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.
Leased Assets The term "Leased Assets" shall have the meaning ascribed thereto in Section 3.6.
Retained Assets Notwithstanding any other provision of this Agreement, the transactions contemplated by this Agreement exclude each and every right, title, interest or other asset in any way relating to the matters described below to the extent in any way owned by, or that in any way accrued to the benefit of, any Acquired Company (other than those actually owned by the Javelina Partnerships) (including their respective successors) prior to the Closing Date (all of which are referred to as the “Retained Assets”):
(i) Retained Electronic Data;
(ii) the Xxxx Marks;
(iii) any refunds from taxing authorities attributable to any period before the Effective Time;
(iv) all books, records, work papers, Tax Returns, etc., relating to Taxes;
(v) all insurance policies or other agreements of insurance that relate to the assets or businesses of any of such Acquired Company, except with respect to any claims made prior to the Effective Time; and
(vi) any files, records, contracts or other documents of the Seller or any of its Affiliates relating to any analysis of the Buyer’s bid or offer and any analysis of any other bids or offers with respect to any such Acquired Company or all or any part of such Acquired Company Assets, including those in competition with the Buyer’s bid or offer. Prior to the Closing Date, the Seller shall cause any such Acquired Company to transfer, for or without consideration, the Retained Assets to the Seller, any of its Affiliates or any designee. Notwithstanding anything to the contrary provided elsewhere in this Agreement, the term Acquired Company Assets does not include (and similar terms or phrases contained in the Transaction Agreements shall not include) the Retained Assets, and, accordingly, the Seller’s representations, warranties and covenants shall not apply to the Retained Assets. For the avoidance of doubt, but without limiting the generality of the foregoing, neither the Seller nor any of its Affiliates is assuming or otherwise becoming responsible for any Obligation pursuant to this Section 2(f); provided, however, that the Seller is providing the indemnification specified in Section 8(b)(vii)(B) relating to the Retained Assets.
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.
Collection of Taxes, Assessments and Similar Items; Escrow Accounts (a) To the extent required by the related Mortgage Note and not violative of current law, the Master Servicer shall establish and maintain one or more accounts (each, an "Escrow Account") and deposit and retain therein all collections from the Mortgagors (or advances by the Master Servicer) for the payment of taxes, assessments, hazard insurance premiums or comparable items for the account of the Mortgagors. Nothing herein shall require the Master Servicer to compel a Mortgagor to establish an Escrow Account in violation of applicable law.
(b) Withdrawals of amounts so collected from the Escrow Accounts may be made only to effect timely payment of taxes, assessments, hazard insurance premiums, condominium or PUD association dues, or comparable items, to reimburse the Master Servicer out of related collections for any payments made pursuant to Sections 3.01 hereof (with respect to taxes and assessments and insurance premiums) and 3.09 hereof (with respect to hazard insurance), to refund to any Mortgagors any sums determined to be overages, to pay interest, if required by law or the terms of the related Mortgage or Mortgage Note, to Mortgagors on balances in the Escrow Account or to clear and terminate the Escrow Account at the termination of this Agreement in accordance with Section 9.01 hereof. The Escrow Accounts shall not be a part of the Trust Fund.
(c) The Master Servicer shall advance any payments referred to in Section 3.06(a) that are not timely paid by the Mortgagors on the date when the tax, premium or other cost for which such payment is intended is due, but the Master Servicer shall be required so to advance only to the extent that such advances, in the good faith judgment of the Master Servicer, will be recoverable by the Master Servicer out of Insurance Proceeds, Liquidation Proceeds or otherwise.
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.
Gross Asset Value The term "Gross Asset Value" means, with respect to any asset, the asset's adjusted basis for federal income tax purposes, except as follows:
Collection of Taxes, Assessments and Similar Items; Servicing Accounts The Servicer shall establish and maintain, or cause to be established and maintained, one or more accounts (each such account or accounts, a “Servicing Account”). The Servicing Accounts shall be Eligible Accounts. The Servicer shall deposit or cause to be deposited into the Servicing Account within two (2) Business Days following receipt by the Servicer and retain therein, all collections from the Mortgagors (or related advances from a related Sub-Servicer) for the payment of taxes, assessments, hazard insurance premiums and comparable items for the account of the Mortgagors (“Escrow Payments”) collected on account of the Mortgage Loans. Withdrawals of amounts from a Servicing Account may be made only to (i) effect payment of taxes, assessments, fire and hazard insurance premiums, condominium charges and comparable items; (ii) reimburse the Servicer (or a Sub-Servicer to the extent provided in the related Sub-Servicing Agreement) out of related collections for any advances made pursuant to Section 3.01 (with respect to taxes and assessments) and Section 3.14 (with respect to hazard insurance); (iii) refund to Mortgagors any sums as may be determined to be overages; (iv) apply to the restoration or repair of the Mortgaged Property in accordance with Section 3.14(a); (v) pay interest to the Servicer or, if required and as described below, to Mortgagors on balances in the Servicing Account; (vi) clear and terminate the Servicing Account at the termination of the Servicer’s obligations and responsibilities in respect of the Mortgage Loans under this Agreement in accordance with Article IX or (vii) recover amounts deposited in error or for which amounts previously deposited are returned due to a “not sufficient funds” or other denial of payment by the related Mortgagor’s banking institution. As part of its servicing duties, the Servicer or Sub-Servicer shall pay to the Mortgagors interest on funds in the Servicing Accounts, to the extent required by law and, to the extent that interest earned on funds in the Servicing Accounts is insufficient, to pay such interest from its or their own funds, without any reimbursement therefor. The Servicer will be responsible for the administration of the Servicing Accounts and will be obligated to make Servicing Advances to the Servicing Account in respect of its obligations under this Section 3.09, reimbursable from the Servicing Accounts or Collection Account, when and as necessary to avoid the lapse of insurance coverage on the Mortgaged Property, or which the Servicer knows, or in the exercise of the required standard of care of the Servicer hereunder should know, is necessary to avoid the loss of the Mortgaged Property due to a tax sale or the foreclosure as a result of a tax lien.
Average Invested Assets For a specified period, the average of the aggregate book value of the assets of the Company invested, directly or indirectly, in Investments before deducting depreciation, bad debts or other non-cash reserves, computed by taking the average of such values at the end of each month during such period.
Gross Revenue The Gross Revenue shall be inclusive of installation charges, late fees, sale proceeds of handsets (or any other terminal equipment etc.), revenue on account of interest, dividend, value added services, supplementary services, access or interconnection charges, roaming charges, revenue from permissible sharing of infrastructure and any other miscellaneous revenue, without any set-off for related item of expense, etc.
