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.
Sale of Receivables (a) The Seller sells and assigns, without recourse (except as provided in this Agreement), to the Buyer the following property on and as of the dates specified below:
(i) on the first Closing Date, (A) all of its right, title and interest in, to and under each Sold Receivable originated in each Initial Account and all Related Security with respect to such Sold Receivables owned by the Seller at the close of business on the Cutoff Date and (B) all monies due or to become due and all amounts received with respect to any of the foregoing and all proceeds (including “proceeds,” as defined in the UCC) and Recoveries thereof;
(ii) on the applicable Addition Date, (A) all of its right, title and interest in, to and under each Sold Receivable originated in each Additional Account and all Related Security with respect to such Sold Receivables owned by the Seller at the close of business on the applicable Additional Cutoff Date, and (B) all monies due or to become due and all amounts received with respect to any of the foregoing and all proceeds (including “proceeds,” as defined in the UCC) and Recoveries thereof; and
(iii) on each Sale Date, (A) all of its right, title and interest in, to and under each Sold Receivable originated in each Account on such Sale Date and all Related Security with respect to such Sold Receivable owned by the Seller at the close of business on the applicable Sale Date and not previously sold to the Buyer pursuant to this Agreement and (B) all monies due or to become due and all amounts received with respect to any of the foregoing and all proceeds (including “proceeds,” as defined in the UCC) and Recoveries thereof.
(b) The foregoing sales, and any subsequent sales, do not constitute, and are not intended to result in, the creation, or an assumption by the Buyer, of any obligation of the Servicer, the Seller, Ford or any other Person in connection with the Accounts or the related Receivables or under any related agreement or instrument, including any obligation to any Dealers or Ford. The foregoing sales are not sales of the Accounts but rather are sales of the Sold Receivables originated in the Accounts.
(c) In connection with the foregoing sales, the Seller will record and file, at its own expense, a financing statement on form UCC-1 or any other applicable form (and continuation statements when applicable) with respect to the Sold Receivables sold by the Seller, for the sale, for UCC purposes, of “tangible chattel paper,” “payment intangibles,” “general intangibles” or “accounts” (each as defined in the UCC), meeting the requirements of Applicable Law in such manner and in such jurisdictions as are necessary to perfect the sale and assignment, for UCC purposes, of the Sold Receivables and the Related Security to the Buyer, and to deliver a file-stamped copy of such financing statements or other evidence of such filing to the Buyer on or before the first Closing Date, in the case of the Initial Accounts, and (if any additional filing is necessary) the applicable Addition Date, in the case of Additional Accounts. The Buyer is under no obligation whatsoever to file such financing statement, or a continuation statement to such financing statement, or to make any other filing under Applicable Law in connection with such sales.
(d) The Seller and the Buyer intend that all transfers of Sold Receivables under this Agreement constitute sales of such Sold Receivables and not transfers of such Sold Receivables as security for a loan. However, if the transfers of the Sold Receivables under this Agreement were to be characterized as transfers of security for a loan and not as sales, then (i) the Seller will have Granted, and Grants, to the Buyer a security interest in each Sold Receivable and the Related Security, whether now owned or hereafter acquired, and all monies due or to become due and all amounts received with respect to any of the foregoing and all proceeds (including “proceeds,” as defined in the UCC) and Recoveries thereof and (ii) this Agreement constitutes a security agreement.
(e) On or before the first Closing Date, in the case of the Initial Accounts, and on or before the applicable Addition Date, in the case of Additional Accounts, the Seller will, at its own expense:
(i) indicate in its computer files that the Sold Receivables and the Related Security have been (A) sold and assigned to the Buyer pursuant to this Agreement, (B) sold and assigned by the Buyer to the Issuer pursuant to the Sale and Servicing Agreement and (C) pledged by the Issuer to the Indenture Trustee for the benefit of the Secured Parties pursuant to the Indenture and the Indenture Supplements;
(ii) in the case of the Initial Accounts, deliver to the Buyer the Initial Account Schedule; and
(iii) in the case of Additional Accounts, deliver to the Buyer an Additional Account Schedule.
(f) The Account Schedule, as amended, supplemented or otherwise modified from time to time, will be marked as Schedule 1 to this Agreement and is incorporated into and made a part of this Agreement.
(g) The purchase price for the Sold Receivables sold pursuant to this Agreement will be equal to the principal amount of the Sold Receivables, or such other price as may be agreed to by the Buyer and the Seller at the time of acquisition by the Buyer. The purchase price will not be materially less favorable than prices for transactions of a generally similar character at the time of the acquisition, taking into account the quality of such Sold Receivables the Seller’s cost of originating such Sold Receivables and a reasonable return on such costs, and other pertinent factors; provided that such consideration will in no event be less than reasonably equivalent value therefor. The Depositor and the Buyer each represents and warrants to the other that the amount of cash paid by the Depositor on any Sale Date, together with the increase in the value in the Buyer’s capital in the Depositor, is equal to the fair market value of the Sold Receivables sold on such Sale Date.
(h) Notwithstanding anything in this Agreement or in the other Transaction Documents to the contrary, in originating the Receivables, the Seller acts solely in its individual capacity and not in the capacity of agent or nominee of the Issuer. Furthermore, in connection with all sales of Sold Receivables by the Seller to the Buyer under this Agreement, the Seller is under no obligation, and does not intend, to inform the related Dealers of such sales by the Seller to the Buyer or of the transfer thereof by the Buyer to the Issuer under the Sale and Servicing Agreement or of the pledge thereof by the Issuer to the Indenture Trustee under the Indenture.
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.
Purchase and Sale of the Mortgage Loans and Related Rights Upon satisfaction of the conditions set forth in Section 10 hereof, the Mortgage Loan Seller agrees to sell, and the Purchaser agrees to purchase Mortgage Loans having an aggregate outstanding principal balance as of the Cut-off Date equal to the Cut-off Date Balance.
Communications Regarding Demands to Repurchase Receivables The Indenture Trustee shall provide prompt notice to World Omni and the Depositor of all demands received by a Responsible Officer of the Indenture Trustee for the repurchase or replacement of any Receivable for breach of the representations and warranties concerning such Receivable. The Indenture Trustee shall, upon written request and at the sole cost and expense of either World Omni or the Depositor, provide (x) notification to World Omni and the Depositor with respect to any actions taken by the Indenture Trustee or determinations made by the Indenture Trustee, in each case with respect to any such demand communicated to the Indenture Trustee in respect of any Receivables, and (y) any other records or information reasonably requested by World Omni or the Depositor, as applicable, that is in the Indenture Trustee’s possession and reasonably accessible to it, such notifications to be provided by the Indenture Trustee as soon as practicable and in any event within five (5) Business Days of such request or such other time frame as may be mutually agreed to by the Indenture Trustee and World Omni or the Depositor, as applicable. Such notices shall be provided to World Omni and the Depositor at: (a) in the case of World Omni, World Omni Financial Corp., 100 Xxx Xxxxx Boulevard, Deerfield Beach, Florida 33442, Telecopy: (000) 000-0000, Attention: Treasurer, and (b) in the case of the Depositor, to World Omni Auto Receivables LLC, 100 Xxx Xxxxx Boulevard, Deerfield Beach, Florida 33442, Telecopy: (000) 000-0000, Attention: Treasurer, or at such other address or by such other means of communication as may be specified by World Omni or the Depositor to the Indenture Trustee from time to time. The Indenture Trustee and the Issuing Entity acknowledge and agree that the purpose of this Section 6.14 is to facilitate compliance by World Omni and the Depositor with Rule 15Ga-1 under the Exchange Act, as amended, and Items 1104(e) and 1121(c) of Regulation AB (the “Repurchase Rules and Regulations”). The Indenture Trustee acknowledges that interpretations of the requirements of the Repurchase Rules and Regulations may change over time, whether due to interpretive guidance provided by the Commission or its staff, consensus among participants in the asset-backed securities markets, advice of counsel, or otherwise, and agrees to comply with reasonable requests made by World Omni and the Depositor in good faith for delivery of information under these provisions on the basis of evolving interpretations of the Repurchase Rules and Regulations. The Indenture Trustee shall cooperate fully with World Omni and the Depositor to deliver any and all records and any other information necessary in the good faith determination of World Omni and the Depositor to permit them to comply with the provisions of Repurchase Rules and Regulations. In no event shall the Indenture Trustee have any responsibility or liability in connection with any filing required to be made by a securitizer under the Exchange Act or Regulation AB, nor shall the Indenture Trustee have any duty or obligation to undertake any investigation or inquiry related to repurchase activity or otherwise to assume any additional duties or responsibilities in respect of the Indenture or the Sale and Servicing Agreement or the transactions contemplated thereby, other than any express duties or obligations as Indenture Trustee under this Indenture.
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
Conveyance of Subsequent Receivables (a) If there is a Funding Period, subject to satisfaction of the conditions set forth in Section 2.03(b) below, in consideration of the Issuing Entity’s delivery on the related Subsequent Transfer Date, if any, to or upon the order of the Depositor of the amount described in Section 5.01(d) to be delivered to the Depositor and the increase in the value of the Certificates as a result of such sale, the Depositor does hereby agree to sell, transfer, assign, set over and otherwise convey to the Issuing Entity, without recourse (except as provided in Section 3.02), pursuant to an assignment in substantially the form of Exhibit D (a “Subsequent Transfer SSA Assignment”), all right, title and interest of the Depositor in, to and under:
(i) the Subsequent Receivables identified in the Subsequent Transfer SSA Assignment (all of which are identified in World Omni’s computer files by a code indicating such Subsequent Receivables are owned by the Trust and pledged to the Indenture Trustee) and all monies received thereon and in respect thereof after the related Subsequent Cutoff Date;
(ii) the security interests in, and the liens on, the Financed Vehicles granted by Obligors in connection with the Subsequent Receivables and any other interest of the Depositor in the Financed Vehicles;
(iii) any proceeds with respect to the Subsequent Receivables from claims on any physical damage, credit life or disability insurance policies covering the Financed Vehicles or Obligors;
(iv) any Financed Vehicle that shall have secured a Subsequent Receivable and shall have been acquired by or on behalf of the Depositor, the Servicer or the Trust;
(v) all “accounts,” “chattel paper,” “general intangibles” and “promissory notes” (as such terms are defined in the Uniform Commercial Code as from time to time in effect) constituting or relating to the foregoing; and
(vi) the proceeds of any and all of the foregoing (including Liquidation Proceeds); provided, however, that the foregoing items (i) through (vi) shall not include the Notes and Certificates. It is the intention of the Depositor and the Issuing Entity that the assignment and transfer contemplated by this Section 2.03 constitute (and shall be construed and treated for all purposes, other than for tax purposes, as) a true and complete sale of such Subsequent Receivables, if any, and the other property of the Depositor specified in Section 2.03(a) hereof, conveying good title thereto free and clear of any liens and encumbrances, from the Depositor to the Issuing Entity. However, in the event that such conveyance is deemed to be a pledge to secure a loan (in spite of the express intent of the parties hereto that this conveyance constitutes, and shall be construed and treated for all purposes, other than for tax purposes, as a true and complete sale), the Depositor hereby grants to the Issuing Entity, for the benefit of the Noteholders, a first priority perfected security interest in all of the Depositor’s right, title and interest in, to and under the Subsequent Receivables, if any, and the other property of the Depositor specified in Section 2.03(a) hereof whether now existing or hereafter created and all proceeds of the foregoing to secure the loan deemed to be made in connection with such pledge and, in such event, this Agreement shall constitute a security agreement under applicable law.
(b) If there is a Funding Period, the Depositor shall transfer to the Issuing Entity Subsequent Receivables and the other property and rights related thereto described in Section 2.03(a) above only upon the satisfaction of each of the following conditions precedent on or prior to the related Subsequent Transfer Date:
(i) the Funding Period shall not have terminated;
(ii) each of the representations and warranties made by the Depositor pursuant to Section 3.01 with respect to such Subsequent Receivables shall be true and correct as of the related Subsequent Transfer Date with the same effect as if then made, and the Depositor shall have performed all obligations to be performed by it hereunder on or prior to such Subsequent Transfer Date;
(iii) the Depositor shall have delivered to the Owner Trustee and the Indenture Trustee a duly executed Subsequent Transfer SSA Assignment, including the Schedule of Receivables (which schedule shall be deemed to supplement the existing Schedule of Receivables in effect at such time);
(iv) the applicable Reserve Account Subsequent Transfer Deposit for such Subsequent Transfer Date shall have been deposited in the Reserve Account pursuant to Section 5.01(d);
(v) the Depositor shall, at its own expense, on or prior to each Subsequent Transfer Date, indicate in its computer files that the Subsequent Receivables conveyed on such date have been sold to the Issuing Entity pursuant to this Agreement and the related Subsequent Transfer SSA Assignment;
(vi) the Depositor shall have taken any action required to maintain the first priority perfected ownership interest of the Issuing Entity in the Owner Trust Estate and the first priority perfected security interest of the Indenture Trustee in the Collateral;
(vii) the Receivables in the Trust (after giving effect to the conveyance of the Subsequent Receivables to the Trust on such Subsequent Transfer Date) shall meet the following criteria: (A) the weighted average Annual Percentage Rate of the Receivables in the Trust shall not be less than [RESERVED]%, (B) not less than [RESERVED]% of the Aggregate Starting Principal Balance of the Receivables shall represent financings of new Financed Vehicles, (C) no Subsequent Receivable shall have a remaining term in excess of [RESERVED] months, (D) the weighted average original term to maturity of the Receivables in the Trust shall not be greater than [RESERVED] months, (E) not less than [RESERVED]% of Aggregate Starting Principal Balance of the Receivables shall represent financings of Toyota vehicles, (F) the weighted average FICO score of the Receivables in the Trust shall not be less than [RESERVED] and (G) such other criteria as may be required by the Rating Agencies;
(viii) the Depositor shall have delivered to the Indenture Trustee and the Owner Trustee an Officers’ Certificate confirming the satisfaction of the conditions specified in this Section 2.03(b); and
(ix) the Depositor shall have delivered to the Trust, the Indenture Trustee and the Rating Agencies an Opinion of Counsel with respect to the transfer of such Subsequent Receivables substantially in the form of the Opinion of Counsel delivered to the Rating Agencies on the Closing Date.
(c) If there is a Funding Period, the Depositor covenants to transfer to the Issuing Entity pursuant to Section 2.03(a) before the termination of the Funding Period Subsequent Receivables with an aggregate Starting Principal Balance less the Yield Supplement Overcollateralization Amount for such Subsequent Receivables as of the related Subsequent Cutoff Date equal to approximately the result of the Pre-Funding Account Initial Deposit divided by [RESERVED]% to the extent such Receivables were transferred to the Depositor under the Receivables Purchase Agreement.
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.
Collection of Receivable Payments; Modifications of Receivables (a) Consistent with the standards, policies and procedures required by this Agreement, the Servicer shall make reasonable efforts to collect all payments called for under the terms and provisions of the Receivables as and when the same shall become due, and shall follow such collection procedures as it follows with respect to all comparable motor vehicle receivables that it services for itself or others. The Servicer is authorized in its discretion to waive any prepayment charge, late payment charge or any other similar fees that may be collected in the ordinary course of servicing any Receivable.
(b) Subject to Section 4.06, the Servicer may grant extensions, rebates, deferrals, amendments, modifications or adjustments on a Receivable in accordance with its customary servicing practices; provided, however, that if the Servicer (i) extends the date for final payment by the Obligor of any Receivable beyond the last day of the Collection Period prior to the Class C Stated Maturity Date or (ii) reduces the APR or unpaid principal balance with respect to any Receivable other than as required by applicable law, it will promptly purchase such Receivable in the manner provided in Section 4.07.
(c) The Servicer may, but is not required to, make any advances of funds or guarantees regarding collections, cash flows or distributions. Payments on the Receivables, including payoffs made in accordance with the related documentation for such Receivables, shall be posted to the Servicer’s Obligor records in accordance with the principal, interest or other items in accordance with the related documentation for such Receivables.
(d) Subject to the provisions of Section 4.02(b), the Servicer and its Affiliates may engage in any marketing practice or promotion or any sale of any products, goods or services to Obligors with respect to the Receivables so long as such practices, promotions or sales are offered to obligors of comparable motor vehicle receivables serviced by the Servicer for itself and others, whether or not such practices, promotions or sales might result in a decrease in the aggregate amount of payments on the Receivables, prepayments or faster or slower timing of the payment of the Receivables.
(e) Notwithstanding anything in this Agreement to the contrary, the Servicer may refinance any Receivable and deposit the full Principal Balance of such Receivable into the Collection Account. The receivable created by such refinancing shall not be property of the Issuer. The Servicer and its Affiliates may also sell insurance or debt cancellation products, including products which result in the cancellation of some or all of the amount of a Receivable upon the death or disability of the Obligor or any casualty with respect to the Financed Vehicle.
(f) Records documenting collection efforts shall be maintained during the period a Receivable is delinquent in accordance with the Credit and Collection Policy. Such records shall be maintained on at least a periodic basis that is not less frequent than as set forth in the Credit and Collection Policy, and describe the entity’s activities in monitoring delinquent pool assets including, for example, phone calls, letters and payment rescheduling plans in cases where delinquency is deemed temporary (e.g., illness or unemployment) in accordance with the Credit and Collection Policy.
Merger, Consolidation, Acquisition and Sale of Assets (a) Enter into any merger, consolidation or other reorganization with or into any other Person or acquire all or a substantial portion of the assets or Equity Interests of any Person or permit any other Person to consolidate with or merge with it.
(b) Sell, lease, transfer or otherwise dispose of any of its properties or assets, except (i) dispositions of Inventory and Equipment to the extent expressly permitted by Section 4.3 and (ii) any other sales or dispositions expressly permitted by this Agreement.
