Depositor shall purchase each such Additional Receivable together with all of the other Transferred Assets related to such Receivable.
Other Assets Purchased Upon receipt of Instructions and except as otherwise provided herein, the Custodian shall pay for and receive other Assets for the account of a Fund as provided in Instructions.
Acquired Assets Upon the terms and subject to the conditions set forth in this Agreement, at the Closing, Seller shall sell, transfer, convey, assign and deliver to Buyer, and Buyer shall purchase, acquire and assume from Seller, all of Seller’s Interest in and to the following assets, properties, rights and interests, free and clear of all Encumbrances (other than Permitted Encumbrances), (the “Acquired Assets”):
(a) the Site and the Facility;
(b) those easements and other Contracts relating to the Site set forth in Section 2.1(b) of the Seller Disclosure Schedule (“Assumed Real Property Contracts”);
(c) the machinery, equipment, vehicles, furniture, Inventory and other personal property used primarily in connection with the operation of, or for consumption at, the Facility or the Site, including any property purchased but not yet located at the Facility or the Site (collectively, “Personal Property”);
(d) all Permits and Environmental Permits relating to the Site and the Facility;
(e) all Contracts entered into by Seller related to the Facility or the Site, as set forth in Section 2.1(e) of the Seller Disclosure Schedule (collectively with the Assumed Real Property Contracts, the “Assumed Contracts”);
(f) any and all inventory items used for the Business, including: consumables; lubricants, chemicals, fluids, lubricating oils, fuel oil, filters, fittings, connectors, seals, gaskets, hardware, wire and other similar materials; maintenance, shop and office supplies; replacement, spare or other parts; tools, special tools or similar equipment; and similar items of movable property and other materials located at or in transit to, or held for use at the Facility or the Site or used in connection with the Facility or the Site (collectively, “Inventory”);
(g) all of Seller’s rights to use and sell electricity, capacity or ancillary services with respect to the period commencing after the Effective Time;
(h) all Intellectual Property related solely to the Site or Facility or used primarily in connection with the Business;
(i) all Emission Allowances held by or allocated or issued to Seller or with respect to Seller’s Interest in the Site or Facility in connection with the Business or the Acquired Assets for the year in which Closing occurs and each year thereafter or otherwise needed to offset Seller’s share of emissions with respect to the Facility under the Emissions Agreement prior to the Closing Date;
(j) the rights which, if not for the transactions contemplated herein, would have accrued to Seller in and to any causes of action, Claims (including rights under Insurance Policies to proceeds, refunds (other than refunds relating to Taxes for Pre-Closing Periods as prorated pursuant to the method described in Section 3.4(a)) or distributions thereunder paid after the Closing Date) and defenses against third parties (including indemnification and contribution) relating to and to the extent of any Acquired Assets or Assumed Liabilities arising after the Closing Date;
(k) all unexpired warranties, indemnities and guaranties made or given by manufacturers, overhaulers, assemblers, refurbishers, vendors and service providers and other comparable third parties to the extent relating exclusively to the Facility, the Site or the Acquired Assets (but excluding those warranties, indemnities and guarantees related to any Excluded Assets), whether provided in connection with the purchase of equipment or entered into independently of such purpose;
(l) the PJM capacity sales listed in Section 2.1(l) of the Seller Disclosure Schedule and all PJM capacity sales entered into by Seller after the Execution Date with respect to its Interest, in each case excluding capacity sales revenue received by Seller prior to the Closing Date; and
(m) all other assets, rights and interests used exclusively in relation to or in connection with the Facility; provided, however, that the Acquired Assets shall not include the Excluded Assets.
Purchase and Sale of the Purchased Assets Except as otherwise provided below, upon the terms and subject to the conditions of this Agreement, Buyer agrees to purchase from Seller and the Retained Subsidiaries, and Seller agrees to, and to cause the Retained Subsidiaries to, sell, convey, transfer, assign and deliver, or cause to be sold, conveyed, transferred, assigned and delivered, to Buyer at the Closing, free and clear of any Liens other than Permitted Liens, all of Seller’s and the Retained Subsidiaries’ right, title and interest in, to and under the assets, properties and business, of every kind and description, owned, used or held for use primarily in the conduct of the Business by Seller or any of the Retained Subsidiaries (but, for the avoidance of doubt, excluding any Excluded Assets or assets and properties of any Purchased Subsidiary) (the “Purchased Assets”), including all right, title and interest of Seller and the Retained Subsidiaries in, to and under the following Purchased Assets:
(a) the Owned Real Property, together with all buildings, fixtures and improvements erected thereon;
(b) all rights under the Leases with respect to the Leased Real Property;
(i) all tangible personal property and interests therein, including machinery, equipment, furniture, office equipment, communications equipment, vehicles, storage tanks, spare and replacement parts, fuel and other tangible property (including all interests in personal property underlying capital leases) located at the Real Property and held for use primarily in the conduct of the Business and (ii) those assets of Seller related primarily to the Business that are located at its Corporate Technology Center facility located in Milwaukee, Wisconsin, which are listed on Schedule 2.02(c);
(d) all raw materials, work-in-process, finished goods, supplies and other inventories used or held for use primarily in the conduct of the Business (collectively, the “Inventory”);
(e) all rights under all Contracts (other than the Leases) used or held for use primarily in the conduct of the Business, including those listed in Schedule 2.02(e) (the “Purchased Contracts”);
(f) all rights, claims, credits, causes of action or rights of set-off against third parties relating to or arising from the Purchased Assets or the Assumed Liabilities, including unliquidated rights under manufacturers’ and vendors’ warranties;
(g) all trade accounts receivable and other receivables (collectively, the “Accounts Receivable”) to the extent arising out of the Business;
(h) all prepaid assets to the extent arising out of the Business;
(i) all Business Intellectual Property Rights other than Business Intellectual Property Rights owned by the Purchased Subsidiaries;
(j) all Permits that are necessary to the operation of the Business; and
(k) Business Records relating primarily to the Business.
Receivables Purchase Price On the Closing Date, the Purchaser shall deliver to the Seller the Receivables Purchase Price, as provided in Section 2.1(b).
Purchase and Sale of Purchased Assets In accordance with the provisions of this Agreement and except as set forth in Section 2.2, at the Closing, the Seller will sell, convey, assign, transfer and deliver to the Purchaser, and the Purchaser will purchase and acquire from the Seller, free and clear of all Encumbrances, all of the Seller’s right, title and interest in and to all of the Seller’s property and assets, real, personal or mixed, tangible and intangible, of every kind and description, wherever located (collectively, the “Purchased Assets”), including the following:
(a) all notes and accounts receivable, including all trade accounts receivable and other rights to payment from customers, and the full benefit of all security for such accounts or rights to payment;
(b) all inventories, wherever located, including all finished goods, work in process, raw materials, spare parts and all other materials and supplies to be used in the production of finished goods;
(c) all of the rights of the Seller under all Contracts listed in Section 3.14(a), but excluding any Contract that is an Excluded Asset pursuant to Section 2.2(d);
(d) all of the rights and obligations of Seller under the Assumed Loan Documents from and after the Closing Date;
(e) all machinery, equipment, furniture, furnishings, computer hardware, vehicles, tools, dies, molds and other items of tangible personal property of every kind owned or leased by the Seller (collectively, the “Tangible Personal Property”), and the full benefit of all express or implied warranties by the manufacturers or sellers or lessors of any item or component part thereof;
(f) all leasehold or subleasehold estates and other rights to use or occupy any real property leased, subleased or licensed by or from the Seller or otherwise used or occupied by the Seller (collectively, the “Leased Real Property”);
(g) all real property in which the Seller has fee simple, leasehold or other ownership interest, including, without limitation, (i) the all buildings, structures, fixtures and other improvements located thereon or attached or appurtenant thereto or owned by the Seller and located on Leased Real Property and all easements, licenses, rights and appurtenances relating to the foregoing and (ii) the Real Property Purchase Option (collectively, the “Owned Real Property”);
(h) all Intellectual Property owned, created, acquired, licensed or used by the Seller at any time prior to and through the Closing Date (collectively, the “Purchased Intellectual Property”), and all other intangible rights of the Seller including all goodwill associated with the Purchased Assets;
(i) all Governmental Authorizations held by the Seller and all pending applications therefor or renewals thereof, in each case to the extent transferable to the Purchaser;
(j) all books, records, manuals and other materials (in any form or medium), including all client and customer lists, referral sources, supplier and vendor lists, purchase orders, sales and purchase invoices, research and development reports and records, production reports and records, service and warranty records, equipment logs, operating guides and manuals, drawings, engineering specifications, financial and accounting records, creative materials, advertising materials, promotional materials, studies, reports, correspondence and similar documents, personnel and employee benefits records and copies of all other records described in Section 2.2(e) to the extent the Seller is legally permitted to provide copies of such records to the Purchaser;
(k) all rights and interests of the Seller under all insurance policies under which the Seller or any of the Purchased Assets is or has been insured to the extent such rights or interests relate to any of the Assumed Liabilities or any casualty affecting any of the Purchased Assets;
(l) all claims, rights and defenses of the Seller against third parties relating to any of the Purchased Assets or Assumed Liabilities, in each case, whether accruing before or after the Closing, and including all attorney work-product protections, attorney-client privileges and other legal protections and privileges to which the Seller may be entitled in connection with any of the Purchased Assets or Assumed Liabilities; and
(m) all rights of the Seller relating to deposits and prepaid expenses, claims for refunds and rights of offset that are not excluded under Section 2.2(f). Notwithstanding the foregoing, the transfer of the Purchased Assets pursuant to this Agreement does not include the assumption of any Liability related to the Purchased Assets unless the Purchaser expressly assumes that Liability pursuant to Section 2.3
Purchased Services During the term of this Collective Agreement, no regular employee will be declared surplus in his/her position as a result of the use of purchased services to perform the work normally performed by that employee.
Title to Transferred Assets From and including the Closing Date until such Servicing Rights Assets are transferred to Purchaser under Section 2.2, Seller shall be the sole holder and owner of the Servicing Rights Assets and shall have good and marketable title to the Servicing Rights Assets, free and clear of any Liens. Upon the sale of such Servicing Rights Assets pursuant to Section 2.2, Seller will transfer to Purchaser good and marketable title to the Servicing Rights Assets free and clear of any Liens. Seller is the sole holder and owner of the Rights to MSRs and the sale and delivery to Purchaser of the Rights to MSRs pursuant to the provisions of this Sale Supplement will transfer to Purchaser good and marketable title to the Rights to MSRs free and clear of any Liens.
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.